Exhibit,Appendix: In The Matter Of The Petition To Cancel And Expunge An Erroneous Satisfaction Of Mortgage And Restore Mortgage Axos Bank v. Steven Waldman

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                = INDEX NO. 815350/2022E
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 10/17/2022

EXHIBIT AINDEX NO. 815350/2022E

NYSCEF DOC. NO. 2

RECEIVED NYSCEF: 10/17/2022

NYC DEPARTMENT OF FINANCE
OFFICE OF THE CITY REGISTER

This page is part of the instrument. The City
Register will rely on the information provided
by you on this page for purposes of indexing
this instrument.The information on this page
will control for indexing purposes in the event
of any conflict with the rest of the document

2018111401252002001E77C1

RECORDING AND ENDORSEMENT COVER PAGE

PAGE 1 OF 32

Document ID: 2018111401252002
Document Type: MORTGAGE
Document Page Count: 31

Document Date: 11-08-2018

Preparation Date: 11-14-2018

PRESENTER: RETURN TO:
TITLE ISSUES AGENCY, LLC IDALIA LEVINE, ESQ.
4207 AVENUE M 1274 49TH STREET PMB 175
BROOKLYN, NY 11234 BROOKLYN, NY 11219
718-677-0600
TIA-6393B
PROPERTY DATA
Borough Block Lot Unit Address
BRONX 4463 222 Entire Lot 16 GABRIEL DRIVE

Property Type: DWELLING ONLY - 2 FAMILY

CROSS REFERENCE DATA

CREN. or DocumentID. or Year. Reel Page or File Number.
PARTIES
MORTGAGOR/BORROWER: MORTGAGEE/LENDER:
AW REAL ESTATE ACQUISITION 1 LLC IM.P. MANAGEMENT, LLC
1401 OCEAN AVENUE , SUITE SE 1274 49TH STREET
BROOKLYN, NY 11230 BROOKLYN, NY 11219
FEES AND TAXES
Mortgage : Filing Fee:
Mortgage Amount: $ 180,000.00 $ 0.00
Taxable Mortgage Amount: _| $ 180,000.00 NYC Real Property Transfer Tax:
Exemption: $ 0.00
TAXES: County (Basic): $ 900.00 NYS Real Estate Transfer Tax:
City (Additional): | $ 1,800.00 $ 0.00
Spec (Additional):| $ 9.00 RECORDED OR FILED IN THE OFFICE
a $ 450,00 yo, *¢ee OF THE CITY REGISTER OF THE
i $ eu ® CITY OF NEW YORK
NYCTA: $ 0.00 Recorded/Filed 11-19-2018 11:2:
Additional MRT: | 0.00 oie ri me
— = City Register File No.(CRFN):
TOTAL: $ 3,660.00 2018000382100
Recording Fee: $ 192.00 ) é
Affidavit Fee: $ 0.00 4 -
City Register Official SignatureINDEX NO. 815350/2022E

NYSCEF DOC. NO>~2~~ RECEIVED NYSCEF: 10/17/2022

/

MORTGAGE

| Date: November 8, 2018
- by and between -
AW REAL ESTATE ACQUISITION 1 LLC
- and -

M.P. MANAGEMENT, LLC

TAX MAP DESIGNATION OF THE PREMISES ENCUMBERED HEREBY:

Section: 16
\ Block: 4463
| Lot: 222
County: Bronx

Premises Address: 16 Gabriel Drive a/k/a 2529C Bouck Avenue,

Bronx NY

Record and Return to:
Dalia Levine, Esq.
1274 49" Street, PMB 175
Brooklyn, New York 11219(FILED: BRONX COUNTY CLERK 1071772022 09:06 AM INDEX NO. 815350/2022E
NYSCEF DOC. NO. 2 - RECEIVED NYSCEF: 10/17/2022

This MORTGAGE is made as of the 8th day of November 2018, by AW REAL
ESTATE ACQUISITION 1 LLC, having an office at 1401 Ocean Avenue, Suite SE,
Brooklyn New York 11230 (the "Mortgagor"), and M.P. MANAGEMENT, LLC,
having an office at 1274 49" Street, Brooklyn New York 11219 (the “Mortgagee”).

WITNESSETH:

That to secure the payment of an indebtedness in the sum of ONE
HUNDRED AND EIGHTY THOUSAND AND 00/100 ($180,000.00) DOLLARS
lawful money of the United States, to be paid with interest thereon to be computed
| from the date hereof, at the rate of ten (10%) percent per annum, which sum is
| evidenced by a promissory note to Mortgagee in the amount thereof (the “Note”);

the MORTGAGOR hereby mortgages to the MORTGAGEE

All that certain plot, piece or parcel of land situate, lying and being in the
County of Bronx, City and State of New York bounded and described as set forth on
Schedule "A" attached hereto and made a part hereof.

SAID PREMISES being known as 16 Gabriel Drive a/k/a 2529d Bouck
Avenue, Bronx, New York.

aoe » NOW, THEREFORE, in consideration of the premises and other covenants herein
contained Mortgagor hereby gives, grants, bargains, sells, warrants, alienates, demises,
releases, conveys, assigns, transfers, mortgages, hypothecates, deposits, pledges, sets
over and confirms unto Mortgagee, all of its estate, right, title and interest in, to and
under any and all of the following property described in paragraphs (i) through (xi) below
(collectively, the “Mortgaged Property”) whether now owned or held or hereafter
acquired:

(i) the Land plus any air rights, easements, privileges, royalties, rights and
appurtenances hereunto belonging or in anyway appertaining, and all of the estate, right,
title, interest, claim or demand whatsoever of Mortgagor therein and in the streets and
ways adjacent thereto, either at law or in equity, in possession or expectancy, now or
hereafter acquired and including the land surface and the entire subsurface of soil, sand,
gravel, stone and rock, all surface water and subsurface water, whether flowing or
stagnant, and the ambient air (the “Premises”); and

