XXXX HAULING AND WAREHOUSING SYSTEM, INC.
AND
000 XXXXXXXX XXX., INC.
as Mortgagors
AND
FIDELITY BANK, NATIONAL ASSOCIATION
as Trustee
MORTGAGE AND SECURITY AGREEMENT
Dated as of May 15, 1992
This Mortgage and Security Agreement secures an obligation incurred for the
construction of improvements on land and contains after-acquired property
provisions.
This Mortgage and Security Agreement also constitutes a fixture filing under
Article 9 of the Uniform Commercial Code-Secured Transactions, N.J.S.A.
12A:9-402(3) and (6).
THIS MORTGAGE AND SECURITY AGREEMENT dated as of May 15, 1992 (the
"Mortgage") made by XXXX HAULING AND WAREHOUSING SYSTEM, INC. ("Xxxx") and 000
XXXXXXXX XXX., INC. (the "Company"), Pennsylvania corporations having an address
at 000 X. Xxxxxxxx, Xxxxxxxxxx Xxxx, Xxx Xxxxxx 00000, as mortgagors (each a
"Mortgagor" and collectively, the "Mortgagors") in favor of FIDELITY BANK,
NATIONAL ASSOCIATION, a banking corporation organized and existing under the
laws of the United States of America, having an address at 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Corporate Trust
Administration, 18 MBO, as Trustee under the Indenture referred to below (the
"Trustee").
W I T N E S S E T H:
WHEREAS, the Philadelphia Authority for Industrial Development (the
"Issuer") intends to issue its Revenue Bonds (Refrigerated Enterprises, Inc.
Project) Series of 1992 (the "Bonds") in the aggregate principal amount of Seven
Million Dollars ($7,000,000), maturing December 1, 2019, pursuant to a Trust
Indenture dated as of May 15, 1992 (as amended and supplemented from time to
time, the "Indenture") between the Issuer and the Trustee and in accordance with
the provisions of the Pennsylvania Industrial and Commercial Development
Authority Law, being the Act of August 23, 1967, P.L. 251, as amended (the
"Act"), the proceeds from the sale of which are to be loaned to Refrigerated
Enterprises, Inc., a Pennsylvania corporation ("REI") in order to permit REI
to refund the 1989 Bonds (as defined in the Agreement), all with respect to a
project located in the City of Philadelphia, Philadelphia County, Pennsylvania,
all pursuant to an Installment Sale Agreement dated as of May 15, 1992 (as
amended from time to time, the "Agreement") between the Issuer and REI; and
WHEREAS, all of the Issuer's rights under the Agreement (except for
such rights as are specifically reserved) are to be assigned to the Trustee
pursuant to the Indenture; and
WHEREAS, in connection with the issuance of the Bonds, Xxxx and certain
subsidiaries and affiliates of Xxxx (the "Guarantors") have entered into a
Guaranty Agreement dated as of May 15, 1992 (as amended from time to time, the
"Guaranty");
NOW, THEREFORE, to equally and ratably secure (without preference or
priority) payment of the principal of, premium (if any) and interest on the
Bonds, each Mortgagor's payment obligations pursuant to Section 4.3 of the
Agreement and pursuant to the Guaranty (herein called the "Loan Obligations"),
and the payment of any and all other amounts required to be paid pursuant to,
and the performance of all covenants, agreements and obligations required to be
performed by the Mortgagors or the other Guarantors under this Mortgage, the
Guaranty, the Agreement or the other Loan Documents (collectively, the "Secured
Agreements"), whether direct or indirect, absolute or contingent,
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due or to become due, now existing or hereafter arising and howsoever evidenced,
plus all expenses of enforcing this Mortgage, each Mortgagor, for and in
consideration of Ten Dollars and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, does by these presents
GRANT, BARGAIN, SELL, CONVEY AND MORTGAGE unto the Trustee (for the ratable
benefit of the owners of the Bonds) and its respective successors and assigns,
all of its right, title and fee and leasehold interest in and to the following
property, interests and rights (collectively, the "Mortgaged Property"):
THAT certain parcel of real estate described in Exhibit A hereto (the
"Site");
TOGETHER with all and singular the ways, easements, rights, privileges
and appurtenances belonging or in any wise appertaining to the Site;
TOGETHER with the buildings and improvements now erected and hereafter
to be erected upon the Site, including any repairs, restorations or replacements
thereof or any changes, alterations or additions thereto (collectively, the
"Improvements");
TOGETHER with all right, title and interest, if any, of each Mortgagor
in and to any land lying in the bed of any street, avenue or alley adjoining the
Site to the center line thereof;
TOGETHER with the fixtures, building equipment and other personal
property owned by each Mortgagor and located on and used in connection with the
maintenance of the Improvements, including, without limitation, the equipment as
described in Exhibit B hereto but excluding any personal property or equipment
which is not a fixture but is used in connection with the businesses conducted
on the Mortgaged Property and excluding specifically container cranes,
forklifts, trucks and other vehicles (subject to such exclusions, collectively,
the "Equipment"); and
TOGETHER with all the rents, issues and profits of the Mortgaged
Property, and all the estate, right, title, fee and leasehold interest and all
claim and demand whatsoever, at law or in equity, of each Mortgagor in and to
the same, including but not limited to:
(a) All rents, issues, profits, revenues, royalties, rights and
benefits derived from the Mortgaged Property from time to time accruing, whether
under leases or tenancies or contracts of sale now existing or hereafter
created, reserving to the Mortgagors, however, so long as there is no "Event of
Default" under the Indenture, the right to receive and retain all such rents,
issues and profits.
