Exhibit 10.14
New Premises Date Acknowledgement
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Date: April 20, 2004
Location: 500 BiCounty Boulevard
Farmingdale, NY 11735
Landlord: 500 BiCounty Associates, L.P.
300 Robbins Lane
Syosset, New York 11791
Tenant: Colorado Prime Corporation
500 BiCounty Boulevard
Farmingdale, NY 11735
Date of Lease: September 18, 1997
1st Lease Modification Agreement: November 26, 1997
2nd Lease Modification Agreement: February 11, 1998
3rd Lease Modification Agreement: March 11, 2004
New Premises Commencement Date: April 16, 2004
See lease renewals and extensions of the term of Lease, if any.
The Provisions of this Acknowledgement do not and are not intended to amend or
modify the Lease, and any construction to the contrary is expressly negated.
The foregoing is hereby confirmed by the parties hereto.
Landlord Tenant
500 BiCounty Associates, L.P. Colorado Prime Corporation
By: 500 BiCounty Ltd., its
General Partner
By: /s/Jonathan E. Cohen By: /s/Ken Saccente
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Name: Jonathan E. Cohen Name: Ken Saccente
Title: Vice President Title: V.P.
Colorado Prime Corporation
500 BiCounty Boulevard
Farmingdale, NY 11735
500 BiCounty Associates, L.P.
300 Robbins Lane
Syosset, New York 11791
Re: Lease Agreement dated as of September 18, 1997 between 500 BiCounty
Associates, L.P. ("Landlord") and Colorado Prime Corporation ("Tenant") as
ameneded by a Lease Modification Agreement dated as of November 26, 1997 and a
Second Lease Modification Agreement dated as of February 11, 1998 (collectively,
the "Lease")
Dear Jonathan,
Enclosed you will find four (4) execution copies of the Third Lease Modification
Agreement dated as of ________, 2004 (the "Amendment") between 500 Bi-County,
L.P. and Colorado Prime Corporation, each of which have been executed by
Coloardo Prime Corporation.
We understand and agree that the Amendment is being delivered to you to hold in
escrow until such time that you have entered into a binding written lease
agreement with Liberty Mutual Insurance Company for a portion of the premises
currently leased to Tenant pursuant to the terms of the Lease on terms and and
conditions acceptable to you in your sole and absolute discretion (the "New
Lease"), which New Lease shall not be subject to any unsatisfied condition
subsequent. It entered into the New Lease shall not be subject to any
unsatisfied condition subsequent (such condition is hereafter referred to as the
"New Lease Condition"). We understand that you are making no representation or
warranty to us as to your ability to successfully negociate and secure the New
Lease and you shall have no liability to us in the event that the New Lease
Condition is not satisfied.
In the event that you have not notified us in writing by March 31, 2004 that you
have achieved the New Lease Condition or have waived the New Lease Condition,
then you shall return the Amendment to us whereupon the Amendment shall become
void ab initio and the Lease shall continue in full force and effect unmodified
by the Amendment in all respects.
In the event that you have notified us in writing by March 31, 2004 that you
have achieved the New Lease Condition or have waived the New Lease Condition,
then you are hereby authorized to countersign in the Amendment and to date the
Amendment as of the date of your notice and return to us two (2) fully executed
duplicate originals of the Amendment.
500 Bi-County Associates, L.P.
Page 2
Please acknowledge your agreement with the foregoing escrow instructions by
executing a copy of the letter in the space provided below and returning a copy
of the same to us.
Very truly yours,
Colorado Prime Corporation
By: /s/Kenneth Saccente
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Name: Kenneth Saccente
Title: V.P.
Accepted and agreed this 12th day of February, 2004.
