EXHIBIT 10.13
THIRD AMENDMENT TO LEASE AGREEMENT
THIS THIRD AMENDMENT TO LEASE AGREEMENT ("Amendment") is made and
entered into effective as of the 10th day of June, 2004 ("Effective Date") by
and between CABOT INDUSTRIAL PROPERTIES, L.P., a Delaware limited partnership
("Landlord") and GALAXY NUTRITIONAL FOODS, INC. (f/k/a Galaxy Foods Company), a
Delaware corporation ("Tenant").
R E C I T A L S:
A. On or about July 28, 1999, 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, 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 of the terms of the Original Lease.
C. On or about April 24, 2000, 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. The Original Lease, the First Amendment and the Second Amendment
collectively are referred to herein as the "Lease.
E. The space currently being leased by Tenant under the Lease consists
of approximately 81,924 square feet of space and is referred to herein as the
"Original Premises". The term of the Lease currently expires on October 31,
2004.
F. Tenant desires to reduce the amount of space it is leasing in the
Building to approximately 64,324 square feet of space ("New Premises"), which
New Premises generally is described or depicted on Exhibit "A" attached hereto
and incorporated herein by this reference, and to terminate the Lease as to said
excess space in conjunction with the execution of this Amendment, as provided
herein, and Landlord has agreed to reduce the amount of space being leased by
Tenant to the New Premises, all upon the terms and conditions set forth herein.
G. Tenant also desires to extend the term of the Lease for the New
Premises, as provided herein, and Landlord has agreed to extend the term of the
Lease for the New Premises, all upon the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00), the
mutual covenants and conditions contained herein, and other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. The foregoing is true and correct and incorporated herein by this
reference. Capitalized terms used in this Amendment which are not otherwise
defined herein shall have the same meaning ascribed to them in the Lease.
2. Landlord and Tenant hereby acknowledge and agree that the Lease is
in full force and effect as of the date hereof and, except as modified herein,
shall remain in full force and effect and be binding upon the parties until the
end of the New Lease Term (as defined below).
3. Landlord and Tenant hereby agree that the Lease is modified as
follows:
a. Landlord and Tenant agree that the Lease shall remain in
full force and effect, but the term of the Lease for the Original Premises shall
expire on July 31, 2004, and the New Lease Term (defined below) for the New
Premises shall commence on August 1, 2004. The term of the Lease, as modified
hereby ("New Lease Term"), shall commence on August 1, 2004 ("Extension
Commencement Date"), and end on July 31, 2009 ("Extension Termination Date").
From and after the Extension Commencement Date, references in the Lease to
"Lease Term" and "term of the Lease" and similar phrases shall refer to and mean
the New Lease Term.
b. Tenant acknowledges that it currently is in possession of
the New Premises and hereby accepts the New Premises "AS-IS", subject only to
the completion by Landlord of the items referenced in Section 3.i below. Tenant
shall be solely responsible for any other modifications to the New Premises, all
of which shall be subject to review and approval by Landlord in accordance with
the terms of the Lease, as well as all applicable governmental entities.
c. The annual Base Rent for the New Premises for the New Lease
Term shall be as follows:
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From To Annual Base Rent Monthly Base Rent
-------------- ------------- ---------------- -----------------
August 1, 2004 July 31, 2005 $218,701.60 $18,225.13
August 1, 2005 July 31, 2006 $225,777.24 $18,814.77
August 1, 2006 July 31, 2007 $259.225.72 $21,602.14
August 1, 2007 July 31, 2008 $267,587.84 $22,298.99
August 1, 2008 July 31, 2009 $275,306.72 $22,942.23
plus applicable sales or use tax thereon.
d. In addition to, and in conjunction with, the payment of
Base Rent for the New Lease Term, as set forth above, Tenant also shall pay
monthly to Landlord all other sums due under the Lease, including without
limitation operating expenses, ad valorem real estate taxes, property insurance,
common area maintenance fees, and property management fees.
e. Notwithstanding anything to the contrary set forth in the
Lease, Tenant shall have no further right to renew the Lease or to extend
further the term of the Lease; any provisions in the Lease relating to such
renewal or extension are hereby terminated and of no further force or effect.
