MORTGAGE
FROM
ELITE PHARMACEUTICALS, INC.
TO THE
NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY
DATED: AUGUST 31, 2005
Record and Return to:
John V. Cavaliere, Esq.
McMANIMON & SCOTLAND, L.L.C.
One Riverfront Plaza, 4th Floor
Newark, New Jersey 07102
MORTGAGE
THIS MORTGAGE made as of August 15, 2005, from ELITE PHARMACEUTICALS,
INC., having an office or located at 165 Ludlow Avenue, Northvale, New Jersey
07647 (the "Mortgagor") to the NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY, a
public body corporate and politic constituting an instrumentality of the State
of New Jersey, having an office at 36 West State Street, P.O. Box 990, Trenton,
New Jersey 08625 (the "Mortgagee").
WHEREAS, the Mortgagor has entered into a Loan Agreement with the
Mortgagee dated as of August 15, 2005 (the "Agreement"), under which the
Mortgagee has agreed to provide the Mortgagor with funds to undertake the
financing and refinancing of the acquisition of land and an existing
approximately 15,000 sq. ft. building, with renovations thereto, and the
acquisition of equipment, to be used in the manufacturing of pharmaceutical
products to be located in the municipality of Northvale, County of Bergen, State
of New Jersey (the "Project"); and
WHEREAS, the Mortgagor is obligated under the Agreement and two notes
of the Mortgagor of even date herewith (collectively, the "Note") in the
aggregate principal sum of FOUR MILLION ONE HUNDRED FIFTY FIVE THOUSAND and
00/100 Dollars ($4,155,000.00) (collectively, the "Loan") lawful money of the
United States with interest thereon to be computed from the date thereof at the
rate provided for in the Agreement and the Note and this Mortgage shall serve as
security for the repayment of the Loan.
NOW, THEREFORE, to secure the payment of the Loan and to secure the
performance by the Mortgagor of all of its other obligations and covenants
pursuant to the Agreement, and to assure payment of all other indebtedness,
monetary obligations, liabilities and duties of any kind of the Mortgagor,
direct or indirect, absolute or contingent, joint or several, due or not due,
liquidated or unliquidated, arising under the Agreement or this Mortgage, the
Mortgagor has given, granted, released, assigned, transferred and set over unto
the Mortgagee and by these presents does give, grant, release, assign, transfer,
and set over unto the Mortgagee, its successors and assigns forever, the
following described property and rights:
ALL that certain lot, piece or parcel of land, together with the
buildings, structures and improvements thereon now or at anytime hereafter
erected or constructed, lying and being in the municipality of Northvale, the
County of Bergen and the State of New Jersey, more particularly described in
SCHEDULE A attached hereto and made a part hereof (the "Premises").
TOGETHER with all and singular the tenements, hereditaments, woods,
waters, watercourses, liberties, privileges, rights-of-way, easements, riparian
rights and appurtenances thereunto belonging, or in any wise appertaining, and
any reversion and remainders, rents, issues and profits thereof.
TOGETHER with all right, title and interest of the Mortgagor in and to
any streets, roads, public places, opened or proposed, adjoining the Premises,
and all easements and rights-of-way, public or private, all sidewalks and
alleys, now or hereafter used in connection with the Premises or abutting the
Premises.
TOGETHER with all fixtures and articles of personal property now or
hereafter attached to or used in connection with, or with the operation of, said
Premises (except those fixtures and articles of personal property now or
hereafter owned by any tenants of the Premises), as to which this Mortgage
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constitutes a fixture filing and security agreement under the Uniform Commercial
Code of the State of New Jersey (in addition to and not in lieu of any other
security agreement between the parties), including, but not limited to,
partitions, elevators, steam and hot water boilers, dynamos, kitchen cabinets,
incinerators, plants and shrubbery, furnaces, heating, air conditioning,
lighting and power plants, coal and oil burning apparatus, pipes, plumbing,
radiators, sinks, bath tubs, water closets, refrigerators, gas and electrical
fixtures, stoves, ranges, shades, screens, awnings, vacuum cleaning systems,
sprinkler systems or other fire prevention or extinguishing apparatus and
materials, including additions thereto, replacements thereof and proceeds
therefrom, all of which shall be deemed to be and remain and form a part of the
realty and are covered by the lien of this Mortgage. Pursuant to N.J.S.A.
