Exhibit 10.18
FIFTH AMENDMENT OF LEASE
THIS FIFTH AMENDMENT OF LEASE ("Fifth Amendment"), dated this 15th day of
June, 2004, by and between AMAX REALTY DEVELOPMENT, INC., a Delaware Corporation
and X. XXXXXXX & ASSOCIATES, a New Jersey Corporation, collectively T/A PORT
CARTERET, a joint venture (hereinafter called "Landlord") and XXXXXXXXX
CORPORATION, a Delaware Corporation, (hereinafter called "Tenant").
W H E R E A S,
A. Landlord and Tenant previously have entered into a lease agreement dated
February 11, 1994 ("Initial Lease"), for the leasing of certain lands and
improvements, including a building consisting of 647,114 square feet, in
Carteret, New Jersey ("Initial Lands" and "Initial Building" respectively), and
thereafter amended by the First Amendment of Lease, dated August 16, 1996; the
Second Amendment of Lease, dated October 30, 1996; the Third Amendment of Lease,
dated November 26, 1997 and the Fourth Amendment of Lease, dated August 31,
2001; collectively referred to herein as the "Lease"; and
B. The parties hereto desire to further amend the Lease in certain
respects;
NOW THEREFORE, for and in consideration of the premises and covenants
contained therein, the parties hereto agree as follows:
1. The recitals set forth above are incorporated by reference herein as
though fully set forth at length.
2. All capitalized terms used in this Fifth Amendment of Lease and not
defined herein shall have the meaning set forth in the Lease.
3. This Fifth Amendment of Lease shall take effect as of the date hereof.
4. Tenant has exercised its option to cause Landlord to construct an
Additional Building pursuant to Paragraph 49 of the Initial Lease, as amended,
consisting of approximately 162,648 square feet.
5. (a) Landlord shall construct and complete the Additional Building in a
good, workmanlike and diligent manner in accordance with the Plans referred to
in Exhibit "A" attached hereto and made a part hereof, in accordance with
Specifications to be prepared by Landlord, which specifications shall be
substantially similar to those for the Initial Building, in compliance with all
applicable laws, ordinances, rules and regulations of any duly constituted
governmental authority having jurisdiction thereof and the Tenant work described
in Exhibit "B" attached hereto and made a part hereof ("Tenant Work") and shall
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proceed diligently and use commercially reasonable efforts to secure all
necessary governmental approvals in connection with its construction of the
Additional Building and to deliver possession of the Additional Building,
including the Tenant Work, on or before October 15, 2004. Landlord shall perform
its work in such manner as to cause the least reasonable possible interference
with the use and occupation of the Initial Building, but shall not be required
to cause work to be performed on weekends, holidays or on an overtime basis in
order to reduce any interference with Tenant's use and occupation of the Initial
Building.
(b) Delivery of Possession of the Premises by Landlord to Tenant
("Delivery of Possession Date") shall be deemed to have been made when Landlord
shall have given Tenant written notice of the following:
(i) The Additional Building, the Tenant Work and all improvements
as shall be necessary to obtain a Certificate of Occupancy for the Additional
Building, have been Substantially Completed, as hereinafter defined in
accordance with the requirements hereof; and
(ii) All utilities, heating and air conditioning systems serving
the Additional Building have been installed and are in working order; and
(iii) The issuance of a Certificate of Occupancy for the
Additional Building, including the Tenant Work.
(c) The parties hereto agree that this Paragraph 5 constitutes an
express provision as to the time at which Landlord shall deliver possession of
the Additional Building, including the Tenant Work, to Tenant. Except as
otherwise herein set forth, Tenant shall not have any claim against Landlord,
and Landlord shall have no liability to Tenant, by reason of any postponement of
the Delivery of Possession of the Additional Building, including the Tenant
Work, and Tenant hereby waives any rights to rescind this Fifth Amendment which
Tenant otherwise might have pursuant to any law now or hereafter in force.