Gi) all structures or buildings and replacements thereof now or hereafter
erected on the Premises including equipment and fixtures attached thereto and owned by
Mortgagor (the “Improvements”); and

(iii) all chattels at the Premises including all fixtures, fittings, appliances,
apparatus, equipment, computers, machinery and articles of personal property and(FILED: BRONX COUNTY CLERK 1071772022 09:06 AM INDEX NO. 815350/2022E
(NYSCEF DOC. NO. 2 . RECEIVED NYSCEF: 10/17/2022

replacements thereof, other than those owned or leased by Lessees (as hereinafter
defined), now or at any time hereafter affixed to, attached to, placed upon, or used in any
way in connection with the complete and use, enjoyment, occupancy or operation of the
Improvements (the “Chattels”); and

| (iv) all proceeds of the conversion, voluntary or involuntary, of any of the
| foregoing into cash or liquidated claims, including, without limitation, proceeds of
insurance and condemnation awards and any unearned premiums accrued, accruing or to
accrue under any and all insurance policies now or hereafter obtained by Mortgagor, and
all rights of Mortgagor to refunds of real estate taxes and assessments; and

(v) all leases, subleases, lettings, licenses, occupancy agreements, contracts or
agreements of any kind pertaining to the Premises and/or the Improvements or any part
thereof now or hereafter entered into (each a “Lease” and collectively, the “Leases”) and
all right, title and interest of Mortgagor thereunder, including, without limitation: (a)
cash, letters of credit or other securities deposited thereunder to secure performance by
the lessees, sub-lessees, licensees, occupants, users or contractors (each a “Lessee” and
collectively, the “Lessees”) thereof of their obligations thereunder, whether such cash,
letters of credit or securities are to be held until the expiration of the terms of such Leases
or applied to one or more of the installments of rent coming due immediately prior to the
expiration of such terms; (b) all guarantees of obligations of any Lessee; and (c) the right
to receive and collect the rents, issues letters of credit and profits from the Leases (the
“Rents”), all in accordance with the terms hereof and the terms of ‘that: certain
Assignment of Rents, Leases and Other Contract Rights of even date herewith: from
Mortgagor to Mortgagee; and

| (vi) all awards heretofore made and hereafter to be made by any municipal,
state or federal authorities to Mortgagor, including any awards for any changes of grade
of streets affecting the Premises as the result of the exercise of the power of eminent
domain (the “Awards”); and

i (vii) all the other estate, right, title, interest, use, possession, property, claim
and demand whatsoever, accounts receivable, contract rights, general intangibles, trade
names, books, records and computer software related to operation of the Mortgaged
Property, actions and rights in action, relating to the Mortgaged Property and proceeds,
products, replacements, additions, substitutions, renewals and accessions of any of the
foregoing; and

| (viti) all plans, drawings, specifications, site plans, subdivision maps, sketches,
contracts and agreements, however characterized from time to time prepared for use in
connection with the development, redevelopment or renovation of the Premises and
Improvements; and
RL

(ix) all contracts, agreements and understandings now or hereafter entered
! into, relating to or involving the performance of any work, rendering of any services, and
supply of any materials or the conduct of operations in and the management of the(FILED: BRONX COUNTY CLERK 1071772022 09:06 AM INDEX NO. 815350/2022E
NYSCEF DOC. NO. 2 - - RECEIVED NYSCEF: 10/17/2022

Mortgaged Property including, without limitation, construction contracts, brokerage
agreements, architect agreements, management agreements, options and other
agreements, however characterized, affecting the Premises and/or the Improvements or
the public improvements required to be installed under the terms of governmental
approvals relating to the Premises; and

(x) any and all permits, certificates, approvals and authorizations, however
characterized, issued or in any way furnished whether necessary or not, for the operation
and use of the Premises and/or the Improvements and/or any other portion of the
Mortgaged Property including, without limitation, certificates of occupancy, building

permits, environmental certificates, certificates of operation, warranties and guarantees;
and

(xi) all tenant security account(s) for the Mortgaged Property (the “Tenant
Security Account”), any interest or debt service reserve accounts and the Tax and
Insurance Reserves (as hereinafter defined).

TO HAVE AND TO HOLD unto Mortgagee, its successors and assigns
forever.

ARTICLE T
COVENANTS, WARRANTIES AND REPRESENTATIONS OF MORTGAGOR
SECTION 1.01. Mortgagor represents and warrants that:

(a) __ the information provided in the application for the loan evidenced by the
Note and secured by this Mortgage (the “Loan”), including but not limited to Leases,
schedule of Rents, credit statements, financial statements and in any other document
presented to Mortgagee was true, accurate and complete in all material respects when
made and remains true, accurate and complete on the date hereof in all material respects
and to the best of Mortgagor’s knowledge does not omit any material facts;

(b) there has been no material adverse change in the financial condition of
Mortgagor of any or all of the obligations evidenced by the Note or in any other item
therein considered by Mortgagee for the purposes of making the Loan;

(c) no insolvency. or bankruptcy proceedings are pending against (i)
Mortgagor, (ii) any shareholders of Mortgagor, if Mortgagor is a corporation, (iv) any of
the partners of Mortgagor, if Mortgagor is a general partnership or limited partnership, or
(v) any members of Mortgagor, if Mortgagor is a limited liability company;

(d)  Mortgagor is the record and beneficial owner and holder of marketable
title to an indefeasible fee simple estate in the Premises and Improvements, subject to no(FILED: BRONX COUNTY CLERK 10/17/2022 09:06 AM INDEX NO. 815350/2022E
NYSCEF-DOC. NO. 2 - . — RECEIVED NYSCEF: 10/17/2022

lien, charge or encumbrance other than any permitted exceptions appearing in the policy
of title insurance insuring the lien of this Mortgage on the date hereof;

