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EXHIBIT 10.4
INSTALLMENT SALE AGREEMENT
THIS INSTALLMENT SALE AGREEMENT, made this 23rd of September, by and
between the MONROEVILLE AREA INDUSTRIAL DEVELOPMENT CORPORATION, a nonprofit
corporation organized and existing under and by virtue of the laws of the
Commonwealth of Pennsylvania ("MAID"), with an address at 0000 Xxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxxxxx 00000,
AND
HALMAR ROBICON GROUP, INC., a Pennsylvania corporation ("Buyer'), with an
address. at 000 Xxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000.
WITNESSETH:
WHEREAS, MAID is the Owner in fee of a certain tract of land, together with
all improvements now and then located thereon, situate in Xxxxxxxxxxxx County,
Pennsylvania as more particularly described herein and on Exhibit "A" attached
hereto and made a part hereof (the "Premises"), upon which MAID proposes to
establish an industrial development project (the "Project or "Project
Facilities" or "Improvements") as defined in the Pennsylvania Industrial
Development Authority Act, as amended, to be purchased and occupied by the
Buyer; and
WHEREAS, MAID has secured from THE PENNSYLVANIA INDUSTRIAL DEVELOPMENT
AUTHORITY ("PIDA") for a loan in the amount of Two Million and 00/100 Dollars
($2,000,000.00) (the' "Loan") to be used exclusively to defray a portion of the
"cost of establishing an industrial development project", as defined in the
Pennsylvania industrial Development Authority Act, as amended; and
WHEREAS, MAID is willing to sell the Premises to the Buyer upon the terms
and subject to the conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto, in consideration of the mutual
promises, covenants and agreements contained herein and intending to be legally
bound hereby, do agree as follows:
1. SALE AND PREMISES. MAID hereby agrees to sell to the Buyer, who
hereby agrees to purchase, all of MAID's right, title and interest in and to the
Premises situate in upper Xxxxxxx Township, County of Xxxxxxxxxxxx,
Pennsylvania, more particularly described in Exhibit "A" attached hereto and
made a part hereof by reference, TOGETHER WITH the buildings and improvements
erected or to be erected thereon AND TOGETHER WITH the easements, tenements,
hereditaments, appurtenances, fixtures, equipment, rights and privileges now or
hereafter contained in, attached to, belonging to or in any way pertaining or
beneficial thereto, whether described in Exhibit "A" or not, and with all
faults.
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2. MAID'S INTEREST IN THE PREMISES. MAID acquired title in fee simple to
the Premises, by Deed from HALMAR ROBICON INC., dated SEPTEMBER 23, 1994, and
recorded in the Recorder's Office of Xxxxxxxxxxxx County, in Deed Book Volume
, page , and the Buyer has, to its complete satisfaction, fully
inspected and approved the deed to MAID and title to the Premises.
3. NOTES AND MORTGAGES. On the date hereof MAID has executed and
delivered a Note in the principal amount of Two Million and 00/100 Dollars
($2,000,000-00) in favor of PIDA (the PIDA Note"), and MAID has granted a
mortgage lien on the premises in the principal amount of Two Million and 00/100
Dollars ($2, 000, 000. 00) in favor of PIDA (the "PIDA Mortgage") in order to
secure the PIDA Note. On the date of this Agreement, the Buyer has executed and
delivered a note in the principal amount of Five Thousand and 00/100 Dollars
($5,000.00) in favor of MAID (the "MAID NOTE"). The Bank Note, PIDA Note and
MAID Note are hereinafter sometimes collectively referred to as the "Notes", and
the PIDA Mortgage is hereinafter sometimes collectively referred to as the
"Mortgages." All Notes and Mortgages are hereinafter sometimes collectively
referred to as the "Notes and Mortgage." PIDA in hereinafter sometimes
collectively referred to as the "Mortgagees."
4. LOAN SECURITY DOCUMENTS. Also on the date of this Agreement, MAID
and/or Buyer and/or High Voltage Engineering Corporation ("Guarantor") have
executed and delivered certain documents in connection with the Loan
(collectively the "Other Loan Documents"), including but not limited to an
affidavit as to the Payment of Costs, a Guaranty Agreement, and a Consent
Subordination and Assumption Agreement: The Notes, Mortgages and the Other Loan
Documents are hereinafter sometimes collectively referred to as the "Loan
Documents."
5. SUBORDINATION OF BUYER'S INTEREST AND RIGHTS. Documents are
incorporated herein by reference as if more fully set forth, and the covenants
and agreements of MAID contained therein shall be' the covenants and agreements
of the Buyer as well. The Buyer acknowledges and agrees to its interest and
rights hereunder and the interest and rights of any Lessee of the Premises are
expressly subordinate and subject to the interests and rights of the Mortgagees.
The Buyer acknowledges that PIDA has made the PIDA loan in reliance upon the
assignment by MAID of its right, title and interest in and to this Agreement to
PIDA.
6. PURCHASE PRICE. (a) The Purchase Price for the Premises is the total
of all sums that are due and payable under the PIDA Note and the MAID Note,
whether by declaration, acceleration or otherwise, as the same becomes due and
payable, together with MAID's annual service fee of seven-eights (7/8) of one
(1%) percent charged an the outstanding principal balance of the PIDA note for
each year during the term of this Installment Sale Agreement, together with any
and all charges assessed annually or otherwise by PIDA relative to the PIDA
Note.
