AGREEMENT OF SALE
Exhibit
10 (p)
THIS
AGREEMENT OF SALE is made as of June 1, 2005, between DNB FIRST, NATIONAL
ASSOCIATION (formerly known as Downingtown National Bank), with principal place
of business at 0 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000 (the “Seller”),
and
PAPERMILL BRANDYWINE COMPANY, LLC, a Pennsylvania limited liability company
with
principal place of business at 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000
(the “Buyer”).
Background
A.
Seller
is the sole and exclusive owner in fee simple of 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
(collectively, the “Premises”).
B.
Buyer
wishes to purchase and Seller wishes to sell the Premises on the terms and
conditions hereinafter set forth.
NOW,
THEREFORE, the parties hereto, each intending to be legally bound hereby, do
mutually covenant and agree as follows:
1.
Sale.
Seller
agrees to sell, and Buyer agrees to purchase, the Premises upon the terms and
conditions of this Agreement. Notwithstanding anything herein to the contrary,
all machinery, equipment and fixtures used in Seller’s business which are not an
integral part of the Premises, now or hereafter located on the Premises, are
agreed by the parties not to constitute fixtures (whether or not physically
appended to the Premises) and such assets are not being sold to Buyer hereunder
and do not constitute part of the Premises.
2.
Purchase
Price; Deposit; Financing.
(a)
The
Purchase Price of the Premises shall be One Million Seven Hundred Thousand
Dollars ($1,700,000.00), payable in collected funds at “Settlement” (as
hereinafter defined).
(b)
Buyer
is depositing with Seller this date, in collected funds, the sum of $170,000.00
(10% of the Purchase Price) on account of part of the Purchase Price (the
“Deposit”). Seller will credit Buyer with the amount of the Deposit against the
Purchase Price at Settlement. Seller shall segregate the Deposit in a
non-interest, demand deposit account that identifies it as an escrow account
relating to this Agreement. Seller shall not be permitted or obligated to,
disburse the Deposit except upon (i) the joint written consent of Seller, of
the
one part, and Buyer or Buyer’s legal counsel, of the other part, or (ii) court
order.
(c)
Buyer
shall not be obligated to complete Settlement under this Agreement if Seller
does not provide Buyer with purchase money mortgage financing (the “Mortgage
Loan”) on terms and conditions of a loan commitment (the “Loan Commitment”)
consistent with the term sheet attached hereto as Exhibit
A.
Buyer
and Seller mutually acknowledge and agree that
the
foregoing provisions for the Mortgage Loan are material inducements to each
party to enter into this Agreement. Notwithstanding any other provision of
this
Agreement: (i) a failure to close on the Mortgage Loan due to a material breach
by Seller of the terms or conditions of the Loan Commitment shall be deemed
a
“Seller Default” (as hereinafter defined); (ii) a failure to close on the
Mortgage Loan due to a material breach by Buyer of the terms or conditions
of
the Loan Commitment shall be deemed a “Buyer Default” (as hereinafter defined).
A failure to close on the Mortgage Loan that is due to neither a material breach
by Seller nor a material breach by Buyer of the terms or conditions of the
Loan
Commitment shall not be a Buyer Default or a Seller Default but shall be deemed
a termination of this Agreement by mutual agreement and in such case Seller
shall refund the Deposit to Buyer, without interest, and thereupon the parties
shall have no further liability to each other whatsoever.
3.
Settlement.
Settlement hereunder (“Settlement”) shall be held at the offices of Stradley,
Ronon, Xxxxxxx & Young, LLP, 00 Xxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, XX 00000 or
such other place as the parties may mutually designate, at a date and time
mutually agreeable to the Buyer and Seller, but in any event on or before the
date that is the earlier of (i) fifteen (15) days following issuance of final,
unappealable development approvals for the proposed development of the adjoining
property owned by Papermill Brandywine Company, LLC, and (ii) December 1, 2005
(the “Settlement Date”).
4.
Title.
(a)
Seller shall convey good and marketable title to the Premises, free and clear
of
all liens, restrictions, easements, encumbrances, leases, tenancies and other
title objections, except for (i) existing building restrictions of record,
(ii)
ordinances, (iii) easements of record, (iv) privileges and rights of service
companies, (iv) facts which an accurate survey may disclose, (v) other matters
of record or conditions visible upon the ground, and (vi) the other specific
exceptions or matters, if any, listed on Schedule
4
attached
hereto and made part hereof, or insurable as aforesaid at ordinary rates by
a
reputable title insurance company licensed to sell title insurance in
Pennsylvania (“Title Company”) on an ALTA Owner’s Policy. Seller shall be
responsible for removing all mortgages, liens and other monetary encumbrances
granted by Seller that encumber the Premises.
(b)
Title
to the Premises shall be conveyed by Seller’s special warranty deed, subject as
aforesaid (the “Deed”).
(c)
In
the event title to the Premises cannot be conveyed at Settlement as described
in
subsection (a) of this Section, Buyer shall have the option of (i) terminating
this Agreement by written notice to Seller, and in such case Seller shall refund
the Deposit to Buyer, without interest, and thereupon the parties shall have
no
further liability to each other whatsoever, or (ii) taking such title as Seller
can convey without abatement of the Purchase Price.
(d)
Seller shall be required to comply with all notices of violation of law or
municipal ordinances, orders or other requirements imposed by any governmental
entity, agency, or department having authority as to the Premises, which are
sent or delivered prior to the date of this Agreement. Buyer shall be required
to comply with all notices of violation of law or
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municipal
ordinances, orders or other requirements imposed by any governmental entity,
agency, or department having authority as to the Premises, which are sent or
delivered on or after to the date of this Agreement.