(d) The Additional Building, including the Tenant Work, shall be
deemed "Substantially Complete" or "Substantially Completed", and Delivery of
Possession of the Additional Building, including the Tenant Work, shall be
deemed to have occurred, in accordance with subparagraph 5(b) hereof,
notwithstanding that minor or insubstantial details of construction,
installation, decoration, finishing work or mechanical adjustments remain to be
done in the Additional Building, including the Tenant Work, provided same would
not unreasonably interfere with Tenant's use and occupancy of the Additional
Building, including the Tenant Work. Within ten (10) days following Delivery of
Possession, the parties shall execute a writing setting forth the Delivery of
Possession Date.
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(e) Upon Delivery of Possession, Tenant shall be conclusively deemed
to have certified to Landlord and its mortgagee that the Term and the date for
the payment of Rental pursuant to this Fifth Amendment shall have been
established in accordance herewith, that there is not then any offset against
any Rental to be paid pursuant to this Fifth Amendment nor any violation of any
of the terms of this Fifth Amendment on the part of Landlord, that Landlord, as
of the date thereof, has performed all of its obligations hereunder, and that
the Additional Building, including the Tenant Work, is in satisfactory condition
as of the date of such delivery, subject solely to latent defects and minor
items to be set forth on a "punch list" and such other items as Tenant shall
specify in a notice to Landlord, which punch list and notice shall be submitted
to Landlord within thirty (30) days following the Delivery of Possession Date,
which items shall be agreed upon and completed by Landlord within sixty (60)
days thereafter. The foregoing provisions shall be self-operative and no further
instrument or other writing shall be required unless any Permitted Mortgagee
shall deem the same appropriate, in which event Tenant promptly shall execute
any instrument or other writing containing the foregoing and such other similar
provisions in regard to the condition of the Additional Building, including the
Tenant Work, the Rental and the Term, as shall be reasonably requested by said
Permitted Mortgagee.
(f) At all times prior to the Delivery of Possession Date, Landlord
shall utilize its best efforts to permit Tenant to enter the Additional Building
for the purpose of performing any work necessary in order to prepare the
Additional Building for its occupancy, at its sole risk, cost and expense,
including without limitation the Tenant Work described on Exhibit "B". Tenant
agrees that during the course of any work which it performs, whether performed
prior to or subsequent to the Delivery of Possession Date, it will: (i) not
damage, delay or interfere with any work being performed by Landlord or any
other persons in or about the Additional Building; (ii) comply with all
procedures and regulations reasonably prescribed by Landlord from time to time
for coordination of such work and activities with any other work being performed
in or about the Additional Building by Landlord, its designees or contractors;
(iii) not do or permit anything to be done which would interfere with the
construction or operation of any work or activities being conducted by Landlord
or any other persons in or about the Additional Building. If Tenant fails or
refuses to comply with any of the foregoing obligations of this Paragraph, then
in addition to any other rights and remedies to which Landlord may be entitled,
Landlord shall have the right to require Tenant to immediately cease the
performance of such work and activities until the Delivery of Possession Date.
(g) Any access or possession by Tenant prior to the Delivery of
Possession Date shall be subject to all of the terms, provisions, covenants and
conditions of the Lease and this Fifth Amendment except for the payment of
Rental (as defined in Paragraph 8 of this Fifth Amendment), provided, however,
Tenant agrees to maintain such insurance as is required or appropriate pursuant
to the applicable provisions of the Lease, together with such additional
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insurance policy or endorsement as Landlord reasonably may request to insure the
improvements, work, furniture, fixtures and equipment performed, installed or
located on the Additional Building by Tenant.
(h) Tenant, at its sole cost and expense, shall be required to procure
any and all approvals from any governmental authorities having jurisdiction
thereover, relating to or arising out of, Tenant's Work, the business of Tenant
or its use or occupancy of the Additional Building, which approvals shall
include but shall not be limited to, applicable use permits, and any other
permits and approvals, other than the Building Permit, Certificate of Occupancy
and other construction approvals in connection with the construction of the
Additional Building and Tenant's Work which shall be obtained by Landlord.