(b) All installment payments on the Purchase Price by Bank shall be
applied first to the interest on that portion of the Purchase Price being paid
and thereafter on account of that portion of the Purchase Price being paid. The
final installment shall include all interest and principal due and unpaid on the
Notes.
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(c) The Buyer may accelerate payment of all or any portion of the Purchase
Price to the extent and upon the condition that MAID has the right to prepay
that portion of its indebtedness under the Notes in any -amount identical to the
portion of the Purchase Price which the Buyer is prepaying (the "Respective
Note"); provided, however, that with such payment, the Buyer in addition pays to
MAID an amount equal to the premium or other additional charge which MAID is
required to make to the holder of the respective Notes in order for MAID to make
a comparable prepayment on the respective Notes. Any amount prepaid by MAID,
together with any premium or additional charge which may be required as
specified above, shall by promptly applied by MAID as a prepayment on the
respective Notes. Partial prepayment of the Purchase Price made by the Buyer
hereunder shall not postpone or diminish or in any way alter the next and
succeeding installment payment of the Purchase Price falling due hereunder until
the entire Purchase Price together with interest accrued and unpaid has been
paid in full.
(d) Notwithstanding any other provision of this Agreement, if for any
reason the balance of the amount due on any of the Notes is called for payment
at any time by the holder thereof, then the Buyer agrees that the entire balance
of such Note or Notes called remaining due and unpaid together with any interest
thereon, shall be immediately due and payable by the Buyer. Further,
notwithstanding any other provision of this Agreement to the contrary, Buyer
expressly agrees he will make all payments due under Notes and Mortgages
directly to the holders of the Notes and MAID shall have no duty or
responsibility to make any such payments unless MAID notifies Buyer in writing
of MAID's intentions to make such payments after receipt by MAID of installment
payments on the Purchase Price from Buyer.
7. GENERAL PAYMENT PROVISION. All payment hereunder shall be absolutely
net, and all costs and expenses payable in connection with the ownership,
occupancy and maintenance of the Premises shall be paid by the Buyer. It is the
intention of the parties that notwithstanding any other provision of this
Agreement, MAID shall receive from the Buyer funds equal to those necessary for
MAID to pay to the holders of the Notes and Mortgages, including any obligations
which survive the payment thereof. Accordingly, the Buyer agrees (but such
agreement shall not limit the generality of the preceding sentence) that if
interest payable by MAID under the terms of any Note is increased or decreased,
or if any additional amounts become due and payable by MAID under the terms of
any Note to the Mortgagee or holders of the Notes, or if payment of any Note
shall be accelerated, then and in such event, the interest payable under the
portion of the Purchase Price identical with the Respective Note shall be
increased or decreased to the same extent, retroactively if necessary, and
additional amounts shall be payable by the Buyer to MAID hereunder equal to any
additional amount or accelerated amount that may be payable by MAID to the
holder of the Respective Note under its terms and at the same time thereon. The
obligations of the Buyer to make payments hereunder and to perform and observe
the other agreements on Buyer's part contained herein shall be absolute and
unconditional until such time as the Purchase Price and accrued interest have
been paid in full and until then, the Buyer (i) will not suspend or discontinue
any payments provided for herein; and (ii) will perform and observe all of
Buyer's other agreement contained in this Agreement. The Buyer may, however, at
Buyer's own cost and expense and in Buyer's own name prosecute or defend any
action or proceeding or take any other action involving third persons which the
Buyer may deem reasonably necessary in order to secure or protect Buyer's rights
of possession, occupancy or use hereunder and, in such event, MAID agrees to
cooperate fully with the Buyer.
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8. NO DEFENSE OF SET-OFF. The obligations of the Buyer to make the
payments required hereunder shall be absolute and unconditional without any
defense or set-off by reason of any default by MAID under this Agreement or
under any other agreement between the Buyer and MAID, or for any other reason,
including, without limitation, failure to complete construction of the
Improvements, acquisition of and the installation of fixtures and equipment and
all acts and circumstances that may constitute failure of consideration,
destruction or damage to the Premises or the commercial frustration of purpose
or the failure of MAID to perform or observe any agreement whatsoever, whether
express or implied, or any duty, liability or obligations arising out of or in
connection with this Agreement, it being the intention of the parties hereto
that the payments required by this Agreement to be made by the Buyer shall be
paid in full when due without any delay or diminution whatsoever.
9. POSSESSION, USE, MAINTENANCE, REPAIRS AND ALTERATIONS. Insofar as MAID
is concerned, the Buyer shall have sole and exclusive possession of the Promises
upon execution of this Agreement. The Buyer agrees that MAID in no way and at no
time shall be responsible for the condition of the Premises. The Buyer agrees
that during the term of this Agreement, Buyer will pay all costs and expenses in
the maintenance and operation of the Premises. The Buyer will not undertake or
permit any demolition or material structural alterations or additions to the
Project Facilities in violation of the provisions of any of the Mortgages. All
structural alterations and additions to the Project Facilities undertaken by the
Buyer shall become a part of the Project Facilities.
