Exhibit 10.4
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE made this 13th day of July, 1999, between UNIGENE
LABORATORIES, INC., a Delaware corporation, having an office at 110 Little
Falls Road, Fairfield, New Jersey 07004 (herein called the "Mortgagor") and JAY
LEVY, having an address at 2150 Center Avenue, Fort Lee, New Jersey 07024
(herein called the "Mortgagee").
W I T N E S S E T H:
WHEREAS, the Mortgagor is now indebted to the Mortgagee in the
principal sum of ONE MILLION SIX HUNDRED THOUSAND and 00/100 ($1,600,000.00)
DOLLARS with interest thereon at the rates and times more particularly set forth
in a certain Amended and Restated Secured Note of even date herewith from the
Mortgagor herein to the Mortgagee herein as Payee (the "Note"); and WHEREAS, the
Mortgagor is the owner in fee simple of a certain tract or parcel of real
property and improvements thereon located in the Township of Fairfield, County
of Essex and State of New Jersey.
NOW, THEREFORE, for the better securing of the payment of the monies
owing on said Note and all extensions and renewals thereof and substitutions
therefor, including other payments mentioned therein for the protection of the
security as well as to secure the repayment of all future advances that may be
made by the Mortgagee to the Mortgagor with interest thereon as may from time to
time be agreed upon, the Mortgagor has granted, bargained, sold and conveyed and
by these presents does grant, and assigns, ALL the following tract or parcel of
land and premises located in the ownership of Fairfield, County of Essex and
State of New Jersey, as more particularly described in Exhibit A attached hereto
and made a part hereof (hereafter referred to as the "Mortgaged Premises").
TOGETHER with all and singular and tenements, hereditaments, and
appurtenances thereunto belonging, or in anyway appertaining, and the reversion
or reversions, remainder and remainders; and also all the estate, right, title,
interest, property, possession, claim and demand whatsoever, in Law as well as
in Equity, of the Mortgagor, of, in and to the same and every part and parcel
thereof, with appurtenances; including all fixtures affixed to the same, or
intended so to be, and also all equipment and improvements intended so to be,
and also all equipment and improvements now in, upon, or which may hereafter be
installed or placed in or upon the same, adapted to or necessary for the
complete and conformable use, enjoyment or occupancy thereof. TO HAVE AND TO
HOLD, the above granted and described Mortgaged Premises, with the
appurtenances, fixtures, equipment and improvements thereto, unto the Mortgagee,
its successors and assigns, to its and their own proper use and benefit forever.
PROVIDED ALWAYS, and these premises are upon the express condition, that if the
Mortgagor shall well and truly pay to the Mortgagee all money secured hereby
when the same shall become due and payable, without deduction or credit for any
amount payable for taxes, then these presents and the estate hereby granted
shall cease, terminate and be void.
THE MORTGAGOR REPRESENTS, WARRANTS, COVENANTS AND AGREES WITH THE MORTGAGEE AS
FOLLOWS:
1. The Mortgagor shall comply with all provisions hereof and of
the Note evidencing the indebtedness secured hereby (which Note is made a part
hereof as if recited at length herein).
2. The Mortgagor shall pay to the Mortgagee said sum of money as
mentioned above and interest thereon and additions thereto, as expressed in the
conditions of the Note.
3. If requested by the Mortgagee, the Mortgagor shall pay to the
Mortgagee at the time of each monthly payment, one-twelfth (1/12) of the current
annual taxes levied and assessed against the Mortgaged Premises, and one (1)
month's proportion of the insurance premium, to be held by the Mortgagee and
used in payment of the taxes and insurance premiums as they become due and
payable, and the Mortgagor shall make such further tax or insurance reserve
payments in such amounts and at such time to times as the Mortgagee shall
require, and if not so requested, Mortgagor shall provide to Mortgagee as
requested within twenty (20) days of the due date proof of payment of any taxes
or assessments levied or assessed against the Mortgaged Premises and any
insurance premiums due with regard to insurance of the Mortgaged Premises.
4. The Mortgagor is seized of an indefeasible estate in fee
simple in the Mortgaged Premises, and the Mortgagor warrants title to the
Mortgaged Premises subject to prior mortgages and security agreements of record.
