Preview
FILED: ROCKLAND COUNTY CLERK 11/02/2021 04:55 PM INDEX NO. 034885/2021
NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 11/02/2021
Exhibit F
(Immediately Follows This Page)
FILED: KINGS
ROCKLAND COUNTY COUNTY CLERK CLERK 08/10/2021
11/02/2021 03:55 04:55 PM PM INDEX NO. 513756/2021
034885/2021
NYSCEF DOC. NO. 25
67 RECEIVED NYSCEF: 08/10/2021
11/02/2021
FORBEARANCE AGREEMENT
THIS FORBEARANCE AGREEMENT (this "Agreement") ismade as of August 28, 2020 (the
"Effective Date") by and among:
1580 NOSTRAND AVE LLC, a Delaware limited liabilitycompany having an office at 520
Madison Avenue, Suite 3501, New York, New York 10022 (together with itssuccessors and assigns, the
"Lender");
35*
HELLO NOSTRAND LLC, a New York limited liabilitycompany, having an address at 33
6*
Street, Floor, Suite B-613, Brooklyn, New York 11232 (the "Borrower"); and
ELI KARP, an individual, residing at 17 Tokay Lane, Monsey, New York 10952 (the
"Guarantor").
THE LOAN:
WHEREAS, pursuant to that certain Amended, Restated and Consolidated Senior Loan
Promissory Note dated as of December 6, 2017 (the "Senior Note"), executed by Borrower in favor of
Prophet Mortgage Opportunities LP, a Texas limited partnership (the "Original Lender"), Original Lender
loaned to Borrower the aggregate principal sum of $17,730,000.00 (the "Senior Loan");
WHEREAS, the Senior Note (i) is secured by that certain Consolidation, Extension and
Modification of Senior Loan Mortgage, Assignment of Leases and Rents, Agreement and
Security
Fixture Filing dated December 6, 2017 (the "Senior Loan Mortgage"), in the amount of $17,730,000.00,
encumbering that certain property located at and commonly known as 1580 Nostrand Avenue, Brooklyn,
New York 11226 (the "Mortgaged Property"), and (ii) is evidenced by that certain Senior Loan
Agreement dated as of December 6, 2017 by and between Borrower and Original Lender (the "Senior
Loan Agreement"; and together with the Senior Note, the Senior Loan Mortgage, and any and all other
documents executed by Borrower or any other party in favor of Original Lender and/or Lender as security
for the repayment of the Senior Note, collectively, the "Senior Loan Documents");
WHEREAS, pursuant to thatcertain Building Loan Promissory Note dated as of December 6, 2017
(the "Building Note"), executed by Borrower in favor of Original Lender, Original Lender loaned to
Borrower the aggregate principal sum of up to $39,770,000.00 (the "Building Loan");
WHEREAS, the Building Note (i)is secured by that certain Building Loan Mortgage, Assignment
Of Leases And Rents, Security Agreement And Fixture Filing dated as of December 6, 2017 (the "Bunding
Loan Mortgage"), in the amount of up to $39,770,000.00, encumbering the Mortgaged Property, and (ii)
is evidenced by that certain Building Loan Agreement dated as of December 6, 2017 by and between
Borrower and Original Lender (the "Building Loan Agreement"; and together with the Building Note, the
Building Loan Mortgage and any and all other documents executed by Borrower or any other party in favor
of Original Lender and/or Lender as security for the repaymcñt of the Building Note, collectively, the
"Building Loan Documents");
WHEREAS, pursuant to that Project Loan Promissery Note dated as of December 6, 2017 (the
"Project Note", and together with the Senior Note and the Building Note, collectively, the "Existing
Note"), executed by Borrower in favor of Original Lender, Original Lender loaned to Borrower the
FILED: KINGS
ROCKLAND COUNTY COUNTY CLERK CLERK 08/10/2021
11/02/2021 03:55 04:55 PM PM INDEX NO. 513756/2021
034885/2021
NYSCEF DOC. NO. 25
67 RECEIVED NYSCEF: 08/10/2021
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aggregate principal sum of $5,500,000.00 (the "Project Loan"; and together with the Senior Loan and the
