Exhibit 10.24
THIS MORTGAGE
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MADE THIS 18th day of November , 1994, is between Mortgagors, WRN
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PROPERTIES, INC., a Pennsylvania corporation with offices at ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (called "Mortgagor"), and
Mortgagee, FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF HAZLETON, organized and
existing under the laws of the United States of America with offices at ▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (called "Bank").
In consideration for and to secure payment and performance to Bank by
Mortgagor (if more than one person, jointly or severally obligated to Bank and
called "Mortgagor") of a loan in the amount of Two Hundred Seventy-five Thousand
and no/100 ($275,000.00) Dollars evidenced by a Note of even date, plus interest
and costs as provided therein (and/or any modification, refinancing, extension
or renewal thereof and any other promissory notes or other agreements which may
be substituted therefor, any or all of which are hereinafter called the "Note"),
and of all of the Obligations (as defined hereinafter), Mortgagor does hereby
grant, bargain, sell, convey and mortgage unto Bank, to have and to hold, to and
for the use and behoof of Bank, its successors and assigns, forever, a first
lien on all that certain lot, piece or parcel of land, with the buildings and
improvements thereon erected, situate, and located at ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, described in greater detail on
"Exhibit A", appended to and made a part of this Mortgage, and called the
"Premises."
TOGETHER with all and singular the present and future buildings, additions and
improvements thereon, including all alleys, passageways, rights, liberties,
privileges, hereditaments and appurtenances, and the reversions, remainders,
rents, issues and profits thereof, now or hereafter accruing, attached to or in
any way pertaining to the Premises, and any fixtures attached thereto.
THIS MORTGAGE IS MADE subject to the following terms and conditions:
A. OBLIGATIONS
As used in this Mortgage, "Obligations" means any or all of the following
liabilities and obligations:
(1) the liabilities and obligations of Eastern Environmental Services, Inc. to
Bank arising out of the Note and the Loan Commitment of Bank dated October 28,
1994 to Borrower, accepted by Eastern Environmental Services, Inc. on October
28, 1994;
(2) all other existing and future liabilities and obligations of Eastern
Environmental Services, Inc. to Bank, whether absolute or contingent, direct or
indirect, of any nature whatsoever and arising from this or any other
transaction, under an agreement between it and Bank of even date;
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(3) performance by Eastern Environmental Services, Inc. of all warranties,
representations, covenants and agreements set forth in the Note and in other
documents evidencing the liabilities and obligations specified in Sections A.(1)
and A.(2) above;
(4) performance by WRN Properties, Inc. of all warranties, representations,
covenants and agreements set forth in this Mortgage;
(5) the cost of curing any Event of Default or performing any warranty,
representation, covenant or agreement which Bank elects to cure or perform; and
(6) the reasonable cost incurred by Bank to enforce any of the aforesaid
obligations of Eastern Environmental Services, Inc.
REFERENCE IS MADE TO A HYPOTHECATION AGREEMENT OF MORTGAGOR THIS DATE
AUTHORIZING THE PLEDGE OF THE PREMISES DESCRIBED HEREIN AS SECURITY FOR BANK'S
LOAN TO EASTERN ENVIRONMENTAL SERVICES, INC.
B. WARRANTIES, REPRESENTATIONS, COVENANTS AND AGREEMENTS
Until the Obligations are paid and performed in full, Mortgagor warrants,
represents, covenants and agrees to all of the following:
1. PAYMENTS: All payments on the Note will be made when and where due,
including payments due on demand, if the Note is payable on demand, or by
acceleration of maturity upon default, and all Obligations will promptly be paid
and performed in full in accordance with their terms.
2. TITLE: Mortgagor has fee simple title to the Premises and the right to
mortgage the Premises, and Mortgagor will defend said title against any person
claiming any right in the Premises prior to or superior to the lien of this
Mortgage.
