MACHINERY AND EQUIPMENT LOAN FUND LOAN AGREEMENT
Exhibit
99.3
| KMK/9-04-07 | MELF #26-9-856 |
MACHINERY
AND EQUIPMENT LOAN FUND
THIS
LOAN
AGREEMENT, MADE this _____ day of September, 2007, effective as of September
6,
2007 (the "Effective Date"), BY AND BETWEEN TASTY BAKING COMPANY, a corporation
organized and existing under the laws of the Commonwealth of Pennsylvania and
having an address of 0000 Xxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 (the
"Borrower") and THE COMMONWEALTH OF PENNSYLVANIA, acting by and through the
DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT, having its principal place
of
business at Commonwealth Keystone Building, 000 Xxxxx Xxxxxx, Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000 (the "Department").
NOW,
THEREFORE, the parties hereto, in consideration of the mutual promises herein
contained, and intending to be legally bound hereby, covenant and agree as
follows:
ARTICLE
I
DEFINITIONS
AND BACKGROUND
Section
1.01. When used herein the following words and phrases shall have the
following meanings:
"Act"
means Chapter 29 of the Job Enhancement Act, Act of February 12, 2004, No.
12,
P.L. 99, codified at 12 P.S. § 2901 et seq.
"Application"
means the application for the Loan submitted by the Borrower to the Department,
including all attachments and exhibits thereto.
"CERCLA"
means The Comprehensive Environmental Response, Compensation and Liability
Act
of 1980, as amended.
"Collateral"
means that certain machinery and equipment the Borrower has purchased or intends
to purchase or has upgraded or intends to upgrade for use at the Premises as
more fully described at Exhibit “A”, which is incorporated herein by reference
and made a part hereof .
"Commitment"
means the Department's letter of July 12, 2007 setting forth its agreement
to
make the Loan, and the conditions under which the Loan would be
made.
"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.
"Cost"
or
"Costs" means the costs of the purchase and installation of the
Collateral.
"Due
Inquiry" shall mean that the Borrower, consistent with good commercial or
customary practice, has caused to be made by a responsible officer or agent
of
the Borrower appropriate inquiry among those directors, officers, employees,
agents, accountants and attorneys for the Borrower who might reasonably be
expected to have knowledge of the particular matter and, when such matter
includes the condition of the Collateral, the Premises or other facility, has
further undertaken appropriate inquiries into the present and past ownership
and
uses thereof.
"Eligible
Activity" means manufacturing, industrial processes, mining, Production
Agriculture, information technology, biotechnology, services as a Medical
Facility or other industrial or technology sectors as defined by the
Department.
"Environmental
Laws" shall mean The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 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, as amended, 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.
"ERISA"
means the Employee Retirement Income Security Act of 1974, as
amended.
"Event
of
Default" means those occurrences listed in Section 7.01 herein.
"First
Lien" means the lien on the Collateral held by the First Lien Holder to secure
$46,000,000 of the aggregate maximum principal amount of $100,000,000, as set
forth in the Intercreditor Agreement.
"First
Lien Holder" means Citizens Bank of Pennsylvania in its capacity as agent for
the Senior Lenders as defined in the Intercreditor Agreement and its successors
and/or assigns.
"Hazardous
Materials", shall include, without limitation, asbestos (including, without
limitation, 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.
"Indemnified
Party" means the Department and its employees and agents, including, without
limitation, any engineer or environmental consultant retained by the
Department.
"Intercreditor
Agreement" means the Intercreditor and Collateral Sharing Agreement effective
as
of the Effective Date by and among the Department, the First Lien Holder,
Philadelphia Industrial Development Corporation and the Borrower.
“Lease”
means that certain lease entered into between Borrower and L/S THREE CRESCENT
DRIVE. LP, dated June 15, 2007, for office space at temporary address of 0
Xxxxxxxx Xxxxx (pending final subdivision with the City of Philadelphia) at
the
Philadelphia Navy Yard in the City of Philadelphia.
"Loan"
means a loan in the maximum principal amount of Five Million Dollars
($5,000,000) to be used exclusively by the Borrower to defray a portion of
the
Cost not to exceed 50%.
"Loan
Documents" means this Loan Agreement, the Note, the Security Agreement,
Intercreditor Agreement, the opinions of counsel hereinafter referred to, and
all other agreements, instruments and documents to be delivered
hereunder.
“Material
Adverse Effect” means (a) a material adverse change in, or a material adverse
effect upon, the operations, business, properties, liabilities (actual or
contingent), or condition (financial or otherwise) of Borrower taken as a whole,
(b) a material impairment of the ability of any Borrower to perform its
obligations under any Loan Document to which it is a party, or (c) a material
adverse effect upon the legality, validity, binding effect or enforceability
against any Borrower of any Loan Document to which it is a party or the rights
of the Department thereunder.
“Navy
Yard
Project” means the Premises and the office facilities leased by Borrower under
the Lease and located at the temporary address of 0 Xxxxxxxx Xxxxx (pending
final subdivision with the City of Philadelphia) at the Philadelphia Navy Yard
in the City of Philadelphia.
