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XXXX HAULING AND WAREHOUSING SYSTEM, INC.
As Mortgagor
AND
MELLON BANK, N.A.
As Trustee
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SERIES H MORTGAGE AND SECURITY AGREEMENT
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Dated as of January 2, 1992
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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).
Prepared by and Return and Record To:
M. Xxxxxx Xxxxx, Esq.
Xxxxx and Xxxxxx
A Professional Corporation
0 Xxxxxx Xxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
THIS SERIES H MORTGAGE AND SECURITY AGREEMENT dated as of January 2, 1992
(the "Mortgage") made by XXXX HAULING AND WAREHOUSING SYSTEM, INC., a
Pennsylvania corporation, having an address at 000 X. Xxxxxxxx, Xxxxxxxxxx Xxxx,
Xxx Xxxxxx 00000, as mortgagor (the "Mortgagor"), in favor of MELLON BANK, N.A.,
a banking corporation organized and existing under the laws of the United States
of America, having an address at One Mellon Bank Center, Room 3440, Pittsburgh,
Pennsylvania, as Trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E T H:
WHEREAS, the New Jersey Economic Development Authority (the "Issuer")
intends to issue its Economic Development Bonds (Xxxx Hauling and Warehousing
System, Inc. - 1983 Project) Series H Refunding (AMT) (the "Bonds") in the
aggregate principal amount of Nine Million Dollars ($9,000,000), maturing
December 15, 2017, pursuant to an Indenture of Trust dated as of January 2, 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 New Jersey
Economic Development Authority Act, as amended, N.J.S.A. 34:1B-1, et seq. (the
"Act"), the proceeds from the sale of which are to be loaned to the Mortgagor in
order to permit the Mortgagor to refund a certain issue of Series F Bonds (as
defined in the Agreement), all with respect to a project located in the City of
Gloucester City, Camden County, New Jersey, all pursuant to a Series H Loan
Agreement dated as of January 2, 1992 (as amended from time to time, the
"Agreement") between the Issuer and the Mortgagor; 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 this Mortgage is being granted directly to the Trustee as
a result of such assignment; and
WHEREAS, in connection with the issuance of the Bonds, certain subsidiaries
and affiliates of the Mortgagor (the "Guarantors") have entered into a Series H
Guaranty Agreement dated as of January 2, 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, the Mortgagor's payment obligations pursuant to paragraphs (a) and (d) of
Section 4.2 of the Agreement (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 Mortgagor or the Guarantors under this Mortgage, the Guaranty,
the Agreement or the other Loan Documents (collectively, the "Secured
Agreements"), whether direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter arising and howsoever evidenced, plus all
expenses of enforcing this Mortgage, the 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 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 an 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 the 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 the Mortgagor and located on and used in connection with 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 business 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, interest and all claim and demand whatsoever,
at law or in equity, of the 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 Mortgagor, however, so long as there is
no "Default" under the Indenture, the right to receive and retain all such
rents, issues, and profits.
(b) All judgements, 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
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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
Mortgagor does hereby fully warrant good and marketable fee simple 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 that it has good and lawful authority
to sell, convey, mortgage and grant a security interest in the Mortgaged
Property.
PROVIDED, ALWAYS that if the Mortgagor or its 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 the Mortgagor 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 the Mortgagor 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 the
Mortgagor 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 the Mortgagor 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 the Mortgagor and Bankers Trust Company, as trustee and
recorded in the Camden County Register's Office in Book 3092, Page 059. This
Mortgage and Security Agreement, of even date herewith, between the Mortgagor
and the Trustee.
