ex10_1.htm


    
      

    

    
      Exhibit
10.1

      


      ASSIGNMENT, ASSUMPTION AND
MODIFICATION OF GROUND LEASE

      


      


      THIS
ASSIGNMENT, ASSUMPTION AND MODIFICATION OF GROUND LEASE (the “Assignment”) is
made as of the _26__ day of __October__, 2009, by
and among JOSEPH I LIMITED PARTNERSHIP, a Pennsylvania limited partnership,
having an address of 1510 Bangor Road, Bangor, Pennsylvania 18013 (“Landlord”),
EMBASSY BANK FOR THE LEHIGH VALLEY, a Pennsylvania financial institution, having
an address of 100 Gateway Drive, Bethlehem, Pennsylvania 18017 (“Assignor”) and
POLARIS LOWER NAZ DEVELOPMENT, LLC, a Pennsylvania limited liability company,
having an address of 7562 Penn Drive, Suite 100, Allentown, Pennsylvania 18106
(the “Assignee”).

      


      


      W I T N E
S S E T H :

      


      


      WHEREAS,
Landlord and Assignor as Tenant are parties to that certain “Shopping Center
Lease” dated March 13, 2009 (the “Ground Lease”) with respect to certain leased
Premises located in a Shopping Center at Corriere Road and Route 248, situate
partially in Lower Nazareth Township and partially in Palmer Township,
Northampton County, Pennsylvania, as more particularly described
therein.  A copy of the Ground Lease is attached hereto as Exhibit “A”
and incorporated herein by reference; and

      


      WHEREAS,
the Premises is a portion of tax parcel K8-10A-5A; and

      


      WHEREAS,
the Landlord has secured all zoning, planning, subdivision and other necessary
approvals, including without limitation all approvals required pursuant to
Section 3.2(e) of the Ground Lease, and will satisfy all conditions thereof to
permit the Assignee to secure building permits for the construction of a bank
branch office on the Premises (provided Assignee shall be responsible for
complying with all permit specific requirements necessary to obtain such
building permits); and

      


      WHEREAS,
the Ground Lease authorizes Assignor as Tenant to undertake construction of
certain Tenant’s Work (the “Tenant’s Improvements”) on the Premises;
and

      


      WHEREAS,
Assignor wishes to assign the Ground Lease to Assignee, to have Assignee
undertake the Tenant’s Work and then to lease back from Assignee (the
“Commercial Lease”) the Premises with the Tenant’s Improvements constructed
thereon; and

      


      WHEREAS,
Section 6.1 of the Ground Lease permits assignment and subleasing of the Ground
Lease, and Landlord has consented only to the above-described assignment of the
Ground Lease to Assignee and has consented to Assignee’s subleasing the improved
Premises to Assignor by the Commercial Lease; and


      
        
           


        

        
          
          

          
            

          

        

        
           


        

      


      WHEREAS,
in connection with the assignment of the Ground Lease, Landlord and Assignee
wish to modify certain of the terms and provisions of the Ground Lease and to
memorialize their agreement with respect to such modifications
herein.

      


      NOW,
THEREFORE, for and in consideration of the premises, the mutual covenants
contained herein and intending to be legally bound, the parties hereby agree as
follows:

      


      1.     Incorporation of
Recitals.   The foregoing Recitals are incorporated herein
by reference as a material part hereof.  All terms used but not
otherwise defined herein shall have their meanings as set forth in the Ground
Lease.

      


      2.    
Representations,
Covenants and Warranties.   As a material inducement to
Assignee to assume the obligations of Assignor as Tenant under the Ground Lease,
Landlord and Assignor represent, warrant and covenant to Assignee as
follows:

      


      A.   
The Ground Lease attached as Exhibit “A” hereto is in full force and effect and
has not been modified, assigned, supplemented or further amended, nor are there
any other agreements between Landlord and Assignor concerning the Ground Lease
or the Premises, whether oral or written.  The Commencement Agreement
and the Pad Delivery Notice pursuant to the Ground Lease have not yet been
executed and delivered.

      


      B.    
Assignor is not in default under the Ground Lease, and to the actual knowledge
of Landlord there are no events which have occurred that, with the giving of
notice or the passage of time or both, would result in a default by Assignor as
Tenant under the Ground Lease.

      


      C.    
Assignor has paid all rents and all other sums due (if any) under the Ground
Lease current to the date hereof.

      


      D.    
There are no uncured defaults on the part of Landlord under the Ground Lease,
Assignor has not sent any notice of default under the Ground Lease to Landlord,
and there are no events which have occurred that, with the giving of notice or
the passage of time or both, would result in a default by Landlord under the
Ground Lease, provided however that Landlord covenants and agrees to complete,
at Landlord’s sole cost and expense, all Landlord’s Work as set forth on Exhibit
“L” of the Lease, upon the following terms, subject to Force Majeure:
(i)  Landlord shall Substantially Complete the Building Pad upon the
later of thirty (30) days after (a) the complete execution of this Assignment or
(b) Landlord’s approval of Tenant’s Plans (including a Geotech Report) and all
contingencies set forth in the Ground Lease have been satisfied and/or waived;
(ii) Landlord shall Substantially Complete Landlord’s Work, other than the
Building Pad, final paving and striping, thirty (30) days after completion of
the Building Pad and completion by Tenant of Tenant’s Work; and (iii) Landlord
shall complete the final paving and striping within thirty (30) days after
request by Tenant, provided that, Landlord and Tenant acknowledge that the final
paving and striping cannot be completed from November 1st –
April 1st.


