AGREEMENT OF LEASE
Exhibit
10(q)
THIS
AGREEMENT OF LEASE is made as of ____________, 2005, by and between
___________________, a _______________ with principal place of business at
_____________________________ (“Lessor”) and DNB FIRST, NATIONAL ASSOCIATION
(formerly known as Downingtown National Bank), with principal place of business
at 0 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000 ("Lessee").
W
I T N E
S S E T H :
1.
Demise
and Lease; Permitted Use.
(a)
Lessor, for and in consideration of the payment of the rentals hereinafter
specified, and the performance of the terms, covenants and agreements herein
contained, hereby demises and leases unto Lessee and Lessee hereby lets from
the
Lessor certain
premises comprising approximately 0.9 acres of ground, with improvements,
known
as Tax Map Parcel Nos. 1108004900, 1108005000 and 1108005001, situate on
Brandywine Avenue, in the Borough of Downingtown, Xxxxxxx County, Commonwealth
of Pennsylvania (the
“Leased Premises”).
Lessee’s
use of the Leased Premises is subject to the burdens of and entitles the
Lessee
to the benefits of, the Parking Easement Agreement among Lessee, Lessor and
Papermill Brandywine Company, LLC, dated contemporaneously herewith, the
form of
which is attached hereto as Exhibit
A,
and
intended to be filed of public record (the “Parking Easement
Agreement”).
(b)
Lessee shall be authorized to use the Leased Premises for: (i) general
administrative office use; a financial services center; loan production;
customer meetings; a bank, and all uses necessary or incidental to the foregoing
(including, without limitation, the sale of mutual funds, securities and
other
financial and insurance products), maintenance of automated teller machine(s)
("ATMs") to the extend permitted under other provisions of this Lease, safe
deposit facilities and office and office related uses, (ii) commercial and
professional office use to the extent permitted by applicable law from time
to
time, and (iii) subject to the prior written consent of the Lessor, which
shall
not be unreasonably withheld, any other lawful use permitted by applicable
law
from time to time at the Leased Premises (collectively, the “Permitted Uses”).
Lessee shall have the right, in order to maintain proper security and
maintenance for the operation of its business, to have pickups or deliveries
made from or to the Leased Premises by carriers of cash, securities,
instruments, records or other materials commonly transported by such carriers
and to permit the use of such portions of the Leased Premises as shall be
reasonably required for such purposes.
2.
Term;
Lessee’s Early Termination Option; Renewal Options.
(a)
Subject to Lessee’s “Early Termination Option” as provided in subsection (c) of
this Section, this Lease shall be for a period (the “Initial Term”) beginning on
the date of this Lease ending on December 1, 2010.
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(b)
Lessee shall have separate options to renew this Lease for three (3)
additional,
successive
terms of
five (5) years each (each,
a
“Renewal Term”), with each Renewal Term
commencing consecutively
upon
the
expiration of the Term
as it
may have been previously extended
(the
Initial Term and any Renewal Terms are sometimes herein referred to collectively
as the “Term.”) All of the terms and conditions applicable to the Term of this
Lease shall also apply during each Renewal
Term,
except that during each Renewal
Term,
the
Base Rent shall be a
fair
market rental taking into account all of the terms and conditions of this
Lease,
but in no event shall the Base Rent decrease below the amount payable during
the
immediately prior year. Each
renewal
option shall be exercisable by written notice to Lessor at least 180 days
prior
to the end of the then current Term,
so
long as Lessee is not then in Default hereunder on the notice date or at
the
commencement of the renewal term.
If,
within 15 days after Lessee’s written notice of exercise of the option, Lessee
and Lessor shall not have agreed in writing on the amount and rate of Base
Rent
for the ensuing Renewal Term, the parties shall, within 30 days after Lessee’s
written notice, submit the dispute to binding determination by two licensed
Pennsylvania real estate appraisers each having a minimum of ten (10) years
experience in appraising commercial real estate in Xxxxxxx County, Pennsylvania,
one to be appointed by each of the parties. If the two appraisers cannot
agree
on the fair market rent, they shall promptly select a third Pennsylvania
real
estate appraiser having a minimum of ten (10) years experience in appraising
commercial real estate in Xxxxxxx County, Pennsylvania. The appraisers shall
submit to Lessor and Lessee, within 120 days after Lessee’s written notice (not
less than 60 days prior to the commencement of the Renewal Term), a written
determination as to the fair market rent for a Base Rent taking into account
all
of the terms and conditions of this Lease, which shall be final and binding
on
Lessor and Lessee. The cost of such determination shall be shared equally
between the parties.
