CJL/02-16-99 PIDA #8259
CONSENT, SUBORDINATION AND
ASSUMPTION AGREEMENT
THIS AGREEMENT is made this day of February 1998, effective as of February
18, 1999, by PIERCING PAGODA, INC., a corporation with an address at 0000 Xxxxx
Xxxxx, X.X. Xxx 00000, Xxxxxx Xxxxxx, Xxxxxxxxxxxx 00000 (the "Industrial
Occupant"), and NORTHAMPTON COUNTY NEW JOBS CORP., a Pennsylvania nonprofit
corporation with an address at One S. Third Street, 7th Floor, X.X. Xxx 000 ,
Xxxxxx, Xxxxxxxxxxxx 00000 (the "Borrower"), in favor of THE PENNSYLVANIA
INDUSTRIAL DEVELOPMENT AUTHORITY, a public body corporate and politic with an
address at 000 Xxxxx Xxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000 ("PIDA").
ARTICLE I
Background
Section 1.01. The Borrower has agreed, to sell to the Industrial Occupant
certain premises situate in Northampton County, Pennsylvania, as more
particularly described on Exhibit A attached hereto and made a part hereof (the
"Premises"), subject to, and with the express assumption and agreement of the
Industrial Occupant to pay and perform any and all obligations of the Borrower
to PIDA under a certain second mortgage from Borrower to PIDA, effective as of
the same date as the effective date hereof and to be recorded in the Office of
the Recorder of Deeds of the county wherein the Premises are located (the
"Mortgage"), which Mortgage secures a loan in the amount of One Million Dollars
($1,000,000) from PIDA to the Borrower (the "Loan"), evidenced by a note from
the Borrower to PIDA dated the same date as the effective date hereof (the
"Note") and made pursuant to a Loan Agreement dated the same date as the
effective date hereof between the Borrower and PIDA (the "Loan Agreement"),
providing for the financing by PIDA of an industrial development project on the
Premises to be occupied by the Industrial Occupant.
Section 1.02. The Industrial Occupant has reviewed fully with separate
legal counsel for the Industrial Occupant the Loan Agreement, Note and Mortgage
and consents thereto and desires to assume all obligations and liabilities of
the Borrower thereunder and agrees to pay to PIDA for the account of the
Borrower the debt evidenced by the Loan Agreement and Note and secured by the
Mortgage.
To induce PIDA to make the Loan and as a material and substantive
inducement to the Borrower to execute and deliver the Note, for the account of
the Industrial Occupant, to borrow proceeds of the Loan for the benefit of and
for the account of the Industrial Occupant, and to execute the Mortgage and the
Loan Agreement, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the Industrial Occupant, intending to be legally
bound, represents and warrants to PIDA and the Borrower and agrees with PIDA and
the Borrower as follows:
ARTICLE II
Representations and Warranties of the Industrial Occupant
The Industrial Occupant makes the following representations and warranties
to PIDA and the Borrower:
Section 2.01. Corporate Organization. The Industrial Occupant is a duly
organized and validly existing corporation in good standing under the laws of
State of Delaware. If incorporated in a jurisdiction other than the Commonwealth
of Pennsylvania, Industrial Occupant is duly qualified to conduct business in
the Commonwealth of Pennsylvania as a foreign corporation. The Industrial
Occupant has full corporate power and authority to own its property and assets
and to transact the business in which it is engaged or currently proposes to
engage, including without limitation the business and operations referred to in
the Application.
Section 2.02. Power and Authority. The Industrial Occupant has the
corporate power to execute and deliver, or to assume, as the case may be, and to
carry out, the terms and provisions hereof and of each of the Loan Documents to
which it is a party or the terms of which it has assumed hereunder, and to carry
on the business and operations referred to in the Application. The Industrial
Occupant has taken all necessary corporate action (including obtaining any
consent of stockholders required by law or by its Articles or Certificate of
Incorporation or bylaws) to authorize the execution and delivery, or the
assumption, as the case may be, and the performance, by the Industrial Occupant,
of this Agreement and each of the Loan Documents to which it is a party or the
terms of which the Industrial Occupant has assumed, the incurrence of the
obligations of the Industrial Occupant hereunder and thereunder, and the
carrying on of the business and operations stated in the Application. This
Agreement and each of the Loan Documents to which the Industrial Occupant is a
party or the terms of which the Industrial Occupant has assumed constitute the
duly authorized, legal and valid and binding obligations of the Industrial
Occupant, except as the enforceability thereof may be limited by bankruptcy,
insolvency or other substantially similar laws of general application relating
to or affecting the enforcement of creditors' rights or by general principles of
equity.
Section 2.03. Necessary Approvals. Except such approvals, if any, as are
listed or described in Exhibit 2.03 hereto, which have been obtained, are in
full force and effect and evidence of which has been furnished to PIDA, no
approval is required to authorize, or is otherwise required in connection with,
(i) the execution and delivery, or the assumption, as the case may be, by the
Industrial Occupant of, (ii) the performance, by the Industrial Occupant, of, or
(iii) the legality, validity,
binding effect or enforceability of the obligations of the Industrial
Occupant under, this Agreement or the Loan Documents to which the Industrial
Occupant is a party or the terms of which it has assumed, including without
limitation the making of any of the payments provided for herein or therein, the
absence of which approval could have a material adverse effect on the ability of
the Industrial Occupant to make payments or perform and observe its other
material obligations hereunder or thereunder. The Industrial Occupant is not
aware of any circumstances as a result of which any approval heretofore granted
may be revoked or cancelled.
Section 2.04. Loan Documents Consistent With Law and Agreements. The
Industrial Occupant is not in default under any agreement to which it is a party
or by which it is bound which default could have a material adverse effect on
the ability of the Industrial Occupant to make payments or perform and observe
its other material obligations under this Agreement or any of the Loan Documents
to which it is a party or the terms of which it has assumed or to carry on
operations at the Project as stated in the Application. The execution and
delivery, or the assumption, as the case may be, and the performance, by the
Industrial Occupant, of this Agreement and the Loan Documents to which the
Industrial Occupant is a party or the terms of which it has assumed, the
consummation of the transactions contemplated in this Agreement and the Loan
Documents, and the compliance by the Industrial Occupant with the terms and
provisions of this Agreement and the Loan Documents to which it is a party or
the terms of which it has assumed, and the carrying on of operations at the
Project as stated in the Application, do not (i) contravene any provision of
law, statute, rule or regulation to which the Industrial Occupant is subject or
any judgment, decree, franchise, order or permit applicable to the Industrial
Occupant or (ii) violate or conflict with any provision of the Articles or
Certificate of Incorporation or bylaws of the Industrial Occupant or conflict
with, or result in any breach of, any of the terms, covenants, conditions or
provisions of, or constitute a material default under, or result in the creation
or imposition of (or the obligation to create or impose) any lien upon any of
the assets or revenues of the Industrial Occupant pursuant to the terms of, any
indenture, mortgage, deed of trust, agreement or other instrument to which the
Industrial Occupant is a party or by which it is bound or to which it may be
subject.
Section 2.05. Litigation. There are no court actions, suits or
proceedings, and no proceedings before any arbitral tribunal or by or before any
governmental commission, board, bureau or other administrative agency, pending
or (to the knowledge of the Industrial Occupant) threatened against the
Industrial Occupant or any affiliate which could have a material adverse effect
on the financial condition or operations of the Industrial Occupant or the
ability of the Industrial Occupant to perform its obligations under this
Agreement or the Loan Documents to which it is a party or the terms of which it
has assumed, or to carry on operations at the Project as stated in the
Application.
Section 2.06. Project Agreements. The Industrial Occupant has furnished to
PIDA originals or true and correct copies of all material written agreements
relating to the acquisition, construction or financing of the Project (including
any amendments thereto) (collectively, the "Project Documents") or, to the
extent PIDA shall have permitted summaries of Project Documents to be furnished
in lieu of the actual documents, fair and accurate summaries of the Project
Documents.
All Project Documents are in full force and effect. There are in
existence no agreements, laws, rules, regulations, orders, judgments,
injunctions, decrees, resolutions, determinations, awards or other instruments
whatsoever amending, supplementing or affecting, or affecting the rights and
obligations of the Industrial Occupant under, the Loan Documents or the Project
Documents, in a manner which could have a material adverse effect on the ability
of the Industrial Occupant to make payments or to perform and observe its other
material obligations under, this Agreement, or under the Project Documents
and/or Loan Documents to which it is a party or by which it is bound or the
terms of which it has assumed.
Section 2.07. Prepayments. The Industrial Occupant has not prepaid
any amount payable under the Premises Agreement.
Section 2.08. No Default For Borrowed Money. No default with respect to
any agreement pursuant to which the Industrial Occupant has borrowed money or
(except for (i) endorsement of negotiable instruments in the ordinary course of
business or (ii) guaranties in the ordinary course of business of travel or
relocation expenses of employees in non-material amounts) guaranteed the
obligations of others has occurred and is continuing as of the date hereof.
Section 2.09. Financial Statements and Financial Condition. All financial
statements of the Industrial Occupant (including all related notes) and all
supplementary financial information delivered to PIDA fairly present what they
purport to present as of the dates and for the respective fiscal periods
presented, and were prepared in accordance with generally accepted accounting
principles consistently applied, except as disclosed in such financial
statements or in Exhibit 2.09 hereto. The Industrial Occupant has no material
liabilities, direct or indirect, fixed or contingent, as of the date of such
financial statements which are not reflected therein. Except as disclosed in
Exhibit 2.09 hereto and consented to by PIDA there has been no material adverse
change in the financial condition of the Industrial Occupant from that disclosed
in the most recent annual financial statements delivered to PIDA prior to the
initial approval of the Loan by the PIDA Board.
