EXHIBIT 10(c)
OPEN-END
MORTGAGE
THIS MORTGAGE SECURES FUTURE ADVANCES
THIS MORTGAGE is made on January 14, 1997 by NUCLEAR RESEARCH
CORPORATION, a Pennsylvania corporation, 000 Xxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx, 00000 ("Borrower") in favor of CORESTATES BANK, N.A., a national
banking association, 0000 Xxxx Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx, 00000
("Lender"). INTENDING TO BE LEGALLY BOUND, Borrower agrees as follows:
1. LOAN TERMS -
(a) This is an open-end Mortgage that secures future
advances under a term loan from Lender to Borrower. The maximum amount of the
loan secured by this Mortgage is ONE MILLION EIGHT HUNDRED THOUSAND DOLLARS
($1,800,000.00) (the "Principal Sum"). This Mortgage shall have the full force,
effect and benefit of a Mortgage to secure advances of money, the lien for which
shall relate back to the date of the Mortgage.
(b) Borrower has executed and delivered to Lender this
Mortgage and a Promissory Note ("Note") of even date herewith, which is hereby
incorporated herein by reference, to secure repayment of the Principal Sum,
interest and all unpaid balances of advances made with respect to the Mortgaged
Premises for the payment of taxes, assessments, maintenance charges, insurance
premiums and costs incurred for the protection of the Mortgaged Premises, as
defined herein, or the lien of the Mortgage, expenses incurred by the Lender by
reason of default by the Borrower under the Mortgage and advances made under a
construction loan to enable completion of the improvements for which the
construction loan was originally made, if applicable, all of which are included
in and called "Entire Indebtedness". This Mortgage secures the Note and any
extension, modification or renewal thereof.
2. LENDER'S INSPECTION - Any right or privilege given Lender to
inspect the Mortgaged Premises, whether under this Mortgage, the Note, any
construction loan agreement, mortgage application, or otherwise, and any actual
inspection made by the Lender, its agents, servants, employees, appraisers,
engineers, or architects, shall be deemed to be made for the sole and exclusive
benefit of the Lender. The Borrower, the Borrower's heirs, successors and
assigns, and the Borrower's tenants, agents, servants, employees, visitors and
all other parties shall not be deemed to be beneficiaries for any purpose of any
such inspection. Any approval of the Mortgaged Premises or of any construction
of improvements thereon as the result of any such inspection by Lender or others
acting on behalf of Lender shall not be deemed any kind of
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warranty of fitness for any purpose. Lender shall have no liability of any kind
to any party as a result of any inspection or investigation of the Mortgaged
Premises or otherwise.
3. MORTGAGED PREMISES - To secure the payment of the Entire
Indebtedness and in consideration of the loan from Lender to Borrower, Borrower
does hereby grant and convey unto Lender the premises herein called "Mortgaged
Premises", consisting of:
ALL THAT CERTAIN lot or Piece of ground,. with buildings
and improvements now thereon erected, if any, and to be erected, situate and
bounded and described as is more particularly set forth in the legal description
attached hereto, made a part hereof, and marked Exhibit "A".
TOGETHER WITH:
(a) All the right, title and interest of Borrower in and
to all the rights, covenants, privileges and appurtenances thereunto belonging
or in any wise appertaining, and together with all buildings and improvements
presently thereon and hereafter constructed thereon; and
(b) Borrower's fixtures, machinery, improvements,
including but not limited to all furnaces, boilers, elevators, heaters,
switchboards, electrical equipment1 heating, plumbing, refrigerating,
ventilating, air-cooling and air-conditioning apparatus and systems, electrical
and all other mechanical systems, gas and electrical fixtures, fittings,
machinery, fire protection equipment, and all other building service equipment
used in connection with the operation and maintenance of the buildings and
improvements; and
(c) Any and all tenements, hereditaments and
appurtenances belonging to the real estate or any part thereof hereby mortgaged
or intended so to be, or in any way appertaining thereto, and all streets,
alleys, passages, ways, water courses and all easements and covenants now
existing or hereafter created for the benefit of the Borrower or any subsequent
owner or tenant of the Mortgaged Premises over ground adjoining the Mortgaged
Premises and all rights to enforce the maintenance thereof, and all other
rights, liberties and privileges of whatsoever kind or character, and the
reversions and remainders, income, rents, issues and profits arising therefrom,
and all the estate, right, title, interest, property, possession, claim and
demand whatsoever, at law or in equity, of the Borrower in and to the Mortgaged
Premises or any part thereof. (All of the above-mentioned Mortgaged Premises,
buildings, improvements, fixtures, machinery, equipment, tenements,
hereditaments and appurtenances, and other property interest are sometimes
collectively referred to herein as the "Mortgaged Property".)