500 Bi-County Associates, L.P.
By: 500 Bi-County, Ltd., its
General Partner
By: /s/Jonathan E. Cohen
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Name: Jonathan E. Cohen
Title: Vice President
Schedule
Date Monthly Rent Annual Rent
1-Feb-04 $113,262.50
1-Jul-04 $8,883.33 $555.21 $9,438.54
$8,883.33 $555.21 $9,438.54
$8,883.33 $555.21 $9,438.54
$8,883.33 $555.21 $9,438.54
$8,883.33 $555.21 $9,438.54
$8,883.33 $555.21 $9,438.54
$8,883.33 $555.21 $9,438.54
1-Feb-05 $8,883.33 $555.21 $9,438.54 $115,128.00
$8,883.33 $555.21 $9,438.54
$8,883.33 $555.21 $9,438.54
$8,883.33 $555.21 $9,438.54
$8,883.33 $555.21 $9,438.54
1-Jul-05 $9,149.83 $555.21 $9,705.04
$9,149.83 $555.21 $9,705.04
$9,149.83 $555.21 $9,705.04
$9,149.83 $555.21 $9,705.04
$9,149.83 $555.21 $9,705.04
$9,149.83 $555.21 $9,705.04
$9,149.83 $555.21 $9,705.04
1-Feb-06 $9,149.83 $555.21 $9,705.04 $118,381.97
$9,149.83 $555.21 $9,705.04
$9,149.83 $555.21 $9,705.04
$9,149.83 $555.21 $9,705.04
$9,149.83 $555.21 $9,705.04
1-Jul-06 $9,424.33 $555.21 $9,979.54
$9,424.33 $555.21 $9,979.54
$9,424.33 $555.21 $9,979.54
$9,424.33 $555.21 $9,979.54
$9,424.33 $555.21 $9,979.54
$9,424.33 $555.21 $9,979.54
$9,424.33 $555.21 $9,979.54
1-Feb-07 $9,424.33 $555.21 $9,979.54 $121,733.55
$9,424.33 $555.21 $9,979.54
$9,424.33 $555.21 $9,979.54
$9,424.33 $555.21 $9,979.54
$9,424.33 $555.21 $9,979.54
1-Jul-07 $9,707.06 $555.21 $10,262.27
$9,707.06 $555.21 $10,262.27
$9,707.06 $555.21 $10,262.27
$9,707.06 $555.21 $10,262.27
$9,707.06 $555.21 $10,262.27
$9,707.06 $555.21 $10,262.27
$9,707.06 $555.21 $10,262.27
1-Feb-08 $9,707.06 $555.21 $10,262.27 $125,185.68
$9,707.06 $555.21 $10,262.27
$9,707.06 $555.21 $10,262.27
$9,707.06 $555.21 $10,262.27
$9,707.06 $555.21 $10,262.27
1-Jul-08 $9,998.27 $555.21 $10,553.48
$9,998.27 $555.21 $10,553.48
$9,998.27 $555.21 $10,553.48
$9,998.27 $555.21 $10,553.48
$9,998.27 $555.21 $10,553.48
$9,998.27 $555.21 $10,553.48
$9,998.27 $555.21 $10,553.48
1-Feb-09 $9,998.27 $555.21 $10,553.48 $128,741.38
$9,998.27 $555.21 $10,553.48
$9,998.27 $555.21 $10,553.48
$9,998.27 $555.21 $10,553.48
$9,998.27 $555.21 $10,553.48
1-Jul-09 $10,298.22 $555.21 $10,853.43
$10,298.22 $555.21 $10,853.43
$10,298.22 $555.21 $10,853.43
$10,298.22 $555.21 $10,853.43
$10,298.22 $555.21 $10,853.43
$10,298.22 $555.21 $10,853.43
$10,298.22 $555.21 $10,853.43
1-Feb-10 $10,298.22 $555.21 $10,853.43 $132,403.74
$10,298.22 $555.21 $10,853.43
$10,298.22 $555.21 $10,853.43
$10,298.22 $555.21 $10,853.43
$10,298.22 $555.21 $10,853.43
1-Jul-10 $10,607.16 $555.21 $11,162.37
$10,607.16 $555.21 $11,162.37
$10,607.16 $555.21 $11,162.37
$10,607.16 $555.21 $11,162.37
$10,607.16 $555.21 $11,162.37
$10,607.16 $555.21 $11,162.37
$10,607.16 $555.21 $11,162.37
1-Feb-11 $10,607.16 $555.21 $11,162.37 $136,175.98
$10,607.16 $555.21 $11,162.37
$10,607.16 $555.21 $11,162.37
$10,607.16 $555.21 $11,162.37
$10,607.16 $555.21 $11,162.37
1-Jul-11 $10,925.38 $555.21 $11,480.59
$10,925.38 $555.21 $11,480.59
$10,925.38 $555.21 $11,480.59
$10,925.38 $555.21 $11,480.59
$10,925.38 $555.21 $11,480.59
$10,925.38 $555.21 $11,480.59
$10,925.38 $555.21 $11,480.59
1-Feb-12 $10,925.38 $555.21 $11,480.59 $140,061.38
$10,925.38 $555.21 $11,480.59
$10,925.38 $555.21 $11,480.59
$10,925.38 $555.21 $11,480.59
$10,925.38 $555.21 $11,480.59
1-Jul-12 $11,253.14 $555.21 $11,808.35
$11,253.14 $555.21 $11,808.35
$11,253.14 $555.21 $11,808.35
$11,253.14 $555.21 $11,808.35
$11,253.14 $555.21 $11,808.35
$11,253.14 $555.21 $11,808.35
$11,253.14 $555.21 $11,808.35
1-Feb-13 $11,253.14 $555.21 $11,808.35 $144,063.35
$11,253.14 $555.21 $11,808.35
$11,253.14 $555.21 $11,808.35
$11,253.14 $555.21 $11,808.35
$11,253.14 $555.21 $11,808.35
1-Jul-13 $11,590.74 $555.21 $12,145.94
$11,590.74 $555.21 $12,145.94
$11,590.74 $555.21 $12,145.94
$11,590.74 $555.21 $12,145.94
$11,590.74 $555.21 $12,145.94
$11,590.74 $555.21 $12,145.94
$11,590.74 $555.21 $12,145.94
1-Jan-14 $11,590.74 $555.21 $12,145.94
THIRD LEASE MODIFICATION AGREEMENT
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AGREEMENT made as of the_____day of_______2004 by and between 500 BI-COUNTY
ASSOCIATES, L.P., a New York limited partnership having an office at 300 Robbins
Lane, Syosset, New York 11791 (hereinafter called "Landlord"), and Colorado
Prime Corporation, a Delaware corporation, having an office at 500 Bi-County
Boulevard, Farmingdale, New York 11735 (hereinafter called "Tenant").