12A:9-402(b), this Mortgage shall be filed in the real estate record office in
the County of Bergen and shall be effective as a financing statement filed as a
fixture filing from the date of its recording. If the lien of this Mortgage is
subject to a conditional bill of sale, chattel mortgage, or other security
interest covering any such property, then all the right, title and interest of
Mortgagor in and to such property, together with the benefits of any deposits or
payments now or hereafter made thereon, are and shall be covered by the lien of
this Mortgage.
TOGETHER with any and all awards, damages, payments and other
compensation, and any and all claims therefor and rights thereto, which may
result from taking or injury by virtue of the exercise of the power of eminent
domain, or any damage, injury or destruction in any manner caused to the
Premises or improvements thereon, or any part thereof; subject, however, to the
provisions of the Agreement relating to damage, destruction, taking or
condemnation, which provisions are incorporated herein by reference.
AND ALSO, all the estate, right, title, interest, property, possession,
claim and demand whatsoever of the Mortgagor, in law and in equity, of, in and
to the same and every part and parcel thereof with the appurtenances.
All of the foregoing, including the Premises, shall be known herein as
the "Mortgaged Property."
TO HAVE AND TO HOLD the above granted Mortgaged Property unto the
Mortgagee, its successors and assigns, to its and their own proper use, benefit
and behoof forever.
PROVIDED THAT if the Mortgagor shall well and truly pay or there shall
otherwise be paid to the Mortgagee the indebtedness secured hereby at the time
and in the manner provided in the Agreement and this Mortgage and shall well and
truly abide by and comply with each and every covenant and condition set forth
herein and in the Agreement, then these presents and the lien and interest
hereby transferred and assigned shall cease, terminate and be void. The
Mortgagee hereby covenants to release the Mortgaged Property and renounce any
other rights granted to it herein, and to execute at the request of the
Mortgagor, a "Release of Mortgage" and any other instrument to that effect
deemed necessary or desirable, upon payment and performance being made on the
indebtedness and covenants secured hereby.
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I. THE MORTGAGOR REPRESENTS, WARRANTS, COVENANTS AND AGREES WITH MORTGAGEE
AS FOLLOWS:
Section 1. That all words and terms not defined herein shall have the
respective meanings and be construed herein as provided in the Agreement.
Section 2. That the Mortgagor will pay the Loan at the time and in the
manner provided for in the Agreement and in this Mortgage.
Section 3. That the Mortgagor hereby covenants to the Mortgagee that no
owner of the Premises shall be entitled to any credit against payments due
hereunder by reason of the payment of any taxes or assessments levied thereon.
Section 4. That the Mortgagor is seized of an indefeasible estate in
fee simple in the Mortgaged Property, and Mortgagor warrants the title to the
Mortgaged Property.
Section 5. That the Mortgaged Property shall be kept insured against
loss or damage by fire and such other hazards as Mortgagee may specify, for the
benefit of the Mortgagee, all in accordance with the provisions of the
Agreement.
Section 6. That any buildings, structures and other improvements
erected and to be erected upon the Premises, including fixtures and equipment
shall be kept in good and substantial repair and shall not be removed,
demolished or materially altered without the prior express written consent of
the Mortgagee, which consent shall not be unreasonably withheld or delayed. 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.
Section 7. That the Mortgagor represents to the Mortgagee that it has
no knowledge of any offsets, counterclaims or defenses to the principal
indebtedness secured hereby, or to any part thereof, or the interest thereon,
either at law or in equity. The Mortgagor will, within three (3) days upon
request in person or within ten (10) days upon request by mail, furnish a duly
acknowledged written statement in form reasonably satisfactory to the Mortgagee
stating either that the Mortgagor knows of no offsets or defenses existing
against such indebtedness, or if such offsets or defenses are alleged to exist,
the nature and extent thereof, and in either case, such statement shall set
forth the amount due hereunder.
