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Exhibit 4.11
INSTALLMENT SALE AGREEMENT
AGREEMENT made this 29th day of January 1998, by and between PIDC FINANCING
CORPORATION, a Pennsylvania Non-Profit Corporation, (hereinafter called
"Seller") and RED XXXX BREWING CO., a Pennsylvania Corporation, (hereinafter
called "Buyer"):
WITNESSETH:
1. Sale and Premises Seller hereby agrees to sell to Buyer, who hereby
agrees to purchase certain property located at 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx, and more fully described in Exhibit "A" attached
hereto and hereby made a part hereof, together with the buildings and other
improvements erected thereon, and together with all improvements, easements,
tenements, appurtenances, hereditaments, fixtures, furnishings, equipment,
rights and privileges contained in, belonging to or in any way pertaining or
beneficial to the said premises (all of which shall hereinafter be called the
"Premises"), whether or not attached or to be attached to the land, buildings or
other improvements and whether or not described or referred to in Exhibit "A",
and with all faults.
2. Nature and Cost of Project Seller has previously acquired on behalf of
the Buyer an existing 260,000 square foot industrial building for the sum of
Five Hundred Thousand Dollars and No Cents ($500,000.00) and Buyer has
constructed improvements at a cost of approximately Eight Hundred Forty Thousand
Dollars and No Cents ($840,000.00) and has incurred miscellaneous fees and costs
in the amount of approximately Seventy Eight Thousand Dollars and No Cents
($78,000.00). Seller has obtained a commitment from PENNSYLVANIA INDUSTRIAL
DEVELOPMENT
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AUTHORITY ("PIDA"), pursuant to which PIDA has agreed to advance to Seller the
sum of Three Hundred Ninety Two Thousand Three Hundred Sixty Two Dollars and No
Cents ($392,362.00) which loan will be secured by a First Mortgage on the
Premises. Seller shall execute on the date hereof a First Mortgage and Note in
favor of PIDA.
3. Loan Seller will execute and deliver to PIDA on the date hereof
Seller's Mortgage Note ("Note") in the principal sum of $392,362.00 secured by a
First Mortgage ("Mortgage") upon the Premises. The provisions of the Note and
the Mortgage are hereby incorporated herein by reference. Buyer agrees that its
interest in the Premises and its rights hereunder will be subordinate to the
interests and rights of PIDA as First Mortgagee, and acknowledges that PIDA has
agreed to advance the sum represented by the Note and Mortgage in reliance upon
the assignment to PIDA of Seller's rights under this Agreement as collateral
security for payment of the Note and Mortgage.
4. Purchase Price and Other Payments by Buyer Buyer will pay to Seller, at
the times and in the manner hereinafter set forth, as purchase price for the
Premises and interest on the unpaid portions thereof as follows:
a. Three Hundred Ninety Two Thousand Three Hundred Sixty Two Dollars
and No Cents ($392,362.00) together with interest on the unpaid portions
thereof shall be repaid in one hundred eighty (180) equal monthly
installments including all accrued interest at the rate of 3.75% per annum
as charged under the Note from Seller to PIDA, and each such installment
shall be paid to Seller ten (10) days prior to the date Seller is to pay
PIDA and the amount
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of each installment shall be equal to the amount required to be paid by
Seller to PIDA, and each of which installments shall first be applied to
accrued interest at the aforesaid rate and the balance on account of
purchase price. Notwithstanding the foregoing, Buyer shall pay the
foregoing installments directly to PIDA, if requested by PIDA.
b. In addition to the amounts specified above, Buyer shall pay to the
Philadelphia Industrial Development Corporation, agent for Seller, for
services rendered a monthly service charge in the amount of Twenty Eight
Dollars and Fifty Three Cents ($28.53) commencing upon the payment of
purchase price and interest under the Note from Seller to PIDA, and
continuing throughout the term of this Agreement. In addition, in the event
Buyer prepays all or part of the purchase price under Paragraph 4(a)
hereof, Buyer shall pay to the Philadelphia Industrial Development
Corporation, agent for Seller, at the time of such prepayment, an amount
equal to 1/2 of 1% of the total amount prepaid.
c. The installment payments of the purchase price shall be net to
Seller and all costs and expenses payable in connection with the ownership,
maintenance and occupancy of the Premises shall be paid or caused to be
paid by Buyer. It is the intention of the parties that notwithstanding any
other provision of this Agreement, Seller shall timely receive from Buyer
funds equal to those funds necessary for Seller to pay PIDA all of
Seller's obligations under the aforesaid Note and Mortgage, and Seller
agrees that, promptly after Seller receives any such amount, to
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pay such amount to PIDA on account of the aforesaid Note and Mortgage to be
applied in the manner prescribed by this Agreement.
d. Buyer shall have the privilege of prepaying the purchase price at
the times and subject to the same conditions and premiums as is required
for prepayment of the respective Mortgages to which such prepayments will
be applied subject to the provisions of Paragraph 4b hereof.