      
        
           


        

        
          2

          
            

          

        

        
           


        

      


      E.  The
execution and delivery of, and performance by Landlord and Assignor pursuant to,
this Assignment will not violate, conflict with or constitute a default under
any agreement, order, rule or law by which either party or the Premises is
bound, and any and all third party consents required for this Assignment have
been obtained in writing.

      


      F.  The
person executing this Assignment for each party has the authority to execute and
deliver this Assignment on behalf of such party.

      


      G.  This
Assignment includes all right, title and interest in and to all studies,
agreements, permits, licenses, plans, authorizations and approvals relating to
Tenant’s Work and to the occupancy and operation of the Premises (collectively,
the “Property Development Approvals”).  All costs associated with the
Property Development Approvals have been or will be fully paid and satisfied by
Landlord, provided that, per Section 3.2(d) of the Ground
Lease  Tenant is responsible to reimburse Landlord, upon the Rent
Commencement Date, for any utility, traffic and impact fees incurred up to an
amount of $15,000.00.  Notwithstanding the foregoing and anything to
the contrary contained in the Ground Lease, Tenant shall be responsible for all
costs associated with all studies, agreements, permits, licenses, plans,
authorizations and approvals relating to Tenant’s Work.

      


      H.  Landlord
shall continue to be bound by and shall fully comply with all Developer
obligations pursuant to that certain Land Development Improvements Agreement
dated August 15, 2009 (the “Improvements Agreement”) and recorded in the Office
of the Northampton County Recorder of Deeds in Book 2009-1, Page 250586, and
Landlord shall indemnify, defend and hold Assignee harmless from and against any
and all liabilities related thereto.

      


      3.     Assignment.

      


      A.  Assignor
hereby assigns, transfers, sets over and conveys to Assignee, all interest as
Tenant in and to the Premises under the Ground Lease.  Assignee
accepts the foregoing assignment and, except as specifically set forth herein,
agrees to assume, fulfill, perform and discharge the obligations and liabilities
of Assignor under the Ground Lease hereby assigned and as modified herein, which
arise on or after the effective date hereof.

      


      B.  Assignor
shall remain liable for performing and discharging all obligations and
liabilities relating to the Ground Lease for which it was responsible and which
arose prior to the date hereof and shall defend, indemnify and hold Assignee
harmless from and against any and all claims or losses arising prior to the
effective date hereof relating to Tenant’s obligations under the Ground Lease,
including without limitation losses related to reasonable attorney’s fees and
expenses incurred to resolve such claims or losses.

      


      C.  Assignor
acknowledges that pursuant to Section 6.1(c) of the Ground Lease, this
Assignment does not release Assignor from the obligations under the Ground
Lease, including, without limitation, the obligation to pay Minimum Rent and
Additional Rent and all other amounts which become due under the Ground Lease in
the event Assignee fails to do so within any cure period provided in the Lease,
if any.  Notwithstanding the foregoing, in the event that Assignor
elects not to renew its Commercial Lease with Assignee, Assignor shall be
released from its obligations under the Ground Lease arising after the
expiration of the then-current term of the Ground Lease.


      
        
           


        

        
          3

          
            

          

        

        
           


        

      


      4.    
 Modification of
Ground Lease.  The parties agree that the Ground Lease shall be
modified as follows:

      


      A.  Section
3.1(a) of the Ground Lease is hereby deleted in its entirety and replaced with
the foregoing: “The term of this Lease shall be the period specified in Section
“1.2” hereof as the “Lease Term”.  The “Rent Commencement Date” of
this Lease shall be the earlier of (a) the opening for business or (b) six (6)
months after the date when Landlord Substantially Completes the Building Pad and
Landlord has Substantially Completed all other site work set forth on Exhibit
“L”, except for the final paving and striping, by the end of such six (6) month
period, unless Landlord is prevented by Tenant’s failure to deliver Tenant’s
Plans (including the Geotech Report) by September 1, 2009 and/or Tenant’s
failure to complete Tenant’s Work as set forth on Exhibit “T”, in which event
Tenant shall commence paying rent on the date which is six (6) months after the
date of this Assignment notwithstanding that Landlord’s Work and/or Tenant’s
Work are not completed and/or Tenant has not opened for
business.  Landlord will complete Landlord’s Work promptly when Tenant
has completed such work to enable Landlord to complete its work.  If
Landlord has not Substantially Completed the Building Pad and all other site
work set forth on Exhibit “L”, except for the final paving and striping, by the
end of such six (6) month period, not due to Tenant’s fault, the Rent
Commencement Date, shall be extended until Landlord has Substantially Completed
said Work.  If Tenant’s Building is not completed by the Rent
Commencement Date, Tenant shall commence paying Rent and all other charges
subject to the provisions of this Section 3.1(a) and the failure to have the
Building completed shall not be an Event of Default, unless Tenant’s Building is
not completed by the date provided in Section 3.3(a) below”.

