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EXHIBIT 10.6
Third Amendment to Lease Agreement, between Anco Company
Galaxy Nutritional Foods, Inc., dated as of August 14, 2001
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THIRD AMENDMENT TO LEASE AGREEMENT
THIS THIRD AMENDMENT TO LEASE AGREEMENT (the "Amendment") made and
entered into as of the 14th day of August, 2001 by and between ANCO COMPANY, a
Florida general partnership (hereinafter referred to as the "Landlord"), and
GALAXY NUTRITIONAL FOODS, INC. (f/k/a GALAXY FOODS COMPANY and f/k/a GALAXY
CHEESE COMPANY), a Delaware corporation registered to do business in Florida
(hereinafter referred to as the "Tenant").
WITNESETH:
WHEREAS, the Landlord and the Tenant entered into that certain Lease
Agreement (the "Original Lease") dated as of the 13th day of November, 1991,
pursuant to which the Tenant leased from the Landlord certain premises (the
"Premises") generally described as that certain building located at 2441
Viscount Row, Orlando Central Park, Orlando, Orange County, Florida, and certain
surrounding land located at the same address; and
WHEREAS, the Landlord and Tenant entered into that certain First
Amendment to Lease Agreement dated as of April 1, 1994 (the "First Lease
Amendment") amending certain provisions of the Original Lease; and
WHEREAS, the Landlord and the Tenant entered into that certain Second
Amendment to Lease Agreement dated as of the 13th day of November, 1996 (the
"Second Lease Amendment") amending certain provisions of the Original Lease, as
amended; and
WHEREAS, the Landlord and the Tenant acknowledge that they have
successfully concluded negotiations for an additional five (5) year extension
period and they wish to confirm this renewal term and further amend the Original
Lease, as amended, for the purposes set forth in this Amendment.
NOW, THEREFORE, The Landlord and the Tenant do hereby agree as follows:
1. DEFINITIONS. Unless expressly defined in this Amendment, capitalized
terms contained herein shall have the meanings set forth in the Lease. The term
"Lease" from and after the date of this Amendment shall refer to the Original
Lease, as amended by the First Lease Amendment, the Second Lease Amendment and
this Amendment.
2. RENEWAL TERM. The parties hereto agree that the Term shall be
renewed for a five (5) year term commencing on November 13, 2001 and ending at
midnight (Orlando, Florida time) on November 12, 2006.
3. AMENDMENTS TO LEASE. The Lease is hereby amended as follows:
a. Paragraph 3(a) of the Lease is hereby amended by
deleting subparagraph (a) in its entirety and by substituting therefor the
following:
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"(a) For the Term of this Lease, Tenant agrees to pay to
Landlord a basic annual rental (the "Base Rent" or "Base
Rental") in the amount of Two Hundred Eighty Thousand Four
Hundred Eighty One and 42/100 Dollars ($280,481.42) and annual
rental for the Expanded Parking Lot (the "Expanded Parking Lot
Rent" or "Expanded Parking Lot Rental") in the amount of Forty
Nine Thousand Five Hundred Ninety Three and 75/100 Dollars
($49,593.75). The Base Rent and the Expanded Parking Lot Rent,
each respectively, shall be paid in twelve (12) equal monthly
installments of Twenty Three Thousand Three Hundred Seventy
Three and 45/100 Dollars ($23,373.45) and Four Thousand One
Hundred Thirty Two and 81/100 Dollars ($4,132.81), and shall
be due and payable in legal tender of the United States of
America in advance without notice, demand, deduction or
set-off of any kind except as provided herein on the first
(1st) day of each month; provided, however, if the Term begins
on a date other than the first (1st) day of the month or this
Lease terminates on a date other than the last day of the
month, the monthly rental installment and other charges herein
provided shall be prorated to the day of commencement or
termination. The parties further agree that if all or any
portion of the Landlord Equipment is returned by Tenant to the
Landlord for any reason, neither the Base Rent nor the
Expanded Parking Lot Rent shall be adjusted.