"Note"
means the $5,000,000 promissory note given by the Borrower to the Department,
effective as of the Effective Date.
“Obligations”
means all advances to, and debts, liabilities, obligations, covenants and duties
of, the Borrower arising under any of the Loan Documents, the loan documents
executed in connection with any future loans or otherwise with respect to any
loan, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising
and including interest and fees that accrue after the commencement by or against
the Borrower of any proceeding under any Bankruptcy Laws naming such Borrower
as
the debtor in such proceeding, regardless of whether such interest and fees
are
allowed claims in such proceeding.
"Participation
Percentage" means fifty percent (50%).
"Premises"
means a tract of land located at the temporary address of 0000 Xxxxx 00xx Xxxxxx (pending
final subdivision with the City of Philadelphia) at the Philadelphia Navy Yard
in the City of Philadelphia, Philadelphia County, Pennsylvania as described
in
more detail on Exhibit B.
"Production
Agriculture" means the management and use of a normal agricultural operation
for
the production of a farm commodity.
"Project"
means the purchase and installation of new machinery and equipment or the
upgrade of existing machinery and equipment that is directly related to the
business process.
"Security
Documents" means the Security Agreement and financing statements given by the
Borrower to the Department which constitutes not less than a shared first lien
upon the Collateral with the First Lien Holder.
“UCC”
means the Pennsylvania Uniform Commercial Code as codified at 13 Pa.C.S.A.§
9101, et seq.
Section
1.02. The Borrower has purchased or intends to purchase or has
upgraded or intends to upgrade certain machinery and equipment for use at the
Premises. The Borrower has filed with the Department the Application
and accepted from the Department the Commitment for the Loan, to be used
exclusively to defray a portion of the Cost. The Department is
willing to make the Loan upon the terms and subject to the conditions
hereinafter set forth
ARTICLE
II
THE
LOAN
Section
2.01. The Loan. Subject to the conditions set forth
herein, the Department agrees to make the Loan to the Borrower, and the Borrower
agrees to accept the Loan from the Department, for the purposes set forth in
the
Application.
ARTICLE
III
THE
NOTE AND SECURITY DOCUMENTS
Section
3.01. The Note. The Loan shall be evidenced by the Note,
which shall be executed by the Borrower.
Section
3.02. The Security Documents. Payment of the Note
and satisfaction of the Obligations shall be secured by a perfected security
interest in the Collateral given by the Borrower to the Department under the
Security Documents. The Security Documents shall be dated the date of
the Note and shall create a perfected first lien upon the Collateral shared
only
with the First Lien as set forth in the Intercreditor Agreement. At
all times until the Obligations have been paid in full, the Borrower agrees
that
whatever right, title and interest which it and its successors and assigns
may
have in and to the Collateral shall be, and the same are hereby expressly made
subject and subordinate to the lien of the Security Documents and any other
judgment, lien or encumbrance pursuant to the Note, the Security Documents
or
this Loan Agreement.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF THE BORROWER
The
Borrower makes the following representations and warranties to the Department,
which shall survive and continue until the Loan is paid in full and all of
the
Borrower’s obligations hereunder have been satisfied:
Section
4.01. Organization. The Borrower is a corporation
validly existing and in good standing under the laws of the Commonwealth of
Pennsylvania.
Section
4.02. Power and Authority. The Borrower has all
necessary power and authority to purchase, own, encumber, and sell its property
and to carry on its business as now being conducted, and to carry out the
transactions contemplated by the Loan Documents.
Section
4.03. Loan Documents Consistent with Law and
Agreements. The execution and delivery of this Agreement and of
each of the Loan Documents to be executed and delivered by the Borrower,
consummation of the transactions herein contemplated, and compliance with the
terms and provisions hereof and of the Loan Documents which Borrower has
executed and delivered or to which it is otherwise subject do not (i) contravene
any provision of law, statute, rule or regulation to which Borrower is subject
or any judgment, decree, franchise, order or permit applicable to
the Borrower or (ii) conflict with, or result in, a breach of any of
the terms, conditions or provisions of the organizational documents of the
Borrower, or of any material agreement, indenture or other instrument to which
the Borrower is a party or by which it is bound or to which it or its property
is subject.
Section
4.04. Due Authorization. The execution, delivery and
performance of this Agreement, the performance of the transactions contemplated
by the provisions hereof, and the execution, issuance and delivery of each
of
the Loan Documents to be executed and delivered by the Borrower hereunder have
each been duly authorized by all necessary action on the part of the
Borrower.
Section
4.05. Execution and Delivery. This Agreement and
each of the Loan Documents being executed and delivered by Borrower concurrently
herewith have been duly and validly executed and delivered by the Borrower
and
constitute valid and legally binding obligations of the Borrower, enforceable
in
accordance with their respective terms, 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
4.06. Litigation. There is no material litigation
or governmental proceeding pending or, to the knowledge of the Borrower,
threatened against the Borrower, which if determined adversely, could
reasonably be expected to have a Materially Adverse Effect, other than that
which has been previously disclosed to the Department in writing. If
such litigation or proceeding exists or is threatened, it shall be set forth
in
Exhibit C attached hereto and made a part hereof.