      


      B.  Section
3.2(b)(1) of the Ground Lease is hereby modified to provide that the Target Date
for Landlord’s Substantial Completion of the Building Pad shall be the later of
thirty (30) days after (a) the complete execution of this Assignment or (b) the
later of (i) Landlord’s approval of Tenant’s Plans (including a Geotech Report)
and  (ii) all contingencies set forth in the Ground Lease have been
satisfied and/or waived.

      


      C.  Section
3.3(a) of the Ground Lease is hereby modified to provide that Tenant is
obligated to perform only Tenant’s Work as set forth in Exhibit “T” and all
other work required by Tenant under Section 3.3 of the Lease, including but not
limited to all work required in connection with the drive-thru lanes, except for
the gravel sub-base and paving related to the drive-thru lanes which Landlord is
responsible to complete.

      


      D.  The
first sentence of Section 3.3(c) of the Ground Lease is modified to read, “The
Building and all improvements and all leasehold repairs, alterations, additions
at any time made by the Tenant at and/or to the Premises or attached to or used
in connection with the Premises (all hereinafter collectively called the
“Tenant’s Improvements”) shall be the property of the Tenant during the Term of
this Lease and any extension of renewal of this Lease, but shall be deemed to be
the property of the Landlord upon the expiration or sooner termination of this
Lease.”  Tenant shall not be permitted to remove or demolish the
Tenant’s Improvements without the prior written consent of the
Landlord.  Notwithstanding anything to the contrary contained in the
Ground Lease, Landlord shall not have the right to require Assignee to remove
any of the Tenant’s Improvements.  Any and all transfer taxes which
may become due and owing by virtue of the Tenant’s Improvements becoming the
property of Landlord upon termination of the Ground Lease, shall be paid solely
by Landlord.  The definition of the “Premises” leased from Landlord
shall not include improvements constructed by Tenant because Tenant’s
Improvements shall be owned by Tenant during the Term of the Lease and any
extension or renewal thereof.


      
        
           


        

        
          4

          
            

          

        

        
           


        

      


      E.  Section
3.3(e) of the Ground Lease is hereby modified to provide that the Tenant shall
prepare the Plans within thirty (30) days after the execution of this
Assignment, and that the Plans shall be deemed approved by Landlord if Landlord
does not advise Tenant of any objections to the Plans within five (5) business
days after receipt of such Plans.  Notwithstanding the foregoing or
anything to the contrary contained in the Ground Lease, Tenant shall deliver the
Plans, including but not limited to a Geotech Report, to Landlord no later than
September 1, 2009.  The parties have agreed that the Tenant’s Building
Plans as attached hereto as Exhibit “B” and Landlord’s Site Plans as attached
hereto as Exhibit “C” are approved.

      


      F.  Section
3.5(a) of the Ground Lease is hereby modified to provide that Tenant shall have
sixty (60) days following the date of Landlord’s approval of the Plans in which
to obtain a building permit.

      


      G.  Section
3.5 of the Ground Lease is hereby amended by adding thereto a new subsection (g)
as follows:

      


      “(g)  Recordation
of Landlord’s land development plan for the Shopping Center and satisfaction by
Landlord of all conditions and requirements thereof, including without
limitation the posting of all security.”

       
 

      H.  Section
3.5 of the Ground Lease is further modified to provide that the deadline for
satisfaction of the contingencies (except 3.5(e) which shall be satisfied upon
Landlord’s delivery of the Building Pad and completion of remediation in
compliance with the requirements set forth below) shall be September 11, 2009
for (i) recordation of the Improvements Agreement and the Plan (including the
posting of all required security in connection therewith) and (ii) acceptable
soil conditions to be verified by Tenant.  The date “June 1, 2009”
appearing in the last paragraph of Section 3.5 of the Ground Lease is hereby
deleted, and the date, “September 11, 2009” is hereby substituted
therefor.  Notwithstanding the foregoing, Landlord acknowledges
receipt from Assignee of that certain Geotechnical Engineering Report dated
August 19, 2009 by Geo-Technology Associates, Inc. (the “Geotech Report”) which
revealed unsuitable soils located on the site of the Building
Pad.  Landlord shall, by the date set forth herein for Substantial
Completion of the Building Pad, and at Landlord’s sole cost and expense,
complete all remediation as recommended by the Geotech Report and shall provide
Assignee with a copy of a written report prepared by a Geotechnical Engineer
reasonably satisfactory to Assignee, confirming that the remediation has been
fully and properly performed in accordance with the recommendations of the
Geotech Report and that the Building Pad is acceptable for the construction of
Tenant’s Building.


      
        
           


        

        
          5

          
            

          

        

        
           


        

      


      I. 
 Section 6.1(d) of the Ground Lease is hereby modified to provide that
Assignee shall be entitled to the same rights and notices as Tenant pursuant to
Section 6.1(d).

      


      J.  
Section 8.1(b) of the Ground Lease is hereby modified to provide that the
minimum limits of liability of the insurance required to be maintained by Tenant
thereunder shall be Two Million Dollars ($2,000,000.00), level limits for bodily
injury (or death) and property damage per occurrence.  During the
construction of Tenant’s Building, Assignee agrees to require the general
contractor to add Landlord as an additional insured to the general contractor’s
builder’s risk policy.