(e) Mortgagor is the owner of the Chattels free and clear of all liens;

(f) there has been no material adverse change in the condition of the
Mortgaged Property;

(g) | Mortgagor is duly organized, validly existing and is in good. standing
under the laws of the State of New York and has full power and lawful authority to carry
on its business as currently conducted, to borrow the Debt evidenced by the Note and to
encumber the Mortgaged Property to the full extent contemplated under this Mortgage;

(bh) the execution and delivery of this Mortgage has been duly authorized by
all necessary action on the part of Mortgagor and does not require the consent of any
other party;

| @ the provisions of this Mortgage will not result in the default by Mortgagor
of any of the terms, conditions or provisions of any law, regulation, order, writ,
injunction or decree of any court or governmental authority having jurisdiction over the
Mortgaged Property or any agreement or instrument to which Mortgagor is a party;

(j). | Mortgagor and the Mortgaged Property are in compliance with, all laws,

_-Statutes,..codes, acts, ordinances, orders, judgments, decrees, injunctions, rules,

_. regulations, permits, licenses, authorization, directions and requirements of all

governments, departments, commissions, boards, courts, authorities, agencies, officials

and officers which may, as at the date of this Mortgage or thereafter, affect the

| Mortgaged Property or any part thereof or its use or condition, or which may affect any

| adjoining sidewalks, curbs, vaults and vault space if any, or streets or ways in so far as
Mortgagor is required to comply therewith;

(k) the Mortgaged Property has all necessary licenses, authorities, permits and
| approvals, including certificates of occupancy, certificates of compliance or certificates
of use to operate the Improvements, including but not limited to electricity, water
drainage, and sewer in compliance with all applicable laws and regulations;

(dy there are no actions, suits or proceedings pending or threatened against the
| Mortgaged Property, the result of which might have a materially adverse effect upon the
| Mortgaged Property;

| (m) there are no actions, suits or proceedings pending or threatened against:

(1) Mortgagor, or (2) any shareholders of Mortgagor, if Mortgagor is a corporation, or (3)
any of the partners of Mortgagor, if Mortgagor is a general partnership or limited
partnership, or (4) any members of Mortgagor, if Mortgagor is a limited liability
company, the result of which might have a materially adverse effect upon the Mortgaged(FILED: BRONX COUNTY CLERK 1071772022 09:06 AM INDEX NO. 815350/2022E
NYSCEF DOC. NO. 2--- ~ RECEIVED NYSCEF: 10/17/2022

Property or Mortgagor's ability to perform under the Note, this Mortgage or any other
loan documents;

(n) — Mortgagor is not in default of any of its material obligations under the
Leases;

(0) | Mortgagor has not engaged any brokers in connection with the Loan
unless such broker has been paid in full pursuant to the terms of Mortgagor’s contract or
brokerage agreement with such broker.

| (p) All loans made by its shareholders, officers or members to the Mortgagor
i are subordinate to the obligations of the Mortgagor to the Mortgagee. The Mortgagor is
not indebted to any of its shareholders or officers.

SECTION 1.02. Mortgagor will punctually pay the principal and interest
and all other sums due in accordance with the terms of the Note.

SECTION 1.03. Mortgagor will preserve the state and condition of the title,
and will forever warrant and defend the same to Mortgagee, and Mortgagor will forever
warrant and defend the validity and priority of the lien of this Mortgage against the
claims of all persons and parties whomsoever.

SECTION 1.04. (a) Mortgagor will timely pay and:discharge all taxes of
every kind and nature (including real estate, water and:sewer, and.personal property taxes
and income, franchise, withholding, profits and -gross receipts taxes), all general and
special assessments, levies, permits, inspection and license fees, all water and sewer rents
and charges, and all other public charges whether of a like or different nature, imposed
upon or assessed against it or the Mortgaged Property or any part thereof or upon the
revenues, rents, issues, income and profits of the Mortgaged Property or arising in respect
of the occupancy, use or possession thereof (collectively, the “Taxes”). Upon
Mortgagee’s request, Mortgagor will, within thirty (30) days after the due date of any
installment of any imposition, deliver to Mortgagee, receipts evidencing the payment of
all Taxes.

(b) | Upon demand by Mortgagee, Mortgagor shall deposit with Mortgagee,

such amounts as Mortgagee shall determine to be necessary to establish a reserve for

| payment of real estate taxes, water and sewer taxes and the insurance premiums payable
under Section 1.05(a) below (to the extent such msurance is not part of a master policy).

The deposits shall collectively be referred to as the “Tax and Insurance Reserves.”

Mortgagee may, at its option, require the deposit by Mortgagor, at the time of each
payment of any installment of interest or principal under the Note, of an additional

amount sufficient to discharge such obligations thirty (30) days before same become due.
| The determination of the amounts payable and of the amount to be deposited with
Mortgagee, so that the aggregate of such deposits shall be sufficient for this purpose,

shall be made by Mortgagee in its sole discretion. On the date hereof, Mortgagee, in its

sole discretion, may waive the requirement for an insurance escrow and permit(FILED: BRONX COUNTY CLERK 1071772022 09:06 AM INDEX NO. 815350/2022E
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 10/17/2024

Mortgagor to pay its own casualty and liability insurance during the term of this
Mortgage. In the event that Mortgagee has waived the insurance escrow requirement as
set forth above, it hereby reserve the right to reinstitute same at any time during the term
of this Mortgage. Notwithstanding the foregoing, flood insurance, if required, must be
escrowed with Mortgagee.

