EXHIBIT 10.14
MACHINERY AND EQUIPMENT LOAN TO XXXXXX CORPORATION
AND THE
COMMONWEALTH OF PENNSYLVANIA
MELF #95-9-246
IN THE AMOUNT OF $500,000
DATED SEPTEMBER 9, 1996
KMK/09-04-96 MELF #95-9-246
LOAN AGREEMENT
THIS LOAN AGREEMENT, MADE this 9th day of September, 1996, effective as of
September 10, 1996, BY AND BETWEEN XXXXXX CORPORATION, a Delaware corporation,
with its principal offices at 000 Xxxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxxxxx
00000-0000, (the "Borrower") and the COMMONWEALTH OF PENNSYLVANIA, acting by and
through the DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT, having its
principal place of business at Room 000 Xxxxx Xxxxxxxx. Xxxxxxxxxx, Xxxxxxxxxxxx
00000 (the "Department").
WITNESSETH THAT:
WHEREAS, the Borrower has established an industrial development project on
a tract of land in Luzerne County, Pennsylvania (the "Project"); and
WHEREAS, in concert with the establishment of the Project the Borrower has
purchased or intends to purchase certain machinery and equipment for use at the
Project as more fully described at Exhibit A and which is incorporated herein by
reference and made a part hereof (the "Equipment"); and
WHEREAS, pursuant to the authority granted the Department by virtue of the
Machinery and Equipment Loan Fund ("MELF") Act, Act 120 of 1988, P.L. 1050 (the
"Act"), the Department has approved the Borrowers application for a loan not to
exceed the principal amount of $500,000 (the "Loan") to be used exclusively to
defray a part of the cost of purchasing the Equipment (the "Cost"); and
WHEREAS, the Department is willing to make the Loan upon the terms and
subject to the conditions hereinafter set forth:
NOW, THEREFORE, the parties hereto, in consideration of the mutual
promises herein contained and intending to be legally bound hereby, covenant and
agree as follows:
Section 1. The Loan. Subject to the conditions set forth herein, the
Department agrees to make the Loan to the Borrower for the purpose of defraying
a portion the Cost of purchasing the equipment described in Exhibit A.
Section 2. The Note. The Loan shall be evidenced by a note (the "Note") of
even date herewith given by the Borrower to the Department, the terms and
provisions of which are incorporated herein by reference thereto and made a part
hereof.
Section 3. The Security Documents.
(a) The Security Agreement. Payment of the Note and satisfaction of
all obligations of the Borrower hereunder and under the Note shall be
secured by a perfected security interest in the Equipment given by the
Borrower to the Department under a security agreement of even date
herewith (the "Security Agreement"), the terms and provisions of which are
incorporated herein by reference thereto and made a part hereof. The
Security Agreement shall be dated the date of the Note and shall create a
perfected first lien upon the Equipment.
(b) The Note, Security Agreement and this Agreement shall be
referred to herein collectively as the Loan Documents.
Section 4. Prepayments. Prepayments of the outstanding principal amount of
the Loan shall be as set forth in and governed by the terms of the Note.
