EXHIBIT 4.5
CONSENT, SUBORDINATION AND
ASSUMPTION AGREEMENT
THIS AGREEMENT is made this 22nd day of February, 1995, effective as of
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February 22, 1995, by RESPIRONICS, INC., a corporation with an address at 1001
Murry Ridge Road, Murrysville, Pennsylvania 15668 (the "Industrial Occupant"),
and CENTRAL WESTMORELAND DEVELOPMENT CORPORATION, a Pennsylvania nonprofit
corporation with an address at Route 30 West, Toll Gate Hill Road, Greensburg,
Pennsylvania 15601 (the "Borrower"), in favor of THE PENNSYLVANIA INDUSTRIAL
DEVELOPMENT AUTHORITY, a public body corporate and politic with an address at
481 Forum Building, Harrisburg, Pennsylvania 17120 ("PIDA").
ARTICLE I
Background
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Section 1.01 After placement of the Mortgage, the Borrower shall convey to
the Industrial Occupant certain premises situate in Westmoreland County,
Pennsylvania, as more particularly described on Exhibit A attached hereto and
made a part hereof (the "Premises"), subject to, and with the express
assumption and agreement of the Industrial Occupant to pay and perform any and
all obligations of the Borrower to PIDA under a certain Open-End Supplement to
Second Mortgage from Borrower to PIDA, effective as of the same date as the
effective date hereof and to be recorded in the Office of the Recorder of Deeds
of the county wherein the Premises are located (the "Mortgage"), which Mortgage
secures a loan in the amount of One Million One Hundred Thirty-Two Thousand
Seven Hundred Sixty-One Dollars ($1,132,761.00) from PIDA to the Borrower (the
"Loan"), evidenced by a note from the Borrower to PIDA dated the same date as
the effective date hereof (the "Note") and made pursuant to a Loan Agreement
dated the same date as the effective date hereof between the Borrower and PIDA
(the "Loan Agreement"), providing for the financing by PIDA of an industrial
development project on the Premises to be occupied by the Industrial Occupant.
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Section 1.02 The Industrial Occupant has reviewed fully with separate legal
counsel for the Industrial Occupant the Loan Agreement, Note and Mortgage and
consents thereto and desires to assume all obligations and liabilities of the
Borrower thereunder and agrees to pay to PIDA for the account of the Borrower
the debt evidenced by the Loan Agreement and Note and secured by the Mortgage.
To induce PIDA to make the Loan and as a material and substantive
inducement to the Borrower to execute and deliver the Note, for the account of
the Industrial Occupant, to borrow proceeds of the Loan for the benefit of and
for the account of the Industrial Occupant, and to execute the Mortgage and the
Loan Agreement, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the Industrial Occupant, intending to be legally
bound, represents and warrants to PIDA and the Borrower and agrees with PIDA and
the Borrower as follows:
ARTICLE II
Representations and Warranties of the Industrial Occupant
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The Industrial Occupant makes the following representations and warranties to
PIDA and the Borrower:
Section 2.01 Corporate Organization. The Industrial Occupant is a duly
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organized and validly existing corporation in good standing under the laws of
Delaware. If incorporated in a jurisdiction other than the Commonwealth of
Pennsylvania, Industrial Occupant is duly qualified to conduct business in the
Commonwealth of Pennsylvania as a foreign corporation. The Industrial Occupant
has full corporate power and authority to own its property and assets and to
transact the business in which it is engaged or currently proposes to engage,
including without limitation the business and operations referred to in the
Application.
Section 2.02 Power and Authority. The Industrial Occupant has the corporate
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power to execute and deliver, or to assume, as the case may be, and to carry
out, the terms and provisions hereof and of each of the Loan Documents to which
it is a party or the terms of which it has assumed hereunder, and to carry on
the business and operations referred to in the Application. The Industrial
Occupant has taken all necessary corporate action (including obtaining any
consent of stockholders required by law or by its Articles or Certificate of
Incorporation or bylaws) to authorize the execution and delivery, or the
assumption, as the case may be, and the performance, by
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the Industrial Occupant, of this Agreement and each of the Loan Documents to
which it is a party or the terms of which the Industrial Occupant has assumed,
the incurrence of the obligations of the Industrial Occupant hereunder and
thereunder, and the carrying on of the business and operations stated in the
Application. This Agreement and each of the Loan Documents to which the
Industrial Occupant is a party or the terms of which the Industrial Occupant has
assumed constitute the duly authorized, legal and valid and binding obligations
of the Industrial Occupant, except as the enforceability thereof may be limited
by bankruptcy, insolvency or other substantially similar laws of general
application relating to or affecting the enforcement of creditors' rights or by
general principles of equity.
Section 2.03 Necessary Approvals. Except such approvals, if any, as are
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listed or described in Exhibit 2.03 hereto, which have been obtained, are in
full force and effect and evidence of which has been furnished to PIDA, no
approval is required to authorize, or is otherwise required in connection with,
(i) the execution and delivery, or the assumption, as the case may be, by the
Industrial Occupant of, (ii) the performance, by the Industrial Occupant, of, or
(iii) the legality, validity, binding effect or enforceability of the
obligations of the Industrial Occupant under, this Agreement or the Loan
Documents to which the Industrial Occupant is a party or the terms of which it
has assumed, including without limitation the making of any of the payments
provided for herein or therein, the absence of which approval could have a
material adverse effect on the ability of the Industrial Occupant to make
payments or perform and observe its other material obligations hereunder or
thereunder. The Industrial Occupant is not aware of any circumstances as a
result of which any approval heretofore granted may be revoked or cancelled.
Section 2.04 Loan Documents Consistent With Law and Agreements. The
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Industrial Occupant is not in default under any agreement to which it is a party
or by which it is bound which default could have a material adverse effect on
the ability of the Industrial Occupant to make payments or perform and observe
its other material obligations under this Agreement or any of the Loan Documents
to which it is a party or the terms of which it has assumed or to carry on
operations at the Project as stated in the Application. The execution and
delivery, or the assumption, as the case may be, and the performance, by the
Industrial Occupant, of this Agreement and the Loan Documents to which the
Industrial Occupant is a party or the terms of which it has assumed, the
consummation of the transactions contemplated in this
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Agreement and the Loan Documents, and the compliance by the Industrial Occupant
with the terms and provisions of this Agreement and the Loan Documents to which
it is a party or the terms of which it has assumed, and the carrying on of
operations at the Project as stated in the Application, do not (i) contravene
any provision of law, statute, rule or regulation to which the Industrial
Occupant is subject or any judgment, decree, franchise, order or permit
applicable to the Industrial Occupant or (ii) violate or conflict with any
provision of the Articles or Certificate of Incorporation or bylaws of the
Industrial Occupant or conflict with, or result in any breach of, any of the
terms, covenants, conditions or provisions of, or constitute a material default
under, or result in the creation or imposition of (or the obligation to create
or impose) any lien upon any of the assets or revenues of the Industrial
Occupant pursuant to the terms of, any indenture, mortgage, deed of trust,
agreement or other instrument to which the Industrial Occupant is a party or by
which it is bound or to which it may be subject.
Section 2.05 Litigation. Except for such litigation, if any, as is listed or
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described in Exhibit 2.05 hereto, there are no court actions, suits or
proceedings, and no proceedings before any arbitral tribunal or by or before any
governmental commission, board, bureau or other administrative agency, pending
or (to the knowledge of the Industrial Occupant) threatened against the
Industrial Occupant or any affiliate which could have a material adverse
effect on the financial condition or operations of the Industrial Occupant or
the ability of the Industrial Occupant to perform its obligations under this
Agreement or the Loan Documents to which it is a party or the terms of which it
has assumed, or to carry on operations at the Project as stated in the
Application.
Section 2.06 Project Agreements. The Industrial Occupant has furnished to
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PIDA originals or true and correct copies of all material written agreements
relating to the acquisition, construction or financing of the Project (including
any amendments thereto) (collectively, the "Project Documents") or, to the
extent PIDA shall have permitted summaries of Project Documents to be furnished
in lieu of the actual documents, fair and accurate summaries of the Project
Documents. All Project Documents are in full force and effect. There are in
existence no agreements, laws, rules, regulations, orders, judgments,
injunctions, decrees, resolutions, determinations, awards or other instruments
whatsoever amending, supplementing or affecting, or
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affecting the rights and obligations of the Industrial Occupant under, the Loan
Documents or the Project Documents, in a manner which could have a material
adverse effect on the ability of the Industrial Occupant to make payments or to
perform and observe its other material obligations under, this Agreement, or
under the Project Documents and/or Loan Documents to which it is a party or by
which it is bound or the terms of which it has assumed.
Section 2.07 Prepayments. The Industrial Occupant has not prepaid any amount
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payable to the Borrower.
Section 2.08 No Default For Borrowed Money. No default with respect to any
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agreement pursuant to which the Industrial Occupant has borrowed money or
(except for (i) endorsement of negotiable instruments in the ordinary course of
business or (ii) guaranties in the ordinary course of business of travel or
relocation expenses of employees in non-material amounts) guaranteed the
obligations of others has occurred and is continuing as of the date hereof.
Section 2.09 Financial Statements and Financial Condition. All financial
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statements of the Industrial Occupant (including all related notes) and all
supplementary financial information delivered to PIDA fairly present what they
purport to present as of the dates and for the respective fiscal periods
presented, and were prepared in accordance with generally accepted accounting
principles consistently applied, except as disclosed in such financial
statements or in Exhibit 2.09 hereto. The Industrial Occupant has no material
liabilities, direct or indirect, fixed or contingent, as of the date of such
financial statements which are not reflected therein. Except as disclosed in
Exhibit 2.09 hereto and consented to by PIDA there has been no material adverse
change in the financial condition of the Industrial Occupant from that
disclosed in the most recent annual financial statements delivered to PIDA
prior to the initial approval of the Loan by the PIDA Board.
Section 2.10 Taxes. The Industrial Occupant has filed all tax returns and
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reports required to be filed by it with the United States of America and the
Commonwealth of Pennsylvania, and, where the failure to file such returns or
reports may have a material adverse effect on the financial condition or results
of operations of the Industrial Occupant, any other jurisdiction having the
power to require filing of such returns or reports, through the date hereof and
is current in the payment of all monies due to such jurisdictions, whether as
taxes or otherwise, unless the obligation to file such return or report or pay
such tax is being contested by an appropriate administrative or judicial appeal
or proceeding being conducted diligently in good faith. With respect to any
such appeal or proceeding to which the United
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States of America or the Commonwealth of Pennsylvania is a party, the Industrial
Occupant has posted or caused to be posted a bond or other security satisfactory
to PIDA in an amount which is at least equal to the sum which is the subject of
the appeal or proceeding, together with all interest, costs, and charges
relating thereto.
Section 2.11 Employee Benefits.
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(a) Any employee pension benefit plans and employee welfare benefit
plans, collectively referred to as employee benefit plans, within the meaning of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA")
maintained by the Industrial Occupant or any subsidiary of the Industrial
Occupant ("Subsidiary"), comply in all material respects with the reporting and
disclosure and fiduciary responsibility provisions of Title I of ERISA.
(b) Except as disclosed in Exhibit 2.11 hereto, no "prohibited
transaction" (as defined in either ERISA or Section 4975 of the Internal Revenue
Code (the "Code")) potentially having a material adverse effect on the
continuing operations of the Industrial Occupant, has occurred with respect to
any employee benefit plan sponsored or maintained by the Industrial Occupant or
any Subsidiary or (except with respect to any multi-employer pension or benefit
plan to which the Industrial Occupant or any Subsidiary contributes, as to which
no representation or warranty is expressed) to which the Industrial Occupant or
any Subsidiary contributes, nor is any person contractually bound to enter into
any such prohibited transaction.
(c) Except as disclosed in Exhibit 2.11 hereto, the Industrial Occupant
and its Subsidiaries have filed or (except with respect to any multi-employer
pension or benefit plan to which the Industrial Occupant or any Subsidiary
contributes, as to which no representation or warranty is expressed) caused to
be filed on a timely basis all returns, reports, statements, notices,
declarations, and other documents required by any governmental agency, whether
local, state or federal (including without limitation the Internal Revenue
Service, the Department of Labor, the Pension Benefit Guaranty Corporation and
the Securities and Exchange Commission) with respect to each employee benefit
plan sponsored or maintained by the Industrial Occupant or any Subsidiary or to
which the Industrial Occupant or any Subsidiary contributes, where a failure to
file may potentially have a material adverse effect on the continuing operations
of the Industrial Occupant.