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(b) All judgments, awards of damages, insurance proceeds and
settlements hereafter made resulting from condemnation proceedings or the taking
of the Mortgaged Property or any part thereof under the power of eminent domain,
or for any damage (whether caused by such taking or otherwise) to the Mortgaged
Property or any part thereof, or to any rights appurtenant thereto, including
any award for change of grade of streets.
TO HAVE AND TO HOLD the above granted and described property equally
and ratably unto the Trustee and its respective successors and assigns, forever.
The Mortgagors do hereby fully warrant good and marketable fee simple and
leasehold title to the Site and the Improvements and good and marketable title
to the Equipment and will defend the same against the lawful claims of all
persons whomsoever, subject only to the exceptions set forth in Exhibit C hereto
and made a part hereof (the "Permitted Encumbrances") and the Mortgagors have
good and lawful authority to sell, convey, mortgage and grant a security
interest in the Mortgaged Property.
PROVIDED, ALWAYS that if the Mortgagors or their successors or assigns
shall pay to the Trustee or its respective successors or assigns all amounts
secured hereby, including without limitation the Loan Obligations, all amounts
due under the Secured Agreements, and all other amounts due hereunder, and shall
perform, observe and comply with all of the terms, conditions, covenants and
agreements contained herein and in the Secured Agreements, and if no Bonds
remain Outstanding (as defined in the Indenture), then this Mortgage shall be
absolutely void; otherwise the same shall remain in full force and effect.
This Mortgage is subject and subordinate to (i) a certain Mortgage
dated March 15, 1984 between Xxxx and the City of Gloucester City and recorded
in the Camden County Register's Office in Book 2785, Page 543, (ii) a certain
Mortgage dated April 18, 1984 between Xxxx and the City of Gloucester City and
recorded in the Camden County Register's Office in Book 2793, Page 937, (iii) a
certain Mortgage dated August 22, 1984 between Xxxx and the City of Gloucester
City recorded in the Camden County Register's Office in Book 2823, Page 135,
(iv) a certain Mortgage and Security Agreement dated as of August 1, 1986
between Xxxx and Bankers Trust Company, as trustee and recorded in the Camden
County Register's Office in Book 3050, Page 0689, and (v) a certain Mortgage and
Security Agreement dated as of December 1, 1986 between Xxxx and Bankers Trust
Company, as trustee and recorded in the Camden County Register's Office in Book
3092, Page 059. This Mortgage is pari passu and on a parity with a certain
Series G Mortgage and Security Agreement and a certain Series H Mortgage and
Security Agreement, both dated as of January 2, 1992, between Xxxx and Mellon
Bank, N.A., as trustee and a Mortgage and Security Agreement dated as of
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March 2, 1992 among Xxxx, the Company and Fidelity Bank, National
Association, as trustee and recorded in the Camden County Register's
Office in Mortgage Book 3768, Page 0867.
The Mortgagors further covenant and agree as follows:
1. Payment. Each Mortgagor shall pay all sums required to be paid by
it, including interest, secured hereby when due, as provided for in the Secured
Agreements and in this Mortgage, and any renewal, extension or modification of
any thereof.
2. Compliance with Laws. Each Mortgagor shall comply with all present
and future laws, ordinances, rules, regulations, covenants, conditions and
restrictions affecting such Mortgagor, the Mortgaged Property or the use and
occupancy thereof, and not suffer or permit any violation thereof.
3. Maintenance and Modification of Mortgaged Property by the Mortgagor.
The Mortgagors agree that at all times, the Mortgagors will maintain, preserve
and keep the Mortgaged Property or cause the Mortgaged Property to be
maintained, preserved and kept, with the appurtenances and every part and parcel
thereof in good repair, working order, and condition, and that the Mortgagors
will from time to time make or cause to be made all repairs, replacements and
renewals deemed proper and necessary by it.
In addition, the Mortgagors shall have the privilege of remodeling the
Mortgaged Property or making substitutions, modifications and improvements to
the Mortgaged Property from time to time as the Mortgagors, in their discretion,
may deem to be desirable for each Mortgagor's use for such purposes as shall be
permitted by the Act, the costs of which remodeling, substitutions,
modifications and improvements shall be paid by the Mortgagors, and the same
shall be the property of the Mortgagors and be included under the terms of this
Mortgage as part of the Mortgaged Property; provided, however, that such
remodeling, substitutions, modifications and improvements shall not interfere
with the operation of the Mortgaged Property in the manner contemplated in the
Applications and in the Agreement or in any way damage the Mortgaged Property,
and, provided further that the Mortgaged Property, as remodeled, improved or
altered, upon completion of such remodeling, substitutions, modifications and
improvements made pursuant to this Section 3 shall be of a value not less than
the value of the Mortgaged Property immediately prior to the remodeling or the
making of substitutions, modifications and improvements. Any property for which
a substitution or replacement is made pursuant to this Section 3 may be disposed
of by the Mortgagors in any manner and in the sole discretion of the Mortgagors.
