LEASE TERMINATION AGREEMENT
THIS LEASE TERMINATION AGREEMENT ("Agreement"), is made effective as of
the 31st day of July, 2006 ("Effective Date"), between CLP Industrial
Properties, LLC, a Delaware limited liability company ("Landlord"), and GALAXY
NUTRITIONAL FOODS, INC. (f/k/a Galaxy Food Company), a Delaware corporation
("Tenant").
W I T N E S S E T H :
A. On or about July 28, 1999, Cabot Industrial Properties, L.P. ("Original
Landlord") and Tenant made and entered into that certain industrial real estate
lease ("Original Lease") for the premises more particularly described therein in
a portion of the building known as OCP VII, located at 0000 Xxxxx Xxx, Xxxxxxx,
Xxxxxxx 00000 ("Building").
B. On or about September 10, 1999, Original Landlord and Tenant made and entered
into that certain First Amendment to Lease ("First Amendment"), wherein Tenant
leased certain additional space from Landlord in Building, and otherwise
modified certain terms of the Original Lease.
C. On or about April 24, 2000, Original Landlord and Tenant made and entered
into that certain Second Amendment to Lease ("Second Amendment"), wherein Tenant
also leased certain additional space from Landlord in Building, and otherwise
modified certain of the terms of the Original Lease and/or the First Amendment.
D. On or about June 10, 2004, Original Landlord and Tenant made and entered into
that certain Third Amendment to Lease Agreement ("Third Amendment"), wherein
Original Landlord and Tenant agreed to reduce the amount of space rented by
Tenant and otherwise modified certain terms of the Original Lease, the First
Amendment, and/or the Second Amendment.
E. The Original Lease, the First Amendment, the Second Amendment and the Third
Amendment collectively are referred to herein as the "Lease."
F. Landlord is the successor in interest to Original Landlord as owner of the
New Premises (which, together with any and all other space ever rented to Tenant
in the Building, shall be referred to collectively herein as the "Premises").
G. Landlord and Tenant desire to terminate the Lease prior to the stated
expiration of the term thereof, subject to the terms and conditions contained
herein.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein and other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
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1. Recitals. The foregoing recitals are true and correct and incorporated
herein by this reference.
2. Definitions. Unless otherwise specifically set forth herein, all
capitalized terms herein shall have the same meaning as set forth in the
Lease.
3. Termination. Effective as of the Effective Date, Tenant hereby surrenders
and turns over the right of possession to the Premises to Landlord and
irrevocably sells, transfers, assigns and conveys to Landlord, and
Landlord hereby accepts, receives and takes all of Tenant's right, title
and interest in and to the Premises. Tenant shall vacate the Premises on
or before 5:00 p.m. on the Effective Date, leaving same in the condition
required under the Lease, as modified by this Agreement. From and after
the Effective Date, Landlord may re-enter and possess the Premises as its
own, and may lease the Premises. Landlord and Tenant hereby agree that,
subject to Tenant having made all of the Termination Payments (as defined
herein) as and when required, (i) the Lease and all of Tenant's rights and
obligations thereunder shall terminate at 5:00 p.m. EST on the
ninety-first (91st) day after the Final Payment Date (the "Termination
Date"); and (ii) this Agreement shall be self-executing and the
transaction contemplated herein shall be effected without the need for
further documentation.
4. Termination Payments. Tenant shall continue to be responsible for payment
of all rent as provided for under the Lease up to and including the
Effective Date hereof. Additionally, Tenant shall pay the sum of
$228,859.00 (the "Termination Fee") to Landlord, payable upon the
following schedule (the "Termination Payments"):
(a) Simultaneous with execution hereof, Tenant shall pay to Landlord the
sum of $78,859.00 (less credit for current unearned pro-rated
monthly rent already paid by Tenant); and
(b) Effective as of the Effective Date, Tenant hereby irrevocably and
unconditionally assigns, conveys, grants, and sets over to Landlord
as part of the Termination Fee the security deposit held by Landlord
in the amount of $50,000.00, and Tenant shall be hereby deemed to
have waived any claim or right to said security deposit; and
(c) On the thirtieth (30th) day after the Effective Date, Tenant shall
pay to Landlord the sum of $75,000.00; and
(d) On the forty-fifth (45th) day after the Effective Date (the "Final
Payment Date"), Tenant shall pay to Landlord the sum of $25,000.00,
which shall be the final Termination Payment hereunder.
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5. Delivery of Termination Payments. Each of the Termination Payments shall
be delivered to Landlord by the same method as rental payments are made
under the Lease, or in the Tenant's sole discretion, by wire transfer in
accordance with instructions provided by Landlord or its representative,
prior to 5:00 p.m., Orlando, Florida time, on its respective due date.
Time is of the essence with respect to making of the Termination Payments.
6. Acceleration of Payments. In the event of any sale of Tenant or of all or
substantially all of Tenant's assets, each of the remaining Termination
Payments shall be accelerated and shall be due within thirty (30) days of
the Effective Date.
7. Condition and Use of Premises. Notwithstanding anything in the Lease to
the contrary, Tenant shall leave the Premises in good, broom clean
condition subject to normal wear and tear incurred during the term of the
Lease. Tenant shall be solely responsible for the repair of any damage
done to the Premises while moving out. Landlord and Tenant agree that, as
of the Effective Date, Tenant shall have no further right to possession of
the Premises, and Landlord may itself enter, use, modify and lease the
Premises as it may see fit.