RECITALS
WHEREAS, Landlord and Tenant have entered into a Lease Agreement dated as
of September 18, 1997 as amended by a Lease Modification Agreement dated as of
November 26, 1997 and a Second Lease Modification Agreement dated as of February
11, 1998 (collectively, the "Lease") for the lease of approximately 29,242
square feet of space (the "Original Premises") in the building located at 500
131-County Boulevard, Farmingdale, New York (the "Building").
WHEREAS, Landlord and Tenant desire to amend the Lease to, among other
things, reduce the area of the Premises from its current size of 29,242 rentable
square feet to 5,330 rentable square feet (the "New Premises").
NOW, THEREFORE, in consideration of the mutual promises contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
ARTICLE I
Definitions
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1.1 The recitals are specifically incorporated into the body of this
Agreement and shall be binding upon the parties hereto.
1.2 Unless expressly set forth to the contrary and except as modified
by this Agreement, all defined terms shall have the meanings as ascribed to them
in the Lease.
ARTICLE II
Lease Modifications
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2.1 As of the date hereof the Lease is hereby modified and amended as
follows:
2.1.1 Premises. Except as otherwise specifically set forth herein to the
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contrary, as of the New Premises Commencement Date (hereinafter defined) the
term "Premises" or "Demised Premises" as used in the Lease shall mean the New
Premises. In addition, effective as of the New Premises Commencement Date,
Exhibit "1", annexed to the Lease and referenced in the definition of "Demised
Premises" and "Premises" appearing in Article I of the Lease, is deleted and
replaced with Exhibit "A" annexed hereto and made a part hereof.
2.1.2 Space. As of the New Premises Commencement Date, Article 1 of the
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Lease is hereby modified and amended as follows:
(i) Delete the number "29,242" and insert the number "5,330" in its place;
representing a reduction of the area of the Premises by 23,912 rentable square
feet as depicted in Exhibit "A" annexed hereto (the "Surrender Space"); and
(ii) Tenant's Proportionate Share shall be 3.55%.
2.1.3 Rent. As of July 1, 2004, the Rent payable by Tenant for the sixth
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(6th) year through and including the fifteenth (15th) year of the Term of the
Lease is amended and restated as-follows:
(i) for the sixth year of the Term of the Lease, the Rent shall be
$113,262.50;
(ii) for the seventh year of the Term of the Lease, the Rent shall be
$115,127.99;
(iii) for the eighth year of the Term of the Lease, the Rent shall be
$118,381.91;
(iv) for the ninth year of the Term of the Lease, the Rent shall be
$121,733.47;
(v) for the tenth year of the Term of the Lease, the Rent shall be
$125,188.66;
(vi) for the eleventh year of the Term of the Lease, the Rent shall be
$128,741.41;
(vii) for the twelfth year of the Term of the Lease, the Rent shall be
$132,403.74; (viii) for the thirteenth year of the Term of the Lease, the Rent
shall be $136,175.63;
(ix) for the fourteenth year of the Term of the Lease, the Rent shall be
$140,061.68; and
(x) for the fifteenth year of the Term of the Lease, the Rent shall be
$144,063.55. Tenant shall pay the Rent in equal monthly installments in advance
of the first day ofeach calendar month, in accordance with the terms of the
Lease as amended by this Agreement. July 1, 2004 is not the first day of the
sixth lease year of the Term of the Lease, and therefore Tenant shall pay a pro
rata portion of the Rent for the New Premises on a per diem basis from July 1,
2004 to and including the last day of the sixth lease year of the Term of the
Lease.