(c)
Notwithstanding any other provision of this Lease, Lessee shall have the
option
(the “Early Termination Option”) to terminate this Lease at any time during the
Initial Term or any Renewal Term by written notice to Lessor, whereupon this
Lease shall terminate on the date specified in Lessee’s notice, which shall be
not less than one hundred twenty (120) days after the date of the notice,
and
upon such termination Lessee have no further obligations to pay rent or any
other sum or perform any obligations beyond the termination date of this
Lease
(other than such as may have accrued prior to such termination or which survive
the termination hereof), and shall vacate the Leased Premises.
3.
Rent.
During
the initial Term beginning on the date hereof and ending on December 1, 2010,
Lessee shall pay to Lessor as base rent (“Base Rent”) for the Leased Premises
the sum of $175,842.00 per year (apportioned for partial Lease years), at
the
place designated by Lessor in writing, in equal, consecutive monthly
installments of $14,653.50, each such installment to be due and payable in
advance on the first day of each calendar month during the Term. The Base
Rent
for any Renewal Term shall be the amount set forth in Section 2(b) hereinabove,
and shall be payable in accordance with the terms and conditions set forth
herein. In the event the Term shall begin or end other than on the first
day and
last day, respectively, of a calendar month, the rental for such partial
month
shall be adjusted utilizing the number of days of the Term actually contained
in
the calendar month during which the Term begins and ends, respectively. All
Base
Rent shall be paid in advance on the first day of each calendar month without
set off or any demand therefor.
4.
Utilities;
Janitorial.
Lessee
shall pay all telephone, communication, electric, gas, heating, air conditioning
and other utility charges in connection with the use of the Leased Premises
during the Term. Lessee shall provide at its own expense, janitorial and
cleaning services to the Leased Premises, including, without limitation,
the
removal of all trash and rubbish therefrom.
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5.
Expenses.
Lessee
shall pay all real estate taxes and assessments with respect to the Leased
Premises, as well as all expenses for the maintenance and such repair of
the
Leased Premises as Lessee is responsible for conducting under this Lease.
Without limiting the foregoing, Lessee shall pay or reimburse Lessor for
Lessor’s “Percentage Share” of all “Parking Area Costs” for any “Parking Area
Work” (as those terms are defined in Section 5 of the Parking Easement
Agreement) that is completed during and pertains to periods during the term
of
this Lease.
6.
Improvements;
Fixtures and Equipment.
(a)
Lessee
accepts the Leased Premises in an AS IS condition. Lessee shall, at Lessee's
expense, perform or cause to be performed such non-structural tenant
improvements as it may determine from time to time, without Lessor’s prior
approval. Lessee shall obtain Lessor’s prior written approval for any structural
or exterior improvements that Lessee proposes to make, which approval will
not
be unreasonably withheld. All improvements shall be performed in a good and
workmanlike manner and shall be conditioned on receipt of all required permits
from the governmental authorities having jurisdiction and shall be in accordance
with the terms of such permits and in strict compliance with all applicable
laws, ordinances, regulations, building codes and the like, as well as any
approval of Lessor as required hereunder. In
the
event that Lessee proposes improvements that (i) Lessee wants the option
to
remove, or (ii) Lessor reasonably determines by written notice at or prior
to
the time of Lessor’s consent thereto are reasonably likely to reduce the rental
value of the Leased Premises, Lessor and Lessee shall mutually agree on
identifying such improvements in writing as “Identified Improvements.”
Upon
termination of the tenancy created hereby, Lessee shall at Lessor’s option (to
be exercised by written notice to Lessee not less than ninety (90) days prior
to
the expiration or earlier termination of this Lease), or otherwise at Lessee’s
option, remove such Identified
Improvements
at
Lessee’s sole cost and expense and repair all damages created thereby.
Otherwise, any improvements that are not Identified Improvements, and any
Identified Improvements as to which neither Lessor nor Lessee has exercised
the
option for removal, shall be left in the Leased Premises at the expiration
or
earlier termination of the Term and shall become the property of Lessor.
(b)
All
trade
fixtures, decorations and equipment installed in the Leased Premises shall
be
installed by Lessee at Lessee’s sole cost and expense. All such trade fixtures,
decorations and equipment shall remain the sole property of Lessee. At the
termination of the tenancy created hereby, Lessee shall have the right to
remove
such items from the Leased Premises, provided Lessee repairs any damage to
the
Leased Premises resulting from such removal. Any trade fixtures, decorations
and
equipment that are not removed on or prior to the expiration or earlier
termination of this Lease shall be deemed abandoned by Lessee, and Lessor
shall
either keep such items, or remove them at Lessee's sole cost and
expense.
7.
Repairs
and Replacements.