Section 8. That the Mortgagor will not remove or suffer to be removed
from the Premises or the improvements thereon any fixtures as defined by the law
in New Jersey (unless such fixtures have been replaced with similar fixtures of
equal or greater utility and value), presently or in the future to be
incorporated into, installed in, annexed or affixed to the Premises or the
improvements; nor will the Mortgagor execute or cause to be executed, any
security interest upon any such fixtures, additions to, substitutions or
replacements thereof or upon any fixtures in the future to be installed in,
annexed or affixed to the Premises, without the prior express written consent of
the Mortgagee.
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Section 9. That the Mortgagor will perform and abide by the terms and
covenants herein and the terms and covenants in the Agreement contained therein
which are made a part hereof as though set forth herein at length.
Section 10. That the acceptance by the Mortgagee of any payments
hereunder, after default, or the failure of the Mortgagee, in any one or more
instances to insist upon strict performance by the Mortgagor of any terms and
covenants of this Mortgage or to exercise any option or election herein
conferred, shall not be deemed to be a waiver or relinquishment for the future
of any such terms, covenants, elections or options.
Section 11. That all the covenants hereof shall be construed in
accordance with the laws of the State of New Jersey.
Section 12. That the terms of this Mortgage may not be changed orally
but only by an agreement in writing signed by the party against whom enforcement
of any waiver, change, modification or discharge is sought.
Section 13. The date of this Mortgage shall be for identification
purposes only and shall not be construed to imply that this Mortgage was
executed on any date other than the respective dates of the acknowledgments of
the parties hereto. This Mortgage shall become effective upon its delivery.
Section 14. The Mortgagor shall prepare and timely file all Federal,
state and local tax returns required to be filed by it and promptly pay and
discharge or cause to be promptly paid and discharged all taxes, assessments,
municipal or governmental rates, charges, impositions, liens and water and sewer
rents or any part thereof, heretofore or hereafter imposed upon it or in respect
of any of its property and assets before the same shall become in default, as
well as all lawful claims which, if unpaid, might become a lien or charge upon
such property and assets or any part thereof, except for those taxes,
assessments and other governmental charges then being contested in good faith by
the Mortgagor by appropriate proceedings (provided that such contest shall not
result in a new lien being placed on any of the Mortgagor's properties or assets
or result in any of the Mortgagor's properties or assets being subject to loss
or forfeiture as a result of the nonpayment of such items during the continuance
of said contest) and for which the Mortgagor has maintained adequate reserves or
accrued the estimated liability on the Mortgagor's balance sheets for payment
thereof. The Mortgagor shall submit to the Mortgagee receipted bills showing
payment of all taxes, assessments, governmental charges or levies and lawful
claims which, if unpaid, would become a lien or claim on the Premises, as same
shall be paid.
Section 15. During the term of the Agreement, in the event of the
passage after the date of this Mortgage of any law of the State of New Jersey,
or any other governmental entity, changing in any way the laws now in force for
the taxation of mortgages, or debts secured thereby, for state or local
purposes, or the manner of the operation of any such taxes, so as to affect the
interest of the Mortgagee, then and in such event, the Mortgagor shall bear and
pay the full amount of such taxes,
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provided that if for any reason payment by the Mortgagor of any such new or
additional taxes would be unlawful or if the payment thereof would constitute
usury or render the Loan or indebtedness secured hereby wholly or partially
usurious under any of the terms or provisions of the obligation secured
hereunder, or this Mortgage, or otherwise, the Mortgagee may, at the Mortgagee's
option, declare the whole sum secured by this Mortgage, with interest thereon,
to be immediately due and payable and Mortgagor shall have one hundred and
twenty (120) days to pay such Mortgage, or the Mortgagee may, at the Mortgagee's
option, pay that amount or portion of such taxes as renders the Loan or
indebtedness secured hereby unlawful or usurious, in which event the Mortgagor
shall concurrently therewith pay the remaining lawful and nonusurious portion or
balance of said taxes.
Section 16. 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 Property within such time as may be
required by law. The Mortgagor shall have the right to contest any such law,
rule, regulation or the like as long as it is contesting the same in good faith.