In the event of default of any contractor or subcontractor under any
contract made by it in connection with the Improvements or in the event of
breach of warranty with respect to materials, workmanship or performance
guaranty, the Buyer will promptly proceed, either separately or in conjunction
with others, to exhaust the remedies against the contractor, subcontractor or
materialman so in default and against each surety for the performance of such
contractor, subcontractor or materialman. The' Buyer agrees to advise MAID of
the steps Buyer intends to take in connection with any such default. If the
Buyer shall so notify MAID, the Buyer may in Buyer's own 'name prosecute or
defend any action or proceeding or take any other action involving the
contractor, subcontractor or materialman or surety which the Buyer deems
reasonably necessary, and, in such event, MAID hereby agrees to cooperate fully
with the Buyer.
The Buyer agrees to take good care of the Premises and Project Facilities,
including the sidewalks adjacent to the Premises, and keep it reasonably clean,
free from snow and ice on walks and paths, at the Buyer's own expense from and
after the date hereof, to keep the Project Facilities in good repair (structural
and otherwise), order and condition, including any rebuilding or restoration
following a casualty loss, and pay all utility charges and other costs and
expenses arising out of the occupancy, use and possession of the Premises and
Improvements.
10. SECURITY INTEREST. As a security interest for performance of Buyer's
obligations hereunder, the Buyer grants to MAID a security interest in any and
all heating, plumbing, sprinkler, water, gas, electric, power, lighting,
air-conditioning equipment, elevators, machinery and fixtures and all other
property of any description whatsoever, now or hereafter used in connection with
the Project Facilities, whether attached or not, together with all cash and
non-cash proceeds of the same, including insurance
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proceeds. This Agreement shall constitute a Security Agreement under the
Pennsylvania uniform Commercial Code so that MAID and the Mortgages, as MAID's
assignee, shall have and may enforce a security interest to secure the payment
of all sums due and to become due under this Agreement, such security interest
to attach at the earliest moment permitted by law.
11. BUYER'S REPRESENTATIONS AND WARRANTIES. The Buyer represents,
covenants and warrants as follows:
(a) The Buyer will - (i) keep the Premises and Improvements free of
encumbrances or security interests except the Mortgages and the security
interests created by the Mortgages and by this transaction, and (ii) permit
MAID, the Mortgagees, any holder of any Notes, and their respective
representatives to inspect the Premises and the Improvements at all reasonable
times.
(b) There are no actual or threatened suits or legal proceedings
against the Buyer which are substantial in amount or the adverse result of which
would in any way materially affect the Premises or the Improvements or the
occupancy or use thereof by the Buyer.
(c) The representations and warranties made by Buyer and/or
Guarantor in the Loan Documents, including but not limited to those set forth in
the Consent, Subordination and Assumption Agreement of even date herewith, are
and shall remain true, correct and binding upon Buyer and Guarantor.
12. TAXES, ASSESSMENTS, AND OTHER GOVERNMENTAL CHARGES. The Buyer agrees
to pay, in addition to the Purchase Price and as the same respectively become
due, all taxes, including County, Municipal and School taxes, assessments
whether special or general, water rents, sewer rents and charges,~ and all
governmental charges of any kind whatsoever that may at any time be lawfully
assessed and levied against or in respect to the Premises, Improvements or any
machinery, equipment or related property installed or brought by the Buyer
therein or thereon (including, without limiting the generality of the foregoing,
taxes, if any, levied upon or with respect to the receipts, income or profits of
MAID or the Buyer from the Premises) and all utility and other charges incurred
in the operation, maintenance, use, occupancy and upkeep of the Premises and
Improvements; provided, however, that with respect to special assessments or
other governmental charges that may be lawfully paid in installments as are
required to be paid during the term hereof. The Buyer agrees to pay for any
improvements to the Premises made or ordered to be made by any municipal or
state authorities and to comply at Buyer's own cost and expense with all notices
received from public authorities from and after the date hereof.
In the event the Mortgages so provide, the Buyer shall make payment of real
estate taxes, water and sewer rents and insurance premiums required above by
paying each month to such Mortgagee so requiring, one-twelfth (1/12) of the
annual bills for these sums as estimated by the Mortgagees, to be held by the
Mortgagee without interest so that the Mortgagees will have on hand sufficient
funds to pay the same when due.
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The Buyer further agrees to comply with all requirements of the Mortgages as
to the payment of all taxes or other claims for which any individual,
individuals, company, corporation or other person or persons, natural or
artificial, in whom legal or equitable title to the Premises shall or may
hereafter vest, may be liable under the laws of the United States of America or
the Commonwealth of Pennsylvania, both present and future, where the tax
liability under the provisions of such laws may be or become a lien upon the
Premises prior to the lien of the Mortgages, or payable from the proceeds of a
judicial sale before the sum is secured by the Mortgages are payable.
13. ADJUSTMENTS AND ZONING. The Buyer agrees to pay all taxes, fees,
charges and costs which are required and when required in connection with MAID's
acquisition of the Premises, with respect to the Mortgages or other mortgage
created by MAID in connection with the conveyance of the Premises by MAID to the
Buyer. The Buyer has satisfied itself with respect to existing zoning
classification, the legality of present use and of any intended future use or
improvements intended by the Buyer and the existence or nonexistence, as the
case may be, of any violation of any local code, ordinance or state law
respecting the Premises, and the Buyer waives any right may have against MAID
respecting representations concerning the Premises.
