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XXXX HAULING AND WAREHOUSING SYSTEM, INC.
and
000 XXXXXXXX XXX., INC.,
as Mortgagors
AND
NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY,
as Mortgagee
SERIES K MORTGAGE AND SECURITY AGREEMENT
Dated as of February 1, 1997
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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 K MORTGAGE AND SECURITY AGREEMENT is dated as of February 1,
1997 (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 ("Xxxx") and 000 XXXXXXXX XXX., INC., a Pennsylvania
corporation having an address at 000 X. Xxxxxxxx, Xxxxxxxxxx Xxxx, Xxx Xxxxxx
00000 ("777" and, together with Xxxx, the "Mortgagors"), as mortgagors, in
favor of the NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY, a public body corporate
and politic constituting an instrumentality of the State of New Jersey, as
mortgagee (the "Mortgagee"). 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 Mortgagee intends to issue its Senior Mortgage Economic
Development Revenue Refunding Bonds (Xxxx Hauling and Warehousing System, Inc. -
1983 Project) 1997 Series K (the "Bonds") in the aggregate principal amount of
Twenty-Seven Million Two Hundred Fifty Thousand Dollars ($27,250,000), maturing
March 1, 2027, pursuant to an Indenture of Trust dated as of February 1, 1997
(as amended and supplemented from time to time, the "Indenture") between the
Mortgagee and The Bank of New York, as trustee (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 Xxxx in order to assist Xxxx in refunding the
Series D Bonds and Series E Bonds, all with respect to a project located in the
City of Gloucester City, Camden County, New Jersey, all pursuant to a Series K
Loan Agreement dated as of February 1, 1997 (as amended from time to time, the
"Agreement") between the Mortgagee and Xxxx; and
WHEREAS, all of the Mortgagee's rights under the Agreement (except for such
rights as are specifically reserved) and under this Mortgage are to be assigned
to the Trustee pursuant to the Indenture and the Assignment; and
WHEREAS, in connection with the issuance of the Bonds, certain affiliates
of Xxxx (the "Guarantors") have entered into a Series K Guaranty Agreement dated
as of February 1, 1997 (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, Xxxx'x payment obligations pursuant to paragraphs (a), (b) 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 Mortgagors or the Guarantors under this Mortgage,
the Guaranty, the Agreement and 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, 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 Mortgagee 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 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 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 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 each 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; and
TOGETHER with all of the Mortgagor's leasehold interest in the property
financed with the proceeds of the $24,500,000 Camden County Improvement
Authority (Camden County, New Jersey) Lease Revenue Bonds (Xxxx Hauling and
Warehousing System, Inc. Project) 1996 Series A.
TO HAVE AND TO HOLD the above granted and described property equally and
ratably unto the Mortgagee and its respective successors and assigns,
forever. The Mortgagors do hereby fully warrant good and marketable fee
simple title to the Site, the Improvements, and the Equipment and will defend
the same against the lawful claims of all persons whomsoever, subject only to
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 Mortgagors or their successors or assigns
shall pay to the Mortgagee 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 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
and (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; 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 Xxxx,
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
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mortgages, all as more fully described in that certain Amendment to
Senior Indebtedness Coordinate Lien Agreement dated as of February 1, 1997 by
and among the Mortgagors, Dockside Refrigerated Warehouses, Inc., The Bank of
New York, as Series J Trustee, The Bank of New York, as CCIA Series Trustee
and the Mortgagee and that certain Amended and Restated Coordinate Lien
Agreement dated as of February 1, 1997 by and among Xxxx, The Bank of New
York, as Series J. Trustee and The Bank of New York, as Series K Trustee.
PROVIDED FURTHER, however, that the Mortgagee agrees that from and after
the date hereof, the Camden County Improvement Authority ("CCIA") shall have,
during the term of that certain Ground Lease Agreement dated as of January
15, 1996 by and between Xxxx and CCIA (the "Ground Lease"), quiet use and
enjoyment of the Project Site (as defined in the Ground Lease) (the "1996
CCIA Project Site"), and CCIA shall during such term peaceably and quietly
have and hold and enjoy the 1996 CCIA Project Site and each and every part
thereof, without suit, trouble, molestation or hindrance from the Mortgagee
or any successors or assigns, or any party claiming under or through the
Mortgagee, including, without limitation, any purchaser at a foreclosure sale
under this Mortgage, any transferee who acquires possession or title to the
1996 CCIA Project Site by deed in lieu of foreclosure or other means and the
successors and assigns of such purchasers and/or transferees, and the
Mortgagee shall, at the request of CCIA and at CCIA's sole cost and expense,
join in any legal action in which CCIA asserts its right to such possession
and enjoyment; provided, however, that the provisions of this sentence shall
cease to apply under the following circumstances: (i) all of the CCIA's Lease
Revenue Bonds (Xxxx Hauling and Warehousing System, Inc. Project) 1996 Series
A in the aggregate principal amount of $24,500,000 (the "1996 CCIA Bonds")
shall have theretofore actually been paid in full, at maturity or upon
redemption or acceleration prior to maturity, (ii) all of the 1996 CCIA Bonds
shall have been defeased and shall no longer be deemed "Outstanding" under
the Indenture of Trust dated as of January 15, 1996 between CCIA and The Bank
of New York (NJ), as trustee (the "1996 CCIA Trustee") and there shall have
been delivered to the 1996 CCIA Trustee an opinion of bond counsel to the
effect that any divestiture or reduction of CCIA's interest in the 1996 CCIA
Project Site pursuant to or at any time after such defeasance shall not cause
interest on the 1996 CCIA Bonds to be or to become includable in the gross
income of the holders thereof for federal income tax purposes, or (iii) the
1996 CCIA Trustee, on behalf of the holders of at least 66 2/3% in aggregate
principal amount of the 1996 CCIA Bonds, shall have consented to such action.