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Section 5. Representations and Warranties of the Borrower. To induce the
Department to enter into this Agreement and to make the Loan, the Borrower
represents and warrants that:
(a) the Borrower is a corporation, duly organized and validly
existing and in good standing under the laws of the State of Delaware and
is qualified to do business in the Commonwealth of Pennsylvania;
(b) the Borrower has all necessary corporate power and authority to
purchase, own, encumber and sell Borrower's property and to carry on
Borrower's business as now being conducted, and to carry out the
transactions contemplated by this Agreement:
(c) the execution and delivery of this Agreement consummation of the
transactions herein contemplated and compliance with the terms and
provisions hereof and of the Note and Security Agreement will not conflict
with, or result in a breach of, any of the terms, conditions or provisions
of the Articles of Incorporation or By-Laws of the Borrower or of any
agreement, indenture or other instrument to which the Borrower is a party
or by which Borrower is bound or to which Borrower or Borrower's property
is subject, or constitute a default thereunder and will not result in the
creation or imposition of any lien, charge or encumbrance of any nature
whatsoever (except those created pursuant hereto) upon any of the property
of the Borrower pursuant to the terms of any such agreement. indenture or
other instrument;
(d) the execution, delivery and performance of this Agreement, the
performance of the transactions contemplated by the provisions hereof, and
the execution, issuance and delivery of the Note and the Security
Agreement in accordance
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with the provisions hereof have each been duly authorized by all necessary
corporate action on the part of the Borrower;
(e) this Agreement has been duly and validly executed and delivered
by the Borrower and constitutes a valid and legally binding obligation of
the Borrower, enforceable in accordance with the terms of this Agreement
and the Note and Security Agreement. when executed and delivered in
accordance with the terms thereof, will be valid and legally binding
obligations of the Borrower, enforceable in accordance with the respective
terms of each;
(f) there is no material litigation or governmental proceeding
pending or, to the knowledge of the Borrower or Borrower's officers
threatened against the Borrower other than that which has been previously
disclosed to the Department in writing. If such litigation or proceeding
exists, Borrower shall set forth in an exhibit information regarding the
amount of the claim, the forum in which the claim was filed, the date for
the same, all of which shall be attached hereto and made a part hereof;
(g) the Borrower has filed all required federal, state and local tax
returns and has paid all taxes shown on such returns as such taxes have
become due; and
(h) no consent or approval to the execution and performance of this
Agreement and the transactions contemplated hereby not already obtained is
required to be obtained by the Borrower from any governmental body,
authority, agency, court or other person or entity, public or private,
other than the Department.
All of the representations and warranties of the Borrower set forth herein shall
survive and continue until the Loan is paid in full and all of the Borrower's
obligations hereunder have been satisfied.
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Section 6. General Conditions of Lending. The obligation of the Department
to make the Loan hereunder is subject to the fulfillment of the following
conditions by the Borrower to the satisfaction of the Department:
(a) concurrently with, or prior to, the disbursement of the Loan and
dated the date of such disbursement, the Borrower shall have furnished to
the Department in form and substance satisfactory to the Department's
counsel a favorable written opinion of Borrower's counsel;
(b) there shall have been delivered to the Department a certificate
executed by the Secretary of the Borrower, dated the date of the initial
disbursement under the Loan, setting forth the corporate action taken by
the Borrower in connection with the Loan and the authorization of the
Borrower, or authorized representatives of the Borrower to execute,
deliver and perform pursuant to the terms and conditions of this Agreement
and the execution by the Borrower of the Note, the Security Agreement and
all related documentation, their By-Laws and Articles of incorporation as
the Department's counsel shall deem appropriate;
(c) all legal matters incident or related to the Loan shall be in
form and substance satisfactory to counsel for the Department;
(d) the Note and the Security Agreement and related financing
statements shall have been duly executed and delivered to the Department
or delivered for recording, where appropriate; and
(e) compliance with such other conditions as shall be required by
the Department.
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Section 7. Covenants of the Borrower. Until the Loan has been entirely
repaid and all of Borrower's obligations to the Department in connection
therewith and herewith have been satisfied, the Borrower hereby covenants that:
(a) the Borrower shall use the proceeds of the Loan solely for the
purpose of defraying a portion of the Cost;
(b) the Borrower shall preserve Borrower's corporate existence,
rights, privileges and franchises, and maintain Borrower's good standing
as a corporation under the laws of Delaware;
(c) the Borrower shall comply with all laws, regulations and orders
of any court or governmental body having jurisdiction over the Project;
(d) the Borrower shall, upon request by the Department, provide
financial information and other information concerning Borrower in form
reasonably satisfactory to the Department, including at least the
