EXHIBIT 10(M)
GROUND LEASE
AGREEMENT dated as of the 1st day of April, 2002, between RADNOR CHASE
CRONIES, a Pennsylvania general partnership (hereinafter "Landlord") and THE
BRYN MAWR TRUST COMPANY, a Pennsylvania state chartered bank (hereinafter
"Tenant").
RECITALS
Landlord is the owner of the land and improvements thereon located at 3601
West Chester Pike, Newtown Township, Delaware County, Pennsylvania as more fully
described in Exhibit "A" attached hereto (hereinafter "Premises").
Tenant intends to apply for all necessary approvals in conjunction with a
plan to develop the Premises as a Bryn Mawr Trust Company bank branch office.
Tenant will be satisfied with a building of 2,500 square feet or more and no
less than two (2) drive-thru lanes and canopies (all which Tenant agrees to
accept) (the "Improvements").
Tenant desires to rent the Premises for the purpose of constructing a new
building and/or renovating the existing building and operating thereon a Bryn
Mawr Trust Company bank branch office. Landlord is willing to lease the Premises
to Tenant, upon the terms and conditions hereinafter set forth, and as to which
terms and conditions Tenant is agreeable.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and intending to be legally bound, Landlord and Tenant agree
as follows:
1. Lease. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord the Premises to be used, except as otherwise provided herein, solely as
a Bryn Mawr Trust Company branch bank office.
2. Effective Date. This Lease shall become effective as of April 1, 2002,
said date being hereinafter referred to as "Effective Date".
3. As-Is. Except as herein provided, Tenant is leasing the Premises on an
as "As-Is" basis without any representations on the part of Landlord, its
officers, partners, members employees, servants and/or agents. Tenant represents
that it has inspected the Premises and is satisfied with its present condition
and has reviewed certain environmental reports delivered to it by the Landlord
Tenant is not accepting re-
sponsibility for environmental conditions already existing on the Premises, if
any, as of the date hereof (the "Existing Waste").
4. Term. The term of this Lease shall commence on the Effective Date and
shall continue from the Effective Date for an initial term of ten (10) years,
provided it is not terminated prior thereto in accordance with the provisions of
this Lease.
5. Options. Provided Tenant is not in default hereunder and is open for
business at the Premises as a commercial bank or any other use permitted in this
Lease, Tenant shall have the option to extend the initial term upon the terms
and conditions set forth herein for a first additional term of five (5) years
and if the first option is validly exercised, for a second additional term of
five (5) years, and if the first and second options are validly exercised, for a
third additional term of five (5) years and if the first, second and third
options are validly exercised, for a fourth additional term of four (4) years.
Said additional terms shall commence immediately upon the expiration of the
initial term, the first, second and third extension thereof as the case may be.
6. Exercise of Options. Each option to extend this Lease shall be deemed to
be exercised by Tenant unless Tenant gives to Landlord notice in writing at
least two hundred seventy (270) days prior to the expiration of the then current
term of its intent to terminate this Lease at the end of the then current term.
7. Annual Base Rent. The annual base rent for the initial term and each of
the option terms shall be as follows:
Annual Monthly Installments
Years Base Rent of Base Rent
----- --------- ------------
1-3 $100,000.00 $8,333.33
(a) For years 4-29 the Base Rent shall be calculated as follows and
the monthly installments of the annual Base Rent shall each be
1/12 of the Base Rent for each year in question. The annual Base
Rent for each year during the years 4-29 shall be equal to the
product of the annual Base Rent for the previous year multiplied
by a fraction (the "CPI Fraction"), the numerator of which shall
be the "CPI Index" figure for the month which is three months
preceding the first month of the Year in question and the
denominator of which shall be the CPI Index figure for the month
which is three months preceding the first month of the previous
lease year. Notwithstanding the above, in no event shall the rent
as so determined, be less than the rent for the prior year. If
the CPI Fraction and, therefore, the annual base rent for a year
in question cannot be determined due to unavailability of the
components of the CPI, the Tenant agrees to pay on account of the
undetermined
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annual Base Rent a sum equal to the annual Base Rent for the
immediately preceding year multiplied by 1.02. Upon final
determination of the applicable CPI Fraction, and in turn the
correct amount of annual Base Rent for the year in question (the
"Reconciliation"), Tenant shall pay the Landlord any underpayment
or Landlord will pay Tenant any overpayment, within thirty (30)
days after the Reconciliation is made. The term "CPI Index" means
and shall be the United States Bureau of Labor Statistics,
Consumer Price Index for Urban Wage Earners and Clerical Workers,
all items (1982-1984 equals 100), namely, the "CPI-U", for the
geographic area where the Premises is located, or successor to
the CPI-U as shall exist from time to time. If there is no
successor to the CPI-U, then Landlord shall designate a
comparable, non-partisan substitute index or formula which shall
have substantially the same effect as if originally designated
herein. If the CPI Fraction cannot be determined because there is
no published CPI figure for the month or months in question, then
the CPI figures published for the month preceding the month for
which the CPI figure is not published shall be used.
8. Payment. Said annual Base Rent shall be paid in lawful money of the
United States of America in monthly installments as set forth above in advance,
without demand offset or deductions, on the first day of each month. In the
event the Effective Date falls on a day other than the first day of the month,
the rental for the first and last months of this Lease shall be prorated.
9. Place of Payment. Rent shall be payable to Radnor Chase Cronies, c/o
Kenneth S. Gross Investment Group, 110 West Front Street, Media, Pennsylvania
19063, or at such other address as Landlord shall specify in writing.
10. Absolutely Net Return. It is intended that the rent provided for in
this Lease shall be an absolutely net return to Landlord for the term of this
Lease, free of any loss, expenses or charges including, but not limited to the
following: maintenance, repairs, and replacement of buildings, systems or
improvements; insurance; taxes; landscaping; snow removal; and assessments now
imposed upon or related to the Premises. Any cost of refinancing or financing
the Premises by Landlord shall not be reimbursable from Tenant.
11. Inability to Give Possession. If the Landlord shall be unable to give
possession of the Premises on the scheduled occupancy date by reason of the
holding over of a previous occupant, or by reason of any cause beyond the
control of the Landlord, or because the Premises is located in a building being
constructed and which has not been sufficiently completed to make the property
ready for occupancy, or because a certificate of occupancy has not been
procured, or for any other reason, the Landlord shall not be subject to any
liability for such inability to give possession. The failure to
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give possession shall not affect the validity of this Lease or the obligations
of the Tenant hereunder, or extend the Term.
12. Additional Rent.
(a) Breach. Tenant agrees to pay as rent in addition to the Base Rent
any and all sums which may become due by reason of the failure of Tenant to
comply with all of the covenants of this Lease and any and all damages, costs
and expenses, including reasonable attorney's fees, which the Landlord may
suffer or incur by reason of such default, and also any and all damages to the
Premises caused by any act or neglect of the Tenant, its agents, servants,
employees, contractors and invitees.
(b) Utility Charges. Tenant agrees to pay as additional rent metered
electric, gas (if any), water and sewer charges to the Premises, which shall be
paid by Tenant directly to the utility provider. Any meters required shall be
installed, repaired and replaced by Tenant at its sole cost and expense.
(c) Taxes and Assessments.
(i) Tenant shall pay all real estate taxes on the Premises
directly to the taxing authority.
(ii) Real estate taxes shall include assessments, excises, and
other governmental impositions, ordinary and extraordinary, unforeseen and
foreseen, of any kind and nature whatsoever, upon the Premises or the operation
thereof, which at any time during the term of this Lease may be assessed,
levied, imposed upon, or become a lien on the Premises or any part thereof or
upon any use or occupation of the Premises, or upon any document (to which the
Tenant is a party) creating or transferring an interest or estate in the
Premises or any part thereof.
(iii) Notwithstanding the foregoing, Tenant shall not be
chargeable with nor obligated to pay any income, inheritance, excise, profits,
devolution, gift, franchise, corporate, gross receipts, capital levy, or estate
tax, which may be at any time levied or assessed against, or become a lien upon,
the Premises or the rents payable hereunder, but Landlord at its own cost and
expense, covenants and warrants to discharge same so as to keep the Premises
free of the liens of same; provided however, that if at any time during the term
of this Lease, the present method of taxation or assessment shall be so changed
that the whole or any part of the real estate taxes, governmental impositions,
or real estate assessments now levied, assessed or imposed on the Premises shall
in lieu thereof be imposed, assessed, or levied wholly or partially as a capital
levy or otherwise upon the rents reserved herein or any part thereof, or as a
tax, corporation franchise tax, assessment, levy or charge, or any part thereof,
measured by or based, in whole or in part, upon the Premises or on the rents
derived therefrom and imposed on Landlord, the Tenant shall pay all such taxes,
assessments, levies, impositions, or charges or the part thereof so measured or
based, but only to the extent that any such change in the present method of
taxation or assessment relieves
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Tenant from the payment of real estate taxes, governmental impositions, or real
estate assessments as they are now known, together with any interest or
penalties lawfully imposed upon the late payment thereof.