2.1.4 Taxes. As of July 1, 2004, the term "Base Year Taxes" set forth in
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Article 11(A)(ii) of the Lease shall mean the Taxes actually due and payable in
the 2003/2004 tax year (commencing December 1, 2003 and ending November 30,
2004).
2.1.5 Services. As of the New Premises Commencement Date, Article 6 is
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hereby amended and restated in its entirety as follows and as a result thereof,
Tenant shall no longer be obligated to pay to Landlord increases in Operating
Costs:
"6. (A) Landlord shall provide to the Premises heat and air-conditioning during
the hours of 8:00 AM to 6:00 PM on weekdays and 8:00 AM to 1:00 PM on Saturdays,
excluding legal holidays (as shown on Exhibit "C", annexed hereto and made a
part hereof) in the respective seasons in accordance with Schedule "D". The
aforementioned hours are hereinafter referred to as `WORKING HOURS". At any
hours other than the aforementioned, such services will be provided at Tenant's
expense in accordance with Schedule "E".
(B) Landlord shall have no liability to Tenant for any loss, damage or
expense sustained or incurred by reason of any change, failure, inadequacy,
unsuitability or defect in the supply or character of the electric energy
furnished to the Premises or if the quantity or character of the electric energy
is no longer available or suitable for Tenant's requirements, except for any
actual damage suffered by Tenant by reason of any such failure, inadequacy or
defect caused by the gross negligence or willful misconduct of Landlord and then
only thirty (30) days after Landlord's receipt of notice from Tenant of such
failure, inadequacy or defect."
2.1.6 Schedule "D". Schedule "D" is hereby added to the Lease as follows:
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"Heating, Ventilation and Air Conditioning Specifications
General
The intent of this specification is to define a design concept for the subject
area. Design Criteria
Central air conditioning with modular systems with individual zone control shall
be capable of the following performance when the criteria noted are not
exceeded:
(A) Between September 1 and June 1, the "heating system" shall be operative
and maintain a minimum of 70 degrees FDB when the outdoor temperature is 0
degrees FDB and the prevailing wind velocity does not exceed 15 mph.
(B) Between April 15 and October 14, the "cooling system" shall be
operative and maintain a maximum of 80 degrees FDB and 55% relative humidity
when the outdoor temperature is 95 degrees FDB and 75 degrees FDB with the
prevailing wind velocity not exceeding 13 mph.
(C) During the overlapping seasons (April 15 - June 1 and September 1 -
October 15) both systems shall be operative (cooling and heating).
(D) Zoning temperature and balancing controls shall be operated solely by
the Landlord to assure the conditions above.
(E) Maintenance of the foregoing temperature conditions is conditioned upon
the following criteria, which shall not be exceeded by the Tenant in any room,
or area, within the demised premises:
(a) Population Density 1 person per 100 square feet
(b) Lighting and Electrical Load Density 6 watts per square foot
(c) Exhaust and Ventilation Load 5 cfm per person" 2.1.6 Schedule "E".
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Schedule "E" is hereby added to the Lease as follows:
"1. Landlord shall provide in the manner and at the rates hereinafter set
forth and Tenant shall purchase from Landlord "electrical service" for Tenant's
requirements.
(A) There shall be a meter installed in the Demised Premises to measure all
energy consumption by Tenant except heating, ventilating and air conditioning
("HVAC") which is supplied to Tenant as set forth in Article 6 above and in this
Schedule "E". Tenant shall pay to Landlord, as additional rent, the sum
calculated by multiplying the kilowatt hours by the rate of the utility
supplying the service, including any fuel charges, surcharges, taxes and any
other component part of the utility bill.
(B) The charge for common area energy and HVAC in the demised premises
during WORKING HOURS is $1.25 per annum per square foot of the Demises Premises
and is subject to escalation as hereinafter set forth. The basic charge
aforesaid is included in the Rent set forth in Article 3 of the Lease. Any
escalation shall be payable as additional rent.
2. Charges for OVERTIME SERVICE: Subject to escalation as hereinafter
provided, the Landlord's monthly charge for Tenant's OVERTIME SERVICE, shall be
derived as follows:
(A) OVERTIME SERVICE: OVERTIME HOURS are all hours other than WORKING
HOURS. For the entire Demised Premises, an amount equal to the product of the
OVERTIME HOURS of energy for heating, ventilating and air conditioning
("OVERTIME HVAC") in the month multiplied by $25.00.