      


      K.  Section
10.1(a) of the Ground Lease is hereby modified to delete the reference to,
“including flood and earthquake,” and to delete the sentence which reads,
“Tenant shall also obtain rental interruption insurance for the benefit of the
Landlord.”

      


      L.  Section
10.1(b) of the Ground Lease is hereby modified to delete the reference to three
(3) days written notice and to substitute therefor, “seven (7) days written
notice.”

      


      M. Section
14.1(c) of the Ground Lease is hereby modified to require that any obligation of
Tenant to pay in advance the entire amount of the Minimum Rent and estimated
Additional Rent for the balance of the Lease Term shall be discounted to its
present value.

      


      N.  Section
17.6 of the Ground Lease is hereby modified to provide that all notices intended
for Tenant shall be also be addressed to Assignee at the present mailing address
of Assignee as set forth in this Assignment, with a copy to Jane P. Long,
Esquire, Fitzpatrick Lentz & Bubba, P.C., 4001 Schoolhouse Lane, P.O. Box
219, Center Valley, PA 18034 (or to such other address or addresses as may from
time to time hereafter be designated by Assignee by like notice).

      


      O.  Section
20.1 of the Ground Lease is hereby modified to add the following
subsections:

      


      (j)  Landlord
agrees that the name of the Leasehold Mortgagee(s) may be added to the “Loss
Payable Endorsement” of any and all insurance policies required to be carried by
Tenant hereunder on condition that the insurance proceeds are to be applied in
the manner specified in this Lease and that the Leasehold Mortgage(s) or
collateral document shall so provide.

      


      (k)  Tenant’s
share of the proceeds of any insurance policies or arising from a condemnation
are to be held by any Leasehold Mortgagee(s) and distributed pursuant to the
provisions of this Ground Lease.


      
        
           


        

        
          6

          
            

          

        

        
           


        

      


      (l)  The
Leasehold Mortgagee(s) shall be given notice of any proceedings between the
parties hereto, and shall have the right to intervene therein and be made a
party to such proceedings, and the parties hereto do hereby consent to such
intervention. In the event that the Leasehold Mortgagee(s) shall not elect to
intervene or become a party to such proceedings, the Leasehold Mortgagee(s)
shall receive notice of, and a copy of any award or decision made in said
proceedings.

      


      (m)  Landlord
shall, upon request, execute, acknowledge and deliver to each Leasehold
Mortgagee(s), an agreement prepared at the sole cost and expense of Tenant, in
form reasonably satisfactory to such Leasehold Mortgagee(s) and Landlord, among
Landlord, Tenant and Leasehold Mortgagee(s), reaffirming its consent to all of
the provisions of this Article XX and a Landlord’s Release, Waiver and
Non-Disturbance Agreement in substantially the form of Exhibit “D” attached
hereto.  The term “Mortgage”, whenever used herein, shall include
whatever security instruments are used in the locale of the Premises, such as
without limitation, deeds of trust, security deeds and conditional deeds, as
well as financing statements, security agreements and other documentation
required pursuant to the Uniform Commercial Code. The term “Mortgage”, whenever
used herein, shall also include any instruments required in connection with a
sale-leaseback transaction.

       
 

      P.  Exhibit
“T” is hereby modified as follows:

      


      (i)   Subsection
(c) of Exhibit “T” shall read, “Landscaping around the Building or in the
Building Perimeter.”  Tenant is responsible for the Landscaping in all
areas located from the curbs to the Building; and

      


      (ii)  Subsection
(e) of Exhibit “T” is modified to read, “Building signage and Tenant’s panel for
monument sign including all electrical connections.”

      


      Q.  Notwithstanding
anything to the contrary contained in the Lease, Tenant’s construction and
maintenance obligations shall be limited to all construction and maintenance of
whatever nature to the Building and within the Building Perimeter as depicted on
the Site Plan, including as set forth on Exhibit “T” to the Ground Lease (as
modified hereby) and except for installation and construction of the gravel
sub-base related to the drive-thru lanes for which Landlord is
responsible.

      


      R.  The
parties agree to execute and record a Memorandum of Lease Assignment and
Assumption, in form and content reasonably satisfactory to the parties,
evidencing, among other things, this Assignment and Assignee’s Right of First
Refusal with respect to the Premises.

      


      S.  Exhibit
“S” currently attached to the Ground Lease is hereby deleted and replaced with
Exhibit “S” attached hereto and made a part hereof.

      


      5.    
Further
Assurances.    The parties agree that they shall
reasonably cooperate to provide such documents and information as may be
reasonably required by Assignee’s lender relative to the Ground Lease, the
Tenant’s construction of the Tenant’s Improvements and the Commercial Lease to
Assignor.


      
        
           


        

        
          7

          
            

          

        

        
           


        

      


      6.    
Assignment/Binding
Effect.    This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.  Assignee shall have the absolute right to assign its rights
hereunder to an affiliated entity owned and/or controlled by Assignee or by
related parties to Assignee.

