Warren County "PNC Building" Redevelopment Project - Warren County, Pennsylvania
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Warren County “PNC Building” Redevelopment Project FINANCING AGREEMENT This Financing Agreement, hereafter referred to as the “Agreement,” is made and entered into on the 28th day of February, 2018, by WARREN COUNTY, hereafter referred to as the “Lender,” a sixth-class County of the Commonwealth of Pennsylvania with principal office located at the Warren County Courthouse, 204 Fourth Avenue, Warren, Pennsylvania 16365, and the WARREN COUNTY DEVELOPMENT ASSOCIATION, INC., hereafter referred to as the “Borrower,” a Pennsylvania non-profit corporation with principal office located at 308 Market Street, Warren, Pennsylvania 16365. INTRODUCTION On January 18, 2018, the Borrower signed an Agreement of Sale for the real property located at 201 Liberty Street, Warren, Pennsylvania, more commonly known as the “PNC Building.” This Agreement of Sale requires that the Borrower provide verification of its financing availability to Westminster Development, LLC, located at 2601 West 26th Street, Erie, Pennsylvania 16506, prior to March 1, 2018 as a condition precedent to formally completing its acquisition of the PNC Building in time for the March 31, 2018 closing set forth in the Agreement of Sale. On February 7, 2018, the Borrower formally presented its proposal, which solicited funding for the PNC Building Redevelopment Project, to the Lender at a public meeting of the Warren County Board of Commissioners. At this meeting, Borrower indicated that it had previously solicited financing from several private banking institutions, all of which indicated to Borrower that their respective internal due diligence and assessment procedures, including an updated property appraisal, would take a minimum of four weeks to complete. Borrower has committed to a mandatory occupancy date of December 1, 2018 for the Northern Pennsylvania Regional College, which plans to occupy the fifth floor of the PNC Building with its operational headquarters. Pursuant to its plan for the Warren County PNC Building Redevelopment Project, Borrower has stated that it intends to first acquire and then renovate the PNC Building for the purpose stated above. Borrower has also stated that it intends to create a coworking business support center within the PNC Building and plans to pursue several other leasing opportunities. Borrower has stated that it believes that the Warren County PNC Building Redevelopment Project will have a positive economic impact on Warren County by assisting the Northern Pennsylvania Regional College with its operational plan to develop its administrative headquarters within the County, facilitating the establishment and relocation of commercial and non-profit entities into the City of Warren’s downtown, increasing the volume of daily visitors to the City and County of Warren, and by refurbishing a prominent and well-known building within the heart of the City of Warren. The Warren County Board of Commissioners authorized the negotiation of an agreement fulfilling the Borrower’s request by a vote of the Board (2-1) at the February 7, 2018 meeting. 1
The Borrower has applied for a loan from the Lender in the amount of Four-Hundred Fifty Dollars ($450,000.00) to finance its acquisition of the PNC Building from Westminster Development, LLC. The Borrower also seeks an additional One-Hundred Thousand Dollars ($100,000.00) in the form of a grant to be utilized in renovating the interior of the PNC Building. These financial transactions from the Lender to the Borrower shall be individually and respectively referred to in this Agreement as the “Loan,” regarding the Four-Hundred Fifty Thousand Dollar ($450,000.00) loan, and the “Grant,” regarding the One-Hundred Thousand Dollar ($100,000) grant. Collectively, these financial transactions, together with all future loans and financial accommodations from the Lender to the Borrower, shall collectively be referred to as the “Financing” within this Agreement. The Borrower understands and agrees that (a) in granting, renewing or extending any loan or grant, the Lender is relying upon the Borrower’s representations, warranties and agreements as set forth in this Agreement; (b) the allocation, renewal or extension of any loan or grant by the Lender at all times shall be subject to the Lender’s sole judgment and discretion; and (c) all such loans or grants shall be and shall remain subject to the following terms and conditions of this Agreement. 1. TERM. 1.1. This Agreement shall be effective as of the date hereof and shall continue thereafter until all Indebtedness of the Borrower to the Lender has been fully paid and satisfied and all other obligations of the Borrower to the Lender performed in full and the parties terminate this Agreement in writing. 2. DEFINITIONS. 