Further, Tenant agrees to pay to Landlord the total amount of
Forty Thousand Dollars ($40,000.00) (the "Maintenance
Payment"). The Maintenance Payment shall be paid in sixty (60)
monthly installments of Six Hundred Sixty-Six and 66/100
Dollars ($666.66), and shall be due and payable in legal
tender of the United States of America without notice, demand,
deduction or set off of any kind except as provided herein
commencing on December 1, 2001 and on the first (1st) day of
each month thereafter, payable with each monthly payment of
Base Rental and Expanded Parking Lot Rent; provided, however,
that the unpaid balance of the Maintenance Payment shall be
accelerated and paid in full upon the earlier to occur of (i)
a default by Tenant under this Lease which is not cured within
any applicable cure period, (ii) the termination of this Lease
for any reason, or (iii) the purchase of the Premises by the
Tenant. In consideration of Tenant's agreement to pay the
Maintenance Payment as provided herein, Landlord covenants to
engage a contractor (Structural Waterproofing Co. of Florida)
to perform certain one-time structural maintenance of the
Building exterior (not including the recently constructed
addition to the Building), the contract for which will include
exterior facade waterproofing and window caulking as described
on Exhibit "A" attached hereto [provided, however, Landlord
does not warrant the services described in said contract]."
b. Paragraph 26 of the Lease is hereby amended by
deleting the provisions thereof in their entirety and by substituting the
following:
"Landlord shall have no obligations to maintain the Building or any
components of the Premises. In addition to its maintenance and repair
obligations set forth in paragraph 9
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hereof, Tenant at its sole cost and expense shall keep or have kept in
good repair and order and shall replace as necessary all structural
components of the Building (including, but not limited to, the roof,
foundation, load bearing walls/columns, HVAC, plate glass, etc.) and
all structural repairs and replacements made or required as a result of
any improvements to the Premises made by the Tenant (including, but not
limited to, the Buildout Improvements, the air conditioning system, the
roof, the new sewer pipes, the electrical system and the telephone
system). Landlord shall have the right to inspect the Premises upon
reasonable advance notice to Tenant and, in the event that Tenant fails
to undertake such maintenance or repairs promptly, Landlord shall have
the right to maintain and repair the Building or Premises as it may
deem advisable and Tenant shall reimburse Landlord for the reasonable
cost and expense thereof."
c. Paragraph 30 of the Lease is hereby amended by
deleting subparagraph (a) under "As to the Landlord" as the same now exists in
its entirety and by substituting in lieu thereof the following (the balance of
said paragraph 30 shall remain without change):
"(a) By personal delivery with written receipt therefor or by FAX
(telecopy) or by Certified U.S. mail sent Postage Prepaid, Return
Receipt Requested to Landlord, at 0000 Xxxxxx Xxxxxx, #0-X Xxxxxxx,
Xxxxxxx 00000 with a required copy to c/o Stella Mount, 0000 Xxxxx
Xxxxxx, Xxxxxxx, XX 00000 (Fax: 000-000-0000)."
d. The following sentence is hereby added to paragraph
43 of the Lease:
"Tenant acknowledges that it has consulted with Xxxxxx X. Xxxxxxx, Inc.
("Xxxxxxx") and agrees to indemnify and hold the Landlord harmless
against any claim or demand made by Xxxxxxx or any of its employees or
agents for any commissions, payments or fees whatsoever with respect to
the purchase of the Property by Tenant, the extension of this Lease and
any other consultations Tenant may have had with Xxxxxxx."
4. ADDITIONAL CLAUSES. The parties agree that the following paragraphs
are hereby included in the Lease:
51. Notwithstanding anything in this Lease to the contrary, Tenant
represents and warrants to the Landlord that no "Hazardous Materials"
(as hereinafter defined) at any time during the term of this Lease are
or were actually or allegedly generated, stored, treated, released,
disposed of, used or otherwise located on or at the Premises in
violation of applicable law, and, further, Tenant agrees to indemnify
and hold Landlord harmless from any and all (i) liabilities under any
common law theory of tort, nuisance, strict liability, ultrahazardous
activity, negligence or otherwise based upon, resulting from or in
connection with the generation, storage, treatment, release, disposal,
or use of any Hazardous Materials on the Premises unless such
liabilities were the result of or were related to any activities, acts
or omissions of Landlord or its employees, agents, representatives or
contractors, and (ii) obligations to take response, cleanup or
corrective action pursuant to any investigation or remediation in
connection with the decontamination, removal, transportation,
incineration, or disposal of any of the
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foregoing unless related to any activities, acts or omissions of
Landlord or its employees, agents, representatives or contractors.