(a)
Lessee shall, during the Term, at its cost and expense, maintain, repair
and
replace (if necessary) the non-structural portions of the improvements on
the
Leased Premises,
the
heating, ventilation and air-conditioning system
and the
sanitary, electrical, and other systems for all portions of the Leased Premises
in at least as good condition as at the time of commencement of this
Lease.
The
foregoing shall
include
without limitation painting, interior and exterior repairs, building maintenance
and other service contracts. However,
(i) Lessee shall not be obligated to make any structural repairs or to construct
or replace any improvements, and (ii) Lessee agrees to make routine roof
repairs, but shall not be obligated to replace the roof or parts
thereof.
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(b)
Lessee shall make all repairs to the Leased Premises that are necessitated
by
Lessee’s negligence, willful misconduct or failure to comply with the terms of
this Lease, or in the installation or removal of any of Lessee’s fixtures, signs
or improvements. Lessee shall replace all broken glass in the Leased Premises.
8.
Insurance.
Lessee
shall, at its sole cost and expense, maintain, during the Term,
comprehensive public liability insurance,
and
contractual liability insurance for personal injury, death and damage or
destruction of property occurring upon, in or about the Leased Premises,
consistent with the certificate of coverage attached hereto as Exhibit
B
and made
part hereof (the “Insurance Requirements”) and shall maintain Lessor and its
mortgagee as an additional insured on all such policies; provided, however,
that
Lessee shall have no obligation to obtain or maintain, and it shall be Lessor’s
sole responsibility to obtain and maintain, any flood insurance for the
improvements on the Leased Premises. Lessee shall also insure the improvements
on the Leased Premises at Lessee’s expense during the Term at their full
insurable value on terms consistent with the Insurance Requirements. Lessee,
at
its option, may obtain insurance on the value of its personal property,
contents, furniture, fixtures, equipment or inventory maintained or located
on
the Leased Premises and Lessor shall have no responsibility or liability
with
respect to the foregoing. Lessee shall hereafter obtain and deliver to Lessor
a
certificate evidencing the insurance required under this Lease annually upon
or
immediately after the policy renewal date. Each policy of insurance shall
contain an agreement by the insurer that it will not cancel or amend or fail
to
renew such policy or reduce the coverage thereunder except after thirty (30)
days prior written notice to Lessor.
9.
Lessee's
Covenants.
In
addition to Lessee’s other covenants and obligations hereunder, Lessee agrees
during the Term and for so long as Lessee's occupancy continues:
(a)
To
pay when due the Base Rent and additional expenses as set forth herein, to
maintain the Leased Premises in good condition and repair, reasonable wear
and
tear excepted and to promptly perform all items of maintenance and repair
which
Lessee is obligated to perform pursuant to this Lease;
(b)
To
permit Lessor to have access to the Leased Premises, with prior notice, during
Lessee's normal operating hours provided
any such entry does not interfere with Lessee’s business or operations,
and
in the
event of an emergency at other times, for the purpose of inspection of the
same
and to assure Lessor with regard to the performance by Lessee of the terms
and
conditions hereof, and, during the 6 months prior to expiration of the Term,
to
show the Leased Premises to prospective purchasers and tenants; provided,
however, in recognition of Lessee's security needs and obligations as a bank,
Lessor shall not exercise any right it has to enter into any secure area
within
the Leased Premises or to enter the Leased Premises outside Lessee’s normal
operating hours without Lessee’s prior consent and under reasonable security
conditions, accompanied by an officer or authorized representative of Lessee.
Notwithstanding the foregoing, Lessor may exercise its right to enter the
Leased
Premises without Lessee’s prior consent in emergency situations threatening life
or property in which case Lessor will make reasonable attempts to contact
Lessee
and will contact local police prior to any such entry;
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(c)
At
the expiration or earlier termination of the Term, promptly to yield up the
Leased Premises and all improvements, alterations and additions thereto (unless
required to be removed) in broom clean condition, and all fixtures and equipment
servicing the Leased Premises; and to remove Lessee's signs, goods and effects
and any fixtures and equipment used in the conduct of Lessee's business not
serving the Leased Premises; and
(d)
Comply with all governmental requirements and regulations respecting Lessee's
use and occupancy of the Leased Premises in a timely manner and be solely
responsible for all tax levies, assessments, licenses or fines arising from
the
conduct of Lessee's business.
10.
Lessor's
Covenants and Warranties.