5. The Mortgagor shall keep any buildings and other structures
now or hereafter erected upon the Mortgaged Premises, including fixtures and
equipment, insured against loss or damage by fire, and will insure against such
other hazards as Mortgagee may specify, by insurers and in amounts approved by
the Mortgagee, with loss payable to the Mortgagee as mortgagee and as
co-insured, and shall deliver said policy or policies to the Mortgagee; and in
default thereof, the Mortgagee may effect such insurance. The Mortgagor hereby
assigns to the Mortgagee all rights to demand and receive all money payable
under any of said policies of insurance, or certificates of insurance with
respect to public liability insurance, and the rights to settle or compromise
all claims thereunder, and all money received may be applied on account of the
indebtedness secured hereby or used to repair or replace the buildings on the
Mortgaged Premises, as the Mortgagee shall elect. In the event of loss or
damage, the Mortgagor shall give immediate notice thereof to the Mortgagee. The
Mortgagee may make proof of loss if not made promptly by the Mortgagor, and such
insurer is hereby authorized and directed to make payment for such loss or
damage directly to the Mortgagee instead of the Mortgagor and the Mortgagee
jointly. At least thirty (30) days prior to the expiration of any such policies
the Mortgagor shall furnish evidence satisfactory to the Mortgagee that the
policies have been renewed or replaced or are no longer required.
6. In the event the Mortgaged Premises, or any part thereof,
shall be taken and condemned for public purposes by the proper governmental
authorities, the Mortgagor shall have no claim against the award for damages, or
be entitled to any portion of the award until the entire indebtedness secured by
this Mortgage shall be paid in full, and all rights to damages of the Mortgagor
are hereby assigned to the Mortgagee to the extent of the principal indebtedness
as remains unpaid (the Mortgagee, however, having the right to appeal said award
to the courts of competent jurisdiction) . The satisfaction of the principal
condemnation award upon exercise of any authority with the right of eminent
domain shall constitute a prepayment to the full extent thereof.
7. The Mortgagor agrees to comply with all laws, rules,
regulations and ordinances made or promulgated by lawful authority and now or
hereafter applicable to the Mortgaged Premises within such time as may be
required by law.
8. The Mortgagor shall keep and maintain any buildings and other
structures on the Mortgaged Premises, including fixtures and equipment, in good
and substantial repair, and will make such repairs as may be required by the
Mortgagee within thirty (30) days from the written notice from the Mortgagee.
The Mortgagor shall not do, and shall not permit to be done, any act which may
in any way impair or weaken the security under this Mortgage, and the Mortgagor
shall not remove or demolish or substantially alter, without the prior express
written consent of the Mortgagee, any building, structure or improvement on the
Mortgaged Premises.
9. Mortgagor shall have the right to prepay this Mortgage in
full or in part at any time.
10. The Mortgagor shall pay any taxes, assessments, municipal or
governmental rates, charges, impositions, liens, and water and sewer rents or
any part thereof, heretofore or hereafter imposed upon or which may become a
lien against the Mortgaged Premises within ten (10) days after the same is due
and payable and shall submit receipt therefore on request.
11. The Mortgagor hereby presently assigns all leases (present
and future), rents, issues, and profits arising out of or from the Mortgaged
Premises to the Mortgagee as additional security for payment of the indebtedness
secured by this mortgage or under the Note, and in the event of default
hereunder after notice the Mortgagee shall be entitled to enter upon and take
possession of the Mortgaged Premises, and collect and receive all rents, issues
and profits arising from the Mortgaged Premises, including the rents, issues and
profits then due and unpaid to the Mortgagor and also those thereafter to fall
due.
12. The Mortgagor shall, upon the written request of the
Mortgagee, certify within ten (10) business days to such person as the Mortgagee
may designate, by writing duly acknowledged, the amount of principal and
interest then owing on this mortgage, and whether any offsets or defenses exist
against the indebtedness evidenced by the Note.