(iv) Tenant agrees to be responsible for all real estate transfer
taxes assessed on the Premises due to execution of this Lease, if any, and pay
same as additional rent to Landlord when billed unless Tenant has first paid
such realty transfer tax to the appropriate taxing authority. Tenant agrees to
execute any forms required to be filed in connection with such tax.
(v) Upon receipt of the Real Estate Tax bills for any given year
Landlord shall promptly forward them to Tenant for payment and Tenant shall
provide copies of paid tax bills to Landlord on or before ten (10) days prior to
the date such bills would be payable with a penalty.
13. Insurance.
(a) Fire Insurance. Tenant shall keep all buildings and improvements
now or hereafter erected upon the Premises, insured for the benefit of Landlord
as the insured, and Landlord's mortgagee, as mortgagee against loss by fire and
other casualties and hazards usually covered by extended coverage insurance in
an amount not less than the guaranteed replacement value of the Premises as
determined not more than once annually by an appraiser or rating bureau
satisfactory to Landlord, if required by the insurance company. It is expressly
understood and agreed that if for any reason attributable to Tenant it shall be
impossible to obtain fire insurance on the building and improvements on the
Premises in an amount and in the form and with fire insurance companies
acceptable to the Landlord, the Landlord may, if the Landlord elects, terminate
this Lease and the term thereof on giving to the Tenant twenty-five (25) days'
notice in writing of Landlord's intention so to do and upon the giving of such
notice this Lease and the terms thereof, shall terminate and come to an end
unless Tenant can, within such period procure coverages in amounts and with
companies reasonably acceptable to Landlord, at Tenant's sole cost and expense.
Tenant shall supply builder's risk insurance naming Landlord as the insured
during any construction related to the Premises.
(b) Property Insurance. Tenant shall bring or keep property upon the
Premises solely at its own risk, and Tenant, at its sole cost and expense, will
keep all personal property, stock and leasehold improvements now or hereafter
located on the Premises Insured against "All Risk" of Loss with an insurer in an
amount at least equal to replacement value plus debris removal costs.
(c) Worker's Compensation and Employer's Liability Insurance. Tenant,
at its sole cost and expense, will obtain Worker's Compensation Insurance
complying with the laws of the State, with minimum limits as follows:
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(i) Worker's Compensation Coverage: statutory requirements.
(ii) Employer's Liability Limit No Less Than:
Bodily Injury by Accident - $100,000 each accident
Bodily Injury by Disease - $100,000 each employee
Bodily Injury by Disease - $500,000 policy limit
(d) Commercial General Liability Insurance. Tenant, at is sole cost
and expense, shall purchase and maintain Commercial General Liability Insurance
providing coverage with minimum limits of liability at all times reasonably
satisfactory to Landlord and which on the date hereof shall not be less than the
limits shown below. These limits may be satisfied through a combination of
primary and excess policies. Such policies shall name Landlord and Landlord's
mortgagee, if any, as additional insureds and shall not cause any insurance
carried by Landlord or Landlord's mortgagee to contribute in the payment of any
loss. The policy shall contain a contractual indemnification endorsement
covering any indemnities in this Lease. The policy shall also state that such
coverage afforded to these additional insureds shall not be invalidated by any
act or negligence of the additional insured.
Limits:
(i) General Aggregate $3,000,000
(ii) Products/Completed Operations Aggregate $1,000,000
(iii)Personal and Advertising Injury $1,000,000
(iv) Each Occurrence $1,000,000
(v) Fire Damage (any one fire) $ 500,000
(vi) Medical Expense (any one person) $ 5,000
(e) Business Interruption Insurance. Tenant, at its sole cost and
expense, shall purchase and maintain business interruption insurance covering
twelve (12) month's worth of losses and shall not cause any insurance carried by
Landlord to contribute in the payment of any loss.
(f) Certificates and Financial Rating of Insurance Companies of
Tenant.
(i) The insurance companies used by Tenant shall meet the
following criteria:
(A) A.M. Best Rating: A-(Excellent) or better.
(B) A.M. Best Financial Size Category: Class VII or higher.
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(ii) Throughout the term of this Lease, Tenant shall provide a
Certificate of Insurance evidencing the coverages required by this Lease. At
Landlord's request, a copy of the actual policies outlined above shall be
provided to Landlord.
(iii) The Certificate shall indicate that Tenant's policies are
Primary and shall not cause any insurance carried by Landlord or Landlord's
mortgagee to contribute in the payment of any loss. Moreover, it must provide
that in the event of any material change in Tenant's policies or of the
cancellation or non-renewal of Tenant's insurance, the insurance company will
endeavor to give thirty (30) days advance written notice to Landlord.
(g) Waiver of Rights of Recovery and Waiver Rights of Subrogation.
(i) Tenant waives all rights of recovery against Landlord, and
all the additional insureds for loss or damage covered by any of the insurance
maintained by the Tenant pursuant to this subcontract.
(ii) Tenant and its respective insurance carriers hereby waive
all rights of subrogation against Landlord, and all the additional insureds for
loss or damage covered by any of the insurance maintained by the Tenant pursuant
to this Lease.
(iii) If any of the policies of insurance required under this
Lease require an endorsement to provide for the waiver of subrogation set forth
in (ii) above, then the named insureds of such policies will cause them to be
endorsed.
(h) Blanket Policies. Any coverages required herein may be provided
for under any blanket policy of the Tenant provided that the property covered is
specifically referenced in the blanket coverage.
14. Time, Place and Withholding of Payment. All Basic Rent shall be
payable in advance as set forth in paragraph 8 hereof, while an item which is
Additional Rent shall be payable within ten (10) business days after being
billed by Landlord without prior notice or demand and without any set off or
deduction whatsoever at the office of Landlord (or at such other place as
Landlord may from time to time designate by notice in writing). Under no
circumstances will Tenant be permitted to withhold rent for any reason. All
payments of rent by Tenant may be applied to Base Rent, Additional Rent,
interest or penalties, if any, as Landlord deems appropriate.
15. Affirmative Covenants of Tenant. Tenant covenants and agrees that it
will without demand:
(a) Waste. Conduct its business in such a manner as not to allow any
noxious odors or vapors to be emitted from the Premises. Use of explosives,
flammables and/or corrosive agents and other like materials is not permitted
unless authorized by Landlord in advance; provided, however, normal cleaning
supplies and other
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materials used in Tenant's ordinary course of business in compliance with all
applicable federal, state and local laws and regulations may be used on the
Premises. Any cleaning agent apparatus will be installed and vented to the
outside at Tenant's cost and only if installation is approved in writing in
advance by Landlord. Tenant shall not engage in activities that waste the
premises.
(b) Maintenance and Repair. Keep the Premises and improvements
erected thereon in good condition and repair, including, but not limited to
repairs, maintenance and replacement of all roofs, walls, doors, parking areas,
plate glass, plumbing, heating, electrical and air conditioning systems. Tenant
at its own expense shall enter into a maintenance contract ("Maintenance
Contract") with a heating and air conditioning repair service (which may be part
of a blanket contract for multiple locations) and on terms reasonably acceptable
to Landlord during the Term and any renewals thereof and shall provide Landlord
with a copy of same. The Tenant shall permit the Landlord or Landlord's duly
authorized agents to enter upon the Premises and the buildings and improvements
thereon erected at any reasonable time, and from time to time, upon prior notice
during normal business hours except in the event of an emergency for the purpose
of inspecting and appraising the same. The Tenant shall comply with all orders,
regulations, rules and requirements of every kind and nature relating to the
Premises, now or hereafter in effect, of the Federal, State, Municipal or other
governmental authorities having power to enact, adopt, impose or require the
same, whether they be usual or unusual, ordinary or extraordinary, and whether
they or any of them relate to structural changes or requirements (if whatever
nature, or to changes or requirements incident thereto, or as the result of the
use or occupation thereof by Tenant, and the Tenant shall pay all costs and
expenses incidental to such compliance, and shall indemnify and save harmless
the Landlord from all expense, and damages by reason of any notices, orders,
violations or penalties filed against or imposed upon the Premises or against
the Landlord as owner thereof, because of the failure of the Tenant to comply
with this covenant. Tenant further agrees to keep the Premises clean and free
from all ashes, dirt and other refuse matter.