      


      7.    
Governing
Law.   This Assignment shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania, without regard
to the conflicts of laws doctrine of such state.

      


      8.   
 Continuing
Effect.   The Ground Lease, as assigned, assumed and
modified hereby, shall remain in full force and effect and is hereby ratified by
the parties.

      


      


      [Remainder
of page intentionally left blank.  Signature page
follows.]


      
        
           


        

        
          8

          
            

          

        

        
           


        

      


      IN
WITNESS WHEREOF, and intending to be legally bound hereby, the parties have duly
executed this Assignment as of the day and date first above written, each by its
duly authorized representative.


       

      
        	 WITNESS/ATTEST:	 	JOSEPH
      LIMITED PARTNERSHIP	 
	 
      	 	
                By:  Jeanne
      & Joseph, Inc.,

              	 
	
                 

              	 	      
                its
      general partner

              	 
	 
      	 	 
      	 
      	 
	 
      	 	 
      	 
      	 
	
                /s/ Anne M. Delaney

              	 	
                By:

              	/s/
      Jeanne Joseph	 
	 
      	 	
                Name:

              	Jeanne
      Joseph 	 
	 
      	 	
                Title:

              	General
      Partner	 
	 
      	 	 
      	 
      	 
	 
      	 	 
      	 
      	 
	 
      	 	
                EMBASSY
      BANK FOR THE LEHIGH

              	 
	 
      	 	
                VALLEY

              	 
	 
      	 	 
      	 
      	 
	 
      	 	 
      	 
      	 
	
                /s/ Mary Louise Hardcastle

              	 	
                By:

              	
                /s/ David M. Lobach Jr.

              	 
	 
      	 	
                Name:

              	
                David M. Lobach Jr.

              	 
	 
      	 	
                Title:

              	
                CEO, Chairman

              	 
	 
      	 	 
      	 
      	 
	 
      	 	 
      	 
      	 
	
                 

              	 	

                POLARIS
      LOWER NAZ DEVELOPMENT, LLC

              
	 
      	 	 
      	 
      	 
	 
      	 	 
      	 
      	 
	 
      	 	
                By:

              	
                /s/ James N. Gentile

              	 
	 
      	 	 
      	
                James
      N. Gentile, Manager

              	 
	
                 

              	 	 
      	 
      	 
	 
      	 	 
      	 
      	 
	 
      	 	
                By:

              	
                /s/ Jessica L. Gentile

              	 
	 
      	 	 
      	
                Jessica
      L. Gentile, Manager

              	 


      

      


      CONSENT
OF LANDLORD’S MORTGAGEE:

      MERCHANT’S
BANK

      


      


      
        	
                By:

              	 
      	 	 
      
	
                Name:

              	 
      	 	 
      
	
                Title:

              	 
      	 	 
      


      


      
        
           


        

        
          9

          
            

          

        

        
           


        

      


      EXHIBIT
“A”

      


      


      GROUND
LEASE

      


      


      Incorporated
by reference to Exhibit 10.9 of Embassy Bancorp, Inc.'s Form 10-K filed on March
30, 2009.


      
        
           


        

        
          10

          
            

          

        

        
           


        

      


      EXHIBIT
“B”

      


      TENANT’S BUILDING
PLANS

      


      
        	
                 
      

              	
                ·

              	
                Sheet
      T-1, A-1.01, A-1.02, A-1.03, A-2.01, A-2.02, A-3.01, A-3.02, A-4.01,
      A-5.01prepared by Bonsall Shafferman dated 8/28/09 for North Star
      Construction Management, Inc. and Embassy
Bank.

              


      

      
        	
                 
      

              	
                ·

              	
                Sheet
      S1.0, S1.1, S2.0, S2.1, S2.2, S3.0 prepared by O’Donnell and Naccarato,
      Inc. dated 8/28/09 for Bonsall Shafferman and Embassy
  Bank.

              


      

      
        	
                 
      

              	
                ·

              	
                Sheet
      P-1 and P-2 prepared by J.L. Uhrich Company, Inc. dated 6/19/09 for
      Embassy Bank.

              


      

      
        	
                 
      

              	
                ·

              	
                Sheet
      H-1 prepared by Jack Lehr dated 8/28/09 for Embassy
  Bank.

              


      

      
        	
                 
      

              	
                ·

              	
                Sheet
      E1, E2 and SE1 prepared by West Side Hammer Electric dated 8/31/09 for
      Embassy Bank.

              


      


      
        
           


        

        
          11

          
            

          

        

        
           


        

      


      EXHIBIT
“C”

      


      LANDLORD’S SITE
PLANS

      


      
        	
                 
      

              	
                ·

              	
                Sheets
      1 through 13, prepared by Mark G. Hintenlang, P.E. for Joseph I, LP with a
      revised date of June 13, 2009 marked Final
Plan.

              


      


      
        
           


        

        
          12

          
            

          

        

        
           


        

      


      EXHIBIT
“D”

      


      LANDLORD’S RELEASE, WAIVER
AND NON-DISTURBANCE AGREEMENT

      


      THIS AGREEMENT (“Agreement”)
is made effective as of the ___ day of _________, 2009, by _________________
(collectively, “Landlord”), in favor of UNIVEST NATIONAL BANK AND TRUST CO.
(“Lender”).