Nothing herein, however, shall be deemed or construed to impair or limit the
Mortgagee's lien on and rights with respect to the proceeds derived from a
condemnation, foreclosure sale or other sale or disposition of the 1996 CCIA
Project Site.
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The Mortgagors further covenant and agree as follows:
1. Payment. The Mortgagors 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 Mortgagors shall comply with all present
and future laws, ordinances, rules, regulations, covenants, conditions and
restrictions affecting the Mortgagors, 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 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
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, 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 Mortgagors, in their discretion,
may deem to be desirable for the Mortgagors' 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 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 Mortgagors in any manner and in the sole discretion of the
Mortgagors.
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 the Mortgagors shall first notify the
Mortgagee of its intention to do
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so, the Mortgagors may in good faith contest at the Mortgagors' 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.
The Mortgagors may, at the Mortgagors' 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 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 Sections 5.4 and 5.5 of the
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.
8. Self-Insurance. Notwithstanding the provisions of Sections 6 and 7,
but subject to the requirements of Article V of
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the Agreement, if the Mortgagors shall insure similar properties by
self-insurance, the Mortgagors, at the Mortgagors' 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 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 Mortgagee therein, including, but not limited to, eminent
domain and bankruptcy or reorganization proceedings, then the Mortgagee, 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 Mortgagee deems advisable, and for any of said purposes
the Mortgagee may advance such sums of money, including all costs, reasonable
attorneys' fees and other items of expense as it deems necessary. The
Mortgagors shall pay to the Mortgagee all sums of money so advanced by the
Mortgagee 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 the Mortgage, the Mortgagee, 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 Mortgagee shall
ever be considered as a waiver of any right accruing to it hereunder. The
Mortgagee 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 Mortgagee 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.
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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 Mortgagee 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 Mortgagee may require the Mortgagors, upon demand of the
Mortgagee, to forthwith surrender, and the Mortgagee 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 Mortgagee 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
paper costs and expenses of so taking, holding, leasing, selling and
managing the same, including reasonable compensation to the Mortgagee, its
agents and counsel, and any charges of the Mortgagee hereunder, and any taxes
and assessments and other charges due and payable which the Mortgagee 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 Mortgagee
shall surrender whatever possession the Mortgagee shall retain to the
Mortgagors; the same right of entry, however, shall exist upon any subsequent
default.
(b) The Mortgagee 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
Mortgagee 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
Mortgagee by announcement at the time and place fixed for such sale, without
further notice) and upon such terms as the Mortgagee 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
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general circulation in the county in which the Mortgaged Property is
located, and in such event the Mortgagee 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 Mortgagee 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 Mortgagee 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 Mortgagee 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 Mortgagee 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 Mortgagors (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
Mortgagee dated not more than sixty (60) days prior to the
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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 Mortgagors shall
retain an easement to use such facilities to the extent necessary for the
efficient operation of the Mortgaged Property.
The Mortgagee agrees that upon receipt of the items required in this
Section 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 the Mortgagors
in their sole discretion determine 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
Mortgagors 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 Mortgagee therefor,
provided that the Mortgagors 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 Mortgaged Property.
The removal from the Mortgaged Property of any portion of the Equipment
pursuant to the provisions of this Section shall not entitle the Mortgagors
to any postponement, abatement or diminution in amounts payable on account of
the indebtedness secured hereby.
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Upon the request of either Mortgagor, the Mortgagee shall deliver or
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.
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 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 Mortgagee 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 Mortgagors 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 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 Mortgagee 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 Mortgagee 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 Mortgagee of any default shall constitute a waiver of or
consent to subsequent defaults. No withdrawal or abandonment of foreclosure
proceedings by the Mortgagee 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 Mortgagee shall not
be taken or construed as a waiver of its rights or remedies hereunder.
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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 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
"Mortgagor" and "Mortgagee" 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 Xxxx Hauling and Warehousing System, Inc.
or 000 Xxxxxxxx Xxx., Inc., X.X. Xxx 0000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000,
Attention: Xx. Xxxxxxx Xxxxxx, Vice President; if to the Mortgagee, 000 Xxxxx
Xxxxxx Street, Capital Place One, CN 990, Trenton, New Jersey 08625,
Attention: Executive Director; and if to the Trustee, The Bank of New York,
000 Xxxxx Xxxx Xxxx, Xxxx Xxxxxxxx, Xxx Xxxxxx 00000. Any party hereto may,
by written notice given hereunder,
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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
Mortgagors hereby grant to the Mortgagee, 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 Mortgagors 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. 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.
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 MORTGAGORS HEREBY ACKNOWLEDGE RECEIPT OF A TRUE COPY OF
THIS MORTGAGE, WITHOUT CHARGE.
28. Other. For purposes of preserving the priority of the Series D
Mortgage and the Series E Mortgage, this Mortgage shall be deemed to amend
and restate the Series D Mortgage and the Series E Mortgage in their
entirety.
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IN WITNESS WHEREOF, each Mortgagor has caused this instrument to be
executed in its name by one of its duly authorized officers; and the
Mortgagee 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 By: /s/ Xxxxxxx Xxxxxx
-------------------------------- ----------------------------------
Xxxx Xxxxx Xxxxxxx Xxxxxx
Secretary Vice President
[SEAL] 000 XXXXXXXX XXX., INC., a
Pennsylvania corporation
Attest:
/s/ Xxxx Xxxxx By: /s/ Xxxxxxx Xxxxxx
-------------------------------- ----------------------------------
Xxxx Xxxxx Xxxxxxx Xxxxxx
Secretary Vice President
SIGNATURE PAGE TO MORTGAGE
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