2.1. The following words shall have the following meanings when used in this Agreement. Terms not otherwise defined in this Agreement shall have the meanings attributed to such terms in the Pennsylvania Uniform Commercial Code: 2.1.1. Agreement. The word “Agreement” means this Financing Agreement, together with all exhibits and schedules attached hereto, if any. 2.1.2. Events of Default. The words “Event of Default” mean and include any of the Events of Default set forth below in the Section entitled “Events of Default.” 2.1.3. Indebtedness. The word “Indebtedness” means and includes, without limitation, all Loans together with all other obligations, debts and liabilities of the Borrower to the Lender or any one or more of them as well as all claims by the Lender against the Borrower or any one or more of them whether now or hereafter existing. 2
2.1.4. Lender. The word “Lender” means the County of Warren, Commonwealth of Pennsylvania, along with its successors or assigns. 2.1.5. Loan. The word “Loan” means and includes all loans and financial accommodations from the Lender to the Borrower, excluding the One-Hundred Thousand Dollar ($100,000.00) Grant described above, whether now or hereafter existing and however evidenced. 2.1.6. Property. The term “Property” shall mean and include, without limitation, the real property and improvements thereon located at 201 Liberty Street, Warren, Pennsylvania, more commonly known as the “PNC Building.” 2.1.7. Project. The term Project means and includes the financing, from the Lender to the Borrower, of the Five- Hundred Fifty Thousand Dollars ($550,000.00) requested by the Borrower to fund the acquisition and renovation of the commercial real estate located at 201 Liberty Street, Warren, Pennsylvania in accordance with the terms set forth in this Agreement. Of the Five-Hundred Fifty Thousand Dollars ($550,000.00) to be provided from Lender to Borrower pursuant to this Agreement, Four- Hundred Fifty Thousand Dollars ($450,000.00) shall be in the form of a loan made in accordance with and subject to the terms of this Agreement. The remaining One-Hundred Thousand Dollars ($100,000.00) transferred from the Lender to the Borrower shall be in the form of a grant made in accordance with and subject to the terms set forth in this Agreement. 2.1.8. Related Documents. The term “Related Documents” means and includes without limitation all other instruments and documents whether now or hereafter existing executed in connection with the Borrower’s Indebtedness to the Lender. 3. THE LOAN. 3.1. Subject to the terms and conditions of this Agreement, Lender agrees to advance the full Four- Hundred Fifty Thousand Dollar ($450,000.00) amount of the Loan, upon execution of this Agreement, to the Borrower. The Lender shall also simultaneously disburse the One-Hundred Thousand Dollar ($100,000.00) Grant set forth in this Agreement. Both transactions shall be executed in a manner that is mutually agreed to in writing by both the Lender and the Borrower. The Borrower shall furnish access to all documents and information requested by the Lender to facilitate the disbursement of funds to the Borrower. Upon receipt of the above-described funds, Borrower shall confirm to the Lender its access to the funds within ten days of receipt and prior to spending any of the funds. 3
4. SECURITY. 4.1. As security for the Loan, Borrower has agreed to offer the Property, upon acquisition from Westminster Development, LLC as a condition precedent to financing, as collateral to the Lender, in addition to the assignment to Lender of all of Borrower’s rights in and to all present and future rents, leases, and profits affecting the Property, in the Event of Default. 5. REPRESENTATIONS & WARRANTIES. 5.1. The Borrower represents and warrants the following things to the Lender as of the date of this Agreement and as of the date of the disbursement of both Loan and Grant proceeds: 5.1.1. Organization. The Borrower is a non-profit corporation organized under the laws of the Commonwealth of Pennsylvania and is seeking funds from the Lender for the express purpose of acquiring and renovating the Property in order to make it suitable for commercial ventures, including both the allocation by lease of one floor of the building to the Northern Pennsylvania Regional College for its administrative headquarters and the maintenance of the current allocation to PNC Financial Services Group, Inc., pursuant to existing lease. 5.1.2. Authorization; No Violation. The execution, delivery and performance of this Agreement by the Borrower does not conflict with, result in a violation of or constitute a default under the following: 5.1.2.1. Any provision of any agreement or other instrument binding upon the Borrower or 5.1.2.2. Any law, governmental regulation, court decree or order applicable to the Borrower. 5.1.3. Financial Information. Any financial information of the Borrower supplied to the Lender, including information pertaining to Project costs, truly and completely disclosed the Borrower’s financial condition as of the date of the provided information, and there has been no material adverse change in the Borrower’s financial condition after the date of the most recent information supplied to the Lender. 5.1.4. Legal Effect. This Agreement constitutes, and any instrument or agreement required hereunder to be given by the Borrower when delivered will constitute, the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with its terms. 5.1.5. Litigation and Claims. 4