Section 17. That if any action or proceeding be commenced to which
action or proceeding the holder of this Mortgage is made a party, or in which it
becomes necessary to defend or uphold the lien of this Mortgage, the expense of
any litigation to prosecute or defend the rights and lien created by this
Mortgage (including reasonable attorney's fees), shall be paid by the Mortgagor,
and any such sum and the interest thereon shall be a lien on the Mortgaged
Property, prior to any right, or title to, interest in or claim upon the
Mortgaged Property attaching or accruing subsequent to the lien of this
Mortgage, and shall be deemed to be secured by this Mortgage. In any action or
proceeding to foreclose this Mortgage, or to recover or collect the debt secured
hereby, the provisions of law respecting the recovery of costs, disbursements
and allowance shall prevail unaffected by this covenant.
Section 18. The Mortgagor has assigned to the Mortgagee the rents,
issues and profits arising out of or from the above described Premises as
further security for the payment of the debt secured hereby, as set forth in the
Assignment of Leases from the Mortgagor to the Mortgagee of even date herewith.
Section 19. That upon default by the Mortgagor in the compliance with,
or performance of, any of the terms, covenants, or conditions of this Mortgage
or the Agreement (and upon the lapse of the applicable grace periods as set
forth herein and therein), the Mortgagee may, at its option, remedy such
default; that all payments made by the Mortgagee to remedy a default by the
Mortgagor (including reasonable attorneys' fees) and the total of any payment or
payments due from the Mortgagor to the Mortgagee and in default, together with
interest thereon at the rate equal to the rate of interest set forth in the
Agreement (such interest to be calculated from the date of such advancement to
the date of payment thereof by Mortgagor), shall be added to the debt secured by
this Mortgage until paid and the Mortgagor covenants to repay the same to the
Mortgagee on the next payment date on the Note. Any such sums and the interest
thereon shall be a lien on the Premises prior to any other lien attaching to or
accruing subsequent to the lien of this Mortgage.
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Section 20. (i) To the best of the Mortgagor's knowledge and other than
as disclosed in the offering statement, after due inquiry and investigation,
none of the real property owned and/or occupied by the Mortgagor and located in
the State of New Jersey, including, without limitation, the Mortgaged Premises
has ever been used by previous owners and/or operators to refine, produce,
store, handle, transfer, process or transport "Hazardous Substances" or
"Hazardous Wastes", as such terms are defined in the Applicable Environmental
Laws except for substances resulting from the prior operation of the Premises as
a farm, and (b) the Mortgagor has not used in the past, nor does the Mortgagor
intend to use in the future, said real property, including, without limitation,
the Mortgaged Premises, for the purpose of refining, producing, storing,
handling, transferring, processing or transporting said "Hazardous Substances"
or "Hazardous Wastes" except as are normally used in the construction of homes
and in such case in compliance with the Applicable Environmental Laws.
(ii) None of the real property owned and/or occupied by the Mortgagor
and located in the State of New Jersey, including, without limitation, the
Mortgaged Premises, has or is now being used as a "Major Facility", as such term
is defined in N.J.S.A. 58:10-23.11b(l), and said real property, including,
without limitation, the Mortgaged Premises, will not be used as a "Major
Facility" without the prior express written consent of Mortgagee but if the
Mortgagor ever becomes such an owner or operator, then the Mortgagor shall
furnish the New Jersey Department of Environmental Protection with all the
information required by N.J.S.A. 58:10-23.11d.
(iii) Should the Mortgagor or any other Person cause or permit any
intentional or unintentional action or omission resulting in the releasing,
spilling, leaking, pumping, pouring, emitting, emptying or dumping of "Hazardous
Substances" or "Hazardous Wastes", as such terms are defined in the Applicable
Environmental Laws, into the waters or onto the lands of the State of New
Jersey, or into the waters outside the jurisdiction of the State of New Jersey
resulting in damage to the lands, waters, fish, shellfish, wildlife, biota, air
or other resources owned, managed or held in trust or otherwise controlled by
the State of New Jersey, without having obtained a permit issued by the
appropriate governmental authorities, the Mortgagor shall promptly clean up such
spill, leak, etc., in accordance with the provisions of the Applicable
Environmental Laws.