Section 2.10. Taxes. The Industrial Occupant has filed all tax returns and
reports required to be filed by it with the United States of America and the
Commonwealth of Pennsylvania, and, where the failure to file such returns or
reports may have a material adverse effect on the financial condition or results
of operations of the Industrial Occupant, any other jurisdiction having the
power to require filing of such returns or reports, through the date hereof and
is current in the payment of all monies due to such jurisdictions, whether as
taxes or otherwise, unless the obligation to file such return or report or pay
such tax is being contested by an appropriate administrative or judicial appeal
or proceeding being conducted diligently in good faith. With respect to any such
appeal or proceeding to which the United States of America or the Commonwealth
of Pennsylvania is a party, the Industrial Occupant has posted or caused to be
posted a bond or other security satisfactory to PIDA in an amount which is at
least equal to the sum which is the subject of the appeal or proceeding,
together with all interest, costs, and charges relating thereto.
Section 2.11. Employee Benefits.
(a) Any employee pension benefit plans and employee welfare benefit
plans, collectively referred to as employee benefit plans, within the meaning of
the Employee Retirement Income Security Act of 1974, as amended
("ERISA") maintained by the Industrial Occupant or any subsidiary of
the Industrial Occupant ("Subsidiary"), comply in all material respects with the
reporting and disclosure and fiduciary responsibility provisions of Title I of
ERISA.
(b) Except as disclosed in Exhibit 2.11 hereto, no "prohibited
transaction" (as defined in either ERISA or Section 4975 of the Internal Revenue
Code (the "Code")) potentially having a material adverse effect on the
continuing operations of the Industrial Occupant, has occurred with respect to
any employee benefit plan sponsored or maintained by the Industrial Occupant or
any Subsidiary or (except with respect to any multi-employer pension or benefit
plan to which the Industrial Occupant or any Subsidiary contributes, as to which
no representation or warranty is expressed) to which the Industrial Occupant or
any Subsidiary contributes, nor is any person contractually bound to enter into
any such prohibited transaction.
(c) Except as disclosed in Exhibit 2.11 hereto, the Industrial
Occupant and its Subsidiaries have filed or (except with respect to any
multi-employer pension or benefit plan to which the Industrial Occupant or any
Subsidiary contributes, as to which no representation or warranty is expressed)
caused to be filed on a timely basis all returns, reports, statements, notices,
declarations, and other documents required by any governmental agency, whether
local, state or federal (including without limitation the Internal Revenue
Service, the Department of Labor, the Pension Benefit Guaranty Corporation and
the Securities and Exchange Commission) with respect to each employee benefit
plan sponsored or maintained by the Industrial Occupant or any Subsidiary or to
which the Industrial Occupant or any Subsidiary contributes, where a failure to
file may potentially have a material adverse effect on the continuing operations
of the Industrial Occupant.
(d) Except as described in Exhibit 2.11 hereto, and except for any
multi-employer pension or benefit plan not maintained or sponsored by Industrial
Occupant or its Subsidiaries but to which Industrial Occupant or its
Subsidiaries contributes, as to which no representation or warranty is
expressed, (i) all employee pension benefit plans maintained or sponsored by the
Industrial Occupant and each Subsidiary, or to which the Industrial Occupant or
any Subsidiary contributes, meet, as of the date hereof, the minimum funding
standards of Section 302 of ERISA and Section 412 of the Code, and (ii) no
"reportable event", as defined in Section 4043 of ERISA, potentially having a
material adverse effect on the continuing operations of the Industrial Occupant,
has occurred with respect to any such plan.
(e) The foregoing representations and warranties of the Industrial
Occupant as to itself and its Subsidiaries set forth in this Section are
accurate not only with respect to the Industrial Occupant and each Subsidiary
but with respect to each other member of any "controlled group of corporations"
or any "group of trades or businesses under common control" (as such terms are
defined in Section 414 of the Code) of which the Industrial Occupant or any
Subsidiary is a member.
Section 2.12. Environmental Matters. With respect to the Premises, and
with respect to any other facility as defined in The Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, ("CERCLA") (a
"facility") where a breach of any of the representations and warranties
contained in this section could potentially have a material adverse effect on
the financial condition or operations of the Industrial Occupant:
(a) Except as described in Exhibit 2.12 hereto, to the best
knowledge of Industrial Occupant after Due Inquiry, neither Industrial Occupant
nor any of its Affiliates (as defined below) is in violation of CERCLA, the
Superfund Amendments and Reauthorization Act of 1986, The Resource Conservation
and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments
of 1984, The Clean Water Act, The Toxic Substances Control Act, The Clean Air
Act, the Pennsylvania Hazardous Sites Cleanup Act, the Pennsylvania Solid Waste
Management Act, the Pennsylvania Storage Tank and Spill Prevention Act, the
Pennsylvania Worker and Community Right to Know Act, the Pennsylvania Clean
Streams Law, or any rule or regulation promulgated pursuant to any of the
foregoing statutes, or any other applicable law, statute, rule, regulation or
ordinance regulating the manufacture, use, possession, discharge or disposal of
substances injurious to the natural environment or to human health, whether
federal, state or local (collectively, as from time to time amended, the
"Environmental Laws");
(b) Except as described in Exhibit 2.12 hereto, to the best
knowledge of Industrial Occupant after Due Inquiry, neither the Industrial
Occupant nor any Affiliate, or officer, employee, agent or independent
contractor of the Industrial Occupant has arranged, by contract, agreement or
otherwise, (i) for the disposal or treatment of, or (ii) with a transporter for
the transport for disposal or treatment of, any Hazardous Material owned, used
or possessed by the Industrial Occupant or any Affiliate, in a manner which
violates any applicable Environmental Laws;
(c) Except as described in Exhibit 2.12 hereto, to the best
knowledge of the Industrial Occupant after Due Inquiry, there are no Hazardous
Materials now present on the Premises that may require remediation under any
Environmental Laws;
(d) Except as described in Exhibit 2.12 hereto, neither (i) the
Industrial Occupant nor (ii) in connection with the operations of the Industrial
Occupant, any Affiliate of the Industrial Occupant, is an "operator" or, to the
best knowledge of Industrial Occupant after Due Inquiry, an "owner," (each as
defined in CERCLA) of a facility at which Hazardous Materials were disposed of;
(e) Except as described in Exhibit 2.12 hereto, to the best
knowledge of Industrial Occupant after Due Inquiry, neither (i) the Industrial
Occupant nor (ii) in connection with the operations of the Industrial Occupant,
any Affiliate of the Industrial Occupant, "owned" or "operated" (as defined in
CERCLA) any facility containing Hazardous Materials at the time such Hazardous
Materials were disposed of; and
(f) For purposes of this Agreement: "Affiliate" shall mean any
individual, corporation, partnership, joint venture, trust, or unincorporated
organization, or a government or any agency or political subdivision thereof
(collectively, a "Person") which directly or indirectly controls, or is
controlled by, or is under common control, with, the Industrial Occupant,
including, without limitation, any record or beneficial holder of more than 25%
of any class of the Industrial Occupant's equity securities and any executive
officer or person employed or engaged in a senior management capacity of
Industrial Occupant. "Control" shall mean the possession, directly or
indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise. "Due Inquiry" shall
mean that the Industrial Occupant, consistent with good commercial or customary
practice, has caused to be made by a responsible officer or agent of the
Industrial Occupant appropriate inquiry among those directors, officers,
employees, agents, accountants and attorneys for the Industrial Occupant who
might reasonably be expected to have knowledge of the particular matter and,
when such matter includes the condition of the Premises or other facility, has
further undertaken appropriate inquiries into the present and past ownership and
uses thereof. "Hazardous Materials", shall include, without limitation, asbestos
(including asbestos in friable form), polychlorinated biphenyls, petroleum
products, flammable or explosive materials, radioactive materials, hazardous
materials, hazardous waste, hazardous or toxic substances or related materials,
each as defined under or pursuant to any Environmental Law.
Section 2.13. Bankruptcy, etc. Except as disclosed in Exhibit 2.13 hereto,
neither Industrial Occupant nor any Affiliate of Industrial Occupant has within
seven (7) years prior to the date hereof (i) filed any voluntary petition for
relief under the U.S. Bankruptcy Code or any state insolvency law or any law of
similar import of any nation or political subdivision thereof (any such law, a
"Bankruptcy Law"); (ii) had any involuntary petition filed against it under any
Bankruptcy Law which was not dismissed within 60 days subsequent to the filing
thereof; (iii) was adjudicated bankrupt or insolvent under any Bankruptcy Law;
(iv) entered into any assignment or composition for the benefit of creditors;
(v) entered into any transaction voidable under the Uniform Fraudulent
Conveyance Act or any law of similar import; (vi) admitted its inability to pay
its debts as such debts come due; or (vii) sought to take advantage of any
moratorium law then in effect.
Section 2.14. Criminal Convictions. Except as disclosed in Exhibit 2.14
hereto, neither Industrial Occupant, nor to Industrial Occupant's best knowledge
after Due Inquiry, any controlling shareholder (if Industrial Occupant is a
corporation required to file periodic reports under the U.S. Securities Exchange
Act of 1934, as amended from time to time (the "Exchange Act")), or any record
or beneficial holder of more than 10% of any class of Industrial Occupant's
equity securities (if Industrial Occupant is not required to file periodic
reports under the Exchange Act), director, officer or person employed or engaged
by Industrial Occupant in a senior management capacity or as a manager or
comptroller of the Project, has been convicted by any court of any felony or any
misdemeanor involving theft, dishonesty, deception, false swearing, or the
filing or submission of any false or misleading information to any agency of
government.
