LEASE AGREEMENT
THIS LEASE AGREEMENT, made the 1st day of August, 1999, by and between X.
XXXXX & SONS, INC. ("Lessor") and PINNACLE FOODS, INC. ("Lessee").
1. DEMISED PREMISES.
Lessor does hereby demise and let unto Lessee the premises and improvements
located at 934-42, 944-46, and 000-00 X. Xxxxx Xxxxxx, Xxxxxxxxxxxx, XX,
consisting of a refrigerated food processing plant, refrigerated warehouse and a
paved and fenced parking lot ("Demised Premises").
2. TERM.
This Lease shall be for the term of approximately thirty seven (37) months
beginning July 19, 1999 ("Lease Commencement Date") and shall end (unless sooner
terminated as provided herein) on August 31, 2002, subject to renewal pursuant
to Paragraph 6 herein.
3. USE.
Lessee shall use the Demised Premises for food processing, warehouse,
offices, distribution facility and for no other purpose.
4. PLACE OF PAYMENT.
All rent shall be payable without prior notice or demand to the Lessor, x/x
X. Xxxxxx Xxxxxx, Xxxxxx Xx., Xxxxx 000, 000 X. 0xx Xxxxxx, Xxxxxxxxxx, XX 00000
or at such other place as Lessor may from time to time designate by notice in
writing.
5. AFFIRMATIVE COVENANTS OF TENANT & LESSOR.
(a) Lessee agrees:
117
(i) To comply at its own cost and expense and in every respect with
any and all laws, orders, rules and requirements of any constituted public
authorities, and all federal, county, state and municipal governments, now in
force or that may be enacted hereafter, whether foreseen or unforeseen,
applicable to Lessee, the Demised Premises and its use of the Demised Premises,
and to save Lessor harmless from penalties, fines, costs, expenses or damages
resulting from Lessee's failure to do so;
(ii) To give Lessor prompt written notice of any accident, fire or
damage occurring on or to the Demised Premises and to use every reasonable
precaution against fire;
(iii) To keep all trash and refuse in containers and to place the
same outside of the Demised Premises, prepared for collection in accordance with
municipal regulations;
(iv) To keep the Demised Premises sufficiently heated to prevent
freezing of water pipes and fixtures;
(v) To keep the outside areas of the Demised Premises clean and free
from snow and ice, and not to bum any rubbish in any areas of the Demised
Premises;
(vi) To keep the Demised Premises clean, orderly, sanitary and free
from odors which violate any health, safety or nuisance standard promulgated by
any governmental authority having jurisdiction, and from insects, vermin and
other pests;
(vii) Not to operate any machinery, or conduct its business in a way
that is harmful to the Demised Premises;
118
(viii) Not store or keep at the Demised Premises, other than in the
ordinary course of business as permitted by applicable law, any hazardous
substances as defined in any federal, state or local statute, ordinance or
regulation.
(b) Lessor agrees:
(i) It has not received any notice of violation from any
governmental authority having jurisdiction over the Demised Premises.
6. MINIMUM RENT.
(a) During the term of this Lease, Lessee shall pay to Lessor
commencing on the Lease Commencement Date, as annual minimum rent, without any
right of set-off, the following rentals:
------------------------------------ -------------- ------------------
TERM ANNUAL RENT MONTHLY RENT
------------------------------------ -------------- ------------------
Lease Commencement Date to 8-1-1999 $181.00 per day
------------------------------------ -------------- ------------------
9-1-1999 to 8-31-2000 $66,000.00 $5,500.00
------------------------------------ -------------- ------------------
9-1-2000 to 3-31-2001 $67,320.00 $5,610.00
------------------------------------ -------------- ------------------
9-1-2001 to 8-31-2002 $68,666.40 $5,722.20
------------------------------------ -------------- ------------------
(b) Installments of Minimum Rent shall be due and payable on the first
day of each month during the Term hereof, except that the first monthly
installment of minimum rent shall be paid on the execution hereof.
(c) Provided Lessee is not in default of any of the provisions of the
Lease, Lessee shall have the option to renew this Lease for one renewal term of
three (3) years commencing on September 1, 2002 by giving written notice of the
exercise thereof to Lessor at least ninety (90) days prior to the expiration
thereof. All the terms and conditions applicable to the original term hereof
shall be applicable to such renewal (except for the
119
renewal contained in this section). The minimum annual rent during the option
term shall be as follows:
------------------------------------ -------------- ------------------
TERM ANNUAL RENT MONTHLY RENT
------------------------------------ -------------- ------------------
9-1-2002 to 8-31-2003 $70,039.70 $5,836.65
------------------------------------ -------------- ------------------
9-1-2003 to 8-31-2004 $71,440.50 $5,953.40
------------------------------------ -------------- ------------------
9-1-2004 to 8-31-2005 $72,869.35 $6,072.45
------------------------------------ -------------- ------------------
7. ALTERATIONS BY LESSEE.
(a) Lessor agrees that Lessee may make, at Lessee's own expense, any
minor interior, nonstructural alterations, repairs, replacements or additions to
the building on the Demised Premises provided that all work done by Lessee shall
comply with applicable electrical, plumbing, safety, building and other codes
including, but not limited to, the applicable provisions of the Americans With
Disabilities Act and warrants to Lessor that all work shall be completed in a
good and workmanlike manner in accordance with the rules and regulations of the
local board of fire insurance underwriters.
(b) Lessee agrees not to commence any construction work upon any
portions of the Demised Premises until Lessor has received a copy of Lessee's
Plans and Specifications. Any changes or additions to the exterior of the
building or to any other outside area of the Demised Premises shall require the
prior written approval of Lessor, which consent shall not be unreasonably
withheld, conditioned or delayed.
(c) Lessee shall, at Lessee's own expense, promptly remove from the
Demised Premises all trash and debris which may accumulate in connection with
Lessee's work on the Demised Premises.
120
(d) Prior to entering upon the Demised Premises, Lessee shall furnish
to Lessor a duplicate original insurance policy, an insurance binder
(countersigned by insurer), or Evidence of Insurance (in form XXXXX 27) for each
of the insurance policies Lessee is required to carry in compliance with its
obligations under this Lease and upon renewals not less than ten (10) days prior
to the expiration of any such policy.
8. POSSESSION.
"Delivery of Possession" within the meaning of this Lease was accomplished
on July 19, 1999. Except as expressly set forth elsewhere herein (i) the Demised
Premises are being delivered in an "as is" condition and (ii) all of the
obligations and covenants of Lessee herein shall commence as of the date of
delivery of possession, except as expressly stated herein.