14. COMPLIANCE WITH LAWS. The Buyer agrees from and after the date of this
Agreement to comply with all laws, ordinances and regulations, including but not
limited to all building, zoning and environmental laws, ordinances and
regulations of any duly constituted authority which may presently or hereafter
in any manner affect the Premises, adjacent sidewalks or any improvements
thereon or the use thereof.
15. PROPERTY INSURANCE. During the term of this Agreement, the 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 MAID
or the Mortgagee, and in no event will property insurance be in an amount less
than the principal balance due on the Notes. The Buyer shall take out and
maintain such boiler insurance and other insurance as may be required by MAID or
any of the Mortgagees. All such policies of insurance and additional fire
insurance carried on the Premises by the Buyer shall contain the standard
mortgagee clause, and certificates of insurance or the originals thereof shall
be deposited with MAID and any of the Mortgagees who require the same.
16. LIABILITY INSURANCE. The Buyer, at Buyer's own cost and expense, will
provide and keep in force during the term of this Agreement, for the benefit of
MAID as well as the Buyer, comprehensive general liability insurance covering at
least the hazards of "Premises-operations", "elevators" (if applicable) and
"Independent Contractors", in which MAID shall be included as an insured, with
minimum limits of liability with respect to bodily injury of Five Hundred
Thousand Dollars ($500,000.00) for each person, one Million Dollars ($1, 000,
000. 00) for each occurrence and One Hundred Thousand Dollars ($100,000.00) with
respect to property damage. Such insurance shall cover the entire Premises,
including but not limited to elevators, hoists, sidewalks, passageways and other
property in and about the adjoining streets. The Buyer shall have the right to
carry insurance provided for herein or any portion of such insurance under a
blanket policy.
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In addition, the Buyer, at Buyer's own expense, shall provide and keep in
force, whenever construction of major alterations or improvements to the
Premises is being performed, policies of contingent, public liability insurance
protecting MAID and the Buyer, in addition to providing certificates of public
liability insurance and workmen's compensation insurance insuring the contractor
or subcontractor engaged by the Buyer. Such contingent liability insurance shall
be a public liability policy covering at least the hazards of all phases of the
construction being performed by MAID or the Buyer or their contractors or
subcontractors, the hazards arising from the ownership, occupancy or possession
of the Premises, and the hazards of any operation other than construction being
carried on by the Buyer an any part of the Premises. Notwithstanding anything
herein to the contrary, the Buyer shall take out and maintain all such insurance
in such forms, amounts and coverages and with such insurers as may be required
by PIDA.
17. GENERAL INSURANCE PROVISIONS.
(a) All insurance as to form, amount and insurance company shall be
satisfactory to MAID and the Mortgagees.
(b) All policies will require that not less than thirty (30) days'
written notice of cancellation or material change will be given to MAID and the
Mortgagees.
(c) All cost of insurance will be borne by Buyer.
(d) Certificates of renewal insurance or renewal policies shall be
deposited at least fifteen (15) days before expiration of the prior existing
policies.
(e) All insurance is required commencing from the date hereof and
shall be continued throughout the term of this Agreement. The Buyer will provide
evidence thereof satisfactory to MAID and the Mortgagees.
(f) All insurance shall name MAID and the Buyer as insureds and
shall cover the entire Premises, including sidewalks, walkways and cartways.
(g) All policies of insurance shall be issued by insurance
companies licensed to do business in Pennsylvania.
17. DAMAGE AND CONDEMNATION. Damage to, destruction of or condemnation of
all or any portion of the buildings, improvements or Premises shall not
terminate this Agreement or cause abatement of or reduction in the payments to
be made by the Buyer hereunder or otherwise affect the respective obligations of
the Buyer and MAID. However, if the amount owing or payments under arty Note are
reduced (which MAID shall have no obligation to seek or to affect), then the
Purchase Price or payments hereunder shall be reduced to the same extent.
Proceeds of any insurance policy arising out of damage or destruction of
buildings or Improvements on the shall be paid to the Mortgagees and, if the
Buyer is not in default hereunder, shall be applied to the cost of repair or
restoration of the buildings or Improvements pursuant to
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the terms of the applicable Mortgages by the Mortgagees. In any event, the
Buyer, in the event of such damage or destruction, shall promptly restore the
buildings and Improvements to at least as good condition as the same existed
prior to the said damage or destruction, unless the Mortgagees agree to the
application of the proceeds of insurance to the payment of the Purchase Price
due and owing hereunder. The Buyer hereby agrees that Buyer is bound by the
provisions of the Mortgage and agrees to assume the obligations of MAID
thereunder in reference to the application of proceeds of insurance and
restoration of buildings and Improvements. In the event the proceeds should
exceed the costs of restoration, the excess of any proceeds may be remitted by
the Mortgagees to MAID to be applied by MAID to the payment of sums due
hereunder and balance thereof remitted to the Buyer.
19. EMINENT DOMAIN. In the event that title to or use of the Premises, or
any part thereof, shall be taken in the exercise of the power of eminent domain
by any governmental authority or by any person, firm or corporation acting under
any governmental authority, there shall be no diminution or postponement of
payments payable hereunder by the Buyer, and the net proceeds received from any
award in such condemnation proceeding, or resulting from any settlement thereof,
shall be paid to the Mortgagees and applied pursuant to the terms of the
Mortgages. Any proceeds exceeding the amount so applied may be paid to the
Buyer.