3. Escalation of Charges for OVERTIME SERVICE. The rates referred to in
this Schedule "E" will be increased in each Lease Year, commencing with the
second Lease Year in proportion to the increase in the CPI as of the first day
of a Lease Year over that existing as of the first day of the preceding Lease
Year. The term "CPI" shall mean the "Consumer Price Index for Urban Wage Earners
and Clerical Works, New York-Northeastern New Jersey (1982-1984 = 100) published
by the Bureau of Labor Statistics of the United States Depaitinent of Labor." If
the base year of the CPI shall be changed, an appropriate adjustment shall be
made in computations using the CPI to adjust for such change. If the CPI is
discontinued, a comparable statistical record issued by the United States
Government or published in a financial periodical by a recognized organization
shall be selected by Landlord, subject to the approval of Tenant, which approval
Tenant covenants it will not unreasonably withhold or delay.
4. Landlord shall have full and unrestricted access to all air-conditioning
and heating equipment, and to all other utility installations servicing the
Building and the Demised Premises. Landlord reserves the right temporarily to
interrupt, curtail, stop or suspend air-conditioning and heating service, and
all other utilities, or other services, because of Landlord's inability to
obtain, or difficulty or delay in obtaining, labor or materials necessary
therefore, or in order to comply with governmental restrictions in connection
therewith, or for any other cause beyond Landlord's reasonable control. No
diminution or abatement of Rent, additional rent, or other compensation shall be
granted to Tenant, nor shall this Lease or any of the obligations of Tenant
hereunder be affected or reduced by reason of such interruptions, stoppages or
curtailments, the causes of which are hereinabove enumerated, nor shall the same
give rise to a claim in Tenant's favor that such failure constitutes actual or
constructive, total or partial, eviction from the Demised Premises, unless such
interruptions, stoppages or curtailments have been due to the arbitrary, willful
or negligent act, or failure to act, of Landlord or its agents.
5. Telephone and service shall be the responsibility of Tenant. Tenant
shall make all arrangements for telephone service with the company supplying
said service, including the deposit requirement for the furnishing of service.
Landlord shall not be responsible for any delays occasioned by failure of the
telephone company to furnish service.
6. At Landlord's option, it shall furnish and install all lighting tubes,
bulbs and ballasts used in the Premises and Tenant shall pay Landlord's
reasonable charges therefore, on demand, as additional rent.
ARTICLE III
Surrender of Surrender Space
----------------------------
3.1. In consideration of the foregoing, on or prior to the New Premises
Commencement Date, Tenant shall vacate the Surrender Space (inclusive of
Tenant's Property, except as otherwise provided in the Lease) and surrender the
same to Landlord in good order, condition and repair, except for (a) ordinary
wear and tear and obsolescence and (b) such damage and destruction as Landlord
is required to remove or restore under the Lease, free of all rights of
possession and occupancy of Tenant or others deriving their right or interest in
the Surrender Space from, through or under Tenant. Landlord shall be
conclusively deemed to have accepted the Surrender Space from Tenant, effective
on the New Premises Commencement Date (and not prior to it).
3.2. In further consideration of the foregoing, Tenant shall pay to
Landlord a fee of $500,000, as additional rent (the "Amendment Fee"), payable in
sixty (60) equal installments of $8,333.33 commencing July 1, 2004. Failure by
Tenant to make any installment payment of the Amendment Fee on the dates set
forth in the preceding sentence shall constitute an Event of Default under the
Lease.
3.3. In the event Tenant shall fail to surrender the Surrender Space by the
New Premises Commencement Date, Tenant shall be deemed a holdover tenant with
respect to the Surrender Space and shall pay Landlord a Rent for each day of its
holdover tenancy, equal to $2,000.00, and otherwise observe, fulfill and perform
all of its obligations under this Lease with respect to the Surrender Space,
including but not limited to those pertaining to Additional Rent. In addition,
in the event Tenant shall fail to surrender the Surrender Space within thirty
(30) days of the New Premises Commencement Date, then Landlord shall have the
right, in its sole and absolute discretion, to terminate this Amendment,
whereupon this Amendment shall become void ab initio and the Lease shall
continue in full force and effect unmodified by this Amendment in all respects.
The holding over by Tenant of all or any part of the Surrender Space on and
after the New Premises Commencement Date shall not extend the New Premises
Commencement Date and shall be a default under the Lease.
The holdover, with respect to all or any part of the Surrender Space by a
person deriving an interest in the Surrender Space from or through Tenant,
including but not limited to an assignee or subtenant, shall be deemed a
holdover of the Surrender Space by Tenant.