(c) The Tax and Insurance Reserves shall be held by Mortgagee without
interest and may be co-mingled with Mortgagee’s general funds and shall be disbursed by
Mortgagee for the payment of the obligations of Mortgagor in subparagraph 1.04(b)
above (the “Obligations”) on or before their respective due dates. If thirty (30) days prior
to the due date of any of the Obligations the amounts then on deposit therefor shall be
insufficient for the payment thereof, Mortgagor within ten (10) days after demand shall
deposit the amount of any deficiency in the Tax and Insurance Reserves.
Notwithstanding the provisions of this subparagraph 1.04(c), after an Event of Default (as
hereinafter defined) hereunder Mortgagee may elect to apply the Tax and Insurance
Reserves to any amounts which may be due and owing under the Note or this Mortgage.

SECTION 1.05. (a) Mortgagor will keep or will cause the Mortgaged
Property to be insured against loss by fire, flood (if in a flood zone) and casualty and
shall maintain rent loss or business interruption coverage and such other hazards as may
be reasonably specified by Mortgagee for the benefit of Mortgagee. Such insurance shall
be written in forms, amounts, and by companies reasonably satisfactory to Mortgagee,
and losses thereunder shall be payable to Mortgagee pursuant to a-standard first mortgage™* -
| endorsement substantially equivalent to the-New York standard mortgage endorsement:"~
i The policy or policies of such:iisurance shall be delivered to Mortgagee. Mortgagor shall
| give Mortgagee prompt notice of any loss covered by such insurance and Mortgagee shall
have the right to join Mortgagor in adjusting any loss. Any moneys received as payment
for any loss under any such insurance shall be paid to Mortgagee to be applied, at
Mortgagee's option, either to the prepayment of the Note, or to the reimbursement of
Mortgagor from time to time for expenses incurred by it in the restoration of the
Improvements as determined by Mortgagee. In addition to the foregoing coverage,
Mortgagor shall maintain in its name general liability coverage in amounts satisfactory to
Mortgagee, naming Mortgagee as an additional insured.

Notwithstanding the foregoing, in the event of any destruction of the

Mortgaged Property, Mortgagee will make 75% of the net insurance proceeds available

for restoration, provided that: (i) the net insurance proceeds are sufficient, in the opinion

of Mortgagee, to complete the restoration (unless Mortgagor deposits with Mortgagee the

| amount of such deficiency); (ii)an Event of Default has not occurred under this Mortgage
or the Note (beyond the expiration of any applicable notice or cure period) and (iii) in its
opinion the restoration can be completed within six (6) months from the occurrence of the
damage. The remaining 25% of the net insurance proceeds shall be released after
completion of the restoration and the rental of the restored portion of the Mortgaged
Property at a rental acceptable to Mortgagee. If the restoration is undertaken, Mortgagor
shall submit plans and specifications and a budget, subject to Mortgagee's approval.
Disbursement of the insurance proceeds will be made periodically pursuant thereto. The(FILED: BRONX COUNTY CLERK 1071772022 09:06 AM INDEX NO. 815350/2022E
NYSCEF DOC. NO. 2 . RECEIVED NYSCEF: 10/17/2022

expenses incurred by Mortgagor (including, without limitation, hard and soft costs) will
be paid by Mortgagor to the extent that the insurance proceeds available to Mortgagee are
insufficient to pay such expenses, Mortgagee shall not be required at any time to disburse
| any proceeds if the undisbursed balance thereof is, in its sole opinion, insufficient to
| timely complete the restoration free of liens in accordance with the plans and
specifications.

It is intended that no trust shall be created by the receipt by Mortgagee of
any proceeds of insurance, but only a debtor-creditor relationship between Mortgagee and
| Mortgagor for an amount equal to such proceeds, nor shall there be any obligation on
} Mortgagee to pay any interest thereon.

i (b) — Mortgagor shall not take out and/or maintain separate insurance
concurrent in form or contributing in the event of loss with that required to be maintained
under this Section 1.05 unless Mortgagee is included thereon as a named insured with
loss payable to Mortgagee under a standard mortgage endorsement of the character above
described. Mortgagor shall immediately notify Mortgagee whenever any such separate

insurance is taken out and shall promptly deliver to Mortgagee the policy or policies or
certificates of such insurance.

(c) If the Mortgaged Property is located in an area which has been
identified by the Secretary of the United States Department of Housing and Urban
Development as a flood hazard area, Mortgagor will keep the Mortgaged Property
insured against loss by floods.aad=mud slides, until all sums secured hereby have been .
repaid in full, by flood insurance-in an amount at least equal to Debt or the maximum *
limit of.coverage available for:the Mortgaged Property under the National Fléod-
| Insurance Act of 1968, as amended by the Flood Disaster Protection Act of 1973,
whichever is less.

(d) Upon demand by Mortgagee, prior to the expiration date of each
policy furnished by Mortgagor pursuant to this Section 1.05, Mortgagor will deliver to
Mortgagee, a renewal policy or policies marked "premium paid" or accompanied by other
evidence of payment satisfactory to Mortgagee.

SECTION 1.06. (a) Mortgagor will keep adequate records and books of
accounts in accordance with generally accepted accounting principles. Mortgagor will
permit Mortgagee, by its agents, accountants and/or attorneys, to visit and inspect the
Mortgaged Property and examine its records and books of account and to discuss its
affairs, finances and accounts with Mortgagor, at such reasonable times and upon
reasonable notice as may be requested by Mortgagee.