TO HAVE AND TO HOLD the Mortgaged Property hereby
conveyed or mentioned and intended so to be, unto Lender, to its own use
forever.
PROVIDED ALWAYS, and this instrument is upon the express
condition that, if Borrower pays to Lender the Principal Sum mentioned in the
Note, the interest thereon
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and all other sums payable by Borrower to Lender as are secured hereby, in
accordance with the provisions of the Note and this Mortgage, at the times and
in the manner specified, without deduction, fraud or delay, and Borrower
performs and complies with all the agreements, conditions, covenants, provisions
and stipulations contained herein and in the Note, then this Mortgage, and the
estate hereby granted shall cease and become void.
4. BORROWER WARRANTS. COVENANTS AND AGREES -
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(a) That Borrower has good and valid title to the
Mortgaged Premises and that it has the right, full power and lawful authority to
grant, bargain, sell, convey, assign, transfer, mortgage, pledge, set over and
confirm the same to the Lender in the manner and form herein accomplished. The
Mortgaged Premises are free and clear of all encumbrances except as set forth
herein and in the title search obtained by Lender in connection with this
Mortgage. The Lender, its successors and assigns will quietly enjoy and possess
the Mortgaged Premises to the extent provided in this Mortgage, and Borrower
will warrant and defend the rights or title of the Lender to the Mortgaged
Premises against all lawful claims not herein specifically excepted;
(b) That all financial statements presented to Lender
are true and correct, and no adverse change in the financial circumstances of
Borrower has occurred since the foregoing were presented to Lender. Borrower
shall give written notice to Lender of any adverse change in the financial
circumstances of Borrower;
(c) To pay all installments of interest and principal to
Lender and the Entire Indebtedness as set forth herein;
(d) To pay when due and payable and before interest or
penalties are due thereon all taxes, local, state and federal, water and sewer
rents, assessments and all other charges or claims which may be assessed or
levied or a lien on the Mortgaged Premises, and to produce to Lender at or
before the last day upon which they may be paid without penalty or interest,
receipts of the current year proving payment of all such taxes, water and sewer
rents, assessments, charges and claims; provided that, if Borrower shall have
deposited with Lender before the due date thereof sums sufficient to pay such
taxes, water and sewer rents, assessments, charges or claims, the same shall be
paid by Lender;
(e) To maintain insurance on the Mortgaged Premises of
such kinds, in such amounts, and in such companies as are satisfactory to
Lender, and if this insurance or any part thereof shall expire, or be withdrawn,
or become void by breach of any condition thereof by Borrower, or become void or
unsafe by reason of the failure, or impairment of the capital of any company in
which said insurance may then be, or if for any other reason whatsoever this
insurance shall become unsatisfactory to Lender, to effect new insurance on said
Mortgaged Premises satisfactory to Lender; and to pay as they shall become due
all premiums for such insurance; and to lodge with Lender, as further security
for said indebtedness, all policies therefor, with loss payable clauses attached
in favor of and acceptable to Lender. In the event of loss, Borrower will give
immediate notice by mail to Lender, and Lender may make proof of loss
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if not made promptly by Borrower. Borrower hereby directs any insurance company
concerned to pay directly to Lender any moneys not in excess of the unpaid
balance of the Entire Indebtedness which may become payable under such
insurance, including return of unearned premiums, such moneys, or any part
thereof, to be applied at the option of Lender to said unpaid balance or to the
repair of the property damaged; and Borrower appoints Lender as attorney-in-fact
to endorse any draft therefor. In the event of foreclosure of the Mortgage or
other transfer of title to the Mortgaged Premises, all right, title and interest
of Borrower to any insurance policies then in force covering the Mortgaged
Premises shall pass to the transferee of the Mortgaged Premises. All policies
shall be maintained in full force and effect, shall be assigned and delivered to
Lender with premiums prepaid as collateral security for the payment of the
indebtedness secured hereby, shall be endorsed with a standard mortgagee and
loss payee clause in favor of Lender, not subject to contribution, and shall
provide for at least twenty (20) days notice of cancellation to Lender. If the
insurance, or any part thereof, shall expire, or be withdrawn, or become void by
Borrower's breach of any condition thereof, or become void or unsafe by reason
of the failure or impairment of the capital of any company in which the
insurance may then be carried, or if for any reason whatsoever the insurance
shall be unsatisfactory to Lender, Borrower shall place new insurance on the
Mortgaged Property, satisfactory to Lender. All renewal policies, with premiums
paid, shall be delivered to Lender at least twenty (20) days before expiration
of the old policies.
