Exhibit 10.32
Second Amendment to the Lease Agreement
between ANCO Company and the Company
dated as April 1, 1994
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SECOND AMENDMENT TO LEASE AGREEMENT
This second amendment to lease agreement (the "Amendment")
made and entered into as of the 13th day of November, 1996 by and
between ANCO Company, a Florida general partnership (hereinafter
referred to as the "Landlord"), and Galaxy Foods Company (f/k/a
Galaxy Cheese Company), a Delaware corporation registered to do
business in Florida (hereinafter referred to as the "Tenant").
WITNESSETH:
Whereas, the Landlord and the tenant entered into that
certain Lease Agreement (the "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 in to that certain
First Amendment to the Lease Agreement dated as of April 1, 1994
amending certain provisions of the Lease; and
Whereas, the Landlord and 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 Lease 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 Lease, as amended, and modified
by this Amendment.
2. Renewal Term. The parties hereto agree as follows:
(a) The Term shall be renewed for a five (5) year term
commencing on November 13,1996 and ending at midnight
(Orlando, Florida time) on November 12, 2001; and
(b) Effective November 13, 1996 and throughout said
renewal term, the Base Rent shall be Two Hundred Forty Three
Thousand Eight Hundred Ninety Six and 89/100 ($243,896.89) and the
Expanded Parking Lot Rent shall be Forty Three Thousand One
Hundred Twenty Five and No/100 ($43,125.00); and
(c) The Base Rent and expanded Parking Lot Rent each
respectively, shall be paid in twelve (12) equal monthly
installments (rounded) of Twenty Thousand Three Hundred
Twenty Four and 75/100 ($20,324.75) and Three Thousand Five
Hundred Ninety Three and 75/100 ($3,593.75) in the manner set
forth in paragraph 3(a) of the Lease, with the rental
installments due for the months of November, 1996 and November,
2001 prorated accordingly.
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3. Amendments to the Lease. The Lease is hereby amended as
follows:
(a) Paragraph 3(d) of the Lease is amended by deleting
subsections (ii), (iii) and (iv) thereof, and by
substituting in lieu thereof the following (the balance of said
paragraph 3(d) shall remain without change):
"(ii) Terms of Months 121 through 180: Increased to
amounts to be mutually agreed by Landlord and Tenant
before the expiration of the second Term (months 61 through 120)
which amounts shall not be less that the Base Rent and the
Expanded Parking Lot Rent for the immediately preceding Term;
(iii) Terms of Months 181 through 240: increased to
amounts to be mutually agreed by Landlord and Tenant
before the expiration of the third Term (months 121 through 180)
which amounts shall not be less than the Base Rent and the
Expanded Parking Lot Rent for the immediately preceding
Term; and
(iv) Term of Months 241 through 300: increased to
amounts to be mutually agreed by Landlord and Tenant
before the expiration of the fourth Term (months 181 through 240)
which amounts shall not be less than the Base Rent and the
Expanded Parking Lot Rent for the immediately preceding Term."
(b) Paragraph 46 of the Lease is amended by deleting the
provisions of said Paragraph 46 as the same now exists, and
by substituting in lieu thereof the following:
"46. Lien Waiver & Additional Security. Landlord hereby
waives its lien rights for rent upon the personal property of
Tenant and any rights to pursue distress proceedings with respect to
Tenant's personal property for the payment of rent under Chapter 83,
Florida Statutes, or any successor statute; provided, however, Landlord does
not waive any other remedies avoidable under Chapter 83, including
any rights to pursue eviction proceedings under Chapter 83.
The foregoing waivers shall be effective as to, and my
be relied upon by, any third party providing financing to
Tenant and Landlord agrees that it shall, from time to time,
execute in favor of any such third party such documents
or agreements as may be reasonably required by such third
party to evidence, affirm, or confirm the above waivers.
Notwithstanding the foregoing, (a) that certain equipment identified
on the list attached hereto as Exhibit "A" is the property of the
Landlord and Tenant shall obtain a written acknowledgment (in form
satisfactory to the Landlord) from Tenant's secured creditor(s) to such
effect and (b) any and all fixtures now or hereafter affixed to the
Premises (including, but not limited to the Buildout Improvements)
shall be or become the property of Landlord.
(c) Paragraph 50 of the Lease is hereby added to the Lease
as follows:
"50. Standby Letter of Credit. Upon the execution of
this Amendment by both parties, the Tenant shall cause
to be issued and maintained during the Term (through
and including November 12, 2001), and Irrevocable Standby letter
of Credit (the "L/C") in favor of Landlord in the
principal amount of $47,837.00 (Tenant shall, within
fifteen (15) days of date of any draw under the L/C, cause the
principal amount of the L/C to be so adjusted to this amount
in the event of any draw and Tenant's failure to cause
the L/C to be adjusted shall be considered an event of default
under the Lease). The Landlord shall be entitled to
receive a draw under the L/C (I) in the event that any
amount due under the Lease has remain unpaid for five (5)
consecutive business days after notice thereof has been
given by Landlord to the Tenant and (ii) upon delivery to
the issuing bank of a certificate stating the amount in default
and the date of the notice thereof to the Landlord. The
L/C shall be issued by the Chase Manhattan Bank (or other major U.S.
Money center bank reasonably acceptable to Landlord) (the "Bank"),
and shall otherwise be in form and substance reasonably
satisfactory to Landlord. In the event that a notice of non
renewal of the L/C is issued by the Bank prior to November
12, 2001, then the Landlord shall be entitled to draw
the remaining balance of the L/C and, upon receipt of such non
renewal notice, Tenant shall be in default under the Lease
unless within fifteen (15) days thereof Tenant either
provides to Landlord a replacement L/C bearing the same terms as
the initial L/C as set forth hereinabove or delivers to
Landlord a cash deposit in the full face amount of the
initial L/C as an additional security deposit"
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4. 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.
5. 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.
ANCO Company, a Florida
general partnership
/s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx, a general partner
GALAXY FOODS COMPANY
(f/k/a GALAXY CHEESE COMPANY), a
Delaware corporation
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