Section
4.07. Taxes. The Borrower has filed all required
federal, state and local tax returns and has paid all taxes shown on such
returns as such taxes have become due unless the obligation to file such return
or pay such tax is the subject of a pending administrative or judicial appeal
or
proceeding with respect to which the Borrower has set aside adequate reserves
in
accordance with GAAP.
Section
4.08. No Default For Borrowed Money. No default
with respect to any agreement pursuant to which the Borrower has borrowed money
or guaranteed the obligations of others has occurred and is continuing as of
the
date hereof nor has any such event occurred which with the passage of time
and/or giving of notice would constitute such a default.
Section
4.09. Financial Statements and Financial
Condition. All financial statements of the Borrower (including
all related notes) and all supplementary financial information delivered to
the
Department 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. The Borrower has no material
liabilities, direct or indirect, fixed or contingent, as of the date of such
financial statements which are not reflected therein. There has been
no material adverse change in the financial condition of the Borrower from
that
disclosed in the most recent annual financial statements delivered to the
Department prior to the initial approval of the Loan by the
Department.
Section
4.10. Employee Benefits. Any employee pension benefit
plans and employee welfare benefit plans, collectively referred to as employee
benefit plans, within the meaning of ERISA maintained by the Borrower or any
subsidiary of the Borrower comply in all material respects with the reporting
and disclosure and fiduciary responsibility provisions of Title I of
ERISA.
Final
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Section
4.11. Environmental Violations. Any transportation,
storage , handling or usage of Hazardous Materials by the Borrower, whether
on
the Premises or otherwise, has been in compliance with all Environmental
Laws. Borrower further represents and warrants that, to the best of
its knowledge, no spill, release, discharge, or disposal of Hazardous Materials
has occurred on the Premises to date, and that the soil and groundwater on
the
Premises are free of Hazardous Materials except as disclosed by that certain
Phase I Environmental Report relating to the Premises conducted by Xxxxxxxx
& Xxxxx, LLC, dated January 2007.
Section
4.12. Bankruptcy, etc. The Borrower has not within
seven (7) years prior to the date hereof filed any voluntary petition for
relief under the U.S. Bankruptcy Code.
Section
4.13. Criminal Convictions. Neither the Borrower
nor any owner, director, officer or person employed or engaged by the Borrower
in a senior management capacity or as a manager or comptroller, 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
4.14. No Consent Required. No consent or approval to the
execution and performance of this Agreement and the transactions contemplated
hereby not already obtained is required to be obtained by the Borrower from
any
governmental body, authority, agency, court or other person or entity, public
or
private, other than the Department;
Section
4.15. No Removal of Jobs. The establishment of the
Project by the Borrower at the Premises will not cause the removal of any
business operation from one area of Pennsylvania to another area of
Pennsylvania.
Section
4.16. Eligible Activity at the Premises. The
Borrower engages in an Eligible Activity at the Premises.
Final
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ARTICLE
V
BORROWING
PROCEDURES AND AGREEMENTS
Section
5.01. Conditions
Precedent to All Advances. The obligation of the Department to
make the initial advance of the proceeds of the Loan to the Borrower and to
make
each subsequent advance thereof is subject to the satisfaction of the following
conditions precedent at the time of each such advance:
(a) The
Borrower has satisfied all conditions set forth in the Commitment, the closing
requirements transmitted by the Department’s counsel to the Borrower’s counsel
following issuance of the Commitment have been satisfied; if applicable, the
conditions regarding Property Coverage set forth in Section 6.11 of this
Agreement have been satisfied; the Loan Documents shall have been properly
executed and, where appropriate, delivered to the Department; and the Security
Documents and any other document requested to be filed or recorded by the
Department shall have been duly acknowledged and delivered for filing or
recording in the appropriate public office.
(b) The
Borrower shall submit to the Department a bringdown of the UCC searches showing
that no new liens have been filed against the Collateral prior to the initial
disbursement only.
(c) Each
and all of the representations and warranties of the Borrower set forth in
Articles IV hereof, and in any of the other Loan Documents, shall be true and
correct in all respects, as though separately and independently made on and
as
of the date of each such advance.
(d) There
shall be no event of default under any of the Loan Documents or any event which,
with the passage of time or the giving of notice, or both, could constitute
an
event of default under any of the Loan Documents.
(e) There
shall have been no material adverse change in the financial condition of the
Borrower from that disclosed in financial statements heretofore delivered to
and
approved by the Department.
(f) In
the event there is any material change in the Project, Department may refuse
to
make further advances under this Agreement until the matter is resolved to
the
Department's reasonable satisfaction, whether or not the Department has declared
an Event of Default hereunder or such revocation, rescission, suspension, or
material adverse effect would comprise an Event of Default
hereunder.
The
Borrower agrees that by making a request for an advance hereunder, the Borrower
shall be deemed to be reconfirming to the Department that all representations
and warranties of the Borrower set forth in this Agreement and all related
instruments, agreements and documents remain true and correct as of the date
of
each request.