(f) To maintain the Mortgaged Premises in good repair,
order and condition; not to remove, demolish or materially alter the Mortgaged
Premises; not to remove from the Mortgaged Premises fixtures, appliances and
equipment of any nature covered by the lien of the Mortgage without having
obtained the prior written consent of Lender; and Borrower will not make,
install, or permit to be made or installed, any alterations, additions,
improvements, fixtures, appliances or equipment of any nature to or in the
Mortgaged Premises without obtaining the prior written consent of Lender, which
consent Lender hereby reserves the right to refuse to grant;
(g) To comply with all laws, ordinances, regulations and
orders relating to the Mortgaged Premises by all federal, state, municipal and
other authorities, including by way of example but not in limitation, zoning and
subdivision ordinances, building codes and Board of Health regulations;
(h) To notify Lender promptly of commencement of any
proceedings for condemnation of Mortgaged Premises and to permit Lender to
participate in such proceedings and to receive the proceeds of the condemnation
up to the amount of the Entire Indebtedness;
(i) If requested, to furnish Lender within one hundred
twenty (120) days of the close of each fiscal year financial statements in form
and detail satisfactory to Lender;
(j) To pay, when due and payable and before interest and
penalties are due thereon, all taxes owing by Borrower to the United States of
America, the Commonwealth of Pennsylvania, and any political or municipal
subdivisions thereof, including income taxes, individual, partnership,
corporation or other entity income or other taxes, estate, inheritance and
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real estate taxes and any other taxes, and to produce to Lender, on or before
September l of each year, copies of all tax returns filed and tax bills issued
or received during she previous twelve (12) months and receipts evidencing the
full payment of all amounts known to be due on such returns, and, within twenty
(20) days of receipts thereof, all settlements, notices of deficiency or
overassessment and any other notices pertaining to Borrower's tax liability
(except, in the event any tax is being disputed in good faith, payment need not
be made until the contest is finally determined, provided there is deposited
with Lender security if and as required by Lender to protect Lender against
delay and nonpayment of the tax);
(k) To perform every obligation of the lessor and to
enforce every obligation of the lessee in every lease that is assigned to Lender
or any tenancy in which the rents are assigned to Lender, and not to modify,
alter, waive or cancel any such lease or any part thereof, nor anticipate for
more than one month any rents that may be collectible under such lease or that
may have been assigned to Lender; nor assign any such lease or any such rents;
(l) If Lender shall become a party, by intervention or
otherwise, to any action or proceeding, including insolvency or bankruptcy
proceedings, affecting the Mortgaged Premises or the title thereto or Lender's
interest under this Mortgage, or if Lender employs an attorney to collect any of
the indebtedness or to enforce performance of the obligations, covenants and
agreements secured hereby, Borrower shall reimburse Lender, forthwith upon
written notice and without further demand, for all reasonable costs, charges and
counsel fees incurred by Lender, in any such case, whether or not suit be
commenced, and the same shall be secured hereby as a further charge and lien
upon the Mortgaged Premises.
(m) In the event of default, to pay to Lender, on
demand, all costs and expenses incurred by Lender in connection with the curing
of any such default or the collection of sums secured hereby, including but not
limited to cost of any title search and reasonable attorneys' fees;
(n) To permit Lender, or any persons authorized by
Lender, to enter and inspect the Mortgaged Premises at all reasonable times,
and, in the event of any default by Borrower under the terms of this Mortgage or
accompanying Note, to employ for duration of default as managing agent of the
Mortgaged Premises the person or persons designated by Lender;
(o) To restore, repair or rebuild promptly any part of
Mortgaged Premises damaged by fire or any other casualty;
(p) Not to initiate, join in or consent to any change in
any private restrictive covenant, easement, right of way, zoning ordinance, or
other public or private restrictions relating to use of Mortgaged Premises or
any part thereof;
(q) Not to permit any writ of any execution process to
be levied against the Mortgaged Premises and not to permit any judicial sale
thereof; not to make any assignment for the benefit of creditors;
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(r) Not to permit the appointment of a receiver,
liquidator or trustee of the Borrower or of any of the property of Borrower,
insolvency of the Borrower or the adjudication of Borrower as a bankrupt, or the
filing of any petition for the bankruptcy, reorganization or arrangement of
Borrower pursuant to the Federal Bankruptcy Act or any similar statute, or the
institution of any proceeding for the dissolution or liquidation of Borrower;
(s) That Borrower will warrant and defend the lien of
this instrument to be at all times a fourth lien on the Mortgaged Premises,
subject only to easements and agreements of record prior to the recording of
this Mortgage and under and subject to the following existing mortgages in favor
of Lender: (i) $1,160,000.00 dated May 21, 1993; (ii) $300,000.00 dated August
21, 1995 and (iii) $300,000.00 dated February 21, 1992.