(b) | Upon demand by Mortgagee, Mortgagor will deliver to Mortgagee within

ninety (90) days after the close of their respective fiscal years and/or within thirty (30)
days of request by Mortgagee, copies of state and federal tax returns, financial
{ statements, a current rent roll for the Mortgaged Property and statements of profit, loss
and cash flow setting forth in each case, in comparative form, figures for the preceding

year. Mortgagor will deliver to Mortgagee such other information with respect to> INDEX NO. 815350/2022E
NYSCEF..DOC.NO. 2 RECEIVED NYSCEF: 10/17/2022

Mortgagor as Mortgagee may reasonably request from time to time. All tax returns and
financial statements of Mortgagor shall be prepared by a certified public accountant in
accordance with generally accepted accounting principles and shall be delivered in
duplicate and, in the case of Mortgagor, shall be accompanied by the certificate of a
principal financial or accounting officer of Mortgagor, dated within five (5) days of the
delivery of such statements to Mortgagee, stating that there is no Event of Default or any
event which after notice or lapse of time or both would constitute an Event of Default,
which has occurred and is continuing. If any such event or Event of Default has occurred
and is continuing, Mortgagor shall specify the nature and period of existence thereof and
what action Mortgagor has taken or proposes to take with respect thereto, and, except as
otherwise specified, stating that Mortgagor has fulfilled all of its obligations under this
Mortgage which are required to be fulfilled on or prior to the date of such certificate. In
i addition to but not in lieu of any other remedies available to the Mortgagee, upon the
Mortgagor’s failure to supply to the Mortgagee the records and/or other information
required by this Section 1.06(b) within thirty (30) days after Mortgagee’s request for
same and until such records and/or information are furnished, interest payable hereunder

shall be at the rate of 24% percent per annum or the maximum rate allowed to be charged
by law, whichever is lower.

|
|

(c) Mortgagor will do all things necessary to preserve and keep in full force
and effect its existence, franchises, rights and privileges as a business or stock
corporation, limited liability company, partnership, trust or other entity, as the case may
be, under the laws of the state ofits formation and-witkeomply with all regulations, rules,
statutes, orders and decrees of any governmental authority or court applicable fo it or to
the Mortgaged Property or any part thereof. = +B

(d) Mortgagor will execute and deliver to Mortgagee within five (5) business
days upon request a written statement, duly acknowledged, of the amount due for
principal or interest on this Mortgage and whether any offsets, counterclaims or defenses
exist against the Debt. The nature of each such offset, defense or counterclaim shall be
set forth in full detail.

SECTION 1.07. (a) Mortgagor shall not (a) permit the Mortgaged Property
or any part thereof or any interest therein to be sold, transferred, conveyed, pledged,
mortgaged, assigned or hypothecated to any other person or entity, or (b) sell, transfer,
| convey, pledge, mortgage, assign or hypothecate (collectively “Transfer”) the Mortgaged
i Property or any part thereof or any interest therein, which shall include but not be limited
to (i) where Mortgagor is a corporation, the Transfer of any of the outstanding shares of
the corporation or the dilution of the present stockholding or corporate control by
issuance of new or treasury stock or by conversion of any non-voting stock or other
securities to voting stock, or (ii) where Mortgagor is a partnership, the Transfer of any of
the interests in Mortgagor, or the withdrawal, resignation or retirement of the general
partner, or (iii) where Mortgagor is a limited liability company, by a Transfer of any of
the membership interests in Mortgagor.(FILED: BRONX COUNTY CLERK 10/717/2022 09:06 AM INDEX NO. 815350/2022E
NYSCEF—DOC.-NO.—-2 RECEIVED NYSCEF: 10/17/2022
|

(b) Notwithstanding anything to the contrary contained herein, upon prior written
notice to Mortgagee and provided the management of and the controlling interest in
Mortgagor or the Mortgaged Property does not change, Mortgagee will not unreasonably
withhold its consent to transfers of interest in and among the existing
members/partners/shareholders of Mortgagor and transfers of interest to their immediate
family members or to other entities owned solely by said immediate family members or
to trusts for the benefit of same. Mortgagor shall promptly provide Mortgagee with all
documentation evidencing such transfers. “Immediate family members” shall be defined
as mother, father, son, daughter, brother, sister, grandchildren, son-in-law, daughter-in-
law and spouse. In addition, transfers of interest of Mortgagor made by bequest, demise
or operation of law shall not be deemed an Event of Default hereunder.

SECTION 1.08. Mortgagor will, in compliance with the applicable law,
receive the advances secured hereby and will hold the right to receive such advances as a
trust fund to be applied first for the purpose of paying the cost of the Improvements and

will apply the same first to the payment of the cost of the Improvements before using any
part of the total of the same for any other purpose.

SECTION 1.09. (a) Mortgagor will not threaten, commit or permit any
waste to the Mortgaged Property or make any change in the use of the Mortgaged
Property which will in any way materially increase the risk of ordinary fire or other
hazard arising out of construction or operation. Mortgagor will, at all times, maintain the

-+-, ssMortgaged Property in good operating order-and safe condition and-will‘premptly make,
g from time to time, all repairs, renewals, replacements;’additions and inrprovements
| es thereto. The Improvements shall not be demolished, substantially altered or permitted to
| : deteriorate, nor shall any Chattels be removed except where appropriate replacements are
| promptly made of value at least equal to the value of the removed Chattels. Any
replacement Chattels shall be owned by Mortgagor free and clear of any liens.

(b) During the term of this Mortgage, the Mortgagee shall have the right to enter
and inspect the Mortgaged Property at reasonable times, upon reasonable notice.

SECTION 1.10. (a) Mortgagor shall promptly notify Mortgagee of the

anni commencement of any proceedings for the condemnation of the Mortgaged Property (a

"Taking") or any portion thereof. Mortgagee may participate in any such proceeding and

j may be represented therein by counsel of its selection at the expense of Mortgagor.

| Mortgagor from time to time will deliver to Mortgagee all instruments requested by it to

permit or facilitate such participation. In the event of such condemnation proceedings, the

award or compensation payable is hereby assigned to and shall be paid to Mortgagee.