13. The Mortgagee may, at its option, expend money for insurance,
payment of taxes, assessments, municipal or governmental rates, charges,
impositions, liens, and water and sewer rents or any part thereof and for
repair, maintenance and preservation of the Mortgaged Premises, or of any
buildings or other structures thereon, including fixtures, or for the discharge
of any liens or encumbrances on the Mortgaged Premises, or for perfecting the
title thereto, or for enforcing collection of the indebtedness secured hereby,
or for any water, gas or electric charge imposed for any services rendered to
the Mortgaged Premises, or for advances of any trustee or receiver of the
Mortgaged Premises, or for any addition or improvements to the Mortgaged
Premises, or to any buildings or other structures thereon, including fixtures,
considered desirable by the Mortgagee while it or any receiver or trustee is in
possession thereof; and all money so paid, with interest at the rate fixed in
the Note, shall be a lien on the Mortgaged Premises added to the amount of the
Note and secured by this Mortgage and shall be due and payable upon demand.
14. No owner of the Mortgaged Premises shall be entitled to any
credit by reason of payment of any tax thereon.
15. This Mortgage constitutes a security agreement under the New
Jersey Uniform Commercial Code and the Mortgagor hereby grants to the Mortgagee
a security interest in the Mortgagor's title and interest in and to all
appurtenances, fixtures, equipment and improvements to, now or hereafter
installed, placed or used in and necessary to the operation of building and
structure, including without by way of limitation, lighting, heating,
ventilating, air-conditioning systems, sprinkling, plumbing, gas, water, power
systems, boilers and meters, which are now, or which may hereafter be, placed or
located in, on, or upon the Mortgaged Premises herein defined, together with all
additions and accessories thereto, substitutions therefor, and replacements
thereof and all cash and non-cash proceeds thereof. The Mortgagor shall execute,
deliver, file and refile any financing statements, continuation statements, or
other security agreements that the Mortgagee may require from time to time to
confirm the lien of this Mortgage with respect to such property. Without
limiting the foregoing, the Mortgagor hereby irrevocably appoints the Mortgagee
attorney-in-fact for the Mortgagor to execute, deliver and file such instruments
for and on behalf of the Mortgagor. Notwithstanding any release of any or all of
that property included in the Mortgaged Premises which is deemed "real property"
and proceedings to foreclose this Mortgage or its satisfaction of record, the
terms hereof shall survive as a security agreement with respect to the security
interest created hereby and referred to above until the repayment or
satisfaction in full of the obligations of the Mortgagor as are now or hereafter
secured hereby.
16. The proceeds of the Note shall be disbursed in accordance
with the terms and conditions set forth in the Note.
THE MORTGAGOR SHALL BE IN DEFAULT OF THIS MORTGAGE UPON THE OCCURRENCE OF ANY OF
THE FOLLOWING EVENTS:
1. In the event that any representation or warranty made by the
Mortgagor in this Mortgage, in the Note or in any other writing used in
connection herewith, shall prove to be false, incorrect, or misleading in any
substantial and material respect as of the date when made.
2. In the event that the Mortgagor shall have failed to make any
payment of any installment due on the Note within the applicable grace period
set forth therein, if any, or in the event of any default under the Note or in
any other writing used in connection therewith or herewith.
3. In the event that the Mortgagor shall have failed to duly
observe any covenant, condition or agreement with respect to the payment of
monies on the part of Mortgagor, to be observed or performed pursuant to the
terms of the Mortgage, the Note or any other loan document, and such default
shall have remained uncured for a period of thirty (30) days after notice
thereof to the Mortgagor by the Mortgagee.
4. In the event the Mortgagor shall have failed to duly observe
or perform any covenant, condition or agreement on the part of the Mortgagor to
be observed or performed pursuant to the terms of the Mortgage, the Note or any
other loan document, other than the payment of monies which shall be governed by
paragraphs 2 and 3 above, and such default shall have remained uncured for a
period of thirty (30) days after notice thereof to the Mortgagor by the
Mortgagee.