5. HAZARDOUS SUBSTANCES; WASTES -
(a) To Borrower's knowledge, after due inquiry, no
Hazardous Substances have been disposed of on or in the Mortgaged Premises
through any means at any time prior to Borrower's ownership thereof and Borrower
is aware of no condition on or affecting the Mortgaged Premises which
constitutes or might constitute an environmental health hazard.
(b) "Hazardous Substances" shall mean hazardous wastes,
hazardous substances, hazardous materials, toxic substances, hazardous air
pollutants or toxic pollutants, as those terms are used in any law, guideline,
regulation or ruling of any governmental body and petroleum products, including
gasoline, diesel fuel, motor oil, waste or used oil and heating oil which are
not permitted to be located on the premises by any requirement of any
governmental body or in excess of that which is normally used in the operation
of the Borrower's business.
(c) Borrower hereby represents and warrants that
Borrower has substantially complied with, is currently in substantial compliance
with, has not been charged with, has not received any notice of, and is not
under investigation for the failure to substantially comply with any and all
laws of any governmental body relating to environmental protection matters, and,
specifically, those relating to Hazardous Substances.
(d) Borrower covenants to the Lender that Borrower shall
use all reasonable efforts to prevent the deposit, storage, emission, discharge
or release by Borrower of any Hazardous Substances on its properties unless such
deposit, storage, emission, discharge or release is authorized by and in full
compliance with a duly issued permit, license, authorization or other approval
of a governmental body. Borrower shall notify Lender promptly of any significant
or material environmental event, circumstance or condition relating to its
properties. Borrower hereby indemnifies, defends and holds harmless Lender from
and against any claim, demand, loss or liability, including, but not limited to,
costs of remedial action, response costs, personal injury and property damage,
directly or indirectly arising out of or attributable to the use1 generation,
deposit, storage, release, threatened release, discharge, disposal, burial,
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dumping, spilling, leaking or other presence of Hazardous Substances on, under
or about the Mortgaged Premises.
(e) If an event of default under this Mortgage shall
occur, then Borrower shall, upon reasonable notice and at all reasonable times,
permit such visitation of such persons as the Lender may select in connection
with the Lender's consideration of enforcement or preservation of tights under
this Mortgage, any Note or any related documents, to visit its properties and
perform such reasonable environmental site investigations and assessments on its
properties for the purposes of determining whether there exists on its
properties any environmental condition which could result in any liability, cost
or expense to the owner or occupier thereof relating to Hazardous Substances.
Borrower will supply to the Lender's representatives such historical and
operational information, including the results of all samples sent for analysis,
correspondence with governmental bodies and previous environmental audits or
environmental reviews regarding its properties as are within its possession,
custody or control or which are reasonably available to it and which may be
reasonably requested by the Lender to facilitate Lender's assessment of any
environmental violations, on the properties of Borrower.
(f) Borrower shall defend, indemnify, and hold harmless
Lender and its directors, officers, agents and employees, from any and all
liabilities (including strict liability), actions, demands, penalties, losses,
costs, or expenses (including without limitation attorneys' fees and expenses,
and remedial costs), suits, costs of any settlement or judgment, and claims of
any and every kind whatsoever which may now or in the future (whether before or
after the satisfaction of this Mortgage) be paid, incurred, or suffered by or
asserted against Lender by any person or entity or governmental agency for, with
respect to, or as a direct or indirect result of, the presence on or under, or
the escape, seepage, leakage, spillage, discharge, emission, or release from the
Premises of any Hazardous Substances or arise out of or result from the
environmental condition of the Premises or the violation of any Environmental
Laws regardless of whether or not caused by or within the control of Borrower or
Lender except for acts or omissions of Bank, its employees or authorized agents.
The representations, covenants, warranties, and indemnifications contained in
this paragraph shall survive the satisfaction and payment in full of this
Mortgage.