(d) Except as described in Exhibit 2.11 hereto, and except for any multi-
employer pension or benefit plan not maintained or sponsored by
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Industrial Occupant or its Subsidiaries but to which Industrial Occupant or its
Subsidiaries contributes, as to which no representation or warranty is
expressed, (i) all employee pension benefit plans maintained or sponsored by
the Industrial Occupant and each Subsidiary, or to which the Industrial
Occupant or any Subsidiary contributes, meet, as of the date hereof, the
minimum funding standards of Section 302 of ERISA and Section 412 of the Code,
and (ii) no "reportable event", as defined in Section 4043 of ERISA,
potentially having a material adverse effect on the continuing operations of
the Industrial Occupant, has occurred with respect to any such plan.
(e) The foregoing representations and warranties of the Industrial
Occupant as to itself and its Subsidiaries set forth in this Section are
accurate not only with respect to the Industrial Occupant and each Subsidiary
but with respect to each other member of any "controlled group of corporations"
or any "group of trades or businesses under common control" (as such terms are
defined in Section 414 of the Code) of which the Industrial Occupant or any
Subsidiary is a member.
Section 2.12 Environmental Matters. With respect to the Premises, and with
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respect to any other facility as defined in The Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, ("CERCLA") (a
"facility") where a breach of any of the representations and warranties
contained in this section could potentially have a material adverse effect on
the financial condition or operations of the Industrial Occupant:
(a) Except as described in Exhibit 2.12 hereto, to the best knowledge of
Industrial Occupant after Due Inquiry, neither Industrial Occupant nor any of
its Affiliates (as defined below) is in violation of CERCLA, the Superfund
Amendments and Reauthorization Act of 1986, The Resource Conservation and
Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of
1984, The Clean Water Act, The Toxic Substances Control Act, The Clean Air Act,
the Pennsylvania Hazardous Sites Cleanup Act, the Pennsylvania Solid Waste
Management Act, the Pennsylvania Storage Tank and Spill Prevention Act, the
Pennsylvania Worker and Community Right to Know Act, the Pennsylvania Clean
Streams Law, or any rule or regulation promulgated pursuant to any of the
foregoing statues, or any other applicable law, statute, rule, regulation or
ordinance regulating the manufacture, use, possession, discharge or disposal of
substances injurious to the natural environment or to human health, whether
federal, state or local (collectively, as from time to time amended, the
"Environmental Laws");
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(b) Except as described in Exhibit 2.12 hereto, to the best knowledge of
Industrial Occupant after Due Inquiry, neither the Industrial Occupant nor any
Affiliate, or officer, employee, agent or independent contractor of the
Industrial Occupant has arranged, by contract, agreement or otherwise, (i) for
the disposal or treatment of, or (ii) with a transporter for the transport for
disposal or treatment of, any Hazardous Material owned, used or possessed by
the Industrial Occupant or any Affiliate, in a manner which violates any
applicable Environmental Laws;
(c) Except as described in Exhibit 2.12 hereto, to the best knowledge of
the Industrial Occupant after Due Inquiry, there are no Hazardous Materials now
present on the Premises that may require remediation under any Environmental
Laws;
(d) Except as described in Exhibit 2.12 hereto, neither (i) the
Industrial Occupant nor (ii) in connection with the operations of the Industrial
Occupant, any Affiliate of the Industrial Occupant, is an "operator" or, to the
best knowledge of Industrial Occupant after Due Inquiry, an "owner," (each as
defined in CERCLA) of a facility at which Hazardous Materials were disposed of;
(e) Except as described in Exhibit 2.12 hereto, to the best knowledge of
Industrial Occupant after Due Inquiry, neither (i) the Industrial Occupant nor
(ii) in connection with the operations of the Industrial Occupant, any Affiliate
of the Industrial Occupant, "owned" or "operated" (as defined in CERCLA) any
facility containing Hazardous Materials at the time such Hazardous Materials
were disposed of;
(f) For purposes of this Agreement: "Affiliate" shall mean any
individual, corporation, partnership, joint venture, trust, or unincorporated
organization, or a government or any agency or political subdivision thereof
(collectively, a "Person") which directly or indirectly controls, or is
controlled by, or is under common control, with, the Industrial Occupant,
including, without limitation, any record or beneficial holder of more than 25%
of any class of the Industrial Occupant's equity securities and any executive
officer or person employed or engaged in a senior management capacity of
Industrial Occupant. "Control" shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise. "Due Inquiry" shall mean that the Industrial Occupant,
consistent with good commercial or customary practice, has caused to be made by
a responsible officer or agent of the Industrial
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Occupant appropriate inquiry among those directors, officers, employees, agents,
accountants and attorneys for the Industrial Occupant who might reasonably be
expected to have knowledge of the particular matter and, when such matter
includes the condition of the Premises or other facility, has further undertaken
appropriate inquiries into the present and past ownership and uses thereof.
"Hazardous Materials", shall include, without limitation, asbestos (including
asbestos in friable form), polychlorinated biphenyls, petroleum products,
flammable or explosive materials, radioactive materials, hazardous materials,
hazardous waste, hazardous or toxic substances or related materials, each as
defined under or pursuant to any Environmental Law.
Section 2.13 Bankruptcy, etc. Except as disclosed in Exhibit 2.13 hereto,
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neither Industrial Occupant nor any Affiliate of Industrial Occupant has within
seven (7) years prior to the date hereof (i) filed any voluntary petition for
relief under the U.S. Bankruptcy Code or any state insolvency law or any law of
similar import of any nation or political subdivision thereof (any such law, a
"Bankruptcy Law"); (ii) had any involuntary petition filed against it under any
Bankruptcy Law which was not dismissed within 60 days subsequent to the filing
thereof; (iii) was adjudicated bankrupt or insolvent under any Bankruptcy Law;
(iv) entered into any assignment or composition for the benefit of creditors;
(v) entered into any transaction voidable under the Uniform Fraudulent
Conveyance Act or any law of similar import; (vi) admitted its inability to pay
its debts as such debts come due; or (vii) sought to take advantage of any
moratorium law then in effect.
Section 2.14 Criminal Convictions. Except as disclosed in Exhibit 2.14
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hereto, neither Industrial Occupant, nor to Industrial Occupant's best knowledge
after Due Inquiry, any controlling shareholder (if Industrial Occupant is a
corporation required to file periodic reports under the U.S. Securities Exchange
Act of 1934, as amended from time to time (the "Exchange Act")), or any record
or beneficial holder of more than 10% of any class of Industrial Occupant's
equity securities (if Industrial Occupant is not required to file periodic
reports under the Exchange Act), director, officer or person employed or
engaged by Industrial Occupant in a senior management capacity or as a manager
or comptroller of the Project, has been convicted by any court of any felony or
any misdemeanor involving theft, dishonesty, deception, false swearing, or the
filing or submission of any false or misleading information to any agency of
government.
Section 2.15 Occupancy Agreements. Except for the agreements listed on
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Exhibit 2.15 hereto, there exist no agreements between the Industrial Occupant
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and any other person, corporation or other entity regarding use or occupancy of
any portion of the Premises. The Industrial Occupant has requested the Borrower
to acquire title to the Premises and convey the Premises to Industrial Occupant
as of the date hereof by the Deed solely for the purpose of obtaining the Loan,
all benefit of which will be received by the Industrial Occupant. Such title as
the Borrower holds to the Premises is solely as security for the Loan being made
by PIDA to Borrower, exclusively for Industrial Occupant's benefit. Borrower
has not had, does not have, and will not have any right to occupy or access to
the Premises or control or right to control any of the operations of Industrial
Occupant thereon.
Section 2.16 Permits. The construction of the Project as provided in the
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Application, the use of the Project for the purposes stated in the Application,
and the operation of the Project, comply in all respects with, and are lawful,
permitted and conforming uses under, all applicable building, fire, safety,
subdivision, zoning, sewer, environmental, securities, health, insurance and
other laws, ordinances, rules, regulations and plan approval conditions of any
governmental, public or other body or authority having jurisdiction over the
Project except where failure to so comply will not have a material adverse
effect on operations to be carried on at the Project.
Except for (i) a permit for occupancy of the Project to be issued by the
Pennsylvania Department of Labor and Industry (where the Project is not complete
as of the date hereof) and (ii) the permits specifically identified in Exhibit
2.16 hereto, the Industrial Occupant has received all material administrative
permits required for the operations to be carried on at the Project, including
without limitation zoning permits and permits under all Environmental Laws.
Except as specifically identified on Exhibit 2.16 hereof, the Industrial
Occupant, after Due Inquiry, has no reason to believe that any required permits
not yet obtained will not be timely issued in the ordinary course of business
of the issuing agency.
Section 2.17 Necessary Technology, etc. Except as stated in Exhibit 2.17
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hereto, to the best knowledge of the Industrial Occupant after Due Inquiry, the
Industrial Occupant has possession of or ready access to all resources it will
require for operations at the Project, including without limitation working
capital, raw materials, labor (possessing necessary skills), machinery,
equipment, technology, communications, patents, trademarks and other
intellectual property.
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Section 2.18 No Violation. Except as disclosed in Exhibit 2.18 hereto, to
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the best knowledge of the Industrial Occupant after Due Inquiry there is no
violation, nor is there notice or other record of any violation, of any zoning,
subdivision, environmental, building or other statute, ordinance, regulation,
restrictive covenant or other restriction applicable to the Project.
Section 2.19 No Liens. There exist no liens, encumbrances or other charges
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against the Project (including statutory and other liens of mechanics, workers,
contractors, subcontractors, suppliers, taxing authorities and others), except
the Mortgage and the liens listed on Exhibit 2.19 hereto; and the Industrial
Occupant has not made a contract or arrangement of any kind, the performance of
which by the other party thereto could give rise to a lien on the Project by
operation of law or otherwise except such as are adequately and fully covered by
PIDA's title insurance insuring the lien of the Mortgage.
Section 2.20 Utilities and Access. All utility services necessary for
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construction and operation of the Project, including water supply, storm and
sanitary sewer facilities, gas, electricity and telephone facilities are, or
prior to the projected Project completion date will be, available within the
boundaries of the Project; and all roads necessary for the full utilization of
the Project for their intended purposes either have been completed or the
necessary rights-of-way therefor have been acquired by the appropriate
governmental authority or others or have been or will, prior to the projected
date of occupancy of the Project, be dedicated to public use and accepted by
such governmental authority, and all necessary steps have been taken by the
Industrial Occupant and all such governmental authority or others to assure
complete construction and installation thereof by the projected date of
occupancy of the Project.
Section 2.21 Information Furnished Accurate. To the best knowledge of
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Industrial Occupant after Due Inquiry, all information supplied directly or
indirectly by the Industrial Occupant to PIDA on or prior to the date hereof,
including without limitation the Application, as of the respective dates of such
materials were, and as of the date hereof, are true and accurate in all material
respects and did not and do not contain any untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein not
misleading, provided that (i) the statements therein describing documents and
agreements are summaries only and such summaries are
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qualified by reference to such documents and agreements, (ii) financial
statements and other statements expressly effective as of a particular date
prior to the date when furnished are warranted only to be true and accurate or
(in the case of financial statements) fairly to present what they purport to
present, in either case as of the effective date thereof, and (iii) to the
extent any such information therein provided by the Industrial Occupant was
based upon or constitutes a forecast, projection or other data which by its
nature is uncertain, the Industrial Occupant represents only that it acted in
good faith and utilized due and careful consideration and the best information
known to it after Due Inquiry in the preparation of such information.