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4. Liens. The Mortgagors will not permit any mechanic's or other lien
other than Permitted Encumbrances to be established or remain against the
Mortgaged Property, provided that if either Mortgagor shall first notify the
Trustee of its intention to do so, such Mortgagor may in good faith contest at
such Mortgagor's expense any mechanic's or other lien filed or established
against the Mortgaged Property, and in such event may permit the item so
contested to remain undischarged and unsatisfied during the period of such
contest and any appeal therefrom unless by nonpayment of any such item the
security afforded by this Mortgage will be materially endangered or the
Mortgaged Property or any part thereof will be subject to loss or forfeiture, in
which event the Mortgagors shall promptly pay and cause to be satisfied and
discharged such unpaid item.
5. Taxes and Governmental and Utility Charges. The Mortgagors will pay
or cause to be paid, as the same respectively become due, all taxes and
governmental charges of any kind whatsoever that may at any time be lawfully
assessed or levied against or with respect to the Mortgaged Property or any part
thereof, including, without limiting the generality of the foregoing, all ad
valorem taxes levied against the Mortgaged Property and any other taxes levied
upon the Mortgaged Property which, if not paid, will become a charge on the
receipts from the Mortgaged Property or a lien against the Mortgaged Property or
any interest therein or the revenues derived therefrom; all utility and other
charges incurred in the operation, maintenance, use, occupancy and upkeep of the
Mortgaged Property; and all assessments and charges lawfully made by any
governmental body for public improvements that may be secured by a lien on the
Mortgaged Property, provided that with respect to special assessments or other
governmental charges that may lawfully be paid in installments over a period of
years, the Mortgagors shall be obligated to pay only such installments when and
as they are required to be paid.
Each Mortgagor may, at such Mortgagor's expense, in good faith contest
any such taxes, assessments and other charges, all in the manner and subject to
the conditions set forth in Section 5.18(a)(ii) of the Installment Sale
Agreement.
6. Casualty and Other Insurance. The Mortgagors agree to insure or
cause to be insured the Mortgaged Property against loss or damage by fire and
other hazards as more particularly described in Section 5.18(b) of the
Installment Sale Agreement. The Mortgagors will not do or suffer to be done
anything which will increase the risk of fire or other hazard to the Mortgaged
Property or any part thereof without first causing such increased risk to be
fully and adequately covered by insurance.
7. Worker's Compensation Coverage. The Mortgagors shall maintain
worker's compensation coverage or cause the same to be maintained to the extent
required by applicable law.
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8. [Intentionally omitted]
9. Condemnation. The net proceeds of any taking by the power of eminent
domain of all or a portion of the Mortgaged Property shall be applied as
provided in Section 5.18(c) of the Installment Sale Agreement.
10. Advances. If the Mortgagors fail to pay, subject to any right
hereunder to contest, any claim, lien, or encumbrance (other than Permitted
Encumbrances), or, prior to delinquency, any tax or assessment, or, when due,
any insurance premium, or to keep the Mortgaged Property in repair, or shall
commit or permit waste, or if there shall be commenced any action or proceeding
affecting the Mortgaged Property or the title thereto, or the interest of the
Trustee therein, including, but not limited to, eminent domain and bankruptcy or
reorganization proceedings, then the Trustee, at its option, may but shall not
be required to pay said claim, lien, encumbrance, tax, assessment or premium,
with right of subrogation thereunder, may but shall not be required to make such
repairs and take such steps as it deems advisable to prevent or cure such waste,
and may but shall not be required to appear in any such action or proceeding and
retain counsel therein, and take such action therein as the Trustee deems
advisable, and for any of said purposes the Trustee may but shall not be
required to advance such sums of money, including all costs, reasonable
attorneys' fees and sums of money, including all costs, reasonable attorneys'
fees and other items of expense as it deems necessary. The Mortgagors shall pay
to the Trustee all sums of money so advanced by the Trustee together with
interest on each such advance at two percent (2%) in excess of the Prime Rate,
and the repayment of such advances shall be secured hereby. In making any
payment or securing any performance relating to any obligation of the Mortgagors
under this Mortgage, the Trustee, so long as it acts in good faith, shall be the
sole judge of the legality, validity and amount of any lien or encumbrance and
of all other matters necessary to be determined in satisfaction thereof. No such
action of the Trustee shall ever be considered as a waiver of any right accruing
to it hereunder. The Trustee shall not ever be held accountable for any delay in
making any such payment, which delay may result in any additional interest,
costs, charges or expenses.
11. Attorneys' Fees. In case of any action or any proceedings in any
court to collect any sums payable or secured by this Mortgage or to protect the
lien of the Trustee or in any other case permitted by law in which attorneys'
fees may be collected from the Mortgagors or charged upon the Mortgaged
Property, the Mortgagors agree to pay reasonable attorneys' fees.
