EXHIBIT 10.18
AMENDMENT TO LEASE
This Amendment to Lease is made this ___22nd__ day of September, 1998 by and
between 0000 Xxx Xxxxxx, L.L.C. a New Jersey limited liability company, having
an address c/x Xxxxxx Management Company, 000 Xxxxxxxxx Xxxxxxx, Xxxx X,
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000, successor in interest to C.P. Lakewood, L.P.
("Landlord"), and Micro Warehouse, Inc., a Delaware corporation, having an
address at 00 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxxx 00000 ("Tenant").
WITNESSETH:
WHEREAS, by Agreement of Lease dated February 25, 1992 (the "Lease"),
by and between Landlord and Tenant, Landlord leased to Tenant and Tenant leased
from Landlord the premises located at 0000 Xxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx
consisting of approximately 52,109 square feet of space ("Premises"); and
WHEREAS, it is now the desire of Landlord and Tenant to amend and
extend said Lease as set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, Landlord and Tenant hereby agree that, effective as the date hereof
as set forth above, the Lease is amended as follows:
1. Section 1(b) of the Lease is deleted and the following substituted in its
place and stead:
"(b) NAME AND ADDRESS OF LANDLORD:
0000 Xxx Xxxxxx, L.L.C.
a New Jersey limited liability company
c/x Xxxxxx Management Company
000 Xxxxxxxxx Xxxxxxx, Xxxx X
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000"
2. Section 1(h) of the Lease is deleted and the following substituted in its
place and stead:
"(h) BROKER:
Samson Realty Corp.; commission to be paid by Landlord."
3. TERM: The term of the Lease is extended for a period of ten (10)
additional years commencing on July 1, 1999 and terminating on Xxxx 00,
0000 (xxx "Xxxxxxxxx Xxxx").
4. Section 3 of the Lease is amended by deleting the second and third
paragraphs thereof.
5. RENT: The Fixed Rent payable by Tenant to Landlord during the Extension
Term shall be as follows:
Period Per Square Foot Monthly Annually
------ --------------- ------- --------
Years 1 - 5 $6.25 $27,140.10 $325,681.25
of the Extension Term
Years 6 - 10 $7.19 $31,221.98 $374,663.71
of the Extension Term
6. The first paragraph of Section 8 of the Lease shall be designated
Section 8(a) and the following new sections 8(b) and 8(c) shall be
added:
"(b) In the event that Tenant wishes to utilize services of an
alternative electricity service provider ("ASP") rather than
the public utility that is servicing the Building as of the
date of Tenant's execution of this Amendment, no such ASP
shall be permitted to provide service to Tenant or to install
its lines or other equipment with the Building without
obtaining the prior written consent of Landlord, not to be
unreasonably withheld.
(c) Unless all of the following conditions are satisfied to in
a written agreement between the ASP and Tenant or by any other
means acceptable to Landlord, it shall be reasonable for
Landlord to refuse its consent:
(i) Landlord shall incur no expense whatsoever with
respect to any aspect of ASP's provision of its
services, including without limitation, the cost of
installation, service and materials;
(ii) Prior to commencement of any work in or about
the Premises by ASP, ASP shall supply verification
that ASP is properly insured and financially capable
of covering any uninsured damage;
(iii) ASP shall agree in writing to abide by rules
and regulations, job site rules, and such other
requirements, imposed on reasonable notice, as
reasonably determined by Landlord, to be necessary to
protect Landlord's interest in the Premises;
(iv) Landlord reasonably determines that there is
sufficient space in the Building for the placement of
all of ASP's equipment and materials, including
without limitation, in the electricity risers;
(v) ASP is, licensed by applicable government
agencies, as shown in documents acceptable to
Landlord;
(vi) ASP agrees that Landlord shall have the right,
upon reasonable request, to supervise ASP's
performance of any work on or about the Premises,
including, without limitation, any installations or
repairs;
(vii) ASP agrees that Landlord shall have the right
to enter ASP's space at any time in the event of an
emergency and at all reasonble times and upon
reasonable notice for the purpose or inspecting same,
making repairs (though nothing herein shall be
construed to obligate Landlord to make any repairs),
or exhibiting the space for purposes of sale, lease,
or financing.
(d) Landlord's consent under this Section shall not be deemed
any kind of warranty or representation by Landlord, including
without limitation, as to the suitability or competence of
ASP.