Lessor
represents, warrants and covenants as follows:
the
accuracy of which Lessor acknowledges and agrees are conditions to this Lease
and material inducements to Lessee to enter into this Lease:
(a)
Lessor is the sole
owner
of
the Leased Premises,
and has
not subjected the Leased Premises to any liens, leases or other agreements
(other than the Mortgage Loan) that will have priority over or conflict with
this Lease after the date hereof;
(b)
The
only
mortgage(s) burdening the Leased Premises as of the date of this Lease is
a
mortgage given by Lessor, as borrower, in favor of Lessee, as lender, to
secure
purchase money financing provided by Lessee for Lessor’s acquisition of the
Leased Premises (the “Mortgage Loan”);
(c)
Lessor
has full right and power to execute and perform this Lease and to grant the
estate demised herein;
(d)
Lessor is not aware of any legal proceeding, claim, taking, proposed taking,
administrative or judicial order or agreement with any third party that will
or
is likely to conflict with or result in a claim against the validity of this
Lease, Lessee’s taking occupancy of the Leased Premises on the Commencement
Date, or Lessee’s using the Leased Premises for any Permitted Uses; and
(e)
Upon
payment of the rent and performance of all of the other terms and conditions
to
be performed by Lessee herein, Lessee shall be
entitled to peaceably
and quietly hold and enjoy the Leased Premises for the Term
(including without limitation any applicable Renewal Term).
11.
Signage.
Lessee
may
erect
any signs
on
or
visible
from
the
exterior of the Leased
Premises, provided the same shall comply with applicable legal requirements
and
are approved by Lessor in writing (such approval not to be unreasonably
withheld, conditioned or delayed). Subject to applicable law, Lessor agrees
that
Lessee may install and utilize throughout the Term the signs presently existing
at the Leased Premises. During the Term, Lessee shall be permitted to change
its
signage from time to time only with the prior written consent or approval
of
Lessor (such consent not to be unreasonably withheld, conditioned or delayed),
provided all modifications to the signage shall be in compliance with applicable
laws. Lessee shall, at its sole cost and expense, remove any signage upon
the
expiration or earlier termination of this Lease and repair any damage caused
by
such removal.
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12.
Destruction
and Damage; Application of Insurance Proceeds.
If any
or all of the improvements on the Leased Premises should be damaged by fire,
flood or other casualty, this Lease shall not terminate as a result thereof,
but
Lessee shall retain the right to exercise its Early Termination Option. Except
as provided in Section 2(c) hereinabove, no damage or destruction shall relieve
Lessee from paying, nor xxxxx in whole or part, the Base Rent and other rent
provided under this Lease. Lessee shall only be obligated to repair or replace
any damaged or destroyed improvements to the extent of available insurance
proceeds (or to the extent of insurance proceeds had Lessee complied with
the
insurance requirements hereunder). If Lessee exercises its Early Termination
Option after damage or destruction and before expenditure of all of the
insurance proceeds for completion of the restoration or repair of the damaged
or
destroyed improvements, Lessee shall pay over to the Lessor any unexpended
insurance proceeds to the extent required to complete reasonable restoration
or
repair. Notwithstanding the foregoing, the provisions of this Lease for
application of any insurance proceeds shall at all times be subject to the
terms
of the Mortgage Loan. Also, notwithstanding anything to the contrary set
forth
in this Lease: (i) Lessor shall have no obligation to repair or replace any
damage to the Leased Premises resulting from fire, flood or other casualty;
and
(ii) Lessee shall have no obligation to repair or replace any damage to the
Leased Premises due to any casualty beyond any insurance proceeds that are
available therefor (or that would have been available had Lessee complied
with
the insurance requirements hereunder).
13.
Liability.
(a)
Damage
in General. Lessee
agrees that Lessor and its members, partners, employees and agents, shall
not be
liable to Lessee and Lessee hereby releases said parties from any liability
for
any personal injury, loss of income or damage to loss of persons or property
in
or about the Leased Premises from any cause whatsoever unless and to the
extent
such damage, loss or injury results from the negligence,
willful
misconduct or breach of law or regulation or the terms of this Lease of or
by
Lessor,
its members, partners, employees or agents. Lessor and its respective members,
partners, employees and agents shall not be liable to Lessee for any such
damage
or loss, whether or not such damage or loss results from such negligence,
to the
extent Lessee is compensated therefor by Lessee’s insurance or should have been
compensated by Lessee's insurance if Lessee failed to maintain the insurance
required under Section 8 hereinabove. Further, notwithstanding anything to
the
contrary contained in this Lease, Lessee agrees that Lessee shall look solely
to
the estate and property of Lessor in the Leased Premises for the collection
of
any judgment (or other judicial process) requiring the payment of money by
Lessor in the event of any default or breach by Lessor with respect to any
of
the terms, covenants and conditions of this Lease, to be observed or performed
by Lessor, and no other assets or property of Lessor shall be subject to
levy,
execution or other procedures for the satisfaction of Lessee’s remedies;
provided, however, that notwithstanding the foregoing provisions limiting
Lessee’s remedies and recourse against Lessor, such provisions shall be personal
to Lessor and shall not apply to any of Lessor’s successors or assigns, and
shall apply only so long as Lessor remains the sole owner of the Leased
Premises.