9. TAXES AND INSURANCE.
Commencing on the Lease Commencement Date, Lessee agrees to pay to Lessor,
each month during the term of this Lease or any renewal thereof, and in addition
to the minimum rental specified herein, as additional rent, the following:
(a) One-twelfth (1/12) of the real estate taxes assessed against the
Demised Premises, currently Eight Hundred Eighty Two Dollars ($882.00) per
month.
(b) One-twelfth (1/12) of the annual Use and Occupancy Tax assessed the
Demised Premises.
(c) All premiums paid by Lessor for the insurance hereinafter
specified. Payment shall be made to Lessor within ten (10) days after
presentation of xxxxxxxx by Lessor. Lessor may elect to collect such insurance
payments monthly. To the extent Lessor's liability insurance policies contain
deductibles, the amount of such deductibles for losses experienced shall be
billed as insurance costs hereunder.
121
(i) During the term of this Lease, Lessor may carry and maintain the
following types of insurance in the amounts specified:
(A) Fire and extended coverage insurance on the Demised Premises
in an amount sufficient to prevent Lessor from becoming a co-insurer;
(B) Rent insurance against loss of rent due to fire, including
extended coverage endorsement in an amount equal to the annual rent and real
estate taxes for the Demised Premises;
(C) Comprehensive liability and property damage insurance for the
Demised Premises and any other insurance an in such amounts that Lessor shall
deem reasonably appropriate.
10. TRASH COLLECTION.
Lessee shall arrange and pay for the removal of all trash generated by
Lessee at the Demised Premises.
11. SECURITY DEPOSIT.
Lessee will deposit with Lessor the sum of Eleven Thousand Dollars
($11,000.00) at the time of signing of this Lease Agreement as security for the
faithful performance and observance by Lessee of the terms, provisions, and
conditions of this Lease. It is agreed that in the event Lessee defaults in
respect to any of the terms, provisions, and conditions of this Lease, including
but not limited to, the payment of rent and additional rent, Lessor may use,
apply, or retain the whole or any part of the security so deposited to the
extent required for the payment of any rent and additional rent or any other sum
as to which Lessee may expend or may be required to expend by reason of Lessee's
default in respect of any of the terms, covenants, and conditions of this Lease,
including but not limited to, any
122
damages or deficiency in the reletting of the Demised Premises after an event of
default, whether such damages or deficiency accrued before or after summary
proceedings or other re-entry by Lessor. Upon notice from Lessor that sums have
been so applied, Lessee shall within ten (10) days replenish the security
deposit to its original amount.
In the event that Lessee shall fully and faithfully comply with all of the
terms provisions, covenants, and conditions of this Lease, the security shall be
returned to Lessee within thirty (30) days after the date fixed as the end of
this Lease and after delivery of entire possession of the Demised Premises to
Lessor, without interest.
In the event of a sale of the land and building, Lessor shall have the
right to transfer the security to the buyer thereof and Lessor shall thereupon
be released by Lessee from all liability for the return of such security; and
Lessee agrees to look to the new Lessor solely for the return of said security.
It is agreed that the provisions hereof shall apply to every transfer of
assignment made of the security to a new Lessor.
Lessee further covenants that it will not assign or encumber or attempt to
assign or encumber the monies deposited herein as security and that neither
Lessor nor their successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment, or attempted encumbrance.
It is understood by Lessee that no part of the security is to be considered
as any rental due under the terms of the Lease.
12. TERMINATION OF LEASE.
Subject to Lessee's options to renew, this Lease and the tenancy hereby
created shall cease and terminate at the end of the original term hereof, or of
any extension thereof, without the necessity of any notice from either party to
the other to terminate the
123
same, and Lessee hereby waives notice to vacate the Demised Premises and agrees
that Lessor shall be entitled to the benefit of all provisions of law respecting
the summary recovery of possession of the Demised Premises from a Lessee holding
over to the same extent as if any required statutory notice had been given.
Lessee shall peaceably surrender possession of the Demised Premises at the
expiration or sooner termination of this lease. In the event Lessee remains in
possession of the Demised Premises after the expiration of this Lease and
without the execution of a new lease or Lessor's written consent, it. shall be
deemed to be occupying of the Demised Premises as Lessee from month to month,
subject to all of the conditions, provisions and obligations of this Lease as
such may be applicable to month-to-month tenancy, cancelable by either party
upon thirty (30) days written notice to the other.
13. UTILITIES.
Lessee agrees that it will not install any equipment which will exceed or
overload the capacity of any utility facilities and that if any equipment
installed by Lessee shall require additional utility facilities, the same shall
be installed at Lessee's expense in accordance with plans and specifications to
be approved in writing by Lessor. Commencing upon the delivery of possession,
Lessee shall be solely responsible for and shall promptly pay all charges for
use or consumption for heat, sewer, water, electricity or any other utility
services. In no event shall Lessor be liable to Lessee for any damages sustained
by Lessee because of an interruption or failure in supply of any utility to the
Demised Premises, unless caused by the intentional or negligent act or omission
of Lessor.
124
14. MAINTENANCE AND REPAIRS.
(a) Lessee acknowledges and agrees that it has had the opportunity and
has inspected the entire Demised Premises including, but not limited to, the
roof, walls and all of the systems referred to in Paragraph 14(b) hereto.
(b) (i) Lessor agrees to deliver the Demise Premises to Lessee with all
of the following systems in working order and repair:
(A) Two (2) overhead electric doors;
(B) Heating in offices and warehouses;
(C) Plumbing;
(D) Electrical;
(E) Air conditioning;
(F) Lighting;
(G) Two (2) freezers; and
(H) One cooler
(ii) Within ten (10) days following the delivery of possession of
the Demised Premises to Lessee, Lessee shall, by written notice, advise Lessor
if any of the systems identified in this subparagraph require maintenance or
repairs. Should said systems require maintenance or repairs, Lessor shall
correct said repairs at Lessor's expense, within sixty (60) days from the date
of Lessee's notice. Any warranties or guarantees, if any, provided by Lessor's
HVAC contractor or manufacturer shall be provided to Lessee.
(iii) Notwithstanding the foregoing, in the event the cost of the
maintenance or repairs required by this subparagraph exceeds Thirty Thousand
Dollars ($30,000.00), Lessor may, by written notice to Lessee, terminate this
Lease.
125
(iv) It is acknowledged and agreed by Lessee that once said systems
are in the condition required by this paragraph, whether completed by Lessee or
Lessor, Lessor's abilities shall be limited to those areas described in
Paragraph 14(c) below.