following:
(i) a certificate of an authorized officer of the Borrower
setting forth the number of employees and their respective job
classifications (skilled, semi-skilled and unskilled) employed
during the previous year at the Project; and (ii) financial
statements of the Borrower for its most recent fiscal year,
including its balance sheet and income statement;
(e) the Borrower shall comply with all of the terms and conditions
of this Agreement, the Note, and the Security Agreement;
(f) the Borrower shall not create any additional debt secured by the
Equipment;
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(g) the Borrower shall not discriminate against any employee or
against any applicant for employment because of race, color, religious
creed, national origin, ancestry, sex or age (including, but not limited
to, employment upgrading. demotion or transfer, recruitment or recruitment
advertising, layoff or termination, rates of pay or other forms of
compensation, and selection for training, including apprenticeship). The
Borrower hereby accepts and agrees to be bound by the nondiscrimination
provisions as set forth in Exhibit "B" attached hereto;
(h) the Borrower shall comply with the contractor integrity
provisions as set forth in Exhibit "C" attached hereto;
(i) the Borrower shall comply with the contractor responsibility
provisions as set forth in Exhibit "D" attached hereto;
(j) the Borrower shall pay all the costs of filing financing
statements and any other costs that may be incurred pursuant to the
closing and administration of the Loan;
(k) the Borrower shall provide proper facilities at all times for
inspection of the Equipment by the Department and its authorized
representatives, and shall afford full and free access to the Project to
such persons as may from time to time be designated by the Department;
(l) without the prior written consent of the Department. the
Borrower shall not (i) change its name, merge, consolidate or divide, or
(ii) sell, transfer, assign, lease or otherwise convey or dispose of all
or any material part of its assets, except in the ordinary course of
business;
(m) the Borrower shall comply with the Americans With Disabilities
Act Provisions as set forth in Exhibit "E" attached hereto; and
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(n) the Borrower shall provide the Department yearly with the
Borrower's current 10K filing with Securities and Exchange Commission.
Section 8. Events of Default. The following shall each constitute an event
of default hereunder (an "Event of Default"):
(a) The Borrower shall fail to pay when due any amount payable under
any of the Loan Documents (including, without limitation, any installment
of principal or interest under the Note), and such failure shall continue
for a period of thirty (30) days;
(b) any representation or warranty made herein, in the application
to the Department made by the Borrower in connection with the Loan, or in
any certificate or financial or other statement furnished pursuant to the
provisions hereof or as a part of such application, shall have been false
or misleading in any material respect as of the time made or furnished;
(c) the Borrower shall (i) become insolvent, (ii) admit Borrower's
inability to pay Borrower's debts as they come due, (iii) make an
assignment to the benefit of Borrower's creditors, (iv) be adjudicated
bankrupt or insolvent, (v) voluntarily initiate proceedings under any
bankruptcy or reorganization law either now or hereafter in effect, (vi)
become the subject of any involuntary proceedings under any bankruptcy or
reorganization law either now or hereafter in effect that shall not have
been discharged within sixty (60) days of the initiation thereof, or (vii)
seek to take advantage of any moratorium law either now or hereafter in
effect;
(d) a receiver, liquidator or trustee shall be appointed for the
Borrower and shall not have been discharged within sixty (60) days;
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(e) a default or an event of default under the Security Agreement or
the Note, or any other instrument relating to the Loan shall occur or be
continuing and such default shall not be remedied for a period of thirty
(30) days after the giving of written notice thereof to the Borrower by
the Department; or
(f) the Borrower shall fail to perform any other covenant, condition
or provision hereof or of any of the Loan Documents and such failure shall
not be remedied for a period of thirty (30) days after the giving of
written notice thereof to the Borrower by the Department.
Immediately and without further notice to the Borrower, upon the occurrence of
an Event of Default hereunder, the Department. or any subsequent holder of the
Note, may declare the Note and interest accrued thereon and all liabilities of
the Borrower thereunder to be immediately due and payable, and the same shall
thereupon become and be due and payable, without presentment, demand, protest or
notice of any kind to the Borrower, all of which are hereby expressly and
knowingly waived. In addition, upon the occurrence of an Event of Default
hereunder, the Department shall have the right to raise the rate of interest on
the Loan up to twelve and one-half percent (12 1/2%) per annum, applied
retroactively to the date of the first occurrence of the default until such time
as the default is cured.
Section 9. Failure to Create Jobs. If the Borrower shall fail to create
the number of employment opportunities or jobs specified in Borrower's
application, the Department shall have the right to increase the interest rate
to the greater of 12 1/2% per annum or two percentage points greater than the
prime interest rate (as defined in the Note),unless such an increase is waived
by the Department because the failure to meet the job projections is deemed to
be the result of circumstances beyond the control of the Borrower.