ARTICLE III
Assumption Of Obligations
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Section 3.01 Assumption of Obligations. The Industrial Occupant for itself,
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its successors and assigns: (i) hereby assumes all obligations of the Borrower
to make payments and discharge all obligations, expenses, costs and liabilities
of the Borrower in accordance with the terms and conditions of the Note, the
Mortgage and the Loan Agreement, as if the Industrial Occupant itself had
executed the Note, the Mortgage, and the Loan Agreement; (ii) consents and
agrees that its liability to pay and perform in accordance with the terms of the
Note, the Mortgage and the Loan Agreement shall continue until the Loan,
together with any and all interest, penalties and costs thereon, is paid in full
and all obligations are performed; (iii) consents and agrees that PIDA may
enforce against the Industrial Occupant the obligations of the Borrower assumed
hereby without any restriction or limitation (A) arising from any provision of
the Note restricting enforcement of certain liabilities thereunder (including,
without limitation, indemnification obligations arising under Sections 4.07 or
4.20 hereof) against assets of the Borrower other than the Borrower's interest
in the Premises, or (B) arising from the Loss Sharing Agreement effective as of
June 4, 1980 between the Borrower and PIDA, under which PIDA has agreed, among
other things, to exhaust remedies against the Industrial Occupant and any
Guarantor before pursuing remedies against the assets of the Borrower other than
the Premises; and (iv) assumes and covenants to perform any and all obligations,
promises and covenants of the Borrower contained in the Note, the
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Mortgage and the Loan Agreement, as if the Industrial Occupant itself had
executed the Note, the Mortgage, and the Loan Agreement, except those
obligations, promises and covenants which relate to the internal organization of
the Borrower and therefore, by their nature, can only be performed by the
Borrower.
Section 3.02 Subordination of Interest. The Industrial Occupant hereby
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consents for itself, its successors and assigns to the Loan Agreement, Note, and
Mortgage, agrees that the terms and provisions hereof (including, without
limitation, each of the representations, warranties and covenants of Industrial
Occupant herein) shall be deemed included in the Loan Agreement, Note and
Mortgage and shall be enforceable under the Loan Agreement, Note and Mortgage as
though Industrial Occupant had executed the Loan Agreement, Note and Mortgage
and the terms and provisions hereof were expressly set forth in the Loan
Agreement, Note and Mortgage, and agrees that whatever right, title and interest
which it, its successors and assigns may have in and to the Premises shall be,
and the same are hereby expressly made subject and subordinate to the lien of
the Mortgage and any other judgment, lien or encumbrance pursuant to the Note or
Loan Agreement.
ARTICLE IV
Special Covenants of the Industrial Occupant
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The Industrial Occupant covenants and agrees as follows:
Section 4.01 Necessary Machines. The Industrial Occupant will supply or
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cause to be supplied all machinery and/or equipment necessary for the operation
of the Project.
Section 4.02 No Removal of Jobs. The establishment of the Project by the
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Borrower and the Industrial Occupant at the Premises will not cause the removal
of an industrial or manufacturing plant or facility or research and development
facility or agricultural enterprise controlled directly or indirectly by the
Industrial Occupant or any Affiliate from one area of the Commonwealth of
Pennsylvania to another area of the Commonwealth, nor result in the reduction of
the number of employees at any other plant controlled by the Industrial Occupant
or any Affiliate currently located in the Commonwealth of Pennsylvania.
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Section 4.03 Operations and Number of Jobs. The Industrial Occupant will
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create, or retain, as the case may be, at the Premises within three years from
the date of the grant of a permit for occupancy of the Premises by the
Department of Labor and Industry, no less than the number of jobs specified to
be created or retained in the Application.
Section 4.04 Certificate re Jobs. The Industrial Occupant will annually
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provide PIDA with a certificate executed by an authorized officer setting forth
the number of employees, and their respective job classifications (skilled,
semi-skilled and unskilled), employed by the Industrial Occupant or any
subsidiary during the previous year at the Project, together with such other
related information as PIDA may request.
Section 4.05 Non-Discrimination. The Industrial Occupant and its
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subsidiaries will not discriminate against any employee or against any applicant
for employment because of race, religion, color, handicap, ancestry, national
origin, sex or age, in any manner, including but not limited to the following
activities: employment; upgrading, demotion or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. The
Industrial Occupant hereby accepts and agrees to be bound by the
nondiscrimination provisions set forth in Exhibit 4.05 hereto, and will cause
comparable non-discrimination provisions to be inserted into all Project
contracts.
Section 4.06 Employee Benefit Plans. The Industrial Occupant and its
----------------------
Subsidiaries shall: (1) fund all of their employee pension benefit plans, to
the extent required, in accordance with the minimum funding standards of Section
302 of ERISA and Section 412 of the Code, except where the failure to do so
would not have a material adverse effect on the continuing operations of the
Industrial Occupant; (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 Industrial Occupant; (3) furnish PIDA, upon its
request, with copies of all reports or other statements filed with the United
States Department of Labor, the Internal Revenue Service or the Pension Benefit
Guaranty Corporation, or any other agencies, whether federal, state, or local,
with respect to all employee benefit plans; (4) advise PIDA within ten days of
the occurrence of any "reportable event" or "prohibited transaction," within the
respective meanings of these terms in
-14-
ERISA and the Code, with respect to any employee benefit plan to which the
Industrial Occupant or any Subsidiary contributes, potentially having a material
adverse effect on the continuing operations of the Industrial Occupant; (5)
promptly advise PIDA of any audit or investigation of any employee benefit plans
by the Internal Revenue Service or Department of Labor or any other governmental
agency or any threatened or proposed action by any such agency affecting the
status of, and deductibility of contributions to, any employee benefit plans,
potentially having in any such case a material adverse effect on the continuing
operations of Industrial Occupant.
Section 4.07 Environmental Compliance.
------------------------
(a) Except as described on Exhibit 2.12 hereto, the Project and the
Industrial Occupant's operations at the Premises shall comply with all
Environmental Laws in all material respects (including, without limitation, in
all respects having a significant effect on the quality of air or surface or
ground water in the vicinity of the Premises).
(b) Without limiting the generality of the foregoing, the Industrial
Occupant shall keep the Project and Premises free of Hazardous Materials except
to the extent that such Hazardous Materials are stored and/or used in compliance
with all Environmental Laws. The Industrial Occupant shall not suffer or permit
the Premises to be used to generate, manufacture, refine, transport, treat,
dispose of, transfer, produce or process Hazardous Materials in violation of any
Environmental Laws. In addition, Industrial Occupant shall not suffer or permit
any tenant, subtenant or occupant to release any Hazardous Materials onto the
Premises or onto adjacent property in violation of any Environmental Laws.
(c) The Industrial Occupant shall immediately upon obtaining knowledge of
any of the following notify the appropriate regulatory agency in writing, with a
copy to PIDA:
(i) the release of any Hazardous Material or any other substance
regulated by the Environmental Laws, from, on or about the Premises in violation
of any Environmental Law;
(ii) receipt by the Industrial Occupant, or any tenant, subtenant or
occupant of the Premises, of any notice concerning the Premises of any violation
of any applicable Environmental Law;
(iii) any violation affecting the Project or the Premises of any
applicable Environmental Law; and
-15-
(iv) any claim or claims made against the Industrial Occupant
relating to the Project or the Premises relating to damage, contribution, cost
of recovery, compensation, loss or injury resulting from any Hazardous Material
or any other substance regulated by any applicable Environmental Law; provided
that notice to PIDA shall not be required pursuant to this Section 4.07 so long
as (A) the business of Industrial Occupant carried on at the Project is of a
character that, notwithstanding exercise of all possible care on the part of
Industrial Occupant, routinely produces discharges regulated under applicable
Environmental Laws, (B) such release, claim or violation relates to a discharge
of the character referred to in clause (A) hereof, and (C) such release, claim
or violation will not have a material adverse effect on the operations being
carried on at the Project or the operations or financial condition of the
Industrial Occupant.
(d) The Industrial Occupant, at its sole expense, shall conduct and
complete all investigations, studies, sampling and testing, and all removal and
other actions necessary to clean up and remove all Hazardous Materials on,
under, from or affecting the Project or the Premises if required by and in
accordance with all applicable federal, state and local laws, ordinances, rules,
regulations and policies, in accordance with the orders and directives of all
federal, state and local governmental authorities, to the reasonable
satisfaction of PIDA. The Industrial Occupant shall at all times keep the
Project and the Premises free of any lien imposed pursuant to any Environmental
Law including, without limitation, any Environmental Law relating to any
Hazardous Material.
(e) The Industrial Occupant shall indemnify, defend and hold harmless the
Borrower, PIDA, and the Commonwealth of Pennsylvania and their respective
employees, agents, officers and directors, including, without limitation, any
engineer or environmental consultant retained by Borrower or PIDA (such parties
collectively, "Indemnified Parties"), from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs or expenses of
whatever kind or nature, known or unknown, contingent or otherwise, including
without limitation reasonable attorney fees, fees of environmental consultants
and laboratory fees, arising out of or in any way related to the following
matters: (i) the presence, disposal, release or threatened release of any
Hazardous Materials, on, over, under, from or affecting the Project or the
Premises or the soil, water, vegetation, buildings, personal property, persons
or animals thereon; (ii) any personal
-16-
injury (including wrongful death) or property damage (real or personal) arising
out of or related to any Hazardous Materials on, over, under, released from or
affecting the Project or the Premises; (iii) any lawsuit brought or threatened,
settlement reached or governmental order relating to such Hazardous Materials
with respect to the Project or the Premises; (iv) any violation of laws, orders,
regulations, requirements or demand of government authorities, which are based
upon or in any way related to any Hazardous Materials on, over, under, released
from or affecting the Project or the Premises; and/or (v) the breach of any
warranty, representation or covenant of the Industrial Occupant contained in
this Agreement relating to the Environmental Laws.
(f) (i) in the event PIDA shall have reasonable cause to suspect that the
Industrial Occupant has failed to comply with the terms of this Agreement, or
shall have reasonable cause to suspect that any Hazardous Materials exist on the
Premises in violation of any Environmental Laws, PIDA may direct the Industrial
Occupant to obtain, or if the Industrial Occupant shall have failed or refused
to so obtain after thirty (30) days notice from PIDA, PIDA may obtain, an
environmental audit of the Premises, at the sole expense of the Industrial
Occupant; (ii) the nature and scope of the environmental audit shall be
determined by PIDA, in its reasonable judgment; (iii) the Industrial Occupant
shall permit PIDA and PIDA's agents and employees access to the Project and the
Premises for the purpose of monitoring or conducting the environmental audit, as
the case may be, and shall otherwise reasonably cooperate and provide such
additional information as may be requested by PIDA or its agents and employees;
(iv) the Industrial Occupant shall comply with all reasonable recommendations
relating to amelioration of violation of any Environmental Laws contained in the
environmental audit, including, but not limited to, any recommendations for
additional testing or studies to detect the presence of Hazardous Materials or
contamination caused by Hazardous Materials, at the sole cost and expense of the
Industrial Occupant; (v) in the event the Industrial Occupant fails to pay for
the cost of the environmental audit or any remedial actions or additional
testing recommended thereby, relating to amelioration of violation of any
Environmental Laws, PIDA may pay for same; (vi) each payment made by PIDA shall
become a part of the indebtedness evidenced by the Note and secured by
-17-
the Mortgage; shall be due and payable upon demand; and shall bear interest at
the default rate of interest established in the Note, until paid in full by the
Industrial Occupant.
(g) The liability under this Section 4.07 shall in no way be limited or
impaired by (i) any extension of time for performance required by any of the
Loan Documents, (ii) any sale, assignment or foreclosure of the Note or any
sale or transfer of all or part of the Project or the Premises, (iii) the
discharge of the Note, (iv) any exculpatory provisions in any of the Loan
Documents limiting PIDA's recourse to any other security, (v) the accuracy or
inaccuracy of the representations and warranties made by the Industrial
Occupant; (vi) the release of the Industrial Occupant or any other person from
performance or observance of any of the agreements, covenants, terms or
conditions contained in any of the Loan Documents by operation of law, PIDA's
voluntary act (other than the execution and delivery by PIDA of an instrument
of release expressly and specifically referring to Industrial Occupant's
indemnification obligations), or otherwise, (vii) the release or substitution
in whole or in part of any security for the Note; or (viii) PIDA's failure to
file any mortgage or UCC financing statements (or PIDA's improper filing of any
thereof) or to otherwise perfect, protect, secure or insure any mortgage,
security interest or lien given as security for the Note; and, in any such
case, whether with or without notice to the Industrial Occupant and with or
without consideration.