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(b)
Indemnity.
(i)
Lessee
shall defend, indemnify and hold harmless Lessor and its members, partners,
agents and employees from and against all liabilities, obligations, damages,
penalties, claims, costs, charges and expenses, including reasonable attorneys’
fees, which may be incurred by or asserted by reason of any of the following
that shall occur during the Term:
(A)
any
work or act done, in
or about
the Leased Premises or any part thereof
at the
direction
of Lessee, its agents, contractors, subcontractors, servants, employees,
licensees
or
invitees;
(B)
any
negligence
or
other
wrongful act
or
omission
on the part of Lessee
or
any
of
its agents, contractors, subcontractors, servants, employees, sub-tenants,
licensees
or
invitees;
(C)
any
accident, injury or damage to any person or property occurring in, on or
about
the Leased Premises or any part thereof, unless and to the extent caused
by the
negligence, willful misconduct or breach of law, regulation or the terms
of this
Lease of or by Lessor, its employees or agents;
and/or
(D)
any
failure on the part of Lessee to perform or comply with any of the covenants,
agreements,
terms,
provisions, conditions or limitations contained
in this
Lease on its part to be performed or complied with.
(ii)
Lessor shall defend, indemnify and hold harmless Lessee and its affiliates,
shareholders, directors, agents and employees from and against all liabilities,
obligations, damages, penalties, claims, costs, charges and expenses, including
reasonable attorneys’ fees, which may be incurred by or asserted by reason of
any of the following which shall occur during the Term of this
Lease:
(A)
any
work or act done, in or about the Leased Premises or any part thereof at
the
direction of Lessor or any of its agents, contractors, subcontractors, servants
or employees or any of its licensees or invitees that are not the Lessee
or
Lessee’s licensees or invitees;
(B)
any
negligence or other wrongful act or omission on the part of Lessor or any
of its
agents, contractors, subcontractors, servants or employees or any of its
licensees or invitees that are not the Lessee or Lessee’s licensees or invitees;
(C)
any
accident, injury or damage to any person or property occurring in, on or
about
any portion of the Leased Premises to the extent caused by the negligence,
willful misconduct or breach of law, regulation or the terms of this Lease
of or
by Lessor, its employees or agents; and/or
(D)
any
failure on the part of Lessor to perform or comply with any of the covenants,
agreements, terms, provisions, conditions or limitations contained in this
Lease
on its part to be performed or complied with.
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(c)
Survival.
The
provisions of this Section shall survive termination and any other expiration
of
this Agreement.
14.
Assignment
and Subletting.
(a)
Lessee may at any time, and from time to time, assign its interest in this
Lease, or sublease, or permit the occupancy of, all or any part
of the
Leased Premises without Lessor's
consent to any successor in interest of Lessee or to any present or future
parent, affiliated or subsidiary corporation or other entity, whether arising
pursuant to a sale of stock, sale of assets, merger, consolidation or otherwise,
or in the ordinary course of business as required to facilitate any joint
marketing of banking or other financial products or services (the aforesaid
permitted assignees, sublessees, and licensees are hereinafter collectively
referred to as the ''Related Parties"), provided that: (i) any such transfer
shall be subject to the terms and conditions of this Lease; (ii) the original
Lessee named hereunder shall remain fully liable for all of the terms and
conditions of this Lease; (iii) if Lessee proposes to assign its rights under
this Lease to someone other than by operation of law, the Lessee and all
parties
(if any) guarantying the terms and conditions of this Lease shall have a
combined tangible net worth (not including goodwill) equal to or greater
than
the tangible net worth (not including goodwill) of the original Lessee named
hereunder as of the commencement of the Term or immediately prior to such
transfer (whichever is greater); and (iv) the term of any rights of any Related
Parties shall not exceed the then remaining Term (including any Renewal Term)
of
this Lease. Lessee agrees to promptly notify Lessor in writing of any such
assignment or subletting and provide evidence to Lessor of such transfer
and
that Lessee has complied with the terms and conditions set forth
herein.
(b)
Except for subleases, licenses and assignments to Related Parties, as permitted
above, Lessee agrees not to assign, mortgage or otherwise transfer its interest
in this Lease or in the Leased Premises or to sublease all or any part of
the
Leased Premises to any third party without first obtaining Lessor's written
consent. The parties agree that it would be unreasonable for Lessor to withhold
its consent to a sublease or assignment unless (i) Lessor reasonably believes
that the use of the Leased Premises may not continue to comply with the terms
and conditions of this Lease, or (ii) the proposed assignee’s financial
condition and/or business experience are not reasonably acceptable to Lessor,
or
(iii) Lessee is then in default under this Lease beyond applicable cure
periods.