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Section 10. Miscellaneous. The terms of the Loan Documents shall be
construed liberally in favor of the Department to effectuate the purposes
hereof. No delay or failure on the part of the Department in exercising any
right, power or privilege hereunder shall affect such right, power or privilege;
nor shall any single or partial exercise thereof or any abandonment, waiver, or
discontinuance of steps to enforce such a right, power or privilege preclude any
other or further exercise thereof, or the exercise of any other right, power or
privilege. The rights and remedies of the Department hereunder are cumulative
and concurrent and not exclusive of any rights or remedies which the Department
might otherwise have. The Department shall have the right at all times to
enforce the provisions of this Agreement, the Note, the Security Agreement, and
all related documentation in strict accordance with the terms hereof and
thereof, notwithstanding any conduct or custom on the part of the Department in
refraining from so doing at any time or times. The failure of the Department at
any time or times to enforce the Department's rights under such provisions,
strictly in accordance with the same, shall not be construed as having created a
custom in any way or manner contrary to specific provisions of this Agreement or
any such documentation or as having in any way or manner modified or waived the
same.
Section 11. Writing Required. Any permit, consent or approval of any kind
or character on the part of the Department under this Agreement, and any waiver
of any provision or condition of this Agreement, must be in writing and executed
by the Department and shall be effective only to the extent specifically set
forth in such writing.
Section 12. Duration of Covenants. All covenants and agreements of the
Borrower contained herein or made in writing in connection herewith shall
survive and continue until the Loan is entirely paid and all of the Borrower's
obligations hereunder have been entirely satisfied.
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Section 13. Pennsylvania Law to Govern. This Agreement, the Commitment
Letter dated December 20, 1995, the Note, and the Security Agreement and all
other agreements delivered pursuant hereto shall be deemed to be contracts made
under the laws of the Commonwealth of Pennsylvania and, for all purposes, shall
be construed in accordance with the laws of such Commonwealth.
Section 14. Counterparts. This Agreement may be executed in as many
counterparts as may be deemed necessary and convenient and each of which, when
so executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.
Section 15. Complete Agreement. This Agreement, the Note, and the Security
Agreement constitute the entire agreement between the Department and the
Borrower. The Loan Documents supersede and replace all prior agreements related
to the subject matter thereof. Such instruments may be modified or amended only
by a written instrument duly executed by the Department and the Borrower.
Section 16. Notices. Notices required hereunder, or any correspondence
concerning this Agreement shall be directed to the following addresses and shall
he deemed properly given (a) if delivered by hand; (b) if sent by certified
mail, return receipt requested, postage prepaid or by recognized overnight
courier service (including, without limitation Federal Express or United Parcel
Service overnight service), charges prepaid; or (c) if sent by facsimile, with a
Copy sent by first class U.S. Mail, postage prepaid.
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To the Department:
PENNSYLVANIA DEPARTMENT OF COMMUNITY
AND ECONOMIC DEVELOPMENT
000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
FAX: (000) 000-0000
Attention: Machinery and Equipment Loan Fund
To Borrower:
XXXXXX CORPORATION, SEMICONDUCTOR SECTOR
000 Xxxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Plant Manager
And simultaneously to:
XXXXXX CORPORATION, SEMICONDUCTOR SECTOR
0000 Xxxx Xxxx Xxx Xxxx
Xxxx Xxx, Xxxxxxx 00000
Attention: Vice President-Counsel
Notices and communications hereunder shall be deemed sufficiently given when
dispatched pursuant to the foregoing provisions. Notices and communications
delivered by hand shall be effective upon receipt; notices and communications
sent by fax, with a copy by first class U.S. Mail, shall be effective upon
dispatch; notices and communications sent by recognized overnight courier
service shall be effective on the business day following dispatch; and notices
sent by certified mail shall be effective on the third business day following
dispatch. The parties hereto may, by a notice given hereunder, designate any
further or different addresses to which any subsequent notice or communication
hereunder shall be sent.
Section 17. Severability. The terms and provisions of this Agreement are
severable. The unenforceability or invalidity of any one or more of the terms,
covenants, conditions or provisions of this Agreement under federal, state or
other applicable law shall not render any other term, covenant, condition or
provision hereof unenforceable or invalid.