5. Settlement Settlement for the Premises shall take place within thirty
(30) days after the date of final payment by Buyer of all amounts to be paid by
Buyer under the terms of this Agreement, provided that Buyer is not in default
hereunder. In the event Buyer refuses to take and record title to the Premises
within the aforesaid thirty (30) day period, Buyer shall pay to Seller, or its
agent, a service charge of One Hundred Dollars and No Cents ($100.00) per month
until such time as Buyer accepts and records title to the Premises. As a
condition of settlement, Buyer shall furnish to Seller reasonable security to
indemnify Seller against any claims which are not effectively covered by
liability insurance arising out of Seller's ownership of the Premises. At
settlement, Seller will convey to Buyer such title to the Premises as Seller
presently has, excepting however, any part of the Premises taken by eminent
domain during the term of this Agreement or any encumbrance or objection created
or permitted by Buyer or Seller with Buyer's consent.
6. Possession Insofar as Seller is concerned, Buyer shall have possession
of the Premises upon execution of this Agreement. Buyer
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agrees that Seller shall in no way and at no time be responsible for the
condition of the Premises.
7. Adjustments Buyer agrees to pay all charges and costs (excepting only
Seller's counsel fees) which are required and whenever required in connection
with the conveyance of the Premises from Seller to Buyer. Buyer agrees that
Seller shall not be responsible for any inaccuracies in any settlement sheet in
connection with the foregoing.
8. Zoning Seller makes no representations as to the zoning of the
Premises.
9. Municipal or State Improvements Buyer agrees to pay for any
Improvements to the Premises done or ordered to be done by any municipal or
state authorities and to comply at its own cost and expense with all notices
received from public authorities from and after the date hereof.
10. Taxes and Assessments Buyer agrees to pay or to cause to be paid, as
an addition to the purchase price, before they would become delinquent or as
required by the Mortgage, all real estate taxes, including City and School
Taxes, assessments, water rents, sewer rents and charges and other governmental
charges, general and special, which are assessed or imposed upon or chargeable
against the Premises at any time from after the date hereof and thereafter
throughout the term hereof. Buyer agrees that it will not use, as a basis for
contesting or adjudicating the taxes and assessments upon the Premises, the
fact that legal title is held by a body with governmental or quasi-governmental
status. The amount so paid by Buyer shall be paid directly to the City of
Philadelphia or to Seller, who shall turn said
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money over to the City of Philadelphia as Seller shall elect in writing.
11. Property Insurance Buyer will keep the entire Premises insured
against loss or damage by fire, with extended coverage and against loss from
such other hazards as may be required by Seller or PIDA. Buyer shall take out
and maintain such boiler insurance and business interruption insurance as may be
required by Seller or PIDA. All such policies and any additional fire insurance
carried by Buyer on the Premises will contain the standard mortgagee clause and
the originals thereof will be deposited with PIDA with a copy to Seller.
12. Liability Insurance Buyer shall provide comprehensive general
liability insurance, covering at least the hazards of "Premises Operations",
"Elevators" (if applicable) and "Independent Contractors", in which Seller
shall be named as an insured with minimum limits of liability with respect to
bodily injury of Five Hundred Thousand Dollars and No Cents ($500,000.00) for
each person and One Million Dollars and No Cents ($100,000,000.00) for each
occurrence and One Hundred Thousand Dollars and No Cents ($100,000.00) with
respect to property damage for each occurrence.
In addition, Buyer shall provide whenever construction or major
alteration to the Premises is being performed, policies of contingent public
liability insurance protecting Seller and Buyer, in addition to providing
certificates of public liability insurance and workmen's compensation
insurance, insuring the contractor engaged by Buyer. The above mentioned
contingent liability policy shall be in the form of a comprehensive general
liability policy, if obtainable, and if
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not obtainable, shall be a public liability policy covering at least the hazard
of all phases of the construction being performed by Buyer or its contractors,
the hazard arising from the ownership and possession of the Premises, and the
hazard of any operations other than construction being carried on by Buyer on
any part of the Premises during the construction period.