Section 2.15. Occupancy Agreements. Except for the agreements listed on
Exhibit 2.15 hereto, there exist no agreements between the Industrial Occupant
and any other person, corporation or other entity regarding use or occupancy of
any portion of the Premises. The Industrial Occupant has requested the Borrower
to acquire title to the Premises and convey the Premises to Industrial Occupant
as of the date hereof by the Deed solely for the purpose of obtaining the Loan,
all benefit of which will be received by the Industrial Occupant. Such title as
the Borrower holds to the Premises is solely as security for the Loan being made
by PIDA to Borrower and for that certain loan in the principal sum of $1,980,000
given by CORESTATES BANK, N.A. to the Borrower/Industrial Occupant, dated
, exclusively for Industrial Occupant's
benefit. Borrower has not had, does not have, and will not have any right to
occupy or access to the Premises or control or right to control any of the
operations of Industrial Occupant thereon.
Section 2.16. Permits. The construction of the Project as provided in the
Application, the use of the Project for the purposes stated in the Application,
and the operation of the Project, comply in all respects with, and are lawful,
permitted and conforming uses under, all applicable building, fire, safety,
subdivision, zoning, sewer, environmental, securities, health, insurance and
other laws, ordinances, rules, regulations and plan approval conditions of any
governmental, public or other body or authority having jurisdiction over the
Project except where failure to so comply will not have a material adverse
effect on operations to be carried on at the Project.
Except for (i) a permit for occupancy of the Project to be issued by
the Pennsylvania Department of Labor and Industry (where the Project is not
complete as of the date hereof) and (ii) the permits specifically identified in
Exhibit 2.16 hereto, the Industrial Occupant has received all material
administrative permits required for the operations to be carried on at the
Project, including without limitation zoning permits and permits under all
Environmental Laws. Except as specifically identified on Exhibit 2.16 hereof,
the Industrial Occupant, after Due Inquiry, has no reason to believe that any
required permits not yet obtained will not be timely issued in the ordinary
course of business of the issuing agency.
Section 2.17. Necessary Technology, etc. Except as stated in Exhibit 2.17
hereto, to the best knowledge of the Industrial Occupant after Due Inquiry, the
Industrial Occupant has possession of or ready access to all resources it will
require for operations at the Project, including without limitation working
capital, raw materials, labor (possessing necessary skills), machinery,
equipment, technology, communications, patents, trademarks and other
intellectual property.
Section 2.18. No Violation. Except as disclosed in Exhibit 2.18 hereto, to
the best knowledge of the Industrial Occupant after Due Inquiry there is no
violation, nor is there notice or other record of any violation, of any zoning,
subdivision, environmental, building or other statute, ordinance, regulation,
restrictive covenant or other restriction applicable to the Project.
Section 2.19. No Liens. There exist no liens, encumbrances or other
charges against the Project (including statutory and other liens of mechanics,
workers, contractors, subcontractors, suppliers, taxing authorities and others),
except the Mortgage and the liens listed on Exhibit 2.19 hereto; and the
Industrial Occupant has not made a contract or arrangement of any kind, the
performance of which by the other party thereto could give rise to a lien on the
Project by operation of law or otherwise except such as are adequately and fully
covered by PIDA's title insurance insuring the lien of the Mortgage.
Section 2.20. Utilities and Access. All utility services necessary for
construction and operation of the Project, including water supply, storm and
sanitary sewer facilities, gas, electricity and telephone facilities are, or
prior to the projected Project completion date will be, available within the
boundaries of the Project; and all roads necessary for the full utilization of
the Project for their intended purposes either have been completed or the
necessary rights-of-way therefor have been acquired by the appropriate
governmental authority or others or have been or will, prior to the projected
date of occupancy of the Project, be dedicated to public use and accepted by
such governmental authority, and all necessary steps have been taken by the
Industrial Occupant and all such governmental authority or others to assure
complete construction and installation thereof by the projected date of
occupancy of the Project.
Section 2.21. Information Furnished Accurate. To the best knowledge of
Industrial Occupant after Due Inquiry, all information supplied directly or
indirectly by the Industrial Occupant to PIDA on or prior to the date hereof,
including without limitation the Application, as of the respective dates of such
materials were, and as of the date hereof, are true and accurate in all material
respects and did not and do not contain any untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein not
misleading, provided that (i) the statements therein describing documents and
agreements are summaries only and such summaries are qualified by reference to
such documents and agreements, (ii) financial statements and other statements
expressly effective as of a particular date prior to the date when furnished are
warranted only to be true and accurate or (in the case of financial statements)
fairly to present what they purport to present, in either case as of the
effective date thereof, and (iii) to the extent any such information therein
provided by the Industrial Occupant was based upon or constitutes a forecast,
projection or other data which by its nature is uncertain, the Industrial
Occupant represents only that it acted in good faith and utilized due and
careful consideration and the best information known to it after Due Inquiry in
the preparation of such information
ARTICLE III
Assumption Of Obligations
Section 3.01. Assumption of Obligations. The Industrial Occupant for
itself, its successors and assigns: (i) hereby assumes all obligations of the
Borrower to make payments and discharge all obligations, expenses, costs and
liabilities of the Borrower in accordance with the terms and conditions of the
Note, the Mortgage and the Loan Agreement, as if the Industrial Occupant itself
had executed the Note, the Mortgage, and the Loan Agreement; (ii) consents and
agrees that its liability to pay and perform in accordance with the terms of the
Note, the Mortgage and the Loan Agreement shall continue until the Loan,
together with any and all interest, penalties and costs thereon, is paid in full
and all obligations are performed; (iii) consents and agrees that PIDA may
enforce against the Industrial Occupant the obligations of the Borrower assumed
hereby without any restriction or limitation (A) arising from any provision of
the Note restricting enforcement of certain liabilities thereunder (including,
without limitation, indemnification obligations arising under Sections 4.07 or
4.20 hereof) against assets of the Borrower other than the Borrower's interest
in the Premises, or (B) arising from the Loss Sharing Agreement effective as of
June 4, 1980 between the Borrower and PIDA, under which PIDA has agreed, among
other things, to exhaust remedies against the Industrial Occupant and any
Guarantor before pursuing remedies against the assets of the Borrower other than
the Premises; and (iv) assumes and covenants to perform any and all obligations,
promises and covenants of the Borrower contained in the Note, the Mortgage and
the Loan Agreement, as if the Industrial Occupant itself had executed the Note,
the Mortgage, and the Loan Agreement, except those obligations, promises and
covenants which relate to the internal organization of the Borrower and
therefore, by their nature, can only be performed by the Borrower.
Section 3.02. Subordination of Interest. The Industrial Occupant hereby
consents for itself, its successors and assigns to the Loan Agreement, Note, and
Mortgage, agrees that the terms and provisions hereof (including, without
limitation, each of the representations, warranties and covenants of Industrial
Occupant herein) shall be deemed included in the Loan Agreement, Note and
Mortgage and shall be enforceable under the Loan Agreement, Note and Mortgage as
though Industrial Occupant had executed the Loan Agreement, Note and Mortgage
and the terms and provisions hereof were expressly set forth in the Loan
Agreement, Note and Mortgage, and agrees that whatever right, title and interest
which it, its successors and assigns may have in and to the Premises under the
Agreement or otherwise shall be, and the same are hereby expressly made subject
and subordinate to the lien of the Mortgage and any other judgment, lien or
encumbrance pursuant to the Note or Loan Agreement.
ARTICLE IV
Special Covenants of the Industrial Occupant
The Industrial Occupant covenants and agrees as follows:
Section 4.01. Necessary Machines. The Industrial Occupant will
supply or cause to be supplied all machinery and/or equipment necessary for
the operation of the Project.
Section 4.02. No Removal of Jobs. The establishment of the Project by the
Borrower and the Industrial Occupant at the Premises will not cause the removal
of an industrial or manufacturing plant or facility or research and development
facility or agricultural enterprise controlled directly or indirectly by the
Industrial Occupant or any Affiliate from one area of the Commonwealth of
Pennsylvania to another area of the Commonwealth, nor result in the reduction of
the number of employees at any other plant controlled by the Industrial Occupant
or any Affiliate currently located in the Commonwealth of Pennsylvania.
Section 4.03. Operations and Number of Jobs. The Industrial Occupant will
create, or retain, as the case may be, at the Premises within three years from
the date of the grant of a permit for occupancy of the Premises by the
Department of Labor and Industry, no less than the number of jobs specified to
be created or retained in the Application.
Section 4.04. Certificate re Jobs. The Industrial Occupant will annually
provide PIDA with a certificate executed by an authorized officer setting forth
the number of employees, and their respective job classifications (skilled,
semi-skilled and unskilled), employed by the Industrial Occupant or any
subsidiary during the previous year at the Project, together with such other
related information as PIDA may request.
Section 4.05. Nondiscrimination. The Industrial Occupant and its
subsidiaries will not discriminate against any employee or against any
applicant for employment because of race, religion, color, handicap,
ancestry, national origin, sex or age, in any manner, including but not
limited to the following activities: 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 Industrial Occupant hereby accepts and agrees to be bound by
the nondiscrimination provisions set forth in Exhibit 4.05 hereto, and will
cause comparable nondiscrimination provisions to be inserted into all Project
contracts.