20. QUIET ENJOYMENT. MAID covenants that the Buyer, on performance of the
covenants and conditions on Buyer's part to be performed and observed hereunder,
shall and may peacefully and quietly have, hold and enjoy the Premises as
purchaser in possession, free from molestation, eviction or disturbance by MAID.
20. EVENTS OF DEFAULT. During the term of this Agreement, the following
shall constitute events of default by the Buyer:
(a) Failure of the Buyer to make payments as required hereunder.
(b) Failure of the Buyer to observe or perform any other covenant or
agreement on Buyer's part to be observed and performed hereunder or under any of
the Loan Documents for a period of thirty (30) days after written notice,
specifying such failure and requesting that it be remedied, given to the Buyer
by MAID, or any of the Mortgagees or any holder of the Notes or Mortgages.
(c) The dissolution or liquidation of the Buyer or the filing by the
Buyer of a voluntary petition in bankruptcy or the failure by the Buyer promptly
to lift any execution, attachment or garnishment of such consequence as will
impair Buyer's ability to carry out Buyer's obligations hereunder, or the
commission by the Buyer for the benefit of creditors, or if any proceeding in
bankruptcy or the appointment of a receiver shall be instituted by any creditor
of the Buyer under any federal or state law. The term "dissolution or
liquidation by the Buyer" as used in this subparagraph shall be construed to
include the transfer of all or substantially all of the Buyer's assets to
another person, corporation, partnership or other entity, unless the transferee
assumes in writing all Of the obligations of the Buyer herein, and unless the
Mortgagee and MAID give their prior written consent to such transfer.
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(d) The occurrence of any event of default under the Notes,
Mortgages, or any or the Loan Documents, or any collateral document concerning
any of the foregoing after the expiration of the grace period, if any.
22. REMEDIES ON DEFAULT. Upon the occurrence of an event of default, any
one or more of the following remedial steps may be taken:
(a) MAID may perform on account of the Buyer any covenant or
obligation in the performance of which the Buyer is in default, in which the
Buyer shall be obligated to pay immediately to MAID any amount paid by MAID
together with counsel fees, as well as interest at the rate of twelve and
one-half percent (12.50%) per annum from the date of payment by MAID.
(b) MAID may declare all sums which the Buyer is obligated to pay to
MAID pursuant to this Agreement, together with interest accrued, immediately due
and payable.
(c) MAID may terminate this Agreement and resell the Premises at
public or private sale, and MAID will apply the monies received therefrom, less
expenses of same, in the order of priority as MAID, in its discretion, may
elect; and the Buyer shall remain liable for any deficiency after the
application of such proceeds.
(d) UPON AN EVENT OR DEFAULT, THE BUYER HEREBY IRREVOCABLY
AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD OF PENNSYLVANIA OR
ELSEWHERE TO APPEAR AS ATTORNEY FOR THE BUYER, AS WELL AS FOR ALL PERSONS
CLAIMING BY, THROUGH OR UNDER THE BUYER, AND TO SIGN AN AGREEMENT FOR ENTERING,
IN ANY COURT OF COMPETENT JURISDICTION, AN AMICABLE ACTION IN EJECTMENT AGAINST
THE BUYER AND THEREIN CONFESS JUDGMENT FOR THE RECOVERY BY MAID OR ITS ASSIGNEE
OF POSSESSION OF THE PREMISES, FOR WHICH A COPY OF THIS AGREEMENT SHALL BE
SUFFICIENT WARRANT, WHEREUPON, IF MAID SO DESIRES A WRIT OF EJECTMENT 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 TO THE
BUYER, MAID SHALL HAVE THE RIGHT ON ACCOUNT OF ANY SUBSEQUENT EVEN 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 AS HEREINABOVE PROVIDED
Initial:
(e) After ten (10) days' written notice MAID may take possession of
the Premises by summary procedure set forth in subparagraph (d) above or
otherwise without terminating this Agreement. MAID may collect rentals and
enforce all other remedies against the Buyer under any existing leases for any
part of the Premises, but without being deemed to have affirmed such leases, and
MAID may enter into new leases on such terms as MAID may deem fit for any
portion or portions of the Premises.
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(f) The Buyer hereby irrevocably authorizes and empowers any
attorney of any court of record in Pennsylvania to appear for and confess
judgment against the Buyer for all amounts for which the Buyer may be or become
liable to MAID or its assignee under this Agreement, as evidenced by an
affidavit signed by an officer of MAID or its assignee setting forth the amounts
then due plus reasonable attorney fees, 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. A copy of this Agreement shall be his sufficient warrant.
(g) In any amicable action of ejectment brought hereunder or any
suit or amicable action brought for the Purchase Price or any sums due
hereunder, MAID 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 of the truth of said Agreement, and if such copy 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. The Buyer also
waives the benefit of any laws now or hereafter which might authorize the stay
of any execution to be issued or any judgment recovered hereunder or the action
of any property from levy or sale.
(i) As long as the Buyer is in default, all interest of the Buyer In
the premiums or dividends upon any insurance policies provided for herein, as
well as any rebates on taxes or assessments' imposed upon the Premises, are
hereby assigned to MAID. MAID does not assume general liability for the
repayment of any of the Notes or Mortgages (except to PIDA), or for costs, fees,
penalties, taxes, interest, commissions, charges, insurance or other payments
therein recited.