(e) Tenant shall indemnify and hold harmless Landlord for all
losses, claims, demands, expenses, and judgments against
Landlord caused by or arising out of, either directly or
indirectly, any negligent or reckless acts or omissions by
ASP.
7. Section 11 of the Lease is deleted in its entirety and the following
substituted in its place and stead:
"11. MAINTENANCE AND REPAIRS. (a) Tenant shall keep and maintain the
Property (including all non-structural, exterior, interior and
landscaped areas, systems and equipment and the roof of the building)
in good order, condition and repair during the Term, normal wear and
tear excepted. Tenant shall promptly replace any portion of the
Property or any systems or equipment thereof which cannot be fully
repaired. All repairs and replacements shall be performed in a good and
workmanlike manner. All of Tenant's obligations to maintain and repair
the Property shall be accomplished at Tenant's sole expense.
(b) Tenant shall keep and maintain all portions of the
Property and the parking areas, sidewalks and landscaped areas, in an
attractive and clean condition free of dirt and rubbish, and clear the
parking areas and sidewalks of accumulations of snow and ice.
(c) Landlord shall keep and maintain the structural portions
of the building (except the roof) in good order, condition and repair,
at Landlord's expense (except Tenant shall be responsible for any
structural repairs and replacements necessitated by Tenant's negligence
or Tenant's alterations to structural portion of building).
(d) During the Term, Tenant shall procure and maintain the
following service contracts: (i) contract for inspection and
maintenance of the roof of the Building (the inspections pursuant to
such contract shall be made at least semi-annually); (ii) contract for
the inspection, service, maintenance and repair of all heating,
ventilating and air conditioning equipment installed in the Building
(the inspection pursuant to such contract shall be made at least
quarterly); (iii) contract for the inspection, maintenance and repair
of sprinkler and fire protection systems, and (iv) contract for
maintenance of the landscaped areas of the Property. The identity of
each contractor and each contract shall be subject to Landlord's
reasonable approval. Copies of reports of inspections made hereunder
shall be promptly supplied to Landlord.."
8. Sections 16(a) and 16(b) of the Lease shall be deleted in their
entirety and the following substituted in their place and stead:
"16. ENVIRONMENTAL LAW COMPLIANCE. (a) Tenant agrees that it shall, at
its sole cost and expense, materially fulfill, observe and comply with
all of the applicable terms and provisions of the Industrial Site
Recovery Act, N.J.S.A 13:1K-6 ET SEQ., ("ISRA") the Spill Compensation
and Control Act, N.J.S.A. 58:10-23.11 ET SEQ., (the "Spill Act"), and
all other federal, state and local environmental laws now in effect or
hereinafter enacted, as any of the same may be amended from time to
time, and all rules, regulations, ordinances, opinions, orders and
directives issued or promulgated pursuant thereto or in connection
therewith. Tenant's obligations pursuant to this Section 16(a) shall
apply to conditions relating to Tenant's operations and/or possession
or use of the Property, and to conditions arising during Tenant's
possession or use of the Property whether pursuant to this Lease or
otherwise and whether caused directly or indirectly by Tenant or any
other party on or off the Property. Landlord shall be responsible, at
its sole cost and expense, for compliance with governmental
requirements, if any, for cleanup or removal for any environmental
contamination at the Property which pre-existed Tenant's initial
occupancy of the Property which initial occupancy, the parties
acknowledge, predates this Lease.
(b) Without limiting the foregoing, within the time period
prescribed by applicable law with respect to "closing operations" or
"transferring ownership or operations" (as said terms are defined in
ISRA) by Tenant, Tenant, at its sole cost and expense, shall provide
Landlord with a certified true copy of:
(i) A letter from the New Jersey Department of Environmental
Protection ("NJDEP") (or such other agency or body as shall then have
jurisdiction over ISRA matters), stating that ISRA does not then apply
to Tenant, Tenant's use and occupancy of the Property and the closing
of operations or transferring of ownership or operations of all or any
portion of the Property; or
(ii) A "No further action letter" (as said term is defined in
ISRA) duly and finally approved by NJDEP or such other agency or body
as shall then have jurisdiction over ISRA matters; or
(iii) A "Remedial action workplan" (as said term is defined in
ISRA) duly and finally approved by NJDEP or such other agency or body
as shall then have jurisdiction over ISRA matters, or
(iv) other documentation reasonably acceptable to Landlord
evidencing Tenant's compliance with, or the non-applicability of, ISRA.