13. General Insurance Provisions
a. All insurance as to form, amount and insurance company shall be
satisfactory to Seller and PIDA.
b. All policies will require that no less than ten (10) days written
notice of cancellation or material change will be given to Seller and PIDA.
c. All cost of insurance shall be borne by Buyer.
d. Renewal policies marked "premium paid" by the agent or insuring
company shall be deposited at least twenty (20) days before the expiration
of the prior existing policies.
e. All insurance is required commencing from the date hereof and is to
be continued throughout the term of this Agreement, and Buyer will provide
evidence thereof satisfactory to Seller and PIDA.
f. All insurance shall name Seller and Buyer as insureds and shall
cover the entire Premises, including adjacent sidewalks, walkways and
cartways.
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14. Compliance with Laws Buyer agrees to comply with all laws,
ordinances and regulations affecting the Premises from and after the date
hereof.
15. Indemnification of Seller and Waiver of Claims Buyer covenants and
agrees to protect, exonerate, defend, indemnify and save Seller harmless from
and against any and all costs or liabilities which on or after the date hereof
may arise out of Seller's ownership of the Premises, and from and against any
and all loss, damage, cost, expense or liability based upon personal injury,
death, loss or damage to property suffered or incurred by any person, firm or
corporation (including the parties hereto) and arising out of or attributable
to the presence, condition, use, operation or maintenance of the Premises,
except when due to the willful misconduct of Seller. Seller shall give prompt
written notice to Buyer of any claim asserted against Seller (within a
reasonable time after such claim becomes known to Seller), provided such claim
appears likely to, if sustained, result in liability on Buyer hereunder.
However, Seller's failure to give such notice shall not relieve Buyer from its
obligation to protect, exonerate, defend, indemnify and save Seller harmless as
aforesaid, except to the extent that failure to give such notice results in
actual loss or damage to Buyer. Nevertheless, if such claim had been otherwise
made known to, or reasonably should have been known by Buyer, then Seller shall
be under no duty to advise Buyer of said claim. In any action or proceeding
brought against Seller by reason of any such claim, Buyer, upon notice from
Seller covenants and agrees to resist or defend such action or proceeding by
counsel satisfactory to Seller.
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However, Seller agrees to cooperate and assist in the defense of any such
action or proceeding, if reasonably requested to do so by Buyer, at Buyer's
expense. Buyer will not make any claim against Seller, nor shall Seller be
liable for any damage or injury to any property of Buyer or any other person
with respect to the Premises or to any part thereof due to any other person
with respect to the Premises or to any part thereof due to any cause
whatsoever, nor will Buyer resist Seller's claim to indemnification on the
ground that the right to such claim is not set forth herein with sufficient
particularity.
16. Improvements, Maintenance, Repairs and Alterations Buyer agrees to
take good care of the Premises at its own expense from and after the date
hereof, to put and keep the Premises in good repair (structural or otherwise),
order and condition and pay all other costs and expenses arising out of the
occupancy of the Premises, including, but not limited, to all public utility
charges and utility connection charges.
Buyer will not undertake or permit any demolition or structural
alterations, or material additions or Improvements to the Premises without the
written consent of Seller. All alterations and additions to the Premises
undertaken by Buyer shall become part of the Premises.
17. Consent Whenever the consent of the Seller is given pursuant to the
terms of this Agreement, such consent shall create no liability or
responsibility upon Seller, and whenever required, shall not be unreasonably
withheld.
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Whenever this Agreement has been assigned by Seller, Buyer shall also
obtain the consent of the assignee in all cases where it is required to obtain
the consent of Seller. No Assignment of this Agreement shall be made by Seller
without the approval of Buyer excepting any assignment to PIDA, its successors
or assigns.
18. Damage and Condemnation Damage to or destruction of all or any
portion of the buildings or improvements on the Premises by fire or any other
cause or a taking of all or a portion of the Premises by condemnation shall not
terminate this Agreement or cause any abatement or reduction in the payments to
be made by Buyer or otherwise affect the respective obligations of Seller and
Buyer. The purchase price of the Premises will be reduced by the amount of any
reduction in Seller's indebtedness to PIDA under the Notes brought about by the
application to such indebtedness of insurance proceeds or amounts paid as a
result of condemnation. All proceeds from insurance or condemnation not
required to be applied to the mortgage indebtedness shall be paid to and be the
property of Buyer.