In the event of the failure of Tenant promptly to perform the covenants of
Paragraph 15(b) hereof, Landlord may, upon thirty (30) days prior notice, except
in the event of an emergency, go upon the Premises and perform such covenants,
the cost thereof, at the sole option of Landlord, to be charged to Tenant as
additional and delinquent rent unless the failure has been cured by Tenant
within such period.
(c) Fire. Use every reasonable precaution against fire.
(d) Notice of Casualty. Give to Landlord prompt written notice of any
accident, fire, or damage in excess of One Thousand Dollars ($1,000.00)
occurring on or to the Premises.
(e) Agency for Leasing. Not vacate or desert the Premises during the
Term, or any renewal term, nor permit same to be empty and unoccupied without
permission of Landlord. If, with the permission in writing of Landlord, Tenant
shall
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vacate or decide at any time during the Term to vacate the herein Premises prior
to the expiration of this Lease, or any renewal hereof, Tenant will not cause or
allow any other agent to represent Tenant in any subletting or reletting of the
Premises other than an agent approved by the Landlord, which approval will not
be unreasonably withheld, conditioned or delayed, and that should Tenant do so,
or attempt to do so, the Landlord, may remove any signs that may be placed on or
about the Premises by such other agent without any liability to Landlord or to
said agent, the Tenant assuming responsibility for such action.
16. Negative Covenants of Tenant. Tenant covenants and agrees that it
will do none of the following things without the consent in writing of Landlord
first had and obtained:
(a) Use. Occupy the Premises in any other manner or for any other
purpose than as above set forth.
(b) Assignment, Etc. Assign this Lease or hypothecate or mortgage
the same or the Demised Premises or any part thereof. Any assignment, transfer,
hypothecation, mortgaging subletting without the written consent of the Landlord
shall be void. The following shall also be considered a violation of this
covenant:
(1) filing of a petition by or against the Tenant under
Chapter 7, 11 or 13 of Title 11, United States Code, Bankruptcy, as now or
hereafter amended or supplemented, or the filing petition by or against (and if
against not dismissed within sixty (60) days) the Tenant under any future
bankruptcy act or state law for the same or similar relief;
(2) the dissolution or the commencement of any action or
proceeding for dissolution or liquidation of the Tenant, in connection with
bankruptcy or other insolvency, whether instituted by or against (and if against
not dismissed within sixty (60) days) the Tenant or for the appointment of a
permanent receiver or a permanent trustee of all or substantially all the
property Tenant;
(3) the taking possession of the property of the Tenant by
any governmental officer or agency pursuant to statutory authority for the
dissolution, rehabilitation, reorganization, liquidation of the Tenant; or
(4) the making by the Tenant of any assignment for the
benefit of creditors.
(c) Alterations and Improvements. Except as otherwise provided
herein, make any structural alterations, improvement or additions to the
Premises. All alterations, additions and improvements (except trade fixtures,
furniture and equipment, communication equipment, other than building
equipment), and including electrical installations, telephone wiring, plumbing
installations, heating units, cooling and/or refrigeration units, fire and
burglar alarms and associated detection devices and related
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wiring, and lighting fixtures which may be made or installed by Tenant upon the
Premises, shall upon the making or installation thereof be and become a part of
the Premises and shall remain upon and be surrendered with the Premises as a
part thereof at the termination of this Lease.
(d) Machinery. Use or operate any machinery that, in Landlord's
opinion, is harmful to the Premises.
(e) Weights. Place any weights in any portion of the Premises beyond
the safe carrying capacity of the structure.
(f) Removal. Remove, attempt to remove or manifest an intention to
remove Tenant's goods or property from or out of the Premises otherwise than in
the ordinary and usual course of business, without having first paid and
satisfied Landlord for all rent then due.
(g) Vacation. Vacate or desert the Premises during the permit the same
to be empty and unoccupied without the permission of Landlord.
17. Tenant's Construction and Branch Bank Office Approvals.
(a) Tenant intends to procure land development plan approval for the
Premises for a Bryn Mawr Trust Company branch bank office. Tenant will be
satisfied with a building of no less than 2,500 square feet with no less than
two (2) drive-thru lanes and canopies (which Tenant agrees to accept). Tenant
shall be responsible for the cost of erecting its branch bank, the parking lots,
sidewalks, curbing, sanitary sewer, storm sewer, water and electric lines to the
Premises. Any and all other costs of site improvement and construction shall
also be the sole responsibility of the Tenant.
(b) The building to be built and/or the renovations to be made to the
existing building by Tenant on the Premises shall be constructed in a good and
workmanlike manner and in accordance with the rules, regulations and
requirements of all departments, boards, bureaus, officials and authorities
having jurisdiction thereof. All necessary permits relating to the Improvements
to be constructed by Tenant shall be obtained by Tenant at its sole cost and
expense.
(c) It is understood that the plans and specifications of the Bryn
Mawr Trust Company branch bank and the site plan for same shall be submitted to
Landlord within one hundred twenty (120) days after the Effective Date. All such
plans must be approved by Landlord, which approval will not be unreasonably
withheld, conditioned or delayed. If Landlord and Tenant cannot agree on
approved plans within sixty (60) days after the Effective Date, either party may
cancel this Lease. The initial approved plans will be signed by Landlord and
Tenant and will be attached hereto as Exhibit "B". Tenant shall make initial
application for land development plan approval no later than fifteen (15) days
after Landlord has approved Tenant's plans and after obtaining all necessary
consents from Landlord's mortgagee and thereafter to prosecute the land
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development application in good faith and with due diligence. Tenant may request
such plans to be modified from the plans approved by Landlord, if required by
Newtown Township and agreed to by Landlord and Tenant, such agreement to be
reached within thirty (30) days after receipt of any requirement of Newtown
Township. If Landlord and Tenant cannot agree to any requested revisions to
plans required by Newtown Township, either party may terminate this Lease by
notice to the other prior to approval of substitute plans. Tenant or Landlord
must exercise their right to terminate within thirty-five (35) days after the
requested change is submitted to the Landlord. Any revision shall be initialed
by both parties and the new plan will be attached as Exhibit "C" of this Lease
Agreement.
(d) The new building, any and any building and replacement thereof or
thereafter constructed shall be a complete, independent building erected wholly
within the boundary lines of the Premises. If required at any time by Newtown
Township after footings are poured, Tenant will furnish to Landlord a copy of a
survey of the Premises, prepared by a licensed surveyor, for Newtown Township,
showing the location of the new building in relation to the perimeter of the
Premises.
(e) Tenant shall prosecute the construction to completion with
diligence. The new building shall be completed, in any event, within two hundred
seventy (270) days after the issuance of a valid building permit by Newtown
Township subject, however, to unavoidable delays, such as delays due to strikes,
acts of god, inability to obtain labor or materials, lockouts, governmental
restrictions, enemy actions, adverse weather conditions, civil commotion, fire,
unavoidable casualty or similar causes, or any other causes beyond the
reasonable control of Tenant.
(f) The construction of the new building shall not be commenced unless
and until the architectural and final plans and specifications for the building
have been approved by Landlord as aforesaid. All construction shall be in
accordance with such final approved plans and specifications in all material
respects.
(g) Tenant may not commence construction until builder's risk
insurance in an amount reasonably satisfactory to Landlord (based on projected
project costs) is obtained and a certificate naming Landlord as an additional
insured is delivered to Landlord.
(h) The plans must provide for all trash to be stored inside the
building erected on the Premises or in an enclosed area outside of said
building, if permitted by Newtown Township.
(i) If final, unappealable land development plan approval is not
obtained on or before three hundred sixty-five (365) days after the Effective
Date either party shall have the right to terminate this Lease by notice given
in writing within fifteen (15) days thereafter.
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(j) If Tenant is unable to obtain final, unappealable approval for a
branch bank office at the Premises from the Pennsylvania Department of Banking,
the Pennsylvania Historical Commission, and the Federal Reserve Board/Federal
Deposit Insurance Corporation within three hundred sixty-five (365) days after
the Effective Date (or if Tenant so elects upon receipt of a decision denying a
branch bank application by any of the foregoing authorities) either party shall
have the right to terminate this Lease by giving notice in writing to the other.