15.
Default;
Remedies.
(a)
Lessee's
Default.
Lessee
will be in "Default" if (i) Lessee fails to pay Base Rent, additional expenses
or any other amount owning hereunder when due, and
such
failure continues for ten (10) days after written notice to Lessee of such
failure;
(ii)
Lessee fails to perform any other material covenant or agreement contained
in
this Lease within thirty
(30)
days
after written notice of the failure from Lessor; provided,
however if the failure is of such a nature that it cannot be cured within
said
thirty (30) day period, Lessee will not be deemed in default provided Lessee
commences to cure the default within said thirty (30) day period and thereafter
continuously prosecutes such cure to completion; and/or
(iii) Lessee vacates or abandons the Leased Premises or removes or manifests
an
intention to remove Lessee’s goods and property from the Leased Premises other
than in the ordinary course of its business; and/or (iv)
Lessee
is adjudicated a bankrupt in a proceeding initiated by or against it or a
receiver for Lessee or for all or a substantial part of its property is
appointed, or a court order is entered approving a petition seeking
reorganization or an arrangement under the Bankruptcy Code, and any such
adjudication, appointment or order is not vacated, set aside or otherwise
terminated or stayed within sixty (60) days from the date of its entry.
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(b)
Remedies.
Upon the
occurrence of a Default, Lessor may, at any time thereafter and in addition
to
all other available legal or equitable rights and remedies, do any one or
more
of the following (but
nothing in this Lease or the following provisions shall relieve Lessor of
any
obligation to mitigate damages Lessor may have under applicable
law);
provided, however, in no event shall Lessor be required to (i) accept a below
market rental rate for the Leased Premises; (ii) accept any tenant whose
creditworthiness is unsatisfactory to Lessor in its sole discretion; or (iii)
accept any tenant whose business violates any exclusives or restrictions
imposed
upon the Leased Premises)
(Lessee
shall also pay to Lessor all reasonable attorney’s fees, costs and expenses
incurred by Lessor as a result of an occurrence of Default by
Lessee):
(i)
Demand, xxx and recover from Lessee any and all installments of rent already
due
and payable and in arrears, or any other charge, expenses or cost herein
agreed
to be paid by Lessee which may be due and payable and in arrears, as of the
time
of the date of the Default.
(ii)
Demand, xxx and recover from Lessee liquidated damages in an amount (if any)
equal to any positive difference obtained by subtracting (i) the fair rental
value of the Leased Premises for a period of 120 days from and after the
date of
the Default (ii) the Base Rent then payable under this Lease for a period
of 120
days from the date of the Default.
(iii)
Terminate this Lease and
repossess and enjoy the Leased Premises.
16.
Subordination;
Nondisturbance.
This
Lease is and shall be subject and subordinate to the lien and mortgage securing
the Mortgage Loan and to any and all renewals, modifications, consolidations,
replacements and extensions thereof, on
the
condition that each holder of an interest in any mortgage or other lien shall
have delivered to Lessee a written nondisturbance agreement providing that,
so
long as Lessee is in compliance with Lessee’s obligations under this Lease, such
party agrees (a) to recognize Lessee's rights, tenancy and occupancy under
this
Lease, and (b) not to disturb Lessee's occupancy of the Leased Premises,
notwithstanding any termination of any such lease or foreclosure of any such
mortgage.
This
paragraph shall be self-operative and no further instrument of subordination
shall be required by any mortgagee, but in confirmation of such subordination,
Lessee shall execute within fifteen (15) days after being so requested, any
certificate that Lessor may reasonably require, acknowledging such
subordination.
17.
Estoppel
Statement.
Lessee
and
Lessor, from
time
to time, within ten (10) days after request by the
other
party,
shall
execute, acknowledge and deliver to the
other
party
a
statement, which may be relied upon the
other
party
or any
proposed assignee of its
interest
in this Lease or any existing or proposed mortgagee or ground lessor or
purchaser of the Leased Premises, certifying that this Lease is unmodified
and
in full force and effect (or that the same is in full force and effect as
modified and listing the instruments of modification), the dates to which
rent
and other charges have been paid whether or not Lessor (in
the
case of a certificate by Lessee) or Lessee (in the case of a certificate
by
Lessor is
in
default hereunder or whether the
certifying party
has any
claims or demands against the
other
party
(and, if
so, the default, claim and/or demand shall be specified) and certifying as
to
such other matters as the
other
party
may reasonably
request.
Lessee and
Lessor each acknowledges
that any such statement so delivered by it
may be
relied upon by
the
requesting party and any such assignee,
any
landlord under any ground or underlying lease or by any perspective purchaser,
mortgagee or any assignee of any mortgage.