5.
Seller’s
Warranties, and Representations. Seller
makes no representation or warranty regarding the title to or condition of
the
Premises, except as expressly set forth herein, and Buyer agrees to accept
the
Premises, and all improvements, fixtures, equipment, and systems therein, in
their present “AS
IS”
condition, subject to the condition for delivery of title at Settlement provided
elsewhere in this Agreement. Buyer acknowledges that Seller has afforded Buyer
free, complete and unrestricted access for purposes of conducting due diligence
to the extent Buyer wishes to do so. Notwithstanding the foregoing, Seller
represents and warrants to Buyer that:
(a)
Seller is a national banking association duly organized, validly existing and
in
good standing under the laws of the United States of America and is qualified
to
do business in the Pennsylvania. Seller has full power and authority to own
its
assets, to carry on its business as and where such business is now conducted
and
to execute, deliver and perform this Agreement and all other documents and
agreements contemplated hereby and to fully consummate the transaction
contemplated hereby upon the terms and conditions herein provided.
(b)
The
execution, delivery and performance of this Agreement and all other documents
required to effect the transactions contemplated hereby, and the consummation
of
the transactions contemplated hereby and thereby have been duly authorized
and
approved by all necessary corporate action as required pursuant to the Articles
of Association or Bylaws of Seller. This Agreement and any other document or
instrument contemplated hereby, after execution and delivery by Seller to Buyer,
will constitute valid and binding obligations of Seller enforceable in
accordance with their respective terms.
(c)
The
zoning classification of the Premises is C-1, under which the legal uses are
“General Commercial,” and that Seller has not received any notice of any uncured
violation of any building, safety, fire or housing ordinances with respect
to
the Premises or any other law or municipal ordinance, order, or requirement
from
any governmental entity, agency, or department having authority as to the
Premises.
(d)
To
the best of Seller’s knowledge, there are no investigations, actions, claims,
lawsuits, or proceedings pending relating to the Premises in any court or before
any court or by any federal, state or local governmental agency which would
have
a material adverse effect on the transactions contemplated hereby or adversely
affect Seller’s ability to perform its obligations under this
Agreement.
(e)
There
are no pending or proposed eminent domain or condemnation proceedings affecting
the Premises as to which Seller has received notice or has
knowledge.
(f)
There
are no pending or proposed assessments for public improvements against the
Premises as to which Seller has received notice or has knowledge.
(g)
Seller has received no notice from any insurance carrier for the Premises
requiring or notifying Seller as to the need to undertake any repairs,
alterations or construction or to take any action on or with respect to the
Premises.
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(h)
Access to a public road or street may require issuance of a highway occupancy
permit from the Department of Transportation or other approvals from the Borough
of Downingtown.
(i)
Seller has not burned, discarded, discharged, dumped, emitted, exhausted,
released, spilled or otherwise disposed of any Hazardous Substances (hereinafter
defined) on the Premises, or knowingly permitted any Hazardous Substances to
be
burned, discarded, discharged, dumped, emitted, exhausted, released, spilled
or
otherwise disposed of on the Premises. Seller has no knowledge that any
Hazardous Substances are located at the Premises. Seller has received no notice
or demand from any governmental authority or private party requiring the removal
of any Hazardous Substances from the Premises. Seller has no knowledge of any
underground storage tanks under the Premises. 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. The building and all other
improvements and fixtures constituting any portion of the Premises do not
contain any hazardous building materials or toxic substances including, without
limitation, asbestos or any other substance containing asbestos, mold,
lead-based paints or PCBs.
(j)
Utility services and facilities necessary for the operation of the Premises
as
it is now being operated, are installed and connected.
(k)
The
systems (including, but not limited to, HVAC, plumbing, electrical and
mechanical), will be in the same condition on the date of Settlement as they
are
on the date of this Agreement, reasonable wear and tear, and damage by insured
casualty or condemnation, excepted.
(l)
The
Premises constitutes less than 50% of the property owned by Seller in the
Commonwealth of Pennsylvania.
(m)
All
leases, contracts, guarantees, warranties, financial statements, operating
statements and all other books and records or other documentation delivered
to
Buyer pursuant to this Agreement or in connection with the execution hereof
are,
to the best of Seller’s knowledge, true, complete and correct copies. Within ten
(10) days of the date hereof, Seller will, or shall have delivered to Buyer,
all
documents and information relating to the Premises in Seller’s possession that
have or may have any material economic impact on the transaction contemplated
hereby or any material impact on the operation and condition of the
Premises.
(n)
Except for the Lease, there are not now, nor will there be at the Settlement,
any contracts, leases or agreements (including, without limitation service
contracts and/or management agreements), written or oral, relating to the
Premises, to which Seller is a party.
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(o)
On
the date of Settlement, all leasing, brokerage or other commissions due prior
to, on or after the date of Settlement in connection with any leases executed
prior to the date of Settlement will have been paid and Buyer shall not be
required to assume any such obligation to pay any leasing, brokerage or other
commissions.
Each
of
the representations and warranties set forth above or made in writing pursuant
to this Agreement, shall be true and correct as of the date hereof and as of
the
date of Settlement, and shall be deemed to be material. The representations
and
warranties set forth in Sections 5(a), (b), (g), (l), (m), (n) and (o) shall
survive the execution and delivery of this Agreement and Settlement hereunder,
but the other representations and warranties set forth in this Section shall
be
deemed to expire or be waived upon Buyer’s completion of Settlement.