No litigation or claim is pending against the Borrower or against the real property located at 201 Liberty Street, Warren, Pennsylvania or has been threatened and no other event has occurred which may materially adversely affect the Borrower’s financial condition or the Property other than litigation, claims or other events, if any, which have been fully disclosed by Borrower in writing to the Lender. 5.1.6. Nature of Representations and Warranties. Borrower certifies to Lender that all representations and warranties made in this Agreement and all Related Documents are true and correct in all material respects, and do not contain any untrue statement of a material fact or omit any material fact necessary, in order to make such representations and warranties not misleading. Any such representations and warranties shall remain true and correct in all material respects and shall survive so long as any of Borrower’s obligations hereunder have not been satisfied or the Loan or any part thereof shall remain outstanding, and for any applicable statute of limitations period thereafter. Each representation and warranty made in this Agreement, in any Related Documents, and in any other document delivered to Lender by Borrower shall be deemed to have contained herein which are made to the best knowledge of Borrower have been made after diligent inquiry calculated to ascertain the truth and accuracy of the subject matter of each such representation and warranty. Borrower shall inform Lender of any facts, transactions, or occurrences of which it becomes aware after the date hereof which would render any of the representations and warranties contained in this Section untrue in any material respect. 6. AFFIRMATIVE COVENANTS. 6.1. The Borrower covenants and agrees with the Lender that so long as this Agreement is in effect, the Borrower shall do the following: 6.1.1. Access to Property. Borrower will grant the Lender full and free access to the Property at all reasonable times upon no less than one (1) hour prior telephonic notice. 6.1.2. Notice of Liens. Borrower shall promptly upon receipt, deliver to the Lender written notice of any lien, encumbrance or other change in the title to the real property located at 201 Liberty Street, Warren, Pennsylvania, and within thirty (30) days after receipt of such notice, pay or discharge any lien or other encumbrance which may be filed or recorded against the Property, unless the payment of such lien is being contested in good faith by Borrower and by proper proceedings as provided in this Agreement. In the event the Borrower fails to pay or discharge such lien or other encumbrance, within such thirty (30) day period, the Lender, in addition to any other rights as may be available to it, may pay and discharge such lien or other encumbrance or deposit in escrow an amount sufficient to do so, and all amounts paid or deposited shall be treated as additional funds allocated pursuant to the Loan. 5
6.1.3. Litigation. Borrower will promptly inform the Lender of all material adverse changes in the Borrower’s financial condition and all litigation and claims and all threatened litigation and claims affecting the Borrower which could materially affect the financial condition of the Borrower to an extent that Borrower’s ability to satisfy its duties and obligations under this Agreement are impeded. 6.1.4. Financial Records, Statements and Information. 6.1.4.1. By March 30, 2018, Borrower shall deliver to the Lender proof that it has obtained exclusive title in fee simple to the real property located at 201 Liberty Street, Warren, Pennsylvania as a condition precedent to receiving any funds from the Lender. 6.1.4.2. Borrower shall deliver to the Lender such financial documents, records and information respecting the Borrower as the Lender may require at any time during the Term of this Agreement. 6.1.4.3. In the event that all or a portion of the Property is leased, and if the Lender shall require, the Borrower shall furnish at such intervals as the Lender requires a Rent Schedule for the Property certified by the Borrower showing the name of each tenant, and for each tenant, the space occupied, lease expiration date, rent payable and rent paid. 6.1.4.4. Borrower will furnish bi-monthly project status reports to the Lender pertaining to the redevelopment of the Property. 