Building Loan, collectively, the "Existing Loan");
WHEREAS, the Project Note (i)is secured by that certain Project Loan Mortgage, Assignment Of
Leases And Rents, Security Agreement And Fixture Filing dated as of December 6, 2017 (the "Project
Loan Mortgage"; and together with the Senior Loan Mortgage and the Building Loan Mortgage,
colledively, the "Existing Mortgage"), in the amount of $5,500,000.00, encumbering the Mortgaged
Property, and (ii)is evidenced by that certain Project Loan Agreement dated as of December 6, 2017 by
and between Borrower and Original Lender (the "Project Loan Agreement"; and together with the Senior
Loan Agreement and the Building Loan Agreement, collectively, the "Existing Loan Agreement") (the
Project Loan Agreement, together with the Project Note, the Project Loan Mortgage and any and all other
documents executed by Borrower or any other party in favor of Original Lender and/or Lender as security
for the repayment of the Project Note, collectively, the "Project Loan Documents"; and together with the
Senior Loan Documents and theBuilding Loan Documents, collectively, the "Existing Loan Docn-h);
the Loan isfurther secured other that certain Non-
WHEREAS, Existing by, among documents, (i)
Recourse Carve-Out Guaranty, dated December 6, 2017, by the Guarantor in favor of Original Lender (the
"Canditicad Guaranty"), (ii)that certain Completion and Cost Over-Run Guaranty, dated December 6,
2017, by the Guarantor in favor of Original Lender (the "Completion Guaranty") and (iii)that certain
Environmental Indemnity Agreement, dated as of December 6, 2017, by the Guarantor and the Bouv wa
in favor of Original Lender (the "Environmental Guaranty"; together with the Conditional Guaranty and
Guaranty"
the Completion Guaranty, each an "Existing and collectively, the "Existing Guaranties"),
which Existing Guaranties are included in the defined term "Existing Loan Documents";
WHEREAS, on or about June 7, 2019, (i)Original Lender assigned allof itsrights, titleand interest
in the Senior Note, the Building Note, and the Project Note to Lender, and (ii)Original Lender assigned all
of its rights, title and interest in the Existing Mortgage, the Existing Loan Agreement, the Existing
Guaranties, and the other Exhting Loan Documents to Lender, upon which time Original Lender was
released from its obligations under the Existing Loan and Lender became the lender under the Existing
Loan; and
WHEREAS, on or about June 29, 2020, Lender and Borrower entered into a pre-negotiation letter
(the "PNL") as a condition precedent to discussing possible modifications to the Existing Loan, which PNL
remains infull force and effect as of the date hereof.
DEFAULTS
WHEREAS, pursuant to Section 2.3 of the Existing Loan Agreement and Section 2 of the Existing
Note, on each Payment Date (as defined in the Existing Loan Documents) Borrower is required to pay to
Lender interest on the Principal Indebtedness (as defined in the Existing Loan Documents) accrued and
accruing through the lastday of the Interest Accrual Period (as defined in the Existing Loan Documents);
WHEREAS, pursuant to Section 9 of the Existing Mortgage, Borrower is required to pay the real
estate taxes prior to such real estate taxes becoming delinquent or prior to the date any penalty for
nonpayment attaches thereto; . .
Default"
WHEREAS, Borrower has committed multiple "Events of under the terms of the Existing
Loan Documents (as such term is defined in the Existing Loan Documsts) by (i)failing to pay to Lender
the monthly payments ofinterest on the Principal Indebtedness (as defined in the Existing Loan Documents)
. accrued and accruing through the last day of the Interest Accrual Period (as defined in the Existing Loan .