6.
Buyer’s
Warranties, and Representations. Buyer
represents and warrants to Seller that:
(a)
Buyer
is a business corporation duly organized, validly existing and in good standing
under the laws of the Commonwealth of Pennsylvania and is qualified to do
business in the Pennsylvania. Buyer has full power and authority to own its
assets, to carry on its business as and where such business is now conducted
and
to execute, deliver and perform this Agreement and the Lease and all other
documents and agreements contemplated hereby and to fully consummate the
transaction contemplated hereby upon the terms and conditions herein
provided.
(b)
The
execution, delivery and performance of this Agreement and all other documents
required to effect the transactions contemplated hereby, and the consummation
of
the transactions contemplated hereby and thereby have been duly authorized
and
approved by all necessary organizational action as required pursuant to the
Certificate of Organization and Operating Agreement of Buyer. This Agreement,
the Lease and any other document or instrument contemplated hereby, after
execution and delivery by Buyer to Seller, will constitute valid and binding
obligations of Buyer enforceable in accordance with their respective
terms.
(c)
To
the best of Buyer’s knowledge, there are no investigations, actions, claims,
lawsuits, or proceedings pending relating to Buyer in any court or before any
court or by any federal, state or local governmental agency which would have
a
material adverse effect on the transactions contemplated hereby or adversely
affect Buyer’s ability to perform its obligations under this Agreement or the
Lease.
7.
Operations
Prior to Settlement.
Between
the date of this Agreement and the date of Settlement:
(a)
Without expense to Buyer, Seller shall maintain the Premises in its present
condition, ordinary wear and tear excepted.
(b)
Seller shall permit Buyer and Buyer’s representatives access to all portions of
the Premises from the date hereof until Settlement during normal business hours
upon reasonable prior notice from Buyer to Seller, for the purpose
of
inspecting, measuring, appraising, testing and making surveys of the Premises.
Buyer shall not unreasonably interfere with any ongoing business, activities
or
operations of Seller or its agents on the Premises and shall restore any area
on
the Premises disturbed in the course of Buyer's testing to the conditions
existing prior to any tests
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conducted
by Buyer, and shall indemnify Seller against any costs, expenses or damages
incurred by Seller as a result of such expenses. The
provisions of this Section shall survive Settlement and any other termination
of
this Agreement.
(c)
Seller
shall
not enter into any contract, lease or other agreement for, on behalf of, or
affecting the Premises which cannot be terminated without charge, cost, penalty
or premium.
(d)
Seller shall not create or knowingly permit any liens, easements, encumbrances
or other clouds on the title to the Premises to be created
hereafter.
(e)
Seller shall promptly deliver to Buyer copies of any written notice received
by
Seller regarding all actions, suits or other proceedings affecting title to
the
Premises, or the use, possession or occupancy thereof, or which may adversely
affect the Premises.
(f)
Seller shall be entitled, but not obligated, to relocate or remove the generator
located on the Premises, but if it does so, it shall be at Seller’s
expense.
8.
Items
to be Delivered at Settlement.
(a)
At
Settlement hereunder, Seller shall deliver to Buyer the following:
(i)
The
Deed to the Premises duly executed and acknowledged by Seller, and in proper
form for recording, for recording by the title company.
(ii)
A
Certificate of the Secretary or Assistant Secretary of Seller certifying a
true
and correct copy of the Resolution of the Board of Directors of Seller approving
and authorizing the execution and performance of this Agreement by Seller and
other documents at Settlement.
(iii)
Such affidavits and other documents as may be reasonably required by the title
insurer in order to complete Settlement and insure Buyer’s title.
(v)
Duly
executed certificates required by Section 1445 of the Internal Revenue Code
that
Seller is not a foreign person within the meaning of said Section
1445.
(b)
At
Settlement hereunder, the Buyer shall deliver to Seller the
following:
(i)
The
unpaid balance of the Purchase Price due under Section 2 of this Agreement,
in
collected funds.
(ii)
Such
affidavits and other documents as may be reasonably required by the title
insurer in order to complete Settlement and insure Buyer’s title.
(c)
At
and subject to Settlement hereunder, Seller and Buyer shall execute and deliver
to each other a lease, with Buyer as landlord and Seller as tenant, covering
the
Premises, in the form attached hereto as Exhibit
B
and made
part hereof (the “Lease”)
and a
Parking
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Easement
Agreement among Buyer, Seller and Papermill Brandywine Company, LLC in the
form
attached as Exhibit A to the Lease (the “Parking Easement
Agreement”).
9.
Conditions
Precedent.
(a)
Seller’s obligations to sell the Premises and to perform its other obligations
are subject to the satisfaction of the following conditions as of the
Settlement:
(i)
Payment to Seller of the Purchase Price referred to in Section 2 of this
Agreement.
(ii)
Buyer’s execution and delivery to Seller of all agreements and documents
required of Buyer to be executed and delivered at Settlement pursuant to this
Agreement.
(iii)
Buyer shall have performed all of their obligations and agreements contained
in
this Agreement to be performed and complied with by Buyer prior to
Settlement.
(iv)
Buyer shall be prepared and able to accept and complete closing on the Mortgage
Loan in accordance with the terms of the Loan Commitment, but Seller shall
not
be entitled to assert this condition if Buyer’s unwillingness to accept and
close on the Mortgage Loan is due to Seller’s breach of any of the terms or
conditions of the Loan Commitment.