Tenant expressly waives, for itself and for any person claiming through or
under Tenant, any rights which Tenant or such person may have to a stay or any
holdover or eviction action or proceeding, or other action or proceeding which
Landlord may institute to enforce the provisions of this Section 3.3.
Notwithstanding anything in this Section 3.3 to the contrary, the
acceptance of any Rent paid by Tenant which is attributable to the Surrender
Space shall not preclude Landlord from commencing and prosecuting a holdover or
eviction action or proceeding or any action or proceeding in the nature thereof
against Tenant with respect to the Surrender Space. The preceding sentence shall
be deemed to be an "agreement expressly providing otherwise" within the meaning
of Section 232-c of the Real Property Law of the State of New York and any
successor law of like import.
ARTICLE IV
New Premises Commencement Date
------------------------------
4.1 The "New Premises Commencement Date" shall be deemed to have
occurred on the later of (a) the date that is thirty (30) days after the date
hereof and (b) the date on which the New Premises is or shall be deemed to be
ready for occupancy.
4.1.1. All installations, facilities, materials and work to construct and
finish the New Premises for its initial occupancy by Tenant shall be undertaken
by Landlord and are hereinafter referred to as the "Landlord's Work". Except for
Landlord's Work, Tenant shall accept the New Premises "as is" on the date hereof
and Landlord shall not be required to perform any work, render any services or
furnish or install any materials, fixtures or equipment to the Building, the
Surrender Space or the New Premises in order that the New Premises be ready for
occupancy. Tenant hereby grants Landlord the right to enter the Premises,
including, without limitation, the Original Premises, from and after the date
hereof for the purpose of performing Landlord's Work. Tenant agrees to cooperate
fully with Landlord in connection with the performance of Landlord's Work and
Tenant acknowledges that there may be material interruption and interference to
Tenant in the Original Premises during the performance of Landlord's Work.
Nothwithstanding the foregoing, Landlord shall use reasonable efforts to
minimize any such interruption and interference.
4.1.2. All installations, facilities, materials and work other than
Landlord's Work which may be undertaken by or for the account of Tenant to
equip, finish and decorate the New Premises for its initial occupancy by Tenant
are hereinafter called "Tenant's Work".
4.1.3. The New Premises shall be deemed ready for occupancy when Landlord's
Work shall have been completed. Landlord's Work shall be deemed to be completed
despite the fact that (y) minor or insubstantial details of construction,
decoration or mechanical adjustment remain to be performed or (z) portions
thereof, under good construction scheduling practices, should not be completed
until other uncompleted Tenant's Work is to be completed. Landlord will give
Tenant notice at least five (5) days in advance of the date when Landlord
expects the New Premises to be ready for occupancy by Tenant, but Landlord shall
not incur any liability whatsoever to Tenant in the event the New Premises is
not ready as set forth in such notice and no further notice shall be required to
be given by Landlord. Notwithstanding the occurrence of the New Premises
Commencement Date by reason of the application of the foregoing criteria,
Landlord shall complete any incomplete Landlord's Work with diligence
thereafter.
4.1.4. The date, for all purposes of this Agreement, as of which the New
Premises Commencement Date (if not then ready for occupancy) shall conclusively
be deemed to be ready for occupancy shall be the date on which the New Premises
reasonably would have been ready for occupancy except for a delay resulting from
(a) Tenant's failure to comply with the provisions of this Agreement or the
Lease, or (b) an act or omission of Tenant (or its architects, engineers,
contractors or agents) which has the effect of delaying the completion of
Landlord's Work, including, without limitation, requests by Tenant for changes
in Landlord's Work Letter (any of the foregoing being a "Tenant's Delay"), of
which, notice thereof is given to Tenant stating that a Tenant's Delay has
occurred.
4.1.5. If and when Tenant shall take actual possession of the New Premises,
it shall be conclusively presumed that the New Premises were ready for occupancy
as of the date of such taking of possession. Landlord shall fix the New Premises
Commencement Date and shall notify Tenant of such date so fixed.
4.1.6. [Intentionally Omitted]
4.1.7. Landlord's request, shall execute a written instrument confirming
such date as the New Premises Commencement Date. Within thirty (30) days after
Landlord shall have fixed the New Premises Commencement Date, as aforesaid, but
not thereafter, Tenant shall have the right to deliver a certificate to Landlord
specifying in reasonable detail the reasons why Tenant asserts that the New
Premises Commencement Date has not occurred. In the event that Tenant delivers
said certificate to Landlord within the specified thirty (30) day period, either
party shall have a period of thirty (30) days after such delivery to submit the
matter to arbitration.