(h) The indemnity provisions contained in this Section 4.07 hereof shall
survive any judicial foreclosure, foreclosure by power of sale, deed in lieu of
foreclosure, transfer of the property by the Industrial Occupant or PIDA, and
payment of the Loan in full, provided, however, that such indemnity provisions
shall at no time accrue to, or be construed to benefit, any other third-party
entity (other than an Indemnified Party or a successor in interest or assign of
PIDA) no matter how such other third-party entity obtains title or any interest
in the Project or Premises.
The liability covered by the indemnity provision shall include, but not
be limited to, losses sustained by an Indemnified Party for (i) amounts owing
under the Loan and the Loan Documents, (ii) amounts arising out of personal
injury or death claims, (iii) amounts charged to such Indemnified Party for any
environmental or Hazardous Materials clean up costs and
-18-
expenses, liens, or other such charges or impositions, (iv) payment for fees,
court costs, environmental tests and design studies, and (v) any other amounts
reasonably expended by any such Indemnified Party.
Section 4.08 Compliance with Agreements and Laws; Payment of Obligations.
-----------------------------------------------------------
The Industrial Occupant will act in accordance with all applicable agreements,
laws, rules, regulations, orders, judgments, injunctions, decrees, resolutions,
permits, franchises, determinations or awards of any administrative or
governmental authority or administrative or governmental organization, non-
compliance with which could have a material adverse effect on the ability of the
Industrial Occupant to carry on the operations at the Project contemplated in
the Application or make payments or perform and observe its other material
obligations under any of the Loan Documents.
The Industrial Occupant will pay and discharge all bills, claims and
charges relating to the Project or the Premises, including without limitation
claims for taxes and claims of laborers, mechanics and materialmen
(collectively, "Project Claims"), prior to the time the holder of any Project
Claim lawfully may cause any judgment or writ of execution to be filed or lodged
against the Premises as a result of such Project Claim.
Section 4.09 Maintenance and Operations of Project. The Industrial Occupant
-------------------------------------
will maintain and diligently operate the Project in a good and workmanlike
manner consistent with sound operating procedures, and cause all machinery,
equipment and facilities of any kind now or hereafter forming part of the
Project or necessary for the development thereof or the operation or maintenance
of the Project, to be provided and to be kept in good and efficient operating
condition, and all repairs, replacements, additions and improvements thereto
required to such end to be promptly made.
The Industrial Occupant will not permit, commit or suffer any material
waste with respect to the Project, nor use or permit the use of the Project for
any unlawful purpose or any purpose other than (i) the purpose stated in the
Application or (ii) a purpose eligible, at the time of commencement thereof, for
financing by PIDA under the PIDA Act, regulations, statements of policy,
guidelines and interpretations of the PIDA Board and staff as in effect from
time to time ("PIDA-Eligible") or permit any nuisance to exist on the Premises,
and not sell, transfer, lease, mortgage, pledge,
-19-
convey or otherwise dispose of the Project or Premises or any interest therein
except with the written consent of PIDA.
The Industrial Occupant will carry on in good faith at the Premises
substantial PIDA-Eligible manufacturing, industrial or other activities.
Section 4.10 Preservation of Corporate Existence, etc. Except as otherwise
----------------------------------------
permitted in Section 4.21, the Industrial Occupant will (a) maintain and
preserve its corporate existence and the right to carry on its business with
respect to the Project, and (b) duly procure and maintain all necessary
licenses, franchises, permits and other documents necessary or appropriate in
connection therewith and all necessary renewals and extensions thereof.
Section 4.11 Inspection. The Industrial Occupant will allow upon reasonable
----------
prior written notice by PIDA to the Industrial Occupant, any representative of
PIDA to visit and inspect the Project and all or any of the facilities or
operations thereof, all at such reasonable times and as often as PIDA or any
such representative may request.
Section 4.12 Financial Statements. During the term of the Loan, the
--------------------
Industrial Occupant will provide PIDA with:
(a) financial statements for the Industrial Occupant within one hundred
twenty (120) days after the close of each fiscal year including balance sheets,
statements of income and reconciliations of equity, in accordance with generally
accepted accounting principles, prepared by an independent certified public
accountant at a level of review satisfactory to PIDA, provided that if the
Industrial Occupant is a corporation subject to the reporting requirements of
the Exchange Act, the Industrial Occupant's obligation under this paragraph
shall be satisfied by delivery to PIDA of the financial statements required to
be filed by the Industrial Occupant under the Exchange Act in its annual
reports;
(b) with reasonable promptness, such other information respecting the
business, operations and condition (financial or otherwise) of the Industrial
Occupant as PIDA may from time to time reasonably request, including information
relating to the Project; and
(c) with reasonable promptness, after it becomes known to the Industrial
Occupant, reasonably complete information on material adverse developments which
may reasonably be expected to threaten the completion or continued operation of
the Project.
-20-
Section 4.13 Compliance Certificates. If PIDA shall so request, the
-----------------------
Industrial Occupant will provide PIDA with annual Compliance Certificates
executed by officers authorized to execute and deliver the same within 120 days
of each fiscal year's end reciting compliance with representations, warranties
and covenants.
Section 4.14 Insurance. The Industrial Occupant will maintain the insurance
---------
required by the Mortgage.
Section 4.15 Assignment and Subleases. Except as expressly permitted in
------------------------
writing by PIDA, the Industrial Occupant shall not assign or sublease any
portion of the Premises, and shall not lease any portion of the Premises to or
permit any portion thereof to be occupied by any person other than Industrial
Occupant, and in no event shall the portion of the Project occupied by persons
other than the Industrial Occupant exceed 30% of the leasable space of the
Project. In the event any portion of the Project is leased, subleased or
assigned to or otherwise occupied by any person other than the Industrial
Occupant, the Industrial Occupant shall pay to PIDA as a prepayment under the
Note, in addition to any other payments required thereunder, 50% of (i) the
gross rent or equivalent charges received by the Industrial Occupant relating to
such occupancy, less only (ii) the proportionate amount of taxes, insurance, and
utilities allocable to the portion of the Premises being so leased, subleased or
assigned.
Section 4.16 Direct Payment. The Industrial Occupant will make all payments
--------------
assumed by it pursuant to Section 3.01 hereof directly to PIDA, at such address
as PIDA may specify from time to time.
Section 4.17 Accuracy of Information Supplied. The Industrial Occupant will
--------------------------------
ensure that all information prepared by the Industrial Occupant and supplied to
PIDA or any third party under the provisions of this Agreement for the purpose
of any report or certificate to be furnished to PIDA in connection with this
Agreement or any of the Loan Documents will at the time it is supplied be true
and accurate in all material respects, except that (i) financial statements and
other statements expressly effective as of a particular date prior to the date
when furnished are required only to be true and accurate or (in the case of
financial statements) fairly to present what they purport to present, in either
case as of the effective date thereof, and (ii) to the extent any such
information is based upon or constitutes a forecast, projection or other data
which by its nature is uncertain, the
-21-
Industrial Occupant is committed only to act in good faith and utilize due and
careful consideration and the best information then known to it in preparing
such information. With respect to all information prepared by third parties and
supplied by the Industrial Occupant to PIDA and/or any third party under the
provisions hereof for the purpose of any report or certificate to be furnished
to PIDA in connection with this Agreement or any of the Loan Documents, the
Industrial Occupant shall deliver a written notice to PIDA as soon as possible
if it believes that such information is not complete and accurate in all
material respects, which written notice shall include the basis for such belief.
Section 4.18 Notice of Defaults. The Industrial Occupant will give prompt
------------------
notice to PIDA of the occurrence of any Event of Default under the Loan
Documents either on its part, or on the part of the Borrower of which the
Industrial Occupant becomes aware.
Section 4.19 Further Assurances. The Industrial Occupant will make, execute
------------------
or endorse, and acknowledge and deliver or file, all such vouchers, invoices,
notices and certifications and additional agreements, undertakings, conveyances,
transfers, assignments, financing statements, continuation statements or further
assurances, and take any and all such other actions, as PIDA may reasonably deem
necessary or advisable from time to time in connection with the Loan or the Loan
Documents to assure or confirm to PIDA and perfect all or any part of the
security for the Loan and any other obligations of the Industrial Occupant.
Section 4.20 Indemnification. To the extent permitted by applicable law, the
---------------
Industrial Occupant hereby indemnifies and holds harmless the Indemnified
Parties from and against any and all claims, damages, losses, liabilities, costs
or expenses (including all reasonable fees or expenses resulting from the
settlement of any claims or liabilities and reasonable attorneys' fees)
(collectively, "Indemnified Claims") whatsoever which the Indemnified Party may
incur (or which may be claimed against the Indemnified Party by any person or
entity whatsoever) by reason of or in connection with (a) the issuance of the
Loan, (b) any breach by the Industrial Occupant of any representation, warranty,
covenant, term or condition in, or the occurrence of any default under, this
Agreement or the Loan Documents, and (c) involvement of the Indemnified Party in
any legal suit, investigation, proceeding, inquiry or action as a consequence,
direct or indirect, of PIDA's issuance of the
-22-
Loan, PIDA's or the Borrower's entering into this Agreement or any of the Loan
Documents or any other event or transaction contemplated by any of the
foregoing; provided, however, that (i) the Indemnified Party shall within sixty
(60) days of becoming aware of (A) its actual or potential liability for any
Indemnified Claim or (B) the formal assertion against it in writing of any
Indemnified Claim, have notified the Industrial Occupant of such Indemnified
Claim and tendered to the Industrial Occupant the defense of such claim; (ii)
that no Indemnified Claim shall be paid or compromised without the consent of
the Industrial Occupant, which shall not unreasonably be withheld and shall be
deemed given if the Industrial Occupant does not object, by a notice in writing
to the Indemnified Party, to the payment or compromise of such Indemnified Claim
within 10 calendar days after the Indemnified Party has given to the Industrial
Occupant notice of the proposed payment or compromise thereof, and (iii) the
Industrial Occupant shall not be required to indemnify an Indemnified Party
hereunder for any claims, damages, losses, liabilities, costs or expenses to the
extent, but only to the extent, caused by the gross negligence or willful
misconduct of such Indemnified Party.
The liability under this Section 4.20 shall in no way be limited or impaired
by (i) any extension of time for performance required by any of the Loan
Documents, (ii) any sale, assignment or foreclosure of the Note or any sale or
transfer of all or part of the Project or the Premises, (iii) the discharge of
the Note, (iv) any exculpatory provisions in any of the Loan Documents limiting
PIDA's recourse to any other security, (v) the accuracy or inaccuracy of the
representations and warranties made by the Industrial Occupant; (vi) the release
of the Industrial Occupant or any other person from performance or observance
of any of the agreements, covenants, terms or conditions contained in any of
the Loan Documents by operation of law, PIDA's voluntary act (other than the
execution and delivery by PIDA of an instrument of release expressly and
specifically referring to Industrial Occupant's indemnification obligations),
or otherwise, (vii) the release or substitution in whole or in part of any
security for the Note; or (viii) PIDA's failure to file any mortgage or UCC
financing statements (or PIDA's improper filing of any thereof) or to otherwise
perfect, protect, secure or insure any mortgage, security interest or lien
given as security for the Note; and, in any such case, whether with or without
notice to the Industrial Occupant and with or without consideration.
-23-
The indemnity provisions contained in this Section 4.20 hereof shall
survive any judicial foreclosure, foreclosure by power of sale, deed in lieu of
foreclosure, transfer of the property by the Industrial Occupant or PIDA, and
payment of the Loan in full, provided, however, that such indemnity provisions
shall at no time accrue to, or be construed to benefit, any other third-party
entity (other than an Indemnified Party or a successor in interest or assign of
PIDA) no matter how such other third-party entity obtains title or any interest
in the Project or Premises.