3. INSURANCE: Mortgagor will maintain insurance on the Premises of such
kinds, in such amounts, with such companies and with such mortgagee loss-payable
clauses as are satisfactory to Bank and, at Bank's request, will deposit
evidence of such policies including paid receipts with Bank. Mortgagor shall
not engage in or permit any lessee of all or part of the Premises to engage in
any activity on the Premises which, if resulting in any loss or damage to the
Premises, would not be covered by such insurance. Mortgagor shall notify Bank
of any loss of damage to the Premises and promptly submit to such insurers a
proof or proofs of loss. Mortgagor appoints Bank as Mortgagor's attorney-in-
fact, in Mortgagor's or Bank's name, to file such proof or proofs of loss, if
Mortgagor fails or refuses to do so, and to endorse Mortgagor's name to any
check, draft or other instrument received in payment or settlement of insurance
claims. Mortgagor directs the insurers to mail or deliver all checks, drafts or
other instruments in payment or settlement of insurance claims directly to Bank.
The proceeds of any such insurance shall be applied to the repair of the
Premises or to reduce the outstanding balance of the Obligations, at Bank's sole
election.
4. TAXES: Mortgagor will pay when due all taxes, assessments and
governmental charges, and all other charges of any kind which are levied upon
Mortgagor or the Premises at any time and which, if unpaid, would result in a
lien or other security interest in the Premises superior to that of Bank, and
will deliver to Bank upon request all receipts evidencing payment therefor.
Mortgagor will not claim a credit under the Note or this Mortgage for such
payments.
5. CONDITION AND REPAIR: Mortgagor will maintain the Premises in good
repair,
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order and condition and will not commit nor permit any strip, waste,
nuisance, impairment or deterioration of the Premises, will not remove from the
Premises any fixtures, appliances, machinery or equipment of any nature covered
by the lien of this Mortgage, will not bring nor permit any lessee of the
Premises to bring any hazardous substances onto the Premises, for storage,
manufacturing, processing or other purposes, and will comply with all laws
regarding the use and possession of the Premises. Bank's representatives may
inspect the Premises at any reasonable time or times. Mortgagor represents
that, except as specifically noted on an addendum to this Mortgage, there are no
hazardous substances now on the Premises. For purposes of this Mortgage,
"hazardous substance" shall mean any manufactured, processed or distilled
substance which does not occur naturally on the Premises and which, if released
into the environment, could or would pose a real and substantial threat to the
public health and welfare.
6. TRANSFERS: Mortgagor will not materially improve or alter the Premises,
nor sell, assign or transfer the Premises or any portion thereof, voluntarily or
involuntarily, to any other person, nor grant anyone rights therein without the
prior written consent of Bank.
7. LEASES: If the Premises have been or will be leased in whole or in part,
Mortgagor hereby assigns to Bank Mortgagor's interest in such leases as
additional security for the Note. Mortgagor shall provide Bank with copies of
all existing and future leases of all or part of the Premises. Mortgagor will
comply with the provisions of such leases, but Mortgagor will not collect more
than one (1) month's rent, exclusive of any security deposit for damages to the
Premises or nonpayment of rentals, in advance. Unless with the prior written
consent of Bank or used in the normal course of lessee's business as specified
in the lease, all leases of all or part of the Premises shall specifically
prohibit the lessees from bringing hazardous substances onto the Premises, for
storage, manufacturing, processing or any other purpose.
8. CONDEMNATION AND JUDGMENTS: Mortgagor assigns all judgments or awards
for damage to the Premises or arising out of condemnation of the Premises, or
otherwise, in their entirety to Bank, and Bank may apply the same to the
Obligations secured by this Mortgage. Bank is authorized by Mortgagor to
institute or defend such actions and to appeal from any such judgments.
9. ASSIGNMENTS: Mortgagor will not assign the rents, profits or income from
the Premises without first obtaining the written consent of the Bank to such
assignment, except that in the event of foreclosure, Mortgagor's interest in any
insurance policy relating to the Premises shall be and is hereby assigned to the
purchaser at such sale.
10. SUITS: Mortgagor shall not permit any action to enforce any other lien
or claim against the Premises prior to the lien of this Mortgage to be commenced
and not discontinued and withdrawn within ten (10) days.
11. RESTRICTIONS: Mortgagor shall comply with all restrictions or
governmental regulations affecting the use, title or possession of the Premises,
and shall not make use, encumber title or allow possession of the Premises,
whereby the same may be forfeited to any person.