Section 4.06. Employee Benefit Plans. The Industrial Occupant and its
Subsidiaries shall: (i) fund all of their employee pension benefit plans, to the
extent required, in accordance with the minimum funding standards of Section 302
of ERISA and Section 412 of the Code, except where the failure to do so would
not have a material adverse effect on the continuing operations of the
Industrial Occupant; (ii) make all payments of contributions to all employee
benefit plans within the time periods established in ERISA and the Code, except
where the failure to do so would not have a material adverse effect on the
continuing operations of the Industrial Occupant; (iii) furnish PIDA, upon its
request, with copies of all reports or other statements filed with the United
States Department of Labor, the Internal Revenue Service or the Pension Benefit
Guaranty Corporation, or any other agencies, whether federal, state, or local,
with respect to all employee benefit plans; (iv) advise PIDA within ten days of
the occurrence of any "reportable event" or "prohibited transaction," within the
respective meanings of these terms in ERISA and the Code, with respect to any
employee benefit plan to which the Industrial Occupant or any Subsidiary
contributes, potentially having a material adverse effect on the continuing
operations of the Industrial Occupant; and (v) promptly advise PIDA of any audit
or investigation of any employee benefit plans by the Internal Revenue Service
or Department of Labor or any other governmental agency or any threatened or
proposed action by any such agency affecting the status of, and deductibility of
contributions to, any employee benefit plans, potentially having in any such
case a material adverse effect on the continuing operations of Industrial
Occupant.
Section 4.07. Environmental Compliance.
(a) Except as described on Exhibit 2.12 hereto, the Project and the
Industrial Occupant's operations at the Premises shall comply with all
Environmental Laws in all material respects (including, without limitation, in
all respects having a significant effect on the quality of air or surface or
ground water in the vicinity of the Premises).
(b) Without limiting the generality of the foregoing, the Industrial
Occupant shall keep the Project and Premises free of Hazardous Materials except
to the extent that such Hazardous Materials are stored and/or used in compliance
with all Environmental Laws. The Industrial Occupant shall not suffer or permit
the Premises to be used to generate, manufacture, refine, transport, treat,
dispose of, transfer, produce or process Hazardous Materials in violation of any
Environmental Laws. In addition, Industrial Occupant shall not suffer or permit
any tenant, subtenant or occupant to release any Hazardous Materials onto the
Premises or onto adjacent property in violation of any Environmental Laws.
(c) The Industrial Occupant shall immediately upon obtaining
knowledge of any of the following notify the appropriate regulatory agency in
writing, with a copy to PIDA:
(i) the release of any Hazardous Material or any other
substance regulated by the Environmental Laws, from, on or about the Premises in
violation of any Environmental Law;
(ii) receipt by the Industrial Occupant, or any tenant,
subtenant or occupant of the Premises, of any notice concerning the Premises of
any violation of any applicable Environmental Law;
(iii) any violation affecting the Project or the Premises
of any applicable Environmental Law; and
(iv) any claim or claims made against the Industrial Occupant
relating to the Project or the Premises relating to damage, contribution, cost
of recovery, compensation, loss or injury resulting from any Hazardous Material
or any other substance regulated by any applicable Environmental Law; provided
that notice to PIDA shall not be required pursuant to this Section 4.07 so long
as (A) the business of Industrial Occupant carried on at the Project is of a
character that, notwithstanding exercise of all possible care on the part of
Industrial Occupant, routinely produces discharges regulated under applicable
Environmental Laws, (B) such release, claim or violation relates to a discharge
of the character referred to in clause (A) hereof, and (C) such release, claim
or violation will not have a material adverse effect on the operations being
carried on at the Project or the operations or financial condition of the
Industrial Occupant.
(d) The Industrial Occupant, at its sole expense, shall conduct and
complete all investigations, studies, sampling and testing, and all removal and
other actions necessary to clean up and remove all Hazardous Materials on,
under, from or affecting the Project or the Premises if required by and in
accordance with all applicable federal, state and local laws, ordinances, rules,
regulations and policies, in accordance with the orders and directives of all
federal, state and local governmental authorities, to the reasonable
satisfaction of PIDA. The Industrial Occupant shall at all times keep the
Project and the Premises free of any lien imposed pursuant to any Environmental
Law including, without limitation, any Environmental Law relating to any
Hazardous Material.
(e) The Industrial Occupant shall indemnify, defend and hold
harmless the Borrower, PIDA, and the Commonwealth of Pennsylvania and their
respective employees, agents, officers and directors, including, without
limitation, any engineer or environmental consultant retained by Borrower or
PIDA (such parties collectively, "Indemnified Parties"), from and against any
claims, demands, penalties, fines, liabilities, settlements, damages, costs or
expenses of whatever kind or nature, known or unknown, contingent or otherwise,
including without limitation reasonable attorney fees, fees of environmental
consultants and laboratory fees, arising out of or in any way related to the
following matters: (i) the presence, disposal, release or threatened release of
any Hazardous Materials, on, over, under, from or affecting the Project or the
Premises or the soil, water, vegetation, buildings, personal property, persons
or animals thereon; (ii) any personal injury (including wrongful death) or
property damage (real or personal) arising out of or related to any Hazardous
Materials on, over, under, released from or affecting the Project or the
Premises; (iii) any lawsuit brought or threatened, settlement reached or
governmental order relating to such Hazardous Materials with respect to the
Project or the Premises; (iv) any violation of laws, orders, regulations,
requirements or demand of government authorities, which are based upon or in any
way related to any Hazardous Materials on, over, under, released from or
affecting the Project or the Premises; and/or (v) the breach of any warranty,
representation or covenant of the Industrial Occupant contained in this
Agreement relating to the Environmental Laws.
(f) (i) In the event PIDA shall have reasonable cause to suspect
that the Industrial Occupant has failed to comply with the terms of this
Agreement, or shall have reasonable cause to suspect that any Hazardous
Materials exist on the Premises in violation of any Environmental Laws, PIDA may
direct the Industrial Occupant to obtain, or if the Industrial Occupant shall
have failed or refused to so obtain after thirty (30) days notice from PIDA,
PIDA may obtain, an environmental audit of the Premises, at the sole expense of
the Industrial Occupant; (ii) the nature and scope of the environmental audit
shall be determined by PIDA, in its reasonable judgment; (iii) the Industrial
Occupant shall permit PIDA and PIDA's agents and employees access to the Project
and the Premises for the purpose of monitoring or conducting the environmental
audit, as the case may be, and shall otherwise reasonably cooperate and provide
such additional information as may be requested by PIDA or its agents and
employees; (iv) the Industrial Occupant shall comply with all reasonable
recommendations relating to amelioration of violation of any Environmental Laws
contained in the environmental audit, including, but not limited to, any
recommendations for additional testing or studies to detect the presence of
Hazardous Materials or contamination caused by Hazardous Materials, at the sole
cost and expense of the Industrial Occupant; (v) in the event the Industrial
Occupant fails to pay for the cost of the environmental audit or any remedial
actions or additional testing recommended thereby, relating to amelioration of
violation of any Environmental Laws, PIDA may pay for same; and (vi) each
payment made by PIDA shall become a part of the indebtedness evidenced by the
Note and secured by the Mortgage, shall be due and payable upon demand, and
shall bear interest at the default rate of interest established in the Note,
until paid in full by the Industrial Occupant.
(g) The liability under this Section 4.07 shall in no way be limited
or impaired by (i) any extension of time for performance required by any of the
Loan Documents, (ii) any sale, assignment or foreclosure of the Note or any sale
or transfer of all or part of the Project or the Premises, (iii) the discharge
of the Note, (iv) any exculpatory provisions in any of the Loan Documents
limiting PIDA's recourse to any other security, (v) the accuracy or inaccuracy
of the representations and warranties made by the Industrial Occupant; (vi) the
release of the Industrial Occupant or any other person from performance or
observance of any of the agreements, covenants, terms or conditions contained in
any of the Loan Documents by operation of law, PIDA's voluntary act (other than
the execution and delivery by PIDA of an instrument of release expressly and
specifically referring to Industrial Occupant's indemnification obligations), or
otherwise, (vii) the release or substitution in whole or in part of any security
for the Note; or (viii) PIDA's failure to file any mortgage or UCC financing
statements (or PIDA's improper filing of any thereof) or to otherwise perfect,
protect, secure or insure any mortgage, security interest or lien given as
security for the Note; and, in any such case, whether with or without notice to
the Industrial Occupant and with or without consideration.
(h) The indemnity provisions contained in this Section 4.07 hereof
shall survive any judicial foreclosure, foreclosure by power of sale, deed in
lieu of foreclosure, transfer of the property by the Industrial Occupant or
PIDA, and payment of the Loan in full, provided, however, that such indemnity
provisions shall at no time accrue to, or be construed to benefit, any other
third-party entity (other than an Indemnified Party or a successor in interest
or assign of PIDA) no matter how such other third-party entity obtains title or
any interest in the Project or Premises.
The liability covered by the indemnity provision shall include, but
not be limited to, losses sustained by an Indemnified Party for (i) amounts
owing under the Loan and the Loan Documents, (ii) amounts arising out of
personal injury or death claims, (iii) amounts charged to such Indemnified Party
for any environmental or Hazardous Materials clean up costs and expenses, liens,
or other such charges or impositions, (iv) payment for fees, court costs,
environmental tests and design studies, and (v) any other amounts reasonably
expended by any such Indemnified Party.
Section 4.08. Compliance with Agreements and Laws; Payment of Obligations.
The Industrial Occupant will act in accordance with all applicable agreements,
laws, rules, regulations, orders, judgments, injunctions, decrees, resolutions,
permits, franchises, determinations or awards of any administrative or
governmental authority or administrative or governmental organization,
non-compliance with which could have a material adverse effect on the ability of
the Industrial Occupant to carry on the operations at the Project contemplated
in the Application or make payments or perform and observe its other material
obligations under any of the Loan Documents.
The Industrial Occupant will pay and discharge all bills, claims and
charges relating to the Project or the Premises, including without limitation
claims for taxes and claims of laborers, mechanics and materialmen
(collectively, "Project Claims"), prior to the time the holder of any Project
Claim lawfully may cause any judgment or writ of execution to be filed or lodged
against the Premises as a result of such Project Claim.