23. CUMULATIVE RIGHTS. No right or remedy herein conferred upon or
reserved to MAID is intended to be exclusive of any other right or remedy
provided herein or by law, but each shall be cumulative and in addition to every
other right or remedy herein given or now or hereafter existing in law or in
equity or by statute, and may be pursued singly, successively or together at the
discretion of MAID, and may be exercised as often as the occasion shall occur.
24. EFFECT OF WAIVER OR FORBEARANCE. It is also agreed that no waiver by
MAID or any breach by the Buyer shall be a waiver of any subsequent breach of
any obligation, agreement or covenant, nor shall any forbearance by MAID of its
rights or remedies be a waiver in respect to that or any other breach.
25. INDEMNIFICATION OF MAID AND WAIVER OF CLAIMS. The Buyer recognizes and
acknowledges that MAID has acquired title to the Premises and is participating
in the development of the Project pursuant hereto, solely for the benefit of the
Buyer. The Buyer covenants and agrees to totally and absolutely protect,
exonerate, defend, indemnify and save MAID harmless from and against any and all
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costs or liabilities which may arise or have arisen out of MAID's ownership of,
or acquisition of, its interest in the Premises, and from and against any and
all claims, loss, damage, costs, expense or liability based upon personal injury
or death or loss or damage to property suffered or incurred by any person, firm,
corporation or partnership (including parties hereto), and arising out of or
attributable to the construction, presence, condition, use, operation,
maintenance, any act, failure to act, conditions any happening or occurrence
whatsoever, in and about, or on the Premises or Project Facilities. The Buyer
agrees, additionally, that Buyer will not join MAID as a third-party defendant
in any legal action alleging costs or liabilities due to the aforesaid which may
at any time be instituted by any party against the Buyer. MAID shall give
written notice to the Buyer of any claim asserted against MAID, which, if
sustained, may result in a liability on the Buyer hereunder; provided, however,
that failure on the part of MAID to give such notice shall not relieve the Buyer
from Buyer's obligation to protect, defend, indemnify, exonerate and save
harmless as aforesaid, except to the extent that failure to give such notice
results in failure of coverage of the Buyer's liability insurance or causes
actual loss or damage to the Buyer and, in case any action or proceeding be
brought against MAID by reason of such claim, the Buyer, upon notice from MAID,
covenants and agrees to resist or defend such action or proceeding by counsel
satisfactory to MAID; provided, however, that MAID will cooperate and assist in
the defense of any such action or proceeding, if reasonably requested to do so
by the Buyer, at the expense of the Buyer. The Buyer will not make any claim
against MAID, nor shall MAID be liable for damage or injury to any property of
the Buyer or any person on or using the Premises or any part thereof due to any
cause whatsoever, nor will the Buyer resist MAID's claim to indemnification on
grounds that the right to such claim is not set forth herein with sufficient
clarity or particularity since the Buyer acknowledges that it is the intention
of this Agreement to provide a total and absolute indemnity to MAID. The
provisions of this Paragraph apply not only to MAID directly, but also to any
member, officer, agent, attorney, employee, successor or assignee thereof. The
Buyer acknowledges that all such liability of MAID, member, officer, agent,
attorney, employee, successor or assignee is and has been released as a
condition of and as consideration for the execution and' delivery of this
Agreement.
26. LIMITATION OF MAID'S LIABILITY. Notwithstanding any provision or
obligation to the contrary herein before or hereinafter set forth, the liability
of MAID shall be limited to its interest in the Premises, improvements thereon,
the rents, issues and profits therefrom, and the lien of any judgment shall be
restricted thereto.
27. DEFAULT BY MAID AND BUYER'S REMEDIES. In the event of any default by
MAID in any of the covenants or agreements of MAID contained herein, the Buyer's
remedies shall be limited to:
(a) An accounting by MAID for all funds received hereunder to
determine whether MAID has properly disposed of the funds paid to MAID in
connection herewith; and
(b) The right of the Buyer to compel specific performance where such
remedy is available under law or equity, provided the Buyer provides MAID with
the funds for costs and expenses required for the MAID's performance, except to
the extent the same specifically are stated herein to be the obligation of MAID.
In no event shall, the Buyer have recourse against MAID for damages. No recourse
shall be had for any obligation hereunder against any member, officer, attorney,
agent, employee,
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successor or assignee of MAID, all such liability being released as a condition
of and an consideration for the execution and delivery of this Agreement.
28. ANTI-DISCRIMINATION AND ANTI-POLLUTION PROVISIONS. The Buyer covenants
and agrees that during the term of this Agreement, while the PIDA loan is
outstanding and unpaid, the Buyer will not discriminate against any employee or
against any applicant for employment because of race, religion, color, national
origin, sex or age. This provision, which is more fully set forth on Exhibit "B"
attached hereto and made a part hereof, shall include but not be limited to the
following: employment upgrading, demotion or transfer; recruitment or
recruitment advertisement, layoff or termination rates of pay or other forms of
compensation; and selection of training including apprenticeship. The Buyer
further covenants and agrees that during the term of this Agreement, while the
PIDA loan is outstanding and unpaid, the Buyer will comply with applicable
governmental anti-pollution regulation and standards applicable to the Premises
and buildings and Improvements constructed thereon. The Buyer further covenants
and agrees that it will provide in all leases of the Premises or any part
thereof that the lessee will covenant and agree to assume all of the Buyer's
obligations, and covenants immediately hereinabove in respect to
anti-discrimination and applicable governmental anti-pollution regulations and
standards applicable to the Premises and the buildings and Improvements
constructed thereon.