(iv) To the best of the Mortgagor's knowledge and other than as
disclosed in the Placement Memorandum, after due inquiry and investigation, no
lien has been attached to any revenues or any real or personal property owned by
the Mortgagor and located in the State of New Jersey, including, without
limitation, the Mortgaged Premises, as a result of the administrator of the New
Jersey Spill Compensation Fund expending monies from said fund to pay for
"Damages", as such term is described in N.J.S.A. 58:10-23.11(g) and/or "Cleanup
and Removal Costs", as such term is defined in N.J.S.A. 58:10-23.11b(d), arising
from an intentional or unintentional action or omission of the Mortgagor or any
previous owner and/or operator of said real property, including, without
limitation, the Mortgaged Premises, resulting in the releasing, spilling,
pumping, pouring, emitting, emptying or dumping of "Hazardous Substances" or
"Hazardous Wastes", as such terms are defined in the Applicable Environmental
Laws, into the waters or onto the lands of the State of New Jersey, or into
waters outside the jurisdiction of the State of New Jersey where damage may have
resulted to the lands, waters, fish, shellfish, wildlife, biota, air and other
resources owned, managed, held in trust
7
or otherwise controlled by the State of New Jersey.
(v) The Mortgagor is not, and has not been, required to furnish the New
Jersey Department of Environmental Protection with information required by
N.J.S.A. 58:10-23.11d with respect to the Mortgaged Premises and any other real
property owned and/or operated by Mortgagor and located in New Jersey, if any,
which is used as a "Major Facility", as such term is defined in N.J.S.A.
58:10-23.11b(l).
(vi) The Mortgagor has not received a summons, citation, directive,
letter or other communication, written or oral, from the New Jersey Department
of Environmental Protection concerning any intentional or unintentional action
or omission on the Mortgagor's part resulting in the releasing, spilling,
leaking, pumping, pouring, emitting, emptying or dumping of "Hazardous
Substances" or "Hazardous Wastes", as such terms are defined in the Applicable
Environmental Laws, into the waters or onto the lands of the State of New
Jersey, or into the waters outside the jurisdiction of the State of New Jersey
resulting in damage to the land, waters, fish, shellfish, wildlife, biota, air
and other resources owned, managed, held in trust or otherwise controlled by the
State of New Jersey.
(vii) In connection with the purchase of the Mortgaged Premises if
acquired by the Mortgagor on or after February 1, 1984, such acquisition was not
subject to compliance with, or the Mortgagor required that the seller of said
real property, including the Mortgaged Premises, comply with the provisions of
the New Jersey Environmental Cleanup Responsibility Act (N.J.S.A. 13:1K-6 ET
SEQ.) as amended by the Industrial Site Recovery Act, and the seller did comply
therewith.
(viii) The Mortgagor shall not cause or permit to exist, as a result of
an intentional or unintentional action or omission on the part of the Mortgagor,
a releasing, spilling, leaking, pumping, emitting, pouring, emptying or dumping
of a "Hazardous Substance" or "Hazardous Wastes", as such terms are defined in
the Applicable Environmental Laws, into waters or onto the lands of the State of
New Jersey, or into waters outside the jurisdiction of the State of New Jersey,
where damage may result to the lands, waters, fish, shellfish, wildlife, biota,
air and other resources owned, managed, held in trust or otherwise controlled by
the State of New Jersey, unless said release, spill, leak, etc., is pursuant to
and in compliance with the conditions of a permit issued by the appropriate
federal or state governmental authorities.
(ix) So long as the Mortgagor shall own or operate any real property
located in the State of New Jersey, which is used as a "Major Facility", as such
term is defined in N.J.S.A. 58:10-23. 11b(1), the Mortgagor shall duly file or
cause to be duly filed with the Director of the Division of Taxation in the New
Jersey Department of the Treasury, a tax report or return and shall pay or make
provision for the payment of all taxes due therewith, all in accordance with and
pursuant to N.J.S.A. 58:10-23.11h.