4.1.7. Landlord itself or through others engaged by Landlord shall
diligently prosecute the Landlord's Work to completion, in a good and
workmanlike manner, and with reasonable diligence in accordance with the work
letter (the "Landlord's Work Letter") attached hereto as Exhibit "B" and made a
part hereof, a copy of which Tenant acknowledges it has received and reviewed
with an architect and/or professional engineer engaged by it for such purpose.
Landlord shall have the right to modify Landlord's Work Letter to accommodate
changes attributable to "general conditions" such as, but not limited to, field
conditions. Tenant will take all action and will not omit the taking of any
action necessary or advisable in order for Landlord to fulfill its obligations
pursuant to the preceding sentence.
(a) Landlord, at Landlord's expense, shall obtain the approvals pertaining
to the commencement of Landlord's Work and the occupancy of the New Premises by
Tenant. Any delay in obtaining the foregoing approvals attributable to acts or
omissions of Tenant or its architects, engineers, agents or contractors will
result in a Tenant's Delay.
(b) Whether a Tenant's Delay has occurred and the extent of any claimed
Tenant's Delay shall be determined in the following manner:
Landlord shall notify Tenant of its claim that a Tenant's Delay has
occurred and the estimated length of any claimed Tenant's Delay within a
reasonable time after the information necessary to ascertain the existence of or
to estimate the length of such delay is available (which notice shall include
the reasons for Landlord's estimate) and the existence of and the length of such
Tenant's
Delay shall be deemed to be as so stated and/or estimated unless, within ten
(10) Business Days after the giving of such notice, Tenant shall notify the
Landlord of any disagreement therewith (including Tenant's reasons therefor). If
a dispute shall be unresolved with respect to whether and/or to what extent
there was a Tenant's Delay such dispute shall be resolved by arbitration.
Pending resolution of said dispute, the parties shall proceed in accordance with
Landlord's estimate and the provision of this Lease. Either party may initiate
such arbitration by a notice to the other demanding arbitration and setting
forth the nature of the disputes.
(c) Tenant agrees that if substantial completion of the Landlord's Work or
the occurrence of the New Premises Commencement Date is delayed by any Tenant's
Delay, Tenant shall, in addition to other rights and remedies of Landlord, pay
the costs and damages Landlord may sustain by reason of such Tenant's Delay,
which amount shall not exceed the amount of Rent that Landlord may lose by
reason of such delay as well as any other actual loss that Landlord may suffer
by reason thereof.
(d) Landlord shall be deemed to have adhered to Landlord's Work Letter to
the extent that Landlord shall make changes to Landlord's Work Letter which
shall affect the construction of the New Premises if such changes are required
by a requirement of law or field conditions or do not to a noticeable extent
adversely affect the New Premises or Tenant's use or occupancy thereof; and all
such changes shall be accepted by Tenant.
(e) Notwithstanding anything in this Agreement to the contrary, no change
shall be made in Landlord's Work Letter without Landlord's prior written consent
which consent will not be unreasonably withheld. Landlord's consent to a change
in Landlord's Work Letter shall not be deemed a waiver of Landlord's right to
claim a Tenant's Delay arising out of such change.
(f) Landlord recognizes the confidence placed in it by Tenant pursuant to
this Section 4.1.7 and agrees to furnish its skill and judgment in furthering
the provision of this Section 4.1.7 and to perform or cause the performance of
Landlord's Work in what Landlord considers to be the best and soundest way and
in an expeditious and economical manner consistent with the respective interests
of Landlord and Tenant, as reflected in this Agreement.
(g) Landlord will have no obligation to commit more personnel, facilities
or material to complete Landlord's Work then is commonly committed to like work
performed in the ordinary course or to perform Landlord's Work in other than
Working Hours. The provisions of the preceding sentence will apply, amongst
others, to situations relating to Tenant's Delay.
(h) Tenant shall have reasonable access to the New Premises to inspect
Landlord's Work subject to the limitations and obligations imposed on Tenant and
its employees, contractors, agents and representatives in respect thereof
elsewhere in this Agreement or the Lease. Landlord or its representatives will
meet with Tenant and its representatives at reasonable times, intervals and
places to discuss all aspects of Landlord's Work which Tenant reasonably
requires.
4.1.8. Landlord's Work shall be performed by Landlord at Landlord's expense
and without contribution by Tenant.
4.1.9. Tenant (which term as used in this Section 4.1 shall include agents,
contractors, employees and invitees of Tenant) shall be entitled to access to
the New Premises prior to the New Premises Commencement Date for the purpose of
performing Tenant's Work.