19. Use and Lease Buyer covenants and agrees that the entire Premises
shall be used only for the purpose of industrial activities or activities
accessory thereto, and only for such purpose as is lawful under an Act known as
the Pennsylvania Industrial Development Authority Act, as amended. Buyer shall
not lease or sublease any part of the Premises without the prior written
consent of Seller and PIDA, and any lease or sublease without such consent
shall be void and of no effect.
20. Assignment of Leases Buyer hereby assigns to Seller, as security for
Buyer's obligations hereunder, any present or future
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leases entered into by Buyer for any part of the Premises. Seller thereby in no
way assumes or will assume any of the obligations as lessor under any leases
and such assignment shall not release the Buyer from Buyer's obligations as
lessor, under said leases.
21. Quiet Enjoyment Seller covenants that Buyer, on performing the
covenants and conditions on its part to be performed, shall and may peaceably
and quietly have, hold and enjoy the Premises as purchaser in possession, free
from molestation, eviction or disturbance by Seller or by any other person or
persons lawfully claiming the same, by, through or under the Seller.
22. Assignment by Buyer Any assignment of this Agreement or sale or lease
of the Premises by Buyer without the prior written consent of the Seller and
PIDA shall be void and of no effect.
23. Inspection and Signs Buyer will at all times provide Seller and any
assignee with full and free access to the Premises and all plans, drawings and
records thereof for reasonable inspections. At any time when major construction
is taking place in connection with the Premises, or at any time during the
first six (6) months from the date hereof, Seller shall have the right to place
a sign or signs on the Premises, at locations which will not interfere with the
operation of any business at the Premises, and which sign or signs will
advertise Seller's participation in this transaction.
24. Event of Default by Buyer:
a. During the term of this Agreement, the following shall constitute
Events of Default by Buyer:
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1. Failure by Buyer to make payments under this Agreement when the same is
due, or failure of Buyer to comply with any other obligations, covenants or
conditions imposed upon it by this Agreement at the time set forth herein
subject to the same applicable grace periods as set forth in the Note and
Mortgage.
2. If Buyer, shall make an assignment for the benefit of creditors or is
adjudicated bankrupt or shall file a xxxx of equity or otherwise initiate
proceedings for the appointment of a receiver of its assets, or shall file a
petition or otherwise initiate any proceedings in any court for a composition
with its creditors for relief in any manner from the payment of its debts when
due under any state or federal law; or any proceedings in bankruptcy or for the
appointment of a receiver shall be instituted by any creditor of Buyer under
any state or federal law and is not dismissed within sixty (60) days.
3. An Event of Default under the Mortgage, Note, or any collateral pledged
to secure any of the above.
25. Seller's Remedies In the event of a default by Buyer:
a. Seller may perform for the account of Buyer any covenant or obligation
in the performance of which Buyer is in default, in which event, Buyer shall
immediately pay to Seller any amount paid by Seller together with reasonable
counsel fees as well as with interest at the rate of ten percent (10%) per
annum from the date of payment by Seller.
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b. Seller may declare all sums which Buyer is obligated to pay to Seller
pursuant to this Agreement, together with interest accrued thereon immediately
due and payable.
c. Seller may terminate this Agreement and resell the Premises at a
private or public sale and Seller will apply the monies collected under such
resale, in such order of priority as Seller, in Seller's sole discretion may
elect and Buyer shall remain liable for any deficiency after the application of
the proceeds. If such proceeds are in excess of the amount required to satisfy
the total due from Buyer to Seller under the terms of this Agreement then such
excess shall be paid to Buyer.
d. Buyer hereby irrevocably authorizes and empowers any attorney of any
court of record of Pennsylvania or elsewhere to appear as attorney for Buyer as
well as for all persons claiming by, through or under buyer, and to sign an
Agreement for entering in any competent court an amicable action in ejectment
against Buyer and all persons claiming by, through or under Buyer and therein
confess judgment for recovery by Seller of possession of the Premises for which
a true copy of this Agreement shall be his sufficient warrant, whereupon, if
Seller so desires a writ of possession may issue forthwith without any prior
writ or proceedings whatsoever, and provided that if for any reason after such
action shall have been commenced the same shall be determined and the
possession of the Premises remain in or be restored by Buyer, Seller shall have
the right on account of any subsequent Event of Default to bring one or more
further amicable action or
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actions in ejectment as hereinbefore set forth to recover possession of the
Premises and confess judgment for the recovery of possession of the Premises as
hereinabove provided.