(b)
Buyer’s obligations to purchase the Premises and to perform its other
obligations are subject to the satisfaction of the following conditions as
of
the Settlement date.
(i)
Delivery by Seller to Buyer of the Deed in accordance with this
Agreement.
(ii)
Seller’s execution and delivery to Buyer of all agreements and documents
required of Seller to be executed and delivered at Settlement pursuant to this
Agreement.
(iii)
All
representations and warranties of Seller contained in this Agreement shall
be
true and in all material respects at Settlement and Seller shall have performed
and complied with all of its obligations under this Agreement which are to
be
performed or complied with by Seller prior to Settlement.
(iv)
Seller shall be prepared and able to fund the Mortgage Loan to Buyer in
accordance with the terms of the Loan Commitment, but Buyer shall not be
entitled to assert this condition if Seller’s unwillingness to fund the Mortgage
Loan is due to Buyer’s breach of any of the terms or conditions of the Loan
Commitment.
(v)
Papermill Brandywine Company, LLC shall have received final and unappealable
development approval from Downingtown Borough for the proposed development
of
the adjoining property owned by Papermill Brandywine Company, LLC.
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10.
Fire
or Other Insurable Casualty.
If at
any time after the date of this Agreement and prior to the date of Settlement
any portion of the Premises is destroyed or damaged as a result of fire or
any
other casualty whatsoever, the parties shall nevertheless be obligated to
complete Settlement and enter into the Lease. Seller agrees to maintain its
present insurance on the Premises until Settlement. The proceeds of any
insurance paid or payable with respect to a casualty occurring hereafter to
the
Premises shall be applied in the manner provided in the Lease.
11.
Eminent
Domain.
Seller
covenants and warrants that Seller has not heretofore received notice of any
condemnation proceeding or other proceedings in the nature of eminent domain
in
connection with the Premises, nor, to the best of Seller’s knowledge, is any
such action proposed, threatened or anticipated. In the event Seller or Buyer
receives any notice of condemnation proceedings, or other proceedings in the
nature of eminent domain, it will forthwith send a copy of such notice to the
other party, and both parties shall have the right, jointly, to negotiate for,
to agree to or to contest all offers and awards. If the entire Premises is
taken
by a notice delivered prior to Settlement, this Agreement shall be terminated
and Seller shall retain exclusive rights to any awards or damages. If less
than
all of the Premises is taken by a notice delivered prior to Settlement, Buyer
shall have the option to: (i) terminate this Agreement (in which event the
Deposit shall be paid to Buyer), or (ii) complete the Settlement hereunder,
in
which event Buyer shall pay the full Purchase Price, and Seller will assign
all
of its rights in any awards (other than relocation damages, which Seller shall
be entitled to claim and retain) to Buyer; provided, however, that Seller shall
have an option by providing written notice to Buyer prior to Buyer being
obligated to make the foregoing election of (i) or (ii) above to not enter
into
the Lease.
12.
Apportionments
of Transfer Taxes and other Expenses.
(a)
There
shall be no apportionment of, real estate taxes, water and sewer rents, gas
and
electricity, rents or license fees, if any, or any other item that is otherwise
customarily properly apportionable charges since Seller shall remain liable
for
such payments to the extent provided under the Lease.
(b)
All
real estate transfer taxes shall be borne equally by Buyer and Seller and paid
by Seller or the title company.
(c)
Buyer
shall pay the costs of recording the Deed and any expenses and fees of
Settlement, except that each party will pay its own legal fees and other
expenses relating to its performance of the terms and conditions of this
Agreement.
(d)
Buyer
shall be responsible for paying the costs of any inspections and tests, and
any
surveys required by the Buyer, its mortgagee or title insurer.
13.
1031
Exchange.
Seller
may elect, upon notice to Buyer given prior to the Settlement, to exchange
title
in the Premises for other property of like kind and qualifying use within the
meaning of Section 1031 of the Internal Revenue Code of 1986, as amended, and
the Regulations promulgated thereunder (the "1031 Exchange Transaction"). In
order to facilitate the 1031 Exchange Transaction, Seller may retain the
services of a Qualified Intermediary within the meaning of Treas. Reg.
1.1031(k)-1(g)(4), which shall provide services to Seller in
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connection
with Seller's 1031 Exchange Transaction. Seller expressly reserves the right
to
assign its rights under this Agreement to a Qualified Intermediary on or before
the Settlement Date. However, this assignment in no way relieves Seller of
any
obligations or duties under this Agreement. By executing this Agreement, Buyer
agrees to cooperate with Seller and the Qualified Intermediary, at no additional
cost to Buyer, to effect the 1031 Exchange Transaction and to execute and
deliver any and all documents that reasonably may be required to effect the
1031
Exchange Transaction.
14.
Default;
Remedies.
(a)
If
Buyer violates or fails to fulfill or perform any of the terms or conditions
of
this Agreement applicable to it (a “Buyer Default”), Seller may terminate this
Agreement and receive the Deposit, and shall have any and all rights and
remedies at law or in equity including, without limitation, the remedy of
specific performance to the extent available under applicable law or at
equity.
(b)
If
Seller violates or fails to fulfill or perform any of the terms or conditions
of
this Agreement applicable to it (a “Seller Default”), Buyer may terminate this
Agreement and receive a return of the Deposit, and shall have any and all rights
and remedies at law or in equity including, without limitation, the remedy
of
specific performance
to the
extent available under applicable law or at equity.