f. Tenant represents and warrants to Landlord that RREEF
Management Company is the only agent, broker, finder or other party with whom
Tenant has dealt who may be entitled to any commission or fee with respect to
this Amendment. Tenant agrees to indemnify and hold Landlord harmless from any
claim, demand, cost or liability, including, without limitation, attorneys' fees
and expenses, asserted by any party other than RREEF Management Company based
upon dealings of that party with Tenant. Landlord agrees to indemnify and hold
Tenant harmless from any claim, demand, cost or liability, including, without
limitation, attorneys' fees and expenses asserted by any party, including RREEF
Management Company, based upon dealings of that party with Landlord.
g. As of the Effective Date, Landlord's address for notices
is: Attention: Director of Portfolio Management, 000 X. Xxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000, with a copy to Xxxxxxxxxxx X. Xxxxxxxx, Xxxxxxx
& Xxxxxx LLP, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000;
Tenant's address for notices is the New Premises.
h. As of the Effective Date, Landlord's address for rent
payment is 00 Xxxxxxxxxx Xxxxx, Xxxxx #0000, Xxxxxxx, Xxxxxxxx 00000-0000.
i. Landlord hereby agrees to spend up to $19,297.20 [$.30 psf]
("Allowance") to re-carpet the offices in the New Premises and to replace the
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VCT in the breakrooms / restrooms in the New Premises (collectively, the
"Improvements"). As soon as practicable following the Effective Date, Landlord
shall obtain an estimate of the cost to complete the Improvements and deliver a
copy of same to Tenant. In the event said estimate exceeds the Allowance, within
five (5) business days from receipt of the estimate, Tenant shall notify
Landlord in writing ("Notice") whether it elects to (i) pay the difference
between the estimate and the Allowance, or (ii) reduce the cost of the
Improvements by excluding certain areas from the scope of the work to be
completed. If Tenant elects (i) above, Tenant shall include with the Notice a
check for the difference between the estimate and the Allowance. If Tenant
elects (ii) above, Tenant's Notice shall specify the area(s) [in descending
order] it wishes to exclude from the scope of the work, and Landlord shall
remove said areas from the scope of the work until the estimate amount falls
below the Allowance. In the event the Allowance exceeds the estimate, Tenant
shall not be permitted to apply said excess to rent or other sums coming due
under the Lease.
j. Currently, Landlord is holding as a Security Deposit for
the Lease (i) a Letter of Credit in the amount of $50,000.00 and (ii) a cash
deposit in the amount of $35,313.19. Following the execution of this Amendment
and Tenant's vacation of the portion of the Original Premises not within the New
Premises, Landlord agrees to release and return to Tenant the cash deposit;
Landlord shall continue to hold, and Tenant shall continue to maintain in full
force and effect and in good standing, the Letter of Credit as a security
deposit under the Lease, in accordance with the terms of the Lease.
4. From and after the Effective Date, the Lease shall be modified as
set forth herein. Unless specifically modified by the terms hereof, all of the
terms and conditions of the Lease shall continue in full force and effect until
the end of the New Lease Term, and are enforceable in accordance with their
terms. In the event of any inconsistency or conflict between the terms of the
Lease and the terms set forth in this Amendment, the terms of this Amendment
shall supercede and control to the extent of such inconsistency or conflict.
5. 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 Amendment to be delivered to each other.) Subject to the
immediately preceding sentence, this Amendment shall be effective as of the
later of the two dates set forth beside the respective signatures of Landlord
and Tenant.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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IN WITNESS THEREOF, the parties hereto have executed this Amendment on
the day and year first above written.
Signed in the presence of: LANDLORD:
CABOT INDUSTRIAL PROPERTIES, L.P., a
Delaware limited partnership
By: RREEF Management Company, a
Delaware corporation, as its
Authorized Agent
/s/ XxxXxx X. Xxxxx
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Print Name: XxxXxx X. Xxxxx
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/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxxx
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Print Name: Xxxxx X. Xxxxxxx Name: Xxxxxx Xxxxxx
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Title:
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Dated: June 10, 2004
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Signed in the presence of: TENANT:
GALAXY NUTRITIONAL FOODS, INC.
(f/k/a Galaxy Foods Company), a
Delaware corporation
/s/ Xxxxxxxxx X. Xxxxxxx
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Print Name: Xxxxxxxxx X. Xxxxxxx
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/s/ Xxxxxxxx X. Xxxxxxx By: /s/ Xxxxxxxxx X. Xxxxxxx
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Print Name: Xxxxxxxx X. Xxxxxxx Name: Xxxxxxxxx X. Xxxxxxx
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Title: Chief Financial Officer
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Dated: June 10, 2004
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