EXHIBIT 10.m
OPEN-END MORTGAGE
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THIS IS AN OPEN-END MORTGAGE THAT SECURES FUTURE ADVANCES
THIS MORTGAGE is made on November 7, 1994 by Nuclear Research
Corporation, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000 ("Borrower")
in favor of Bucks County Bank and Trust Company, 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 line of credit extended by Lender to Borrower. The
maximum amount of the loan secured by this Mortgage is $5,000,000
("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 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 and expenses
incurred by the Lender by reason of default by the Borrower under the
Mortgage, 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 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, except for the negligence or willful misconduct of the Lender.
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:
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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 and improvements, including but
not limited to all furnaces, boilers, elevators, heaters, switchboards,
electrical equipment, 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, 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 in upon the express
condition that, if Borrower pays to Lender the Principal Sum mentioned in
the Note, the interest thereon 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 -
(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 heroin and in the title report issued in
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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 in all material respects, and no material adverse change
in the financial circumstances of Borrower has occurred since the
foregoing were presented to Lender. Borrower shall give written notice to
Lender or any material 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 in its reasonable judgment, 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 in its reasonable
judgment; 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
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,
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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
in its reasonable judgment, Borrower shall place new insurance on the
Mortgaged Property, satisfactory to Lender in its reasonable judgment.
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 that would diminish the value
of 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 ninety (90)
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 real estate taxes and any other taxes, and to produce to
Lender, on or before September 1 of each year, copies of all tax returns
filed and tax bills issued or received during the 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 receipt 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;
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(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 to the extent
that insurance proceeds are made available for that purpose;
(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;
(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 first lien on the Mortgaged Premises,
subject only to easements and agreements of record prior to the recording
of this Mortgage.
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
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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 or does not
constitute a material violation of any laws referred to in paragraph 5(c).
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, lose or liability, including, but not limited
to, costs of remedial action, response cost a, personal injury and
property damage, directly or indirectly arising out of or attributable to
the use, generation, deposit, storage, release, threatened release,
discharge, disposal, burial, dumping, spilling, leaking or other presence
of Hazardous Substances on, under or about the Mortgaged Premises except
for any loss arising from the sale of the loan at a discount by Lender.
(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 rights 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.
6. EVENTS OF DEFAULT - This is a demand loan. Lender has the
right to demand repayment of this loan at any time. In addition, 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
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other obligation of any nature whatsoever owing to Lender if such failure
is not cured within fifteen (15) days after notice is given by Lender to
Borrower;
(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, 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 or the suspension of
business by Borrower;
(d) The entry of a judgment in excess of $25,000.00
against Borrower;
(e) The issuance of any writs of attachment or execution
against Borrower on account of a judgment in excess of $25,000.00;
(f) The dissolution, merger, consolidation or
reorganization of Borrower corporation;
(g) The furnishing of materially false information
heretofore or hereafter by Borrower to Lender or the refusal by Borrower
to provide material information hereafter;
(h) Any change in the financial condition of Borrower or
any Surety which causes Lender in good faith to believe that performance
of the obligations herein is impaired in any material respect or doubtful;
(i) The guarantee of any Surety ceases to be effective for
any reason other than the termination of such guarantee by its terms;
(j) 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, Line of Credit
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
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equity, for the enforcement thereof and 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 judgment therein or on the Note, or after a Sheriff's Sale of the
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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
therein, 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 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 Premises, or any part
of the proceeds arising from any sale thereof, from attachment, levy or
sale under execution, or providing for any exemption from civil process,
or extension of time for payment; and (3) all notices not otherwise herein
specifically required of Borrower's default or of Lender's exercise, or
election to exercise, any option under this Mortgage.
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(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. 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.
10. 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.
11. 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.
12. 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 a change in the control of Borrower by an
issuance or transfer of stock in Borrower unless the new control person(s)
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is reasonably satisfactory to Lender except stock that is publicly held on
the date of this Mortgage or stock that is transferred to a recipient
reasonably satisfactory to Lender. 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 other than permitted above 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.
13. 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.
(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.
14. 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.
15. APPLICABLE LAW - This Mortgage shall be governed by and
construed according to the law of the Commonwealth of Pennsylvania.
16. 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;
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(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.
17. 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.
18. NOTICES - All communications or notices to be given by
either party to the other hereunder shall be sent certified mail addressed
to the Lender, Bucks County Bank and Trust Company, 0000 Xxxx Xxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000, or to such other address an the Lender may
specify in a written notice to the Borrower, and to the Borrower, Nuclear
Research Corporation, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, or
to such other address as the Borrower may specify in a written notice
approved and accepted by Lender.
EXECUTED by Borrower under seal the day and year first above
written.
"Borrower" NUCLEAR RESEARCH CORPORATION
By: /s/ Xxxx Xxxxxxx (SEAL)
------------------------
President
Attest: /s/ Xxxxxx Xxxxxx (SEAL)
------------------------
Secretary
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