e. After ten (10) days written notice, Seller may take possession of the
Premises by the summary procedure set forth in sub-section (d) above or
otherwise without terminating this Agreement and Seller may collect rentals and
enforce all other remedies of Buyer under any existing leases for any part of
the Premises, but without being deemed to have affirmed such leases, and
Seller may enter into new leases on such terms as Seller may deem fit for any
portion or portions of the Premises, and such leases shall not be terminated or
affected if Buyer cures the Event of Default. Rentals under said leases may be
applied by Seller to any repair or maintenance of the Premises as Seller may
reasonably deem useful, and the remaining balance shall be applied to Buyer's
obligations hereunder in order of priority to be determined by Seller. Any
balance of rentals remaining thereafter shall be promptly paid over to Buyer
by Seller.
f. Buyer hereby irrevocably authorizes and empowers any attorney of any
court of record of Pennsylvania or elsewhere to appear for and confess judgment
against Buyer for all amounts for which Buyer may be or become liable to Seller
or its assignee under this Agreement, as evidenced by an affidavit signed by an
officer of Seller or of assignee setting forth the amounts then due plus five
percent (5%) thereof, as an attorney's fee, with costs of suit and release of
errors. Such authority shall not be
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exhausted by any one exercise thereof but judgment may be confessed as
aforesaid from time to time as often as there is a default hereunder.
g. In any amicable action of ejectment brought hereon or any suit or
amicable action brought for the purchase price or other sums due hereunder,
Seller shall first cause to be filed in such suit, action or actions, an
affidavit made by it or someone acting for it, setting forth the facts
necessary to authorize the entry of judgment, of which facts such affidavit
shall be prima facie evidence and if a true copy of this Agreement (and of the
truth of said copy such affidavit shall be prima facie evidence) shall be filed
in such suit, action or actions, it shall not be necessary to file the original
as a warrant of attorney, any rule of court, custom or practice to the contrary
notwithstanding.
h. The Buyer hereby waives and releases all errors, defects and
imperfections whatsoever of a procedural nature in the entering of any judgment
or any process or proceedings arising out of this Agreement. Buyer also waives
the benefit of any laws which now or hereafter might authorize the stay of any
execution to be issued or any judgment recovered hereunder or the exemption of
any property from levy or sale thereunder.
i. All interest of Buyer in the premiums or dividends upon any insurance
provided for herein, as well as any rebates on taxes or assessments imposed on
the Premises are hereby assigned to Seller.
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26. Cumulative Rights No right or remedy herein conferred upon or reserved to
Seller is intended to be exclusive of any other right or remedy herein or by
law provided, but each shall be cumulative and in addition to every other right
or remedy herein given or now or hereafter existing at law or in equity or by
statute, and may be pursued singly, successively or together at the sole
discretion of Seller and may be exercised as often as the occasion therefor
shall occur.
27. Effect of Waiver or Forbearance No waiver by Seller of any breach by
Buyer of any of its obligations, agreements or covenants hereunder shall be a
waiver of any subsequent breach or of any obligation, agreement or covenant,
nor shall any forbearance by Seller to seek a remedy for any breach by Buyer be
a waiver by Seller of its rights and remedies with respect to that or any other
breach.
28. Default by Seller and Buyer's Remedies Notwithstanding any provision or
obligation to the contrary hereinbefore or hereinafter set forth, the liability
of Seller, except as to PIDA, shall be limited to its interest in the
Premises, the improvements thereon, the rents, issues and profits therefrom,
and the lien of any judgment shall be restricted thereto.
29. Notices All notices provided for in this Agreement shall be in writing.
Notices to Seller shall be sent by registered or certified mail. Subject to
change by notice from the party to be charged with such notice, notices to
Seller shall be addressed as follows:
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PIDC FINANCING CORPORATION
c/o Philadelphia Industrial Development Corporation
0000 Xxxxxx Xxxxxx Xxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
and notices to Buyer shall be addressed as follows:
RED XXXX BREWING CO.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx
30. Survival of Covenants, Conditions and Representations Notwithstanding
any presumption to the contrary, all covenants, conditions and representations
of Buyer contained in this Agreement which, by nature, impliedly or expressly
involve performance in any particular manner after the delivery of the Seller's
deed or which cannot be ascertained to have been performed until after the said
delivery shall survive said delivery.