(c) Lessor will keep the roof and structural portions of the exterior
walls of the Demised Premises in proper repair, excepting repairs required by
any work or alterations made thereto by Lessee, and excepting any glass or
doors, provided that in each case Lessee shall have given Lessor prior written
notice of the necessity of such repairs, and provided further, that if any such
repair is required because of Lessee's alterations, improvements, negligence or
misuse, or the alterations, improvements, negligence or misuse of any of
lessee's agents, employees or customers, or other person using the Demised
Premises with Lessee's consent, expressed or implied, or Lessee's failure to
perform any of its obligations under this Section, such repair shall be the
obligation of Lessee and not Lessor, and Lessor may at its option make such
repair and add the cost thereof to the first installment of minimum rent which
shall thereafter become due.
(d) Except as set forth in Paragraph 14(c), Lessee covenants and agrees
to keep and maintain in good order, condition and repair the Demised Premises
and every interior and exterior part thereof, including fixtures and equipment
therein, except as herein before provided, including, but without limitation,
the exterior and interior portions of all door checks, security gates, windows,
glass, plumbing and sewage facilities serving the Demised Premises (including
freeflow up to the main sewer line) fixtures, heating and air-conditioning
equipment serving the Demised Premises (including exterior mechanical equipment
and electrical equipment) and interior walls, floors and ceilings, including
compliance with applicable building codes relative to fire extinguishers. Lessee
shall
126
accomplish a repairs, alterations, replacements and modifications at its own
expense and using materials and labor of kind and quality equal to or greater
than the original work.
(e) Lessee will surrender the Demised Premises at the expiration or
early termination of this lease in as good condition as when received, excepting
only deterioration caused by ordinary wear and tear.
(f) If any repairs required to be made by Lessee hereunder are not made
within ten (10) days after written notice delivered to Lessee by Lessor (except
that for emergency repairs,, Lessor shall be required only to give the best
notice possible under the circumstances), Lessor may at their option make such
repairs, without liability to Lessee for any loss or damage which may result to
Lessee's stock or business by reason of such repair, and Lessee shall pay to
Lessor, upon demand, as additional rental hereunder, the cost of such repairs,
plus interest at the Default Rate (defined in Paragraph 22 hereof) from the date
of the payment by Lessor until repaid by Lessee. Except as herein provided,
Lessor shall have no obligation to repair, maintain, alter, replace or modify
the Demised Premises or any part thereof, or any plumbing, heating, electric,
air-conditioning or any other mechanical installation therein under no
circumstances shall Lessor be obligated to repair, replace or maintain any plate
glass or door or window glass.
(g) Lessee covenants and agrees that it shall not, without the prior
written consent of Lessor, make any alterations, improvements or additions to
the exterior or structural portions of the Demised Premises. All alterations,
improvements or additions installed by Lessee (other than Lessee's trade
fixtures) shall remain upon the Demised Premises at the expiration or sooner
termination of this lease, and shall become the property of Lessor unless Lessor
shall have given written notice to Lessee to remove the same, in
127
which event Lessee shall remove such alterations, improvement and additions and
restore the Demised Premises to the same good order and condition in which they
are at the time of execution of this lease. All equipment and systems located on
the Demised Premises on the Lease Commencement Date and all replacements and
additions thereto shall at all times remain the property of Lessor.
15. LIABILITY AND HAZARD INSURANCE.
(a) Lessee agrees at all times during the terms hereof, at Lessee's own
expense, to procure and pay for comprehensive public liability insurance against
loss or liability in connection with personal injury, property damage, or death
from any accident in or about the Demised Premises and the sidewalk fronting
thereon, in the minimum amounts of Five Hundred Thousand Dollars ($500,000.00)
single limit and One Hundred Thousand Dollars ($100,000.00) in the event of
damage to property. Such insurance shall name Lessor as additional insured.
Lessee shall deliver to Lessor evidence of said 'insurance coverage [as
described in Paragraph 7(e)] issued by a company or companies of recognized
responsibility and credit, licensed in the state in which the Building is
located, and to furnish to Lessor prior to the expiration of such policy
evidence of renewal.
(b) Lessee hereby indemnifies Lessor from the time Lessee goes into
possession of the Demised Premises and continuing throughout the term hereof
from and against any and all claims, actions, losses and judgments arising out
of (i) injury to persons or damage to property sustained on or by reason of the
Demised Premises, and any activities therein and (ii) the activities of Lessee
and its agents, servants and employees within the Building, and agrees to defend
at its sole cost and expense any claims made against Lessor in connection
therewith.
128
16. LEGAL AND INSURANCE REQUIREMENTS.
Lessee agrees not to use or keep or allow the Demised Premises or any
portion thereof to be used or occupied for any unlawful purpose or in violation
of any certificate of occupancy or certificate of compliance covering or
affecting the use of the Demised Premises or any portion thereof, and will not
suffer any act to be done or any condition to exist on the Demised Premises or
any portion thereof, or any article to be brought thereon, which may be
dangerous, unless safeguarded as required by law, or which may, in law,
constitute a nuisance, public or private or which may make void or voidable any
insurance issued by Lessor's insurance company then in force on the Demised
Premises or the Building.
17. INSURANCE COMPANY REQUIREMENTS.
If the public authorities or the Board of Fire Underwriters (sometimes
known as the Middle Department Rating Bureau), or any of Lessor's insurance
companies, require or recommend for the purpose of maintaining -or lowering
insurance premiums or rate, the repair, replacement or alteration of any wiring
or other electrical installations or other equipment placed or installed by
Lessee upon or about the Demised Premises, Lessee agrees, upon written notice
from Lessor, to cause the said work to be done in the manner recommended or
required, and if Lessee fails to do so, Lessor shall have the right to do so and
the cost thereof shall be paid by Lessee on demand of Lessor as additional
rental hereunder.
18. WAIVER OF SUBROGATION.
(a) Lessor hereby releases Lessee, to the extent of their insurance
coverage from any and all liability, for any loss or damage caused by fire or
any of the extended coverage casualties, provided, however, that this release
shall be in force and effect
129
only to the extent that loss or damage occurs during such time as Lessor's
policies of fire and extended coverage insurance permit such release to be given
without affecting said policies or the right of Lessor to recover thereunder.
(b) Lessee hereby releases Lessor, to the extent of its insurance
coverage from any and all liability, for any loss or damage caused by fire or
any of the extended coverage casualties, provided, however, that this release
shall be in force and effect only to the extent that loss or damage occurs
during such time as Lessee's policies of fire and extended coverage insurance
permit such releases to be given without affecting said policies or the right of
Lessee to recover thereunder.