Final
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Section
5.02.
Deadline for Requesting Disbursements. Unless otherwise agreed
to by the Department, the Borrower shall comply with the conditions stated
in
Section 5.01, and submit a request or requests to the Department for
disbursement of one hundred percent (100%) of the Loan by the end of the
twenty-fourth full calendar month following the Effective Date. If the Borrower
fails to comply with this deadline the Commitment shall be automatically
terminated and no further disbursements will be permitted.
ARTICLE
VI
BORROWER'S
COVENANTS
Until
the
Loan has been entirely repaid and all of Borrower's obligations to the
Department in connection therewith and herewith have been satisfied, the
Borrower hereby covenants that:
Section
6.01. Use of
Proceeds. The Borrower shall use the proceeds of the Loan solely
for the purpose of defraying a portion of the Cost.
Section
6.02. Preservation
of Existence. The Borrower will (a) maintain and preserve its
existence as a corporation and the right to carry on its Eligible Activity
at
the Premises, and (b) take all reasonable action to maintain all necessary
licenses, franchises, permits and other documents necessary or appropriate
in
connection therewith and all necessary renewals and extensions thereof, provided
that failure to do so could not reasonably be expected to have a Material
Adverse Effect.
Section
6.03. Debt Secured
by Collateral. Without the prior written consent of the
Department, the Borrower shall not take any action to cause or permit any lien
or encumbrance to be placed against the Collateral or any interest therein,
except such liens and encumbrances which replace or refinance the First Lien
or
except such liens and encumbrances as may be expressly permitted by the Security
Documents or the Intercreditor Agreement.
Final
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Section
6.04. Nondiscrimination/Sexual
Harassment. The Borrower and its subsidiaries will not
discriminate against or intimidate any employee or any applicant for employment
because of gender, race, creed, or color, 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 Borrower hereby accepts and agrees to
be bound by the nondiscrimination/sexual harassment provisions set forth in
Exhibit "E" hereto, and will cause comparable nondiscrimination/sexual
harassment provisions to be inserted into all Project contracts.
Section
6.05. Filing and
Other Costs. The Department may require the Borrower to pay the costs
of filing or recording and any other reasonable costs that the Department may
incur in connection with closing and administration of the Loan.
Section
6.06. Inspection. Subject
to Borrower’s rights under the Lease, the Borrower shall provide proper
facilities at reasonable times during normal business hours for inspection
of
the Project before and after completion thereof by the Department and the
Department's authorized representatives (including, without limitation, any
engineer or environmental consultant retained by the Department), and afford
full and free access to the Project and Premises to such persons as may from
time to time be designated by the Department.
Section
6.07. Operations
and Number of Jobs. The Borrower will retain at the Navy Yard
Project no less than 455 jobs and a total of 494 jobs in Pennsylvania within
three years from the Effective Date.
(a) A
breach by the Borrower of this Section 6.07 shall be an Event of Default under
this Loan Agreement. The remedies of the Department for an Event of
Default arising solely from a breach by the Borrower of this Section 6.07 are
governed by Section 7.03 of this Loan Agreement.
(b) The
Department Policy For Failure to Meet Job Projections (the "Department Policy")
is incorporated herein by reference and is attached hereto as Exhibit D and
the
Department may, in compliance with the Department Policy and such other
regulations and statements of policy, if any, as are then in effect, raise
the
rate of interest on the Loan as permitted under the Note.
Final
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(c) The
Borrower shall be required to meet job projections within the three (3) year
period referred to above and shall not be penalized if there is a reduction
in
the number of jobs once the projections have been achieved even if such
reduction occurs within the three (3) year period.
Section
6.08. Certificate
re Jobs. The Borrower will annually provide the Department 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 Borrower or any subsidiary during the previous
year
at the Premises, together with such other related information as the Department
may reasonably request.
Section
6.09. Employee
Benefit Plans. To the extent that the Borrower maintains any
employee benefit plans subject to the requirements of ERISA, the Borrower and
its subsidiaries shall: (1) fund all of its 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 Internal Revenue Code of 1986
(the "Code"), except where the failure to do so would not have a material
adverse effect on the continuing operations of the Borrower; (2) 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 Borrower;
(3)
furnish the Department, 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;
(4) advise the Department within thirty 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 Borrower contributes, potentially having a material adverse effect
on the continuing operations of the Borrower; (5) promptly advise the Department
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 the Borrower.
Final
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Section
6.10. Environmental
Compliance. The Borrower shall comply with all Environmental
Laws.
Section
6.11. Insurance. Upon
installation of the Collateral at the Premises, the Borrower shall provide
the
Department with evidence that the Borrower and/or the owner of the Premises
has
the Property Coverage set forth in Section 3 (a) (i) of the Security
Agreement. Upon commencement of operations at the Premises, the
Borrower shall provide the Department with evidence that the Borrower has
obtained the Property Coverage set forth in Section 3 (a) (i) of the Security
Agreement . The Borrower shall annually submit to the Department evidence of
its
compliance with the Department's insurance requirements set forth in the
Security Agreement.