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Section 18. Under Seal. This Agreement shall take effect as an instrument
under seal.
Section 19. Further Assurances. The Borrower, from time to time, shall
execute such further instruments as the Department may reasonably request to
further confirm and assure the interests and rights created or intended to be
created in favor of the Department hereunder or under the Security Agreement or
the Note.
Section 20. Successors and Assigns. This Agreement and each of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower, the
Department and their respective successors and assigns. except that the Borrower
may not assign or transfer its rights hereunder or thereunder without the prior
written consent of the Department. The parties do not intend the benefits of
this Agreement to inure to any third party. No portion of the Department's
commitment to make the Loan will, at any time, be subject to attachment or levy
by any creditor of the Borrower or by any contractor, subcontractor, materialman
or supplier or any creditor of any such contractor, subcontractor. materialman
or supplier. Notwithstanding anything contained herein or in the Note, the
Security Agreement, or any other document executed in connection with this
transaction, or any conduct or course of conduct by any of the parties hereto,
before or after signing this Agreement or any of the other aforesaid documents,
this Agreement shall not be construed as creating any rights, claims, or causes
of action against the Department, in favor of any contractor, subcontractor,
supplier of labor or materials, or any of their respective creditors, or any
other person or entity other than the Borrower.
Section 21. Setoff. The Borrower agrees that the Commonwealth of
Pennsylvania may set off the amount of any state tax liability or other debt of
the Borrower or its respective subsidiaries that is owed to the Commonwealth and
not being contested on appeal against any payments due the Borrower under this
or any other contract with the Commonwealth.
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Section 22. Consent to Jurisdiction. The Borrower hereby irrevocably (a)
agrees that any suit, action or other legal proceeding arising out of or
relating to this Agreement or the Loan Documents may be brought in any federal
or state court located in or whose district includes Harrisburg, Pennsylvania or
the county wherein the Project is located and consents to the jurisdiction of
such court in any such suit, action or proceeding, and (b) waives any objection
which it may have to the laying of venue of any such suit, action or proceeding
in any such court and any claim that any such suit, action or proceeding has
been brought in an inconvenient forum. The Borrower hereby irrevocably consents
to the service of any and all process in any such suit, action or proceeding by
mailing of copies of such process to the Borrower at its address provided under
or pursuant to Section 15. The Borrower agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
All mailings under this section shall be by certified or registered mail, return
receipt requested. Nothing in this section shall affect the right of the
Department to serve legal process in any other manner permitted by law or affect
the right of the Department to bring any suit, action or proceeding against the
Borrower or Borrower's property in the courts of any other jurisdiction.
Section 23. Incorporation by Reference. All exhibits to this Agreement and
the terms of all Loan Documents shall be incorporated herein by reference as
though expressly set forth herein.
Section 24. Descriptive Headings. Descriptive headings of the several
Sections of each of the Loan Documents are intended for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
WITNESS: COMMONWEALTH OF PENNSYLVANIA,
acting by and through the DEPARTMENT OF
COMMUNITY AND ECONOMIC DEVELOPMENT
/s/ Xxxxxxxx X. [illegible] By: /s/ Xxxxx [illegible]
----------------------------- -------------------------------------
Deputy Secretary
(OFFICIAL SEAL)
ATTEST: XXXXXX CORPORATION
SEMICONDUCTOR SECTOR
[illegible] By: [illegible]
----------------------------- -------------------------------------
Secretary Sector President
(CORPORATE SEAL)
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EXHIBIT "A"
EQUIPMENT
Debtor's "Equipment" - The machinery, equipment and other tangible
personal property listed below, and all parts, replacements., additions and
accessions thereto, any proceeds of sale or disposition thereof and any proceeds
of insurance thereon or condemnation thereof.
THE EQUIPMENT SCHEDULE
TYPE OF EQUIPMENT VENDOR/MANUFACTURER MODEL NO./SERIAL NO.