C. EVENTS OF DEFAULT
Each of the following shall constitute an "Event of Default" hereunder:
(1) The failure of Eastern Environmental Services, Inc. to make any payment on
the Note as and when due;
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(2) The failure of Eastern Environmental Services, Inc. to pay or perform any
of the Obligations as and when due; and
(3) The breach by Mortgagor of any warranty, representation, covenant or
agreement contained herein, or by Eastern Environmental Services, Inc. in the
Note, or by Mortgagor in any document or instrument evidencing any of the
Obligations.
(4) The occurrence of any event, circumstance or proceeding that, in the good
faith determination of Bank, materially adversely affects the credit or
financial condition of Eastern Environmental Services, Inc. or the value of the
premises.
D. REMEDIES
Upon the occurrence of any Event of Default or at any time thereafter, Bank
may do any or all of the following:
(1) At its sole discretion, cure the Event of Default and add the costs of
such cure to the Principal sum then due on the Note, and charge interest thereon
in accordance with the Note from the date of such payment.
(2) Accelerate and declare immediately due and payable all amounts due under
the Note and under all of the Obligations.
(3) Place this Mortgage or any of the Obligations in the hands of an attorney
for collection, or institute an action of mortgage foreclosure against the
Premises, or take such other action at law or in equity for the enforcement
hereof and of the Obligations as the law may allow and proceed to final judgment
and execution thereon for the entire unpaid balance thereof, together with any
costs incurred by the Bank in curing any Events of Default, with interest
thereon at the rate stipulated in the Note, together with all sums due in
accordance with the provisions hereof, and all costs of suit and reasonable
attorney's fees, but in no event shall such attorney's fees be less than One
Thousand and no/100 ($1,000.00) Dollars.
(4) Enter into possession of the Premises, with or without legal action, or
have a receive appointed to take possession and collect all rents, issues,
profits or insurance proceeds therefrom whether due or to become due, all of
which Mortgagor hereby expressly assigns to Bank as additional security for the
Obligations.
(5) Lease the Premises and, at any time and from time to time, upon five (5)
days' prior written notice to Mortgagor, which Mortgagor acknowledges is
sufficient, proper and commercially reasonable, sell or otherwise dispose of the
Premises, in whole or in part, at public or private sale, without advertisement
or notice of sale, all of which are hereby waived.
(6) After deducting all costs of collection (including reasonable attorney's
fees and administration expenses), apply the net rents, issues, profits and
proceeds of sale of the Premises to the payment of taxes, water and sewer rents,
insurance premiums and all other charges related to the maintenance, repair,
restoration, use and/or sale of the Premises, or on account and in reduction of
the Obligations hereby secured, in such order and amounts as Bank, in Bank's
sole discretion, may elect, and Mortgagor hereby waives and releases any right
to require Bank to collect any of the Obligations from any other collateral
under any equitable theory of marshalling of assets or otherwise.
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E. WAIVER
Mortgagor hereby waives and releases all benefit and relief from any and all
appraisement, stay and exemption laws now in force or hereafter passed, either
for the benefit or relief of Mortgagor, or limiting the balance due to a sum not
in excess of the amount actually paid by the purchaser of the Premises at a sale
thereof in any judicial proceedings upon this Mortgage, or exempting the
Premises or any other property, real or personal, or any part of the proceeds of
sale thereof, from attachment, levy or sale under execution, or providing for
any stay of execution or any process.
Mortgagor hereby waives any requirement that Bank protect, secure, perfect or
ensure any lien or security interest or any property subject thereto to exhaust
any right or take any action against any other obligor or any other collateral
which directly or indirectly secures the obligations of borrower or Eastern
Environmental Services, Inc. under any loan document.
Mortgagor hereby irrevocably waives its rights, in the event it or Eastern
Environmental Services, Inc. files for bankruptcy or if an involuntary
bankruptcy is filed against either it or Eastern Environmental Services, Inc.,
to (i) defend any motion pursuant to which Bank seeks relief from the automatic
stay under 11 U.S.C. (S)362 (d).