Section
6.12. Compliance
with Agreements and Laws; Payment of Obligations. The Borrower
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. The Borrower 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 except in such instances
in which such Project Claim is being contested in good faith by appropriate
proceedings diligently conducted.
Section
6.13. Financial
Statements. During the term of the Loan, the Borrower will
provide the Department with:
(a) financial
statements for the Borrower 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 the Department, provided that if the Borrower is a corporation subject to
the
reporting requirements of the Exchange Act, the relevant entity's obligation
under this paragraph shall be satisfied by delivery to the Department of the
financial statements required to be filed by the Borrower under the Exchange
Act
in its annual reports;
Final
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(b) with
reasonable promptness, such other information respecting the business,
operations and condition (financial or otherwise) of the Borrower as the
Department may from time to time reasonably request, including information
relating to the Project; and
(c) with
reasonable promptness, after it becomes known to the Borrower, reasonably
complete information on material adverse developments which may reasonably
be
expected to threaten the completion or continued operation of the
Project.
The
Department will not disclose any
confidential information submitted to it by the Borrower pursuant to this
Section 6.13 to any third party, except as may be required by applicable law
or
court order, or to fulfill the requirements of the Act.
Section
6.14. Compliance
Certificates. If the Department shall so request, the Borrower
will provide the Department with annual Compliance Certificates, executed (in
the case of entities other than natural persons) 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
6.15. Accuracy of
Information Supplied. The Borrower will ensure that all
information prepared by the Borrower and supplied to the Department or any
third
party under the provisions of this Agreement for the purpose of any report
or
certificate to be furnished to the Department 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 Borrower 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 Borrower to the
Department and/or any third party under the provisions hereof for the purpose
of
any report or certificate to be furnished to the Department in connection with
this Agreement or any of the Loan Documents, the Borrower shall deliver a
written notice to the Department 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.
Final
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Section
6.16. Notice of
Defaults. The Borrower will give prompt notice to the Department
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 Borrower becomes
aware.
Section
6.17. Further
Assurances. The Borrower 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 the Department may
reasonably deem necessary or advisable from time to time in connection with
the
Loan or the Loan Documents to assure or confirm to the Department and perfect
all or any part of the security for the Loan and any other obligations of the
Borrower.
Section
6.18. Indemnification. The
Borrower hereby indemnifies and holds harmless the Indemnified Party 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 Borrower 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 the
Department's issuance of the Loan, the Department'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
Borrower in writing of such Indemnified Claim and tendered to the Borrower
the
defense of such claim; (ii) that no Indemnified Claim shall be paid or
compromised without the consent of the Borrower, which shall not unreasonably
be
withheld, 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 Borrower notice of the proposed payment
or
compromise thereof, and (iii) the Borrower 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 negligence
or
willful misconduct of such Indemnified Party.
Final
- Loan Agreement Page 15 of 27
Except
as set forth in subclause (iii)
of the immediately preceding paragraph, the liability under this Section 6.18
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 Collateral
or the Premises, (iii) the discharge of the Note, (iv) any exculpatory
provisions in any of the Loan Documents limiting the Department's recourse
to
any other security, (v) the accuracy or inaccuracy of the representations and
warranties made by the Borrower; (vi) the release of the Borrower 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, the
Department's voluntary act (other than the execution and delivery by the
Department of an instrument of release expressly and specifically referring
to
Borrower's indemnification obligations), or otherwise, (vii) the release or
substitution in whole or in part of any security for the Note; or (viii) the
Department's failure to file any mortgage or UCC financing statements (or
the Department'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 Borrower and with or without consideration.
The
indemnity provisions contained in
this Section 6.18 hereof shall survive any judicial foreclosure, foreclosure
by
power of sale, deed in lieu of foreclosure, transfer of the property by the
Borrower or the Department, 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 the Department) no matter how such other
third-party entity obtains title or any interest in the Project or
Premises.
Final
- Loan Agreement Page 16 of 27
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
6.19 Payment. The
Borrower will make all payments required to be made by it to the Department,
at
such address as the Department may specify from time to time.
Section
6.20. Negative
Covenants.
(a) Without
the prior written consent of the Department, the Borrower shall not permit,
allow or suffer to exist, any lien or encumbrance to be placed against the
Collateral or any interest therein or enter into any agreement requiring,
contemplating or providing for placement of any such lien or encumbrance, except
(i) liens and encumbrances expressly provided for in the Application and the
Intercreditor Agreement and (ii) that the terms of this Section
6.19(a) shall not be deemed to prohibit execution of any note or credit
instrument not providing for any specific lien against the Collateral but
permitting confession of judgment against the Borrower subsequent to an event
of
default thereunder so long as judgment is not confessed thereunder.
(b) The
Borrower will not change its name without notice to the Department.