6. EVENTS OF DEFAULT - Upon the happening of any of the following
events, each of which shall constitute a default hereunder, all liabilities of
Borrower to Lender, at the option of Lender, shall become immediately due and
payable:
(a) Failure of Borrower to pay the principal or interest
on the Note when due or on any renewal, extension or other modification of the
Note or failure to pay when due any interest or installment on any other
obligation of any nature whatsoever owing to Lender within fifteen (15) days
after the same shall become due and owing;
(b) Failure of Borrower to perform any obligation owing
to Lender under the Note, this Mortgage or any agreement with Lender not cured
within thirty (30) days after notice thereof is given by Lender to Borrower or
material breach of any representation, warranty,
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covenant or agreement herein contained or contained in the Note or in any other
agreement now or hereafter entered into between Borrower and Lender;
(c) The filing of bankruptcy, receivership or insolvency
proceedings of any kind by or against Borrower or the making by Borrower of an
assignment for the benefit of creditors;
(d) Any execution shall have been levied against tie
Mortgaged Premises or against any other property of the Borrower, on account of
a judgment in excess of Twenty- Five Thousand Dollars ($25,000.00) and shall
continue unstayed and in effect for a period of ten (10) days;
(e) The furnishing of materially false information
heretofore or hereafter by Borrower to Lender or the refusal by Borrower to
provide material information hereafter;
(f) Any change in the financial condition of Borrower
which causes Lender in good faith to believe that performance of the obligations
herein is impaired or doubtful;
(g) The occurrence of any event of default as defined in
the Note or the Loan Agreement;
(h) The dissolution, merger, consolidation or
reorganization of Borrower corporation;
(i) Any change occurs in the control of Borrower unless
the new control person(s) are reasonably satisfactory to Lender.
7. REMEDIES UPON DEFAULT - In the event of any default of Borrower or
in the event of condemnation of all or part of the Mortgaged Premises, unless
the Lender agrees otherwise, in addition to all other rights and remedies of the
Lender given by the Note, Loan Agreement and by law, Lender shall have the
following rights, privileges and remedies:
(a) The Entire Indebtedness shall, at the option of
Lender and without notice or demand to Borrower, become due and payable
immediately. Payment of the same may be enforced and recovered in whole or in
part at any time and from time to time by one or more of the remedies in this
Mortgage or the Note, or both.
(b) Lender may recover as part of the Entire
Indebtedness all costs of suit, including the cost of title searches, attorneys'
fees, appraisal fees, inspections and all "out-of-pocket" expenses, and, in
addition thereto, reasonable attorneys' fees.
(c) Lender may institute an action of mortgage
foreclosure, or take such other action, as the law may allow, at law or in
equity, for the enforcement thereof and
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realization on the mortgage security or any other security which is herein or
elsewhere provided for, and proceed thereon to final judgment and execution
thereon for the Entire Indebtedness, with interest at the rate stipulated in the
Note to the date of default and thereafter at a rate not less than two percent
(2%) per annum above the rate extant on the date of such default, together with
all other sums secured by this Mortgage, all costs of suit, interest at not less
than two percent (2%) per annum above the rate extant on the date of such
default, on any judgment obtained by Lender from and after the date of any
Sheriff's sale of the Mortgaged Premises until actual payment is made by the
Sheriff of the full amount due Lender. Borrower hereby authorizes and empowers
any attorney or attorneys or the Prothonotary or Clerk of any Court of the
Commonwealth of Pennsylvania to appear for Borrower in any such Court in any
appropriate action there or elsewhere brought at the suit of Lender with or
without declaration filed, as of any term, and to confess or enter judgment, or
both, against Borrower for the Entire Indebtedness due under this Mortgage and
the Note, with the cost of suit, and for so doing this Mortgage or a copy hereof
verified by affidavit shall be sufficient warrant. Any attorney authorized to
act for Borrower to confess judgment against Borrower may also act for and on
behalf of Lender. Borrower executes this authorization for confession of
judgment KNOWINGLY, UNDERSTANDINGLY AND VOLUNTARILY. Borrower waives the
requirement for any further explanation of Borrower's rights.
(d) Lender may enter into possession of the Mortgaged
Premises, and, in addition to its other rights and remedies, exercise the
general rights of a Lender in possession, with or without legal action, and by
force if necessary, collect all rentals therefrom and, after deducting all costs
of collection and administration expense, apply the net rentals to the payment
of taxes, water and sewer rents, charges and claims, insurance premiums and all
other carrying charges, and to the maintenance, repair or restoration of the
Mortgaged Premises, or on account and in reduction of the principal or interest
hereby secured, in such order and amounts as Lender, in Lender's sole
discretion, may elect; and for said purpose, Borrower hereby assigns to Lender
all rentals due and to become due under any lease or leases of the Mortgaged
Premises, whether now existing or hereafter created, as well as all rights and
remedies provided in such lease or leases for the collection of said rents; and
Borrower hereby authorizes and empowers any attorney or attorneys of any Court
of the Commonwealth of Pennsylvania or elsewhere to appear for Borrower and as
attorney for Borrower to sign an agreement for entering an amicable action of
ejectment for possession of the Mortgaged Premises, and to confess judgment
therein against Borrower and all others claiming under or through Borrower, in
favor of Lender, whereupon a writ of possession may immediately issue for the
possession of the Mortgaged Premises, without any prior writ or proceeding
whatsoever; and for so doing, this Mortgage or a copy hereof verified by
affidavit shall be a sufficient warrant. Lender may bring such amicable action
in ejectment before or after the institution of foreclosure proceedings upon
this Mortgage, or after judgment thereon or on the Note, or after a Sheriff's or
any Judicial Sale of the Mortgaged Premises. If for any reason after such action
has been commenced it shall be discontinued, or possession of the Mortgaged
Property shall remain in or be restored to Borrower, Lender shall have the right
for the same default or any subsequent default to bring one or more further
amicable actions as above provided to recover possession of the Mortgaged
Premises. Lender may bring an amicable action in ejectment and confess judgment
therein before or after the institution of proceedings to foreclose this
Mortgage or to enforce the Note, or after entry of
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judgment therein or on the Note, or after a Sheriff's Sale of the Mortgaged
Property in which Lender is the successful bidder, it being the understanding of
the parties that the authorization to pursue such proceedings for obtaining
possession and confessing judgment therein is an essential part of the remedies
for enforcement of the Mortgage and the Note, and shall survive any execution
sale to Lender.