6.1.5. Additional Information. Borrower will furnish such additional information, statements, and reports with respect to the Borrower’s financial condition and/or the Property as the Lender may request from time to time. 6.1.6. Insurance. The Borrower shall maintain commercial property insurance and general liability insurance during the Term of this Agreement. The Lender shall be given the opportunity to approve, in writing, the form of insurance, individual and aggregate claim amounts, scope of coverage, and insurance providers selected by the Borrower as reasonably acceptable. The Lender may require the Borrower to acquire such other insurance as the Lender deems reasonably appropriate with respect to the Property during the Term of this Agreement. The Borrower, upon request of the Lender, shall deliver to the Lender from time to time policies or certificates of insurance in a form satisfactory to the Lender, including stipulations that coverages will not be canceled or diminished without at least ten (10) days prior written notice to the Lender. Borrower is expressly required to include Warren County as a Named Insured and Loss Payee on all policies covering the Property. 6.1.7. Insurance Reports. Borrower must furnish to the Lender reports on each existing insurance policy showing such information as the Lender may reasonably request including, without limitation, the following: the 6
name of the insurer; risks insured; amount of the policy; properties insured; the then current property values on the basis of which insurance has been obtained; and the manner of determining those values and expiration date of the policy. In addition, upon request of the Lender, the Borrower will reimburse the Lender the cost of engaging an independent appraiser satisfactory to the Lender to determine, as applicable, the actual cash value or replacement cost of any collateral. 6.1.8. Other Agreements. Borrower must comply with all terms and conditions of all other agreements related to the Project whether now or hereafter existing between the Borrower and any other party and must notify the Lender immediately in writing of any default in connection with any other such agreements. 6.1.9. Taxes, Charges and Liens. Borrower must pay and discharge when due all of its indebtedness and obligations pertaining to the Property, including without limitation all assessments, taxes, governmental charges, levies and liens of every kind and nature imposed upon the Borrower or the Property, and all lawful claims which if unpaid might become a lien or charge upon the Property; however, the Borrower will not be required to pay and discharge any such assessment, tax, charge, levy, lien or claim so long as the following applies: 6.1.9.1. The legality of the same shall be contested in good faith by appropriate proceedings; and 6.1.9.2. The Borrower upon demand of the Lender will furnish to the Lender evidence of payment of the assessments, taxes, charges, levies, liens and claims and will authorize the appropriate governmental official to deliver to the Lender at any time a written statement of any assessments, taxes, charges, levies, liens and claims against the Property. 6.1.10. Performance. Borrower will perform and comply with all terms, conditions and provisions set forth in this Agreement and in all other instruments and agreements between the Borrower and Lender. 6.1.11. Operations. Borrower shall conduct its business affairs in a reasonable and prudent manner and in compliance with all applicable federal, state and municipal laws, ordinances, rules and regulations respecting the Property and the Project. 6.1.12. Inspection. Borrower shall permit Lender to make inspections upon at least twenty-four (24) hours’ prior notice, and to obtain other information related to the Property as follows: 7
6.1.12.1 With twenty-four (24) hours’ notice, Lender shall have the right at all reasonable times to enter upon the Property in a manner that does not disturb renovation efforts or create un unreasonable liability. 6.1.12.2 Lender shall have the right at all reasonable times to examine, copy and make extracts of the books, records, accounting data and other documents of Borrower or in Borrower’s possession in connection with the Property and/or Project. 6.1.13. Additional Assurances. Borrower shall make, execute and deliver to the Lender such documents and other agreements as the Lender or its attorneys may reasonably request to evidence and secure the Loan and to perfect and maintain all security interests and liens granted to the Lender. 7. NEGATIVE COVENANTS. 7.1. The Borrower covenants and agrees with the Lender that while this Agreement is in effect, the Borrower shall not liquidate, merge or consolidate with any other entity without the prior written consent of the Lender. 8. EVENTS OF DEFAULT. 8.1. Each of the following shall constitute an Event of Default under this Agreement: 8.1.1. Default on Indebtedness. Failure of the Borrower to repay Lender the Loan of Four-Hundred Fifty Thousand Dollars ($450,000.00) within ten (10) days of March 1, 2019. 8.1.2. Other Defaults. Failure of the Borrower to comply with or to perform any other term, obligation, covenant or condition contained in this Agreement or in any of the Related Documents or failure of the Borrower to comply with or to perform any other term, obligation, covenant or condition contained in any other agreement between the Lender and Borrower. 8.1.3. False Statements. Any warranty, representation or statement is made or furnished to the Lender by or on behalf of the Borrower under this Agreement or the Related Documents that is false or misleading in any material respect either at the time made or furnished. 8.1.4. Defective Collateralization. 8