(c) Without
the prior written consent of the Department, the Borrower shall not merge or
consolidate with any other corporation or other entity or dispose of all or
any
substantial portion of its assets, except in the ordinary course of business,
unless the Borrower or the surviving corporation, as the case may be, shall
have
a tangible net worth (after giving effect to such merger, consolidation or
sale
of assets) not less than that shown in the most recent audited financial
statements for the Borrower, as the case may be, delivered to the Department,
and, if a corporation different from the Borrower, shall have expressly assumed
the obligations of the Borrower hereunder. Notwithstanding the
foregoing, Borrower may merge with a subsidiary without the prior written
consent of the Department provided that (i) the Borrower shall survive and
(ii)
no Event of Default exists or would result from the merger.
Final
- Loan Agreement Page 17 of 27
(d) Without
prior written notice to the Department, the Borrower shall not take any
corporate action to permit or facilitate any change in control from that set
forth in the Application.
ARTICLE
VII
EVENTS
OF DEFAULT
Section
7.01. Events of
Default. The following shall each constitute an Event of Default
hereunder:
(a) Payment
Default. The Borrower shall fail to pay when due any amount
payable under any of the Loan Documents and such failure shall continue for
a
period of thirty (30) days;
(b) False
Representation. Any representation, warranty or statement made by
the Borrower herein or in the Application or in any of the Loan Documents or
in
any certificate or financial or other statement furnished pursuant to the
provisions of any of the Loan Documents or the Application (except for any
representation, warranty or statement expressly made effective as of a date
prior to the date when made or furnished), shall have been false or misleading
in any material respect when made or deemed made;
(c) Borrower
Insolvency. The Borrower shall (i) become insolvent, (ii) admit
its inability to pay its debts as they come due, (iii) make an assignment to
the
benefit of its creditors, (iv) be adjudicated bankrupt or insolvent, (v)
voluntarily initiate proceedings under any bankruptcy or reorganization law
either now or hereafter in effect, (vi) become the subject of any involuntary
proceedings under any bankruptcy or reorganization law either now or hereafter
in effect that shall not have been discharged within ninety (90) days of the
initiation thereof, or (vii) seek to take advantage of any moratorium law either
now or hereafter in effect;
(d) Receiver
Appointed. A receiver, liquidator or trustee shall be appointed
for the Borrower and shall not have been discharged within ninety (90)
days;
(e) Covenant
Default. The Borrower shall fail to observe or perform any of the
terms, covenants, promises and agreements on the Borrower’s part to be observed
and performed under this Agreement or under the Note, Security Agreement or
any
of the other Loan Documents and such failure continues for thirty (30) days
after written notice;
Final
- Loan Agreement Page 18 of 27
(f) Default
Under Other Financing. A default in the due and punctual payment
of principal or interest or the due and punctual observance or performance
of
any covenants or agreements on any loan or debt instrument;
(g) Collateral
Default. The Collateral is (i) sold, leased, liened or encumbered
without the prior written consent of the Department, which consent shall not
be
unreasonably withheld, except those liens or encumbrances permitted under the
Intercreditor Agreement; (ii) the Collateral is seized or levied upon under
any
legal or governmental process against the Debtor or against the Collateral;
(iii) the Collateral is lost, stolen, or moved from the Premises without the
consent of the Department, provided that Borrower may dispose of any obsolete
or
worn-out Collateral, whether now owned or hereinafter acquired in the ordinary
course of business; (iv) the Collateral is substantially damaged or destroyed,
and such damage is not covered by insurance; or.
(h) Change
in the Project. The Borrower makes substantial changes to or does not
complete the Project as described in the Application, and such changes have
a
Material Adverse Effect. Notwithstanding the foregoing, if such
change affects the eligibility of the Borrower under the Act or the guidelines
promulgated by the Department, even if it is not deemed to have a Material
Adverse Effect, the change in Project shall be an Event of Default.
Section
7.02. Remedies Upon an Event of
Default. Immediately and without further notice to the Borrower,
upon the occurrence of an Event of Default, other than an Event of Default,
arising solely from a breach by the Borrower of Section 6.07 "Operations and
Number of Jobs" pertaining to job creation or retention, the Department, or
any
subsequent holder of the Note, may, subject to the Intercreditor Agreement,
exercise any one or more of the following remedies:
(a) cease
making any further disbursements of advances hereunder;
(b) declare
the Note and interest accrued thereon and all liabilities of the Borrower
thereunder to be immediately due and payable, and the same shall thereupon
become and be due and payable;
(c) raise
the rate of interest on the Loan as provided in the Note;
Final
- Loan Agreement Page 19 of 27
(d) bring
an action against the Borrower under the Note; or
(e) exercise
any other remedy available to it under any of the Loan Documents or applicable
law, including the Pennsylvania Uniform Commercial Code.
Except
as expressly required by the
particular Loan Document pursuant to which such remedies are exercised or by
applicable law, the Department may exercise any of the foregoing remedies
without presentment, demand, protest or notice of any kind to any person
(including, without limitation, the Borrower), all of which are hereby expressly
and knowingly waived.
Subject
solely to the limitation that
the Department is limited to one recovery for the aggregate amounts due and
owing under the Loan Documents, the Department's remedies under the Loan
Documents are cumulative and concurrent and may, in the Department's sole
discretion, be exercised, deferred, compromised, settled or discontinued without
affecting any other remedy available to the Department under any of the Loan
Documents or under applicable law.