19. ASSIGNMENT OR SUBLET.
(a) Lessee covenants and agrees that it shall not, without consent in
writing of Lessor first had and obtained, assign, mortgage or pledge this lease
or under-let or sublease the Demised Premises, or any part thereof or permit any
other person, firm or corporation to occupy the Demised Premises, or any part
thereof; nor shall any assignee or sublessee assign, mortgage or pledge this
Lease or such sublease, without an additional written consent by Lessor, and
without such consent no such assignment, mortgage or pledge shall be valid.
(b) In the event Lessee is a corporation, any dissolution, merger,
consolidation or other reorganization of such corporation or any pledge of, or
any issue, sale or other transfer of a controlling percentage of the corporate
stock of Lessee (whether in a single transaction or cumulatively), or any
transfer or change in control of such corporation, shall constitute an
assignment of this Lease for all purposes of this section. The term "controlling
percentage", as used herein, shall mean the ownership of stock possessing, or
130
having the right of exercise of at least fifty-one percent (51%) of the total
combined voting power of all the classes of issued and outstanding stock of such
corporation entitled to vote for the election of directors, whether such
ownership be direct ownership, or indirect ownership through ownership of stock
of another corporation. This subsection shall not apply whenever Lessee is a
corporation the outstanding voting stock of which is listed on a recognized
security exchange. In addition the prohibition on assignment shall not apply to
any affiliate of Lessee. "Affiliate of Lessee" shall mean a wholly owned
subsidiary or parent of Lessee. However, any such assignment shall not relieve
Lessee of its obligations hereunder and prior to any such assignment being
effective, any such assignee must execute and deliver to Lessor an Assignment
and Assumption Agreement in a form prepared by Lessor.
(c) If Lessee is a partnership and if any time during the term hereof,
or any extension thereof, the person or persons who at the time of execution of
this Lease own or control the general partner's interest cease to own or control
the general partners' interest (except as a result of transfers by bequest or
inheritance), such cessation of ownership shall constitute an assignment of this
Lease for all purposes of this Lease.
20. SIGNS.
(a) Except for the existing signage, Lessee agrees not to place or
permit on the outside of the building of the Demised Premises or on either side
of any exterior window or door or anywhere outside of the Demised Premises any
sign, placard, advertisement, illumination or projection and not to paint the
outside or inside of the glass portion of any exterior door, or inside or
outside of any exterior window thereof, without obtaining the prior written
approval of Lessor which consent shall not be unreasonably withheld or
131
conditioned, and Lessee further agrees to obtain and pay for all permits and
licenses which may be required for the erection and maintenance of any sign and
to obtain Underwriter's approval for all electric signs.
(b) Lessee agrees to maintain all signs in good condition, keep all
electric signs properly lighted, and to make all repairs required because of the
installation and maintenance of signs including, but not limited to, any roof
repairs that may be required because of the installation and maintenance of
signs.
Lessee further agrees to save harmless and indemnify Lessor from and
against any and all losses, damages, claims, suits or actions for any damage or
injury to person or property caused by the erection and maintenance of such
signs or parts thereof, and insurance coverage for such signs shall be included
in the comprehensive public liability policy which Lessee is required to
furnish.
21. TRADE FIXTURES AND PERSONAL PROPERTY.
All trade fixtures and apparatus installed by Lessee in the Demised
Premises shall remain the property of Lessee and shall be removable at the
expiration or sooner termination of the ten-n of this Lease or any renewal or
extension thereof, provided Lessee shall not at such time be in default under
any covenant or agreement contained herein, and provided, further, that in the
event of such removal Lessee shall promptly restore the Demised Premises to the
same good order and condition as obtained prior to the installation of such
trade fixtures. Any trade fixtures or personal property which shall remain in
the Demised Premises or any part thereof after the expiration or earlier
termination of this Lease shall be deemed to have been abandoned and either may
be retained by Lessor as Lessor's property or may be disposed of in such manner
as Lessor may see fit. If such personal property or any part thereof shall be
132
sold by Lessor, Lessor may receive and retain the proceeds of such sale(s) as
Lessor's property. Notwithstanding the foregoing, upon such expiration or sooner
termination of the term of this Lease or any renewal or extension thereof,
Lessor shall have the right to require Lessee to remove such trade fixtures or
personal property by written notice to Lessee within thirty (30) days after
expiration or earlier termination of the Lease and upon Lessee's failure to
effect such removal, Lessor shall have the right to do so, charging to Lessee,
as additional rent hereunder, the cost of such removal, required repairs to the
Demised Premises necessitated thereby and storage charges incurred by Lessor
with respect to said property. The covenants contained in this Section shall
survive the expiration or earlier termination of this Lease.
22. LESSOR'S RIGHTS TO PERFORM LESSEE'S COVENANTS.
If Lessee shall fail to perform any of the acts agreed to be performed by
Lessee within the grace periods provided herein, then Lessor may perform the
said acts or cause the same to be performed and the amount so 'aid or expended
by Lessor with interest thereon at the rate equal to the prime rate of First
Union Bank, plus one percent (1%), as such may change from time to time
("Default Rate") (or the highest rate, up to said rate, permitted by law) shall
be added and to be payable forthwith to Lessor as additional rent hereunder.
23. LESSEE'S DEFAULTS - LESSOR'S REMEDIES.
(a) Subject to the provisions of Paragraph 24, hereof, in the event
Lessee shall at any time be in default in the payment of minimum rent or
additional rent herein reserved, or of any other sum required to be paid by
Lessee under this Lease, or in the performance of or compliance with any of the
terms, covenants, conditions or provisions of this Lease, or if Lessee shall be
adjudicated a bankrupt, or shall make an assignment for the benefit of creditors
133
or shall file a xxxx in equity or otherwise initiate proceedings for the
appointment of a receiver of Lessee's assets, or shall file any proceedings in
bankruptcy or for reorganization or an arrangement under any federal or state
law, or if any proceedings in bankruptcy or for the appointment of a receiver
shall be instituted by any creditor of Lessee under any state or federal law, or
if Lessee's assets are levied upon and are about to be sold pursuant to
execution or other legal process, or if there shall occur a dissolution,
statutory reorganization or merger of Lessee, or if Lessee shall vacate or
desert the Demised Premises, then an event of default shall be deemed to have
occurred under this lease.