Documents) that were due and payable on the Payment Dates (as defined in the Existing Loan Documents)
2
FILED: KINGS
ROCKLAND COUNTY COUNTY CLERK CLERK 08/10/2021
11/02/2021 03:55 04:55 PM PM INDEX NO. 513756/2021
034885/2021
NYSCEF DOC. NO. 25
67 RECEIVED NYSCEF: 08/10/2021
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occurring from Noverabcr 1, 2019 through and including August 1, 2020, and (ii)failing to pay the real
estate taxes on or prior to July 1, 2019 (the "Existing Default Date"), January 1, 2020, and July 1, 2020
(collectively, the "Existing Defaults"). For the avoidance of doubt, each missed monthly payment of
Default"
interest and each missed real estate tax payracnt constituted a separate "Event of under the Existing
Loan Documents; and
WHEREAS, conditioned upon Borrower's and Guarantor's timely performance and full
compliance with this Agreement, the Lender iswilling to agree to forbear from enforcing its rights under
the Existing Loan Documents until the earlier of (i) March 13 2021, as the same may be extended in
accordance with the terms and conditions of thisAgreement, or (ii)a Termination Event (as deñued below),
at which time the entire Indebt-iness (as defined in the Existing Loan Documents) and all of the Existing
Loan Obligations (as defined below) shall become due and payable, TIME BEING OF THE ESSENCE
(the "Termin afian (the period from the Effective Date to the Termination Date isreferred to herein
Date")
as the "Forbearance Period"), on the terms, covenants and conditions set forth herein below.
NOW THEREFORE, for the mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, it ishereby agreed by and
among the Borrower, the Guarantor, and the Lender, as follows:
1. The parties to this Agreement acknowledge and agree that the above-referenced recitals
are true, correct, and complete and are hereby incorporated by reference into this Agreement.
2. The Borrower and the Guarantor hereby acknowledge and agree that,in accordance with
the terms and conditions of the Existing Loan Decüracnts, and notwithstanding anything to the contrary set
forth in the Existing Loan Documents, Borrower is liableto the Lender asfollows as of the Effective Date
(unless otherwise specified below):
Unpaid - Senior Loan*
Principal Balance $17,730,000.00
Unpaid Principal Balance - Loan** $17,849,615.29
Building
Principal Balance - Project Loan***
Unpaid $5,500,000.00 _
Insurance $250,000.00
Fee**** $52,000.00
Exit
Real Estate Taxes***** $993,652.61
Waived Default Interest - Effective Date)****** $3,897,997.15
Conditionally (11/1/19
Interest Held in Suspense by Lender (Senior Loan) ($129,312.99)
TOTAL $46,143,952.06 __
* The Senior Loan is funded.
fully
** The draw period under the Loan expired priorto theEffective Date.
Building
*** The ProjectLoan is funded.
fully
**** The ExitFee shall accrue interest
from and afterthe Effective Date at theInterestRate set forthin Section6(viii)
below (subject to theclaw-back provisions setforth in Section 6(xviii)below).
***** The amount set forthfor Real Estate Taxes was obtained from KV (as defined and reflectsinterest
below)
through September 4, 2020.
****** See Section below for details. . . . . . .
6(vii)
Hereinafter, allamounts due as setforth above in this Section 2 above shall be referred to collectively as
Obligatians"
the "Existing Loan and are further described in Section 6 below.
3
FILED: KINGS
ROCKLAND COUNTY COUNTY CLERK CLERK 08/10/2021
11/02/2021 03:55 04:55 PM PM INDEX NO. 513756/2021
034885/2021
NYSCEF DOC. NO. 25
67 RECEIVED NYSCEF: 08/10/2021
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In connection with this Agreement, upon the terms and conMtions set forth herein, Lender has agreed to
make a new Second Senior Loan and Lender's affiliatehas agreed to make a new Mezzanine Loan (as such
tenns are defined below). The following tables appear for convenience only.
MEZZANINE LOA
Effective Date Advance for Eligible Construction Costs* $2,000,000.00
|
*Following the Effective Date advance (to the extent made in fullpursuant to the terms of the Mezzanine Loan
Documents), there willbe up to $1,000,000.00 re"N and eligibleto be drawn under the Mezzanine Loan.
____
SECOND SENIOR LOAN
Forbearance Fee [ $252,000.00
Interest - Effective Date)* $4,363,328.58
Capitalized Accrued Default (11/1/19
Closing Costs - $90,735.57
Interest Reserve Debits on the Effective Date $65,760.50
- Effective Date)**
Accrued Nominal Interest (10/1/19 | $354,597.56
* See Section below for details.
6(vii)
** Senior Loan Loan Project Loan see Section below
($156,980.44); Building ($148,920.99); ($48,696.13); 6(iv)(e)
for details.
3. Forbearance and Reinstatement. In consideration of the Borrower's and Guarantor's
performance in accordance with the terms of thisAgreement, provided thatno Event of Default arises under
the Existing Loan Docürñents after the Effective Date, the Lender shall forbear from exercising itsrights
and rernedies under the Existing Loan Documents with respect to the Existing Default until the earlier
occurrence of either (a) a Termination Event (as defined below), or (b) the Termination Date.