(x) In the event that there shall be filed a lien against the Mortgaged
Premises by the New Jersey Department of Environmental Protection pursuant to
and in accordance with the provisions of
8
N.J.S.A. 58:10-23.11f(f) as a result of the administrator of the New Jersey
Spill Compensation Fund having expended monies from said fund to pay for
"Damages", as such term is described in N.J.S.A. 58:10-23.11g, and/or "Cleanup
and Removal Costs", as such term is defined in N.J.S.A. 58:10-23.11b(d), arising
from an intentional or unintentional action or omission of the Mortgagor, any
tenant of the Mortgaged Premises or any other Person resulting in the releasing,
spilling, pumping, pouring, emitting, emptying or dumping of "Hazardous
Substances" or "Hazardous Wastes", as such terms are defined in the Applicable
Environmental Laws, into the waters or onto the lands of the State of New Jersey
or into waters outside the jurisdiction of the State of New Jersey where damage
resulted to the lands, waters, or natural resources within the jurisdiction of
the State of New Jersey, then the Mortgagor shall, within thirty (30) days from
the date that the Mortgagor is given notice that the lien has been placed
against the Mortgaged Premises or within such shorter period of time in the
event that the State of New Jersey has commenced steps to cause the Mortgaged
Premises to be sold pursuant to the lien, either (a) pay the claim and remove
the lien from the Mortgaged Premises, or (b) furnish (1) a bond satisfactory to
Commonwealth Land Title Insurance Company and the Mortgagee in the amount of the
claim out of which the lien arises, (2) a cash deposit in the amount of the
claim out of which the lien arises, or (3) other security reasonably
satisfactory to the Mortgagee in an amount sufficient to discharge the claim out
of which the lien arises (subject to the Mortgagee's agreement which agreement
shall not be unreasonably withheld or delayed, that the commitment of
Commonwealth Land Title Insurance Company to affirmatively insure over or omit
such claim shall constitute such reasonably satisfactory security).
(xi) The Mortgagor hereby agrees that in the event the provisions of
the New Jersey Environmental Cleanup Responsibility Act, as amended by the
Industrial Site Recovery Act, become applicable to the Mortgaged Premises
subsequent to the date hereof, the Mortgagor shall give prompt written notice
thereof to the Mortgagee and shall take immediate requisite action to insure
full compliance with such Act.
(xii) The Mortgagor agrees that the Mortgagee shall have the right to
conduct or have conducted by its agents or contractors, such environmental
inspections as the Mortgagee shall reasonably deem necessary or advisable from
time to time at the sole cost and expense of the Mortgagor. Mortgagor shall, and
shall cause each tenant of the Mortgaged Premises to, cooperate with such
inspection efforts; such cooperation shall include, without limitation,
supplying such information concerning the operations conducted, and "Hazardous
Substances" or "Hazardous Wastes", as such terms are defined in the Applicable
Environmental Laws, located at the Mortgaged Premises.
(xiii) To the best of the Mortgagor's knowledge and other than as
disclosed in the Placement Memorandum, after due inquiry and investigation, no
lien has been attached to any real property owned by the Mortgagor and located
within the State of New Jersey, including, without limitation, the Mortgaged
Premises, as a result of the Administrator of the United States Environmental
Protection Agency expending monies from the Hazardous Substance Superfund for
"Damages" and/or "Response Action Costs" as such terms are described in 42
U.S.C. ss.9607(a), arising from an intentional or unintentional action or
omission of the Mortgagor or any previous owner and/or
9
operator of said real property, including, without limitation, the Mortgaged
Premises, resulting in any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping or disposing of
any "Hazardous Substance" or "Hazardous Wastes", as such terms are defined in
the Applicable Environmental Laws, into the navigable waters, the waters of the
contiguous zone, or the ocean waters of which the natural resources are under
exclusive managing authority of the United States under the Magnuson Fishery
Conservation and Management Act (16 U.S.C. ss.1801 ET SEQ.), or any other
surface water, ground water, drinking water supply, land surface or subsurface
strata, or ambient air within the United States or under the jurisdiction of the
United States when damage may have resulted to the land, fish, wildlife, biota,
air, water, ground water, drinking water supplies, and other such resources
belonging to, managed by, held in trust by, appertaining to or otherwise
controlled by the United States and any State or local government.