18. Landlord's Rights. Tenant covenants and agrees that Landlord shall
have the right to do the following things and matters in and about the Premises:
(a) For Sale or Rent. To display a "For Sale" sign at any time and
also, after notice from either party of intention to terminate this Lease, or at
any time within two hundred sixty-nine (269) days prior to the expiration this
Lease, a "For Rent" sign, or both "For Rent" and "For Sale" signs; and all of
said signs shall be upon such part of the Premises as Landlord may elect and may
contain such matter as Landlord shall require. Prospective purchasers or tenants
authorized by Landlord may inspect the Premises at reasonable hours at any time
upon prior notice during normal business hours. Any "For Sale" sign shall be
clear that it is the Premises and not the Tenant's business that is "For Sale".
19. Responsibility of Tenant. Landlord shall not in any event be
responsible, and the Tenant hereby specifically assumes responsibility for any
personal or bodily injury or death of any person (including employees of Tenant
and Landlord) and damage, destruction, or loss of use of any property, including
the Premises (except as specifically provided otherwise herein) occasioned by
event happening on or about the Premises, hallways, entranceways, stairs or any
other areas (exterior or interior), elevators, streets, driveways, parking
areas, alleys, sidewalks and curbs adjacent thereto including those resulting
from any work in connection with any alterations, changes, new construction or
demolition, except if same results solely from the negligence of Landlord, its
agents, servants, or employees. Tenant is subrogated to any rights of Landlord
against other parties in connection therewith. Tenant shall defend, indemnify
and hold harmless Landlord and its officers, directors, partners, members,
agents, servants and employees from and against any and all claims, demands,
suits, damages, liability and costs (including counsel fees and expenses)
arising out of or in any manner connected with any act or omission, negligent or
otherwise of Tenant, or any of their agents, servants, employees or invitees
which arise out of or are in any way connected with the erection, maintenance,
use, operation, existence or occupation of the Premises, hallways, entranceways,
stairs or any other common areas (exterior or interior), elevators, streets,
driveways, parking areas, alleys, lawns, sidewalks and curbs adjacent thereto
unless due solely to the negligence of Landlord, its agents, servants or
employees.
The Landlord shall promptly notify the Tenant of any claim asserted against
the Landlord on account of any such injury or claimed injury to persons or
property and shall promptly deliver to the Tenant the original or a true copy of
any summons or other process, pleading or notice issued in any suit or other
proceeding to assert or enforce
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any such claim. The Tenant shall have the right to defend any such suit with
attorneys of its own selection and the Landlord shall have the right, if it sees
fit, to participate in such defense.
Tenant further shall defend, indemnify and hold harmless Landlord its
officers, directors, partners, members, agents, servants and employees from
claims, demands, suits, liability for damages for personal or bodily injury or
death of any persons or damage or destruction of any property (including loss of
use thereof) caused by or in any manner arising out of any breach, violation or
nonperformance by Tenant of any covenant, term or provision of this Lease.
20. Damage to Premises. Should the whole or any part or parts of the
Improvements then on the Premises be partially or wholly damaged or destroyed by
fire or other insured casualty after the commencement of the term of this Lease,
such destruction or damage shall not operate to terminate this Lease, but this
Lease shall continue in full force and effect, except as otherwise provided in
this Lease. Rent payable to Landlord shall not abate. Tenant, at its own cost
and expense, agrees to restore, rebuild or repair said Improvements to a
condition at least equal in value to the value immediately prior to a loss
caused by fire or other insured casualty and in conformity with the requirements
of paragraph 17 hereof; provided, however, that should such damage or
destruction occur within two (2) years of the end of this Lease, (unless Tenant
has exercised its next option to renew) Tenant shall thereupon have the option
of canceling and terminating this Lease on giving Landlord ninety (90) days'
written notice of Tenant's intention to do so. As long as Tenant is not in
default hereunder, Landlord agrees to make the proceeds of insurance available
to Tenant, subject to the requirements of Landlord's mortgagee, for restoration
and rebuilding of the Premises. If Tenant elects to terminate this Lease in
accordance with the foregoing option, Tenant shall be under no duty to restore,
rebuild or repair said Improvements, and the insurance proceeds payable to
Tenant as a result of such damage or destruction to said Improvements shall be
paid to Landlord. In addition, if Tenant failed to keep the Premises insured as
required in the Lease, Tenant shall pay Landlord, as additional rent, any
shortfall between the insurance proceeds paid to Landlord and the full
replacement value of the Improvements.
21. Eminent Domain.
(a) If the entire Premises shall be taken by the exercise of the right
of eminent domain for any public or quasi-public improvement or use, this Lease
and the term hereby granted shall then expire, on the date when title to the
Premises so taken shall vest in the appropriate authority or on the date when
any possession is surrendered, if later, at which time all rights and
obligations between the parties shall cease and rents and other charges shall be
apportioned.
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(b) If:
(i) a portion of the building shall be so taken as to make the
balance thereof unusable in Tenant's reasonable opinion, for the purposes to
which the Premises shall then be devoted; or
(ii) more than twenty percent (20%) of the then existing parking
area for the Premises shall be taken; or
then Tenant shall have the right to cancel or terminate this Lease on thirty
(30) days prior written notice to Landlord, to be given after the date when
title to the portion(s) so taken shall vest in the appropriate authority. On
such entire or partial taking, Landlord and Tenant shall pursue, in their
respective individual and separate names and rights, unless otherwise required
by law, such remedies and make such claims as they may have against the
authority exercising such right of eminent domain or other lawful taking as if
this Lease and the term hereof had not expired (whether or not such expiration
shall have occurred on account of such taking) and for the purpose of
determining the respective rights and remedies of the parties, or for the
purpose of an apportionment of the award for damages Landlord shall be deemed to
be the owner of the land constituting the Premises and Tenant shall be deemed to
be the owner of the buildings and all other improvements situated upon said
Premises, subject to Landlord's right of reversion. The allocation of any award
for the building and the improvements shall be based on straight line
amortization based on a twenty-nine (29) year lease term including option
periods rounded to the nearest month with Landlord entitled to the portion of
the award based on the number of months which have passed from the Effective
Date and Tenant the balance. In no event shall Tenant be entitled to the
diminution in value rent-wise of its leasehold, or the appreciation in value of
its leasehold interest. Tenant shall be, however, entitled to any separately
awarded amount for moving expenses and its trade fixtures as opposed to other
building improvements so long as such award does not reduce Landlord's award for
the entire value of the land and its portion of the award for the Improvements
as set forth above.
(c) If Tenant shall not cancel the Lease as hereinabove provided in
subparagraph 2 of this Article, this Lease shall not terminate but the rental
for the land constituting the Premises shall be reduced in proportion to the
amount of land taken. Tenant shall make such repairs or construction at its own
cost and expense out of the award or portion of award to Tenant, as is made
necessary due to such partial taking. In any event, the amount of the award to
be received by Landlord shall be the value of the land so taken and value of the
reversionary interest in the Improvements as determined pursuant to Paragraph 2
above, and the amount of the award to be received by Tenant shall be the value
of the Improvements taken less the value of Landlord's reversionary interest
therein.
(d) Total-Temporary: If the taking of the whole of the Premises or
such portion thereof as would render the Premises, in Tenant's reasonable
opinion, unusable for Tenant's use as set forth above shall be for a period of
one year or less,
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the term of this Lease shall be tolled and, all rent and other charges payable
to Landlord shall abate from the time possession of the Premises is surrendered
to the taking authority and recommence when possession is restored to the
Tenant. The basis for Tenant's damages against the condemning authority, if
allowable, or against the total award shall be as suffered by Tenant for the
interruption of Tenant's business but in no event shall Landlord be entitled to
receive for the period of the taking less than the rent and additional rent to
which it is entitled under the lease plus interest and expenses. If less than
the whole of the Premises or less than such portion thereof as would render the
use of the Premises unusable for Tenant's purposes as aforesaid is taken, Tenant
shall be entitled to a reduction of rental as is just and equitable, upon such
date as possession is surrendered to the taking authority and continuing until
possession is restored to the Tenant. In consideration of such reduction of
rental, Tenant waives all rights to any portion of the award and such shall be
payable to the Landlord.
(e) Should the Landlord and Tenant be unable to agree as to the
division of any award or the amount of any reduction of rents and other charges,
such dispute shall be submitted for resolution to arbitration in accordance with
the rules and procedures of the American Arbitration Association, each party
bearing its respective costs for such determination.