12. Remedies. Subject always to the provisions of Section 13 hereof,
upon the occurrence of an "Event of Default" as defined and specified in the
Indenture and the declaration of an acceleration of the Bonds pursuant to the
Indenture, the
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Trustee may exercise one or more of the following remedies (no remedy
hereunder is intended to be exclusive of any other remedy hereunder,
under any of the Secured Agreements or under the Indenture):
(a) The Trustee may require the Mortgagors, upon demand of the Trustee,
to forthwith surrender, and the Trustee may, to the extent permitted by
applicable law, by such officer, agent or receiver as it may appoint, all
without regard to the value of the security hereof, take possession of all or
any part of the Mortgaged Property together with the books, papers and accounts
of the Mortgagors pertaining thereto, and make all needful repairs and
improvements as the Trustee shall deem necessary or appropriate, and lease or
sell the Mortgaged Property or any part thereof in the name and for the account
of the Mortgagors and collect, receive and sequester the rental therefrom, and
out of the same and any moneys received from any receiver pay, or set up proper
reserves for the payment of, all proper costs and expenses of so taking,
holding, leasing, selling and managing the same, including reasonable
compensation to the Trustee, its agents and counsel, and any charges of the
Trustee hereunder, and any taxes and assessments and other charges due and
payable which the Trustee may deem it wise to pay, and all expenses of such
repairs and improvements, and apply the remainder of the moneys so received to
the payment of the indebtedness secured hereby. Whenever all that is due upon
the indebtedness secured hereby shall have been paid and all defaults made good,
the Trustee shall surrender whatever possession the Trustee shall retain to the
Mortgagors; the same right of entry, however, shall exist upon any subsequent
default.
(b) The Trustee may enter and take possession of the Mortgaged
Property, and lease the Mortgaged Property for the account of the Mortgagors,
holding the Mortgagors liable for all payments due to the effective date of such
leasing and for the difference in the rent and other amounts paid by the lessee
pursuant to such lease and the amounts payable by the Mortgagors on account of
the indebtedness secured hereby.
(c) Subject to any mandatory requirements of applicable law, the
Trustee may sell the Mortgaged Property as an entirety or from time to time in
part to the highest bidder at public auction at such place and at such time
(which sale may be adjourned from time to time in the discretion of the Trustee
by announcement at the time and place fixed for such sale, without further
notice) and upon such terms as the Trustee may fix and briefly specify in a
notice of sale to be published once each week for four (4) successive weeks
prior to such sale in a newspaper of general circulation in the county in which
the Mortgaged Property is located and in such event the Trustee may bid for or
become the purchaser of the Mortgaged Property at the public auction and be
entitled to have the purchase price payable at the public auction payable by
credit for the balance due and payable hereunder in respect of the indebtedness
secured hereby.
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(d) The Trustee may foreclose this Mortgage by judicial proceedings in
the manner provided by the laws of the State of New Jersey for the foreclosure
of mortgages, and in such event the Trustee may bid for or become the purchaser
of the Mortgaged Property at the foreclosure sale and be entitled to have the
purchase price payable at foreclosure sale payable by credit to the judgment for
the balance, if any, due and payable hereunder in respect of the indebtedness
secured hereby.
(e) The Trustee may exercise all rights and remedies available to
secured creditors under the Uniform Commercial Code as in effect in the State of
New Jersey.
13. Option To Release Certain Real Estate. Notwithstanding any other
provisions of this Mortgage, the Trustee hereby agrees, subject to the
provisions of the Agreement, at any time and from time to time, to release from
this Mortgage (i) any unimproved part of the Site, provided such release shall
not adversely affect the value of the Mortgaged Property as evidenced by an MAI
appraisal on which the Trustee may conclusively rely, or (ii) any part of the
Site with respect to which fee title is to be conveyed to a railroad, public
utility or public body in order that railroad service, utility services or roads
may be provided for the Mortgaged Property, upon receipt of:
(a) Copies of the instrument of release, in recordable form.
(b) A certificate of the Mortgagors (i) stating that no "Event of
Default" or any condition or event which, with the giving of notice or the
passage of time or both would constitute an "Event of Default" has occurred
under the Secured Agreements or the Indenture, (ii) giving an adequate legal
description of that portion of the Site to be released, (iii) stating the
purpose for which the release is desired, (iv) requesting such release, and (v)
approving such release.
(c) If applicable, a copy of the instrument conveying the portion of
the Site to be released.
(d) Any instrument or instruments required by the terms of such
release.
(e) A certificate of an independent engineer dated more than sixty (60)
days prior to the date of the release and stating that, in the opinion of such
engineer (i) the portion of the Site so proposed to be released is necessary or
desirable in order to obtain railroad service, utility services or roads to
benefit the Mortgaged Property, or is not otherwise needed for the efficient
operation of the Mortgaged Property for the purpose stated in the Agreement and
(ii) the release so proposed to be made will not impair the usefulness of the
Mortgaged Property as
8
a facility for the purposes for which it was designed and for such purposes as
shall be permitted by the Act and will not destroy the means of ingress
thereinto and egress therefrom.