5. In the event that the Mortgagor shall have applied for or
consented to the appointment or a custodian, receiver, trustee, or liquidator of
all or substantial part of its assets; or shall generally be unable to pay its
debts when due; or shall have admitted, in writing, its inability to pay its
debts as they mature; or shall have made a general assignment for the benefit of
its creditors; or shall have a petition or an answer seeking reorganization or
an arrangement with its creditors or shall have taken advantage of any
insolvency law, or shall have submitted an answer admitting the material
allegations of a petition in bankruptcy, reorganization, or insolvency
proceedings; or an order, judgment or decree shall have been entered, without
the application, approval or consent of the Mortgagor, by any Court of competent
jurisdiction approving a petition seeking reorganization of the Mortgagor, or
appointing a custodian, receiver, trustee or liquidator of the Mortgagor, or a
substantial part of its assets and such order, judgment or decree shall have
continued unstayed and in effect for any period of sixty (60) consecutive days;
or shall have failed to remove an involuntary petition in bankruptcy filed
against it within sixty (60) days of the filing thereof; or if any order for
Relief shall have been entered under the Federal Bankruptcy Code of 1978 as
amended.
6. In the event of a subsequent encumbrance of or any change in
the ownership of the Mortgaged Premises.
7. In the event that the Mortgagor shall have encumbered,
mortgaged or given a security interest in any fixture or fixtures, or shall
have, without the consent of the Mortgagee, removed or replaced fixtures.
8. In the event that default is made in any of the terms,
covenants and conditions contained in any other mortgage constituting a lien
upon the Mortgaged Premises, or should proceedings be instituted for the
foreclosure or collection of any mortgage, judgment, or lien prior or
subordinate to the lien of this Mortgage, affecting the Mortgaged Premises.
9. In the event that any insurance company authorized to do
business in the State of New Jersey by the Department of Insurance, shall refuse
to insure said Mortgaged Premises in the form of policy approved by the
Mortgagee, so that there no longer exist insurance coverage in a sum equal to
the full insurable value of the Mortgaged Premises.
10. In the event that the Mortgagor shall have entered into any
secondary financing of the Mortgaged Premises or shall have consented to the
placing of any lien on the Mortgaged Premises, whether or not such financing or
lien is prior to or subordinate to the lien of the Mortgage.
11. In the event that the Mortgagor shall have transferred or
caused to have been transferred, title to or possession of the interest in the
Mortgaged Premises, or any part hereof, to any party without the express prior
written consent of the Mortgagee.
12. In the event that the Mortgagor shall have caused or
permitted a security interest, perfected or otherwise, other than the security
interest specifically provided for or permit hereunder, to be created in any
collateral provided for hereby, or shall have failed to take any action
requested by the Mortgagee to perfect or protect the security interest provided
for herein.
13. In the event of the passage of any law deducting from the
value of the land for the purposes of taxation, any lien thereon, or changing in
any way the taxation of the mortgages or debts secured thereby for state or
local purposes.
SHOULD ANY DEFAULT BE MADE BY THE MORTGAGOR, THE MORTGAGEE MAY
TAKE ANY OR ALL OF THE FOLLOWING ACTIONS, AT THE SAME OR AT DIFFERENT TIMES:
1. Declare the entire amount of unpaid principal, accrued and
unpaid interest and other money due under this Mortgage and the Note secured
hereby, immediately due and payable.
2. All rents, issues and profits collected or received by the
Mortgagor shall be accepted and held for the Mortgagee in trust and shall not be
co-mingled with the funds and property of the Mortgagor but shall be promptly
paid over to the Mortgagee. The Mortgagor shall pay to the Mortgagee a
reasonable rental for the Mortgaged Premises occupied by the Mortgagor on the
first day of each and every month in advance, as a tenant from month to month
hereby recognizing the Mortgagee as landlord; and upon default in any such
payment, the Mortgagor shall vacate and surrender possession of the Mortgaged
Premises to the Mortgagee or to any receiver, if one has been appointed, and in
default thereof, the Mortgagor may be dispossessed by the usual summary
proceedings. The Mortgagor agrees that this covenant shall be effective either
with or without any action being brought to foreclose this Mortgage, and with or
without the Mortgagee having applied for a receiver to collect the rents. Any
such tenancy of the Mortgagor shall terminate at the option of the Mortgagee and
in any event, upon the delivery of the Deed of any Sheriff or Master following
foreclosure.
3. The Mortgagee may enter upon and take possession of the
Mortgaged Premises and rent the same, either in its name or in the name of the
owner of such property, and receive the rents, issues and profits, thereof, and
apply the same, after the payment of the necessary charges and expenses,
including management commissions, on account of the debt secured hereby, being
accountable only for such rents and profits as are collected by it while in
possession.