F. CONSENT
Mortgagor hereby consents: to the extension of the time for payment of the
Note, this Mortgage or any Obligations secured hereby or to the release of any
party also liable therefor; to the making of any compromise or settlement; to
the waiver or failure to enforce any rights against any person or any property;
to the release of any other collateral security or any part of the Premises; or
to any action which might or could release Mortgagor from liability; and
Mortgagor also hereby expressly waives any claims to any such release from
liability by reason of any of the foregoing acts, or failures to act, and also
by reason of any defects in, or incompleteness of, any foreclosure of this
Mortgage or any other action or neglect, excepting only the full payment to Bank
of all sums secured to it hereunder.
G. NOTICE
Any notice required to be give to Bank shall be personally served or sent by
certified or registered mail, return receipt requested. Such notice shall be
effective upon actual receipt by Bank. Any notice required to be given to the
Mortgagor may be sent by ordinary first class mail addressed to Mortgagor's last
know mailing address as shown on Bank's books and records and shall be deemed
received as of the next business day after mailing.
H. RELEASE
Bank may release any part of the Premises without creating any rights in favor
of any subsequent lienor, and also without affecting the liability of any person
for the payment of any of the Obligations secured hereby or the lien of this
Mortgage upon the remainder of the Premises for the full amount of the
Obligations then remaining unpaid.
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BUT ALWAYS PROVIDED, nevertheless, that if this Mortgage and the Obligations
hereby secured are paid in full in the manner provided in the Note and in the
Obligations, then this Mortgage and the estate hereby granted shall cease and
determine and become void, anything herein to the contrary notwithstanding.
The rights and remedies of Bank as provided herein or in the Obligations shall
be cumulative and concurrent, and may be pursued singly, successively, or
together against Mortgagor, Mortgagor and the Premises, at the sole discretion
of Bank, and the failure to exercise any such right or remedy shall in no event
be construed as a waiver or release of the same. The words "Mortgagor" and
"Bank" shall be deemed and construed to include their respective successors and
assigns. This Mortgage shall be governed by and construed according to the laws
of the Commonwealth of Pennsylvania. The unenforceability or invalidity of any
provision of this Mortgage shall not render any other provisions unenforceable
or invalid.
MORTGAGOR HAS DULY EXECUTED THIS MORTGAGE under seal the day and year first
mentioned above.
ATTEST: WRN PROPERTIES, INC.
Mortgagor
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------- ----------------------(SEAL)
President
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ACKNOWLEDGEMENT
COMMONWEALTH OF PENNSYLVANIA :
: ss
COUNTY OF LUZERNE :
On this, the 18 day of November, 1994, before me, a Notary Public, the
undersigned officer, personally appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, who acknowledged
himself to be the President of WRN Properties, Inc., a corporation, and that he
as such President, being authorized to do so, executed the foregoing instrument
for the purposes therein contained by signing the name of the corporation by
himself as President.
WITNESS my hand and official seal the day and year aforesaid.
(SEAL) /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Notary Public
My Commission expires:
The precise address of the within named Mortgagee is:
▇.▇. ▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇ Street, Hazleton, Pennsylvania, 18201
/s/ ▇▇▇▇▇ Wengen, Vice-President
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Attorney for Mortgagee
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ALL that certain piece, parcel or tract of land situate in the Township of
▇▇▇▇▇▇, County of Luzerne and Commonwealth of Pennsylvania, bounded and
described as follows, to wit:
BEGINNING at a point, the northwest corner of the parcel herein described, said
point being located South 0 degrees, 16 minutes East, 100 feet from the
southeast corner of the intersection of U.S. Route 309 and T349, said point also
being corner of lands of Highway Equipment and Supply Company, and said point
also being located on the easterly side of U.S. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇;
THENCE along lands of Highway Equipment and Supply Company, the following 2
courses and distances:
North 82 degrees, 2 minutes East, 159.71 feet to a point;
South 1 degree, 0 minutes, 31 seconds East, 175.38 feet to a point, said point
being corner of lands of Highway Equipment and Supply Company;
THENCE along lands of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, North 89 degrees, 7 minutes, 10 seconds
West, 160.57 feet to a point on the easterly side of U.S. Route 309;
THENCE along the easterly side of U.S. Route 309, North 0 degrees, 16 minutes
West, 150.75 feet to a point, the place of BEGINNING.