Section 4.09. Maintenance and Operations of Project. The Industrial
Occupant will maintain and diligently operate the Project in a good and
workmanlike manner consistent with sound operating procedures, and cause all
machinery, equipment and facilities of any kind now or hereafter forming part of
the Project or necessary for the development thereof or the operation or
maintenance of the Project, to be provided and to be kept in good and efficient
operating condition, and all repairs, replacements, additions and improvements
thereto required to such end to be promptly made.
The Industrial Occupant will not permit, commit or suffer any
material waste with respect to the Project, nor use or permit the use of the
Project for any unlawful purpose or any purpose other than (i) the purpose
stated in the Application or (ii) a purpose eligible, at the time of
commencement thereof, for financing by PIDA under the PIDA Act, regulations,
statements of policy, guidelines and interpretations of the PIDA Board and staff
as in effect from time to time ("PIDA-Eligible") or permit any nuisance to exist
on the Premises, and not sell, transfer, lease, mortgage, pledge, convey or
otherwise dispose of the Project or Premises or any interest therein except with
the written consent of PIDA.
The Industrial Occupant will carry on in good faith at the Premises
substantial PIDA-Eligible manufacturing, industrial or other activities.
Section 4.10. Preservation of Corporate Existence, etc. Except as
otherwise permitted in Section 4.21, the Industrial Occupant will (a) maintain
and preserve its corporate existence and the right to carry on its business with
respect to the Project, and (b) duly procure and maintain all necessary
licenses, franchises, permits and other documents necessary or appropriate in
connection therewith and all necessary renewals and extensions thereof.
Section 4.11. Inspection. The Industrial Occupant will allow upon
reasonable prior written notice by PIDA to the Industrial Occupant, any
representative of PIDA to visit and inspect the Project and all or any of the
facilities or operations thereof, all at such reasonable times and as often as
PIDA or any such representative may request.
Section 4.12. Financial Statements. During the term of the Loan,
the Industrial Occupant will provide PIDA with:
(a) financial statements for the Industrial Occupant within one
hundred twenty (120) days after the close of each fiscal year including balance
sheets, statements of income and reconciliations of equity, in accordance with
generally accepted accounting principles, reviewed by an independent certified
public accountant satisfactory to PIDA, provided that if the Industrial Occupant
is a corporation subject to the reporting requirements of the Exchange Act, the
Industrial Occupant's obligation under this paragraph shall be satisfied by
delivery to PIDA of the financial statements required to be filed by the
Industrial Occupant under the Exchange Act in its annual reports;
(b) with reasonable promptness, such other information respecting
the business, operations and condition (financial or otherwise) of the
Industrial Occupant as PIDA may from time to time reasonably request, including
information relating to the Project; and
(c) with reasonable promptness, after it becomes known to the
Industrial Occupant, reasonably complete information on material adverse
developments which may reasonably be expected to threaten the completion or
continued operation of the Project.
Section 4.13. Compliance Certificates. If PIDA shall so request, the
Industrial Occupant will provide PIDA with annual Compliance Certificates
executed by officers authorized to execute and deliver the same within 120 days
of each fiscal year's end reciting compliance with representations, warranties
and covenants.
Section 4.14. Insurance. The Industrial Occupant will maintain the
insurance required by the Mortgage.
Section 4.15. Assignment and Subleases. Except as expressly permitted in
writing by PIDA, the Industrial Occupant shall not assign or sublease any
portion of the Premises, and shall not lease any portion of the Premises to or
permit any portion thereof to be occupied by any person other than Industrial
Occupant, and in no event shall the portion of the Project occupied by persons
other than the Industrial Occupant exceed 30% of the leasable space of the
Project. In the event any portion of the Project is leased, subleased or
assigned to or otherwise occupied by any person other than the Industrial
Occupant, the Industrial Occupant shall pay to PIDA as a prepayment under the
Note, in addition to any other payments required thereunder, 50% of (i) the
gross rent or equivalent charges received by the Industrial Occupant relating to
such occupancy, less only (ii) the proportionate amount of taxes, insurance, and
utilities allocable to the portion of the Premises being so leased, subleased or
assigned.
Section 4.16. Direct Payment. The Industrial Occupant will make
all payments assumed by it pursuant to Section 3.01 hereof directly to PIDA,
at such address as PIDA may specify from time to time.
Section 4.17. Accuracy of Information Supplied. The Industrial Occupant
will ensure that all information prepared by the Industrial Occupant and
supplied to PIDA or any third party under the provisions of this Agreement for
the purpose of any report or certificate to be furnished to PIDA in connection
with this Agreement or any of the Loan Documents will at the time it is supplied
be true and accurate in all material respects, except that (i) financial
statements and other statements expressly effective as of a particular date
prior to the date when furnished are required only to be true and accurate or
(in the case of financial statements) fairly to present what they purport to
present, in either case as of the effective date thereof, and (ii) to the extent
any such information is based upon or constitutes a forecast, projection or
other data which by its nature is uncertain, the Industrial Occupant is
committed only to act in good faith and utilize due and careful consideration
and the best information then known to it in preparing such information. With
respect to all information prepared by third parties and supplied by the
Industrial Occupant to PIDA and/or any third party under the provisions hereof
for the purpose of any report or certificate to be furnished to PIDA in
connection with this Agreement or any of the Loan Documents, the Industrial
Occupant shall deliver a written notice to PIDA as soon as possible if it
believes that such information is not complete and accurate in all material
respects, which written notice shall include the basis for such belief.
Section 4.18. Notice of Defaults. The Industrial Occupant will give prompt
notice to PIDA of the occurrence of any Event of Default under the Loan
Documents either on its part, or on the part of the Borrower of which the
Industrial Occupant becomes aware.
Section 4.19. Further Assurances. The Industrial Occupant will make,
execute or endorse, and acknowledge and deliver or file, all such vouchers,
invoices, notices and certifications and additional agreements, undertakings,
conveyances, transfers, assignments, financing statements, continuation
statements or further assurances, and take any and all such other actions, as
PIDA may reasonably deem necessary or advisable from time to time in connection
with the Loan or the Loan Documents to assure or confirm to PIDA and perfect all
or any part of the security for the Loan and any other obligations of the
Industrial Occupant.
Section 4.20. Indemnification. To the extent permitted by applicable law,
the Industrial Occupant hereby indemnifies and holds harmless the Indemnified
Parties from and against any and all claims, damages, losses, liabilities, costs
or expenses (including all reasonable fees or expenses resulting from the
settlement of any claims or liabilities and reasonable attorneys' fees)
(collectively, "Indemnified Claims") whatsoever which the Indemnified Party may
incur (or which may be claimed against the Indemnified Party by any person or
entity whatsoever) by reason of or in connection with (a) the issuance of the
Loan, (b) any breach by the Industrial Occupant of any representation, warranty,
covenant, term or condition in, or the occurrence of any default under, this
Agreement or the Loan Documents, and (c) involvement of the Indemnified Party in
any legal suit, investigation, proceeding, inquiry or action as a consequence,
direct or indirect, of PIDA's issuance of the Loan, PIDA's or the Borrower's
entering into this Agreement or any of the Loan Documents or any other event or
transaction contemplated by any of the foregoing; provided, however, that (i)
the Indemnified Party shall within sixty (60) days of
becoming aware of (A) its actual or potential liability for any Indemnified
Claim or (B) the formal assertion against it in writing of any Indemnified
Claim, have notified the Industrial Occupant of such Indemnified Claim and
tendered to the Industrial Occupant the defense of such claim; (ii) that no
Indemnified Claim shall be paid or compromised without the consent of the
Industrial Occupant, which shall not unreasonably be withheld and shall be
deemed given if the Industrial Occupant does not object, by a notice in writing
to the Indemnified Party, to the payment or compromise of such Indemnified Claim
within 10 calendar days after the Indemnified Party has given to the Industrial
Occupant notice of the proposed payment or compromise thereof, and (iii) the
Industrial Occupant shall not be required to indemnify an Indemnified Party
hereunder for any claims, damages, losses, liabilities, costs or expenses to the
extent, but only to the extent, caused by the gross negligence or willful
misconduct of such Indemnified Party.
The liability under this Section 4.20 shall in no way be limited or
impaired by (i) any extension of time for performance required by any of the
Loan Documents, (ii) any sale, assignment or foreclosure of the Note or any sale
or transfer of all or part of the Project or the Premises, (iii) the discharge
of the Note, (iv) any exculpatory provisions in any of the Loan Documents
limiting PIDA's recourse to any other security, (v) the accuracy or inaccuracy
of the representations and warranties made by the Industrial Occupant; (vi) the
release of the Industrial Occupant or any other person from performance or
observance of any of the agreements, covenants, terms or conditions contained in
any of the Loan Documents by operation of law, PIDA's voluntary act (other than
the execution and delivery by PIDA of an instrument of release expressly and
specifically referring to Industrial Occupant's indemnification obligations), or
otherwise, (vii) the release or substitution in whole or in part of any security
for the Note; or (viii) PIDA's failure to file any mortgage or UCC financing
statements (or PIDA's improper filing of any thereof) or to otherwise perfect,
protect, secure or insure any mortgage, security interest or lien given as
security for the Note; and, in any such case, whether with or without notice to
the Industrial Occupant and with or without consideration.
The indemnity provisions contained in this Section 4.20 hereof shall
survive any judicial foreclosure, foreclosure by power of sale, deed in lieu of
foreclosure, transfer of the property by the Industrial Occupant or PIDA, and
payment of the Loan in full, provided, however, that such indemnity provisions
shall at no time accrue to, or be construed to benefit, any other third-party
entity (other than an Indemnified Party or a successor in interest or assign of
PIDA) no matter how such other third-party entity obtains title or any interest
in the Project or Premises.
