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▇▇▇▇ HAULING AND WAREHOUSING SYSTEM, INC.
and ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., INC., jointly and severally
as Mortgagor
AND
THE BANK OF NEW YORK NA
as Trustee
MORTGAGE AND SECURITY AGREEMENT
Dated as of March 15, 1994
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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).
Prepared by and Return and Record To:
/s/ M. ▇▇▇▇▇▇ ▇▇▇▇▇
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M. ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇▇▇ & ▇▇▇▇▇▇
A Professional Corporation
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
THIS MORTGAGE AND SECURITY AGREEMENT dated as of March 15, 1994 (the
"Mortgage") made by ▇▇▇▇ HAULING AND WAREHOUSING SYSTEM, INC., ("▇▇▇▇") a
Pennsylvania corporation, having an address at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., Inc., ("▇▇▇▇▇▇▇▇") a
Pennsylvania corporation, jointly and severally (collectively, the
"Mortgagor") in favor of THE BANK OF NEW YORK NA, a national banking
association, having an address at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, as Trustee under the Indenture referred to below (the
"Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer was created pursuant to the Act for the purposes,
among other things, of providing within the County structures, franchises,
equipment and facilities for operation of public transportation or for
terminal purposes, including development and improvement of port terminal
structures, facilities and equipment, for public use in counties, in, along
or through which a navigable river flows; and
WHEREAS, the Issuer is authorized, pursuant to the Act, to issue its
bonds for the purpose of financing the cost of any public facility or
facilities; and
WHEREAS, ▇▇▇▇▇▇▇▇, has a leasehold interest in a portion of the Land (as
hereinafter defined) and a fee interest in certain improvements located on
the Land. ▇▇▇▇ is the owner of the fee estate in the Mortgage Property (as
hereinafter defined).
WHEREAS, the Issuer proposes to undertake a certain project ("Project")
consisting of the purchase of a newly constructed 312,000 square foot
refrigerated warehouse facility on land to be leased to the Issuer within the
marine terminal complex owned by ▇▇▇▇ Hauling and Warehousing System, Inc.;
and
WHEREAS, the Issuer proposes to issue its Lease Revenue Bonds (Dockside
Refrigerated Warehouses, Inc. Project) Series 1994 in the aggregate principal
amount of $18,500,000 (the "Bonds") pursuant to an Indenture of Trust dated
as of March 15, 1994 (the "Indenture") between the Issuer and The Bank of New
York NA as trustee (the "Trustee") and proposes to apply the proceeds of the
sale of the Bonds to finance the acquisition of the Project; and
WHEREAS, the Issuer proposes to lease the Project to the Company
pursuant to the Lease Agreement (as hereinafter defined), pursuant to which
the Company shall covenant to make lease payments to the Issuer sufficient to
pay all principal, interest and premium when due on the Bonds and other
amounts payable in connection with the Bonds; and
WHEREAS, the Bonds shall be secured by the pledge of payments to be made
by the Company under the Lease Agreement and by a leasehold mortgage lien on
the Project and a security interest in certain machinery and equipment of the
Company constituting fixtures and the obligations of the Company under the
Lease
Agreement and the payment of the Bonds shall be guaranteed by ▇.▇.
▇▇▇▇▇▇▇▇ & Co., Inc., Refrigerated Distribution Center, Inc., Oregon Avenue
Enterprises, Incorporated, ▇▇▇▇ Cargo Systems, Inc., The Riverfront
Development Corp., CRT, Inc., ▇▇▇▇▇▇ ▇▇▇▇▇ Ice, Inc., ▇▇▇▇▇▇▇▇ Avenue
Warehousing Corp., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., Inc., Refrigerated Enterprises, Inc.
and ▇▇▇▇ Hauling and Warehousing System, Inc. and any other person required
to be a Guarantor (collectively, the "Guarantor") pursuant to the Guaranty;
and
WHEREAS, the Bonds shall be further secured by a mortgage on the Project
and a leasehold mortgage on the Land from the Issuer to the Trustee pari
passu and on a parity with Senior Mortgage Debt described in clauses (i),
(ii) and (iii) of the definition of Senior Mortgage Debt and subject and
subordinate to the remainder of Senior Mortgage Debt; and
WHEREAS, the Guaranty shall be secured by this mortgage on the entire
marine terminal complex located in the Project Municipality from ▇▇▇▇ to
the Trustee, which shall (a) be pari passu and on a parity with the Senior
Mortgage Debt described in clauses (i), (ii) and (iii) of the definition of
Senior Mortgage Debt, only with respect to the portion of the Mortgaged
Property (as hereinafter defined) consisting of the Project and the real
property upon which the Project is situated and in all other respects subject
and subordinate to the Senior Mortgage Debt and (b) pari passu and on a
parity with the Parity Mortgage Debt; and
WHEREAS, the Mortgagor and the Trustee each have full right and lawful
authority to enter into this Mortgage, and to perform and observe the
provisions hereof on their respective parts to be performed and observed.