This Agreement or any of the Related Documents ceases to be in full force and effect (including failure of any collateral document to create a valid and perfected security interest or lien) at any time and for any reason. 8.1.5. Insolvency. Insolvency, appointment of a receiver for any part of the Borrower’s property, any assignment for the benefit of creditors, any type of creditor workout or the commencement of any proceeding under any bankruptcy or insolvency laws by or against the Borrower. 8.1.6. Creditor Proceedings. Commencement of foreclosure whether by judicial proceeding, self-help, repossession or any other method by any creditor of the Borrower against the Property. 8.1.7. Failure to Achieve Project Goals. If Borrower fails to complete the renovations necessary to prepare one floor of the Property for full office operations by the Northern Pennsylvania Regional College by December 31, 2018, the Borrower shall forfeit and repay the Grant of One-Hundred Thousand Dollars ($100,000.00) to the Lender within thirty (days) of default unless the Borrower can prove, to the satisfaction of the Lender, by clear and convincing evidence, that these funds were in fact utilized for permanent improvements to the Property. 9. EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, Lender may avail itself of any one or more of the following remedies: 9.1 Lender Takes Title to Property. All commitments of the Lender under this Agreement shall immediately terminate. Failure of the Borrower to repay Lender the Loan of Four-Hundred Fifty Thousand Dollars ($450,000.00) within ten (10) days of March 1, 2019 shall result in the forfeit of the Property, including all improvements thereon, from the Borrower to the Lender. Borrower shall provide any information, document, or report needed to effectuate the transfer of title to the Lender in the event of default. 9.2 Revocation of Grant. Should the Borrower fail to complete the renovations necessary to prepare one floor of the Property for full office operations by the Northern Pennsylvania Regional College by December 31, 2018, the Borrower shall forfeit and repay the Grant of One-Hundred Thousand Dollars ($100,000.00) to the Lender within thirty (days) of default unless the Borrower can prove, to the satisfaction of the Lender, by clear and convincing evidence, that these funds were in fact utilized for permanent improvements to the Property. 9
9.3 Miscellaneous. Lender may institute appropriate proceedings to enforce the performance of this Agreement or exercise any other right or remedy which is otherwise available at law or in equity or by statute. 10. AMENDMENTS. This Agreement, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the parties sought to be charged or bound by the alteration or amendment. This Agreement may be amended, modified, or waived only by written agreement signed by both parties hereto following approval by the Lender a public meeting held in compliance with the Pennsylvania Sunshine Act. 11. APPLICABLE LAW. This Agreement has been delivered to the Lender and accepted by the Lender in the Commonwealth of Pennsylvania. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. Borrower and all persons and entities in any manner obligated to Lender under this Agreement hereby consent to the jurisdiction of any federal or state court within the Commonwealth of Pennsylvania and also consent to the service of process by any means authorized by state or federal law. 12. HEADINGS. All headings appearing in this Agreement are for convenience only and shall be disregarded in construing this Agreement. 13. FORCE MAJEURE. Neither party shall be liable or have the right to terminate this Agreement for any delay or default in performance hereunder if such delay or default is caused by conditions beyond its respective control including, but not limited to, Acts of God, government restrictions including, but not limited to, the denial or cancellation of any export or other necessary license, wars, insurrections, or any other cause beyond the reasonable control of the party whose performance is affected. 14. ASSIGNMENT. This Agreement, and the rights and obligations of each party hereunder, may not be assigned without the prior written consent of the other party as evidenced, in the case of the Lender, by the recorded vote of a majority of the Warren County Board of Commissioners in a public meeting held in compliance with Pennsylvania’s Sunshine Act. 15. COSTS & EXPENSES. 10