(b) Subject to the provisions of Paragraph 24 hereof, if an event of
default shall occur then and in addition to any other rights or remedies Lessor
may have under this lease and at law or in equity, Lessor shall have the
following rights:
(i) To accelerate the whole or any part of the minimum rent and
additional rent (sometimes collectively referred to in this Paragraph 23 as
"rent") and other charges, payments, costs and expenses herein agreed to be paid
by Lessee for the entire unexpired balance of the term of this Lease, and any
rent, other charges, payments, costs and expenses if so accelerated, in addition
to any and all installments of rent already due and payable and in arrears, an d
any other charge, expense or cost herein agreed to be paid by Lessee, shall be
due and payable and in arrears as if by the terms of this Lease such were on
that date payable in advance; and/or
(ii) To enter the Demised Premises and without further demand or
notice proceed to distress and sell the goods, chattels and personal property
there found. Lessee shall pay all costs and officers' commissions, including
watchmen's wages and sums chargeable to Lessor and in such case all costs,
officers commissions and other charges shall immediately attach and become part
134
of the claim of Lessor for rent and any tender of rent without said costs,
commissions and charges made, after the issuance of a warrant of distress, shall
not be sufficient to satisfy the claim of the Lessor.
(iii) To re-enter the Demised Premises and remove all persons and
all or any property therefrom, either by summary dispossess proceedings or by
any suitable action or proceeding at law, or by force or otherwise, without
being liable to indictment, prosecution or damages therefore, and repossess and
enjoy the Demised Premises, together with all alterations, fixtures, signs and
other installations of Lessee. Upon recovering possession of the Demised
Premises by reason of or based upon or arising out of a default on the part of
Lessee, Lessor may, at Lessor's option, either terminate this Lease or make such
alterations as may be necessary in order to relet the Demised Premises and relet
the Demised Premises or any part or parts thereof, either in Lessor's name or
otherwise, for a term or terms which may at Lessor's option be less than or
exceed the period which would otherwise have constituted the balance of the term
of this Lease and at such rent or rents and upon such other terms and conditions
as in Lessor's sole discretion may seem advisable and to such person or persons
as may in Lessor's discretion seem best; upon each such reletting all rents
received by Lessor from such reletting shall be applied first, to the payment of
any indebtedness other than rent due hereunder from Lessee to Lessor: second, to
the payment of any costs and expenses of such reletting, including brokerage
fees, attorney's fees and all costs of such alterations and repairs; third, to
the payment of rent due and unpaid hereunder, and the residue, if any shall be
held by Lessor and applied in payment of future rent as it may become due and
payable hereunder. If such rent received from such reletting during any month
shall be less than that to be paid during that month by Lessee hereunder, Lessee
135
shall pay any such deficiency to Lessor. Such deficiency shall be calculated and
paid monthly. No such re-entry or taking possession of the Demised Premises or
the making of alterations and/or improvements thereto or the reletting thereof
shall be construed as an election on the part of Lessor to terminate this Lease
unless written notice of such intention be given to Lessee. Lessor shall in no
event be liable in any way whatsoever for failure to relet the Demised Premises
or, in the event that the Demised Premises or any part or parts thereof are
relet, for failure to collect the rent thereof under such reletting. Lessee, for
Lessee and Lessee's successors and assigns, hereby irrevocably constitutes and
appoints Lessor Lessee's and their agent to collect the rents due and to become
due under all subleases of the Demised Premises or any parts thereof without in
any way affecting Lessee's obligation to pay any unpaid balance of rent due or
to become due hereunder. Notwithstanding any such reletting without termination,
Lessor may at any time thereafter elect to terminate this lease for such
previous breach.
(iv) To terminate this Lease and the term hereby created without any
right on the part of Lessee to waive the forfeiture by payment of any sum due or
by other performance of any condition, term or covenant broken. Whereupon Lessor
shall be entitled to recover, in addition to any and all sums and damages for
violation of Lessee's obligations hereunder in existence at the time of such
termination, damages for Lessee's default in an amount equal to the amount of
the rent reserved for the balance of the term of this lease, as well as all
other charges, payments, costs and expenses herein agreed to be paid by Lessee,
all discounted at the rate of six percent (6%) per annum to their then present
136
worth, less the fair rental value of the Demised Premises for the remainder of
said term, also discounted at the rate of six percent (6%) per annum to its then
present worth, all of which amount shall be immediately due and payable from
Lessee to Lessor.
(c) WHEN THIS LEASE AND THE TERM OR ANY EXTENSION OR RENEWAL THEREOF
SHALL HAVE BEEN TERMINATED ON ACCOUNT OF ANY DEFAULT BY LESSEE HEREUNDER, AND
ALSO WHEN THE TERM HEREBY CREATED OR ANY EXTENSION OR RENEWAL THEREOF SHALL HAVE
EXPIRED, LESSEE HEREBY AUTHORIZES AND EMPOWERS ANY PROTHONOTARY OR ATTORNEY OF
ANY COURT OF RECORD TO APPEAR FOR LESSEE IN ANY AND ALL ACTIONS WHICH MAY BE
BROUGHT FOR THE RECOVERY BY LESSOR OF POSSESSION OF THE DEMISED PREMISES, AND
CONFESSION OF JUDGMENT IN EJECTMENT FOR WHICH THIS LEASE SHALL BE THEIR
SUFFICIENT WARRANT; THEREUPON, IF LESSOR SO DESIRES, AN APPROPRIATE WRIT OF
POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR. WRIT OR PROCEEDING
WHATSOEVER, AND PROVIDED THAT IF FOR ANY REASON AFTER SUCH ACTION SHALL HAVE
BEEN COMMENCED IT SHALL BE DETERMINED AND POSSESSION OF THE DEMISED PREMISES
REMAIN IN OR BE RESTORED TO LESSEE, LESSOR SHALL HAVE THE RIGHT FOR THE SAME
DEFAULT AND UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS OR UPON THE TERMINATION OF
THIS LEASE OR LESSEE'S RIGHT OF POSSESSION AS HEREINBEFORE SET FORTH, TO CONFESS
ONE OR MORE JUDGMENTS IN EJECTMENT AS HEREINBEFORE SET FORTH TO RECOVER
POSSESSION OF THE DENESED PREMISES. SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ONE
137
EXERCISE THEREOF, AND SUCH AUTHORITY MAY BE EXERCISED AS WELL AFTER THE
EXPIRATION OF THE TERM OF THIS LEASE.
(d) No right or remedy herein conferred upon or reserved to Lessor is
intended to be exclusive of any other right or remedy herein or by law provided
but each shall be cumulative and in addition to every other right or remedy
given herein or now or hereafter existing at law or in equity or by statute.