-9-
| 18. |
Condemnation.
|
(a)
If
the
whole of the Leased Premises is condemned for any public use or purpose by
any
legally constituted authority (or is sold to such authority in lieu of
condemnation), this Lease shall cease from the date of such taking or sale
and
rental shall be accounted for between Lessor and Lessee as of the date of
the
surrender of possession.
(b)
If
only
a
portion
of the Leased Premises is so taken or sold then from and after the date of
taking or sale, so
long
as Lessee shall not have exercised its Early Termination Option, Lessee
shall remain on the remaining portion of the Leased Premises, under the terms
and conditions of this Lease, provided, however, that the rental shall be
proportionately reduced to reflect the portion of the Leased Premises so
taken
or sold, subject to the terms of the Mortgage Loan.
(c)
No
condemnation or condemnation award shall prejudice the rights of either Lessor
or Lessee to recover compensation from the condemnation.
19.
Holding
Over. If
Lessee
remains in possession of the Leased Premises or any part thereof after the
expiration or earlier termination of the Term, such occupancy shall be a
tenancy
at sufferance at a Base Rent in the amount of one hundred fifty percent (150%)
of the Base Rent payable in the last month of the Term, plus all other charges
payable hereunder, and Lessee shall be responsible for any and all damages
resulting from such holding over.
20.
Lessor
Nonpayment or Nonperformance.
In the
event of Lessor's failure to pay any sum or sums or perform any obligation
which
Lessor is obligated to pay or perform and such nonpayment or nonperformance
may
result in a lien, charge or encumbrance upon the Leased Premises or interferes
with the conduct of Lessee's business in the Leased Premises, Lessee shall
have
the right, but not the obligation, to pay or perform the same to the extent
necessary to prevent any such lien, charge or encumbrance or to address any
such
interference, but only after Lessee shall have given Lessor thirty (30) days’
prior written notice of Lessee’s intention to do so and Lessor shall have failed
to cure such nonpayment or nonperformance within such thirty (30) day period
(or, as to any breach other than one that interferes with the conduct of
Lessee’s business in the Leased Premises, such longer period of time provided
that Lessor commences to cure such default within such thirty (30) day period
and diligently completes such cure to completion). Lessor shall, within thirty
(30) days after demand, reimburse Lessee for the reasonable costs and expenses
incurred by Lessee in making such payment or performing such obligation as
aforesaid, including reasonable attorneys' fees. Except if due to a bona
fide
dispute by Lessor, if Lessor fails timely to make such payment to Lessee,
Lessee
shall have the right to deduct such sums from the next installments of Base
Rent
due under this Lease.
-10-
21.
Disputes;
Payment or Performance “Under Protest.” Except
in
connection with the non-payment of rent by Lessee against which Lessee has
no
claim of set-off or abatement, in the event of an unresolved dispute between
Lessor and Lessee regarding the performance by either party of an obligation
or
condition of this Lease, as a condition precedent to the filing of litigation,
authorized representatives of Lessor and Lessee shall use reasonable efforts
to
resolve said dispute within 30 days after receipt of a default notice. In
addition, if at any time a dispute shall arise as to any sum of money to
be paid
by one party to the other under the provisions hereof or as to any work to
be
performed by either of them under the provisions hereof, the party against
whom
the obligation is asserted shall have the right, in addition to any other
rights
provided under this Lease, to make payment or perform such work “under protest”,
in which event such payment or performance shall not be regarded as voluntary
payment or performance and that party shall not be deemed to have waived
any
rights by tendering payment or performance and, to the extent a determination
is
later made that such party was not obligated to make such payment or
performance, such party shall retain a right to repayment of that portion
of
such sum or of the cost of such performance that it is determined not to
have
been obligated to tender.
22.
Mechanic's
Liens.
At all
times during the term of this Lease, Lessee shall keep the Leased Premises
free
and clear of all liens and claims of liens for labor, services, materials,
supplies, or equipment performed on or furnished to the Leased Premises at
the
direction or order of Lessee. Lessee shall discharge or cause the Premises
to be
released from any such lien or claim of lien within the lesser of (i) 60
days
after notification to Lessee of perfection or recordation of the lien or
(ii)
such period as may be required under Lessor’s mortgage. In addition, prior to
the commencement of any lienable work at the Leased Premises, Lessee shall
obtain a waiver of liens certificate binding on each contractor, subcontractor
and materialmen in a form reasonably acceptable to Lessor and Lessee shall
cause
such waiver of liens to be recorded in the applicable governmental
office.
23.