Section
7.03. Remedies for
Event of Default Arising From Failure to Create or Retain
Jobs. Upon the occurrence of an Event of Default arising solely
from a breach by the Borrower of Section 6.07 "Number of Jobs" of this
Agreement, the Department may, in compliance with such regulations and
statements of policy, if any, as are then in effect, raise the rate of interest
on the Loan as permitted under the Note.
ARTICLE
VIII
MISCELLANEOUS
Section
8.01. Obligations
Unconditional. The obligations to the Department 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 the Department under this Agreement,
any
of the Loan Documents, or under any other agreement between the Borrower and
the
Department, 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 Department to perform and observe any agreement,
whether express or implied, or any duty, liability or obligation arising out
of
or connected with this Agreement, it being the intention of the parties that
the
payments required 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 to the Department under any of the Loan Documents
shall
be received by the Department as net sums and the Borrower 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 Borrower or any other persons to bring an independent action against the
Department with respect to any cause of action such person may have against
the
Department.
Final
- Loan Agreement Page 20 of 27
Section
8.02. 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 the Department from enforcing any and all of such
provisions in accordance with their respective terms.
Section
8.03. Rights and
Remedies. The terms of all Loan Documents shall be liberally
construed in favor of the Department to effectuate the purposes
hereof. No delay or failure on the part of the Department in
exercising any right, power or privilege 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 the Department under any of the Loan Documents are cumulative and
concurrent and not exclusive of any rights or remedies which the Department
might otherwise have. The Department shall have the right at all
times to enforce the provisions of each of the Loan Documents and all related
documentation in strict accordance with the terms hereof and thereof,
notwithstanding any conduct or custom on the part of the Department in
refraining from so doing at any time or times. The failure of the
Department at any time or times to enforce the Department's rights under such
provisions, strictly in accordance with the same, shall not be construed as
having created a custom in any way or manner contrary to specific provisions
of
such Loan Documents or any such documentation, or as having in any way or manner
modified or waived the same.
Section
8.04. Writing
Required. Any permit, consent or approval of any kind or
character on the part of the Department under any of the Loan Documents, and
any
waiver of any provision or condition thereof, must be in writing and executed
by
the Department and shall be effective only to the extent specifically set forth
in such writing.
Final
- Loan Agreement Page 21 of 27
Section
8.05. Duration of
Covenants. All covenants and agreements of the Borrower or any of
the Guarantors in any of the Loan Documents, or otherwise made in writing in
connection herewith, shall survive and continue until the Loan is entirely
paid
and all of the obligations of the Borrower hereunder have been entirely
satisfied, unless a longer term is expressly provided for, in which event such
longer term shall apply.
Section
8.06. Pennsylvania
Law to Govern. Each of the Loan Documents shall be deemed to be
contracts made under the laws of the Commonwealth of Pennsylvania and, for
all
purposes, shall be construed in accordance with the laws of such Commonwealth,
including its statutes of limitations, but without regard to its rules regarding
conflict of laws.
Section
8.07. Counterparts. Each
of the Loan Documents may be executed in as many counterparts as may be deemed
necessary and convenient and each of which, when so executed, shall be deemed
an
original, but all such counterparts shall constitute but one and the same
instrument. All signatures need not appear on the same copy of any
Loan Document.
Section
8.08. Department
Project Inspections Solely for the Department's Benefit. It is
understood and agreed that, subject to Borrower’s rights under the Lease, the
Department, its agents, servants, invitees and employees, may inspect the plans
and specifications for the Project and enter the Premises and conduct such
tests, surveys, examinations and inspections at reasonable times during normal
business hours. The Borrower hereby acknowledges and agrees (i) that
such project inspections are solely for the protection and benefit of the
Department, and (ii) that the Department, its agents, servants, invitees and
employees carry no responsibility whatsoever for the Project, its quality or
the
compliance or lack of compliance with the plans and specifications.
Section
8.09. Setoff. The
Borrower agrees that the Commonwealth of Pennsylvania may set off the amount
of
any state tax liability or other debt of the Borrower or its subsidiaries that
is owed to the Commonwealth and not being contested on appeal against any
payments due the Borrower under this or any other contract with the
Commonwealth.
Section
8.10. Contractor
Responsibility. Included in and made a part of this Agreement is
Exhibit "F", a clause pertaining to Contractor Responsibility.
Final
- Loan Agreement Page 22 of 27
Section
8.11. Contractor
Integrity. The Borrower represents, warrants and covenants that
it currently 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 hereunderas set forth in Exhibit "G", attached hereto and made
a
part hereof..
Section
8.12. Americans
with Disabilities Act. Included in and made a part of this
Agreement is Exhibit "H", a clause pertaining to compliance with the Americans
with Disabilities Act.
Section
8.13. Successors
and Assigns. 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 the Department and the Borrower. Although the
Department 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
Borrower). The Borrower 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 the Department, and any such assignment without the prior
written consent of the Department shall be void. The Borrower and the Department
intend that no person except Borrower shall have any claim or interest under
this Agreement or right of action hereunder.