(e) For the purpose of calculating the "rent reserved for the balance
of the term" of this lease for the purposes of subsection (b) (iv) of this
Section, the amount payable as Lessee's share of increases in real estate taxes
for the balance of the term hereof shall be equal to the sum of the highest
amount paid or payable by Lessee in any calendar year for each of the foregoing
items multiplied by the number of calendar years (including any fractional
calendar year) remaining in the term of this lease.
(f) Lessee agrees to pay in addition any other sums reserved herein all
sums which may become due by the failure of Lessee to comply with all the
covenants of this Lease and, any or all damages, cost and expenses which the
Lessor may suffer or incur by reason of any default of the Lessee or failure on
its part to comply with the covenants of this Lease and also any and all damages
to the Demised Premises caused by any act or neglect by the Lessee.
24. GRACE PERIODS.
(a) Lessor shall not exercise any right or remedy provided for herein,
because of any default hereunder unless, with respect to any money payment,
Lessee shall have received from Lessor written notice of Lessee's failure to
make such payment and Lessee shall thereafter fail to make such payment within a
period of ten (10) days, and unless, with respect to the obligations of Lessee
138
other than the payment of money, Lessee shall have received notice from Lessor
of Lessee's failure to fulfill each obligation and Lessee shall fail within a
period of thirty (30) days thereafter to perform such obligation or if such
obligation is of such nature as not to be performable within said ten (10) day
period, Lessee shall have failed within said period to begin and actively and
diligently prosecute the performance of such obligation.
(b) Notwithstanding the above, if payment of any charges is not
received on or before the payment date or in the event a check is returned as a
result of insufficient funds, a charge of five percent (5%) of said amount shall
be payable by Lessee as a late charge. The late charge shall be a minimum charge
and shall not be prorated. The charge or collection of the late charge shall not
waive any other rights of Lessor.
(c) No payment by Lessee or receipt by Lessor of a lesser amount than
any installment or payment of rent or any other charge due shall be deemed to be
other than on account of the amount due. No endorsement or statement on the
check or payment shall be deemed an accord and satisfaction. Lessor may accept
such check or payment without prejudice to Lessor's right to recover the balance
of such installment or payment of rent or any other charge, or pursue any other
remedies available to Lessor.
(d) If either party retains the services of an attorney due to any
default by the other in their obligations under this Lease, the prevailing party
in any suit filed shall be entitled to recover reasonable attorneys fees and
expenses from the non-prevailing party.
139
25. NOTICES.
All notices required to be given by either party to the other shall be
given by Certified Mail, Return Receipt Requested, or recognized national
overnight courier, addressed as follows:
To Lessor: c/o Xxxxxx X. Xxxxx, Esquire
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Copy To: Pinnacle Foods, Inc.
c/o S. Xxxxxx Xxxxxx
The Xxxxxx Company, Inc.
000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
To Lessee: 000-00 X. Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX
26. LESSOR'S RIGHTS.
Lessee covenants and agrees that Lessor shall have the right to do the
following things and matters in and about the Demised Premises:
(a) At all reasonable times by themselves or their duly authorized
agents to go upon and inspect the Demised Premises and every part thereof,
and/or at their option and at their sole expense, make repairs, alterations and
additions to the Demised Premises or the building of which the Demised Premises
is a part, provided however that Lessor shall take, and shall require its
agents, employees and contractors to take, reasonable precautions to minimize
any disruptions to Lessee's operations or its employees.
(b) To display upon the Demised Premises a "For Sale" sign after notice
from either party of intention to terminate this lease, or at any time within
ninety (90) days prior to the expiration of this lease, a "For Rent" sign or
both "For Rent" and "For Sale" signs; and all of said signs shall be placed upon
such part of the Demised Premises as Lessor may elect and may contain such
matter as Lessor
140
shall require. Prospective purchasers or Lessees authorized by Lessor may
inspect the Demised Premises at reasonable hours and upon reasonable notice.
(c) The Lessor may discontinue all facilities furnished and services
rendered by Lessor not expressly covenanted for herein, it being understood that
they constitute no part of the consideration for this lease.
27. RESPONSIBILITY OF LESSEE.
Lessee agrees to be responsible for and to relieve and hereby relieves the
Lessor from all liability by reason of any injury or damage to any property in
the Demised Premises, belonging to the Lessee, caused by any fire, breakage or
leakage in any part or portion of the Demised Premises, or any part or portion
of the building of which the Demised Premises is a part, or from water, rain or
snow that may leak into, issue or flow from, any part of the said Demised
Premises, or from the drains, pipes, or plumbing work of the same, or from any
place or quarter.
28. CASUALTY LOSS TO THE DEMISED PREMISES.
(a) In the event that the Demised Premises is totally destroyed or so
damaged by fire or other casualty, such that the same cannot be repaired or
restored in the opinion of Lessor's architect within one hundred eighty (180)
days, this Lease shall absolutely cease and determine and all rent shall xxxxx
for the balance of the term.
(b) If the damage caused as above be only partial and such that the
Demised Premises can be restored to their then condition in the opinion of
Lessor's architect within one hundred eighty (180) days, the Lessor may, at
their option, restore the same with reasonable promptness, reserving the right
to enter upon the Demised Premises for that purpose. The Lessor also reserves
the right to enter upon the Demised Premises whenever necessary to repair damage
141
caused by fire or other casualty to the building of which the Demised Premises
is a part, even though the effect of such entry be to render the Demised
Premises or a part thereof untenantable. In either event the rent shall be
apportioned and suspended during the time the Lessor is in possession, taking
into account the proportion of the Demised Premises rendered untenantable and
the duration of the Lessor's possession. If a dispute arises as to the amount of
rent due under this clause, Lessee agrees to pay the disputed amount into an
escrow account until the amount of such rent is determined by an independent
arbitrator or a court of law.
(c) Lessor shall make such election to repair the Demised Premises or
terminate this lease by giving notice thereof to Lessee within forty five days
from the day Lessor receives notice that the Demised Premises have been
destroyed or damaged by fire or other casualty.
(d) Lessor shall not be liable for any damage, compensation or claim by
reason of inconvenience or annoyance arising from the necessity of repairing any
portion of the building, the interruption in the use of the Demised Premises, or
the termination of this lease by reason of the destruction of the Demised
Premises.