      


      BACKGROUND

      


      A.           Landlord
is the owner of the entire fee of certain premises located in ______________,
__________ County, Pennsylvania, as further described on Exhibit
“A” attached
hereto (the “Leased
Premises”), which Leased Premises are leased by Landlord to
____________________ (“Borrower”) pursuant to the terms of that certain Ground
Lease dated ____ day of _________, _______ (the “Lease”).

      


      B.           Borrower
desires to assign and mortgage Borrower’s interest in and under the Lease to
Lender to secure all present and future obligations of Borrower to Lender (the
“Bank Obligations”), and
to obtain Landlord’s consent to the grant of such leasehold mortgage and
Landlord’s agreement to the additional terms contained herein.

      


      NOW, THEREFORE, for good and
valuable consideration and intending to be legally bound hereby, and, upon the
request of Lender and Borrower, Landlord hereby agrees as follows:

      


      
        	
                 
      

              	
                1.

              	
                Premises;
      Lease.  Landlord represents to Lender that it is the sole
      legal and beneficial owner of the Leased Premises and the Lease and
      further represents as follows: (i) the Lease is duly executed, in full
      force and effect and has not been amended, modified or renewed except as
      described above; (ii) Borrower is not in default of any of its obligations
      under the Lease; and (iii) all rent and other payments due from Borrower
      under the Lease have been paid through the date
  hereof.

              


      

      


      
        	
                 
      

              	
                2.

              	
                Leasehold
      Mortgage.  Landlord has been advised that Lender has been
      granted by Borrower a mortgage lien against and assignment of Borrower’s
      interest in the Lease and the leasehold estate created thereby, including
      without limitation, all Borrower’s rights or options to renew or extend
      the Lease and any right of first refusal or option to purchase the Leased
      Premises, and Landlord does hereby consent to the execution, delivery and
      recordation or filing of such leasehold mortgage and assignment and of all
      renewals, modifications, consolidations, replacements, increases and
      extensions thereof (the “Leasehold
      Mortgage”).  To the extent that any other consent to the
      creation of the Leasehold Mortgage is required, Landlord has obtained the
      same.

              


      


      
        
           


        

        
          13

          
            

          

        

        
           


        

      


      
        	
                 
      

              	
                3.

              	
                Notices;
      Right to Cure.  Landlord, upon giving any notice to
      Borrower under or with respect to the Lease, including, without
      limitation, any notice of default, shall also give a copy of such notice
      to Lender.  No notice from Landlord to Borrower shall be
      effective unless and until such copy is given to Lender.  Lender
      shall have the right, but shall not be obligated, to cure any defaults by
      Borrower under the Lease.  Lender shall have the same amount of
      time after notice to it to effect such cure as Borrower has after notice
      to it, plus (a) in the case of a default in the payment of rent or
      additional rent, an additional 5 business days, and (b) in the case of any
      other default, an additional 30 business days.  Landlord shall
      accept any such cure by Lender as a cure by Borrower, and shall not
      terminate the Lease or commence to repossess the Premises without
      affording Lender such opportunity to
cure.

              


      

      


      
        	
                 
      

              	
                4.

              	
                Waiver
      of Interest in Personal Property.  Landlord hereby waives
      and releases all right, title, interest, claim and lien which Landlord has
      or may in the future have in, to or against any inventory, shelving,
      equipment, machinery, furniture, freezers, refrigerators, display cases
      and other personal property, and books and records, whether now owned or
      hereafter acquired by Borrower, and located at any time on the Leased
      Premises (collectively the “Personal
      Property”).  The Personal Property shall not be subject
      to levy, sale on distress or distraint for rent or to any claim, lien or
      demand of any kind by Landlord.  Landlord represents and
      warrants to Lender that Landlord has not received notification of any
      other entity (other than Lender) claiming a security interest in the
      Personal Property.

              


      

      


      
        	
                 
      

              	
                5.

              	
                Fixtures.  Notwithstanding
      any term of the Lease or any amendments, modifications, extensions or
      renewals thereof, or any contrary intent that may be expressed by
      Borrower, or that may otherwise be implied by law, and regardless of the
      manner of affixation, the foregoing Personal Property is and shall not be
      deemed a fixture or part of the real estate, but shall at all times be
      considered personal property.

              


      

      


      
        	
                 
      

              	
                6.

              	
                Non-Disturbance.  Landlord
      agrees that so long as all rent and other sums payable by Borrower under
      the Lease are paid, including payment within any cure period permitted
      herein or under the Lease and Lender shall have cured or shall promptly
      commence and diligently pursue curing any other default by Borrower under
      the Lease which is reasonably capable of cure by Lender, then Landlord
      shall not terminate the Lease or disturb Borrower’s or Lender’s use and
      possession thereof and any notice of termination delivered by Landlord in
      violation of the foregoing shall be null and void.  Landlord
      understands and agrees that Lender may, during such period as Lender is
      paying the rent under the Lease, take possession of the Leased Premises
      and/or commence such proceedings as Lender shall elect to foreclose,
      acquire and/or sell Borrower’s interest in the Lease subject to the
      provisions of Paragraph
      12 hereof, and that any such action shall not affect Landlord’s
      agreements contained herein, provided Lender complies with all of the
      terms and obligations under the Lease after receipt of all notices of
      default and applicable grace
periods.