(e) The remedies of Lender as provided herein, or in
said Note, and all warrants herein and in said Note contained, and all remedies
provided in the Loan Agreement and any and all other remedies otherwise provided
by law shall be cumulative and concurrent, and may be pursued singly,
successively or together at the sole discretion of Lender, and such warrants
shall not be exhausted by any exercise thereof but may be exercised as often as
occasion therefor shall occur; and the failure to exercise any such right or
remedy shall in no event be construed as a waiver or release of the same.
(f) In the event Borrower should fail to pay any tax,
claim, lien or encumbrance which shall be or become prior in lien to this
Mortgage, or to pay any insurance premium for insurance required under this
Mortgage, or to keep the Mortgaged Premises in repair, or commits or permits
waste, then Lender, at its option, may pay said claim, lien, encumbrance, tax
assessment or premium with right of subrogation thereunder, may make such
repairs and take such steps as it deems advisable to prevent or cure such waste,
and may appear in any action or proceeding with respect to any of the foregoing
and retain counsel therein1 and take such action therein as Lender deems
advisable, and for any of said purposes Lender may advance such sums of money as
it deems necessary. All such sums advanced shall be added to and become a part
of the Entire Indebtedness secured hereby, and repayment thereof, with interest
thereon at the interest rates set forth in the Note from the dates of the
respective expenditures, may be enforced by Lender against Borrower at any time.
(g) Lender shall have the right, from time to time, to
bring an appropriate action to recover any sums required to be paid by Borrower
under the terms of this Mortgage, as they become due, without regard to whether
or not the Principal Sum or any other sums secured by the Note and this Mortgage
shall be due, and without prejudice to the right of Lender thereafter to bring
an action of Mortgage foreclosure, or any other action, for any default by
Borrower existing at the time the earlier action was commenced.
(h) Any real estate sold pursuant to any writ of
execution issued on a judgment obtained by virtue of the Note or this Mortgage,
or pursuant to any other judicial proceedings under the Mortgage, may be sold in
one parcel, as an entirety, or in such parcels and in such manner or order as
Lender, in its sole discretion, may elect.
8. WAIVERS -
(a) Borrower hereby waives and releases (1) all errors,
defects and imperfections in any proceeding instituted by Lender under this
Mortgage; (2) all benefit that might accrue to Borrower by virtue of any present
or future laws exempting the Mortgaged
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Premises, or any part of the proceeds arising from any sale thereof, from
attachment; levy or sale under execution, or providing for any stay of
execution, exemption from civil process, or extension of time for payment; and
(3) all notices not otherwise herein specifically required Borrower's default or
of Lender's exercise, or election to exercise, any option under this Mortgage.
(b) Lender shall not by any act of omission or
commission be deemed to waive any of its rights or remedies hereunder unless
such waiver be in writing and signed by Lender and then only to the extent
specifically set forth therein; a waiver on one event shall not be construed as
continuing or as a bar to or waiver of such right or remedy on a subsequent
event.
9. SECURITY AGREEMENT - This Mortgage constitutes a security agreement
under the Uniform Commercial Code and creates a security interest in the
machinery and equipment essential to the operation of the building owned by
Borrower included in the Mortgaged Property. Borrower shall execute, deliver,
file and refile any financing statements or other security agreements Lender may
require from time to time to confirm the lien of this Mortgage with respect to
such property. Without limiting the foregoing, Borrower hereby irrevocably
appoints Lender attorney-in-fact for Borrower to execute, deliver and file such
instruments for and on behalf of Borrower.
10. DECLARATION OF NO SET-OFF - Within one week after requested to do
so by Lender, Borrower shall certify to Lender or to any proposed assignee of
this Mortgage, in a writing duly acknowledged, the amount of principal, interest
and other charges then owing on the obligation secured by this Mortgage and
whether there are any set-offs or defenses against it.