Section
8.14. Notices. Notices
required hereunder, or any correspondence concerning this Agreement shall be
directed to the following addresses and shall be deemed properly given (a)
if
delivered by hand, (b) if sent by certified mail, return receipt requested,
postage prepaid, or by recognized overnight courier service (including, without
limitation, Federal Express or United Parcel Service overnight service), charges
prepaid; or (c) if sent by facsimile, with a copy sent by first class U.S.
Mail,
postage prepaid.
| To the Department: | ||
|
Department
of Community and Economic Development
Commonwealth
Keystone Building
000
Xxxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxxxxxx,
XX 00000
FAX: (000)
000-0000
Attention: Machinery
and Equipment Loan Fund
|
||
| To Borrower: | ||
|
Tasty
Baking Company
0000
Xxx Xxxxxx
Xxxxxxxxxxxx,
XX 00000
Attention:
President and CEO
|
||
| With a copy to: | ||
| Xxxxx
Xxx Xxxxxxx, Esquire
Xxxxxxxx
Ronon Xxxxxxx & Xxxxx, LLP
0000
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx,
XX 00000-0000
|
Final
- Loan Agreement Page 23 of 27
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 provided they are
dispatched between 9:00 a.m. and 5:00 p.m. on a business day; 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
8.15. Severability. 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 of the Loan Documents, all
of
which shall be liberally construed in favor of the Department in order to effect
the provisions of this Agreement. Notwithstanding anything to the
contrary herein contained, the total liability of the Borrower for payment
of
interest pursuant hereto 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 Borrower to the Department include interest in excess
of such a maximum amount, the Department 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 Borrower or the Borrower, as appropriate;
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.
Final
- Loan Agreement Page 24 of 27
Section
8.16. Consent to
Jurisdiction. The Borrower hereby irrevocably (a) agrees that any
suit, action or other legal proceeding arising out of or relating to this
Agreement or the Loan Documents may be brought in any federal or state court
located in 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 it may have to the laying of venue of any such suit, action
or proceeding in any such court and any claim that any such suit, action or
proceeding has been brought in an inconvenient forum. The Borrower
hereby irrevocably consents to the service of any and all process in any such
suit, action or proceeding by mailing of copies of such process to the Borrower
at its address provided under or pursuant to Section 8.14. The
Borrower agrees that a final judgment in any such action or proceeding shall
be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or
in any other manner provided by law. All mailings under this section
shall be by certified or registered mail, return receipt
requested. Nothing in this section shall affect the right of the
Department to serve legal process in any other manner permitted by law or affect
the right of the Department to bring any suit, action or proceeding against
the
Borrower or its property in the courts of any other jurisdiction.
Section
8.17. Defined
Terms. In each of the Loan Documents, 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 the particular Loan Document in
which they occur in such document's entirety, (iii) the term, the "Loan
Documents", and the words, "thereof", "therein", "thereto", "thereby" and
"thereunder" refer to all the Loan Documents, taken together as a whole, (iv)
all references to particular Articles, Sections or Paragraphs are references
to
the particular Article, Section or Paragraph of the particular Loan Document
in
which such references occur, and (v) the Borrower shall be referred to as
Contractor in the Exhibits hereto.
Final
- Loan Agreement Page 25 of 27
Section
8.18. Incorporation
by Reference. All exhibits to this Agreement and the terms of all
Loan Documents shall be incorporated herein by reference as though expressly
set
forth herein. The Borrower agrees to be bound as the "Contractor" under the
provisions of the exhibits to this Agreement.
Section
8.19. Descriptive
Headings. Descriptive headings of the several Articles and
Sections of each of the Loan Documents are intended for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
Section
8.20. Further
Assurances. The Borrower from time to time, shall execute such
further instruments as the Department may reasonably request to further confirm
and assure the interests and rights created or intended to be created in favor
of the Department hereunder or under the Loan Documents.
Section
8.21. Complete
Agreement. The Loan Documents constitute the entire agreement
between the Department and the Borrower with respect to the Project and the
Loan. 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. This Agreement
may be modified or amended only by a written instrument duly executed by the
Department and the Borrower. Each of the remaining Loan Documents may
be modified only by a written instrument duly executed by the Department and
the
remaining parties to the particular Loan Document.
[Signatures
on Following Page.]
[Remainder
of Page Intentionally Left Blank.]
Final
- Loan Agreement Page 26 of 27
WITNESS
WHEREOF, the parties hereto have duly executed this Agreement as of the day
and
year first above written.
| COMMONWEALTH OF PENNSYLVANIA,acting by and through the DEPARTMENT OFCOMMUNITY AND ECONOMIC DEVELOPMENT | |||
|
|
By:
|
/s/ | |
| Deputy Secretary | |||
| Tasty Baking Company | |||
| Attest: | |||
| By: | |||
| Xxxxxxx X. Xxxxx, President & CEO | |||
Final
- Loan Agreement Page 27 of 27