Provided, however, that if the portion of the Site to be released has
transportation or utility facilities located upon it, the Mortgagors shall
retain an easement to use such facilities to the extent necessary for the
efficient operation of the Mortgaged Property.
The Trustee agrees that upon receipt of the items required in this
Section 13 to be furnished by the Mortgagors, it will promptly execute and
deliver the proposed release covering the portion of the Site to be released. In
the event of any such release, the Mortgagors shall not be entitled to any
postponement, abatement or diminution of amounts payable on account of the
indebtedness secured hereby.
14. Release of Items of Equipment. In any instance where either
Mortgagor in its sole discretion determines that any items of the Equipment
owned by it have become obsolete, worn out, unsuitable, inappropriate or
unnecessary for its purposes, and so long as no "Event of Default" or any
condition or event which, with the giving of notice or the passage of time or
both would constitute an "Event of Default" has occurred under the Secured
Agreements or the Indenture, such Mortgagor may remove such Equipment from the
Mortgaged Property and sell, trade-in, exchange or otherwise dispose of such
Equipment (as a whole or in part) without any responsibility or accountability
to the Trustee therefor, provided that such Mortgagor shall substitute and
install anywhere in the Mortgaged Property other machinery or equipment having
equal or greater utility or value (but not necessarily having the same function)
in the operation of the Mortgaged Property as a modern facility, all of which
substituted machinery or equipment shall be free of all liens and encumbrances
(other than Permitted Encumbrances) and shall become a part of the property
secured hereunder.
The removal from the Mortgaged Property of any portion of the Equipment
pursuant to the provisions of this Section 14 shall not entitle the Mortgagors
to any postponement, abatement or diminution in amounts payable on account of
the indebtedness secured hereby.
Upon the request of either Mortgagor, the Trustee shall deliver and
cause to be delivered to such Mortgagor, such instruments as are reasonably
necessary to confirm the release of removed items of the Equipment from the lien
of this Mortgage and cancel any security interest with respect thereto, provided
that such request is accompanied by a certificate of an officer of such
Mortgagor to the effect that such release complies in all respects with this
Section 14.
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15. Granting of Easements. If no "Event of Default" or any condition or
event which, with the giving of notice or the passage of time or both would
constitute an "Event of Default" has occurred under the Secured Agreements or
the Indenture, the Mortgagors may at any time or times, grant easements,
licenses, rights-of-way (including the dedication of public highways) and other
rights or privileges in the nature of easements with respect to any property or
rights included in the Mortgaged Property, free from the lien and security
interest afforded by or under this Mortgage or the Mortgagors may reconvey
existing easements, licenses, rights-of-way and other rights and privileges with
or without consideration, and the Trustee agrees to execute and deliver or cause
to be executed and delivered any instrument necessary or appropriate to confirm
and grant or convey any such easement, license, right-of-way or other grant or
privilege upon receipt of: (1) a copy of the instrument of grant or
reconveyance; (2) a written statement signed by an officer of the Mortgagors
stating (i) that such grant or reconveyance will not impair the effective use or
value of, or interfere with the operation of the Mortgaged Property and (ii)
that such grant or reconveyance is not detrimental to the proper conduct of the
business of the Mortgagors; and (3) an opinion of independent counsel that such
grant or reconveyance will not materially weaken, diminish or impair the
security afforded pursuant to the terms of this Mortgage, and will not violate
the terms, covenants or conditions of any agreement or grant which the
Mortgagors or the Issuer may have with the United States, the State of New
Jersey or any agency, department or political subdivision thereof with respect
to the Mortgaged Property or the Indenture.
16. No Waiver. No failure, forbearance or delay by the Trustee in
exercising any right or remedy hereunder, under any Secured Agreement, or under
the Indenture, or otherwise afforded by law, shall operate as a waiver thereof
or preclude the exercise thereof in accordance herewith or therewith. No waiver
by the Trustee of any default shall constitute a waiver of or consent to
subsequent defaults. No withdrawal or abandonment of foreclosure proceedings by
the Trustee shall be taken or construed as a waiver of its right to exercise any
right or remedy hereunder by reason of any past, present or future default;
and, in like manner, the procurement of insurance or the payment of taxes or
other liens or charges by the Trustee shall not be taken or construed as a
waiver of its rights or remedies hereunder.
17. Waiver of Mortgagor. Each Mortgagor, on behalf of itself and all
persons now or hereafter interested in the Mortgaged Property, to the fullest
extent permitted by applicable law, hereby waives all rights under all
appraisement, homestead, moratorium, valuation, exemption, stay, extension,
redemption and marshalling statutes, laws or equities now or hereafter existing,
and each Mortgagor agrees that no defense, claim or right based on any thereof
will be asserted, or may be enforced, in any action enforcing or relating to
this Mortgage or any of the
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Mortgaged Property. Without limiting the generality of the preceding sentence,
each Mortgagor, on its own behalf and on behalf of each and every person
acquiring any interest in or title to the Mortgaged Property subsequent to the
date of this Mortgage, hereby irrevocably waives any and all rights of
redemption from sale under any power contained herein or under any sale pursuant
to any statute, order, decree or judgment of any court.