The liability covered by the indemnity provision shall include, but not
be limited to, losses sustained by an Indemnified Party for (i) amounts owing
under the Loan and the Loan Documents, (ii) amounts arising out of personal
injury or death claims, (iii) amounts charged to an Indemnified Party for any
environmental or Hazardous Materials clean up costs and expenses, liens, or
other such charges or impositions, (iv) payment for fees, court costs,
environmental tests and design studies, and (v) any other amounts reasonably
expended by an Indemnified Party.
Section 4.21 Negative Covenants.
------------------
(a) The Industrial Occupant will not prepay any sums to be paid by it to
the Borrower, in whole or in part, without the prior written consent of PIDA.
(b) Without the prior written consent of PIDA, the Industrial Occupant
shall not permit, allow or suffer to exist, any lien, judgment, mortgage, or
encumbrance to be placed against the Premises or any interest therein, or enter
into any agreement requiring, contemplating or providing for placement of any
such judgment, mortgage, lien or encumbrance, except (i) mortgages, liens and
encumbrances expressly provided for in the Application to which PIDA shall not
have objected in writing, and (ii) that the terms of this Section 4.21(b) shall
not be deemed to prohibit execution of any note or credit instrument not
providing for any specific lien against the Premises but permitting confession
of judgment against the Industrial Occupant subsequent to an event of default
thereunder so long as judgment is not confessed thereunder.
(c) The Industrial Occupant will not change its name without notice to
PIDA.
(d) Without the prior written consent of PIDA, the Industrial Occupant
shall not (i) merge or consolidate with any other corporation or
-24-
dispose of all or any substantial portion of its assets, except in the ordinary
course of business, unless the Industrial Occupant or 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 Industrial Occupant delivered to
PIDA prior to approval of the Loan, and, if a corporation different from the
Industrial Occupant, shall have expressly assumed the obligations of the
Industrial Occupant hereunder, or (ii) take any corporate action to permit or
facilitate any change in control from that set forth in the Application.
ARTICLE V
Confession of Judgment
----------------------
Section 5.01 THE FOLLOWING PARAGRAPHS SET FORTH WARRANTS OF AUTHORITY FOR AN
---------------------------------------------------------------
ATTORNEY TO CONFESS JUDGMENT AGAINST THE INDUSTRIAL OCCUPANT. IN GRANTING THIS
- - -------------------------------------------------------------------------------
WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST THE INDUSTRIAL OCCUPANT, THE
- - ----------------------------------------------------------------------------
INDUSTRIAL OCCUPANT HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, AND, ON THE
- - --------------------------------------------------------------------------------
ADVICE OF THE SEPARATE COUNSEL OF THE INDUSTRIAL OCCUPANT, UNCONDITIONALLY
- - --------------------------------------------------------------------------
WAIVES ANY AND ALL RIGHTS THE INDUSTRIAL OCCUPANT HAS OR MAY HAVE TO PRIOR
- - ----------------------------------------------------------------------------
NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS
- - ------------------------------------------------------------------------
AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF PENNSYLVANIA, EXCEPT
- - --------------------------------------------------------------------------
AS EXPRESSLY SET FORTH HEREIN AND IN THE RULES OF THE PENNSYLVANIA RULES OF
- - ---------------------------------------------------------------------------
CIVIL PROCEDURE PERTAINING TO CONFESSED JUDGMENTS, AS FROM TIME TO TIME
- - -----------------------------------------------------------------------
IN EFFECT.
- - ----------
(A) (i) IF ANY REPRESENTATION OR WARRANTY MADE BY THE INDUSTRIAL OCCUPANT
-------------------------------------------------------------------------
HEREUNDER SHALL PROVE TO HAVE BEEN INCORRECT IN ANY MATERIAL RESPECT WHEN MADE;
- - -------------------------------------------------------------------------------
(ii) IF INDUSTRIAL OCCUPANT SHALL FAIL, AFTER EXPIRATION OF ANY APPLICABLE
- - --------------------------------------------------------------------------
GRACE, NOTICE AND/OR CURE PERIODS, TIMELY TO MAKE ANY OF THE PAYMENTS OR
- - ------------------------------------------------------------------------
DISCHARGE ANY OF THE DUTIES OF BORROWER ASSUMED BY INDUSTRIAL OCCUPANT
- - ----------------------------------------------------------------------
HEREUNDER; OR (iii) IF INDUSTRIAL OCCUPANT SHALL FAIL IN ANY MATERIAL RESPECT TO
- - --------------------------------------------------------------------------------
CARRY OUT ANY OF THE COVENANTS OF INDUSTRIAL OCCUPANT HEREUNDER OR UNDER ANY OF
- - -------------------------------------------------------------------------------
THE LOAN DOCUMENTS EXECUTED AND DELIVERED BY, OR THE OBLIGATIONS UNDER WHICH
- - ----------------------------------------------------------------------------
WERE ASSUMED BY, INDUSTRIAL OCCUPANT, THE BENEFITS OF WHICH WERE ASSIGNED TO
- - ----------------------------------------------------------------------------
PIDA AS SECURITY FOR THE LOAN, AND SUCH FAILURE SHALL CONTINUE IN EFFECT, AFTER
- - -------------------------------------------------------------------------------
NOTICE OF SUCH FAILURE TO INDUSTRIAL OCCUPANT HEREUNDER, FOR NOT
- - -----------------------------------------------------------------
-25-
LESS THAN THIRTY DAYS (OR, IF SUCH FAILURE IS CAPABLE OF BEING CURED AND
- - ------------------------------------------------------------------------
INDUSTRIAL OCCUPANT IS PROCEEDING DILIGENTLY TO CURE SUCH FAILURE, FOR SUCH
- - ---------------------------------------------------------------------------
GREATER PERIOD OF TIME AFTER NOTICE AS SHALL BE REQUIRED FOR SUCH CURE IN THE
- - -----------------------------------------------------------------------------
GOOD FAITH JUDGMENT OF PIDA, WHICH SHALL BE CONCLUSIVE): THEN, IN ANY SUCH
- - ---------------------------------------------------------------------------
EVENT (OF WHICH AN AFFIDAVIT ON BEHALF OF PIDA SHALL BE SUFFICIENT EVIDENCE)
- - ----------------------------------------------------------------------------
INDUSTRIAL OCCUPANT HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF
- - ------------------------------------------------------------------------------
ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA, OR
- - -----------------------------------------------------------
ELSEWHERE, TO APPEAR FOR AND TO ENTER AND CONFESS JUDGMENT AGAINST THE
- - ----------------------------------------------------------------------
INDUSTRIAL OCCUPANT, AT ANY TIME OR TIMES AND AS OF ANY TERM, FOR ANY AND ALL
- - -----------------------------------------------------------------------------
SUMS DUE AND OWING TO PIDA BY VIRTUE OF INDUSTRIAL OCCUPANT'S ASSUMPTION OF THE
- - -------------------------------------------------------------------------------
BORROWER'S OBLIGATIONS UNDER THE NOTE, MORTGAGE AND LOAN AGREEMENT AND/OR
- - -------------------------------------------------------------------------
INDUSTRIAL OCCUPANT'S OBLIGATIONS UNDER ANY OF THE LOAN DOCUMENTS EXECUTED AND
- - ------------------------------------------------------------------------------
DELIVERED BY, OR THE OBLIGATIONS UNDER WHICH WERE ASSUMED BY, INDUSTRIAL
- - ------------------------------------------------------------------------
OCCUPANT, THE BENEFITS OF WHICH WERE ASSIGNED TO PIDA AS SECURITY FOR THE LOAN,
- - -------------------------------------------------------------------------------
WITH OR WITHOUT DECLARATION, WITH INTEREST AND COSTS OF SUIT, WITHOUT STAY OF
- - -----------------------------------------------------------------------------
EXECUTION, AND WITH REASONABLE ATTORNEY'S FEES. THE INDUSTRIAL OCCUPANT AGREES
- - -------------------------------------------------------------------------------
THAT ANY OF ITS PROPERTY MAY BE LEVIED UPON TO COLLECT SAID JUDGMENT AND MAY BE
- - -------------------------------------------------------------------------------
SOLD UPON A WRIT OF EXECUTION, AND HEREBY WAIVES AND RELEASES ALL LAWS, NOW OR
- - ------------------------------------------------------------------------------
HEREAFTER IN FORCE, RELATING TO EXEMPTION, APPRAISEMENT OR STAY OF EXECUTION.
- - ------------------------------------------------------------------------------
THE AUTHORITY HEREBY GRANTED TO CONFESS JUDGMENT SHALL NOT BE EXHAUSTED BY ANY
- - ------------------------------------------------------------------------------
EXERCISE THEREOF, BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL
- - -----------------------------------------------------------------------------
THE INDUSTRIAL OCCUPANT HAS PAID ALL SUMS REQUIRED TO BE PAID BY THE INDUSTRIAL
- - -------------------------------------------------------------------------------
OCCUPANT AND HAS PERFORMED ALL OF THE OTHER OBLIGATIONS REQUIRED OF INDUSTRIAL
- - ------------------------------------------------------------------------------
OCCUPANT HEREUNDER.
- - -------------------
(B) IN CASE OF ANY BREACH OF THE TERMS OF SUBSECTION (A) OF THIS SECTION,
---------------------------------------------------------------------
(OF WHICH AN AFFIDAVIT ON BEHALF OF PIDA SHALL BE SUFFICIENT EVIDENCE), THEN,
- - -----------------------------------------------------------------------------
AND IN ANY SUCH EVENT, ANY ATTORNEY OF ANY COURT OF RECORD OF PENNSYLVANIA OR
- - -----------------------------------------------------------------------------
ELSEWHERE IS HEREBY AUTHORIZED AND EMPOWERED TO APPEAR FOR THE INDUSTRIAL
- - -------------------------------------------------------------------------
OCCUPANT AND ALL PERSONS CLAIMING UNDER OR THROUGH THE INDUSTRIAL OCCUPANT, AND
- - -------------------------------------------------------------------------------
AS ATTORNEY FOR THE INDUSTRIAL OCCUPANT AND ALL PERSONS CLAIMING UNDER OR
- - -------------------------------------------------------------------------
THROUGH THE INDUSTRIAL OCCUPANT, TO SIGN AN AGREEMENT FOR ENTERING AN AMICABLE
- - ------------------------------------------------------------------------------
ACTION OF EJECTMENT FOR POSSESSION OF THE PREMISES OR ANY PART THEREOF AND TO
- - -----------------------------------------------------------------------------
CONFESS JUDGMENT THEREIN AGAINST THE INDUSTRIAL OCCUPANT, IN FAVOR OF PIDA,
- - ---------------------------------------------------------------------------
WHEREUPON A WRIT OF POSSESSION MAY IMMEDIATELY ISSUE FOR THE POSSESSION OF THE
- - ------------------------------------------------------------------------------
PREMISES, WITHOUT ANY PRIOR COMPLAINT, WRIT OR PROCEEDING WHATSOEVER; AND FOR SO
- - --------------------------------------------------------------------------------
DOING THIS AGREEMENT, OR A COPY HEREOF VERIFIED BY
- - ---------------------------------------------------
-26-
AFFIDAVIT, SHALL BE HIS SUFFICIENT WARRANT. THIS POWER MAY BE EXERCISED AS
- - ---------------------------------------------------------------------------
OFTEN AS PIDA SHALL REQUIRE AND SHALL NOT BE EXHAUSTED BY ONE OR MORE OR BY ANY
- - -------------------------------------------------------------------------------
IMPERFECT EXERCISE THEREOF.
- - ---------------------------
IF FOR ANY REASON AFTER ANY SUCH ACTION HAS BEEN COMMENCED THE SAME SHALL
-------------------------------------------------------------------------
BE DISCONTINUED OR POSSESSION OF THE PREMISES SHALL REMAIN IN OR BE RESTORED TO
- - -------------------------------------------------------------------------------
THE INDUSTRIAL OCCUPANT, PIDA SHALL HAVE THE RIGHT FOR THE SAME DEFAULT OR ANY
- - ------------------------------------------------------------------------------
SUBSEQUENT DEFAULT TO BRING ONE OR MORE FURTHER AMICABLE ACTIONS AS ABOVE
- - -------------------------------------------------------------------------
PROVIDED TO COLLECT ALL SUMS DUE AND/OR TO RECOVER POSSESSION OF THE PREMISES.