(xiv) In the event that there shall be filed a lien against the
Mortgaged Premises by the United States Environmental Protection Agency pursuant
to and in accordance with the provisions of 42 U.S.C. ss.9607(1), as a result of
the Administrator of the Hazardous Substance Superfund having expended monies
from said fund to pay for "Damages" and "Response Action Costs", as such terms
are described in 42 U.S.C.ss.9607(a), arising from an intentional or
unintentional action of the Mortgagor, resulting in any spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping or disposing of any "Hazardous Substance" or "Hazardous
Wastes", as such terms are defined in the Applicable Environmental Laws, into
the navigable waters, the waters of the contiguous zone, or the ocean waters of
which the natural resources are under exclusive managing authority of the United
States under the Magnuson Fishery Conservation and Management Act (16 U.S.C.
ss.1801 ET SEQ.), or any other surface water, ground water, drinking water
supply, land surface or subsurface strata or ambient air within the United
States or under the jurisdiction of the United States where damage resulted to
the lands, waters, or natural resources of the United States, then the Mortgagor
shall, within thirty (30) days from the date that the Mortgagor is given notice
that the lien has been placed against the Mortgaged Premises, or within such
shorter period of time in the event that the United States Government has
commenced steps to cause the Mortgaged Premises to be sold pursuant to the lien,
either (a) pay the claim and remove the lien from the Mortgaged Premises, or (b)
furnish (1) a bond satisfactory to Mortgagee in the amount of the claim out of
which the lien arises, (2) a cash deposit in the amount of the claim out of
which the lien arises, or (3) other security reasonably satisfactory to
Mortgagee in an amount sufficient to discharge the claim out of which the lien
arises (subject to the Mortgagee's agreement, which agreement shall not be
unreasonably withheld or delayed, that the commitment of a title insurance
company reasonably acceptable to Mortgagee to affirmatively insure over or omit
such claim shall constitute such reasonably satisfactory security).
(xv) The Mortgagor represents and warrants that neither the Mortgagor
nor the Mortgaged Premises are in violation of or subject to any existing,
pending or threatened investigation or inquiry by any governmental authority
pertaining to any Applicable Environmental Law (other than as to monitoring
currently in effect). The Mortgagor shall not cause or permit the Mortgaged
Premises to be in violation of, or do anything which would subject the Mortgaged
Premises to any remedial obligations under, any Applicable Environmental Law,
and shall promptly notify the Mortgagee, in
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writing, of any existing, pending or threatened investigation or inquiry by any
governmental authority in connection with any Applicable Environmental Law.
II. THE MORTGAGOR SHALL BE IN DEFAULT OF THIS MORTGAGE UPON THE OCCURRENCE
OF ANY OF THE FOLLOWING EVENTS:
Section 1. The occurrence of any Event of Default under the Agreement,
after the expiration of any applicable notice and/or grace period.
Section 2. Other than Permitted Encumbrances (as defined in the
Agreement), in the event of a subsequent encumbrance of the Premises or, other
than to an entity which is owned by the Mortgagor or is owned by at least 80% of
the owners of the Mortgagor, any change in the ownership of the Premises.
Section 3. In the event that the Mortgagor shall have encumbered,
mortgaged or given a security interest in any fixture or fixtures which is not
removed, satisfied or discharged within ninety (90) days, or shall have, without
the consent of the Mortgagee, removed or replaced any fixtures other than for
replacement of fixtures in the ordinary course of business.
Section 4. In the event of default as to, or in the event that
proceedings be instituted for foreclosure or collection of, any mortgage,
judgment, or lien affecting the Premises.
Section 5. In the event that the Mortgagor shall be unable to retain an
insurance company authorized to do business in the State of New Jersey to insure
the Premises in the form of policy approved by the Mortgagee for a sum equal to
the full amount of the Loan.
Section 6. The Mortgagor shall have caused or permitted a security
interest, perfected or otherwise, other than the security interest specifically
provided for or permitted hereunder, to be created in any of the Mortgaged
Property, or shall have failed to take any action requested by the Mortgagee to
perfect or protect the security interest provided for herein.
III. 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:
Section 1. Declare the entire amount of unpaid principal and accrued
interest and other money due under this Mortgage, the Agreement and the Note
immediately due and payable.