29. MECHANIC'S LIENS.
If any mechanic's or materialman's lien shall at any time be filed against
the Demised Premises or any part thereof, or any encumbrance, charge, mortgage,
title retention or security agreement be filed against the Demised Premises or
any part thereof, by reason of any work, labor or services, or materials or
equipment furnished to or for Lessee, Lessee within thirty (30) days after
notice of the filing thereof, will cause the same to be discharged of record by
142
payment, deposit, bond, order of a court of competent jurisdiction or otherwise.
If Lessee shall fail to cause any of the foregoing to be discharged within said
period then, in addition to any other right or remedy, Lessor may, but shall not
be obligated to, discharge the same whether by paying the amount claimed to be
due or by procuring the discharge of such lien by deposit or by bonding
proceedings, and in any such event, Lessor shall be entitled, if Lessor so
elects, to compel the prosecution of an action for the foreclosure of such lien
by the lienor, and to pay the amount of the judgment in favor of the lienor with
interest, costs and allowances. Any amount so paid by Lessor and all costs and
expenses incurred by Lessor in connection therewith, together with interest
thereon at the legal rate then obtaining from the respective dates of Lessor's
making of the payment or incurring of the costs and expense, shall constitute
additional rent payable by Lessee under this Lease and shall be paid to Lessor
by Lessee on demand. Nothing herein contained shall obligate Lessee to pay or
discharge any lien created by Lessor.
Nothing in this Lease shall be deemed or construed in any way as
constituting the consent or request of Lessor, express or implied by inference
or otherwise, to any contractor, subcontractor, laborer or materialman for the
performance of any labor or the furnishing of any materials for any specific
improvement, alteration to or repair of the Demised Premises or any part
thereof, nor as giving Lessee any right, power or authority to contract for or
permit the rendering of any services or the furnishing of any materials that
would give rise to the filing of any lien against the Demised Premises or any
part thereof.
30. ESTOPPEL STATEMENT.
So long as Lessor is not in default under the terms of this Lease, within
ten (I 0) days after request therefore by Lessor or any mortgagee of Lessor, or
143
if upon any sale, assignment or hypothecation of the Demised Premises and/or the
land thereunder by Lessor, an estoppel statement shall be required from Lessee,
Lessee agrees to deliver in recordable form a statement in writing to any
proposed mortgagee or purchaser, or to Lessor, certifying (if such be the case)
that this Lease is unmodified and in full force and effect, that Lessee has
accepted the Demised Premises and is in possession thereof, that Lessee has
commenced the payment of rent, that Lessor is not in default under this Lease
and that there are no defenses or offsets to the Lease claimed by Lessee.
31. CONDEMNATION AWARDS.
In the event that the Demised Premises or any part thereof is taken or
condemned for a public or quasi-public use, this Lease shall, as to the parts so
taken, terminate as of the date title shall vest in the condemner, and rent
shall xxxxx in proportion to the square feet of leased space taken or condemned
or shall cease if the entire Demised Premises is taken. In either event the
Lessee waives all claims against the Lessor by reason of the complete or partial
taking of the Demised Premises. Notwithstanding any provisions to the contrary
herein contained, Lessee hereby waives as against Lessor and as against any
condemner all right to make any claim for any award by virtue of the entire or
partial taking or condemnation of the Demised Premises, provided, however, that
this waiver shall not apply to any claim the assertion and collection of which
would not reduce the award to which Lessor would otherwise be entitled.
32. LESSOR'S LIABILITY.
(a) Lessor represents that it is the owner of the real estate upon
which the Demised Premises is located. In the event of the voluntary transfer of
such ownership or right to a successor-in-interest of Lessor, Lessor shall be
freed and relieved of all liability and obligations hereunder which shall
144
thereafter accrue, (and, as to any unapplied portion of Lessee's security
deposit, Lessor shall be relieved of all liability therefore upon transfer of
such portion to their successor in interest) and Lessee shall look solely to
such successor in interest for the performance of the covenants and obligations
of the Lessor hereunder which shall thereafter accrue. Notwithstanding the
foregoing, no mortgagee or ground lessor which shall succeed to the interest of
Lessor hereunder (either in terms of ownership or possessory rights) shall
unless there exists at the time of transfer, a continuing event of Lessor's
default for which the transferee has agreed in writing to be responsible:
(i) Be liable for any previous act or omission of a prior lessor;
(ii) Be subject to any rental offsets or defenses against a prior
lessor;
(iii) Be bound by any amendment of this Lease made without its
written consent or by payment of Lessee of rent in advance in excess of one
month's rent; or
(iv) Be liable for any security not actually received by him.
Subject to the foregoing, the provisions hereof shall be binding upon and inure
to the benefit of the successors and assigns of Lessor. Notwithstanding anything
to the contrary contained in this Lease, any liability of Lessor, their agents,
partners or employees, arising out of or in respect of this Lease, the Demised
Premises or the Building, shall be limited to Lessor's estate or other title or
interest in the Demised Premises, and, if Lessor shall default in the
performance of Lessor's obligations under this Lease or otherwise, Lessee shall
look solely to the equity of Lessor in their interest in the Demised Premises.
(b) Notwithstanding anything contained in this Lease to the contrary,
Lessor shall have no liability to Lessee for consequential, compensatory or
punitive damages of any nature whatsoever. Any claim by Lessee against Lessor
145
for the damages shall be limited to the minimum rent paid by Lessee during such
breach if so awarded pursuant to Paragraph 37 hereof.
33. MISCELLANEOUS.
(a) It is hereby agreed, any law, usage or custom to the contrary
notwithstanding, that Lessor shall have the right at all times to enforce the
provisions of this Lease in strict accordance with its terms, notwithstanding
any conduct or custom on the part of the Lessor in refraining from doing so at
any time or times, and further, that the failure of Lessor at any time to
enforce their rights under said covenants strictly in accordance with the same
shall not be construed as having created a custom in any way or manner contrary
to the specific terms, provisions and covenants of this lease.
(b) All of the remedies given to Lessor and all of the rights given to
them by law and equity shall be cumulative and concurrent. No determination of
this Lease or the taking or recovering of the Demised Premises shall deprive
Lessor of any of their remedies or actions against the Lessee for rent due at
any time, or which under the terms hereof would in the future become due as if
there has been no determination, or for the sums due at the time or which, under
the terms hereof, would in the future become due as if there had been no
determination, nor shall the bringing of any action for rent or breach of
covenant, or the resort to any other remedy herein be construed as a waiver of
the right to obtain possession of the Demised Premises.