31. Anti-Pollution Laws Buyer covenants and agrees that while the PIDA
Mortgage is outstanding and unpaid, Buyer will comply with all governmental
anti-pollution regulations and standards applicable to the Premises. Buyer
further covenants and agrees that it will provide in all leases of the Premises
or any part thereof that the lessee covenants and agrees to assume Buyer's
obligations under all covenants contained in this paragraph.
32. Nondiscrimination During the term of this contract, Seller/Buyer
agree as follows:
a. Seller/Buyer shall not discriminate against any employee,
applicant for employment, independent Seller/Buyer or any other person
because of race, color, religious creed, ancestry, national
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origin, age or sex. Seller/Buyer 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.
Seller/Buyer 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.
b. Seller/Buyer 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.
c. Seller/Buyer 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 Seller/Buyer.
d. It shall be no defense to a finding of noncompliance with this
nondiscrimination clause that Seller/Buyer had delegated some of its
employment practices to any union, training program or
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other source of recruitment which prevents it from meeting its obligations.
However, if the evidence indicates that the Seller/Buyer 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.
e. 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 Seller/Buyer will be unable to meet its obligations under
this nondiscrimination clause, Seller/Buyer shall then employ and fill
vacancies through other nondiscriminatory employment procedures.
f. Seller/Buyer shall comply with all state and federal laws
prohibiting discrimination in hiring or employment opportunities. In the
event of Seller/Buyer'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 Seller/Buyer may be declared
temporarily ineligible for further Commonwealth contracts and other
sanctions may be imposed and remedies invoked.
g. Seller/Buyer 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 Seller/Buyer does not possess
documents or records reflecting the necessary information requested, it
shall furnish
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such information on reporting forms supplied by the contracting agency.
h. Seller/Buyer shall actively recruit minority subcontractors and
women subcontractors or subcontractors with substantial minority
representation among their employees.
i. Seller/Buyer shall include the provisions of this
nondiscrimination clause in every subcontract, so that such provisions will
be binding upon each subcontractor.
j. Seller/Buyer obligations under this clause are limited to the
Seller/Buyer'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.
33. Seller/Buyer Integrity
a. Definitions.
1. 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.
2. 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.
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3. Seller/Buyer means the individual or entity that has entered into this
Agreement with the Commonwealth, including directors, officers, partners,
managers, key employees and owners of more than a 5% interest.
4. 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.
5. 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.
a. The Seller/Buyer shall maintain the highest standards of integrity in
the performance of this Agreement and shall take no action in violation of state
or federal laws, regulations, or other requirements that govern contracting with
the Commonwealth.
b. The Seller/Buyer shall not disclose to others any confidential
information gained by virtue of this Agreement.
c. The Seller/Buyer shall not, in connection with this or any other
agreement with the Commonwealth, directly or indirectly offer, confer, or agree
to confer any pecuniary benefit on anyone as consideration for the decision,
opinion, recommendation, vote, other exercise of discretion, or violation of a
known legal duty by any officer or employee of the Commonwealth.
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d. The Seller/Buyer 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.
e. Except with the consent of the Commonwealth, neither the Seller/Buyer
nor anyone in privity with him shall accept or agree to accept from, or give or
agree to give to, any person, any gratuity from any person in connection with
the performance of work under this Agreement except as provided therein.
f. Except with the consent of the Commonwealth, the Seller/Buyer shall
not have a financial interest in any other Seller/Buyer, subcontractor, or
supplier providing services, labor, or material on this project.
g. The Seller/Buyer, upon being informed that any violation of these
provisions has occurred or may occur, shall immediately notify the Commonwealth
in writing.
h. The Seller/Buyer, 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.
i. The Seller/Buyer, 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 deemed relevant by the Inspector
General to the Seller/Buyer's
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integrity or responsibility, as those terms are defined by the Commonwealth's
statutes, regulations, or management directives. Such information may include,
but shall not be limited to, the Seller/Buyer's business or financial records,
documents or files of any type or form which refer to or concern this
agreement. Such information shall be retained by the Seller/Buyer for a period
of three years beyond the termination of the contract unless provided by law.
j. For violation of any of the above provisions, the Commonwealth
may terminate this and any other agreement with the Seller/Buyer, claim
liquidated damages in an amount equal to the value of anything received in
breach of these provisions, claim damages for all expenses incurred in
obtaining another Seller/Buyer to complete performance hereunder, and debar and
suspend the Seller/Buyer from doing business with the Commonwealth. 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.