(c)
Buyer
and Seller hereby acknowledge that the foregoing are fair and reasonable
estimates of Seller's and Buyer’s respective damages on a default by the other,
which may be incapable of precise determination, constitutes the parties'
present reasonable estimate of the same, and not a penalty.
15.
Notices.
All
notices, requests and demands hereunder shall be deemed to have been given
by a
party to the other party when hand delivered or deposited in the United States
mail, postage prepaid, registered or certified mail, return receipt requested,
addressed as follows:
If
to Seller:
|
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
|
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If
to Buyer:
|
Papermill
Brandywine Company, LLC
|
000
Xxxx Xxxxxxxxx Xxxxxx
|
|
Xxxxxxxxx,
XX 00000
|
|
Attn:
Xxxxxx Xxxxxxx, President
|
|
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
|
16.
Brokerage
Commissions.
The
parties warrant to each other that neither has dealt with any broker or other
intermediary with respect to this transaction in any manner that would create
a
right to a fee or commission. If any broker or other intermediary claims a
fee,
commission or other compensation with respect to this transaction, the party
alleged to have created the right to such commission or compensation shall
be
responsible for defending against such commission or compensation claim(s)
and
shall indemnify and hold the other party harmless of, from and with respect
to
any such claim(s), including the cost of defense thereof. The provisions of
this
Section shall survive Settlement and any other termination of this
Agreement.
17.
Miscellaneous.
(a)
This
Agreement together with the Lease, contains the entire agreement between Seller
and Buyer, superseding and voiding any and all prior agreements, both oral
and
written, relating to the Premises, and there are no other terms, obligations,
covenants, representations, statements, or conditions, oral or otherwise, of
any
kind whatsoever. Upon the signing of this Agreement, the confidentiality
agreement previously entered into between Seller and Papermill Brandywine
Company, LLC shall not apply to the terms and conditions of this Agreement,
the
Lease, the Parking Easement Agreement or any exhibit to either of them, or
the
terms and conditions of any of the foregoing.
(b)
Examination or review of this Agreement by or on behalf of either party shall
not be construed as approval or acceptance hereof and this Agreement shall
not
be effective until executed by duly authorized signatories of both parties.
Because each party has been separately represented by counsel and has had an
adequate opportunity to review and propose revisions to drafts of this
Agreement, neither party shall assert or have the benefit of any legal doctrine
providing presumptions against the other party as a drafter of this Agreement.
(c)
This
Agreement may not be assigned by Buyer, nor may Buyer’s performance of its
obligations delegated, by operation of law or otherwise, without the prior
written approval of Seller; provided, however, that immediately prior to
Settlement, Buyer shall have the right to assign its rights under this Agreement
to an entity under the common control as Buyer, subject to the following
conditions: (i) Buyer shall notify Seller in writing of such assignment and
shall provide Seller with a complete copy of any assignment instruments or
agreements; (ii) the assignee shall be subject to all of the terms and
conditions of this Agreement, including without limitation the obligation to
enter into the Lease and the Parking Easement Agreement on the
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terms
and
conditions set forth in this Agreement; and (iii) Seller in its capacity as
mortgage lender shall have been given sufficient notice of the name and
ownership of the assignee, together with such further information as Seller
may
reasonably request, in order to facilitate Seller’s review, as mortgage lender,
of the impact of the identity and ownership of the assignee upon the credit
of
the proposed mortgage and to give Seller, as mortgage lender, reasonable time
to
prepare mortgage loan documents in the assignee’s name (Seller’s right to
approve or disapprove the assignee under the Mortgage Commitment shall not
be
restricted by this provision but shall be governed by the terms of the Mortgage
Commitment).
(d)
This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
(e)
The
parties agree that time of Settlement is of the essence of this Agreement,
unless extended by mutual consent.
(f)
No
change, amendment, or modification shall be made to this Agreement unless in
writing and then only on condition that the party to be bound thereby shall
have
executed such instrument.
(g)
This
Agreement may be executed in multiple counterparts, and all of such counterparts
shall be deemed part of the same agreement and each an original hereof. It
shall
not be necessary for each party to sign both counterparts, so long as each
party
has executed at least one counterpart, and delivered a counterpart signed by
such party to the other. Execution of a counterpart may be effected by delivery
of a facsimile copy of an executed counterpart.
(h)
This
Agreement shall be construed and enforced in accordance with and governed by
the
internal laws of the Commonwealth of Pennsylvania, without reference to rules
of
choice of law or conflict of law, and by any pre-empting federal
law.
(i)
This
Agreement shall not be recorded in the Office of the Recorder of Deeds of
Xxxxxxx County or in any other office or place of public record.
[The
balance of this page is intentionally left blank.]
-11-
IN
WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby,
have
caused this Agreement to be duly executed as of the day and year first above
written.
Attest:
________________________________
(Assistant)
Secretary
|
DNB
FIRST, NATIONAL ASSOCIATION
By:
____________________________
Xxxxxxx
X. Xxxx
President
|
Witness:
Sign:
_____________________________
Print
Name: _______________________
Title:
_______________________
|
PAPERMILL
BRANDYWINE COMPANY, LLC,
a
Pennsylvania limited liability company
By:
________________________________
Print
Name: _______________________
Title:
_______________________
|
-12-
EXHIBIT
A
Mortgage
Loan Commitment Letter
EXHIBIT
B
Form
of Lease
AGREEMENT
OF LEASE
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.