              


      


      
        
           


        

        
          14

          
            

          

        

        
           


        

      


      Upon
acquisition of the Borrower’s interest under the Lease, Lender or the other
purchaser at foreclosure or assignee of an assignment in lieu of foreclosure
shall be the tenant of the Leased Premises under the Lease and shall be accepted
by the Landlord as such, provided that it then promptly and diligently cures any
outstanding defaults with respect to the Leased Premises which are reasonably
capable of cure.  No foreclosure or other actions by Lender against
the Borrower shall release or otherwise affect any rights or remedies the
Landlord may have against the Borrower under the Lease.

      


      
        	
                 
      

              	
                7.

              	
                Right
      to New Lease.  In the event that the Lease shall for any
      reason, other than failure to pay rent, terminate prior to the expiration
      of the term thereof, the Landlord shall give Lender written notice of such
      termination.  Upon written request from Lender within 60 days
      after the Landlord’s notice the Landlord shall enter into a new lease of
      the Leased Premises and a recordable notice or memorandum of such new
      lease (collectively, the “New Lease”) with Lender or its nominee (the
      “New
      Tenant”).  Any nominee must be acceptable to Landlord as
      provided in Paragraph
      12 below.  On or before the execution and delivery of the
      New Lease and as a condition to the Landlord’s obligation to enter into
      the New Lease, the New Tenant shall (a) pay delinquent rent and additional
      rent with respect to the Leased Premises as well as any other rent and
      additional rent with respect to the Leased Premises which would have been
      due under the Lease but for termination, and (b) perform any unfulfilled
      obligation of the Borrower under the Lease with respect to the Leased
      Premises which is reasonably susceptible of being performed by the New
      Tenant.  The New Lease shall be (x) effective from the date of
      termination of the Lease, (y) for a term equal to the remainder of the
      term of the Lease, and (z) at the same rent and upon the same other terms,
      conditions and agreements as the Lease.  From and after the date
      of termination of the Lease, the New Lease shall be the Lease for all
      purposes of this Agreement.  The parties shall act promptly to
      execute and deliver the New Lease, and time shall be of the essence with
      respect thereto.

              


      

      


      
        	
                 
      

              	
                8.

              	
                No
      Modification.  The Lease may not be modified, amended,
      canceled or surrendered without the express written consent of Lender,
      which consent shall not be unreasonably
  withheld.

              


      

      


      
        	
                 
      

              	
                9.

              	
                No
      Obligation to Cure/Foreclose.  Nothing contained herein
      commits or obligates Lender to cure any default or take any action to
      foreclose under the Leasehold Mortgage.  Until such time as
      Lender notifies Landlord in writing that Lender has taken possession of
      the Leased Premises, Lender shall have no liability to Landlord under the
      Lease or with respect to the Leased Premises, and then only for such
      period of time as Lender occupies the Leased Premises or otherwise
      exercises the rights of Borrower under the Lease.  Any such
      liability of Lender shall cease upon an assignment or other transfer by
      Lender of its rights under the Lease to a third
  party.

              


      


      
        
           


        

        
          15

          
            

          

        

        
           


        

      


      
        	
                 
      

              	
                10.

              	
                Insurance.  Any
      proceeds of condemnation or the exercise of eminent domain, or any
      proceeds of property casualty insurance policies, which may otherwise be
      payable to Borrower under the terms of Lease, or any decree or judgment,
      or any insurance policy, or otherwise, shall be made payable solely to
      Lender or its nominee.

              


      

      


      
        	
                 
      

              	
                11.

              	
                Restoration.  In
      the event of the enforcement of any of Lender’s rights or remedies under
      the Leasehold Mortgage, Lender agrees to repair and restore, at its sole
      cost and expense, the Leased Premises to the condition as existed prior to
      the exercise of such rights, provided that Lender has no obligation to
      replace any items removed by Lender in accordance with the terms
      hereof.

              


      

      


      
        	
                 
      

              	
                12.

              	
                Sale
      or Transfer of Lease.
      Notwithstanding anything contained herein to the contrary, except
      for a sale or assignment to Lender or its nominee whereby Lender or its
      nominee holds the Lease for no more than six (6) months, Lender shall not
      sell or otherwise transfer the Lease without the prior written consent of
      Landlord, which consent shall not be unreasonably withheld; provided, however, that
      no such consent of Landlord shall be required in the event the assignee
      has a net worth equal to or greater than that of the Borrower at the time
      of the execution of this Agreement and a reputation similar to that of
      Borrower.

              


      

      


      
        	
                 
      

              	
                13.

              	
                Fee
      Mortgage.  Subject to the rights of Borrower and Lender
      not to be disturbed as provided above nothing contained in this Release
      shall restrict or otherwise inhibit Landlord’s lender’s right, if any, to
      foreclose any fee mortgage encumbering the Leased
  Premises.

              


      

      


      
        	
                 
      

              	
                14.

              	
                Counterparts.  This
      Release may be executed in any number of counterparts, each of which shall
      be deemed to be an original, but all such counterparts shall constitute
      one and the same instrument.