29. RIGHT TO LEASE AND ASSIGNMENT OF LEASES. The Buyer shall have the
right to lease the Premises or any portion thereof providing, however, such
leases shall contain the aforementioned anti-discrimination and anti-pollution
provisions hereinabove set forth and, further such leases will be made only to
such responsible tenants who are industrial and commercial occupants as
hereinafter required under Section 28 and approved by PIDA. Any lease or
assignment of lease made without such approval shall be void. The Buyer assigns
to MAID, as additional security for the Buyer's obligations hereunder, any and
all leases and entered into by the Buyer for all or any part of the Premises and
all rentals therefrom. MAID if no way assumes or will assume any of the
obligations of the Buyer as lessor. Until the occurrence of an event of default
hereunder and until MAID directs otherwise, the Buyer shall have the right to
collect all rents under the leases.
30. BUYER'S USE OF PREMISES. The Buyer covenants that the entire Premises
shall be used for such purposes as are lawful under the Pennsylvania Industrial
Development Authority Act, Act No. 537 of May 17, 1956, P.L. 1609, as amended,
and covenants that as to any portion of the Premises, Buyer will lease only to a
"responsible tenant" within the meaning of the provisions of said Act, and,
prior to execution of any lease of any portion of the Premises, the Buyer will
provide MAID with a written certification that the proposed tenant is such
responsible tenant".
31. INTEGRITY, RESPONSIBILITY AND AMERICANS WITH DISABILITIES ACT
COMPLIANCE. Buyer covenants and agrees that during the term of this Agreement
and while the PIDA loan is outstanding and unpaid, Buyer shall at all times
comply with the provisions of the following: the Integrity Provisions set forth
in Exhibit "C" attached hereto and made a part hereof, the Responsibility
Provisions set forth in Exhibit "D" attached hereto and made a part hereof, and
the Americans with Disabilities Act Provisions set forth in Exhibit "E" attached
hereto and made a part hereof.
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32. CONVEYANCE UPON PAYMENT OF THE PURCHASE PRICE. Upon payment of the
Purchase Price and all amounts to be paid by the Buyer under the terms of this
Agreement and the satisfaction of any of the Notes, and provided that the Buyer
is not in default of any provisions of this Agreement, MAID will deliver to the
Buyer a special warranty deed conveying to the Buyer good and marketable title
to the Premises, as such Premises then exist, subject to the following: (i)
those liens and encumbrances, if any, to which the title to the Premises were
subject when the same was conveyed to MAID; (ii) those liens and encumbrances
created by the Buyer or to the creation or suffering of which the Buyer
consents; (iii) those liens and encumbrances resulting from failure of the Buyer
to perform or observe any of the agreements on Buyer's part contained herein;
(iv) the liens for real estate taxes and special assessments not then
delinquent; and (v) such minor irregularities, encumbrances and rights-of-way as
would normally exist with respect to title to properties similar in character to
the Premises and which do not in the aggregate materially impair title to the
Premises for the purpose for which the same is acquired by the Buyer. The Buyer
agrees to pay all charges and costs, including but not limited to real estate
transfer taxes which are or may be required in connection with the transfer of
MAID's interest in the Premises to the Buyer.
As a condition of MAID's conveying title to the Buyer, the Buyer shall
indemnify MAID against any claims which are not effectively covered by liability
insurance arising out of MAID's ownership of the Premises.
33. ASSIGNMENT BY BUYER. Any assignment of this Agreement by the Buyer
without the prior written consent of MAID, PIDA, and any other Mortgagees and
holders of the Notes shall be void and of no affect. Furthermore, the Buyer
shall not, during the term of this Agreement, transfer control or ownership of
Buyer's interest in the Premises or Project Facilities, in whole or in part,
without the prior written consent of MAID, PIDA, and any other Mortgagee and
holders of the Notes. This restriction on assignment by the Buyer shall be
applicable to the Buyer's assignees and successors.
34. ASSIGNMENT BY MAID AND RECORDING. Immediately following the execution
of this Agreement, MAID shall assign its interest herein to PIDA and the Buyer
acknowledges notice of such assignment. A memorandum of this Agreement shall be
recorded in the Office of the Recorder of Deeds of Xxxxxxxxxxxx County,,
Pennsylvania. The Buyer hereby agrees to pay directly to the Mortgagee all
monies payable hereunder by the Buyer in accordance with such assignments.
Whenever the Buyer is required herein to obtain the consent of MAID, written or
otherwise, the Buyer shall also obtain the consent of the Mortgagees and holders
of the Notes.
35. NOTICES. All notices required or provided for herein shall be in
writing and sent by registered or certified mail. Subject to any change of
notice to the party to be charged with such notice, notice to MAID shall be
addressed as follows:
Xxxxxxxxxxx Xxxx Xxxxxxxxxx
Xxxxxxxxxxx Xxxxxxxxxxx
Xxxxx 000
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
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and notice to the Buyer shall be addressed as follows:
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
and copies of all notices shall be sent to the Mortgagees addressed as follows:
The Pennsylvania Industrial Development Authority
Department of Commerce
000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
35. SURVIVAL OF CONDITIONS, REPRESENTATIONS AND COVENANTS. All conditions,
representations and covenants of the Buyer contained herein which by nature,
empress or implied, involve performance in any particular manner after the
delivery of MAID'S deed or assignment of MAID's right, title and interest in the
Premises, which cannot be ascertained to have been performed until after
delivery of the deed or assignment, shall survive said delivery of the deed or
assignment of interest.