(f) Landlord covenants that at the Effective Date hereof, it has no
actual or constructive notice of any proposed condemnation of any part of the
Premises.
22. Miscellaneous Agreements and Conditions.
(a) Non-Waiver by Landlord or Tenant. The failure of the Landlord or
Tenant to insist upon strict performance of any of the covenants or conditions
to this Lease, shall not be construed as a waiver or relinquishment for the
future of any such covenants or conditions of this Lease, but the same shall be
and remain in full force and effect.
(b) Accord and Satisfaction. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated rent, nor shall
any endorsement or statement on any check or any letter accompanying any check
or payment as rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy herein.
(c) Jurisdiction and Law. Tenant hereby subjects itself to the
jurisdiction of the Court of Common Pleas of Delaware County, Pennsylvania. The
laws of the Commonwealth of Pennsylvania shall be applicable to this Lease and
any interpretations hereof.
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23. Events of Default and Remedies of Landlord. If the Tenant:
(a) Does not pay within ten (10) days after it is due any and all
installments of rent and/or any other charge or payment herein reserved,
included, or agreed to be treated or collected as rent and/or any other charge,
expense, or cost herein agreed to be paid by the Tenant; or
(b) Violates or fails to perform or otherwise breaks any non-monetary
covenant or agreement herein contained which is not corrected in compliance
within thirty (30) days after notice; provided, however, if, within such thirty
(30) day period, if the violation or failure is subject to cure, the Tenant has
commenced efforts and is pursuing them in good faith and with due diligence to
cure such violation or failure, the time for correction shall be extended, but
in no event for more than an additional thirty (30) days; or
(c) Vacates the Premises or removes or attempts to remove or manifests
an intention to remove any goods or property therefrom otherwise than in the
ordinary and usual course of business without having first paid and satisfied
the Landlord in full for all rent and other charges then due; or
(d) Files or has filed against it (and if against not dismissed in
sixty (60) days) a petition under Title 11, United States Code, Bankruptcy, as
now or hereafter amended or supplemented, whether under Chapter 7, 11 or 13 of
the aforesaid Bankruptcy Code; or if there is the commencement of any action or
proceeding under state or federal law for the dissolution or liquidation of the
Tenant in connection with bankruptcy or other insolvency, whether instituted by
or against (and if against not dismissed in sixty (60) days) the Tenant or for
the appointment of a receiver or trustee of all or substantially all of the
property of the Tenant; or if there is the taking of possession of the property
of the Tenant by any governmental officer or agency pursuant to statutory
authority for the dissolution, rehabilitation, reorganization or liquidation of
the Tenant; or if there is the making by the Tenant of an assignment for the
benefit of creditors:
Then and in any of said events, there shall be deemed to be a breach of
this Lease, and thereupon Landlord shall have the following rights:
(1) To accelerate the whole or any part of the Base Rent and any
additional rent, other charges, payments, costs and expenses herein agreed to be
paid by Tenant for the next succeeding two (2) year period and after the
expiration thereof in each case for a further two (2) year period unless the
Lease would have expired by its terms within such two (2) year period, in which
event the accelerate will be only to the scheduled expiration date; provided,
however, to the extent Landlord relets the Premises for any period for which
accelerated rent was collected from Tenant, Landlord shall refund to Tenant, as
received from any replacement tenant, all sums of rent applicable to the period
of accelerated Rent and additional rent, less the reasonable cost of reletting,
including, but not limited to, reasonable attorneys fees, realtor commissions
and costs of retrofitting; and any such Rent, and additional rent, other
16
charges, payments, costs and expenses, if so accelerated, shall be deemed due
and payable as if, by the terms and provisions of this Lease, such accelerated
Rent and additional rent and other charges, payments, costs and expenses were on
that date due and payable in advance.
(2) To terminate this Lease and the term hereby created by written
notice to Tenant, without any right on the part of Tenant to waive the
forfeiture by payment of any sum due or by other performance of any condition,
term or covenant broken, whereupon Tenant shall quit and surrender the Premises
by said date, and Landlord shall be entitled to recover, in addition to any and
all sums and damages for violation of Tenant's obligations hereunder in
existence at the time of such termination, damages for Tenant's default in an
amount equal to the greater of (i) amount of the Rent reserved for the balance
of the Term, as well as all other charges, payments, costs and expenses herein
agreed to be paid by Tenant, all discounted at the rate of six percent (6%) per
annum to their then present worth, less the fair rental value of the Premises
for the remainder of said term, also discounted at the rate of six percent (6%)
per annum to its then present worth or (ii) twenty-four (24) months' Base Rent
and additional rent, all of which amount shall be immediately due and payable
from Tenant to Landlord as liquidated damages.
THE FOLLOWING PARAGRAPH (3) SETS FORTH A WARRANT OF AUTHORITY FOR
AN ATTORNEY TO CONFESS JUDGMENTS AGAINST TENANT FOR POSSESSION OF THE PREMISES.
IN GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST TENANT, TENANT
HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY AND, ON THE ADVICE OF SEPARATE
COUNSEL OF TENANT, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS TENANT HAS OR MAY
HAVE WITH RESPECT TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE
RESPECTIVE CONSTITIONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF
PENNSYLVANIA.
(3) WHEN THIS LEASE AND THE TERM OR ANY EXTENSION OR RENEWAL
THEREOF SHALL HAVE BEEN TERMINATED ON ACCOUNT OF ANY DEFAULT BY TENANT
HEREUNDER, AND ALSO WHEN THE TERM HEREBY CREATED OR ANY EXTENSION OR RENEWAL
THEREOF SHALL HAVE EXPIRED, IT SHALL BE LAWFUL FOR ANY ATTORNEY OF ANY COURT OF
RECORD TO APPEAR AS ATTORNEY FOR TENANT AS WELL AS FOR ALL PERSONS CLAIMING BY,
THROUGH OR UNDER TENANT, AND TO SIGN AN AGREEMENT FOR ENTERING IN ANY COMPETENT
COURT A CONFESSION OF JUDGMENT IN EJECTMENT AGAINST TENANT AND ALL PERSONS
CLAIMING BY, THROUGH OR UNDER TENANT AND THEREIN CONFESS JUDGMENT FOR THE
RECOVERY BY LANDLORD OF POSSESSION OF THE PREMISES, FOR WHICH THIS LEASE SHALL
BE HIS SUFFICIENT WARRANT; THEREUPON, IF LANDLORD SO DESIRES, AN APPROPRIATE
WRIT OF POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDING
WHATSOEVER, AND PROVIDED THAT IF FOR ANY REASON AFTER SUCH ACTION SHALL HAVE
BEEN COMMENCED IT SHALL BE TERMINATED AND POSSESSION OF THE PREMISES REMAIN IN
OR
17
BE RESTORED TO TENANT, LANDLORD SHALL HAVE THE RIGHT FOR THE SAME DEFAULT AND
UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON THE TERMINATION OF THIS LEASE
OR TENANT'S RIGHT OF POSSESSION AS HEREINBEFORE SET FORTH, TO BRING ONE OR MORE
FURTHER CONFESSION OF JUDGEMENT ACTIONS AS HEREINBEFORE SET FORTH TO RECOVER
POSSESSION OF THE PREMISES.
(4) In any confession of judgment of ejectment and/or for rent
and/or other sums brought hereon, Landlord shall first cause to be filed in such
action an affidavit made by Landlord or someone acting for Landlord, setting
forth the facts necessary to authorize the entry of judgment of which facts such
affidavit shall be prima facie evidence, and if a true copy of this Lease (and
of the truth of the copy such affidavit shall be sufficient evidence) shall be
filed in such suit, action or actions, it shall not be necessary to file the
original as a warrant of attorney, any rule of Court, custom or practice to the
contrary notwithstanding.
24. Right of Injunctive Relief. In the event of a breach by Tenant of any
of the covenants or provisions hereof, Landlord shall have the right of
injunction and the right to invoke any remedy allowed at law or in equity as if
re-entry, summary proceedings and other remedies were not herein provided for.
25. Rights Not Exclusive. No right or remedy herein conferred upon or
reserved to Landlord is intended to be exclusive of any other right or remedy
herein or by law provided but each shall be cumulative and in addition to every
other right or remedy given herein or now or hereafter existing at law or in
equity or by statute.
26. Waivers by Tenant. Tenant expressly waives:
(a) The benefit of all laws, now or hereafter in force, exempting any
goods (owned by Tenant) on the Premises or elsewhere from distraint, levy or
sale in any legal proceedings taken by Landlord to enforce any rights under this
Lease.