The Mortgagor further covenants and agrees as follows:
1. Payment. The Mortgagor shall pay all sums, 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.
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2. Compliance with Laws. The Mortgagor shall comply with all present and
future laws, ordinances, rules, regulations, convenants, conditions and
restrictions affecting the 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
Mortgagor agrees that at all times, the Mortgagor 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 as more particularly described in
Section 5.2 of the Agreement, and that the Mortgagor 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 Mortgagor shall have the privilege of remodeling the
Mortgaged Property or, subject to the limitations imposed by Section 5.2 of the
Agreement making substitutions, modifications and improvements to the Mortgaged
Property from time to time as the Mortgagor, in its discretion, may deem to be
desirable for the 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 Mortgagor, and the same shall be the property
of the Mortgagor 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 Application and in the
Agreement or in any way damage the Mortgaged Property, and provided that the
Mortgaged Property, as remodeled, improved or altered, upon completion of such
remodeling, substitutions, modifications and improvements made pursuant to this
Section 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 may be disposed of by the Mortgagor
in any manner and in the sole discretion of the Mortgagor.
4. Liens. The Mortgagor 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 the Mortgagor shall first notify the Trustee of its
intention to do so, the Mortgagor may in good faith contest at the 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
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Mortgage will be materially endangered or the Mortgaged Property or any part
thereof will be subject to loss or forfeiture, in which event the Mortgagor
shall promptly pay and cause to be satisfied and discharged such unpaid item.
5. Taxes and Governmental and Utility Charges. The Mortgagor 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 or 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 Mortgagor shall be obligated to pay only such installments when and
as they are required to be paid.
The Mortgagor may, at the 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 5.3(b) of the Agreement.
6. Casualty and Other Insurance. The Mortgagor agrees to insure or cause to
be insured the Mortgaged Property against loss or damage by fire and other
hazards as more particularly described in Sections 5.4 and 5.5 of the Agreement.
The Mortgagor will not do or suffer to be done anything which will increase the
risk of fire or other hazard to the Mortgaged Premises or any part thereof
without first causing such increased risk to be fully and adequately covered by
insurance.
7. Worker's Compensation Coverage. The Mortgagor shall maintain worker's
compensation coverage or cause the same to be maintained to the extent required
by applicable law.
8. Self-Insurance. Notwithstanding the provisions of Sections 6 and 7, but
subject to the requirements of Article V of the Agreement, if the Mortgagor
shall insure similar properties by self-insurance, the Mortgagor, at the
Mortgagor's election, may insure the Mortgaged Property, partially or wholly by
means of an adequate self-insurance fund set aside and maintained out of its
earnings, or in conjunction with other companies through an insurance trust or
other arrangement.
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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 6.2 of the Agreement.
10. Advances. If the Mortgagor fails 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
Mortgagee 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 pay said claim, lien,
encumbrance, tax, assessment or premium, with right of subrogation thereunder,
may make repairs and take such steps as it deems advisable to prevent or cure
such waste, and may 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 advance such sums of money, including all
costs, reasonable attorneys' fees and other items of expense as it deems
necessary. The Mortgagor 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 Mortgagor 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 Mortgagor or charged upon the Mortgaged Property, the
Mortgagor agrees to pay reasonable attorneys' fees.
12. Remedies. Subject always to the provisions of Section 13 hereof, upon
the occurrence of a "Default" as defined and specified in the Indenture and the
declaration of an acceleration of the Bonds pursuant to the Indenture, the
Trustee may exercise one or more of the following remedies (no remedy hereunder
intended to be exclusive of any other remedy hereunder, under any of the Secured
Agreements or under the Indenture):
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(a) The Trustee may require the Mortgagor, 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 Mortgagor 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 Mortgagor 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
Mortgagor; 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 Mortgagor,
holding the Mortgagor 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 Mortgagor 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.
(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
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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 this 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, 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 Mortgagor (i) stating that no "Default" or any
condition or event which, with the giving of notice or the passage of time or
both would constitute a "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 acceptable to the Trustee
dated not more than (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 a facility for the purposes for which it
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was designed and for such purposes as shall be permitted by the Act and will not
destroy the means of ingress thereinto and egress thereform.