18. Definitions. In this Mortgage, all words and terms defined in the
Agreement and the Indenture shall have the respective meanings and be construed
as provided therein unless a different meaning clearly appears from the context.
Reference herein to, or citation herein of, any provisions of the Agreement or
the Indenture shall be deemed to incorporate such provisions as a part hereof in
the same manner and with the same effect as if the same were fully set forth
herein.
19. Severability. In the event that any one or more of the provisions
contained in this Mortgage shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Mortgage, but this Mortgage shall
be construed as if such invalid, illegal or unenforceable provision had never
been contained herein or therein.
20. Successors and Assigns. Unless otherwise expressly stated, the
terms "Issuer", "Mortgagor" and "Trustee", as used herein include each of their
respective successors in interest and assigns.
21. Notices. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when delivered
or mailed by certified or registered mail, postage prepaid, addressed as
follows: if to the Mortgagors, to 000 Xxxxxxxx Xxx., Inc. and Xxxx Hauling and
Warehousing System, Inc., X.X. Xxx 0000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000,
Attention: Xx. Xxxxxxx Xxxxxx, Vice President; and if to the Trustee, to
Fidelity Bank, National Association, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, Attention: Corporate Trust Administration, 18 MBO. Any party
hereto may, by written notice given hereunder, designate any further or
different addresses to which subsequent notices, certificates or other
communications shall be sent.
22. New Jersey Uniform Commercial Code Security Interest and Financing
Statement. This instrument is intended to be a security agreement pursuant to
the New Jersey Uniform Commercial Code covering any of the items or types of
property included as part of the Mortgaged Property that may be subject to a
security interest pursuant to the New Jersey Uniform Commercial Code, and each
Mortgagor hereby grants to the Trustee, its successors and assigns a security
interest in such items or types of property. This Mortgage or a reproduction
hereof is deemed to
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constitute a fixture filing to be filed of record in the real estate records
maintained by the Clerk of Camden County, pursuant to N.J.S.A. 12A:9-402(3)
and (6). In addition, each Mortgagor will execute, deliver and file any
financing statements or amendments thereof or continuation statements thereto
that may be required to perfect or to continue the perfection of a security
interest in said items or types of property. The Mortgagors shall pay all
reasonable costs of the preparation and filing of such instruments.
23. Amendments.
(a) Except as may otherwise be specifically provided herein, no charge,
amendment, modification, cancellation or discharge hereof, or any part hereof,
shall be valid unless in writing and signed by the parties hereto.
(b) The parties to this Mortgage may mutually agree to change the
interest rate, due date or other term or terms of this Mortgage or of the
obligations secured by this Mortgage. If the parties mutually agree to a change,
which change is a "modification" as defined in New Jersey P.L. 1985, c. 353,
this Mortgage shall be subject to the priority provisions of that law.
24. Captions. The captions herein are inserted only for convenience of
reference and in no way define, limit or describe the scope or intent of this
Mortgage or any particular paragraph or section hereof, nor the proper
construction hereof.
25. Governing Law. This Mortgage is to be governed and construed
according to the laws of the State of New Jersey.
26. RECEIPT. THE MORTGAGORS HEREBY ACKNOWLEDGE RECEIPT OF A TRUE COPY
OF THIS MORTGAGE, WITHOUT CHARGE.
IN WITNESS WHEREOF, each Mortgagor has caused this instrument to be
executed in its name by one of its duly authorized officers; and the Trustee has
evidenced its acceptance
12
of this instrument by having caused this instrument to be executed in
its corporate name by one of its duly authorized officers, as of the
date first above written.