36. ILLEGAL, ETC., PROVISIONS DISREGARDED. In case any provision of this
Agreement shall for any reason be held to be illegal, invalid or unenforceable
in any respect, this Agreement shall be construed as if such provisions had
never been contained herein.
37. INSPECTION. The Buyer shall, at all reasonable times, provide MAID,
Mortgagees and holders of the Notes and all assignees hereof with full and free
access to the Premises and Project~ Facilities and all plans, specifications,
drawings and records thereof for inspection.
38. CONTROLLING LAW. This Installment Sale Agreement shall be deemed to be
a contract made in Pennsylvania and governed by Pennsylvania law.
39. AMENDMENTS. This Agreement may not be amended except by an instrument
in writing signed by the parties hereto and consented to by all of the
Mortgagees and holders of the Notes and all assignees hereof.
40. HEADINGS AND CAPTIONS. The headings and captions of this Agreement are
for convenience of reference only and shall not control or affect the meaning or
the construction of any portion hereof.
41. ASSIGNS. This Agreement and all terms and conditions hereof shall
inure to the benefit of and bind the parties hereto, their and each of their
successors, heirs and assigns, to the extent that assignments are permitted
herein.
42. COUNTERPARTS. This Agreement is being executed in several
counterparts, all of which constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal the day and year first above written.
ATTEST: MONROEVILLE AREA INDUSTRIAL
DEVELOPMENT CORPORATION (MAID)
_________________________ By:_______________________________
Secretary President
ATTEST: HALMAR ROBICON GROUP, INC.
A Pennsylvania Corporation
_________________________ By___________________________(SEAL
Secretary
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EXHIBIT A
ALL that certain tract of land situate in Upper Xxxxxxx Township, Xxxxxxxxxxxx
County, Pennsylvania, being Lot No. 6 in the Xxxxxxxxxxxx County Business and
Research Park, Phase I Plan of Lots, as recorded in the Recorder's Office of
Xxxxxxxxxxxx County, Pennsylvania, in Plan Book Volume 90, Pages 563-570, and
Lot No. I in the Xxxxxxxxxxxx-County Business and Research Park, Phase III Plan
of Lots, as recorded in the Recorder's Office of Xxxxxxxxxxxx County,
Pennsylvania, in Plan Book Volume 90, Page 1467.
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EXHIBIT B
SELLER/BUYER INTEGRITY PROVISIONS
1. Definitions.
a. CONFIDENTIAL INFORMATION means information that is not public
knowledge, or available to the public on request, disclosure of which would give
an unfair, unethical, or illegal advantage to another desiring to contract with
the Commonwealth.
b. CONSENT means written permission signed by a duly authorized officer
or employee of the Commonwealth, provided that where the material facts have
been disclosed, in writing, by prequalification, bid, proposal, or contractual
terms, the Commonwealth shall be deemed to have consented by virtue of execution
of this Agreement.
c. 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.
d. 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, holding any position of management.
e. GRATUITY means any payment of more than nominal monetary value in the
form of cash, travel, entertainment, gifts, meals, lodging, loans,
subscriptions, advances, deposits of money, services, employment, or contracts
of any kind.
2. The 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.
3. The Seller/Buyer shall not disclose to others any confidential
information gained by virtue of this Agreement.
4. The Seller/Buyer shall not, in connection with this or any other
agreement with the Commonwealth, directly or indirectly offer, confer, or agree
to confer any pecuniary benefit on anyone as consideration for the decision,
opinion, recommendation, vote, other exercise of discretion, or violation of a
known legal duty by any officer or employee of the Commonwealth.
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5. The Seller/Buyer shall not, in connection with this or any other
agreement with the Commonwealth, directly or indirectly of 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.
6. 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.
7. 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.
8. The Seller/Buyer, upon being informed that any violation of these
provisions has occurred or may occur, shall immediately notify the Commonwealth
in writing.
9. The Seller/Buyer, by execution of this Agreement and by the
submission of any bills or invoice-, for payment pursuant thereto, certifies and
represents that he has not violated any of these provisions.
10. 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.
11. 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.
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EXHIBIT "C"
SELLER/BUYER RESPONSIBILITY PROVISIONS
1 Seller/Buyer certifies that it is not currently under suspension or
debarment by the Commonwealth, any other state, or the federal government.
2. 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 if this contract or any extensions or
renewals thereof, the Commonwealth shall have the right to require the
Seller/Buyer to terminate such subcontracts.
3. 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.
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EXHIBIT "D"
AMERICANS WITH DISABILITIES ACT PROVISIONS
During the term of this contract, the Seller/Buyer agrees as follows:
1. Pursuant to federal regulations promulgated under the authority of
The Americans with Disabilities Act, 28 C.F.R. Section 35.101 et seq., the
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 11 of The Americans with Disabilities Act
which are applicable to the benefits, services, programs, and activities
provided by the Commonwealth of Pennsylvania through contracts with outside
contractors.
2. The 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 1 above.
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