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 Guarantor's obligations under the Guaranty, 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 or the Guaranty
(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"):
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THAT certain parcel of real estate described in Exhibit A hereto (the
"Land");
TOGETHER with all and singular the ways, easements, rights, privileges
and appurtenances belonging or in any wise appertaining to the Land;
TOGETHER with the buildings and improvements now erected and hereafter
to be erected upon the Land, 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
Land 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, 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, (subject to such exclusions,
collectively, the "Equipment"); and
TOGETHER with all the rents, issues and profits of the Mortgaged
Property, and all the estate, right, title, interest and all claim and demand
whatsoever, at law or in equity, of the Mortgagor in and to the same,
including but not limited to:
(a) All rents, issues, profits, revenues, royalties, rights and
benefits derived from the Mortgaged Property from time to time accruing,
whether under leases or tenancies or contracts of sale now existing or
hereafter created, reserving to the Mortgagor, however, so long as there is
no "Default" under the Indenture, the right to receive and retain all such
rents, issues and profits.
(b) All 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 Land and the Improvements and good and marketable title to the
Equipment and will defend the same against the lawful claims of all persons
whomsoever, all subject only to Permitted Encumbrances and that it has good
and
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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 Lease Obligations, all
amounts due under the Secured Agreements, and all other amounts due
hereunder, and shall perform, observe and comply with all of the terms,
conditions, covenants and agreements contained herein and in the Secured
Agreements, and if no Bonds remain outstanding (as defined in the Indenture),
then this Mortgage shall be absolutely void; otherwise the same shall remain
in full force and effect.
This Mortgage is (a) pari passu and on a parity with the Senior Mortgage
Debt described in clauses (i), (ii) and (iii) of the definition of Senior
Mortgage Debt, only with respect to the portion of the Mortgaged Property
consisting of the Project and the real property upon which the Project is
situated and in all other respects subject and subordinate to all mortgages
securing the Senior Mortgage Debt (as defined in the Indenture) and (b) pari
passu and on a parity with each mortgage securing the Parity Mortgage Debt
(as defined in the Indenture).
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Lease Agreement and Indenture.
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 Guaranty 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, 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, making substitutions,
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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 or in any way damage the Mortgaged Property, and provided
that the Mortgaged Property, as remodeled, improved or altered, upon
completion of such remodeling, substitutions, modifications and improvements
made pursuant to this Section shall be of a value not less than the value of
the Mortgaged Property immediately prior to the remodeling or the making of
substitutions, modifications and improvements. Any property for which a
substitution or replacement is made pursuant to this Section may be disposed
of by the Mortgagor in any manner and in the sole discretion of the
Mortgagor.
4. Liens. The Mortgagor will not permit any mechanic's or other lien
other than Permitted Encumbrances to be established or remain against the
Mortgaged Property, provided that if the Mortgagor shall first notify the
Trustee of its intention to do so, the Mortgagor may in good faith contest at
the Mortgagor's expense any mechanic's or other lien filed or established
against the Mortgaged Property, and in such event may permit the item so
contested to remain undischarged and unsatisfied during the period of such
contest and any appeal therefrom unless by nonpayment of any such item the
security afforded by this 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. For purposes of this Mortgage, "Permitted
Encumbrances" shall mean (i) those items shown in Exhibit B hereto, and (ii)
any Lien on the Mortgaged Premises hereafter incurred by ▇▇▇▇ or any other
Guarantor in accordance with the provisions of the Guaranty.
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
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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 Paragraph 5(o) and (p) of the Guaranty.
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 of the nature in accordance with the requirements of Paragraph 5(q),
(r) and (s) of the Guaranty. The Mortgagor will not do or suffer to be done
anything which will increase the risk of fire or other hazard to the
Mortgaged Premises or any part thereof without first causing such increased
risk to be fully and adequately covered by insurance.
7. Worker's Compensation Coverage. The Mortgagor shall maintain worker's
compensation coverage or cause the same to be maintained to the extent
required by applicable law.
8. Self-Insurance. Notwithstanding the provisions of Sections 6 and 7,
but subject to the requirements of Article V of the Lease 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 5(p) of the Guaranty.