(SEAL) XXXX HAULING AND WAREHOUSING
SYSTEM, INC., a Pennsylvania
corporation
Attest:
/s/ Xxxx Xxxxx /s/ Xxxxxxx Xxxxxx
_______________________________ By_______________________________
Xxxx Xxxxx, Secretary Xxxxxxx Xxxxxx, Vice President
[SEAL] 000 XXXXXXXX XXX., INC., a
Pennsylvania corporation
Attest:
/s/Xxxx Xxxxx /s/ Xxxxxxx Xxxxxx
________________________________ By_________________________________
Xxxx Xxxxx, Secretary Xxxxxxx Xxxxxx, Vice President
FIDELITY BANK, NATIONAL
ASSOCIATION, as Trustee
[SEAL]
Attest:
/s/ [ILLEGIBLE] /s/ Xxxx X. Xxxxxxx
________________________________ By_________________________________
Xxxx X. Xxxxxxx
Assistant Vice President
Assistant Secretary
13
EXHIBIT A
DESCRIPTION
TRACT 1:
LAND and premises situate in the City of Gloucester City, County of
Camden and State of New Jersey, being more particularly described according to a
survey made by Xxxx X. Xxxxxxx Associates, Inc., dated January 3, 1985 bounded
and described as follows:
Parcel A:
BEGINNING at a point in the Northwesterly line of Broadway, said point
being at the point of intersection of the said line of Broadway with the
Northwesterly line of Old Kings Road and from said point runs thence
l. North 01 degrees 22 minutes 19 seconds East, along the said line of
Broadway, 1146.07 feet to a point; thence
2. North 88 degrees 37 minutes 41 seconds West, 48.28 feet to a point;
thence
3. South 43 degrees 31 minutes 19 seconds West, 562.13 feet to a point;
thence
4. South 58 degrees 46 minutes 35 seconds West, 135.34 feet to a
point; thence
5. North 88 degrees 39 minutes 06 seconds West, 945.07 feet to a point;
thence
6. North 88 degrees 41 minutes 10 seconds West, 136.38 feet to a point;
thence
7. South 16 degrees 16 minutes 10 seconds West, 761.24 feet to a point;
thence
8. South 77 degrees 09 minutes 47 seconds East, 341.24 feet to a point;
thence
9. South 12 degrees 50 minutes 13 seconds West, 37.00 feet to a point;
thence
10. South 77 degrees 09 minutes 47 seconds East, 545.69 feet to a
point; thence
11. North 57 degrees 10 minutes 09 seconds West, 232.64 feet to a
point; thence
12. South 77 degrees 08 minutes 47 seconds East, 687.92 feet to a
point; thence
continued
Page 1 of 5
DESCRIPTION-CONTINUED
13. South 88 degrees 41 minutes 16 seconds East, 317.39 feet to a point
in the Northwesterly line of Old Kings Road; thence
14. North 29 degrees 06 minutes 33 seconds East, along same, 347.46
feet to the place of beginning.
Parcel B:
BEGINNING at a point in the Northwesterly line of Xxxxx Street, said
point being at the point of intersection of the said line of Xxxxx Street with
the Northeasterly line of Monmouth Street and from said point runs thence
1. North 32 degrees 49 minutes 50 seconds East, along the said line of
Xxxxx Street, 1826.43 feet to a point; thence
2. North 57 degrees 10 minutes 10 seconds West, 310.40 feet to a point;
thence
3. North 77 degrees 09 minutes 47 seconds West, 87.04 feet to a point;
thence
4. North 62 degrees 38 minutes 34 seconds West, 89.75 feet to a point;
thence
5. North 43 degrees 24 minutes 58 seconds West, 36.00 feet to a point;
thence
6. North 77 degrees 09 minutes 47 seconds West, 531.95 feet to a
point; thence
7. South 12 degrees 51 minutes 03 seconds West, 37.00 feet to a point;
thence
8. North 77 degrees 09 minutes 47 seconds West, 353.40 feet to a point;
thence
9. South 16 degrees 16 minutes 10 seconds West, 1756.67 feet to a
point; thence
10. South 57 degrees 10 minutes 10 seconds East, 675.48 feet to a
point; thence
11. North 32 degrees 49 minutes 50 seconds East, 165.00 feet to a
point in the Southwesterly line of Monmouth Street; thence
12. North 57 degrees 10 minutes 10 seconds West, along same, 127.47
feet to a point in the apparent high water line of the Delaware River as located
August 22, 1983; thence
continued
Page 2 of 5
DESCRIPTION-CONTINUED
13. Northeastwardly, along said high water line, 61.00 feet more or
less to a point; thence
14. South 57 degrees 10 minutes 10 seconds East, along the
Northeasterly line of Monmouth Street, 296.86 feet to the place of beginning.
EXCEPTING THEREOUT AND THEREFROM THE FOLLOWING DESCRIBED LAND DEEDED TO
BROADWAY EQUIPMENT LEASING BY DEED FROM XXXXXXXXX XXXXX IN DEED BOOK 3932 PAGE
79:
Beginning at a point in the Southwesterly line of Monmouth Street,
distant 339.53 feet Northwestwardly from the extended Northwesterly line of King
Street and from said point runs thence
1. North 57 degrees 10 minutes 10 seconds West, 127.47 feet to the high
water line of the Delaware River as located August 22, 1983; thence
2. In a general Southwesterly direction along the high water line of
the Delaware River, 170.00 feet more or less to a point in the line of land now
or formerly of the United States Coast Guard; thence
3. South 57 degrees 10 minutes 10 seconds East, 114.00 more or less to
a point in the line of lands now or formerly of Xxxxx X. Xxxxx Real Estate;
thence
4. North 32 degrees 49 minutes 50 seconds East, 165.00 feet to the
place of beginning.