11. REQUIRED NOTICES - Borrower shall notify Lender promptly of the
occurrence of any of the following:
(a) A fire or other casualty causing damage to the
Mortgaged Premises;
(b) Receipt of notice of condemnation of Mortgaged
Premises;
(c) Receipt of notice from any governmental authority
relating to the structure, use or occupancy of the Mortgaged Premises;
(d) Substantial change in the occupancy of the Mortgaged
Premises;
(e) Threat or commencement of any litigation affecting
the Mortgaged Premises.
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12. CONDEMNATION - In the event of any condemnation or taking of any
part of the Mortgaged Premises by eminent domain, alteration of the grade of any
street, or other injury to or decrease in the value of the Mortgaged Premises by
any public or quasi-public authority or corporation, all proceeds (that is, the
award or agreed compensation for the damages sustained) shall be applicable
first to payment of the indebtedness secured hereby. No settlement for the
damages sustained shall be made by Borrower without Lender's prior written
approval. Borrower shall continue to pay the installments of principal, interest
and other charges until payment of the proceeds shall have been received by the
Lender. All the proceeds shall be applied in the order and in the amounts that
Lender, in Lender's sole discretion, may elect, to the payment of principal
(whether or not then due and payable), interest or any sums secured by this
Mortgage, or toward payment to the Borrower, on such terms as the Lender may
specify, to be used for the sole purpose of altering, restoring or rebuilding
any part of the Mortgaged Property which may have been altered, damaged or
destroyed as a result of the taking, alteration of grade or other injury to the
Mortgaged Premises. Nothing in this Mortgage shall limit rights otherwise
available at law to Lender, including, but not limited to, rights to intervene
as a party to any condemnation proceeding.
13. RESTRICTIONS ON TRANSFER - Without the prior written consent of
Lender, Borrower will not sell or transfer, or permit or suffer to be sold or
transferred, voluntarily or by operation of law (other than by death or by
execution on the Note) all or any of its interest in the Mortgaged Premises, nor
permit issuance or transfer of stock in Borrower if Borrower is a corporation,
nor permit any creation or transfer of partnership interests if Borrower is a
partnership. Any consent of Lender to a sale or transfer of all or part of the
interests of Borrower in the Mortgaged Premises or an issuance or transfer of
stock or of any other interests in Borrower shall pertain to the referenced
sale, transfer or issuance only and shall not constitute, or obligate Lender to
approve, any further sale, transfer or issuance or relieve any person of any
liability hereunder or under the Note. Any violation of or failure to comply
with the provisions of this section shall constitute an immediate Event of
Default hereunder and under the Note.
14. RIGHTS AND REMEDIES CUMULATIVE -
(a) The rights and remedies of Lender as provided in the
Note, in this Mortgage and in the warrants contained in both, shall be
cumulative and concurrent, may be pursued separately, successively or together
against Borrower or against the Mortgaged Property, or both, at the sole
discretion of Lender, and may be exercised as often as occasion therefor shall
arise. The failure to exercise any such right or remedy shall in no event be
construed as a waiver or release thereof.
(b) Any failure by Lender to insist upon strict
performance by Borrower of any of the terms and provisions of this Mortgage or
of the Note shall not be deemed to be a waiver of any of the terms or provisions
of the Mortgage and Note, and Lender shall have the right thereafter to insist
upon strict performance by the Borrower of any and all of them.
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(c) Lender may release, regardless of consideration, any
part of the security held for the indebtedness secured by this Mortgage without,
as to the remainder of the security, in any way impairing or affecting the lien
of this Mortgage or its priority over any subordinate lien.
(d) For payment of the indebtedness secured hereby,
Lender may resort to any other security therefor held by Lender in such order
and manner as Lender may elect.
15. AMENDMENT - This Mortgage cannot be changed or amended except by
agreement in writing signed by the party against whom enforcement of the change
is sought.
16. APPLICABLE LAW - This Mortgage shall be governed by and construed
according to the law of the Commonwealth of Pennsylvania.
17. CONSTRUCTION - Whenever used in this Mortgage, unless the context
clearly indicated a contrary intent:
(a) The word, "Borrower" shall mean the person who
executes this Mortgage and any subsequent owner of the Mortgaged Property and
his respective heirs, executors, administrators, successors and assigns;
(b) The word "Lender" shall mean the person specifically
named herein as "Lender" or any subsequent holder of this Mortgage;
(c) The word "person" shall mean individual,
corporation, partnership or unincorporated association;
(d) The use of any gender shall include all genders;
(e) The singular number shall include the plural and the
plural the singular as the context may require.