CONTAINING 0.59 acres.
All as set forth on a map of same dated April 30, 1985, prepared by ▇▇▇▇▇▇▇▇▇▇
Engineering, Inc. The above description was also prepared by ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇., P.E.
BEING the same premises sold and conveyed to the Borrower herein WRN Properties,
Inc. by Deed of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, his wife, dated
March 1, 1987 and recorded in the Office of the Recorder of Deeds in and for
Luzerne County on April 7, 1987 in Deed Book 2227 at Page 163
The PIN number is: Q853-001-005
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NOTE
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AMOUNT: $275,000.00 DATE: November 18 , 1994
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Hazleton, Pennsylvania
FOR VALUE RECEIVED, EASTERN ENVIRONMENTAL SERVICES, INC. ("Borrower"), a
business corporation with principal place of business at ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇,
▇▇ ▇▇▇▇▇, promise to pay to the order of FIRST FEDERAL SAVINGS AND LOAN
ASSOCIATION OF HAZLETON ("Lender"), a corporation organized and existing under
the laws of the United States of America, at its principal place of business and
address of ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, or at such other
place as Lender may from time to time designate in writing, the principal sum of
Two Hundred Seventy-five Thousand and no/100 ($275,000.00) Dollars, together
with interest thereon, as follows:
1. Interest Rate
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Commencing on the date of this Note, interest on the outstanding principal
balance shall accrue at nine and one-quarter (9.25%) per cent for the first
thirty-six (36) months. Thereafter, the interest rate will be adjusted on the
third (3rd) anniversary date of the Loan Closing ("Adjustment Dates"), to a
fixed rate equal to Lender's national prime rate, plus one and one-half (1.50%)
per cent per annum. Lender's "national prime rate" is a changing rate used by
Lender from time to time as a reference base with respect to different interest
rates charged to Borrowers. Interest shall be computed at the daily rate basis
of one-three hundred sixty-fifth (1/365th) of the annual rate per day.
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2. Payment of Principal and Interest
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Commencing on the 18th day of December, 1994, and continuing on that day of
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each month thereafter for a period of sixty (60) months (each such date being
hereinafter called "payment date"), Borrower shall pay to Lender installments or
principal and interest in the amount of Three Thousand Five Hundred Twenty and
90/100 ($3,520.90) Dollars.
If not sooner declared due and payable, the entire unpaid balance of
principal and all accrued interest due under this Note shall be due and payable
on November 18th, 1999.
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At the option of Lender, Borrower shall pay to Lender installments of
principal and interest in strict accordance with a monthly amortization schedule
established by Lender on the thirty-sixth (36th) month of a total amortization
period of sixty (60) months based upon the outstanding principal balance as of
that change date, so that the principal balance will be paid in sixty (60)
monthly installments from December 18th , 1994.
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All installments of principal and interest shall be applied first to escrow
payments, late charges, if any; interest then due, and principal.
3. Late Charges
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If any payment of interest due under this Note, or any other sum due to
Lender under any loan document incidental to this transaction is not paid within
fifteen (15) calendar days after the date it is due, Borrower shall pay to
Lender, immediately upon the expiration of the said period after the due date,
without notice or demand, a late charge equal to five (5) per cent of the amount
overdue in order to defray part of the additional expense incurred by Lender in
connection with the delinquency in collection of the overdue amount. Provisions
for such late charge shall not be construed to permit Borrower to make any
payment after its due date, obligate Lender to accept any overdue installment or
affect Lender's rights and remedies for Borrower's default under this Note. The
amount of any such late charge not
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paid promptly shall be deemed outstanding and payable pursuant to this Note and
secured by the Mortgage (defined hereafter).
4. Prepayments
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The Borrower shall have the full right to prepay the principal and interest
owing hereunder in full at any time or to prepay any portion of principal before
the same shall fall due without penalty. The acceptance of any such prepayment,
when there is an event of default in existence hereunder or under the loan
documents, shall not constitute a waiver, release or accord and satisfaction
thereof or of any rights with respect thereto by Lender. Partial prepayment of
the principal made by Borrower shall not postpone the next payment of interest
falling due or the due date of the entire principal and all accrued interest
have been paid.