The proceeds of any award or compensation so received shall, at the option of

Mortgagee, cither be applied without premium to the prepayment of the Debt, or be paid
over to Mortgagor for restoration of the Mortgaged Property.

| (b) Provided (i) the Mortgaged Property is capable of restoration, and (ii)
an Event of Default has not-occurred under this Mortgage or the Note (beyond the
expiration of any applicable notice, grace or cure period, and (iii) Mortgagor, promptly(FILED: BRONX COUNTY CLERK 1071772022 09:06 AM INDEX NO. 815350/2022E
NYSCEF DOC. NO. 2 . RECEIVED NYSCEF: 10/17/2022

after the condemnation award is settled and/or awarded, proceeds with the restoration,
replacement, rebuilding or repair (hereinafter collectively referred to as "Restoration") of
the Mortgaged Property as nearly as possible to the condition they were in immediately
prior to such Taking, then all awards received by Mortgagee, on account of such Taking,
less the actual cost, fees and expenses, if any, incurred in connection with the adjustment
of the loss, shall be paid by Mortgagee, out of such awards as restoration progresses, as
the same may be certified by a licensed engineer approved by Mortgagee, upon the
written request of Mortgagor, which request shall be accompanied by a title company or
official search, or other evidence satisfactory to Mortgagee, showing that there have not
been filed with respect to the Mortgaged Property any vendor's, contractor's, mechanic's,
laborer's or materialman's statutory or similar liens which have not been bonded or
otherwise discharged of record, except such as will be discharged upon payment of the
sum requested.

| If the award, less the actual cost, fees and expenses, if any, incurred in
i connection with the Taking, shall be insufficient to pay the entire cost of such
i Restoration, Mortgagor will promptly pay the deficiency. It is intended that no trust shall
i

be created by the receipt by Mortgagee of any proceeds of insurance, but only a debtor-
creditor relationship between Mortgagee and Mortgagor for an amount equal to such
proceeds, nor shall there be any obligation on Mortgagee to pay any interest thereon.

SECTION 1.11. Mortgagor will, at its sole cost and expense, and without

: expense to Mortgagee, do, execute, acknowledge and deliver all additional acts, deeds,
«: conveyances, anortgages,.assignments, notices of assignment, transfers and assurances as

= Mortgagee shall fronrtime to time reasonably require, for the better assuring, conveying,
8 assigning, transferring and confirming unio. Mortgagee a security interest in the
Mortgaged Property, or for carrying out the intention or facilitating the performance of

the terms of this Mortgage, or for filing, registering or recording this Mortgage and,

within ten (10) days after demand therefor, will execute and deliver, and hereby

| authorizes Mortgagee to execute and file in Mortgagor’s name, to the extent it may
4 lawfully do so, one or more financing statements, chattel mortgages or security
instruments, and renewals thereof, to evidence more effectively the lien hereof upon the
Chattels. Upon request by or on behalf of Mortgagee, Mortgagor will execute any
document or instrument that ought to have been signed at or before the date hereof, or
will re-execute any document or instrument incorrectly completed and/or signed in
connection herewith, including but not limited to, any amendments, corrections, deletion,
or additions to the loan documents executed in connection herewith, provided such
amendments, correction, deletion or additions are in conformity with the terms of the
commitment between Mortgagee and Mortgagor for the loan evidenced by the Note and
secured by this Mortgage, or in the alternative, grants Mortgagee or Mortgagee’s attorney
a power-of-attorney for the sole purpose of executing or re-executing said document or

instrument on Mortgagor’s behalf, without prior notice.

SECTION 1.12. (a) Mortgagor shall from time to time, cause this
Mortgage, and any security instrument creating a lien or evidencing the lien hereof upon
the Chattels and each instrument of further assurance to be filed, registered or recorded in(FILED: BRONX COUNTY CLERK 1071772022 09:06 AM INDEX NO. 815350/2022E
NYSCEF DOC. “NO. 2 ~ - RECEIVED NYSCEF? 10/17/2022

such mamner and in such places as may be required by any present or future law in order
to publish notice of and fully protect the lien created hereby.

(b)  Mortgagor will pay all filing, registration or recording fees, and all
expenses incident to the execution, delivery, recording and acknowledgment of this
Mortgage, any mortgage supplemental hereto, any security instrument with respect to the
Chattels, and any instrument of further assurance, and all federal, state, county and
municipal stamp taxes and other taxes, duties, imposts, assessments and charges arising
out of or in connection thereof or any instrument of further assurance.

SECTION 1.13. All sums paid by Mortgagee as protective advances
(“Protective Advances”) shall be a lien upon the Mortgaged Property and shall be secured
hereby. Mortgagor will repay on demand all Protective Advances together with interest
thereon at the Involuntary Rate.

| SECTION 1.14. Mortgagor will pay or bond, from time to time when the
i same shall become due, or bond all lawful claims and demands of mechanics,
materialmen, laborers, and others which, if unpaid, might result in, or permit the creation
| of, a lien on the Mortgaged Property or any part thereof, or on the revenues, Rents,
| issues, income and profits arising therefrom.

SECTION 1.15 If any action or proceeding be commenced, excepting an
action to foreclose-this Mortgage or*to:e@liect the indebtedness hereby secured, to which =
action or proceeding Mortgagee is made-a party by reason of the execution of this
Mortgage or the Note which it secures, or in which it becomes necessary to defend or ak
uphold the lien of this Mortgage, all sums paid by Mortgagee for the expense of any
litigation to prosecute or defend the transactions and the rights and lien created hereby
(including reasonable attorneys' fees and disbursements) shall be paid by Mortgagor
| together with interest thereon from the date of payment by Mortgagee at the Involuntary
Rate. All such sums paid and the interest thereon shall be immediately due and payable,
shall be a lien upon the Mortgaged Property, and shall be secured hereby.

SECTION 1.16. In the event of the passage after the date of this Mortgage
of any law deducting any lien from the value of the Land for the purpose of taxation, or
changing in any way the laws now enforced for the taxation of mortgages or debts
secured by mortgages, or the manner of the collection of any such taxes, so as to affect
and lessen the net income on the indebtedness secured by this Mortgage, the Debt
secured by this Mortgage, together with interest due thereon, shall, at the option of
Mortgagee, become immediately due and payable.