18. CAPTIONS - The captions preceding the text of the paragraphs or
subparagraphs of this Mortgage are inserted only for convenience of reference
and shall not constitute a part of this Mortgage, nor shall they in any way
affect its meaning, constitution or effect.
19. NOTICES - All communications or notices to be given by either party
to the other hereunder shall be sent certified mail addressed to the Lender,
CORESTATES BANK, N.A., 0000 Xxxx Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, or
to such other address as the
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Lender may specify in a written notice to the Borrower, and to the Borrower, 000
Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx, x0000, or to such other address as the
Borrower may specify in a written notice approved and accepted by Lender.
20. CONSENT TO JURISDICTION AND VENUE - IN ANY LEGAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THIS
MORTGAGE OR THE RELATIONSHIP EVIDENCED HEREBY, EACH UNDERSIGNED PARTY HEREBY
IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL
COURT LOCATED IN ANY COUNTY IN THE COMMONWEALTH OF PENNSYLVANIA WHERE LENDER
MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION
OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH
COUNTY.
21. WAIVER OF JURY TRIAL - THE UNDERSIGNED PARTY HEREBY WAIVES, AND
LENDER BY ITS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS
MORTGAGE OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR LENDER TO ENTER INTO, ACCEPT OR RELY UPON THIS MORTGAGE.
EXECUTED by Borrower under seal the day and year first above written.
NUCLEAR RESEARCH CORPORATION
By: /s/ Xxxx X. Xxxxxxx
----------------------- (SEAL)
Name: Xxxx X. Xxxxxxx
Title: President
COMMONWEALTH OF PENNSYLVANIA :
: ss.
COUNTY OF BUCKS :
On January 14, 1997, before me, the undersigned officer, personally
appeared Xxxx X. Xxxxxxx, who acknowledged himself to be the President of
Nuclear Research Corporation, and
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that he, as such officer, being authorized so to do, executed the foregoing
instrument for the purposes therein contained by signing the name of said
corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Xxxxxxxx X. Xxxxxx-Xxxxxxxx
-------------------------------- (SEAL)
Notary Public
[Notarial Seal]
* * * * * * * * * *
I hereby certify that the principal office and complete post office address of
the within-named Lender and person entitled to interest on this Mortgage is 0000
Xxxx Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000.
/s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxx
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EXHIBIT "A"
ALL THAT CERTAIN tract of land as shown on a plan of survey
for Nuclear Research Corporation as made by Surveying Services, Inc., 00 Xxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx, situate in Warrington Township, Bucks County,
Pennsylvania, bounded and described, as follows:
BEGINNING at a point, a hub set, on the Southeasterly side of
Xxxxx Road, said point being located eight hundred seventy-four and thirty-five
hundredths feet (874.35 ft.) Northeasterly from the centerline of County Line
Road and a corner of lands now or formerly of the Telford Industrial Development
Authority; (l) thence along the Southeasterly side of Xxxxx Road North
thirty-seven degrees twenty-five minutes East two hundred forty-three and
seventeen hundredths feet (N. 37 deg. 25 min. E. 243.17 ft.) to a hub set, a
corner of lands now or formerly of the Crane Company; (2) thence along lands of
the Crane Company South fifty-two degrees eighteen minutes East five hundred
thirty-five and seventeen hundredths feet (S. 52 deg. 18 min. E. 535.17 ft.) to
a concrete monument found, a corner of lands of the Crane Company, land now or
formerly of Xxxxxx X. and Xxxx Xxxxxxx and lands now or formerly of Xxxxxx
XxXxxxx; (3) thence along lands of XxXxxxx South thirty-seven degrees
twenty-five minutes West two hundred forty three and seventeen hundredths feet
(S. 37 deg. 25 min. W. 243.17 ft.) to an iron pin found, a corner of lands of
XxXxxxx, and other lands now or formerly of the Crane Company; (4) thence along
lands of the Crane Company and lands now or formerly of the Telford Industrial
Development Authority North fifty-two degrees eighteen minutes West five hundred
thirty-five and seventeen hundredths feet (N. 52 deg. 18 min. W. 535.17 ft.) to
the first mentioned point and place of BEGINNING.
CONTAINING two and nine hundred eighty-eight thousandths acres
(2.988 ac.).
BEING THE SAME PREMISES which the Bucks County Industrial
Development Authority, a body corporate and politic organized and existing under
the laws of the Commonwealth of Pennsylvania, by Deed dated August 7, 1990 and
recorded December 16, 1992 in the Office for the Recorder of Deeds of Bucks
County at Land Record Book 585 Page 1993, granted and conveyed unto Nuclear
Research Corporation, a corporation organized and existing under the laws of the
Commonwealth of Pennsylvania.
BEING TAX PARCEL NO. 00-00-00-00.
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