10. Advances. If the Mortgagor fails to pay, subject to any right
hereunder to contest, any claim, lien, or encumbrance (other than Permitted
Encumbrances), or, prior to delinquency, any tax or assessment, or, when due,
any insurance premium, or to keep the Mortgaged Property in repair, or shall
commit or permit waste, or if there shall be commenced any action or
proceeding affecting the Mortgagee Property or the title thereto, or the
interest of the Trustee therein, including, but not limited to, eminent
domain and bankruptcy or reorganization proceedings, then the Trustee, at its
option, may pay said claim, lien, encumbrance, tax, assessment or premium,
with right of subrogation thereunder, may make such repairs and take such
steps as it deems advisable to prevent or cure
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such waste, and may appear in any such action or proceeding and retain
counsel therein, and take such action therein as the Trustee deems advisable,
and for any of said purposes the Trustee may advance such sums of money,
including all costs, reasonable attorneys' fees and other items of expense as
it deems necessary. The Mortgagor shall pay to the Trustee all sums of money
so advanced by the Trustee together with interest on each such advance at two
percent (2%) in excess of the Prime Rate, and the repayment of such advances
shall be secured hereby. In making any payment or securing any performance
relating to any obligation of the Mortgagor under this Mortgage, the Trustee,
so long as it acts in good faith, shall be the sole judge of the legality,
validity and amount of any lien or encumbrance and of all other matters
necessary to be determined in satisfaction thereof. No such action of the
Trustee shall ever be considered as a waiver of any right accruing to it
hereunder. The Trustee shall not ever be held accountable for any delay in
making any such payment, which delay may result in any additional interest,
costs, charges or expenses.
11. Attorneys' Fees. In case of any action or any proceedings in any
court to collect any sums payable or secured by this Mortgage or to protect
the lien of the Trustee or in any other case permitted by law in which
attorneys' fees may be collected from the Mortgagor or charged upon the
Mortgaged Property, the Mortgagor agrees to pay reasonable attorneys' fees.
12. Remedies. Subject always to the provisions of Section 13 hereof,
upon the occurrence of a "Default" as defined and specified in the Indenture
and the declaration of an acceleration of the Bonds pursuant to the
Indenture, or of the Company's payment obligations under the Lease Agreement
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 proper costs and expenses
of so taking, holding, leasing, selling and managing the same, including
reasonable compensation to the Trustee, its agents and counsel, and any
charges of the Trustee hereunder, and any taxes and assessments and
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other charges due and payable which the Trustee may deem it wise to pay,
and all expenses of such repairs and improvements, and apply the remainder
of. the moneys so received to the payment of the indebtedness secured hereby.
Whenever all that is due upon the indebtedness secured hereby shall have been
paid and all defaults made good, the Trustee shall surrender whatever
possession the Trustee shall retain to the Mortgagor; the same right of
entry, however, shall exist upon any subsequent default.
(b) The Trustee may enter and take possession of the Mortgaged
Property, and lease the Mortgaged Property for the account of the Mortgagor,
holding the Mortgagor liable for all payments due to the effective date of
such leasing and for the difference in the rent and other amounts paid by the
lessee pursuant to such lease and the amounts payable by the Mortgagor on
account of the indebtedness secured hereby.
(c) Subject to any mandatory requirements of applicable law, the
Trustee may sell the Mortgaged Property as an entirety or from time to time
in part to the highest bidder at public auction at such place and at such
time (which sale may be adjourned from time to time in the discretion of the
Trustee by announcement at the time and place fixed for such sale, without
further notice) and upon such terms as the Trustee may fix and briefly
specify in a notice of sale to be published once each week for four (4)
successive weeks prior to such sale in a newspaper of general circulation in
the county in which the Mortgaged Property is located and in such event the
Trustee may bid for or become the purchaser of the Mortgaged Property at the
public auction and be entitled to have the purchase price payable at the
public auction payable by credit for the balance due and payable hereunder in
respect of the indebtedness secured hereby.
(d) The Trustee may foreclose this Mortgage by judicial proceedings
in the manner provided by the laws of the State of New Jersey for the
foreclosure 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 Land, provided such release
shall not adversely affect the
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value of the Mortgaged Property, or (ii) any part of the Land 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 Land 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 Land to be released.
(d) Any instrument or instruments required by the terms of such
release.
(e) A certificate of an independent engineer acceptable to the
Trustee dated not more than sixty (60) days prior to the date of the release
and stating that, in the opinion of such engineer (i) the portion of the Land
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 Land 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 Land 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.