4. The Mortgagee, at its option, may foreclose this Mortgage, and
upon the filing of a Complaint in Foreclosure, the Mortgagee shall be entitled
to the appointment of a receiver of the rents of the Mortgaged Premises without
the necessity of proving either inadequacy of the security or insolvency of the
Mortgagor or of any person who may be legally or equitably liable to pay money
secured hereby, and the Mortgagor and each such person waive such proof and
consent to the appointment of such receiver.
5. In the event of a foreclosure sale of the Mortgaged Premises,
the Mortgaged Premises may, at the option of the Mortgagee, be sold in one or
several parcels.
6. The Mortgagee may apply on account of the unpaid principal and
interest thereon or on account of any arrearages of interest thereon, or on
account of any balance due to the Mortgagee after a foreclosure sale of the
Mortgaged Premises whether or not a deficiency action shall have been
instituted, any unexpended monies still retained by the Mortgagee that were paid
by the Mortgagor to the Mortgagee for the payment of, or as security for the
payment of taxes, assessments, municipal or governmental rates, charges,
impositions, liens, water or sewer rents, or insurance premiums, if any, or in
order to secure the performance of some act by the Mortgagor.
MISCELLANEOUS
1. The rights and remedies herein expressed to be vested in or
conferred upon the Mortgagee shall be cumulative and shall be in addition to and
not in substitution for or in derogation of the rights and remedies conferred by
any applicable law. The failure, at any one or more times, of the Mortgagee to
assert the right to declare the principal indebtedness due or the granting of
any extension or extensions of time of payment of the Note either to the maker
thereof or to any other person, or taking of other or additional security for
the payment thereof, or releasing any security, or changing any of the terms of
the within Mortgage, or the Note or other obligation accompanying this mortgage,
or waiver of or failure to exercise any right under any covenant or stipulation
herein contained shall not in any way affect this Mortgage nor the rights of the
Mortgagee hereunder nor operate as a release from any personal liability upon
the Note or other obligation accompanying this Mortgage, nor under any covenant
or stipulation therein contained, nor under any agreement assuming the payment
of said Note or obligation.
2. All notices to be given hereunder shall be given by certified
mail directed to the Mortgagor or to the Mortgagee at the addresses shown at the
head of this Mortgage.
3. All of the terms, covenants, provisions and conditions herein
contained shall be for the benefit of, apply to, and bind the heirs, executors,
administrators, successors, and assigns of the Mortgagor and the Mortgagee, and
are intended and shall be held to be real covenants running with the land, and
the term "Mortgagor" shall also include any and all subsequent owners and
successors in title of the Mortgaged Premises.
4. All references herein to "Note" shall be construed to mean
"Bond" or any other evidence of indebtedness secured hereby.
5. when such interpretation is appropriate, any word denoting
gender used herein shall include all persons, natural or artificial, and words
used in the singular shall include the plural.
6. This Mortgage, the loan made hereunder and the rights of the
parties shall be governed by and construed under the laws of the State of New
Jersey.
IN WITNESS WHEREOF, the Mortgagor has caused this Mortgage to be
duly executed as of the day and year first above written.
Attest: Unigene Laboratories, Inc.
- ------------------------- By ----------------------
Ronald S. Levy, Secretary Warren P. Levy, President
(Seal)
STATE OF NEW JERSEY
)
) ss:
COUNTY OF )
I certify that on 1999 Ronald S. Levy personally came before
me and this person acknowledged under oath, to my satisfaction, that:
(a) this person is the Secretary of Unigene Laboratories, Inc.,
the corporation named in this document;
(b) this person is the attesting witness to the signing of this
document by the proper corporate officer who is Warren Levy,
the President of the corporation;
(c) this document was signed and delivered by the corporation as
its voluntary act duly authorized by a proper resolution of
its Board of Directors;
(d) this person knows the proper seal of the corporation which
was affixed to this document; and
(e) this person signed this proof to attest to the truth of these
facts.
--------------------
Ronald S. Levy
Sworn and subscribed to before me
this day of 1999
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