Tenant agrees to make prompt application and to proceed diligently and in good
faith to procure all necessary approvals (collectively, "approvals"), including
all work in connection therewith, and within ten (10) days following request
therefor, to furnish Landlord with true copies of all writings submitted or
received in connection therewith and forthwith to notify Landlord in writing of
all determinations regarding such approvals.
6. The parties agree that the cost of the Additional Building, excluding
Tenant Work or other additional work performed at the cost or expense of Tenant,
shall be $5,947,622.08 or $36.56744 per square foot.
7. The parties agree that the cost of Tenant's Work shall be as set forth
on Exhibit B and shall be due and payable fifteen (15) days following the
Delivery of Possession Date.
8. The initial annual Fixed Rent to be paid on account of the Additional
Building ("Additional Building Fixed Rent") shall be determined as follows:
(a) The square footage of the Additional Building, multiplied by the
cost per square foot of the Additional Building; multiplied by a rate equal to
the 20 year United States Treasury Xxxx interest rate as of the Delivery of
Possession Date, (or as of January 1, 2005 if the Delivery of Possession Date is
later) plus four percentage points; plus an amount equal to four (4%) percent of
the foregoing.
(b) By way of example, as of April 8, 2004, the annual Additional
Building Fixed Rent would be as follows:
162,648 x 36.56744 = 5,947,622.08 x (4.62 + 4%) = 8.62% = 512,685.02 +
(512,685.02 x .04) = 20,507.40 + 512,685.02 = 533,192.42 and the
initial annual Additional Building Fixed Rent would be $3.28 per
square foot.
Note: The final determination of the annual Additional Building Fixed
Rent will be based on the actual square footage of the Building and
the twenty (20) year United States Treasury Xxxx interest rate as of
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the Delivery of Possession Date, provided however, that if the
Delivery of Possession Date shall not occur by January 1, 2005, the
determination of Additional Building Fixed Rent shall utilize the
twenty (20) year United States Treasury Xxxx interest rate as of
January 1, 2005.
9. The annual Improved Lands Fixed Rent for the Improved Lands completed on
or about December 16, 2002 shall continue to be $187,465.77.
10. The Additional Building Fixed Rent shall become due and payable on a
monthly basis commencing as of the Delivery of Possession Date, provided
however, that if the Delivery of Possession Date shall not occur on or before
October 15, 2004, subject to the applicable Unavoidable Delay provisions as set
forth in the Lease, then the Additional Building Fixed Rent and Additional Rent
shall commence as of the later of the Delivery of Possession Date or January 1,
2005.
11. The Additional Building Fixed Rent shall increase at the rate of $.25
per square foot as of the commencement of each fifth anniversary of the Delivery
of Possession Date, including during any Renewal Terms, if applicable.
12. Tenant shall be responsible for the payment of all Additional Rent,
including Taxes, as defined in the Lease, in connection with the Additional
Building in the same manner and to the same extent as provided for in the Lease
for the Premises described therein.
13. The annual Fixed Rent for the Initial Building shall not change and
shall remain in accordance with the applicable provisions of the Lease through
the last day of the month in which the fifteenth (15th) anniversary of the
Delivery of Possession Date shall fall. Commencing as of the first (1st) month
thereafter and continuing for the balance of the Extended Initial Term, as
hereinafter defined, the annual Fixed Rent for the Initial Building shall
increase by $.50 per square foot, or $323,577 per annum.
14. All of the Additional Building shall be used by Tenant in accordance
with the provisions of Paragraph 6 of the Initial Lease in the same manner and
to the same extent as if it was part of the initial Premises leased pursuant to
the Lease.
15. The first Renewal Term set forth in the Lease hereby is deemed to have
been exercised and the Term of the Lease, as amended herein, shall be extended
for a period through the last day of the month in which the twentieth (20th)
anniversary of the Delivery of Possession Date shall fall ("Extended Initial
Term"). The second Renewal Term, if exercised, including the annual Fixed Rent
to be paid during the second Renewal Term, shall be governed in accordance with
the applicable Lease provisions and shall commence on the day following
expiration of the Extended Initial Term.