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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 Guaranty or this Mortgage the Mortgagor may
remove such Equipment from the Mortgaged Property and sell, trade-in,
exchange or otherwise dispose of such Equipment (as a whole or in part)
without any responsibility or accountability to the Trustee therefor,
provided that the Mortgagor shall substitute and install anywhere in the
Mortgaged Property other machinery or equipment having equal or greater
utility or value (but not necessarily having the same function) in the
operation of the Mortgaged Property as a modern facility, all of which
substituted machinery or equipment shall be free of all liens and
encumbrances (other than Permitted Encumbrances) and shall become a part of
the property secured hereunder.
The removal from the Mortgaged Property of any portion of the Equipment
pursuant to the provisions of this Section shall not entitle the Mortgagor to
any postponement, abatement or diminution in amounts payable on account of
the indebtedness secured hereby.
Upon the request of the Mortgagor, the Trustee shall deliver and cause
to be delivered to the Mortgagor, such instruments as are reasonably
necessary to confirm the release of removed items of the Equipment from the
lien of this Mortgage and cancel any security interest with respect thereto,
provided that such request is accompanied by a certificate of an officer of
the Mortgagor to the effect that such release complies in all respects with
this Section.
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 Guaranty or this Mortgage, 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 without
consideration, and the Trustee agrees to execute and deliver or cause to be
executed and delivered any instrument necessary or appropriate to confirm and
grant or convey any such easement, license, right-of-way or other grant or
privilege upon receipt of: (1) a copy of the instrument of grant or
reconveyance; (2) a written statement signed by an officer of the Mortgagor
stating (i) that such grant or reconveyance will not impair the effective use
or interfere with the operation of the Mortgaged Property and (ii) that such
grant or reconveyance is not detri-
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mental to the proper conduct of the business of the Mortgagor; and (3)
an opinion of Independent Counsel (as defined in the Indenture) that such
grant or reconveyance will not materially weaken, diminish or impair the
security afforded pursuant to the terms of this Mortgage, and will not
violate the terms, covenants or conditions of any agreement or grant which
the Mortgagor or the Issuer may have with the United States, the State of
New Jersey or any agency, department or political subdivision thereof with
respect to the Mortgaged Property or the Indenture.
16. No Waiver. No failure, forbearance or delay by the Trustee in
exercising any right or remedy hereunder, under any Secured Agreement, or
under the Indenture, or otherwise afforded by law, shall operate as a waiver
thereof or preclude the exercise thereof in accordance herewith or therewith.
No waiver by the Trustee of any default shall constitute a waiver of or
consent to subsequent defaults. No withdrawal or abandonment of foreclosure
proceedings by the Trustee shall be taken or construed as a waiver of its
right to exercise any right or remedy hereunder by reason of any past,
present or future default; and, in like manner, the procurement of insurance
or the payment of taxes or other liens or charges by the Trustee shall not be
taken or construed as a waiver of its rights or remedies hereunder.
17. Waiver of Mortgagor. The Mortgagor, on behalf of itself and all
persons now or hereafter interested in the Mortgaged Property, to the fullest
extent permitted by applicable law, hereby waives all rights under all
appraisement, homestead, moratorium, valuation, exemption, stay, extension,
redemption and marshalling statutes, laws or equities now or hereafter
existing, and the Mortgagor agrees that no defense, claim or right based on
any thereof will be asserted, or may be enforced, in any action enforcing or
relating to this Mortgage or any of the Mortgaged Property. 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
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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 ▇▇▇▇ Hauling and Warehousing System, Inc.,
▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇, Vice President; and if to the Trustee, The Bank of New York NA, ▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Department. 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. 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.
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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] ▇▇▇▇ HAULING AND WAREHOUSING
SYSTEM, INC., a Pennsylvania
corporation
Attest:
/s/ ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- ----------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Secretary Vice President
[SEAL] THE BANK OF NEW YORK, NA
as Trustee
Attest:
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------- ----------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ AVP ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ V.P.
[SEAL] ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., INC., a
Attest:
/s/ ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- ----------------------------------
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STATE OF N.J. )
: ss.:
COUNTY OF CAMDEN )
I, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, do hereby certify that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇,
the Vice President and Secretary of ▇▇▇▇ HAULING AND WAREHOUSING SYSTEM, INC.,
a Pennsylvania corporation, personally known to me to be the same persons whose
names are subscribed to the foregoing instrument, appeared before me this day
in person and acknowledged that they signed and delivered such instrument with
full authority as such Vice President and Secretary on behalf of ▇▇▇▇ Hauling
and Warehousing System, Inc., as their free and voluntary act for the uses and
purposes therein set forth.
Given under my hand and official seal, this 14th day of April, 1994.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Notary Public
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Commission Expires: A Notary Public of New Jersey
-----------------------------------
My Commission Expires Oct. 18, 1994