----------------- ------------------- --------------------
NOVELLUS SYSTEMS CONCEPT ONE V929764 1,154,855
Chemical Vapor Deposition System
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EXHIBIT "B"
NONDISCRIMINATION CLAUSE
During the term of this contract, the Borrower agree as follows:
1. the Borrower shall not discriminate against any employee, applicant for
employment, independent contractor or any other person because of race, color,
religious creed, ancestry, national origin, age or sex. The Borrower shall take
affirmative action to insure that applicants are employed, and that employees or
agents are treated during employment, without regard to their race, color,
religious creed, ancestry, national origin, age or sex. Such affirmative action
shall include, but is not limited to: employment, upgrading, demotion or
transfer, recruitment or recruitment advertising; layoff or termination; rates
of pay or other forms of compensation; and selection for training. The Borrower
shall post in conspicuous places, available to employees, agents, applicants for
employment and other persons, a notice to be provided by the contracting agency
setting forth the provisions of this nondiscrimination clause.
2. the Borrower shall in advertisements or requests for employment placed
by it or on its behalf, state that all qualified applicants will receive
consideration for employment without regard to race, color, religious creed.
ancestry, national origin, age, or sex.
3. the Borrower shall send each labor union or workers' representative
with which they have a collective bargaining agreement or other contract or
understanding. a notice advising said labor union or workers representative of
their commitment to this nondiscrimination clause. Similar notice shall be sent
to every other source of recruitment regularly utilized by the Borrower.
4. it shall be no defense to a finding of noncompliance with this
nondiscrimination clause that the Borrower had delegated some of its employment
practices to any union, training program or other source of recruitment which
prevents it from meeting its obligations. However, if the evidence indicates
that the Borrower was not on notice of the third-party discrimination or made a
good faith effort to correct it, such factor shall be considered in mitigation
in determining appropriate sanctions.
5. where the practices of a union or of any training program or other
source of recruitment will result in the exclusion of minority group persons, so
that the Borrower will be unable to meet its obligations under this
nondiscrimination clause, the Borrower shall then employ and fill vacancies
through other nondiscriminatory employment procedures.
6. the Borrower shall comply with all state and federal laws prohibiting
discrimination in hiring or employment opportunities. In the event of the
Borrower's noncompliance with the nondiscrimination clause of this contract or
with any such laws, this contract may be terminated or suspended, in whole or in
part, and the Borrower may be declared temporarily ineligible for further
Commonwealth contracts, and other sanctions may be imposed and remedies invoked.
7. the Borrower shall furnish all necessary employment documents and
records to, and permit access to its books, records and accounts by, the
contracting agency and the Office of
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Administration, Bureau of Affirmative Action, for purposes of investigation to
ascertain compliance with the provisions of this clause. If the Borrower does
not possess documents or records reflecting the necessary information requested,
it shall furnish such information on reporting forms supplied by the contracting
agency or the Bureau of Affirmative Action.
8. the Borrower shall actively recruit minority subcontractors or
subcontractors with substantial minority representation among its employees.
9. the Borrower shall include the provisions of this nondiscrimination
clause in every subcontract., so that such provisions will be binding upon each
subcontractor.
10. the Borrower obligations under this clause are limited to the
Borrower's facilities within Pennsylvania or where the contract is for purchase
of goods manufactured outside of Pennsylvania, the facilities at which such
goods are actually produced.
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EXHIBIT "C"
CONTRACTOR INTEGRITY PROVISIONS
1. Definitions.
a. Confidential information means information that is not public
knowledge, or available to the public on request, disclosure of which would give
an unfair, unethical, or illegal advantage to another desiring to contract with
the Commonwealth.
b. Consent means written permission signed by a duly authorized officer or
employee of the Commonwealth, provided that where the material facts have been
disclosed, in writing, by prequalification, bid, proposal, or contractual terms,
the Commonwealth shall be deemed to have consented by virtue of execution of
this Agreement.
c. Commonwealth means the Commonwealth of Pennsylvania Acting by and
Through its Department of Community and Economic Development and any agencies
and instrumentalities of the Commonwealth of Pennsylvania for which the
Department of Community and Economic Development provides staff services
(including without limitation the Pennsylvania industrial Development Authority,
Pennsylvania Economic Development Financing Authority, Pennsylvania Energy
Development Authority, and Pennsylvania Minority Business Development
Authority).