(b) The right to ten (10) days and/or fifteen (15) or thirty (30) days'
notice required under certain circumstances by The Landlord and Tenant Act of
1951, as amended in 1995, if applicable, Tenant hereby agreeing that seven (7)
days' notice shall be sufficient in either or any such case.
27. Calculations of Amounts Due. For the purpose of calculating the
accelerated Rent payable under paragraph (1) of Paragraph 23(d) of this Lease
and the "Rent reserved for the balance of the term" of this Lease for the
purposes of Paragraph (2) of Paragraph 23(d) of this Article, the amount payable
as additional rent for which Tenant is responsible hereunder for the balance of
the term hereof shall be equal to the sum of the highest amount paid or payable
by Tenant in any calendar year for each of such items multiplied by the number
of calendar years (including any fractional calendar years) remaining in the
term of this Lease.
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28. Assignment or Subletting. Tenant shall have the right to sublease or
assign its interest in this Lease with the consent of Landlord which consent
shall not be unreasonably withheld, conditioned or delayed so long as the use of
the Demised Premises remains a commercial bank or other related business, the
conduct of which is permitted for a Pennsylvania Commercial Bank, a national
bank or a bank holding company. Tenant may, without the consent of Landlord,
sublease or assign the Lease to a wholly owned subsidiary or affiliate of Tenant
or on a one time basis only, to a successor by merger or acquisition of all or
substantially all of the assets of Tenant. In the event of any assignment or
subletting, Tenant shall continue to be primarily liable for all terms and
conditions of this Lease throughout the entire term and any exercised renewal
terms, Notwithstanding anything contained in this section to the contrary,
Tenant shall not have the right to assign or sublease this Lease if it is in
monetary default beyond any applicable cure period. In any event, prior to
entering into a sublease Tenant shall first afford Landlord the right to
recapture the Premises, which offer to recapture must be communicated to
Landlord before entering into such sublease. Landlord shall have thirty (30)
days in which to respond. Failure to respond that the Landlord wishes to
recapture will be deemed a refusal to recapture and any failure of recapture
shall not be deemed to be a waiver of any rights Landlord has to approve any
other elements of the sublease or any future sublease or to receive the excess
rentals paid under the sublease as hereinafter provided. In the event of such
recapture this Lease shall terminate thirty (30) days after Landlord's notice of
desire to recapture and the Premises, including all improvements thereto, shall
become the property of Landlord. In the event of an approved assignment or
sublease of this Lease, any consideration received by Tenant, by way of sublease
payments, assignment fees or any other type of consideration received by Tenant
which are in excess of the Base Rent due hereunder shall be paid to Landlord, as
received by Tenant, in consideration of Landlord's agreement to such assignment
or sublease, it being the intent of the parties that Tenant shall not make a
profit on such assignment or subletting.
29. Right of Assignee of Landlord. The right to pursue the remedies herein
provided against Tenant and to enforce all of the other provisions of this Lease
may, at the option of any assignee of this Lease, be exercised by any assignee
of the Landlord's right, title and interest in this Lease in his, her or their
own name, any statute, rule of court, custom, or practice to the contrary
notwithstanding.
30. Remedies Cumulative. All of the remedies hereinbefore given to Landlord
and all rights a remedies given to it by law and equity shall be cumulative and
concurrent. No termination of this Lease or the taking or recovering of the
Premises shall deprive Landlord of any of its remedies or action against Tenant
for rent or sums due at the time or which, under the terms hereof, would in the
future become due as if there has been no termination; nor shall the bringing of
any action for rent or breach of covenant, or the resort to any other remedy
herein provided for the recovery of rent be construed as a waiver of the right
to obtain possession of the Premises.
31. Execution of EstoppeI Certificate. At any time, and from time to time,
upon the written request of Landlord or any first mortgagee, Tenant within ten
(10)
19
days of the date of such written request agrees to execute and deliver to
Landlord and/or such first mortgagee, without charge and in a form satisfactory
to Landlord and/or such mortgagee, a written statement: (a) ratifying this
Lease; (b) confirming the commencement and expiration date of the term of this
Lease and the minimum annual rental rate payable during the Lease term; (c)
certifying that Tenant is in occupancy of the Premises, and that the Lease is in
full force and effect and has not been modified, assigned, supplemented or
amended except by such writings as shall be stated; (d) certifying that all
conditions and agreements under this Lease to be satisfied or performed by
Landlord have been satisfied and performed except as shall be stated; (e)
certifying that Landlord is not in default under the Lease and there are no
defenses or offsets against the enforcement of this Lease by Landlord or stating
the defaults and/or defenses claimed by Tenant; (f) reciting the amount of
advance rent, if any, paid by Tenant and the date to which such rent has been
paid and, if requested by Landlord and/or Mortgagee, agreeing that Tenant shall
not pay rent to Landlord more than thirty days in advance; (g) reciting the
amount of security deposited with Landlord, if any; (h) certifying that Tenant
has no option or right of first refusal to purchase the Premises or option to
extend the term of the Lease (unless specifically set forth to the contrary in
the Lease); (i) if requested by Landlord and/or Mortgagee, agreeing that the
Lease will not be modified without the prior written consent of the Mortgagee;
(j) certifying that Tenant will not generate, store, handle or otherwise deal
with any amount of any hazardous substances or hazardous waste (as defined in
federal, state and local law) in or about the Premises in excess of those levels
or quantities specified for regulatory purposes or normal cleaning supplies and
other materials used in Tenant's ordinary course of business in compliance with
all applicable federal, state and local laws and regulations present on the
Premises; (k) agreeing, if requested by Mortgagee, that Tenant will give
Mortgagee such notice of any default by Landlord and reasonable opportunity to
cure such default, not in excess of thirty (30) days, unless the default cannot
be cured within said time, before exercising Tenant's remedies under the Lease;
and (1) any other information which Landlord or the mortgagee shall require.
32. Subordination and Attornment. Tenant agrees:
(a) That, except as hereinafter provided, this Lease is, and all of
Tenant's rights hereunder are and shall always be, subject and subordinate to
any mortgage now or hereafter placed on the Premises (the "Permitted Mortgage");
and
(b) That if the holder of any such Permitted Mortgage ("Mortgagee") or
if the purchaser at any foreclosure sale or at any sale under a power of sale
contained in any Permitted Mortgage shall at its sole option so request, Tenant
will attorn to, and recognize such Mortgagee or purchaser, as the case may be as
Landlord under this Lease for the balance then remaining of the term of this
Lease, subject to all terms of this Lease; and
(c) That the aforesaid provisions shall be self-operative and no
further instrument or document shall be necessary unless required by any such
Mortgagee or purchaser. Notwithstanding anything to the contrary set forth
above, any Mortgagee
20
may at any time subordinate its Permitted Mortgage to this Lease, without
Tenant's consent, by notice in writing to Tenant, and thereupon this Lease shall
be deemed prior to such Permitted Mortgage without regard to their respective
dates of execution, delivery and/or recording and in that event such Mortgagee
shall have the same rights with respect to this Lease as though this Lease had
been executed and a memorandum thereof recorded prior to the execution, delivery
and recording of the Permitted Mortgage and as though this Lease had been
assigned to such Mortgagee. Should Landlord or any Mortgagee or purchaser desire
confirmation of either such subordination or such attornment, as the case may
be, Tenant upon written request, and from time to time, will execute and deliver
without charge and in form satisfactory to Landlord, the Mortgagee or the
purchaser all instruments and/or documents that may be requested to acknowledge
such subordination and/or agreement to attorn, in recordable form.
33. Failure to Execute Estoppel Certificate. The failure of Tenant to
execute, acknowledge and deliver to Landlord and/or any first mortgagee a
statement in accordance with the provisions of Paragraphs 31 and 32 above within
ten (10) days after request shall constitute acknowledgement by Tenant which may
be relied upon by any person holding or intending to acquire any interest
whatsoever in the Premises or any mortgagee or purchaser that this Lease has not
been assigned, amended, changed, or modified, is in full force and effect and
that the Base Rent and additional rent have been duly and fully paid not beyond
the respective due dates immediately preceding the date of the request for such
statement and/or that Tenant has attorned to any mortgagee or purchaser and
shall constitute as to any persons entitled to rely on such statements a waiver
of any defaults by Landlord or defenses or offsets against the enforcement of
this Lease by Landlord which may exist prior to the date of the written request,
and Landlord at its option, may treat such failure as a deliberate event of
default.