(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.
-2-
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.
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.
-3-
(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.
(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
-4-
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;
(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),
-5-
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.
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
-6-
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.
(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
-7-
(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.
(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
-8-
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.
(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
-9-
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.
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
-10-
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.
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.
-11-
(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.
(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.
IN
WITNESS WHEREOF, Lessor and Lessee have executed this Lease as of the day and
year first above written.
-13-
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
Prepared
By:
Xxxxxx
Xxxxxxx Xxxxxx Xxxxxx & Xxxxx, P.C.
000
Xxxxxx Xxxxxxx Xxxxxxxx 000
Xxxx
Xxxx, XX 00000-0000
Attention:
Xxxxx X. Xxxxxx, Esquire
Telephone:
(000) 000-0000
Return
To:
Xxxxxx
Xxxxxxx Xxxxxx Xxxxxx & Xxxxx, P.C.
000
Xxxxxx Xxxxxxx Xxxxxxxx 000
Xxxx
Xxxx, XX 00000-0000
Attention:
Xxxxx X. Xxxxxx, Esquire
Telephone:
(000) 000-0000
UPI
Number: _________________
PARKING
EASEMENT AGREEMENT
THIS
PARKING EASEMENT AGREEMENT
(the
“Agreement”)
is made
this ____ day of ________________, 2005 by and among DNB
FIRST, NATIONAL ASSOCIATION with
an
address of 0 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxx 00000 (together with
its successors and assigns as owners of the DNB Property, “DNB”);
_____________________, a _________________, with an address of
c/x
Xxxxxxx Contractors, Inc., 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx
00000 ("________");
and
PAPERMILL BRANDYWINE COMPANY, LLC,
a
Pennsylvania limited liability company, with an address of c/x Xxxxxxx
Contractors, Inc., 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000
(“Papermill”).
WITNESSETH
A. DNB
is
the owner of certain property in the Borough of Downingtown, County of Xxxxxxx,
Commonwealth of Pennsylvania, identified as tax parcel number
____________________ and described more fully on Exhibit
“A”
attached
hereto and made a part hereof (the "DNB
Property").
B. ________________
is the owner of certain property in the Borough of Downingtown, County of
Xxxxxxx, Commonwealth of Pennsylvania, identified as tax parcel numbers
1108004900, 1108005000 and 1108005001, and described more fully on Exhibit
“B"
attached
hereto and made a part hereof (the "DNB
Operations Property").
Pursuant to a certain Lease dated of even date herewith (the "DNB
Lease"),
DNB is
a tenant of the DNB Operations Property subject to the terms and conditions
more
specifically set forth therein.
C. Papermill
is the owner of certain property in the Borough of Downingtown, County of
Xxxxxxx, Commonwealth of Pennsylvania, identified as tax parcel
number
____________________
and described more fully on Exhibit
“C"
attached
hereto and made a part hereof (the "Papermill
Property").
D. DNB,
____________ and Papermill desire to subject the parking areas (collectively,
the "Parking
Areas")
on the
DNB Property, the DNB Operations Property and the Papermill Property as shown
on
the parking plan attached hereto as Exhibit
"D"
(the
"Parking
Plan")
to the
terms and conditions of this Agreement.
NOW,
THEREFORE, in
consideration of the foregoing recitals, which are true and correct and
incorporated herein by reference, and the covenants and conditions set forth
herein, as well as Ten Dollars ($10.00), the receipt and sufficiency of which
is
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
-
1. GRANT
OF PARKING EASEMENT.
Subject
to the terms and conditions set forth in this Agreement, each of DNB,
___________ and Papermill hereby grant and convey to each of the other parties,
and their successors and assigns, as well as their respective invitees, agents,
employees, tenants, occupants and licensees, an easement over the Parking Areas
on their respective parcels to be used as follows:
A. Parking
Easement to DNB.
DNB and
its invitees, agents, employees, tenants, occupants and licensees shall have
the
right to use:
(i) |
those
twenty (20) certain parking spaces identified on the Parking Plan
as the
"Bank Parking Spaces" (the "Bank
Parking Spaces")
exclusively during the hours of 7:00 a.m. through 7:00 p.m. on Monday
through Friday of each week during the term hereof, provided,
however,
that upon written notice to be given from time to time hereafter
by DNB to
______ and Papermill (an “Adjustment
Notice”),
DNB’s exclusive rights to such twenty (20) spaces shall extend to the
hours of 7:00 a.m. through 7:00 p.m on Saturday and Sunday (or such
portions of those hours on either or both days) as DNB may designate
in an
Adjustment Notice) each week during the term hereof after the Adjustment
Notice as DNB may expressly designate in any Adjustment Notice (DNB’s
right is sometimes referred to herein as the “Adjustment
Option”),
DNB having the right to revise the scope of the Adjustment Option
within
the aforesaid hours on Saturday and/or Sunday by one or more further
Adjustment Notices; and
|
(ii) |
until
the expiration or earlier termination of the DNB Lease, as to those
thirty-seven (37) certain parking spaces identified on the Parking
Plan as
the "Operations Center Parking Spaces" (the "Operations
Center Parking Spaces"),
(a) all 37 Operations Parking Center Spaces exclusively during the
hours
of 6:00 a.m. through 7:00 p.m. on Monday through Friday of each week
during said period, and (b) of those 37 spaces, the 7 spaces adjoining
the
building described as “DNB Op Ctr” on Exhibit B, and the 5 additional
spaces nearest to the building described as “2 Story Stone Dwelling” on
Exhibit B, for a total of 12 spaces (the “Core
Op Center Spaces”),
exclusively during the additional hours of 7:00 p.m. through midnight
on
Monday through Friday of each week during said
period.
|
-2-
B. Parking
Easement to .