Tenant's Work shall be performed by Tenant in accordance with the
provisions of Article 14 of the Lease as though Tenant's Work were Improvements,
provided, however, that in addition to the provisions of Article 14 of the
Lease, Tenant's Work shall be performed in accordance with the following:
(a) Performance of Landlord's Work shall have reached a point where
performance of Tenant's Work, in Landlord's reasonable judgment, will not delay
or hamper Landlord in - the completion of Landlord's Work.
(b) Neither Tenant's Work nor performance thereof shall conflict with the
prosecution of Landlord's Work or violate requirements of law.
(c) Landlord reserves the right to deny Tenant access to the New Premises
and/or to request Tenant to withdraw therefrom and cease all work being
performed by it or on its behalf by any person, firm or corporation other than
Landlord, if Landlord shall, in its reasonable judgment,
determine that such entry or the commencement and/or the continuance of Tenant's
Work shall interfere with, hamper or prevent Landlord from proceeding with the
completion of the New Premises at the earliest possible date.
(d) Tenant agrees that should the Tenant enter upon the New Premises for
the purpose of performing Tenant's Work (as well as anytime during the Term,
Improvements), the labor employed by Tenant or anyone performing such work for
or on behalf of Tenant shall always be harmonious and compatible with the labor
employed by Landlord or any contractors or subcontractors of Landlord. Should
such labor cause a "labor problem" with Landlord's labor, Landlord may require
Tenant to withdraw Tenant's labor from such New Premises until such condition no
longer exists.
(e) In the event Tenant shall enter upon the New Premises or any other part
of the building, as may be above permitted by Landlord, Tenant agrees to
indemnify and save Landlord free and harmless, from and against any and all
claims, loss, liability and damage arising from or claimed to arise from any act
or neglect of Tenant, or from any failure to act.
ARTICLE V
Broker
------
5.1 Tenant covenants, represents and warrants that Tenant has had no
dealings or negotiations with any broker, finder or agent with respect to this
Amendment or the negotiation thereof. Based thereon, Landlord agrees to hold
harmless and indemnify Tenant from and against any and all cost, expense
(including reasonable attorneys' fees) or liability for any compensation,
commissions or charges claimed by any broker, finder or agent with respect to
this Amendment or the negotiation thereof except to the extent that the same
arises out of Tenant's acts or omissions. Tenant agrees to hold harmless and
indemnify Landlord from and against any and all cost, expense (including
reasonable attorneys' fees) or liability for any compensation, commissions or
charges claimed by any broker, finder or agent with respect to this Amendment or
the negotiation -thereof, based in any part upon Tenant's breach of the
provisions contained in the first sentence of this paragraph.
ARTICLE VI
Ratification
------------
6.1 Provided that Tenant is not in default under any of its obligations
under the Lease, it shall be entitled to a Rent abatement of $15,000 applied
$5,000 per month for April, May and June, 2004.
6.2 Tenant represents and warrants that the Lease is presently in full
force and effect, that no event of default has occurred on the part of Landlord,
and that Tenant has no defense or right of offset in connection with Landlord's
performance under the Lease to this date.
6.3 The parties hereby ratify and confirm all of the terms, covenants and
conditions of the Lease, except to the extent that those terms, covenants and
conditions are amended, modified or varied by this Agreement. If there is a
conflict between the provisions of the Lease, and the provisions of this
Agreement, the provisions of this Agreement shall control.
6.4 This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and/or assigns.
IN WITNESS WHEREOF, the parties have executed this Third Lease Modification
Agreement as of the day and year first above written.
500 BI-COUNTY ASSOCIATES, L.P.
By: 500 BiCounty, Ltd., its General Parnter
By: /s/Jonathan E. Cohen
--------------------
Name: Jonathan E. Cohen
Title: Vice President
Colorado Prime Corporation
By: /s/Kenneth Saccente
Name: Kenneth Saccente
Title: V.P.
State of New York
County of Nassau
On the 12th day of February in the year 2004 before me, the undersigned,
personally appeared Jonathan E. Cohen personally known to me or proved to me on
the basis of satisfactory evidence to be the individual(s) whose name(s) is
(are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
/s/Sandra Meza
State of New York
County of Nassau
On the 12th day of February in the year 2004 before me, the undersigned,
personally appeared Kenneth Saccente personally known to me or proved to me on
the basis of satisfactory evidence to be the individual(s) whose name(s) is
(are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
/s/Sandra Meza
Exhibit "C"
Legal Holidays
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2. President's Day
3. Memorial Day
4. Independence Day
5. Labor Day
6. Thanksgiving Day
7. Christmas Day