INSTALLMENT SALE AGREEMENT
AGREEMENT made this 4th day of April 1996, by and between PIDC
FINANCING CORPORATION, a Pennsylvania Non-Profit Corporation, (hereinafter
called "Seller") and MOTHERS WORK, INC., a Delaware 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 000 X. 0xx 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 Buyer has agreed to purchase the
Premises described in Exhibit "A" for the sum of Four Million Four Hundred
Fifty Thousand Dollars and No Cents ($4,450,000.00) and to construct
Improvements at a cost of at least Two Million Eight Hundred Ninety Four
Thousand Dollars and No Cents ($2,894,000.00) and has incurred miscellaneous
fees and expenses in the amount of approximately Five Hundred Thirty Thousand
Dollars and No Cents ($530,000.00). Seller has obtained a commitment from
PENNSYLVANIA INDUSTRIAL DEVELOPMENT AUTHORITY ("PIDA"), pursuant to which PIDA
has agreed to advance to Seller the sum of Two Million Dollars and No Cents
($2,000,000.00) which loan will be secured by a Second Mortgage on the Premises.
Seller shall execute on the date hereof a Second Mortgage and Note in favor of
PIDA.
3. Loan Seller will execute and deliver to PIDA on the date hereof
Seller's Note in the principal sum of $2,000,000.00 secured by a Second 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 Second 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. Two Million Dollars and No Cents ($2,000,000.00) 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
three percent (3%) 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 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 One Hundred Thirty
Eight Dollars and Eleven Cents ($138.11) 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 the event the monthly payment of purchase price
under Paragraph 4(a) is reduced as the result of a prepayment of purchase price,
said monthly service charge shall be reduced to one percent (1%) of said new
monthly payment. 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 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 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 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 ($1,000,000.00) 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 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.
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. 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 which will
materially reduce the value of 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.
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 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:
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
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 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 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.
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:
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
MOTHERS WORK, INC.
000 X. 0xx 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 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 advertisments 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 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 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.
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.
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 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
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 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. Recording 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. Xxx
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Assistant Secretary
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Senior Vice President
MOTHERS WORK, INC.
Attest: /s/ Elan X. Xxxxxxxx, III
-------------------------
Assistant Secretary
By: /s/ Xxxxxx Xxxxx
----------------------------
Vice President Finance