              


      

      


      
        	
                 
      

              	
                15.

              	
                Extensions.  This
      Agreement shall remain effective notwithstanding any subsequent amendment,
      extension or refinancing of any of the Bank Obligations or any amendment,
      supplement, modification, extension or termination of any mortgage,
      assignment or other document, instrument or agreement between or among
      Borrower and Lender.

              


      

      


      
        	
                 
      

              	
                16.

              	
                Reliance.  Landlord
      understands that Lender is relying on the agreements, representations and
      warranties contained in this Agreement in extending certain credit
      facilities to Borrower.

              


      

      


      
        	
                 
      

              	
                17.

              	
                Binding
      Nature.  This
      instrument shall be binding upon Landlord, its, his or her heirs, personal
      representatives, successors and assigns and shall inure to the benefit of
      Lender and its successors and
assigns.

              


      

      


      
        	
                 
      

              	
                18.

              	
                Notices.  All
      notices to be given Lender shall be given to Lender at the following
      address:  Univest National Bank and Trust Co., P.O. Box 64197,
      Souderton, PA  18964 Attention:  William D. Maeglin,
      Executive Vice President.

              


      


      
        
           


        

        
          16

          
            

          

        

        
           


        

      


      IN WITNESS WHEREOF, Landlord
has executed this Agreement effective the day and year first above
written.

      


      
        	 
      	 
      	 
      	
                LANDLORD:

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	
                ATTEST:

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	
                By:

              	 
      	 
      	
                By:

              	 
      	 
      
	
                Name:

              	 
      	 
      	
                Name:

              	 
      	 
      
	
                Title:

              	 
      	 
      	
                Title:

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	
                (CORPORATE
      SEAL)

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
                LENDER:

              	 
      
	 
      	 
      	 
      	

                 

              	 
      	 
      
	
                 

              	 
      	

                UNIVEST
      NATIONAL BANK AND TRUST CO.

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	
                Attest:

              	 
      	 
      	
                By:

              	 
      	 
      
	 
      	 
      	 
      	
                William
      D. Maeglin, Executive Vice President

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	
                AGREED
      TO AND ACCEPTED BY:

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
                BORROWER:

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	
                By:

              	 
      	 
      	
                By:

              	 
      	 
      
	
                Name:

              	 
      	 
      	
                Name:

              	 
      	 
      
	
                Title:

              	 
      	 
      	
                Title:

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	
                (CORPORATE
      SEAL)

              	 
      	 
      	 
      	 
      


      


      
        
           


        

        
          17

          
            

          

        

        
           


        

      

      


      
        	
                COMMONWEALTH
      OF PENNSYLVANIA

              	
                 

              	
                :

              	 
      	 
	 
      	 
      	 
      	
                SS

              	 
	
                COUNTY
      OF ____________________

              	 
      	
                :

              	 
      	 


      

      


      


      On this,
the ________ day of ____________________, 2009, before me, a Notary Public, the
undersigned officer, personally appeared __________________, and that he, being
authorized to do so, executed the foregoing instrument for the purposes therein
contained on behalf of ________________________.

      


      IN
WITNESS WHEREOF, I have hereunto set my hand and official seal.

      


      


      
        	 
      	 
      
	 
      	
                Notary
      Public

              


      


      
        
           


        

        
          18

          
            

          

        

        
           


        

      

       

      
        
          	
                  COMMONWEALTH
      OF PENNSYLVANIA

                	
                   

                	
                  :

                	 
      	 
	 
      	 
      	 
      	
                  SS

                	 
	
                  COUNTY
      OF ____________________

                	 
      	
                  :

                	 
      	 


        

      

      


      


      On this,
the ________ day of ____________________, 2009, before me, a Notary Public, the
undersigned officer, personally appeared William D. Maeglin, who acknowledged
himself to be the Senior Vice President of UNIVEST NATIONAL BANK AND TRUST CO.,
and that he as such officer, being authorized to do so, executed the foregoing
instrument for the purposes therein contained.

      


      IN
WITNESS WHEREOF, I have hereunto set my hand and official seal.

      


      


      
        	 
      	 
	 
      	
                Notary
      Public

              


      


      
        
           


        

        
          19

          
            

          

        

        
           


        

      

      
        


        
          	
                  COMMONWEALTH
      OF PENNSYLVANIA

                	
                   

                	
                  :

                	 
      	 
	 
      	 
      	 
      	
                  SS

                	 
	
                  COUNTY
      OF ____________________

                	 
      	
                  :

                	 
      	 


        

      

       

       

      On this,
the _____ day of _____________, 2008, before me, a Notary Public, the
undersigned officer, personally appeared ___________, who acknowledged himself
to be the ______________ of the general partner of ________________, a
Pennsylvania limited partnership, and that he, as such officer, being authorized
to do so, executed the same for the purposes therein.

      


      IN
WITNESS WHEREOF, I hereunto set my hand and official seal.

      


      


      
        	 
      	 
      
	 
      	
                Notary
      Public

              


      


      
        
           


        

        
          20

          
            

          

        

        
           


        

      


      EXHIBIT
“S”

      


      SITE
PLAN

       

       

    

    21