5. Security For Note
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This Note and the due performance by Borrower of all of its obligations
hereunder, is secured by a first lien Mortgage on property presently owned by
WRN Properties, Inc. more particularly described in Luzerne County Deed Book
2227 at Page 163, situate at ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇. Reference is hereby made to a commitment letter
dated October 28, 1994, accepted by Borrower on October 28, 1994.
This Note, the Commitment Letter and the Mortgage are sometimes referred to
individually as a "Loan Document" and collectively as the "Loan Documents." Any
collateral securing any of Borrowers' obligations under any of the Loan
Documents is referred to collectively as the "Collateral."
6. Events of Default
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In addition to any other event referred to in the Loan Documents, the
occurrence of
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which constitutes an Event of Default, the occurrences of any one or more of the
following shall constitute Events of Default under this Note:
(a) a failure to pay any installment of principal and/or interest or any
other sum due under this Note or any other loan document on or before its due
date; and
(b) a failure to pay the final installment and/or any interest or any other
sum due under this Note or the Loan Documents within thirty (30) days after its
due date, or a failure to cure any other default which cannot be cured by the
payment of money within thirty (30) days after Lender gives notice of such
default to Borrower; and
(c) any representation or warranty contained in this Note, any other loan
document or any other writing delivered to Lender in connection with this Note
or any affidavit given by or on behalf of Borrower pursuant to any provision of
this Note or any other loan document is breached or is found to be materially
incorrect or untrue;
(d) any attachment or seizure of or execution against any of the mortgaged
property by any person or entity;
(e) any default which could, in the absence of the immediate exercise by
Lender of a right or remedy, result in irreparable harm to Lender, impairment of
this Note or any Collateral for this Note or damage to or loss of the Collateral
for this Note;
(f) the occurrence of any Event of Default as defined in any other loan
document; or
(g) Borrower makes an assignment for the benefit of creditors or a
composition with creditors or is unable to admit in writing its inability to pay
debts as they mature, or files a Petition in Bankruptcy, or is adjudicated
insolvent or bankrupt, or petitions or applies to any tribunal for the
appointment of any receiver, liquidator, or trustee of or for it or any
substantial part of its properties or assets, or commences any proceeding
relating to it under receivership, dissolution or liquidation law or statute of
any jurisdiction, whether now or
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hereafter in effect, or there is commenced against Borrower any such proceeding
which shall remain undismissed for a period of sixty (60) days or an Order,
judgement or decree approving the Petition in any such receiving is entered; or
by any act or failure to act indicating its consent to or approval of, or
acquiescence in, any such proceeding or in the appointment of any receiver,
liquidator or trustee of or for it or any substantial part of its properties or
assets, or allow any such appointment to continue undischarged or unstayed for a
period of sixty (60) days;
(h) if any controlling interest in the Borrower or WRN Properties, Inc.
greater than ten (10%) per cent should be sold or otherwise transferred,
directly or indirectly, to any person or entity other than ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
without Lender's prior written approval;
(i) if any of the Collateral should be sold or otherwise transferred at
voluntary or judicial sale, or in the event legal or equitable title becomes
vested by assignment in any one other than WRN Properties, Inc., without
Lender's prior written approval, or if any part thereof should be so
transferred, other than as expressly provided in any of the Loan Documents;
(j) Borrower or WRN Properties, Inc. allows any inferior lien to be filed
against any of the Collateral; and
(k) if any of the collateral should be leased or otherwise occupied by any
person or entity in whole or in part other than Borrower without the prior
written approval of Lender.
8. Remedies
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At any time after occurrence of an Event of Default, Lender may, at Lender's
option and without notice or demand, do any one or more of the following:
(a) without declaring the unpaid principal balance to be due, collect all
interest and all other sums due under this Note or any other loan documents from
time to time, by any
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action provided in this Note or any other loan document or provided at law or in
equity;
(b) declare the entire unpaid balance of this Note, together with interest
accrued thereon and all other sums due from Borrower under this Note or any
other loan document to be due and payable immediately; and/or
(c) take possession of the Collateral of WRN Properties, Inc.; and
(d) exercise any other right or remedy as may be provided in this Note or
any other loan document or provided at law or in equity.