34. Non-Disturbance. The Landlord will arrange with the holder of any
Permitted Mortgage, on the mortgagee's standard form, a Subordination,
Non-Disturbance and Attornment Agreement, which shall acknowledge Tenant's
rights under the insurance and condemnation sections of this Lease and which
also provides, among other items, that if, by disposition, foreclosure, or
otherwise, such holder, or any successor in interest, shall come into possession
of the Premises or shall become owner of the Premises, or take over the right of
Landlord in the Premises, such mortgage holder will not disturb the possession,
use or enjoyment of the Premises by the Tenant nor disaffirm this Lease or the
Tenant's rights or estate hereunder, so long as all of the obligations of the
Tenant are fully performed in accordance with the terms of this Lease (the
"SNDA").
35. Quiet Enjoyment; Eviction by Foreclosure. Tenant, on paying the rent
reserved, and performing all the covenants and conditions hereof, shall at all
times during the Term, peaceably and quietly have, hold and enjoy the Premises;
provided, however, subject to the provisions of any SNDA Agreement, eviction of
the Tenant by reason of the foreclosure of any Permitted Mortgage now or
hereafter on the Premises
21
shall not be construed as a breach of this covenant, nor shall any action by
reason thereof be brought against the Landlord; and provided further, that no
eviction of the Tenant for any reason whatsoever, after the Landlord shall have
conveyed the fee of the Premises shall be construed as a breach of this
covenant, and no action therefor shall be brought against the Landlord.
36. Use.
(a) Tenant agrees that the Premises shall be opened initially and
continuously operated as a Bryn Mawr Trust Company Bank Branch; provided,
however, Tenant thereafter may use the Premises as a commercial bank or any
other related business, the conduct of which is permissible for a Pennsylvania
Commercial Bank, national bank, a bank holding company. In the event Tenant
closes for business for a period of two hundred seventy (270) consecutive days
or more, except because of periods of renovation or redecorating (not more
frequently than once every five (5) years and not for a period of more of sixty
(60) consecutive days) or because of casualty or condemnation, Landlord may
terminate this Lease upon thirty (30) days written notice to Tenant on a date
chosen by Landlord, which date shall not be later than one hundred twenty (120)
days after such notice in which event the Lease shall terminate on such date and
the Improvements on the Premises shall belong to the Landlord unless the Tenant
reopens for business within such time period.
37. Notices. All notices required shall be in writing given by certified
mail, return receipt requested or by a recognized overnight delivery service:
TO LANDLORD: Radnor Chase Cronies
c/o Kenneth S. Gross Investment Group
110 West Front Street
Media, PA 19063
Attention: Kenneth S. Gross
WITH A COPY TO: Steven G. Brown, Esquire
Petrikin, Wellman, Damico, Brown & Petrosa
109 Chesley Drive
Media, PA 19063
TO TENANT: The Bryn Mawr Trust Company
801 Lancaster Avenue
Bryn Mawr, PA 19010
Attention: Robert J. Ricciardi, Executive Vice President
Such address may be changed from time to time by either party by serving
notices as above provided. Notices shall be deemed given one day after deposited
in the U.S. mail, postage prepaid or delivered to the overnight courier.
22
38. Mechanic's Liens.
(a) Mechanic's Liens Prohibited. Tenant shall not suffer any mechanic's
lien to be filed against the Premises by reason of work, labor, services or
materials performed or furnished to Tenant or anyone holding the Premises, or
any part hereof, through or under Tenant. If any mechanic's lien or any notice
of intention, to file a mechanic's lien shall at any time be filed against the
Premises Tenant shall, at Tenant's cost, within twenty (20) days after knowledge
or notice of the filing of any mechanic's lien cause the same to be removed or
discharged of record by payment, bond, order of a court of competent
jurisdiction, or otherwise.
(b) Landlord's Remedy for Tenant' Breach. If Tenant shall fail to
remove or discharge any mechanic's lien or any notice of intention to file a
mechanic's lien within the prescribed time, then in addition to any other right
or remedy of Landlord, Landlord may, at its option, procure the removal or
discharge of the same by payment or bond or otherwise. Any amount paid by
Landlord for such purpose, together with all legal and other expenses of
Landlord in procuring the removal or discharge of such lien or notice of
intention and together with interest thereof at the highest permissible rate
shall be and become due and payable by Tenant to Landlord as additional rent,
and in the event of Tenant's failure to pay therefor within fifteen (15) days
after demand, the same shall be added to and be due and payable with the next
month's rent.
(c) Non-Consent of Landlord to Filing of Liens. Nothing contained in
this Lease shall be construed as a consent on the part of Landlord to subject
Landlord's estate in the Premises to any lien or liability arising out of
Tenant's use or occupancy of the premises.
39. Lease Contains All Agreements. It is expressly understood and agreed by
and between the parties hereto that this Lease sets forth all the promises,
agreements, and conditions or understandings between Landlord and Tenant
relative to the Premises, and that there are no promises, agreements, conditions
or understandings, either oral or written, between them other than as are herein
set forth. It is further understood and agreed that, except as herein otherwise
provided, no subsequent alteration, amendment, change or addition to this Lease
shall be binding upon Landlord or Tenant unless reduced to writing and signed by
them.
40. Heirs and Assignees. All rights and liabilities herein given to, or
imposed upon, the respective parties hereto shall extend to and bind the several
and respective heirs, executors, administrators, successors and assigns of said
parties; and if there shall be more than one Tenant, they shall all be bound
jointly and severally by the terms covenants and agreements herein, and the word
"Tenant" shall be deemed and taken to mean each and every person or party
mentioned as a Tenant herein, be the same one or more; and if there shall be
more than one Tenant, any notice required or permitted by the terms of this
Lease may be given by or `to any one thereof, and shall have the same force and
effect as if given by or to all thereof. The word, "his" and "him" or "its"
wherever stated herein, shall be deemed to refer to the "Landlord" or "Tenant"
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whether such Landlord or Tenant be singular or plural and irrespective of
gender. No rights, however, shall inure to the benefit of any assignee of Tenant
unless the assignment to such assignee has been approved by Landlord in writing
as aforesaid.
41. Recording. Upon request by either party, a memorandum or short form
Lease, setting forth only such terms as are required, in form to be reasonably
agreed upon by the parties hereto, shall be executed by both parties. The party
who makes the request for the memorandum shall be responsible for the entire
recording cost.
42. Headings No Part of Lease. Any headings preceding the text of the
several paragraphs and subparagraphs hereof are inserted solely for convenience
or reference and shall not constitute a part of this Lease nor shall they affect
its meaning, construction or effect.
43. Late Payment. In the event that any payment of Base Rent or additional
rent or any other charge required to be paid by Tenant under the provisions of
this Lease, shall not be paid within ten (10) days of the due date, Tenant shall
pay to Landlord a late charge of five (5%) percent of such past due payment; and
such late charge shall be deemed "rent" for all purposes under this Lease.
44. Severability. If a provision of this Lease Agreement is held invalid,
it is hereby agreed that all valid provisions that are severable from the
invalid provision remain in effect. If a provision in this Lease Agreement is
held invalid in one or more of its applications, the provision remains in effect
in all valid applications.
45. Limited Landlord Liability.
(a) Tenant agrees that neither Landlord nor any officer, director,
shareholder, member or partner of Landlord, and no owner of any beneficial
interest in Landlord, past or present, shall have any personal liability under
this Lease. Tenant further agrees that this Lease and the obligations created
hereby, whether expressed or implied in this Lease, shall be limited solely to
Landlord's interest in the Premises. There shall be no personal obligations
incurred by the Landlord, directors, officers, shareholders, members or partners
of Landlord or by any trustee, beneficiary, partner or other individual or
entity having any interest in this Lease or in this Premises.
(b) In the event, that the interest or estate of Landlord in the
Premises shall terminate by execution or foreclosure sales, or for any other
reason, or if for any reason Landlord ceases to be entitled to the rents
hereunder, then, in such event, Landlord and Landlord's agents shall be released
and relieved from all liability and responsibility under this Lease and Tenant
shall, subject to the provisions of any SNDA, attorn to the successor to
Landlord's interest or estate and recognize such successor as Landlord under
this Lease and, in such event, such successor shall become liable to perform all
the obligations contained in this Lease.
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46. Signage. Tenant shall have the right to place signs on the Premises
provided that they comply with any and all laws and ordinances applicable
thereto.