(c) In the event Tenant complies with Section 16(b), by
obtaining an approved final Remedial action workplan, Tenant further
agrees that it shall, at its sole cost and expense:
(i) Post or cause to be posted any financial guarantee or
other bond required to secure implementation and completion of such
Remedial action workplan, and
(ii) Promptly implement and prosecute to completion or cause
to be so implemented and prosecuted such Remedial action workplan, in
accordance with the schedules contained in said Remedial action
workplan or as may be otherwise ordered or directed by NJDEP or such
other agency or body as shall then have jurisdiction over such Remedial
action workplan.
(d) Within twenty (20) days after written request by Landlord,
Tenant, shall deliver to Landlord a duly executed and acknowledged
affidavit of Tenant as Landlord may, from time to time, reasonably
require, certifying:
(i) The proper four digit Standard Industrial Classification
number relating to Tenant's then current use of the demised premises
(said Standard Industrial Classification number to be obtained by
reference to the then current Standard Industrial Classification Manual
prepared and published by the Executive Office of the President, Office
of Management and Budget or the successor to such publication); and
(ii) (A) That Tenant's then current use of the Property does
not involve the generation, manufacture, refining, transportation,
treatment, storage, handling, or disposal of hazardous substances(other
than normal and customary office products and cleaning supplies used in
Tenant's business in accordance with applicable environmental laws), or
hazardous wastes, as hazardous substances and hazardous wastes are
defined in ISRA, on site, above ground or below ground (all of the
foregoing being hereinafter collectively referred to as the Presence of
Hazardous Substances), or, (B) that Tenant's then present use does
involve the Presence of Hazardous Substances, (other than normal and
customary office products and cleaning supplies used in Tenant's
business in accordance with applicable environmental laws) in which
event, said affidavit shall describe in reasonable detail that portion
of Tenant's operations which involves the Presence of Hazardous
Substances. Tenant shall make available to Landlord, at reasonable
times and upon Landlord's reasonable request, information which
identifies each Hazardous Substance present at the Property, with the
exception of ordinary office and/or cleaning supplies and products used
in connection with the conduct of Tenant's business at the Premises.
Tenant shall supply Landlord with such additional information relating
to said Presence of Hazardous Substances as
Landlord may reasonably request.
(e) Without limiting the foregoing, Tenant agrees,
(i) at its sole cost and expense, to promptly
discharge and remove any lien or other encumbrance against the Property
arising from or in connection with Tenant's failure or inability, for
any reason whatsoever, to observe or comply with ISRA, all other
environmental laws and the provisions of this Section 16; and
(ii) to indemnify and hold Landlord harmless from and
against any and all liability, penalties, losses, expenses, damages,
costs, claims, causes of action, judgments and/or the like, of whatever
nature, including, but not limited to, reasonable attorneys' fees, to
the extent said lien, encumbrance, liability, penalty, loss, expense,
damage, cost, claim, cause of action, judgment and/or the like arise
from or in connection with Tenant's failure or inability, for any
reason whatsoever, to observe or comply with ISRA, all other
environmental laws and the provisions of this Section 16.
(f) Tenant shall not, without the prior written consent of
Landlord having been obtained, at any time during the term of this
Lease, install any underground or above-ground tanks for the storage of
fuel oil, gasoline and/or other petroleum products or by-products.
(g) In the event any portion of the Property is subleased or
otherwise occupied by or through Tenant, Tenant shall be responsible
for causing such parties to comply with the provisions of this Section
16.
(h) Any cleanup of the Property required to be performed by
Tenant hereunder shall be to the strictest standard regardless of use."
9. Sections 16(c) and 16(d) of the Lease shall be renumbered as 16(i) and
16(j), respectively.
10. All references in the Lease to Xxxxxx Construction Company shall be
changed to Xxxxxx Management Company, L.L.C., including but not limited
to the references contained in Sections 7 and 25 of the Lease.
11. Remaining Terms. Except as specifically amended and modified herein,
all of the terms, covenants or conditions of the Lease shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereby have duly executed this
Amendment to Lease as of the date first above set forth.
LANDLORD:
0000 Xxx Xxxxxx, L.L.C.
WITNESS:
By: /s/ Xxxxx Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx
Its: Manager
TENANT:
MICRO WAREHOUSE, INC.
ATTEST:
By: /s/ Xxxxx X. Xxx
--------------------------------
Print Name: Xxxxx X. Xxx
Its: Executive Vice President