34. Seller/Buyer Responsibility
a. Seller/Buyer certifies that it is not currently under suspension
or debarment by the Commonwealth, any other state, or the federal government.
b. If Seller/Buyer enters into any subcontracts under this contract
with subcontractors who are currently suspended or debarred by the Commonwealth
or federal government or who become suspended or debarred by the Commonwealth or
federal government during the term of
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this contract or any extensions or renewals thereof, the Commonwealth shall
have the right to require the Seller/Buyer to terminate such subcontracts.
c. The Seller/Buyer agrees that it shall be responsible for
reimbursing the Commonwealth for all necessary and reasonable costs and expenses
incurred by the Office of the Inspector General relating to an investigation of
the Seller/Buyer's compliance with the terms of this or any other agreement
between the Seller/Buyer and the Commonwealth which results in the suspension
or debarment of the Seller/Buyer.
35. Americans with Disabilities Act
During the term of this contract, the Seller/Buyer agree as follows:
a. Pursuant to federal regulations promulgated under the authority
of The Americans With Disabilities Act, 28 C.F.R. Section 35.101 et seq., the
Seller/Buyer 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 Seller/Buyer agrees to comply with
the "General Prohibitions Against Discrimination", 28 C.F.R. Section 35.130,
and all other regulations promulgated under Title II of The Americans With
Disabilities Act which are applicable to the benefits, services, programs and
activities provided by the Commonwealth of Pennsylvania through contracts with
outside contractors.
b. The Seller/Buyer shall be responsible for and agrees to
indemnify and hold harmless the Commonwealth of Pennsylvania from all
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losses, damages, expenses, claims, demands, suits and actions brought by any
party against the Commonwealth of Pennsylvania as a result of the
Seller/Buyer's failure to comply with the provisions of Paragraph a above.
36. DESCRIPTIVE HEADINGS The descriptive headings of this Agreement are
inserted for convenience in reference only and do not constitute a part of this
Agreement.
37. RECORDINGS A Memorandum of this Agreement shall be recorded in the
Office of the Department of Records in and for Philadelphia County,
Pennsylvania.
IN WITNESS HEREOF, Seller and Buyer, on behalf of themselves, their
executors, administrators, heirs, successors and assigns, have executed this
Agreement the day and year first above written.
PIDC FINANCING CORPORATION
Attest: /s/ Xxxxxx X. DeMuses By: /s/
--------------------- --------------------------
Assistant Secretary Senior Vice President
RED XXXX BREWING CO.
Attest: /s/ Xxxxx X. Xxxx By: /s/ Xxxxx X. Xxxx
--------------------- -------------------------
Secretary President
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EXHIBIT "A"
THE PREMISES
------------
PREMISES "A" XXXXX 00 X 00 XXX 000
ALL THAT CERTAIN lot or piece of ground with the buildings and improvements
thereon erected.
SITUATE in the 29th Xxxx of the City of Philadelphia.
BEGINNING at a point on the North side of Jefferson Street at the distance of
191 feet 9-3/4 inches more or less from the Westerly side of 00xx Xxxxxx; thence
extending in a Northerly direction 169 feet 10-5/8 inches more or less to a
point; thence on a line extending in a Northwesterly direction 9 feet more or
less to a point; thence extending in a Southerly direction 177 feet 6-1/2 inches
more or less to a point on the North side of Jefferson Street, thence extending
Eastwardly along the said North side of Jefferson Street 6 feet more or less to
the first mentioned point and place of beginning.
BEING ASSESSED AS 0000-0/0 Xxxxxxxxx Xxxxxx.