SECTION 1.17. Mortgagor shall comply with, or cause to be complied with,
all laws, statutes, codes, acts, ordinances, orders, judgments, decrees, injunctions, rules,
regulations, permits, licenses, authorization, directions and requirements of all
| governments, departments, commissions, boards, courts, authorities, agencies, officials
| and officers which may, as at the date of this Mortgage or thereafter, affect the
Mortgaged Property or any part thereof or its use or condition, or which may affect any(FILED: BRONX COUNTY CLERK 1071772022 09:06 AM INDEX NO. 815350/2022E
NYSCEF DOC: NO. 2 ” ~ RECEIVED NYSCEF: 10/17/2022

adjoining sidewalks, curbs, vaults and vault space if any, or streets or ways in so far as
Mortgagor is required to comply therewith.

SECTION 1.18. (a) As used herein, the following terms shall have the
following meanings:

j "Environment" means any surface or subsurface water, water vapor, surface or
subsurface land, air, fish, wildlife, microorganisms and all other natural resources.

“Environmental Law" means any law, ordinance, rule, regulation or requirement,
issued by any federal, state or local governmental or quasi-governmental authority
whether now existing or hereinafter enacted, and any judicial or administrative
interpretations thereof, regulating the disposal, distribution, generation, handling,
manufacture, possession, processing, production, sale, storage, transport, treatment or use
of Hazardous Substances or relating to the protection of the Environment.

"Environmental Permits" mean all permits, licenses, approvals, authorizations,
consents or registrations required by any applicable Environmental Law in connection
with the ownership, use and/or operation of the Mortgaged Property, including, without
limitation those required for the disposal, distribution, generation, handling, manufacture,
possession, processing, production, sale, storage, treatment, transport or use of Hazardous
Substances.

co .. Hazardous. Substance” means any material whatsoever, which is or.may be ¥

regulated by. Federal, State“or Local authorities as harmful to the health -or-safetyof
human or animal life or vegetation, regardless of whether such material be found on or
below the surface of the ground, in any surface or underground water, airborne in
ambient air or in the air inside of any structure built or located upon or below the surface
of the ground, or in any machinery, equipment or inventory located or used in any such
structure, including but not limited to, all hazardous materials, hazardous substances,
imminently hazardous substances, hazardous wastes, toxic substances, infectious wastes,
pollutants and contaminants from time to time defined, listed, identified, designated or
classified as such under any Environmental Law regardless of the quantity of any such
material.

"Release" means any discharging, disposing, emitting, leaking, pumping, pouring,
emptying, injecting, escaping, leaching, dumping or spilling into the Environment
(including the abandonment or discarding of barrels, containers and other closed
receptacles).

(b) Mortgagor represents and warrants that to the best of its knowledge after
due inquiry: .

(i) Neither Mortgagor, any existing or prior tenant of the Mortgaged
Property, any prior owner thereof nor any other person is the subject of any civil or
criminal investigation or enforcement proceeding, whether administrative or judicial,(FILED: BRONX COUNTY CLERK 1071772022 09:06 AM INDEX NO. 815350/2022E
NYSCEF-DOC. NO. 2 . oe RECEIVED NYSCEF: 10/17/2022

| with respect to: (1) any Hazardous Substance or threat of a Release on or affecting the
Mortgaged Property; or (2) any violation of Environmental Law by Mortgagor, any
existing or prior tenant of the Mortgaged Property, any prior owner thereof or any other
person with respect to or affecting the Mortgaged Property;

Gi) _No litigation involving the Mortgaged Property is pending against
Mortgagor, any existing or prior tenant of the Mortgaged Property, any prior owner
thereof or any other person in any way related to any of the aforementioned persons, or to
the best of Mortgagor's knowledge is any such litigation threatened, which seeks to
enjoin, remove or remediate a Release or threatened Release, or which seeks any remedy
based upon a violation of any Environmental Law or for any injury to any person,
property, animal life or vegetation caused by a Hazardous Substance or which seeks to
remove or remediate a Hazardous Substance;

(iii) Neither Mortgagor, any existing or prior tenant of the Mortgaged
Property, any prior owner thereof, or any other person has received any notice from any
governmental or quasi-governmental agency with respect to any Hazardous Substance or
any threatened Release on or affecting the Mortgaged Property, or any violation of
Environmental Law by any of the aforementioned persons with respect to or affecting the
Mortgaged Property;

(iv) | The Mortgaged Property is not currently used, nor has it been used

| ~ in-the-past, by Mortgagor, prior owners, tenants or any other persons in a mannerawhich

- -violates~any Environmental Law or which could give risé--to liability: for Hazardous

sesh 38 Substances, nor do conditions exist on or affect the Mortgaged: Property which’ could
violate any such law or give rise to such liability;

¥

(v) There has not been a Release on or affecting the Mortgaged
Property nor is there presently the threat of such a Release; and

(vi) Mortgagor and all tenants of the Mortgaged Property are in
compliance with all Environmental Laws and Environmental Permits affecting the
Mortgaged Property.

(c) — Mortgagor covenants that:

@ Mortgagor shall not use or permit the use of the Mortgaged
Property in a manner which would violate any Environmental Law or give rise to liability
for Hazardous Substances, nor shall Mortgagor cause or permit conditions to exist on or
affect the Mortgaged Property which would violate any such law or give rise to such
liability.