Payment of all or any part of the indebtedness may be recovered at any time
by one or more of the foregoing remedies.
Whether or note the entire unpaid principal balance is declared to be due,
the interest rate on the unpaid balance shall continue to be subject to interest
rate changes as set forth in Paragraph 1 hereof, until the date on which all
defaults are cured or the entire unpaid principal balance and all other sums due
under this Note or any other loan document (collectively, the "Indebtedness")
are actually received by the Lender. Upon the entry of any judgement, interest
shall accrue at said rate (that is, with increases as set forth in Paragraph 1
hereof) in the judgment amount from the date of judgment until actual receipt of
the entire indebtedness by Lender, including any period after a Sheriff's Sale
of the Collateral.
9. Costs and Attorney's Commission
-------------------------------
In any action under this Note or any other loan document, Lender may recover
the following:
(a) all costs of suit and other expenses in connection with the action,
including the cost of any title search and attorneys' fees, paid or incurred by
Lender; and
(b) an attorney's commission for collection of not less than ten (10%) per
cent of the indebtedness, which attorney's commission shall be payable to
Lender.
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10. Remedies Cumulative
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The rights and remedies provided to Lender in this Note and other loan
documents, including all warrants of attorney, (a) are not exclusive and are in
addition to any other rights and remedies Lender may have at law or in equity,
(b) shall be cumulative and concurrent, (c) may be pursued singly, successively
or together against Borrower, any of the Collateral, and/or any other security
at the sole discretion of Lender, and (d) may be exercised as often as occasion
therefor shall arise. The failure to exercise or delay in exercising any such
right or remedy shall not be construed as a waiver or release thereof.
11. Borrower's Waivers
------------------
Borrower hereby waives and releases Lender and its attorneys from all errors,
defects, and imperfections in any proceeding instituted or maintained by Lender
under this Note or any other loan document. Borrower hereby, to the extent not
prohibited by law, waives all benefit of any and all present and future statutes
of limitations and moratorium laws and any and all present and future laws which
(a) exempt all or any part of the mortgaged property, or any other real or
personal property or any part of the proceeds of any sale or any such property
from attachment, levy foreclosure or sale under execution, (b) provide for any
stay of execution, marshalling of assets, exemption from civil process,
redemption, extension of time for payment, or valuation or appraisement of all
or any part of the mortgaged property, or any other real or personal property,
or (c) conflict with any provision of this Note or any other loan document.
Borrower agrees that the Collateral and any other real or personal property, may
be sold to satisfy any judgement entered under this Note or any other loan
document in whole or in part and in any order as may be desired by Lender.
Borrower: (a) waives presentment for payment, demand, notice of demand,
notice of
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nonpayment or dishonor, protest and notice of protest of this Note, and all
other notices (not expressly provided for in this Note) in connection with the
delivery, acceptance, performance, default, or enforcement of the payment of
this Note; (b) agrees that the liability of each of them shall be unconditional
without regard to the liability of any other part and shall not be affected in
any manner by any indulgence, extension of time, renewal, waiver or modification
granted or consented to by Lender at any time; (c) consents to any and all
indulgences, extensions of time, renewals, waivers or modifications granted or
consented to by Lender at any time; (d) consents to the release of all or any
part of or interest in the mortgaged property, with or without substitution; and
(e) agrees that additional makers, endorser, guarantors or sureties may become
parties to this Note or any other loan documents without notice to them or
affecting their liability under this Note or any other loan document.
As a separate inducement to Lender to enter into this loan transaction, and
upon Lender's reliance hereon, Borrower hereby irrevocably waives its rights, in
the event it files for bankruptcy or if an involuntary bankruptcy is filed
against it, to defend any motion pursuant to which Lender seeks relief from the
automatic stay under 11 U.S.C. (S)362 (d).
12. Lender's Waivers
----------------
Lender shall not be deemed, by any act or omission or commission, to have
waived any of its rights or remedies hereunder unless such waiver is in writing
and signed by Lender. Such a written waiver signed by Lender shall waive
Lender's rights and remedies only to the extent specifically stated in such
written waiver. A waiver as to one or more particular events or defaults shall
not be construed as continuing or as a bar to or waiver of any right or remedy
as to another or subsequent event or default.