- - -------------------------------------------------------------------------------
PIDA MAY BRING ANY SUCH AMICABLE ACTION IN EJECTMENT BEFORE OR AFTER JUDGMENT ON
- - --------------------------------------------------------------------------------
THE MORTGAGE OR ON THE NOTE, OR AFTER A SALE OF THE PREMISES BY THE SHERIFF. IF
- - --------------------------------------------------------------------------------
AFTER EXECUTION AND RETURN OF THE WRIT OF POSSESSION, THE INDUSTRIAL OCCUPANT
- - -----------------------------------------------------------------------------
SHALL REENTER INTO POSSESSION OF THE PREMISES, THE PROTHONOTARY, UPON PRAECIPE
- - ------------------------------------------------------------------------------
AND AFFIDAVIT SETTING FORTH THE FACTS FILED WITHIN THREE YEARS AFTER THE RETURN
- - -------------------------------------------------------------------------------
OF THE WRIT UPON WHICH EXECUTION WAS COMPLETED, SHALL ISSUE A NEW WRIT OF
- - -------------------------------------------------------------------------
POSSESSION.
- - ----------
(C) IF INDUSTRIAL OCCUPANT WISHES TO CHALLENGE ANY JUDGMENT CONFESSED
-----------------------------------------------------------------
PURSUANT TO THIS SECTION, IT SHALL DO SO ONLY BY FILING A PETITION TO OPEN THE
- - ------------------------------------------------------------------------------
JUDGMENT PURSUANT TO PENNSYLVANIA RULES OF CIVIL PROCEDURE RULE 2959, AS IN
- - ---------------------------------------------------------------------------
EFFECT FROM TIME TO TIME, ("RULE 2959") AND SHALL NOT OTHERWISE INTERFERE (BY
- - -----------------------------------------------------------------------------
FILING ANY CIVIL ACTION BILL IN EQUITY, OR OTHERWISE) WITH THE OPERATION OF
- - ---------------------------------------------------------------------------
THIS JUDGMENT GRANTED PURSUANT TO THIS SECTION. INDUSTRIAL OCCUPANT EXPRESSLY
- - ------------------------------------------------------------------------------
ACKNOWLEDGES THAT THE PROCEDURE AVAILABLE TO IT THROUGH RULE 2959 WILL PROVIDE
- - ------------------------------------------------------------------------------
IT WITH A FULL AND FAIR OPPORTUNITY TO BE HEARD AS TO ANY REASON WHY JUDGMENT
- - -----------------------------------------------------------------------------
SHOULD NOT BE ENTERED AGAINST IT.
- - ---------------------------------
THE INDUSTRIAL OCCUPANT ACKNOWLEDGES THAT IT UNDERSTANDS THE MEANING AND
------------------------------------------------------------------------
EFFECT OF THE CONFESSION CONTAINED IN THE FOREGOING PARAGRAPHS. SPECIFICALLY,
- - ------------------------------------------------------------------------------
THE INDUSTRIAL OCCUPANT UNDERSTANDS AMONG OTHER THINGS THAT (1) IT IS
- - ---------------------------------------------------------------------
RELINQUISHING THE RIGHT TO HAVE THE BURDEN OF PROOF OF DEFAULT REST ON PIDA
- - ---------------------------------------------------------------------------
PRIOR TO THE ENTRY OF JUDGMENT, (2) THE ENTRY OF JUDGMENT MAY RESULT IN A LIEN
- - ------------------------------------------------------------------------------
ON ITS PROPERTY, (3) IT WILL BEAR THE BURDEN AND EXPENSE OF ATTACKING THE
- - -------------------------------------------------------------------------
JUDGMENT AND CHALLENGING EXECUTION ON THE LIEN AND SALE OF THE PROPERTY COVERED
- - -------------------------------------------------------------------------------
THEREBY, AND (4) ENOUGH OF ITS PROPERTY MAY BE TAKEN TO PAY THE PRINCIPAL
- - -------------------------------------------------------------------------
AMOUNT, INTEREST COSTS AND ATTORNEY'S FEES.
- - -------------------------------------------
-27-
ARTICLE VI
Miscellaneous
-------------
Section 6.01 Obligations Unconditional. The obligations of the Industrial
-------------------------
Occupant to PIDA under this Agreement and each of the Loan Documents shall be
absolute and unconditional without defense or set-off by reason of any default
by the contractors under the contracts relating to the Project or by Borrower or
by PIDA under this Agreement, any of the Loan Documents, or under any other
agreement between the Borrower and the Industrial Occupant or between the
Industrial Occupant and PIDA, or for any other reason, including without
limitation failure to complete the Project, any acts or circumstances that may
constitute failure of consideration, destruction of or damage to the Project,
commercial frustration of purpose, or failure of the Borrower or PIDA to
perform and observe any agreement, whether express or implied, or any duty,
liability or obligation arising out of or connected with the Loan, it being the
intention of the parties that the payments required by Industrial Occupant
under each of the Loan Documents will be paid in full when due without any
delay or diminution whatsoever. Payments and additional sums required to be
paid by Industrial Occupant to PIDA under any of the Loan Documents shall be
received by PIDA as net sums and the Industrial Occupant agrees to pay or cause
to be paid all charges against or which might diminish such net sums. The
provisions of this Section shall not impair the ability of the Industrial
Occupant or any other person to bring an independent action against PIDA with
respect to any cause of action which such person may have against PIDA.
Section 6.02 Provisions Complementary. The provisions of this Agreement
------------------------
shall be in addition to those of any other Loan Document. All of such
provisions shall be construed as complementary to each other. Nothing contained
herein shall prevent PIDA from enforcing any and all of such provisions in
accordance with their respective terms.
Section 6.03 Rights and Remedies. The terms hereof and of each of the Loan
-------------------
Documents shall be liberally construed in favor of PIDA to effectuate the
purposes hereof. No delay or failure on the part of PIDA in exercising any
right, power or privilege under any of the Loan Documents shall affect such
right, power or privilege; nor shall any single or partial exercise thereof or
-28-
any abandonment, waiver, or discontinuance of steps to enforce such a right,
power or privilege preclude any other or further exercise thereof, or the
exercise of any other right, power or privilege. The rights and remedies of
PIDA under any of the Loan Documents are cumulative and concurrent and not
exclusive of any rights or remedies which it might otherwise have. PIDA shall
have the right at all times to enforce the provisions of the Loan Documents and
all related documentation in strict accordance with the terms hereof,
notwithstanding any conduct or custom on the part of PIDA in refraining from so
doing at any time or times. The failure of PIDA at any time or times to
enforce its rights under such provisions, strictly in accordance with the same,
shall not be construed as having created a custom in any way or manner contrary
to specific provisions of such Loan Document or any such documentation or as
having in any way or manner modified or waived the same. All rights and
remedies of PIDA are cumulative and concurrent and the exercise of one right or
remedy shall not be deemed a waiver or release of any other right or remedy.
Section 6.04 Offset Clause. The Industrial Occupant agrees that the
-------------
Commonwealth of Pennsylvania may set off the amount of any state tax liability
or other debt of the Industrial Occupant or its respective subsidiaries that is
owed to the Commonwealth and not being contested on appeal against any payments
due the Industrial Occupant under this or any other contract with the
Commonwealth.
Section 6.05 Contractor Responsibility Provisions. Included in and made a
------------------------------------
part of this Agreement is Exhibit 6.05, a clause pertaining to Contractor
Responsibility.
Section 6.06 Conflict of Interest. The Industrial Occupant covenants that it
--------------------
presently has no interest and shall not acquire any interest, direct or
indirect, which would conflict in any manner or degree with the performance of
its obligations hereunder. Included in and made a part of this Agreement is
Exhibit 6.06, a clause pertaining to Contractor Integrity.
Section 6.07 Americans with Disabilities Act Provisions. Included in and
------------------------------------------
made a part of this Agreement is Exhibit 6.07, a clause pertaining to compliance
with the Americans with Disabilities Act.
Section 6.08 Assignment; Beneficiaries. This Agreement and each of the Loan
-------------------------
Documents shall inure to the benefit of, and shall be binding upon, the
respective successors and assigns of PIDA and the Industrial Occupant. Although
PIDA has no present intention to convey, pledge or otherwise assign
-29-
its rights under the Loan Documents, it may nevertheless do so in whole or in
part without notice to any person (including, without limitation, the
Industrial Occupant). The Industrial Occupant has no right to assign any of
its rights or obligations hereunder or under any of the Loan Documents without
the prior written consent of PIDA, and any such assignment without the prior
written consent of PIDA shall be void.
The Industrial Occupant and PIDA intend that no person (other than
Borrower and any Indemnified Party) shall have any claim or interest under this
Agreement or any of the Loan Documents or right of action thereunder.
Section 6.09 Amendments. This Agreement and the Loan Agreement may be
----------
modified or amended only by a written instrument duly executed by PIDA, the
Borrower, and the Industrial Occupant. Each of the remaining Loan Documents may
be modified only by a written instrument duly executed by PIDA and the remaining
parties to the particular Loan Document.
Section 6.10 Notices. Notices required hereunder, or any correspondence
-------
concerning this Agreement shall be directed to the following addresses and shall
be deemed properly given (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.
(a) If PIDA:
PENNSYLVANIA INDUSTRIAL DEVELOPMENT AUTHORITY
c/o Department of Commerce
Room 480, Forum Building
Harrisburg, Pennsylvania 17120
FAX: (717) 234-4560
Attention: Executive Director
(b) If Industrial Occupant:
RESPIRONICS, INC.
1001 Murry Ridge Road
Murrysville, Pennsylvania 15668
Attention: Treasurer
-30-
(c) If Borrower:
CENTRAL WESTMORELAND DEVELOPMENT CORPORATION
Route 30 West
Toll Gate Hill Road
Greensburg, Pennsylvania 15601
Attention: President
Notices and communications hereunder shall be deemed sufficiently given when
dispatched pursuant to the foregoing provisions. Notices and communications
delivered by hand shall be effective upon receipt; notices and communications
sent by fax, with a copy by first class U.S. Mail, shall be effective upon
dispatch; notices and communications sent by recognized overnight courier
service shall be effective on the business day following dispatch; and notices
sent by certified mail shall be effective on the third business day following
dispatch. The parties hereto may, by a notice given hereunder, designate any
further or different addresses to which any subsequent notice or communication
hereunder shall be sent.
Section 6.11 Delivery to PIDA. Any materials delivered to PIDA's independent
----------------
engineer or financial consultant shall be deemed to have been delivered to PIDA,
provided that any amendment or supplement to information delivered shall be
deemed effectively delivered only if delivered to the same entity as received
the original information.
Section 6.12 Severability; Interest Limitation. If any provision hereof or
---------------------------------
of the Loan Documents is found by a court of competent jurisdiction to be
prohibited or unenforceable in any jurisdiction, it shall be ineffective as to
such jurisdiction only to the extent of such prohibition or unenforceability,
and such prohibition or unenforceability shall not invalidate the balance of
such provision as to such jurisdiction to the extent it is not prohibited or
unenforceable, nor invalidate such provision in any other jurisdiction, nor
invalidate the other provisions hereof, all of which shall be liberally
construed in favor of PIDA in order to effect the provisions of this Agreement.
Notwithstanding anything to the contrary herein contained, the total liability
of the Industrial Occupant for payment of interest pursuant to the Loan
Documents shall not exceed the maximum amount, if any, of such interest
permitted by applicable law to be contracted for, charged or received, and if
any payments by the Industrial Occupant to PIDA include interest in excess of
such a maximum amount, PIDA shall apply such excess to
-31-
the reduction of the unpaid principal amount due pursuant hereto, or if none is
due, such excess shall be refunded to the Industrial Occupant; provided that, to
the extent permitted by applicable law, in the event the interest is not
collected, is applied to principal or is refunded pursuant to this sentence and
interest thereafter payable pursuant hereto shall be less than such maximum
amount, then such interest thereafter so payable shall be increased up to such
maximum amount to the extent necessary to recover the amount of interest, if
any, theretofore uncollected, applied to principal or refunded pursuant to this
sentence. Any such application or refund shall not cure or waive any Event of
Default. In determining whether or not any interest payable under the Loan
Documents exceeds the highest rate permitted by law, any nonprincipal payment
(except payments specifically stated to be "interest") shall be deemed, to the
extent permitted by applicable law, to be an expense, fee, premium or penalty
rather than interest.