Upon
the expiration or earlier termination of the DNB Lease, any and all of the
Operations Center Parking Spaces shall be for the use and benefit of
__________________ and its invitees, agents, employees, tenants, occupants
and
licensees during the hours of 9:00 a.m. through 5:00 p.m. on Monday through
Friday of each week during the remainder of the term of this
Agreement.
C. Parking
Easement to Papermill.
Papermill and its invitees, agents, employees, tenants, occupants and licensees
shall have the right to use: (i) exclusively, those certain parking spaces
identified on the Parking Plan as the "Papermill Parking Spaces" at all times
during the term hereof; (ii) the Bank Parking Spaces at all times during the
term hereof except during such times that such spaces are granted exclusively
to
DNB under Section
1.A(i)
hereinabove; and (iii) the Operations Center Parking Spaces at all times during
the term hereof except during such times that such spaces are granted
exclusively to DNB under Section
1.A(ii)
hereinabove or ______________ under Section
1.B
hereinabove.
2. SIGNAGE.
Each
party shall have the right, at Papermill's sole cost and expense, to place
signage on any of the parking spaces in the Parking Areas indicating the parking
rights granted herein. Any such signage shall be approved by the other parties
to this Agreement (such approval not to be unreasonably withheld, conditioned
or
delayed), and shall be in accordance with all laws, codes and
regulations.
3. RECONFIGURATION
OF PARKING AREAS; ACCESS EASEMENT; GENERATOR EASEMENT.
A.
Papermill shall, at its sole cost and expense, but subject to all laws, codes
and regulations, perform the following work to the Parking Areas: (i) relocate
the emergency generator currently located on the DNB Property (the “Generator”)
to the
location indicated on the Parking Plan and install underground conduits from
such generator at such new location to the present location of its connection
with the building on the DNB Property (the “Conduits”)
in a
manner that preserves continuous backup generator capacity; (ii) remove all
entrances except the three (3) existing entrances from Brandywine Avenue to
the
Parking Area that are presently located on the DNB Property, the DNB Operations
Property and the Papermill Property , as shown on the Parking Plan; (iii) alter
the layout of the Parking Areas to be in accordance with the Parking Plan,
but
in a manner that shall not materially interfere with DNB’s and its invitees’ use
of the DNB Property or the DNB Operations Property and shall be coordinated
with
DNB; (iv) repair any damage to the Parking Areas; (v) install and plant the
curbs and landscaping as shown on the Parking Plan; and (vi) install lighting
to
the Parking Areas as reasonably determined by Papermill and required by any
governmental authorities.
-3-
B.
Papermill and ________, for themselves and their successors and assigns, grant
and convey to DNB, its successors, assigns as owners of the DNB Property, and
any tenants of the DNB Property (“DNB
Parties”),
a
non-exclusive, right and easement, for the term of this Agreement, over the
driveways and drive-aisles now or hereafter located on the Papermill Property
and the DNB Operations Property, for pedestrian and vehicular access, ingress
and egress for the DNB Parties and their invitees to and from: (i) Brandywine
Avenue; and (ii) to Xxxxxxx Xxxxxxx (Xxxxxxxxxxxx Xxxxx Xxxxx 00) but only
to
the extent that the Papermill Property now or hereafter has access thereto
from
time to time.
C.
Papermill, for itself and its successors and assigns, grants and conveys to
DNB,
its successors, assigns as owners of the DNB Property, an exclusive, right
and
easement, for the term of this Agreement, to maintain the Generator and Conduits
together with all related existing switchgear, transformers, distribution
panels, circuit breakers, related cables, wires, xxxx duct, controls, conduits
and all other necessary equipment, and any replacements thereto (i) at their
present locations until relocated by Papermill pursuant to subsection A of
this
Section, and (ii) thereafter at the location shown on the Parking Plan; together
with the right to maintain, repair and replace the same from time to time at
the
expense of the owner of the DNB Property.
D.
Until
the expiration or earlier termination of the DNB Lease, Papermill shall not
disturb the existing generator that serves the DNB Operations Property, or
any
related equipment, without the prior written consent of DNB, which consent
shall
not be unreasonably withheld provided any disturbance shall be at Papermill’s
expense and shall make accommodation for continuous backup generator capacity.
4. TERM.
Except
as otherwise set forth herein, the term of this Agreement and the rights granted
herein shall commence on the date hereof and shall continue for a period of
ninety-nine (99) years.
5. MAINTENANCE
AND USE OF PARKING AREAS GENERALLY.
A.