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16. Except as otherwise herein provided, the Additional Building shall be
deemed part of the Premises leased to Tenant pursuant to the Lease as herein
amended, in the same manner and to the same extent as if all of the Additional
Building was part of the Premises leased to Tenant as of the Commencement Date
of the Lease, including, without limitation, the respective obligations of
Landlord and Tenant for repair and maintenance, Tenant obligations of insurance
and the rights of Tenant to purchase the Premises and/or to extend the Term of
the Lease.
17. (a) As of the Delivery of Possession Date, Tenant shall deliver to
Landlord on account of Security a new letter of credit in accordance with the
applicable provisions of Paragraph 40 of the Lease, in an amount equal to two
(2) months Fixed Rent payable pursuant to the Lease, as amended herein.
(b) At such times as any of the Fixed Rent payments shall increase
pursuant to the Lease, or this Fifth Amendment, or any subsequent Amendment to
Lease, Tenant shall deliver to Landlord on account of Security, a new, amended
or supplemental letter of credit in accordance with the applicable provisions of
Paragraph 40 of the Lease, in an amount equal to two (2) months Fixed Rent
payable pursuant to the Lease, as amended.
18. As of the Delivery of Possession Date, Tenant shall provide to Landlord
proof of insurance in accordance with the provisions of Paragraph 7(a)(i) of the
Initial Lease and the applicable provisions of the Amendments thereto, including
Paragraph 31 of the Fourth Amendment of Lease, together with insurance pursuant
to Paragraph 7(a)(i) of the Initial Lease for the Additional Building reflecting
an insured value of $5,500,000.00.
19. In the event of any inconsistency between the provisions of this Fifth
Amendment and the Lease, the provisions of this Fifth Amendment shall control.
20. In all other respects and matters, the Lease, as amended herein, shall
remain in full force and effect.
21. Landlord, on the request of Tenant, agrees to execute a Landlord's
Waiver Agreement and Consent in form mutually satisfactory to Landlord and any
lender of Tenant receiving a lien on Tenant's fixtures, furniture and equipment.
IN WITNESS WHEREOF, the parties have caused these presents to be signed by
duly authorized persons, as of the day and year first above written.
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Landlord:
T/A PORT CARTERET, a joint venture
By: AMAX REALTY DEVELOPMENT, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
By: X. XXXXXXX & ASSOCIATES
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx , Vice President
Tenant:
XXXXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Vice President
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EXHIBIT "A"
Plans for the "Additional Building" to Distribution Center No. 4, prepared by
Paulius International, P.C. as set forth below in the List of Drawings. This
Exhibit references not only the construction of the warehouse portion of the
Additional Building, but also depicts offices/lockers/cafeteria and a mezzanine
area which are not part of the initial Additional Building and the drawings of
which are intended to be shaded on the Plans referenced below. Landlord and
Tenant have agreed to create an additional amendment with exhibits reflecting
the construction of the office/lockers/cafeteria and mezzanine storage areas.
WAREHOUSE ADDITION
DISTRIBUTION CENTER NO. 4
LIST OF DRAWINGS
ARCHITECTURAL
a1 Overall Floor Plan 5/20/04
a2 Floor Plan 5/20/04
a3 Office Floor Plan 5/20/04
a4 Building Elevations 5/20/04
a5 Building Section 5/20/04
a6 Building Section 5/20/04
a7 Schedules & Details 5/20/04
a8 Toilet Plans & Details 5/20/04
EXHIBIT B - TENANT WORK
In connection with the construction of the Additional Building, the
following work shall be performed by the Landlord at the Tenant's sole
expense, hereinafter ("Tenant's Work"):
A. Landlord shall construct the Additional Building with five (5)
additional feet of ceiling height in the warehouse area, as depicted on Drawings
a-4, a-5 and a-6 referred to in Exhibit A.
B. The cost for the Tenant's Work shall be the total sum of
$232,200.00.