Section 6.13 Complete Agreement. The Loan Documents constitute the entire
------------------
agreement between PIDA and the Industrial Occupant. The Loan Documents
supersede and replace all prior agreements related to the subject matter thereof
including, without limitation, the Commitment, except to the extent such prior
agreements are expressly incorporated by reference or otherwise referred to.
Section 6.14 Consent to Jurisdiction; Venue. The Industrial Occupant hereby
------------------------------
irrevocably (a) agrees that any suit, action or other legal proceeding arising
out of or relating to this Agreement or the Loan Documents may be brought in any
federal or state court located in or whose district includes Harrisburg,
Pennsylvania or the county wherein the Project is located and consents to the
jurisdiction of such court in any such suit, action or proceeding, and (b)
waives any objection which it may have to the laying of venue of any such suit,
action or proceeding in any such court and any claim that any such suit, action
or proceeding has been brought in an inconvenient forum. The Industrial
Occupant hereby irrevocably consents to the service of any and all process in
any such suit, action or proceeding by mailing of copies of such process to the
Industrial Occupant at its address provided under or pursuant to Section 6.10.
The Industrial Occupant agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. All mailings
under this section shall be by certified or
-32-
registered mail, return receipt requested. Nothing in this section shall affect
the right of PIDA to serve legal process in any other manner permitted by law or
affect the right of PIDA to bring any suit, action or proceeding against the
Industrial Occupant or its property in the courts of any other jurisdiction.
Section 6.15 Governing Law. This Agreement shall be governed by, and
-------------
construed in accordance with, the laws of the Commonwealth of Pennsylvania
without reference to its principles of conflicts of law.
Section 6.16 Survival of Covenants. All covenants made or assumed by the
---------------------
Industrial Occupant in any of the Loan Documents shall survive the delivery of
this Agreement and the Loan Documents and until the Loan is prepaid in full,
unless a longer term is expressly provided therein, in which event such longer
term shall apply.
Section 6.17 Accounting Terms. Each accounting term not defined herein and
----------------
each accounting term partly defined herein, to the extent not defined herein,
shall have the meaning given it under generally accepted accounting principles
as in effect from time to time in the United States of America, consistently
applied.
Section 6.18 Rules of Construction. In this Agreement, unless otherwise
---------------------
indicated, (i) defined terms may be used in the singular or the plural and the
use of any gender includes all genders, (ii) the words, "hereof", "herein",
"hereto", "hereby and "hereunder" refer to this entire Agreement and (iii) all
references to particular Articles or Sections are references to the Articles or
Sections of this Agreement.
Section 6.19 Defined Terms. All capitalized terms not defined herein shall
-------------
have the meanings ascribed to them in the Loan Agreement.
Section 6.20 Exhibits. All exhibits to this Agreement are incorporated
--------
within this Agreement and constitute a part thereof.
Section 6.21 Descriptive Headings. Descriptive headings of the several
--------------------
Articles and Sections of this Agreement are intended for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
Section 6.22 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute but one and the same instrument. All signatures need
not appear on the same copy hereof.
-33-
Section 6.23 Seal. This Agreement is intended to take effect as an
----
instrument under seal.
IN WITNESS WHEREOF, the Industrial Occupant, intending to be legally bound
hereby, has caused this Consent, Subordination and Assumption Agreement to be
executed on its behalf by the undersigned duly authorized officers and its
corporate seal to be affixed hereto as of the day and year first above written.
ATTEST: RESPIRONICS, INC.
/s/ Dorita A. Pishko /s/ James Woll
By________________________________ By______________________________________
Secretary Treasurer
(CORPORATE SEAL)
The terms and conditions of the foregoing Consent, Subordination and Assumption
Agreement are hereby approved and agreed to, with the express understanding that
the undersigned's obligations under the Loan Agreement, Note and Mortgage are
not relieved or in any way diminished by virtue of the Industrial Occupant's
execution of this Agreement:
ATTEST: CENTRAL WESTMORELAND DEVELOPMENT
CORPORATION
/s/ /s/ Anthony J. Caletri
By________________________________ By______________________________________
Secretary President
(CORPORATE SEAL)
-34-
EXHIBIT A
FIRST:
- - -----
ALL that certain piece, parcel or tract of land situate in the Municipality
of Murrysville, County of Westmoreland, Commonwealth of Pennsylvania, known
and designated as Lot 5 in the Respironics Plan, recorded in the Office
of the Recorder of Deeds of Westmoreland County, Pennsylvania, in Plan Book
Volume 90, pages 1131 and 1132 ("Respironics Plan"), and being more
particularly bounded and described as follows:
BEGINNING at a point on the southeasterly side of Old Logan Ferry Road on
the line of lands now or formerly R. E. Lott; thence along the lines of
lands now or formerly R. E. Lott and Lot 3 in the Sardis Heights Plan No.
2, recorded in the Office of the Recorder of Deeds of Westmoreland County,
Pennsylvania, in Plan Book Volume 26, page 50 ("Sardis Heights Plan No.
2"), South 70 degrees 38' 30" East, 488.291 feet to a point on the line of
Lot 6 in the Respironics Plan; thence along the line of Lot 6 in the
Respironics Plan, South 38 degrees 08' 30" East, 381.826 feet to a point;
thence continuing along the line of Lot 6 in the Respironics Plan, South
51 degrees 54' 00" West, 468.257 feet to a point; thence continuing along
the line of Lot 6 in the Respironics Plan, on a curve to the right having
a radius of 352.276 feet a central angle of 53 degrees 04' 16" for an arc
distance of 326.302 feet to a point; thence continuing along the line of
Lot 6 in the Respironics Plan, North 75 degrees 01' 44" West, 297.668 feet
to a point on the easterly side of Logan Ferry Road, S.R. 4057; thence along
the easterly side of Logan Ferry Road in a northerly direction by a curve
to the right having a radius of 25.000 feet a central angle of 84 degrees
49' 52" for an arc distance of 37.015 feet to a point on the easterly side
of Logan Ferry Road, S.R. 4057 (a 60.000 foot street); thence along the
easterly side of Logan Ferry Road in a northerly direction by a curve to
the left having a radius of 530.000 feet a central angle of 24 degrees 01'
56" for an arc distance of 222.304 feet to a point; then along same by a
curve to a right having a radius of 25.000 feet a central angle of 76 degrees
29' 13" for an arc distance of 33.374 feet to a point on the southeasterly
side of Old Logan Ferry Road (a 50.000 foot street); thence along the
southeasterly side of Old Logan Ferry Road in northerly direction by a curve
to the left having a radius of 323.410 feet a central angle of 30 degrees
09' 37" for an arc distance of 170.242 feet to a point; thence along the
southeasterly side of Old Logan Ferry Road, North 32 degrees 05' 50" East,
220.025 feet to a point; thence along same by a curve to the left having
a radius of 145.565 feet a central angle of 35 degrees 12' 50" for an arc
distance of 89.464 feet to a point, the place of beginning.
CONTAINING: 11.316 acres.
SECOND:
- - ------
ALL that certain piece, parcel or tract of land situate in the Municipality
of Murrysville, County of Westmoreland, Commonwealth of Pennsylvania, known
and designated as Lot 6 in the Respironics Plan, recorded in the Office
of the Recorder of Deeds of Westmoreland County, Pennsylvania, in Plan Book
Volume 90, pages 1131 and 1132 ("Respironics Plan"), and being more
particularly bounded and described as follows:
-35-
BEGINNING at a point common to Lot 5 and Lot 6 in the Respironics Plan and
the line of Lot 3 in the Sardis Heights Plan No. 2, recorded in the Office
of the Recorder of Deeds of Westmoreland County, Pennsylvania, in Plan Book
Volume 26, page 50 ("Sardis Heights Plan No. 2"); thence along the lines
of Lot 3, Margaretta Drive, Lot 6, Lot 7, Lot 8, and Lot 9, in the Sardis
Heights Plan No. 2 and lands now or formerly K. R. Reed, South 79 degrees
38' 30" East, 713.549 feet to a point; thence along the line of lands now
or formerly K. R. Reed, North 77 degrees 30' 20" East, 468.160 feet to a
point at the corner of lands now or formerly John Lott; thence along the
line of lands now or formerly John Lott, South 20 degrees 33' 20" East,
438.265 feet to a point on the line of lands now or formerly Alexander
McAlister; thence along the lines of lands now or formerly Alexander McAlister
and now or formerly R. D. Latta, South 69 degrees 26' 40" West, 1,872.155
feet to a point at the corner of Lot 3 in the Murry Ridge Corporate Center
Plan No. 3, recorded in the Office of the Recorder of Deeds of Westmoreland
County, Pennsylvania, in Plan Book Volume 90, pages 691 and 692 ("Murry
Ridge Corporate Center Plan No. 3:); thence along the line of Lot No. 3
in the Murry Ridge Corporate Center Plan No. 3, North 20 degrees 33' 20"
West, 323.455 feet to a point; thence along same, North 14 degrees 58' 16"
East, 106.555 feet to a point; thence along same, North 75 degrees 01' 44"
West, 219.688 feet to a point; thence through and across a 50' Private Access
and Utility Easement, North 14 degrees 58' 16" East, 50 feet to a point
on the line of Lot 5 in the Respironics Plan; thence along the line of Lot
5 in the Respironics Plan, South 75 degrees 01' 44" East, 297.668 feet to
a point; thence on a curve to the left having a radius of 352.276 feet a
central angle of 53 degrees 04' 16" for an arc distance of 326.302 feet
to a point; thence continuing along the line of Lot 5 in the Respironics
Plan, North 51 degrees 54' 00" East, 468.257 feet to a point; thence continuing
along the line of Lot 5 in the Respironics Plan, North 38 degrees 08' 30"
West, 381.826 feet to a point, the place of beginning.
CONTAINING: 21.635 acres.
-36-
EXHIBIT 2.03
NECESSARY APPROVALS
-------------------
NONE
-37-
EXHIBIT 2.05
LITIGATION
----------
[INSERT EXHIBIT OF RESPIRONICS, INC. TO BE PROVIDED BY ITS
---------------------------------------------------------
COUNSEL WITH RESPECT TO A PATENT DISPUTE]
----------------------------------------
-38-
LETTERHEAD OF REED SMITH SHAW & MCCLAY
436 SIXTH AVENUE
MAILING ADDRESS: WASHINGTON, DC
P.O. BOX 2009 PITTSBURGH, PA 15219-1886 PHILADELPHIA, PA
PITTSBURGH, PA 15230-2008 HARRISBURG, PA
412-288-3131 MCLEAN, VA
FACSIMILE 412-288-3083 PRINCETON, NJ
WRITER'S DIRECT DIAL NUMBER
(412) 288-7224 February 21, 1995
VIA FACSIMILE
- - -------------
Charles J. Millman, Esq.
Pennsylvania Department of Commerce
Office of the Chief Counsel
416 Forum Building
Harrisburg, PA 17120-0025
James J. Conte, Esq.
101 North Main Street
Greensburg, PA 15601
Re: Consent, Subordination and Assumption Agreement
by Respironics, Inc. and Central Westmoreland
Development Corporation in favor of the
Pennsylvania Industrial Development Authority
(the "Agreement")
-----------------------------------------------
Dear Charles and Jim:
Attached hereto please find a description of a patent infringement
action filed by ResCare Limited against Respironics, Inc., which must be
disclosed in Section 2.05 of the above-referenced Agreement.
If you have any comments or questions, please do not hesitate to give
me a call.
Very truly yours,
/s/ Ted R. Heuston
-----------------------------------
Ted R. Heuston
TRH:jmj
Attachment
-39-
PART 2 OTHER INFORMATION
Item 1: Legal Proceedings
On January 9, 1995 ResCare Limited ("ResCare") filed an action
against the Company in United States District Court for the Southern
District of California (Civil Action No. '95 0032K (AJB)) alleging
that in the manufacture and sale in the United States of nasal
masks and CPAP systems and components, the Company infringes
three United States patents, two of which are owned by and one
of which is licensed to ResCare. In its complaint (served on
the Company on February 3, 1995), ResCare seeks preliminary and
permanent injunctive relief, an accounting for damages and an
award of three times actual damages because of the alleged actual
knowledge of the infringement, plus counsel fees and costs.