The liability covered by the indemnity provision shall include, but
not be limited to, losses sustained by an Indemnified Party for (i) amounts
owing under the Loan and the Loan Documents, (ii) amounts arising out of
personal injury or death claims, (iii) amounts charged to an Indemnified Party
for any environmental or Hazardous Materials clean up costs and expenses, liens,
or other such charges or impositions, (iv) payment for fees, court costs,
environmental tests and design studies, and (v) any other amounts reasonably
expended by an Indemnified Party.
Section 4.21. Negative Covenants.
(a) Without the prior written consent of PIDA, the Industrial
Occupant shall not permit, allow or suffer to exist, any lien, judgment,
mortgage, or encumbrance to be placed against the Premises or any interest
therein, or enter into any agreement requiring, contemplating or providing for
placement of any such judgment, mortgage, lien or encumbrance, except (i)
mortgages, liens and encumbrances expressly provided for in the Application to
which PIDA shall not have objected in writing, and (ii) that the terms of this
Section 4.21(b) shall not be deemed to prohibit execution of any note or credit
instrument not providing for any specific lien against the Premises but
permitting confession of judgment against the Industrial Occupant subsequent to
an event of default thereunder so long as judgment is not confessed thereunder.
(b) The Industrial Occupant will not change its name without notice
to PIDA.
(c) Without the prior written consent of PIDA, the Industrial
Occupant shall not (i) merge, consolidate or divide, whether or not the
Industrial Occupant is the surviving corporation, (ii) sell, transfer, assign,
lease, mortgage, lien, pledge or otherwise convey or dispose of all or any
material part of its assets, except in the ordinary course of business, (iii)
effect a reorganization, recapitalization or reclassification of its capital
stock or equity securities the effect of which is materially to reduce tangible
net assets or shareholders' equity of Industrial Occupant, (iv) issue, redeem,
purchase or retire any of its capital stock or equity securities or grant or
issue any warrant, right or option pertaining thereto or other security
convertible into any of the foregoing, except pro rata among existing security
holders the effect of which is not materially to reduce tangible net assets or
shareholders' equity, or (v) permit any change in ownership of its capital stock
or equity securities from that previously disclosed to PIDA in connection with
the Loan.
ARTICLE V
Confession of Judgment
Section 5.01. THE FOLLOWING PARAGRAPHS SET FORTH WARRANTS OF AUTHORITY FOR
AN ATTORNEY TO CONFESS JUDGMENT AGAINST THE INDUSTRIAL OCCUPANT. IN GRANTING
THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST THE INDUSTRIAL OCCUPANT,
THE INDUSTRIAL OCCUPANT HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, AND, ON
THE ADVICE OF THE SEPARATE COUNSEL OF THE INDUSTRIAL OCCUPANT, UNCONDITIONALLY
WAIVES ANY AND ALL RIGHTS THE INDUSTRIAL OCCUPANT HAS OR MAY HAVE TO PRIOR
NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND
LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF PENNSYLVANIA, EXCEPT AS
EXPRESSLY SET FORTH HEREIN AND IN THE RULES OF THE PENNSYLVANIA RULES OF CIVIL
PROCEDURE PERTAINING TO CONFESSED JUDGMENTS, AS FROM TIME TO TIME IN EFFECT.
(A) (i) IF ANY REPRESENTATION OR WARRANTY MADE BY THE INDUSTRIAL
OCCUPANT HEREUNDER SHALL PROVE TO HAVE BEEN INCORRECT IN ANY MATERIAL RESPECT
WHEN
MADE; (ii) IF INDUSTRIAL OCCUPANT SHALL FAIL, AFTER EXPIRATION OF ANY APPLICABLE
GRACE, NOTICE AND/OR CURE PERIODS, TIMELY TO MAKE ANY OF THE PAYMENTS OR
DISCHARGE ANY OF THE DUTIES OF BORROWER ASSUMED BY INDUSTRIAL OCCUPANT
HEREUNDER; OR (iii) IF INDUSTRIAL OCCUPANT SHALL FAIL IN ANY MATERIAL RESPECT TO
CARRY OUT ANY OF THE COVENANTS OF INDUSTRIAL OCCUPANT HEREUNDER OR UNDER ANY OF
THE LOAN DOCUMENTS EXECUTED AND DELIVERED BY, OR THE OBLIGATIONS UNDER WHICH
WERE ASSUMED BY, INDUSTRIAL OCCUPANT, THE BENEFITS OF WHICH WERE ASSIGNED TO
PIDA AS SECURITY FOR THE LOAN, AND SUCH FAILURE SHALL CONTINUE IN EFFECT, AFTER
NOTICE OF SUCH FAILURE TO INDUSTRIAL OCCUPANT HEREUNDER, FOR NOT LESS THAN
THIRTY DAYS: THEN, IN ANY SUCH EVENT (OF WHICH AN AFFIDAVIT ON BEHALF OF PIDA
SHALL BE SUFFICIENT EVIDENCE) INDUSTRIAL OCCUPANT HEREBY IRREVOCABLY AUTHORIZES
AND EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OF
PENNSYLVANIA, OR ELSEWHERE, TO APPEAR FOR AND TO ENTER AND CONFESS JUDGMENT
AGAINST THE INDUSTRIAL OCCUPANT, AT ANY TIME OR TIMES AND AS OF ANY TERM, FOR
ANY AND ALL SUMS DUE AND OWING TO PIDA BY VIRTUE OF INDUSTRIAL OCCUPANT'S
ASSUMPTION OF THE BORROWER'S OBLIGATIONS UNDER THE NOTE, MORTGAGE AND LOAN
AGREEMENT AND/OR INDUSTRIAL OCCUPANT'S OBLIGATIONS UNDER ANY OF THE LOAN
DOCUMENTS EXECUTED AND DELIVERED BY, OR THE OBLIGATIONS UNDER WHICH WERE ASSUMED
BY, INDUSTRIAL OCCUPANT, THE BENEFITS OF WHICH WERE ASSIGNED TO PIDA AS SECURITY
FOR THE LOAN, WITH OR WITHOUT DECLARATION, WITH INTEREST AND COSTS OF SUIT,
WITHOUT STAY OF EXECUTION, AND WITH REASONABLE ATTORNEY'S FEES. THE INDUSTRIAL
OCCUPANT AGREES THAT ANY OF ITS PROPERTY MAY BE LEVIED UPON TO COLLECT SAID
JUDGMENT AND MAY BE SOLD UPON A WRIT OF EXECUTION, AND HEREBY WAIVES AND
RELEASES ALL LAWS, NOW OR HEREAFTER IN FORCE, RELATING TO EXEMPTION,
APPRAISEMENT OR STAY OF EXECUTION. THE AUTHORITY HEREBY GRANTED TO CONFESS
JUDGMENT SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF, BUT SHALL CONTINUE FROM
TIME TO TIME AND AT ALL TIMES UNTIL THE INDUSTRIAL OCCUPANT HAS PAID ALL SUMS
REQUIRED TO BE PAID BY THE INDUSTRIAL OCCUPANT AND HAS PERFORMED ALL OF THE
OTHER OBLIGATIONS REQUIRED OF INDUSTRIAL OCCUPANT HEREUNDER.
(B) IN CASE OF ANY BREACH OF THE TERMS OF SUBSECTION (A) OF THIS
SECTION, (OF WHICH AN AFFIDAVIT ON BEHALF OF PIDA SHALL BE SUFFICIENT EVIDENCE),
THEN, AND IN ANY SUCH EVENT, ANY ATTORNEY OF ANY COURT OF RECORD OF PENNSYLVANIA
OR ELSEWHERE IS HEREBY AUTHORIZED AND EMPOWERED TO APPEAR FOR THE INDUSTRIAL
OCCUPANT AND ALL PERSONS CLAIMING UNDER OR THROUGH THE INDUSTRIAL OCCUPANT, AND
AS ATTORNEY FOR THE INDUSTRIAL OCCUPANT AND ALL PERSONS CLAIMING UNDER OR
THROUGH THE INDUSTRIAL OCCUPANT, TO SIGN AN AGREEMENT FOR ENTERING AN AMICABLE
ACTION OF EJECTMENT FOR
POSSESSION OF THE PREMISES OR ANY PART THEREOF AND TO CONFESS JUDGMENT THEREIN
AGAINST THE INDUSTRIAL OCCUPANT, IN FAVOR OF PIDA, WHEREUPON A WRIT OF
POSSESSION MAY IMMEDIATELY ISSUE FOR THE POSSESSION OF THE PREMISES, WITHOUT ANY
PRIOR COMPLAINT, WRIT OR PROCEEDING WHATSOEVER; AND FOR SO DOING THIS AGREEMENT,
OR A COPY HEREOF VERIFIED BY AFFIDAVIT, SHALL BE HIS SUFFICIENT WARRANT. THIS
POWER MAY BE EXERCISED AS OFTEN AS PIDA SHALL REQUIRE AND SHALL NOT BE EXHAUSTED
BY ONE OR MORE OR BY ANY IMPERFECT EXERCISE THEREOF.