47. Environmental Compliance.
(a) Tenant covenants and warrants that its use of the Premises will at
all times comply with and conform to all laws, statutes, ordinances, rules and
regulations of any governmental or regulatory authority ("Laws") which relate to
the transportation, storage, placement, handling, treatment, discharge,
generation, production or disposal (collectively "Treatment") of any waste,
petroleum product, waste products, radioactive waste, polychlorinated biphenyls,
asbestos, hazardous materials of any kind and any substance which is regulated
by law, statute, ordinance, rule or regulation (collectively "Waste"). Tenant
further covenants and warrants that it will not engage in or permit any person
or any entity to engage in any treatment of any Waste on or which effects the
Premises except for the Existing Waste. Landlord is given permission to come
upon the Premises to remediate any Existing Waste if required from time to time.
Immediately upon receipt of any Notice (as hereinafter defined) from any
person or entity, Tenant shall deliver to Landlord a true and correct and
complete copy of any written Notice. "Notice" shall mean any note, notice or
report of any suit, proceeding, investigation, order, consent order, injunction,
writ, award or action related to or effecting or indicating the Treatment of
Waste in or effecting the Premises.
Tenant hereby agrees it will indemnify, defend, save and hold harmless
Landlord, Landlord's management company and their respective officers,
directors, shareholders, members, employees, agents, partners and their
respective heirs, successors and assigns (collectively "Indemnified Parties")
against and from, and to reimburse the Indemnified Parties with respect to any
and all damages, claims, liabilities, laws, costs and expenses, (including
without limitation attorney's fees and expenses, court costs, administrative
costs and costs of appeals) incurred or asserted against the Indemnified Parties
by reason of or arising out of (a) breach of any representation or undertaking
of Tenant under this Section or (b) arising out of the Treatment of any Waste by
Tenant or any licensee, concessionaire, manager or other party occupying or
using the Premises in or affecting the Premises after the date hereof.
Landlord is given the right, but not the obligation, to inspect and monitor
the Premises and Tenant's use of the Premises in order to confirm Tenant's
compliance with the terms of this Section and the representations set forth in
this Section. Landlord may require Tenant to deliver to Landlord concurrent with
Tenant's vacating the Premises upon the expiration of this Lease, or any earlier
vacation of the Premises by Tenant, at Tenant's expense, a certified statement
by a licensed engineer satisfactory to Landlord in form and substance
satisfactory to Landlord stating that Tenant and Tenant's use of the Premises
complied with and conformed to all Laws which relate to the Treatment of any
Waste in or effecting the Premises.
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Tenant agrees to deliver upon request from Landlord, estoppel certificates
to Landlord expressly stipulating whether Tenant is engaged in or has engaged in
the Treatment of any Waste in or affecting the Premises, and whether Tenant has
caused any spill, contamination, discharge, leakage, release or escape of any
Waste in or effecting the Premises, whether sudden or gradual, accidental,
anticipated or any other nature at or effecting the Premises and whether, to the
best of Tenant's knowledge, such an occurrence has otherwise occurred in or
effecting the Premises.
(b) The provisions of this section shall survive the termination of
Tenant's tenancy or of this Lease.
48. Holdover. Should Tenant wrongfully continue to occupy the Premises
after expiration of the term of this Lease or any renewal or renewals thereof,
or after a forfeiture incurred, such tenancy shall (without limitation on any of
Landlord's rights or remedies therefor) be one at sufferance from month to month
at a minimum monthly rent equal to one and one-half the Base Rent and Additional
Rent payable for the last month of the term of this Lease prior to the holdover.
49. Time is of the Essence. Time is of the essence in performing the
covenants contained herein.
50. Interest. If any payment of rent, additional rent or other charge
payable by Tenant to Landlord under this Lease is not paid within thirty (30)
days of its due date it shall thereafter bear interest at a rate of ten percent
(10%) per annum compounded annually.
51. Waiver of Jury Trial. To the extent such waiver is permitted by law,
the parties waive trial by jury in any action or proceeding brought in
connection with this Lease or the Premises.
52. Title to Improvements.
(a) Any and all Improvements made upon the Premises shall become the
property of Landlord upon the termination or expiration of this Lease.
Notwithstanding the foregoing, Tenant shall retain title to and be allowed to
remove from the Premises at the termination of the Lease its trade fixtures
(exclusive of HVAC, plumbing, electrical and other mechanical or operating
systems of its building) provided it shall repair all damage to its building
resulting from such removal.
(b) At the end of the term or sooner termination of this Lease for any
reason, Tenant shall surrender said Premises and Improvements to Landlord in
good condition, reasonable wear and tear excepted.
53. Leasehold Title Insurance. Tenant shall be entitled to procure a
leasehold title insurance policy on the Premises. The agreed upon permitted
excep-
26
tions to said leasehold title insurance policy shall be as set forth on Exhibit
"D" attached hereto and incorporated herein by reference.
54. Brokers. The parties represent and warrant to each other that
neither of them has dealt with any real estate brokers or finders with regard to
this Lease and further agree to indemnify and hold each other harmless from any
claims made by any such broker or finders.
55. Notice of Intent to Sell. Landlord agrees that if, at any time, it
intends to sell the Premises it will, prior to listing the Premises for sale,
notify Tenant in writing of such intent, in order to give Tenant a period of
thirty (30) days within which to notify Landlord of any offer which Tenant
wishes to make for the purchase of the Premises.
IN WITNESS WHEREOF, the parties hereto have executed these presents the
day and year first above written, intending to be legally bound hereby.
SEALED AND DELIVERED IN
THE PRESENCE OF:
LANDLORD:
RADNOR CHASE CRONIES
______________________________ By: ________________________________________
Witness Kenneth S. Gross
______________________________ By: ________________________________________
Witness Nicholas A. Cannone
TENANT:
THE BRYN MAWR TRUST COMPANY
By: ________________________________________
Attest: ____________________________________
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EXHIBIT "A"
LEGAL DESCRIPTION
ALL THAT CERTAIN lot or piece of ground, SITUATE in Newtown Township, Delaware
County, Pennsylvania, and described according to a Survey and plan thereof made
by Franklin and Lindsey, Registered Engineers, Philadelphia on August 5, 1947,
as follows, to wit:
BEGINNING at a point of intersection of the Westerly side of St. Albans Avenue
as laid out 80 feet wide), with the original center line of the Old Phila. and
West Chester Turnpike, as laid out 60 feet wide, which said center line is at
the title line of this property; thence North 74 degrees, 51 minutes West, along
old center line for the distance of 167.23 feet to a corner point; thence North
14 degrees, 36 minutes, 40 seconds East, crossing a part of the Phila. and West
Chester Road State Highway, as laid out 120 feet wide, and shown on the above
mentioned plan, passing over a stone monument in the Northerly side of said
Highway at the distance of 82.50 feet and partly along other land of Penna.
Hospital, for a total distance of 220.82 feet to a corner stone monument; thence
South 68 degrees, 51 minutes East, still along said other land of the Penna.
Hospital, for a distance of 191.45 feet to a corner stone monument in the
Westerly side of St. Albans Avenue, aforesaid; thence South 21 degrees, 9
minutes West, partly along the said Westerly side of St. Albans, Avenue and
partly along the extension of said Westerly side, crossing a portion of the
aforementioned State Highway for a distance of 201.91 feet to the first
mentioned point and place of beginning.
FOLIO NO. 30-00-02824-00
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EXHIBIT "B"
APPROVED PLANS
Set of approved plans in possession of Landlord and Tenant
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EXHIBIT "C"
PLANS
Set of plans in possession of Landlord and Tenant
30
Exhibit "D"
PERMITTED EXCEPTIONS
.. Any mortgages, assignments of rents and leases, security interests or other
liens in conjunction with financing by Landlord now or hereafter placed on
the Premises by Landlord.
.. Unrecorded easements, discrepancies or conflicts in boundary lines, shortages
in area and encroachments which an accurate and complete survey would
disclose.
.. Rights granted to Philadelphia Electric Company and Bell Telephone Company in
Deed Books 1047 page 293 and 1307 page 443.
.. Rights granted to Newtown Twp. Delaware County Sewer Authority in Deed Book
2218 page 452.
.. Real estate taxes not yet due and payable.
.. Terms of any unrecorded lease or rights of parties in possession as to
existing Lease only.
.. Possible additional assessments for taxes for new construction or for any
major improvements pursuant to provisions of Acts of Assembly relating
thereto.
.. Both parties agree to the placement of additional easements on the Premises
in conjunction with the development of the Improvements and/or as reasonably
required by the Landlord in the future.
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