XXXX HAULING AND WAREHOUSING SYSTEM, INC.,
as Mortgagor
AND
THE BANK OF NEW YORK (NJ),
as Trustee
SERIES J MORTGAGE AND SECURITY AGREEMENT
Dated as of June 1, 1995
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).
Return and Record To:
M. Xxxxxx Xxxxx, Esq.
Xxxxx & Xxxxxx
A Professional Corporation
0 Xxxxxx Xxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
THIS SERIES J MORTGAGE AND SECURITY AGREEMENT is dated as of June 1,
1995 (the "Mortgage") and is 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 THE BANK OF
NEW YORK (NJ), a banking corporation organized and existing under the laws of
the United States of America, having an address at 000 Xxxxx Xxxx Xxxx, Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000, as Trustee under the Indenture referred to below
(the "Trustee"). All capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Agreement (as hereinafter defined) and
the Indenture (as hereinafter defined).
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 Revenue Refunding Bonds (Xxxx Hauling
and Warehousing System, Inc. - 1983 Project) 1995 Series J (the "Bonds") in the
aggregate principal amount of Five Million Dollars ($5,000,000), maturing
November 1, 2023, pursuant to an Indenture of Trust dated as of June 1, 1995 (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. ss.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 I Bonds, all with
respect to a project located in the City of Gloucester City, Camden County, New
Jersey, all pursuant to a Series J Loan Agreement dated as of June 1, 1995 (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 J Guaranty Agreement dated as of June 1, 1995 (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 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 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 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 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.
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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 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, 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 and (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; provided, however, that this Mortgage
shall enjoy the benefits, pari passu with the mortgages described in the next
paragraph, of that certain Subordination Agreement dated as of August 1, 1986
among the Mortgagor, the City of Gloucester and Bankers Trust Company and
recorded September 25, 1986 in Mortgage Book 3050, Page 0644.
This Mortgage and the lien created hereby is pari passu and equal in
all respects to the lien created by certain other mortgages, all as more fully
described in that certain Amendment to Senior Indebtedness Coordinate Lien
Agreement dated as of June 1, 1995 by and among the Mortgagor, Dockside
Refrigerated Warehouses, Inc., Bankers Trust Company, as Series D Trustee, The
Bank of New
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York NA, as Series E Trustee, The Bank of New York NA, as CCIA Series Trustee
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.
2. Compliance with Laws. The Mortgagor shall comply with all present
and future laws, ordinances, rules, regulations, covenants, 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.
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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 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 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 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 Property or any part
thereof without first causing such increased risk to be fully and adequately
covered by insurance.
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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.
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 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 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 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 the 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
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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):
(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 paper costs and expenses of so taking, holding,
payment of, 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
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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
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, 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.
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(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 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 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 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.
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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 or 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.
15. Granting of Easements. If 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 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 instruments 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 of Mortgagor; 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 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
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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. 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 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 Mortgagor, to Xxxx Hauling and Warehousing System, Inc.,
X.X. Xxx 0000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xx. Xxxxxxx Xxxxxx,
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Vice President; and if to the Trustee, The Bank of New York (NJ), 000 Xxxxx Xxxx
Xxxx, Xxxx Xxxxxxxx, Xxx Xxxxxx 00000. 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
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. Relation Back. 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.
-12-
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
corporation
Attest:
/s/ Xxxx Xxxxx /s/ Xxxxxxx Xxxxxx
--------------------- --------------------------
Xxxx Xxxxx, Secretary Xxxxxxx Xxxxxx, Vice
President
[SEAL] THE BANK OF NEW YORK (NJ), as
Trustee
Attest:
--------------------- By:-----------------------