d. Contractor means the individual or entity that has entered into an
agreement with the Commonwealth, assumed the obligations of another to repay
moneys to the Commonwealth, or is the intended beneficiary of, and has knowingly
received benefits under, an agreement between the Commonwealth and a financial
intermediary or educational institution, including directors, officers,
partners, managers, key employees, and owners of more than a 5% interest.
e. Financial Interest means:
(1) ownership of more than a 5% interest in any business; or
(2) holding a position as an officer, director, trustee, partner,
employee, or the like, or holding any position of management.
f. Gratuity means any payment of more than nominal monetary value in the
form of cash, travel, entertainment, gifts meals, lodging, loans, subscriptions,
advances, deposits of money, services, employment, or contracts of any kind.
2. The Contractor shall take no action in violation of state or federal
laws, regulations. or other requirements that govern contracting with the
Commonwealth.
3. The Contractor shall not, in connection with this or any other
agreement with the Commonwealth, directly or indirectly offer, confer, or agree
to confer any pecuniary benefit on anyone as consideration for the decision,
opinion, recommendation, vote, other exercise of discretion, or violation of a
known legal duty by any officer or employee of the Commonwealth.
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4. The Contractor shall not, in connection with this or any other
agreement with the Commonwealth, directly or indirectly offer, give, or agree or
promise to give to anyone any gratuity for the benefit of or at the direction or
request of any officer or employee of the Commonwealth.
5. Except with the consent of the Commonwealth the Contractor shall not
have a financial interest in any other contractor, subcontractor, or supplier
providing services, labor, or material on this project.
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EXHIBIT "D"
CONTRACTOR RESPONSIBILITY PROVISIONS
1. The Contractor certifies that it is not currently under suspension or
debarment by the Commonwealth, any other state, or the federal government, and
if the Contractor cannot so certify, then it agrees to submit along with the
bid/proposal a written explanation of why such certification cannot be made.
2. If the Contractor enters into any subcontracts or employs under this
contract any subcontractors/individuals who are currently suspended or debarred
by the Commonwealth or the federal government or who become suspended or
debarred by the Commonwealth or federal government during the term of this
contract or any extensions or renewals thereof, the Commonwealth shall have the
right to require the Contractor to terminate such subcontracts or employment.
3. The Contractor agrees to reimburse the Commonwealth for the reasonable
costs of investigation incurred by the Office of Inspector General for
investigations of the Contractor's compliance with terms of this or any other
agreement between the Contractor and the Commonwealth which result in the
suspension or debarment of the Contractor. Such costs shall include, but not be
limited to, salaries of investigators, including overtime; travel and lodging
expenses; and expert witness and documentary fees. The Contractor shall not be
responsible for investigative costs for investigations which do not result in
the Contractor's suspension or debarment.
4. The Contractor may obtain the current list of suspended and debarred
contractors by contacting the:
Department of General Services
Office of Chief Counsel
000 Xxxxx Xxxxxx Xxxxxxxx
Xxxxxxxxxx. XX 00000
Telephone No. (000) 000-0000
Fax No. (000) 000-0000
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EXHIBIT "E"
AMERICANS WITH DISABILITIES ACT PROVISIONS
During the term of this contract, the Contractor agrees as follows:
1. Pursuant to federal regulations promulgated under the authority of The
Americans With Disabilities Act 28 C.F.R. Section 35.101 et seq., the Contractor
understands and agrees that no individual with a disability shall, on the basis
of the disability, be excluded from participation in this contract or from
activities provided for under this contract. As a condition of accepting and
executing this contract, the Contractor agrees to comply with the "General
Prohibitions Against Discrimination," 28 C.F.R. Section 35.130, and all other
regulations promulgated under Title II of The Americans With Disabilities Act
which are applicable to the benefits, services, programs, and activities
provided by the Commonwealth of Pennsylvania through contracts with outside
contractors.
2. The Contractor shall be responsible for and agrees to indemnify and
hold harmless the Commonwealth of Pennsylvania from all losses, damages,
expenses, claims, demands, suits, and actions brought by any party against the
Commonwealth of Pennsylvania as a result of the Contractor's failure to comply
with the provisions of paragraph 1 above.
3. "Contractor" means the individual or entity that has entered into this
Agreement with the Commonwealth.
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