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13. Miscellaneous
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(a) No Joint Venture. Lender shall not be construed for any purpose to be a
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partner, joint venturer or associate of Borrower or of any lessee, operator,
concessionaire or licensee of Borrower or of any of the mortgaged property by
reason of this Note or any of the loan documents.
(b) Time of Essence. Time is of the essence of each and every provision
----------------
requiring payment or performance of an obligation by Borrower.
(c) Successors and Assigns. The words "Lender" and "Borrower" shall include
-----------------------
the respective distributees, successors and assigns of Lender and Borrower,
respectively. The provisions of this Note shall bind and inure to the benefit of
Lender and Borrower and their respective distributees, successors and assigns.
This provision shall not be construed to allow any transfer which would
otherwise be prohibited under the terms hereof.
(d) Amendment of Note. This Note may be modified, amended, discharged or
------------------
waived only by an agreement in writing signed by the party against whom
enforcement of any such modification, amendment, discharge or waiver is sought.
(e) Governing Law. This Note shall be governed by and construed according to
--------------
the laws of the Commonwealth of Pennsylvania.
(f) Notice. All notices, requests, demands and other communications given
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pursuant to any provision of this Note shall be given in writing by United
States certified mail with return receipt requested and postage prepaid,
addressed to the party for which it is intended at the address of that party
first stated above or such other address of which that party shall have given
notice in the manner provided herein. Notice shall be deemed to have been given
when the notice is deposited in the mail.
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14. Confession of Judgment
----------------------
Borrower hereby irrevocably authorizes and empowers any attorney or attorneys
or the Prothonotary or Clerk of Courts of record in the Commonwealth of
Pennsylvania or in any other jurisdiction which permits the entry of judgment by
confession, to appear for Borrower in such Court in an appropriate action there
brought or to be brought against Borrower, at the suit of Lender on this Note,
with or without complaint or declaration filed as of any term or time, and
therein to CONFESS OR ENTER JUDGMENT against Borrower for all sums due by
Borrower to Lender under this Note and the loan documents (with or without
acceleration of maturity), including all costs, attorneys' fees and attorneys'
commission. For so doing this Note or a copy hereof verified by affidavit shall
be sufficient warrant. The authority to confess judgment granted herein shall
not be exhausted by any exercise thereof but may be exercised from time to time
and at any time as of any term and or any amount authorized herein. Borrower
expressly authorizes the entry of repeated judgment under this paragraph
notwithstanding any prior entry of judgments in the same or any other Court for
the same obligation or any part thereof.
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BORROWER ACKNOWLEDGES THAT THE FULL LEGAL SIGNIFICANCE OF THE CONFESSION OF
JUDGMENT CLAUSE CONTAINED ABOVE HAS BEEN CAREFULLY EXAMINED BY BORROWER, AND
BORROWER DOES HEREBY ACKNOWLEDGE THAT BORROWER HAS SIGNED THIS NOTE KNOWINGLY,
VOLUNTARILY, AND UNDERSTANDINGLY, AND WITH KNOWLEDGE THAT, LENDER MAY CAUSE
JUDGMENT TO BE CONFESSED AGAINST BORROWER WITH OR WITHOUT DEFAULT, AND UPON ANY
DEFAULT IN THE OBLIGATIONS OF BORROWER, MAY CAUSE EXECUTION TO ISSUE AND AS THE
RESULT, THERE MAY BE A JUDICIAL SALE OF REAL, PERSONAL OR MIXED PROPERTY
BELONGING TO BORROWER OR WRN PROPERTIES, INC. BORROWER HAS ACCESS TO LEGAL
COUNSEL AND WAIVES ANY RIGHTS TO HAVE A MORE DETAILED EXPLANATION OF BORROWER'S
LEGAL RIGHTS UNDER THIS NOTE AND OF THE EFFECT OF THE CONFESSION OF JUDGEMENT
CLAUSE.
IN WITNESS WHEREOF, Borrower has executed this Note under seal the day and
year first written above.
ATTEST: EASTERN ENVIRONMENTAL SERVICES, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (SEAL)
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