IF FOR ANY REASON AFTER ANY SUCH ACTION HAS BEEN COMMENCED THE SAME
SHALL BE DISCONTINUED OR POSSESSION OF THE PREMISES SHALL REMAIN IN OR BE
RESTORED TO THE INDUSTRIAL OCCUPANT, PIDA SHALL HAVE THE RIGHT FOR THE SAME
DEFAULT OR ANY SUBSEQUENT DEFAULT TO BRING ONE OR MORE FURTHER AMICABLE ACTIONS
AS ABOVE PROVIDED TO COLLECT ALL SUMS DUE AND/OR TO RECOVER POSSESSION OF THE
PREMISES. PIDA MAY BRING ANY SUCH AMICABLE ACTION IN EJECTMENT BEFORE OR AFTER
JUDGMENT ON THE MORTGAGE OR ON THE NOTE, OR AFTER A SALE OF THE PREMISES BY THE
SHERIFF. IF AFTER EXECUTION AND RETURN OF THE WRIT OF POSSESSION, THE INDUSTRIAL
OCCUPANT SHALL REENTER INTO POSSESSION OF THE PREMISES, THE PROTHONOTARY, UPON
PRAECIPE AND AFFIDAVIT SETTING FORTH THE FACTS FILED WITHIN THREE YEARS AFTER
THE RETURN OF THE WRIT UPON WHICH EXECUTION WAS COMPLETED, SHALL ISSUE A NEW
WRIT OF POSSESSION.
(C) IF INDUSTRIAL OCCUPANT WISHES TO CHALLENGE ANY JUDGMENT
CONFESSED PURSUANT TO THIS SECTION, IT SHALL DO SO ONLY BY FILING A PETITION TO
OPEN THE JUDGMENT PURSUANT TO PENNSYLVANIA RULES OF CIVIL PROCEDURE RULE 2959,
AS IN EFFECT FROM TIME TO TIME, ("RULE 2959") AND SHALL NOT OTHERWISE INTERFERE
(BY FILING ANY CIVIL ACTION XXXX IN EQUITY, OR OTHERWISE) WITH THE OPERATION OF
THIS JUDGMENT GRANTED PURSUANT TO THIS SECTION. INDUSTRIAL OCCUPANT EXPRESSLY
ACKNOWLEDGES THAT THE PROCEDURE AVAILABLE TO IT THROUGH RULE 2959 WILL PROVIDE
IT WITH A FULL AND FAIR OPPORTUNITY TO BE HEARD AS TO ANY REASON WHY JUDGMENT
SHOULD NOT BE ENTERED AGAINST IT.
THE INDUSTRIAL OCCUPANT ACKNOWLEDGES THAT IT UNDERSTANDS THE MEANING
AND EFFECT OF THE CONFESSION CONTAINED IN THE FOREGOING PARAGRAPHS.
SPECIFICALLY, THE INDUSTRIAL OCCUPANT UNDERSTANDS AMONG OTHER THINGS THAT (1) IT
IS RELINQUISHING THE RIGHT TO HAVE THE BURDEN OF PROOF OF DEFAULT REST ON PIDA
PRIOR TO THE ENTRY OF JUDGMENT, (2) THE ENTRY OF JUDGMENT MAY RESULT IN A LIEN
ON ITS PROPERTY, (3) IT WILL BEAR THE BURDEN AND EXPENSE OF ATTACKING THE
JUDGMENT AND CHALLENGING EXECUTION ON THE LIEN AND SALE OF THE PROPERTY COVERED
THEREBY, AND (4) ENOUGH OF ITS PROPERTY MAY BE TAKEN TO PAY THE PRINCIPAL
AMOUNT, INTEREST COSTS AND ATTORNEY'S FEES.
ARTICLE VI
Miscellaneous
Section 6.01. Obligations Unconditional. The obligations of the Industrial
Occupant to PIDA under this Agreement and each of the Loan Documents shall be
absolute and unconditional without defense or set-off by reason of any default
by the contractors under the contracts relating to the Project or by Borrower or
by PIDA under this Agreement, any of the Loan Documents, or under any other
agreement between the Borrower and the Industrial Occupant or between the
Industrial Occupant and PIDA, or for any other reason, including without
limitation failure to complete the Project, any acts or circumstances that may
constitute failure of consideration, destruction of or damage to the Project,
commercial frustration of purpose, or failure of the Borrower or PIDA to perform
and observe any agreement, whether express or implied, or any duty, liability or
obligation arising out of or connected with the Loan, it being the intention of
the parties that the payments required by Industrial Occupant under each of the
Loan Documents will be paid in full when due without any delay or diminution
whatsoever. Payments and additional sums required to be paid by Industrial
Occupant to PIDA under any of the Loan Documents shall be received by PIDA as
net sums and the Industrial Occupant agrees to pay or cause to be paid all
charges against or which might diminish such net sums. The provisions of this
Section shall not impair the ability of the Industrial Occupant or any other
person to bring an independent action against PIDA with respect to any cause of
action which such person may have against PIDA.
Section 6.02. Provisions Complementary. The provisions of this Agreement
shall be in addition to those of any other Loan Document. All of such provisions
shall be construed as complementary to each other. Nothing contained herein
shall prevent PIDA from enforcing any and all of such provisions in accordance
with their respective terms.
Section 6.03. Rights and Remedies. The terms hereof and of each of the
Loan Documents shall be liberally construed in favor of PIDA to effectuate the
purposes hereof. No delay or failure on the part of PIDA in exercising any
right, power or privilege under any of the Loan Documents 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 PIDA
under any of the Loan Documents are cumulative and concurrent and not exclusive
of any rights or remedies which it might otherwise have. PIDA shall have the
right at all times to enforce the provisions of the Loan Documents and all
related documentation in strict accordance with the terms hereof,
notwithstanding any conduct or custom on the part of PIDA in refraining from so
doing at any time or times. The failure of PIDA at any time or times to enforce
its 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 such Loan Document or any such documentation or as having
in any way or manner modified or waived the same. All rights and remedies of
PIDA are cumulative and concurrent and the exercise of one right or remedy shall
not be deemed a waiver or release of any other right or remedy.
Section 6.04. Offset Clause. The Industrial Occupant agrees that the
Commonwealth of Pennsylvania may set off the amount of any state tax liability
or other debt of the Industrial Occupant or its respective subsidiaries that is
owed to the Commonwealth and not being contested on appeal against any payments
due the Industrial Occupant under this or any other contract with the
Commonwealth.
Section 6.05. Contractor Responsibility Provisions. Included in
and made a part of this Agreement is Exhibit 6.05, a clause pertaining to
Contractor Responsibility.
Section 6.06. Contractor Integrity. The Industrial Occupant covenants that
it presently has no interest and shall not acquire any interest, direct or
indirect, which would conflict in any manner or degree with the performance of
its obligations hereunder. Included in and made a part of this Agreement is
Exhibit 6.06, a clause pertaining to Contractor Integrity.
Section 6.07. Americans with Disabilities Act Provisions. Included
in and made a part of this Agreement is Exhibit 6.07, a clause pertaining to
compliance with the Americans with Disabilities Act.
Section 6.08. Assignment; Beneficiaries. This Agreement and each of the
Loan Documents shall inure to the benefit of, and shall be binding upon, the
respective successors and assigns of PIDA and the Industrial Occupant. Although
PIDA has no present intention to convey, pledge or otherwise assign its rights
under the Loan Documents, it may nevertheless do so in whole or in part without
notice to any person (including, without limitation, the Industrial Occupant).
The Industrial Occupant has no right to assign any of its rights or obligations
hereunder or under any of the Loan Documents without the prior written consent
of PIDA, and any such assignment without the prior written consent of PIDA shall
be void.
The Industrial Occupant and PIDA intend that no person (other than
Borrower and any Indemnified Party) shall have any claim or interest under this
Agreement or any of the Loan Documents or right of action thereunder.
Section 6.09. Amendments. This Agreement and the Loan Agreement may be
modified or amended only by a written instrument duly executed by PIDA, the
Borrower, and the Industrial Occupant. Each of the remaining Loan Documents may
be modified only by a written instrument duly executed by PIDA and the remaining
parties to the particular Loan Document.
Section 6.10. Notices. Notices required hereunder, or any correspondence
concerning this Agreement shall be directed to the following addresses and shall
be deemed properly given (i) if delivered by hand, (ii) 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 (iii) if sent by facsimile, with
a copy sent by first class U.S. Mail, postage prepaid.
(a) If PIDA:
THE PENNSYLVANIA INDUSTRIAL DEVELOPMENT AUTHORITY c/o
Department of Community and Economic Development Xxxx 000,
Xxxxx Xxxxxxxx Xxxxxxxxxx, Xxxxxxxxxxxx 00000
FAX: (000) 000-0000
Attention: Administrator
(b) If Industrial Occupant:
PIERCING PAGODA, INC.
0000 Xxxxx Xxxxx, X.X. Xxx 00000
Xxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
(c) If Borrower:
NORTHAMPTON COUNTY NEW JOBS CORP.
One S. Third Street, 7th Floor, X.X. Xxx 000
Xxxxxx, Xxxxxxxxxxxx 00000
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 6.11. Delivery to PIDA. Any materials delivered to PIDA's
independent engineer or financial consultant shall be deemed to have been
delivered to PIDA, provided that any amendment or supplement to information
delivered shall be deemed effectively delivered only if delivered to the same
entity as received the original information.Section 6.12. Severability; Interest
Limitation. If any provision hereof or of the Loan Documents is found by a court
of competent jurisdiction to be prohibited or unenforceable in any jurisdiction,
it shall be ineffective as to such jurisdiction only to the extent of such
prohibition or unenforceability, and such prohibition or unenforceability shall
not invalidate the balance of such provision as to such jurisdiction to the
extent it is not prohibited or unenforceable, nor invalidate such provision in
any other jurisdiction, nor invalidate the other provisions hereof, all of which
shall be liberally construed in favor of PIDA in order to effect the provisions
of this Agreement. Notwithstanding anything to the contrary herein contained,
the total liability of the Industrial Occupant for payment of interest pursuant
to the Loan Documents shall not exceed the maximum amount, if any, of such
interest permitted by applicable law to be contracted for, charged or received,
and if any payments by the Industrial Occupant to PIDA include interest in
excess of such a maximum amount, PIDA shall apply such excess to the reduction
of the unpaid principal amount due pursuant hereto, or if none is due, such
excess shall be refunded to the Industrial Occupant; provided that, to the
extent permitted by applicable law, in the event the interest is not collected,
is applied to principal or is refunded pursuant to this sentence and interest
thereafter payable pursuant hereto shall be less than such maximum amount, then
such interest thereafter so payable shall be increased up to such maximum amount
to the extent necessary to recover the amount of interest, if any, theretofore
uncollected, applied to principal or refunded pursuant to this sentence. Any
such application or refund shall not cure or waive any Event of Default. In
determining whether or not any interest payable under the Loan Documents exceeds
the highest rate permitted by law, any nonprincipal payment (except payments
specifically stated to be "interest") shall be deemed, to the extent permitted
by applicable law, to be an expense, fee, premium or penalty rather than
interest.