"Hazardous Materials" shall include but not be limited to substances
defined as "hazardous substances," "hazardous materials," or "toxic
substances" in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq.;
the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et
seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section
6901, et seq.; the common law; and any and all state, local or federal
laws, rules, regulations and orders pertaining to environmental, public
health or welfare matters, as the same may be amended or supplemented
from time to time (collectively, the "Environmental Laws"). The
provisions of this paragraph shall survive the expiration or sooner
termination of this Lease.
52. Tenant covenants to provide to Landlord a certificate of
insurance certifying the insurance coverage set forth in paragraph 29
of the Lease promptly upon the execution hereof and upon the request of
Landlord from time to time during the Term.
53. During the Term, Tenant shall be responsible at its own cost
and expense for mowing and maintaining the appearance of real property
adjoining the Premises owned by Landlord as more particularly
identified in paragraph 1(b) of the Lease.
5. RATIFICATION OF LEASE. Except as modified pursuant to the terms of
this Amendment, the Landlord and the Tenant do hereby confirm and ratify the
Lease and Tenant agrees that it has no claims against the Landlord or offsets or
counterclaims under the Lease.
6. COUNTERPART SIGNATURES. This instrument may be signed in any number
of counterpart copies, all of which taken together shall be deemed one and the
same original instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date set forth above.
Signed, sealed and delivered ANCO COMPANY, a Florida
in the presence of: general partnership
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxx Xxxxxxx
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(Signature of Witness) Xxxxx Xxxxxxx, as general partner
Xxxxx X. Xxxxx Date: August 9, 2001
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(Print Name of Witness)
/s/ Xxxxxxx X. XxxXxxxxx
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(Signature of Witness)
Xxxxxxx X. XxxXxxxxx
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(Print Name of Witness)
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As to the "Landlord"
Signed, sealed and delivered GALAXY NUTRITIONAL
in the presence of: FOODS, INC. (f/k/a GALAXY FOODS
COMPANY and f/k/a GALAXY CHEESE
COMPANY), a Delaware corporation
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
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(Signature of Witness) Xxxxxx X. Xxxxxx, as President
Xxxx X. Xxxxxx Date: 8-14-01
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(Print Name of Witness)
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(Signature of Witness)
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(Print Name of Witness)
As to the "Tenant"
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Exhibit "A"
TO PRESSURE WASH, PATCH, CAULK, PAINT AND COAT BUILDING USING ELASTOMERIC
WATERPROOF COATING. EXCLUDING NEWER ADDITION [TO BUILDING].
PRESSURE WASH - COLD WATER BLAST
Using Structural Waterproofing's 3500 SPI pressure blaster, wash all elevations
of building from grade to roofline of dirt, mildew, blistered coating and paint
oxidation. Structural Waterproofing will take care not to jet water directly
into open joints and windows. Stubborn mildew stains will be treated, using a
solution of chlorine applied by a low pressure garden sprayer, then rinsed
afterward, using clean water. Effervescence to be removed by scraping and
brushing with effervescence cleaner and rinsed prior to sealing and coating of
building.
CAULKING
Perimeters of exterior windows (masonry to frame) wall mounted lights, doors and
vents will be prepped and caulked using Tremco's Dymeric 511 or Sonniborn's NP2
two part urethane sealant or Tremco's Vulkem 933 or Sonniborn's NP1 one part
urethane sealant. Joints will be dry tooled to a neat appearance. Other joints
include:
1. Inside vertical corners on vertical columns.
2. Large structural cracks prior to butter grading.
3. Open panel joints.
4. Joint at base of building where wall meets raised curbing.
STRUCTURAL AND HARILINE CRACKS
Structural cracks that are smaller than one-sixteenth (1/16) inch will be
patched, using butter grade patching material or equivalent. Larger cracks will
be cut out by grinders, cleaned, caulked, and then patched with patching
compound, as above.
COATING OF VERTICAL WALLS
All exterior masonry vertical surfaces previously treated will be coated, using
MAB's Architectural Hi-Build Elastomeric Waterproof coating or equivalent.
Surfaces to be treated will receive one application of coating. Color to match.
Entrance elevation ceilings to be painted using MAB's Seashore acrylic paint or
equivalent. All surfaces to be coated will be sealed using MAB's Loktrite Latex
surface conditioner or equivalent prior to coating. Exteriors of ground floor
solid metal doors to be prepped, spot-primed and painted, using MAB's
Xxxx-X-Xxxxxx paint or equivalent.