Section 2. Enter upon, and take possession of, the Mortgaged Property,
and to lease and let the said Mortgaged Property, and to receive all the rents,
issues and profits thereof which are overdue, due or to become due, and to apply
the same, after payment of all necessary charges and expenses, on account of the
amounts hereby secured and the holder of this Mortgage is given and granted full
power and authority to do any act or thing in connection with the management and
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operation of the Premises. This remedy becomes effective either with or without
any action brought to foreclose this Mortgage and without applying at any time
for a receiver of such rents. Should said rents or any part thereof be assigned
without the consent of the holder of this Mortgage, then the Note shall, at the
option of the holder hereof, become due and payable immediately, anything herein
contained to the contrary notwithstanding.
Section 3. Institute an action of mortgage foreclosure, or take other
action as the law may allow, at law or in equity, for the enforcement of this
Mortgage, and proceed thereon to final judgment and execution of the entire
unpaid balance of the Loan, including costs of suit, interest and reasonable
attorney's fees. In case of any sale of the Mortgaged Property by virtue of
judicial proceedings, the Mortgaged Property may be sold in one parcel and as an
entirety or in such parcels, manner or order as the Mortgagee, in its sole
discretion, may elect. The failure to make any tenants parties defendant to a
foreclosure proceeding and to foreclose their rights will not be asserted by the
Mortgagor as a defense in any proceeding instituted by the Mortgagee to collect
the obligations secured hereby or any deficiency remaining unpaid after the
foreclosure sale of the Premises.
Section 4. Appoint a receiver of the rents, issues and profits of the
Mortgaged Property without the necessity of proving either the depreciation or
the inadequacy of the value of the security or the insolvency of the Mortgagor
or any person who may be legally or equitably liable to pay moneys secured
hereby and the Mortgagor and each such person waive such proof and consent to
the appointment of a receiver.
Section 5. If the Mortgagor or any subsequent owner is occupying the
Premises or any part thereof, it is hereby agreed that the said occupants shall
pay such reasonable rental monthly in advance as the Mortgagee shall demand for
the Premises or the part so occupied, and for the use of the Mortgaged Property
covered by this Mortgage or any chattel mortgage.
Section 6. Apply on account of the unpaid indebtedness and the 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
Property whether or not a deficiency action shall have been instituted, any
unexpended moneys 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.
IV. MISCELLANEOUS:
Section 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 Loan either to the
Mortgagor or to any other person, or taking of other or additional security for
the payment thereof, or releasing any security, or
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changing any of the terms of the within Mortgage or the Agreement, 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 Loan or obligation accompanying
this Mortgage, nor upon any covenant or stipulation therein contained, nor under
any agreement assuming the payment of said Loan or obligation.
Section 2. All notices to be given hereunder shall be given by
certified mail directed to the Mortgagor or to the Mortgagee at the respective
addresses shown at the head of this Mortgage, or to such other address as either
party may notify the other.
Section 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 Premises.
Section 4. 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.
Section 5. This Mortgage is the Mortgage referred to in the Agreement
and is subject to all the terms and provisions of said Agreement. Should any
provision of the Agreement be inconsistent or contrary to the provisions of this
Mortgage, the provisions of the Agreement shall control. The Agreement is hereby
incorporated by reference as though fully set forth herein and made a part
hereof, and is on file for inspection at the offices of the Mortgagee.
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IN WITNESS WHEREOF, the Mortgagor has caused these presents to be
signed by its proper officers the day and year contained in the acknowledgment
hereof.
ATTEST: ELITE PHARMACEUTICALS, INC.
/s/ Mark I. Gittelman By: /s/ Bernard J. Berk
- ----------------------------- -------------------------------------
Mark I. Gittelman Bernard J. Berk
Secretary Chief Executive Officer and Chairman
STATE OF NEW JERSEY :
: SS.:
COUNTY OF ESSEX :
BE IT REMEMBERED, that on August 29, 2005, before me, the subscriber,
an Attorney-at-Law of New Jersey, and I hereby certify that I am such an
Attorney-at-Law as witness my hand, personally appeared Bernard J. Berk, Chief
Executive Officer and Chairman of Elite Pharmaceuticals, Inc., who, I am
satisfied is the person who executed the foregoing Instrument on behalf of said
corporation and who thereupon acknowledged that he signed and delivered said
Instrument as the voluntary act and deed of said corporation.
Michael L. Messer
An Attorney at Law of New Jersey