(ii) | Mortgagor shall not permit any federal, state or local
environmental lien to be levied against the Mortgaged Property, even if such lien is
| subordinate to the lien of this Mortgage.(FILED: BRONX COUNTY CLERK 1071772022 09:06 AM INDEX NO. 815350/2022E
NYSCEF DOC.-NO.-2 — RECEIVED NYSCEF: 10/17/2022
|

i (iii) Mortgagor shall provide Mortgagee with copies of any

| communications with or notices from any governmental or quasi-governmental authority
alleging or responding to an allegation that the Mortgaged Property is not in compliance
with any Environmental Law, within (5) days of Mortgagor's receipt or sending thereof.

(iv) Mortgagor and all Lessees of the Mortgaged Property shall possess
all required Environmental Permits and shall be in compliance with such permits.

(vy) _ There shall be no Release on or affecting the Mortgaged Property.

(vi) To the best of Mortgagor’s knowledge, no asbestos shall exist on
the Mortgaged Property in any form, condition or quantity, except as set forth in the
| assessment(s) prepared by the environmental engineer retained by Mortgagee in
| connection with the Mortgage (the “Consultant”) (provided that applicable
Environmental Laws as may exist from time to time do not prohibit the existence of the
asbestos in such form, condition or quantity).

(vii) Mortgagor shall and shall cause all Lessees to be in compliance
with the terms of any asbestos monitoring plan prescribed by the Consultant at all times.
| Pre-existing non-friable asbestos may not be exposed to conditions under which there is a
| reasonable likelihood that the asbestos or its covering will become damaged, deteriorated,
i delaminated or any other conditions under which the asbestos could become friable.

{viii) Mortgagor shall‘and shall cause all Lessees to comply with any:
x obligations they may have underany» Environmental Law affecting the Mortgaged
Property, including but not limited to reporting requirements.

(ix) Mortgagor shall provide Mortgagee with a copy of any
environmental assessment of the Mortgaged Property which Mortgagor may obtain,
within ten (10) days of the date when Mortgagor receives the assessment.

(d) A breach of any representation, warranty or covenant contained in this
Section 1.19 shall be an Event of Default hereunder.

(e) Until all sums due hereunder shall be repaid in full, Mortgagee may,
provided it has reasonable cause to do so, conduct environmental assessments or tests to
determine if a hazardous condition exists at the Mortgaged Property. Such audits and
tests shall be performed by an environmental consultant chosen by Mortgagee.
Mortgagor shall pay to Mortgagee on demand the costs of such audits or tests. Any such
environmental assessments shall be considered the property of Mortgagee, and
Mortgagee shall owe no duty of confidentiality to Mortgagor with respect to the contents
thereof. It is hereby acknowledged by Mortgagor that Mortgagee shall not vouch for or
| assume any responsibility for the scope of detail, contents or accuracy of any such

environmental assessment, and that neither Mortgagor nor any other party shall have any
| recourse to or claim against Mortgagee for any act of omission or commission of the
environmental consultant. Mortgagor shall fully cooperate with the environmental(FILED: BRONX COUNTY CLERK 10/17/2022 09:06 AM INDEX NO. 815350/2022E
NYSCEF-DOC. NO. 2 . ~~~RECEIVED NYSCEF: 10717/2022

consultant in its preparation of the assessment, including, but not limited to responding to
questions of the consultant, providing the consultant with unlimited access at reasonable
times and upon reasonable notice to the Mortgaged Property, the books and records of
Mortgagor, and employees of Mortgagor, and Mortgagor shall cause all tenants of the
Mortgaged Property to do the same. Mortgagee may also from time to time at the
reasonable expense of Mortgagor procure the opinion of an attorney competent in
| environmental law when it believes such an opinion to be reasonably necessary,
| respecting the environmental condition of the Mortgaged Property and the terms,
i conditions, sufficiency of, compliance with the transferability of all existing and/or
required Environmental Permits.
| In addition, Mortgagee shall have the right to require, from time to time, a
| certification by Mortgagor and any tenants of the Mortgaged Property that there has been a Pint
| no change in the environmental condition of the Mortgaged Property. If there has been
| an asbestos monitoring plan prescribed by the Consultant, Mortgagor must also from time
| to time at the request of Mortgagee show evidence of its compliance therewith.
|
{

(f) Mortgagor shall fully indemnify and hold harmless Mortgagee, its
successors and assigns against: (i) any third party claims involving Hazardous Substance
Releases on or affecting the Mortgaged Property or violation of Environmental Law in
any way related to Mortgagor or the Mortgaged Property; and (ii) any fines, penalty
payments, reasonable attorney's fees, sums paid in connection with any judicial or
administrative investigation or proceedings, costs of cleanup assessed by a governmental
or quasi-governmental agency, and similar expenditures, that relate in any way to ae
Mortgagor or the-Mortgaged Property, without regard to whether Mortgagor would have
ultimately béen“résponsible for such thitd party claims, fines, payments, fees, sums or
costs. The foregoing indemnity shall survive payment of the Note and satisfaction of this
Mortgage. Any amounts which Mortgagor must pay to Mortgagee under this paragraph
are payable upon demand and, if unpaid, shall bear interest per annum at the Involuntary
Rate from the date of demand set forth in the Note and such amounts, with interest, shall
be added to the indebtedness secured hereby and shall be secured by this Mortgage.

SECTION 1.19. Mortgagor covenants and agrees that no liability shall be
asserted or enforced against Mortgagee, its officers, directors, employees or agents in
connection with the Loan, the Note or this Mortgage and Mortgagor shall indemnify and
save Mortgagee harmless from and against any and all liabilities, obligations, losses,
damages (including indirect, special, consequential and punitive damages), claims, costs,
lost profits and expenses (including reasonable attorneys’ fees and court costs)
(collectively, “Claims”) of whatever kind or nature which may be imposed on, incurred
by or asserted against Mortgagee, its officers, directors, employees or agents at any time
by any third party which relate to or arise from, inter alia: (a) any suit or proceeding
(including probate and bankruptcy proceedings), or the threat thereof, in or to which
Mortgagee its officers, directors, employees or agents ma