Section 6.13. Complete Agreement. The Loan Documents constitute the entire
agreement between PIDA and the Industrial Occupant. The Loan Documents supersede
and replace all prior agreements related to the subject matter thereof
including, without limitation, the Commitment, except to the extent such prior
agreements are expressly incorporated by reference or otherwise referred to.
Section 6.14. Consent to Jurisdiction; Venue. The Industrial Occupant
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 Industrial Occupant 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 Industrial Occupant at its address provided under or
pursuant to Section 6.10. The Industrial Occupant 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 PIDA
to serve legal process in any other manner permitted by law or affect the right
of PIDA to bring any suit, action or proceeding against the Industrial Occupant
or its property in the courts of any other jurisdiction.
Section 6.15. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the Commonwealth of
Pennsylvania without reference to its principles of conflicts of law.
Section 6.16. Survival of Covenants. All covenants made or assumed by the
Industrial Occupant in any of the Loan Documents shall survive the delivery of
this Agreement and the Loan Documents and until the Loan is prepaid in full,
unless a longer term is expressly provided therein, in which event such longer
term shall apply.
Section 6.17. Accounting Terms. Each accounting term not defined herein
and each accounting term partly defined herein, to the extent not defined
herein, shall have the meaning given it under generally accepted accounting
principles as in effect from time to time in the United States of America,
consistently applied.
Section 6.18. Rules of Construction. In this Agreement, unless otherwise
indicated, (i) defined terms may be used in the singular or the plural and the
use of any gender includes all genders, (ii) the words, "hereof", "herein",
"hereto", "hereby" and "hereunder" refer to this entire Agreement and (iii) all
references to particular Articles or Sections are references to the Articles or
Sections of this Agreement.
Section 6.19. Defined Terms. All capitalized terms not defined
herein shall have the meanings ascribed to them in the Loan Agreement. The
Industrial Occupant shall be referred to as Contractor in Exhibits 4.05,
6.05, 6.06 and 6.07.
Section 6.20. Exhibits. All exhibits to this Agreement are
incorporated within this Agreement and constitute a part thereof.
Section 6.21. Descriptive Headings. Descriptive headings of the
several Articles and Sections of this Agreement are intended for convenience
only and shall not control or affect the meaning or construction of any of
the provisions hereof.
Section 6.22. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute but one and the same instrument. All
signatures need not appear on the same copy hereof.
Section 6.23. Seal. This Agreement is intended to take effect as
an instrument under seal.
IN WITNESS WHEREOF, the Industrial Occupant, intending to be legally bound
hereby, has caused this Consent, Subordination and Assumption Agreement to be
executed on its behalf by the undersigned duly authorized officers and its
corporate seal to be affixed hereto as of the day and year first above written.
ATTEST: PIERCING PAGODA, INC.
By
Secretary President
(CORPORATE SEAL)
The terms and conditions of the foregoing Consent, Subordination and Assumption
Agreement are hereby approved and agreed to, with the express understanding that
the undersigned's obligations under the Loan Agreement, Note and Mortgage are
not relieved or in any way diminished by virtue of the Industrial Occupant's
execution of this Agreement.
ATTEST: NORTHAMPTON COUNTY NEW JOBS CORP.
By
Secretary President
(CORPORATE SEAL)
EXHIBIT "A"
THE PREMISES
EXHIBIT 2.03
NECESSARY APPROVALS
NONE
EXHIBIT 2.09
LIABILITIES NOT PREVIOUSLY DISCLOSED
NONE
EXHIBIT 2.11
ERISA DISCLOSURES
NONE
EXHIBIT 2.12
ENVIRONMENTAL DISCLOSURES
NONE
EXHIBIT 2.13
ACTS OF BANKRUPTCY
NONE
EXHIBIT 2.14
CRIMINAL CONVICTIONS
NONE
EXHIBIT 2.15
OCCUPANCY AGREEMENTS
NONE
EXHIBIT 2.16
NECESSARY PERMITS
NONE
EXHIBIT 2.17
NECESSARY TECHNOLOGY, ETC.
NONE
EXHIBIT 2.18
VIOLATIONS
NONE
EXHIBIT 2.19
PERMITTED LIENS
A First Mortgage in the amount of $1,980,000 to the CoreStates Bank, N.A.
dated , 1998.
EXHIBIT 4.05
NONDISCRIMINATION CLAUSE
During the term of this contract, Contractor agrees as follows:
1. Contractor 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. Contractor 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, handicap, 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. Contractor 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. Contractor 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,
handicap, ancestry, national origin, age, or sex.
3. Contractor shall send each labor union or workers' representative with
which it has a collective bargaining agreement or other contract or
understanding, a notice advising said labor union or workers' representative of
its commitment to this nondiscrimination clause. Similar notice shall be sent to
every other source of recruitment regularly utilized by Contractor.
4. It shall be no defense to a finding of noncompliance with this
nondiscrimination clause that Contractor 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 Contractor 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 Contractor will be unable to meet its obligations under this
nondiscrimination clause, Contractor shall then employ and fill vacancies
through other nondiscriminatory employment procedures.
6. Contractor shall comply with all state and federal laws prohibiting
discrimination in hiring or employment opportunities. In the event of
Contractor'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 Contractor may be declared temporarily ineligible for further
Commonwealth contracts, and other sanctions may be imposed and remedies invoked.
7. Contractor shall furnish all necessary employment documents and records
to, and permit access to its books, records and accounts by, the contracting
agency for purposes of investigation to ascertain compliance with the provisions
of this clause. If Contractor does not possess documents or records reflecting
the necessary information requested, it shall furnish such information on
reporting forms supplied by the contracting agency.
8. Contractor shall actively recruit minority subcontractors and women
subcontractors or subcontractors with substantial minority representation among
their employees.
9. Contractor shall include the provisions of this nondiscrimination
clause in every subcontract, so that such provisions will be binding upon each
subcontractor.
10. Contractor obligations under this clause are limited to the
Contractor'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.
Revised 2/96 EXHIBIT 6.05
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
Revised 6/96 EXHIBIT 6.06
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.
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.
6. The Contractor, upon being informed that any violation of these
provisions has occurred or may occur, shall immediately notify the Commonwealth
in writing.
7. The Contractor, by execution of this Agreement and by the submission of
any bills or invoices for payment pursuant thereto, certifies and represents
that he has not violated any of these provisions.
8. The Contractor, upon the inquiry or request of the Inspector General of
the Commonwealth or any of that official's agents or representatives, shall
provide, or if appropriate, make promptly available for inspection or copying,
any information of any type or form relevant to the Contractor's compliance with
this Agreement (including without limitation these provisions relating to
Contractor integrity). Such information shall be retained by the Contractor for
a period of three years beyond the termination of the contract unless provided
by law.
9. For violation of any of the above provisions, the Commonwealth may
declare an event of default hereunder, subject to applicable notice and cure
provisions, and debar and suspend the Contractor from doing business with the
Commonwealth, including without limitation participation in its financial
assistance programs. These rights and remedies are cumulative, and the use or
nonuse of any one shall not preclude the use of all or any other. These rights
and remedies are in addition to those the Commonwealth may have under law,
statute, regulation, or otherwise.
EXHIBIT 6.07
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. ss. 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. ss. 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.
COMMONWEALTH OF PENNSYLVANIA :
: SS
COUNTY OF NORTHAMPTON :
ON THIS, the day of February, 1999, before me, the undersigned officer,
personally apperared Xxxx X. Xxxxxxxxx, who acknowledged himself to be the
President of Piercing Pagoda, Inc., a corporation and the within named
Industrial Occupant, and that he as such officer being authorized to do so,
executed the foregoing instrument for the purpose therein contained by signing
the name of the corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
My Commission Expires:
COMMONWEALTH OF PENNSYLVANIA :
: SS
COUNTY OF NORTHAMPTON :
ON THIS, the day of February, 1999, before me, the undersigned officer,
personally appeared Xxxxxx X. Xxxxxxx, who acknowledged himself to be the
President of Northampton County New Jobs Corp., a nonprofit corporation and the
within named Borrower, and that he as such officer being authorized to do so,
executed the foregoing instrument for the purpose therein contained by signing
the name of the corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
My Commission Expires:
Certificate of Residence of PIDA
I hereby certify that the precise residence and complete post office
address of The Pennsylvania Industrial Development Authority is: Xxxx 000, Xxxxx
Xxxxxxxx, x/x Xxxxxxxxxx of Community and Economic Development, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000.
Xxxxxx X. Xxxxx, Deputy Chief
Counsel
Attorney for PIDA
RECORDED in the Office for the Recording of Deeds, in and for the County of
Northampton, in Book Volume ,
page .
(Title)