Parcel C:
BEGINNING at a corner formed by the intersection of the Southeasterly
line of Xxxxx Street (52 feet wide) with the Northeasterly line of Essex Street
(60 feet wide) and from said point runs thence
1. North 32 degrees 49 minutes 50 seconds East, along the Southeasterly
line of Xxxxx Street, 100.00 feet to a point corner lands now or late of Xxxxxx
X. and Xxxxxxxx Xxxxx; thence
2. South 57 degrees 11 minutes 20 seconds East, along same, 128.50 feet
to a point in the Northwesterly line of King Street; thence
3. South 32 degrees 49 minutes 50 seconds West, along same, 100.00 feet
to the corner formed by the intersection of same with the aforementioned
Northeasterly line of Essex Street; thence
4. North 57 degrees 11 minutes 20 seconds West, along the Northeasterly
line of Essex Street, 128.50 feet to the place of beginning.
continued
Page 3 of 5
DESCRIPTION-CONTINUED
Parcel D:
BEGINNING at a point in the Southeasterly line of Xxxxx Street (52 feet
wide); distant 120.00 feet if measured North 32 degrees 49 minutes 50 seconds
East, along the Southeasterly line of Xxxxx Street from a corner formed by the
intersection of the Southeasterly line of Xxxxx Street with the Northeasterly
line of Essex Street (60 feet wide); said beginning point being corner to lands
now or, late of Xxxxxx X. and Xxxxxxxx Xxxxx; thence
1. North 32 degrees 49 minutes 50 seconds East, along the Southeasterly
line of Xxxxx Street, 20.00 feet to a point corner to lands now or late Xxxxxx
X. and Xxxxxxxx X. Love; thence
2. South 57 degrees 11 minutes 20 seconds East, along same, 128.50 feet
to a point in the Northwesterly line of King Street; thence
3. South 32 degrees 49 minutes 50 seconds West, along same, 20.00 feet
to a point corner to lands now or late of Xxxxxx X. and Xxxxxxxx Xxxxx; thence
4. North 57 degrees 11 minutes 20 seconds West, along lands now or
formerly of Xxxxx, 128.50 feet to the place of beginning.
Parcel E:
BEGINNING at a corner formed by the intersection of the Southeasterly
line of King Street (60 feet wide) with the Southwesterly line of Salem Street
(40 feet wide); and from said point runs thence
South 57 degrees 11 minutes 20 seconds East, along the Southwesterly
line of Salem Street, 120.00 feet to the corner formed by the intersection of
same with the Northwesterly line of Willow Street (20 feet wide); thence
2. South 32 degrees 49 minutes 50 seconds West, along the Northwesterly
line of Willow Street, 80.00 feet to a point corner to lands now or late of
Xxxxx and Xxxx Xxxxxx; thence
3. North 57 degrees 11 minutes 20 seconds West, along same, and along
lands now or late of Xxxxxxx Xx. and Xxxx Xxxxx, Wm. W. and Xxxxxx X. Xxxxxxxx
and Xxxxxx Xxxxxxxxxx, 120.00 feet to a point in the aforementioned
Southeasterly line of King Street; thence
4. North 32 degrees 49 minutes 50 seconds East, along same, 80.00 feet
to the place of beginning.
Parcel F:
BEGINNING at a corner formed by the intersection of the Southeasterly
line of King Street (60 feet wide) with the Northeasterly lien of Xxxxxx Street
(60 feet wide); and from said point runs thence
1. North 32 degrees 49 minutes 50 seconds East, along the Southeasterly
line of King Street, 80.00 feet to a point corner to lands now or late of Xxxx
XxXxxx; thence
continued
Page 4 of 5
DESCRIPTION-CONTINUED
2. South 57 degrees 10 minutes 10 seconds East, along same, 20.00 feet
to a point; thence
3. South 32 degrees 49 minutes 50 seconds West, still along lands now
or late of Xxxx XxXxxx, 80.00 feet to a point in the aforementioned
Northeasterly line of Xxxxxx Street; thence
4. North 57 degrees 10 minutes 10 seconds West, along same, 20.00 feet
to the place of beginning.
FURTHER EXCEPTING THEREOUT AND THEREFROM THE LANDS TAKEN BY THE STATE
OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION BY A DECLARATION OF TAKING
RECORDED IN DEED BOOK 4466, PAGE 0473 ON OCTOBER 9, 1990.
TRACT 2:
LAND and premises situate in the City of Gloucester City, County of
Camden and State of New Jersey, being more particularly described as follows:
That being commonly known as Building #14 in an industrial complex
owned by Xxxx Hauling and Warehousing System, Inc.; The easterly wall of the
building being conveyed hereby being approximately 449 feet from the
intersection of the Easterly side of Xxxxx Street with the Southerly side of
Essex Street.
Page 5 of 5
COMMONWEALTH OF PENNSYLVANIA :
: ss.
COUNTY OF PHILADELPHIA :
I, Xxxxx X. Xxxxxxxxx, do hereby certify that Xxxxxxx Xxxxxx and Xxxx
Xxxxx, the Vice President and Secretary of XXXX HAULING AND WAREHOUSING SYSTEM,
INC., a Pennsylvania corporation, personally known to me to be the same persons
whose names are subscribed to the foregoing instrument, appeared before me this
day in person and acknowledged that they signed and delivered such instrument
with full authority as such Vice President and Secretary on behalf of Xxxx
Hauling and Warehousing System, Inc., as their free and voluntary act for the
uses and purposes therein set forth.
Given under my hand and official seal, this 27th day of May, 1992.
/s/ Xxxxx X. Xxxxxxxxx
_______________________________________
Notary Public
My Commission Expires:
NOTARIAL SEAL
XXXXX X. XXXXXXXXX, Notary Public
Norristown, Xxxxxxxxxx Co. Pa.
My Commission Expires August 2, 1995
14