(c) This Agreement of Lease and all of its terms covenants and
provisions are and each of them is subject and subordinate to any and all
mortgages and other encumbrances now or hereafter placed upon the Demised
Premises , and the Lessee expressly agrees that if Lessor's ownership of the
146
Demised Premises shall terminate by foreclosure or otherwise, than this Lease
shall thereupon immediately terminate and then the Lessee shall thereupon give
immediate possession and Lessee hereby waives any and all claims for damages or
otherwise by reason of such termination as aforesaid.
(d) It is expressly understood and agreed by and between by the parties
that this Lease sets forth all of the promises, agreements, conditions and
understandings between Lessor and the Lessee relative to the Demised Premises
and that there are no promises agreements conditions or understandings, either
oral or written between them other than those that are herein set forth. It is
further understood and agreed that no subsequent alteration, amendment, change
or addition to this Lease shall be binding upon Lessor or Lessee unless reduced
to writing and signed by them.
(e) If Lessor is unable to give Lessee possession of the Demised
Premises by reason of the holding over of a previous occupant, or by reason of
any cause beyond the control of Lessor, Lessor shall not be liable in damages to
Lessee therefore, and during the period that the Lessor is unable to give
possession, all rights and remedies of both parties hereunder shall be
suspended.
34. BINDING EFFECT.
The submission by Lessor of this Lease for execution by Lessee and the
actual execution and delivery thereof by Lessee to Lessor shall have no binding
force and effect unless and until Lessor shall have executed this Lease and a
duplicate original thereof shall have been delivered to Lessee.
147
35. RELATIONSHIP OF THE PARTIES.
Nothing herein contained shall be deemed or construed as creating a
relationship of principal and agent or a partnership or joint venture between
Lessor and Lessee; it being understood and agreed that neither the method of
computing rent nor any another provisions contained herein nor any acts of
Lessor and Lessee shall be deemed to create any relationship between the parties
other than that of Lessor and Lessee.
36. COMMISSION.
Lessor and Lessee hereby acknowledge that The Xxxxxx Company, Inc. is the
sole procuring cause of the Lessee and this Lease Agreement. In consideration
thereof, The Xxxxxx Company, Inc. shall be paid a six percent (6%) commission on
all minimum rents as collected during the initial term of this Lease and any
extensions, expansions, options or renewals. Should Lessee purchase the Demised
Premises during the initial term or any renewal term, Lessor hereby agrees to
pay The Xxxxxx Company, Inc. an additional commission equal to six percent (6%)
of the total sale consideration, due and payable at time of final settlement.
This provision is extended to all heirs and assigns and shall remain an
obligation in the event of a company sale, change of officers or stock exchange
or stock transfer.
37. ARBITRATION.
In the event of any dispute or disagreement concerning any subject of this
Lease, or an alleged breach, Lessee and Lessor must, as their sole and exclusive
remedy, submit such dispute to arbitration in the City of Philadelphia before
one arbitrator by giving the other a Demand for Arbitration. Three (3) business
days after giving such Demand for Arbitration, the parties shall in good faith,
seek to find a mutually acceptable arbitrator; and the decision and award of the
148
arbitrator shall be made within two (2) business days of completion of the
arbitration and shall be final and conclusive on the parties. If agreement as to
a mutually acceptable arbitrator is not reached within such three (3) business
day period, then either party may, within three (3) business days thereafter,
submit such dispute for arbitration before one arbitrator under the expedited
procedure provisions of the Commercial Arbitration Rules of the American
Arbitration Association in Philadelphia County, Pennsylvania. The losing party
shall pay the cost of any such arbitration and the prevailing party's reasonable
attorneys' fees and disbursements and the fees of all other persons engaged by
and in connection with the arbitration. Notwithstanding the provisions of this
paragraph, Lessor expressly reserves the right to proceed judicially against
Lessee for possession.
38. OPTION TO BUY.
(a) Provided Lessee is not in default under any term or provision of
this Lease, is conducting its business at the Demised Premises and has exercised
the renewal option contained in Paragraph 6(c), Lessee shall have the personal
and non-transferable (except to an "Affiliate of Lessee" as defined in Paragraph
19(b)) option to acquire (i.e. "close") on the Demised Premises during the
thirty (30) day period commencing August 1, 2005 and expiring August 31, 2005.
(b) To exercise this option, Lessee shall send written notice Certified
Mail, Return Receipt Requested to Lessor at the address herein provided during
the six month period commencing, on September 1, 2004 and expiring on February
28, 2005.
(c) The option price shall be the fair market value of the Demised
Premises on the exercise date. The said fair market value shall be agreed upon
by Lessee and Lessor within ten (10) business days from Lessor's receipt of the
notice of exercise of this option by Lessee to Lessor. If the fair market value
149
cannot be agreed upon within said ten (10) business days, the fair market value
shall be detern3ined by two MAI appraisers, one to be selected and paid by
Lessor and the other to be selected and paid by Lessee. Each appraiser shall
have performed at least three (3) appraisals of commercial real estate located
in Philadelphia County within the two (2) years preceding the notice of
exercise; both appraisers shall be disinterested, objective and without any
business dealings with either Lessee or Lessor prior to their appointment. In
the event the two (2) appraisers so selected cannot agree on the fair market
value, the appraisers shall select a third appraiser, the cost of which shall be
shared by Lessee and Lessor and said appraised value shall be final. If a party
fails to select an appraiser within fifteen (15) days following the expiration
of the above referenced ten (10) business day period (to consensually establish
the fair market value), or if an appraiser fails to submit his valuation to both
parties within forty-five (45) days from the date of his appointment, then the
appraised value shall be the valuation of the other party's appraiser. Upon
establishing the fair market value, Lessee and Lessor shall enter into an
agreement of sale which will provide for ten percent (10%) of the purchase price
to be escrowed with Lessor's counsel and the balance of the purchase price to be
paid in full on the date of closing, which date shall not extend beyond August
31, 2005. The agreement shall also provide that the Demised Premises shall be
transferred by a fee simple deed of special warranty conveying good, marketable
and insurable title to the Demised Premises free and clear from all liens,
assessments and encumbrances, other than. general service utility easements, and
other restrictions, rights of way and easements of record and in "AS IS"
condition.
150
(d) Lessee agrees that it shall remain liable for all items of minimum
and additional rent reserved herein during the period from the notice of
exercise to the closing date.
IN WITNESS WHERE OF, the parties hereto have executed these
presents the day and year first above written, and intend to be legally bound
thereby.
LESSEE: LESSOR:
PINNACLE FOODS, INC X. XXXXX & SONS, INC.
BY:_________________________ BY:____________________
Attest:_____________________ (Seal) Attest:_______________(Seal)
151