Papermill shall be responsible for maintaining, repairing, replacing, lighting
and removing snow and ice from the Parking Areas (“Parking Area Work”) in a
commercially reasonable manner. The costs of Parking Area Work (“Parking Area
Costs”) shall be shared, and reimbursed (within thirty (30) days of receipt of
an invoice for same) to Papermill upon completion of the applicable Parking
Area
Work, by the owners of the DNB Operations Property from time to time and the
owners of the DNB Property from time to time in respective proportions (each,
a
“Percentage Share”) of the Parking Area Costs, expressed as a percentage, equal
to a fraction (i) the numerator of which is the product of (A) the number of
spaces that _________ or DNB, respectively has exclusive rights to use at the
time the Parking Area Work is done, multiplied by (B) the total number of hours
each week that ________ or DNB, respectively, has such rights at the time the
Parking Area Work is done, and (ii) the denominator of which is the product
of
(A) the total number of parking spaces initially
-4-
established
in the Parking Areas (151), multiplied by (B) the total number of hours in
a
week (168). For example, if during the period of reference DNB has exclusive
rights to 20 parking spaces for a total of 12 hours a day, Monday to Friday
(5
days a week), DNB’s Percentage Share shall be calculated as:
(20
x 60)
/ (151 x 168) = 1200 / 25,368 = 4.73%
B.
DNB
and its successors and assigns as owners of the DNB Property, and their tenants
shall have the right, as needed on an occasional basis at any time, to park
in
any available spaces in the Parking Areas.
6. NO
INTERFERENCE WITH PARKING AREAS.
None of
the parties hereto shall, at any time hereafter, build, install, construct,
plant or locate any temporary or permanent buildings or structures or
landscaping that would in any way interfere with the rights granted pursuant
to
this Agreement. In the event any person or entity uses any of the Parking Areas
in violation of this Agreement, any party may, at its sole cost and expense,
arrange for the towing of the vehicle violating this Agreement; provided,
however, that the party arranging for such towing shall indemnify and hold
each
of the other parties hereto harmless from and against any liability, cost or
expense (including reasonable attorneys' fees) resulting from such
towing.
7. -INDEMNIFICATION.
Each
party hereto shall indemnify, defend and hold the other parties hereto harmless
from and against any liability, cost or expense (including reasonable attorneys'
fees) incurred by reason of injury to persons or damage to property arising
out
of or in connection with the use and enjoyment of the Parking Areas by such
party (or its agents, employees or contractors), except for such liability,
cost
or expense caused by the negligence of the otherwise indemnified party, or
their
respective agents, employees or contractors.
8. -RECORDING.
This
Agreement shall be recorded in the Office of the Recorder of Deeds for Xxxxxxx
County, Pennsylvania.
9. GOVERNING
LAW.
This
Agreement shall be governed by the laws of the Commonwealth of
Pennsylvania.
10. -ENTIRE
AGREEMENT.
This
Agreement contains the entire Agreement among the parties regarding the
transactions described herein. This Agreement may be modified by a written
agreement executed by those parties whose rights are affected thereby.
11. BINDING
EFFECT.
This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto, and their respective successors and assigns. The covenants, restrictions
and obligations set forth herein shall be covenants running with the
land.
12. COUNTERPARTS.
This
Agreement may be executed in counterparts, each of which shall be considered
an
original and all of which taken together shall constitute one and the same
agreement.
-5-
-
SIGNATURE PAGE TO FOLLOW -
-6-
IN
WITNESS WHEREOF,
the
parties have executed this Agreement on the date first written
above.
DNB
FIRST, NATIONAL ASSOCIATION
By:_______________________________
Name:_____________________________
Title:______________________________
_____________________________________
By:_______________________________
Name:_____________________________
Title:______________________________
PAPERMILL
BRANDYWINE COMPANY, LLC,
a
Pennsylvania limited liability company
By:________________________________
Xxxxxx
Xxxxxxx, Managing Member
--
-7-
COMMONWEALTH
OF PENNSYLVANIA
:
:
SS.
COUNTY
OF :
On
this
____ day of ______________, 200__, before me, a notary public, the undersigned
officer, personally appeared ________________, known to me or satisfactorily
proven to be the ______________ of DNB
FIRST, NATIONAL ASSOCIATION,
and
acknowledged that (s)he executed the attached document, being authorized to
do
so, for the purposes therein contained.
IN
WITNESS WHEREOF, I have hereunto set my hand and notarial seal.
_____________________________________
NOTARY
PUBLIC
MY
COMMISSION EXPIRES:
-8-
COMMONWEALTH
OF PENNSYLVANIA
:
:
SS.
COUNTY
OF :
On
this
____ day of ______________, 200__, before me, a notary public, the undersigned
officer, personally appeared ________________, known to me or satisfactorily
proven to be the ______________ of ______________________________,
and
acknowledged that (s)he executed the attached document, being authorized to
do
so, for the purposes therein contained.
IN
WITNESS WHEREOF, I have hereunto set my hand and notarial seal.
_____________________________________
NOTARY
PUBLIC
MY
COMMISSION EXPIRES:
-9-
COMMONWEALTH
OF PENNSYLVANIA
:
:
SS.
COUNTY
OF :
On
this
____ day of ______________, 200__, before me, a notary public, the undersigned
officer, personally appeared XXXXXX
XXXXXXX,
known
to me or satisfactorily proven to be the Managing Member of PAPERMILL
BRANDYWINE COMPANY, LLC,
and
acknowledged that he executed the attached document, being authorized to do
so,
for the purposes therein contained.
IN
WITNESS WHEREOF, I have hereunto set my hand and notarial seal.
_____________________________________
NOTARY
PUBLIC
MY
COMMISSION EXPIRES:
-10-
EXHIBIT
“A”
DNB
PROPERTY
(see
attached)
EXHIBIT
“B”
DNB
OPERATIONS PROPERTY
EXHIBIT
"C"
PAPERMILL
PROPERTY
EXHIBIT
“C”
PARKING
PLAN
EXHIBIT
B
Insurance
Requirements
See
attached.