Provided, however, that if the portion of the Site to be released has
transportation or utility facilities located upon it, the Mortgagor 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
to be furnished by the Mortgagor, 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 Mortgagor 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 the Mortgagor in
its sole discretion determines that any items of the Equipment have become
obsolete, worn out, unsuitable, inappropriate or unnecessary for its purposes,
and so long as no "Default" or any condition or event which, with the giving of
notice or the passage of time or both would constitute a "Default" has occurred
under the Secured Agreements or the Indenture, the 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 the 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 shall not entitle the Mortgagor to
any postponement, abatement or diminution in amounts payable on account of the
indebtedness secured hereby.
Upon the request of the Mortgagor, the Trustee shall deliver and cause to
be delivered to the 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 the Mortgagor to
the effect that such release complies in all respects with this Section.
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15. Granting of Easements. If no "Defaults" or any condition or event
which, with the giving of notice or the passage of time or both would constitute
a "Default" has occurred under the Secured Agreements or the Indenture, the
Mortgagor 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 Mortgagor 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 Mortgagor stating (i) that such grant or
reconveyance will not impair the effective use 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 or the Mortgagor; and (3) an
opinion of Independent Counsel (as defined in the Indenture) 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 Mortgagor 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. The 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 the
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 Mortgaged Property.
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Without limiting the generality of the preceding sentence, the 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 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 Mortgagor, to Xxxx Hauling and Warehousing System, Inc., X.X. Xxx 0000,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xx. Xxxxxxx Xxxxxx, Vice President;
and if to the Trustee, Mellon Bank, N.A., One Mellon Bank Center, Room 3440,
Pittsburgh, Pennsylvania, Attention: Corporate Trust Division. 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 the
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 constitute a fixture filing to be filed of record in the
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real estate records maintained by the Clerk of Camden County, pursuant to
N.J.S.A. 12A:9-402(3) and (6). In addition, the 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 Mortgagor shall
pay all reasonable costs of the preparation and filing of such instruments.
23. Amendments. 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.
24. 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.
25. 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.
26. Governing Law. This Mortgage is to be governed and construed according
to the laws of the State of New Jersey.
27. RECEIPT. THE MORTGAGOR HEREBY ACKNOWLEDGES RECEIPT OF A TRUE COPY OF
THIS MORTGAGE, WITHOUT CHARGE.
IN WITNESS WHEREOF, the 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 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
Attest: corporation
/s/ Xxxx Xxxxx By: /s/ Xxxxxxx Xxxxxx
---------------------------------- -----------------------------
Xxxx Xxxxx, Secretary Xxxxxxx Xxxxxx,
Vice President
[SEAL] MELLON BANK, N.A., as Trustee
Attest: By: /s/ X.X. XxXxxxxx
-----------------------------
/s/ X. Xxxxxxx X.X. XxXxxxxx
---------------------------------- Vice President
X. Xxxxxxx, Officer
12
STATE OF NEW JERSEY )
: ss.:
COUNTY OF ESSEX )
I, Xxxxxxx Xxxxxxxx, 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 28th day of January, 1992.
/s/ Xxxxxxx Xxxxxxxx
------------------------------
Notary Public
XXXXXXX XXXXXXXX
A Notary Public of New Jersey
My Commission Expires:______________My Commission Expires Oct. 16, 1994.
13
COMMONWEALTH OF PENNSYLVANIA )
: ss.:
COUNTY OF ALLEGHENY )
I, Xxxxxxxx X. Xxxxx, do hereby certify that X.X. XxXxxxxx and X. Xxxxxxx,
a Vice President and an Officer of MELLON BANK, N.A., a banking corporation
organized under the laws of the United States of America, 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 Officer
on behalf of Mellon Bank, N.A., as their free and voluntary act for the uses and
purposes therein set forth.
Given under my hand and official seal, this 24th day of January, 1992.
/s/ Xxxxxxxx X. Xxxxx
-------------------------
Notary Public
Notary Seal
Xxxxxxxx X. Xxxxx, Notary Public
Pittsburgh, Allegheny County
My Commission Expires: 3/20/95 My commission Expires March 20, 1995
Member, Pennsylvania Association of Notaries
14