8. Default. In the event of a default by Tenant under this Agreement which
default under this Agreement is not cured within five (5) days of receipt
of notice of default, Tenant's right of possession will not be reinstated
but the Lease shall not otherwise terminate as aforesaid, and Landlord
shall be entitled to all remedies available under the terms of the Lease,
as modified by this Agreement, or at law or in equity. In such event, any
amounts paid by Tenant hereunder shall be applied to Tenant's rental
payment obligations under the Lease.
9. Warranty and Indemnification. Tenant warrants and represents that it is
currently the tenant under the Lease and that it has not made any
assignment, sublease, transfer, conveyance, encumbrance or other
disposition of the Lease. Tenant agrees to, and shall, indemnify and hold
Landlord harmless from any claim arising from the foregoing warranty and
representation being untrue. Landlord and Tenant agree that no consent of
any third party (that has not been obtained) is required for or as a
condition precedent to the effectiveness of this Agreement.
10. Release. Effective upon the Termination Date, subject to the making of all
Termination Payments hereunder, each of Landlord and Tenant hereby
releases and forever discharges the other, and its respective
shareholders, partners, officers, directors, agents, trustees,
beneficiaries, and employees, of and from any and all claims, acts,
damages, demands, rights of action and causes of action which such party
ever had, now has or in the future may have, against the other, arising
from or in any way connected with the Lease, the Building or the Premises,
except for those obligations contained herein. This release is intended as
a full settlement and compromise of each, every and all claims of every
kind and nature, whether now known or hereafter discovered, except that
this paragraph shall not operate to release Tenant from any claims brought
by Landlord within one year of the Termination Date which arise out of
latent damage or hidden contamination of the Building.
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11. Authority. If Tenant signs as a corporation, partnership, trust or other
legal entity each of the persons executing this Agreement on behalf of
Tenant represents and warrants that Tenant has been and is qualified to do
business in the state in which the Building is located, that the entity
has full right and authority to enter into this Agreement, and that all
persons signing on behalf of the entity were authorized to do so by
appropriate actions. Tenant agrees to deliver to Landlord, simultaneously
with the delivery of this Agreement a resolution evidencing the due
authorization of Tenant to enter into this Agreement. Each party
represents to the other that it has full power and authority to execute
this Agreement.
12. Incorporation. Except as modified herein, all other terms and conditions
of the Lease between the parties above described shall continue in full
force and effect until the Termination Date. Landlord and Tenant shall
comply with all terms of the Lease, as modified by this Agreement.
13. Attorneys' Fees and Costs. In any action by either party to enforce the
terms of this Agreement, the prevailing party shall collect from the
non-prevailing party all of its reasonable attorneys' and paralegals' fees
and costs, and court fees and costs, whether incurred before, during or
after trial or on appeal. The parties expressly agree that time shall be
of the essence in the performance of all obligations under this Agreement.
14. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of each party and its respective successors and
assigns and shall be governed by the laws of the State of Florida and may
not be amended or modified other than in writing signed by the party to be
charged.
15. Validity. Should any provision of this Agreement be declared invalid or
unenforceable, whether in whole or in part, by any court of competent
jurisdiction, the remaining provisions and/or portions of the effected
which remain valid or enforceable shall not be effected thereby, provided
that if Section 3 of this Agreement shall be declared invalid or
unenforceable, in whole or in part, for any reason, any amounts paid by
Tenant hereunder shall be applied to Tenant's rental payment obligations
under the Lease.
16. Commissions. Each of the parties represents and warrants to the other that
it has not dealt with any broker or finder in connection with this
Agreement other than RREEF Management Company, to which Landlord shall
solely be responsible for the payment of any fee, commission, or other
amount payable thereto, and Xxxxxxx & Xxxxxxxxx of Florida, Inc., to which
Tenant shall solely be responsible for the payment of any fee, commission,
or other amount payable thereto.
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17. Counterparts. This Amendment may be executed in separate counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same instrument (facsimile transmission of such
signature pages shall be acceptable, provided that the parties agree to
thereafter cause at least one fully executed original Agreement to be
delivered to each other.)
18. Whole Agreement. The mutual obligations of the parties as provided herein
are the sole consideration for this Agreement, and no representations,
promises of inducements have been made by the parties other than as appear
in this Agreement.
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19. Limitation of Landlord's Liability. Redress for any claim against Landlord
under the Lease or this Agreement shall be limited to and enforceable only
against and to the extent of Landlord's interest in the Building. The
obligations of Landlord under the Lease and this Agreement are not
intended to be and shall not be personally binding on, nor shall any
resort be had to the private properties of, any of its or its investment
manager's trustees, directors, officers, partners, beneficiaries, members,
stockholders, employees, or agents, and in no case shall Landlord be
liable to Tenant hereunder for any lost profits, damage to business, or
any form of special, indirect or consequential damages.
IN WITNESS WHEREOF, Landlord and Tenant have executed the Agreement as of
the day and year first written above.
LANDLORD: TENANT:
CLP INDUSTRIAL PROPERTIES, LLC, GALAXY NUTRITIONAL FOODS, INC., a
a Delaware limited liability company Delaware corporation
By: RREEF MANAGEMENT COMPANY,
a Delaware corporation,
Authorized Agent
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxxxxxxx X. Xxxxxxx
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Name: Xxxx Xxxxxxxxx Name: Xxxxxxxxx X. Xxxxxxx
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Title: Vice President Title: Chief Financial Officer
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Dated: August 1, 2006 Dated: July 31, 2006
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Witness: /s/ Xxx Xxxxxx Witness: /s/ Xxxxxxxxx Xxxxx
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Witness: /s/ Xxxxxxxxx Xxxxxxxxxx Witness: /s/ Xxxxx Xxxxx
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