In the event of default by the Borrower, the Lender may retain independent parties to help collect the Loan and to enforce this Agreement, and the Borrower will pay such costs subject to any limits imposed by applicable law, the Lender’s reasonable attorney’s fees and legal expenses, whether or not there is a lawsuit, including reasonable attorney’s fees with respect to bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals and any anticipated post-judgment collection services. The Borrower also shall pay any court costs, in addition to all other sums provided by law. 16. NOTICE. Any notice hereunder to the Borrower or the Lender shall be in writing and, if mailed, shall be deemed to be given when sent by registered or certified mail, postage prepaid, and addressed to the Borrower or the Lender at the address set forth above, or at such other address as the Borrower or the Lender may, by written notice, designate for purposes of notice hereunder. Notice may also be sent via facsimile. If notice is sent via facsimile, it will be deemed to be given when sent, provided the party sending the notice can produce a facsimile confirmation verifying such transmission. 17. SEVERABILITY. If any provision of this Agreement or any of the Related Documents is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, that portion shall be deemed severed from this Agreement or from such Related Documents, and all remaining parts shall continue in full force as though the invalid, illegal or unenforceable portion had never been part of this Agreement or such Related Documents. 18. SURVIVAL. All warranties, representations and covenants made by the Borrower in this Agreement or in any certificate or other instrument delivered by the Borrower to the Lender under this Agreement shall be considered to have been relied upon by the Lender and shall survive the making of the Loan and delivery to the Lender of the Related Documents regardless of any investigation made by the Lender or on the Lender’s behalf. 19. PREPARATION OF AGREEMENT. This Agreement has been prepared by the combined efforts of the parties and their respective attorneys, with all parties having been represented by counsel, and the language used herein is not to be construed either in favor or against any party hereto. 20. WAIVER. The Lender shall not be deemed to have waived any rights under this Agreement unless such waiver is given in writing and signed by the Lender. No delay or omission on the part of the Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by the Lender of a provision of this Agreement shall not prejudice or constitute a waiver of the Lender’s 11
right otherwise to demand strict compliance with that provision or any other provision of this Agreement. Neither prior waiver by the Lender nor any course of dealing between the Lender and Borrower may be exercised or withheld in the sole discretion of the Lender. 21. POST-CLOSING COMPLIANCE. Lender may specify any document or instrument signed in connection with the Loan which was incorrectly drafted and/or signed, as well as any document or instrument which should have been signed at or prior to the closing of the Loan, but which was not so signed and delivered. Borrower agrees to comply with any written request by Lender within ten (10) days after receipt by Borrower of such request. Failure by Borrower to so comply shall, at the option of Lender, upon notice to Borrower, constitute an event of default under the Loan. 22. MISCELLANEOUS. 22.1. Relationship of the Parties. The relationship between the Lender and the Borrower shall always be that of creditor and debtor. Under no circumstances shall the relationship be construed as creating a partnership or joint venture. 22.2. Authority. The parties hereto each represent and certify that this Agreement was properly approved by the Lender at a public meeting held in compliance with the mandates of the Pennsylvania Sunshine Act; that the individuals identified below who sign this Agreement are authorized to do so; and that, following its execution by each party, this Agreement shall be legally binding upon each of the parties hereto. IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound, hereunto set their hands and seals the day and year first above written. By: By: _____________________________ (Seal) _____________________________ (Seal) James Decker Ben Kafferlin Executive Director Chairman Warren County Development Association Warren County Board of Commissioners 12
ATTEST: ______________________________ (Seal) _____________________________ Cindy Morrison Pamela J. Matve Vice Chair Chief Clerk Warren County Board of Commissioners Warren County ______________________________ (Seal) Commissioner Jeff Eggleston Warren County Board of Commissioners 13
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