On February 1, 1995 the Company filed Civil Action No. 95-0151
in the United States District Court for the Western District
of Pennsylvania against ResCare seeking a declaratory judgement
that the claims of the three patents referred to in the preceding
paragraph are invalid and that the Company does not infringe
upon the same.
It is the Company's belief, based upon the information available
to it at the present time, that none of its products infringe
any of the patents referred to in the first paragraph above in
the event that any one or more of such patents should be held
to be valid. The Company intends vigorously to defend the litigation
referred to in the first paragraph and to vigorously pursue the
litigation referred to in the second paragraph. The sale of
the products which ResCare alleges infringe the patents in question
constitute approximately one half of the sales of the Company's
products used for the treatment of obstructive sleep apnea.
-40-
EXHIBIT 2.09
LIABILITIES NOT PREVIOUSLY DISCLOSED
------------------------------------
EXHIBIT 2.11
ERISA DISCLOSURES
-----------------
NONE
EXHIBIT 2.12
ENVIRONMENTAL DISCLOSURES
-------------------------
PHASE I ENVIRONMENTAL ASSESSMENT: Prepared in 1989 and reissued August 1991.
Originally conducted by KEYSTONE ENVIRONMENTAL on a 70 acre parcel in which the
Premises lies. Also, a letter dated March 16, 1994 from Gary Edwards of CHESTER
ENVIRONMENTAL (formerly KEYSTONE) was provided. No significant hazards or
problems reported.
EXHIBIT 2.13
ACTS OF BANKRUPTCY
------------------
NONE
EXHIBIT 2.14
CRIMINAL CONVICTIONS
--------------------
NONE
EXHIBIT 2.15
OCCUPANCY AGREEMENTS
--------------------
NONE
EXHIBIT 2.16
NECESSARY PERMITS
-----------------
NONE
-41-
EXHIBIT 2.17
NECESSARY TECHNOLOGY, ETC.
--------------------------
NONE
EXHIBIT 2.18
VIOLATIONS
----------
NONE
EXHIBIT 2.19
PERMITTED LIENS
---------------
First Mortgage Lien: That certain Mortgage and Security Agreement on the
- - -------------------
Premises from the Industrial Occupant to PITTSBURGH NATIONAL BANK, dated
November 1, 1989, and recorded on November 15, 1989 in Westmoreland County
Mortgage Book volume 2505, page 0185, in the original principal amount of Two
---- ----
Million Four Hundred Fifty-Nine Thousand One Hundred Seventy-Eight Dollars
($2,459,178.00), of which amount only a lien in the principal amount of One
Million Four Hundred Two Thousand One Hundred Eleven Dollars ($1,402,111) shall
have priority over the Mortgage (by virtue of a Mortgage Subordination
Agreement, executed by PITTSBURGH NATIONAL BANK et al. on April 20, 1990 and
recorded on April 30, 1990 in Westmoreland County Mortgage Book volume 2559,
----
page 027), which first mortgage lien has an outstanding principal balance not in
---
excess of One Million One Hundred Forty-Three Thousand Eighty-Nine Dollars
($1,143,089).
Subordinate Lien: That certain Open-End Mortgage, dated June 21, 1994, from the
- - ----------------
Industrial Occupant to the Pennsylvania Department of Commerce in the principal
amount of $978,395, to secure a BID Loan to the Redevelopment Authority of the
County of Westmoreland. Said mortgage was recorded on June 27, 1994 in
Westmoreland County Mortgage Book volume 3414 page 025.
---- ---
Subordinate Lien: That certain Mortgage, dated June 5, 1990, from the Industrial
- - ----------------
Occupant to the Redevelopment Authority of the County of Westmoreland in the
principal amount of $610,870. Said mortgage was recorded in Westmoreland County
Mortgage Book volume 2574 page 235.
---- ---
-42-
EXHIBIT 4.05
NONDISCRIMINATION CLAUSE
------------------------
During the term of this contract, Industrial Occupant agrees as follows:
1. Industrial Occupant shall not discriminate against any employe, applicant for
employment, independent contractor or any other person because of race, color,
religious creed, ancestry, national origin, age or sex. Industrial Occupant
shall take affirmative action to insure that applicants are employed, and that
employes or agents are treated during employment, without regard to their race,
color, religious creed, handicap, ancestry, national origin, age or sex. Such
affirmative action shall include, but is not limited to: employment, upgrading,
demotion or transfer, recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for
training. Industrial Occupant shall post in conspicuous places, available to
employes, agents, applicants for employment and other persons, a notice to be
provided by the contracting agency setting forth the provisions of this
nondiscrimination clause.
2. Industrial Occupant shall in advertisements or requests for employment placed
by it or on its behalf, state that all qualified applicants will receive
consideration for employment without regard to race, color, religious creed,
handicap, ancestry, national origin, age, or sex.
3. Industrial Occupant shall send each labor union or workers' representative
with which it has a collective bargaining agreement or other contract or
understanding, a notice advising said labor union or workers' representative of
its commitment to this nondiscrimination clause. Similar notice shall be sent
to every other source of recruitment regularly utilized by Industrial Occupant.
4. It shall be no defense to a finding of noncompliance with this
nondiscrimination clause that Industrial Occupant had delegated some of its
employment practices to any union, training program or other source of
recruitment which prevents it from meeting its obligations. However, if the
evidence indicates that the Industrial Occupant was not on notice of the third-
party discrimination or made a good faith effort to correct it, such factor
shall be considered in mitigation in determining appropriate sanctions.
5. Where the practices of a union or of any training program or other source of
recruitment will result in the exclusion of minority group persons, so that
Industrial Occupant will be unable to meet its obligations under this
nondiscrimination clause, Industrial Occupant shall then employ and fill
vacancies through other nondiscriminatory employment procedures.
6. Industrial Occupant shall comply with all state and federal laws prohibiting
discrimination in hiring or employment opportunities. In the event of
Industrial Occupant's noncompliance with the nondiscrimination clause of this
contract or with any such laws, this contract may be terminated or suspended, in
whole or in part, and Industrial Occupant may be declared temporarily ineligible
for further Commonwealth contracts, and other sanctions may be imposed and
remedies invoked.
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7. Industrial Occupant shall furnish all necessary employment documents and
records to, and permit access to its books, records and accounts by, the
contracting agency for purposes of investigation to ascertain compliance with
the provisions of this clause. If Industrial Occupant does not possess
documents or records reflecting the necessary information requested, it shall
furnish such information on reporting forms supplied by the contracting agency.
8. Industrial Occupant shall actively recruit minority subcontractors and women
subcontractors or subcontractors with substantial minority representation among
their employees.
9. Industrial Occupant shall include the provisions of this nondiscrimination
clause in every subcontract, so that such provisions will be binding upon each
subcontractor.
10. Industrial Occupant obligations under this clause are limited to the
Industrial Occupant's facilities within Pennsylvania or, where the contract is
for purchase of goods manufactured outside of Pennsylvania, the facilities at
which such goods are actually produced.
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EXHIBIT 6.05
CONTRACTOR RESPONSIBILITY PROVISIONS
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1. Contractor certifies that it is not currently under suspension or
debarment by the Commonwealth, any other state, or the federal government.
2. If contractor enters into any subcontracts under this contract with
subcontractors who are currently suspended or debarred by the Commonwealth or
federal government or who become suspended or debarred by the Commonwealth or
federal government during the term of this contract or any extensions or
renewals thereof, the Commonwealth shall have the right to require the
contractor to terminate such subcontracts.
3. The contractor 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 contractor's
compliance with the terms of this or any other agreement between the contractor
and the Commonwealth which results in the suspension or debarment of the
contractor.
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EXHIBIT 6.06
CONTRACTOR INTEGRITY PROVISION
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1. Definitions.
a. Confidential information means information that is not public knowledge,
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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
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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. Contractor 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, or holding any position of management.
e. Gratuity means any payment of more than nominal monetary value in the
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form of cash, travel, entertainment, gifts, meals, lodging, loans,
subscriptions, advances, deposits of money, services, employment, or contracts
of any kind.
2. The contractor shall 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 contractor shall not disclose to others any confidential information
gained by virtue of this Agreement.
4. The contractor shall not, in connection with this or any other agreement
with the Commonwealth, directly or indirectly offer, confer, or agree to confer
any pecuniary benefit on anyone as consideration for the decision, opinion,
recommendation, vote, other exercise of discretion, or violation of a known
legal duty by any officer or employee of the Commonwealth.
5. The contractor shall not, in connection with this or any other agreement
with the Commonwealth, directly or indirectly, offer, give, or agree or promise
to give to anyone any gratuity for the benefit of or at the direction or request
of any officer or employee of the Commonwealth.
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6. Except with the consent of the Commonwealth, neither the contractor 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 contractor shall not
have a financial interest in any other contractor, subcontractor, or supplier
providing services, labor, or material on this project.
8. The contractor, upon being informed that any violation of these
provisions has occurred or may occur, shall immediately notify the Commonwealth
in writing.
9. The contractor, by execution of this Agreement and by the submission of
any bills or invoices for payment pursuant thereto, certifies and represents
that he has not violated any of these provisions.
10. The contractor, upon the inquiry or request of the Inspector General of
the Commonwealth or any of that official's agents or representatives, shall
provide, or if appropriate, make promptly available for inspection or copying,
any information of any type or form deemed relevant by the Inspector General to
the contractor'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 contractor'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 contractor
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 contractor, 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
contractor to complete performance hereunder, and debar and suspend the
contractor 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 6.07
AMERICANS WITH DISABILITIES ACT PROVISIONS
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During the term of this contract, the Industrial Occupant agrees as
follows:
1. Pursuant to federal regulations promulgated under the authority of The
Americans With Disabilities Act, 28 C.F.R. (S)35.101 et seq., the Industrial
Occupant 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 Industrial Occupant agrees to comply with the
"General Prohibitions Against Discrimination," 28 C.F.R. (S)35.130, and all
other regulations promulgated under Title II of The Americans With Disabilities
Act which are applicable to the benefits, services, programs, and activities
provided by the Commonwealth of Pennsylvania through contracts with outside
contractors.
2. The Industrial Occupant 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 Borrower's failure to comply
with the provisions of paragraph 1 above.
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COMMONWEALTH OF PENNSYLVANIA :
: SS
COUNTY OF WESTMORELAND :
ON THIS, the 22nd day of February, 1995, before me, the undersigned officer,
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personally appeared JAMES C. WOLL, who acknowledged himself to be the Treasurer
of RESPIRONICS, INC., a Delaware corporation and the within named Industrial
Occupant, and that he as such officer being authorized to do so, executed the
foregoing instrument for the purpose therein contained by signing the name of
the corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Beverly J. Hopwood
------------------------------
Notary Public
My Commission Expires: Seal of:
COMMONWEALTH OF PENNSYLVANIA :
: SS
COUNTY OF WESTMORELAND :
ON THIS, the 22nd day of February, 1995, before me, the undersigned officer,
personally appeared ANTHONY J. CALETRI, who acknowledged himself to be the
President of CENTRAL WESTMORELAND DEVELOPMENT CORPORATION, a nonprofit
corporation and the within named Borrower, and that he as such officer being
authorized to do so, executed the foregoing instrument for the purpose therein
contained by signing the name of the corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Beverly J. Hopwood
------------------------------
Notary Public
My Commission Expires: Seal of:
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Certificate of Residence of PIDA
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I hereby certify that the precise residence and complete post office address
of The Pennsylvania Industrial Development Authority is: Room 481, Forum
Building, c/o Department of Commerce, Harrisburg, Pennsylvania 17120.
/s/ Charles J. Millman
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Charles J. Millman, Assistant Counsel
Attorney for PIDA
RECORDED in the Office for the Recording of Deeds, in and for the County of
Westmoreland, in ____________ Book Volume _________, page _________.
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(Title)
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