Hazardous
Materials. Lessee
shall not use or knowingly permit any third party to use any “Hazardous
Substances” (as defined below) in, on or near the Leased Premises except in
accordance with applicable laws and regulations. Lessee shall indemnify and
hold
Lessor harmless from and against any and all claims, loss, liability, judgments,
suits, actions, proceedings, costs, expenses and damages (including, but
not
limited to, reasonable attorneys’ fees) and the cost of repairs and improvements
necessary to return the Leased Premises to the physical condition existing
prior
to undertaking any activity in violation of the covenant in the preceding
sentence. As
used
herein, "Hazardous Substances" shall mean any petroleum, hazardous, toxic
or
dangerous waste, substance or material defined as such in, or for purposes
of
the Comprehensive Environmental Response, Compensation and Liability Act,
any so
called “superfund or superlien” law or any other federal, state or local
statute, law, ordinance, code, rule, regulations, order, decree or other
requirement of any governmental authority regulating, relating to, or imposing
liability or standards of conduct concerning any hazardous, toxic or dangerous
waste, substance or material as now in effect and applicable to the Premises.
This
indemnity shall survive the expiration or earlier termination of this
Lease.
24.
Miscellaneous.
(a)
Examination or review of this Lease by or on behalf of either Lessor or Lessee
shall not be construed as approval or acceptance hereof and this Lease shall
not
be effective until executed by duly authorized signatories of both Lessor
and
Lessee. Because each party has been separately represented by counsel and
has
had an adequate opportunity to review and propose revisions to drafts of
this
Lease, neither party shall assert or have the benefit of any legal doctrine
providing presumptions against the other party as a drafter of this Lease.
This
Lease may not be amended or modified except by a writing signed by Lessor
and
Lessee.
-11-
(b)
No
consent or waiver, express or implied, by Lessor or Lessee to or of any breach
of any agreement or duty to the other shall be construed as a consent or
waiver
of any other breach of the same or any other agreement or duty.
(c)
All
notices, requests and demands hereunder shall be deemed to have been given
on
the date received or the date such
receipt
is refused provided that the notice is given by hand delivered, overnight
courier, or United States mail, postage prepaid, registered or certified
mail,
return receipt requested, addressed as follows:
|
If
to Lessee:
|
DNB
First, National Association
|
|
0
Xxxxxxxxxx Xxxxxx
|
|
|
Xxxxxxxxxxx,
XX 00000
|
|
|
Attention:
Xxxxxxx X. Xxxx, President
|
|
|
With
a copy to:
|
Xxxxx
X. Xxxxxxxx, Esquire
|
|
Stradley,
Ronon, Xxxxxxx & Xxxxx, LLP
|
|
|
00
Xxxxxx Xxxxxx Xxxxxxx
|
|
|
Xxxxxxx,
XX 00000
|
|
|
If
to Lessor:
|
__________________
|
|
__________________
|
|
|
With
a copy to:
|
Xxxxx
X. Xxxxxx, Esquire
|
|
Xxxxxx
Xxxxxxx Xxxxxx Xxxxxx & Xxxxx
|
|
|
Building
640, 000 Xxxxxx Xxxxxxx
|
|
|
X.X.
Xxx 0000
|
|
|
Xxxx
Xxxx, XX 00000-0000
|
(d)
The
invalidity or unenforceability of any provision of this Lease shall not affect
or render invalid or unenforceable any other provision hereof.
(e)
This
Lease shall be construed under the internal laws of the Commonwealth of
Pennsylvania, without reference to rules of choice of law or conflicts of
law,
and by any pre-empting federal law.
(f)
This
Lease shall not be recorded in whole or in memorandum form by Lessee without
the
prior written consent of Lessor.
-12-
(g)
Lessor and Lessee represent and warrant to each other that they have not
consulted or contacted any agent, broker, or finder in connection with this
Lease. Lessor and Lessee agree to defend, indemnify and hold the other harmless
from any and all claims for compensation or commission, or any portion thereof,
in connection with this Lease by any broker, agent, or finder (other than
Broker) claiming to have dealt with the indemnifying party. The
provisions of this Section shall survive termination and any other expiration
of
this Agreement.
(h)
Time
is of the essence with regard to each and every provision of this
Lease.
--
-13-
IN
WITNESS WHEREOF, Lessor and Lessee have executed this Lease as of the day
and
year first above written.
|
Attest:
________________________________
(Assistant)
Secretary
|
Lessee:
DNB
FIRST, NATIONAL ASSOCIATION
By:
____________________________
Xxxxxxx
X. Xxxx
President
|
|
Attest:
Sign:
________________________________
Print
Name: _______________________
Title:
_______________________
|
Lessor:
________________________________
By:
________________________________
Print
Name: _______________________
Title:
_______________________
|
-14-
EXHIBIT
A
Parking
Easement
EXHIBIT
B
Insurance
Requirements
See
attached.