PREMISES "B" BLOCK 12 N 15 LOT 112
ALL THAT CERTAIN lot or piece of ground with the buildings and improvements
thereon erected, described according to a Survey and Plan thereof made by
Xxx X. Xxxxxx Surveyor and Regulator of the 0xx Xxxxxx Xxxxxxxx on the 4th day
of March A.D. 1959 as follows to wit:
BEGINNING at a point formed by the intersection of the Northeasterly side of
Jefferson Street (50 feet wide) and the Northwesterly side of 31st Street (50
feet wide) in the 29th Xxxx of the City of Philadelphia; thence extending from
said point of beginning North 78 degrees, 39 minutes, West along the
Northeasterly side of Jefferson Street 191 feet 9-3/4 inches to a point; thence
extending North 11 degrees, 27 minutes, 6 seconds East 169 feet 10-5/8 inches to
a point; thence extending North 38 degrees, 58 minutes West 34 feet 3/4 of an
inch to a point on the Southeasterly side of Glenwood Avenue (60 feet wide);
thence extending North 50 degrees, 54 minutes, 57 seconds East along the
Southeast side of Xxxxxxxx Xxxxxx 000 feet 5-5/8 inches to a point; thence
extending South 78 degrees, 51 minutes East 52 feet 6-3/4 inches to a point;
thence extending South 11 degrees, 21 minutes, West 17 feet 2 inches to a point;
thence extending South 78 degrees, 51 minutes, East 92 feet 3 inches to a point
on the Northwesterly side of 00xx Xxxxxx; thence extending South 11 degrees, 21
minutes West along the Northwesterly side of 31st Street 263 feet 2-5/8 inches
to the first mentioned point and place of beginning.
BEING ASSESSED AS 0000-00 Xxxxx 00xx Xxxxxx.
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EXHIBIT "A"
THE PREMISES
PREMISES "C" XXXXX 00 X 00 XXX 00
ALL THAT CERTAIN lot or piece of ground with the buildings and improvements
thereon erected.
SITUATE in the Twenty-ninth Xxxx of the City of Philadelphia.
BEGINNING at the point formed by the intersection of the North line of
Jefferson Street with the center line of Glenwood Avenue; thence extending
Eastwardly along the North line of said Jefferson Street Two Hundred and
Twenty-three feet, No inches more or less to a point in the vertical plane of
the Westerly face of a brick wall extending Northward from and at right angles
to the said Jefferson Street which wall separates property herein conveyed from
other property of the former Grantors; thence Northwardly at right angles to
said Jefferson Street along the line of the Westerly face of said wall One
Hundred Seventy feet, Six inches more or less to a point formed by the
intersection of said line with the center line of a wall running in a
Northwesterly direction towards and at approximately right angles to Glenwood
Avenue; thence along the center line of said latter wall North Fifty-one
degrees, Two minutes West Sixty-three feet, No inches more or less to the
center line of Glenwood Avenue; thence Southwesterly along the center line of
Glenwood Avenue South Thirty-nine degrees, Five minutes West Two Hundred and
Seventy-three feet, Three feet, Three and One-half inches more or less to the
point of beginning; the said Glenwood Avenue and Jefferson Street, being now
opened and public streets of the City of Philadelphia.
BEING NO. 0000-00 Xxxx Xxxxxxxxx Xxxxxx.
BEING, AS TO PREMISES "A" & "B", the same premises which Xxxxxxx Leisure
Products, Inc., a Pennsylvania Corporation by Deed dated 11/2/1995 and recorded
11/9/1995 in Philadelphia County, in Deed Book VCS 1008 page 383 conveyed unto
PIDC Financing Corporation, a Pennsylvania Non-Profit Corporation, its
successors and assigns, in fee.
BEING, AS TO PREMISES "C", the same premises which J. Xxxxxx Xxxxxx, Xx. and
Xxxx Xxxxxx Xxxxxx, his wife by Deed dated 9/20/1965 and recorded 9/21/1965 in
Philadelphia County, in Deed Book CAD 548 Page 271 conveyed unto Model
Warehousing and Leasing Co., a Pennsylvania Corporation, its successors and
assigns, in fee.
AND WHEREAS by the filing of Articles of merger with the Department of State for
the Commonwealth of Pennsylvania 9/30/1974, Model Warehousing and Leasing Co., a
Pennsylvania Corporation was merged with and into Xxxxxxx Leisure Products,
Inc., a Pennsylvania Corporation.
AND BEING the same premises which Xxxxxxx Leisure Products, Inc., a
Pennsylvania Corporation by Deed dated as of 11/2/1995 and recorded 10/23/1997
in Philadelphia County in Deed Book JTD 446 page 392 conveyed unto PIDC
Financing Corporation, a Pennsylvania Non-Profit Corporation, its successors
and assigns, in fee.
10-a