Notwithstanding the foregoing, nothing contained in this Agreement shallconstitute a waiver by the Lender
of any default or event of default, whether now existing or hereafter arising (including, without limitation,
the Existing Default). This Agreement shall only constitute an agreement by the Lender to forbear from
enforcing itsrights and remedies under the Existing Loan Documents as a result of the Existing Default
upon the terms and conditions set forth herein. Notwithstandmg anything to the contrary contained herein,
this Agreement and the forbearance granted by Lender for the benefit of Borrower shall not preclude Lender
from making protective advances in accordance with the terms and conditions of the Existing Loan
Documents or the Loan Documents (as defined below), if so warrañted, and shall not preclude Lender or
Mezzanine Lender (as defined below) from exercising all of their respective rights and remedies under the
Second Senior Loan Documents or the Mezzanine Loan Documents (as each is defned below).
4. Waiver of Claims and Release. The Borrower and Guarantor hereby acknowledge and
agree that they have no offsets,defenses, claims, or counterclaims against the Lender, itspredecessors in
interest, or any of their respective parents, subsidiaries, affiliates,members, managers, partners, agents,
officers, principals, directors, shareholders, employees, attorneys, representatives, servicers, participants,
predecessors, successors, assigns, or any person holding an interest in the Existing Loan (collectively, the
"Lender Parties") with respect to the Existing Loan, the Existing Loan Documents, or the Existing Loan
Obligations, including, without limitation, the Existing Default, or otherwise, and that ifthe Borrower or
the Guarantor now have, or ever did have, any offsets, defenses, claims, or counterclaims whatsoever
against the Lender Parties, whether known or unknown, foreseen or unforeseen (regardless of by whom
raised), at law or in equity (or mixed), from the beginning of the world through the Effective Date and
through the time of execution of this Agreement, all of them are hereby expressly WAIVED, and the
Borrower and Guarantor each hereby remises, RELEASES, acquits, and discharges the Lender Parties
from any liabilitytherefor. Itis understood and agreed that thisparagraph shall not be deemed or construed
as an admission by Lender of liabilityof any nature whatsoever arising from or related to the subject of this
paragraph or otherwise.
4
FILED: KINGS
ROCKLAND COUNTY COUNTY CLERK CLERK 08/10/2021
11/02/2021 03:55 04:55 PM PM INDEX NO. 513756/2021
034885/2021
NYSCEF DOC. NO. 25
67 RECEIVED NYSCEF: 08/10/2021
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5. Intentionally Omitted.
6. Forbearance Terms. Provided the Borrower and the Guarantor comply with the terms and
conditions of thisAgreement, and provided a Termination Event does not occur, the following provisions
shall apply to the Existing Loan and the Existing Loan Documents during the Forbearance Period:
(i) No Advances Required. Notwithstanding anything to the contrary set forthin the Existing
Loan Documents, Lender is under no obligation to provide any advances under the Existing
Loan as of the Effective Date.
(ii) New Mezzanine Loan. 1580 Nostrand Mezz LLC, a Delaware limited liabilitycompany
(the "Mezzanine Lender") has agreed to make a loan to the sole member of Borrower,
Hello Living Developer Nostrand LLC, a New York limited liability company (the
"Mezzanine Borrower"), in the original principal amount of up to Three Million and
00/100 Dollars ($3,000,000.00) (the "Mezzanine Loan"), which Mezzanine Loan shall be
evidenced by that certain Mezzanine Loan Agreement (the "Mezzanine Loan
Agreement"
and, together with the Mortgage Loan Agreement, the "Loan Agracmêñt")
and that certain Mezzanine Promissory Note (the "Mezzanine Loan Note") secured by,
among other things, that certain Ownership Interests Pledge and Security Agreement (the
"Pledge"), and guaranteed by Guarantor pursuant to that certain Conditional Guaranty
dated as of the Effective Date, by incorporation of the Completion Guaranty pursüâñt to
Section 21(e) below, and by thatcertain Environmental Indemnity Agreement dated as of
the Effective Date (collectively, the "Mezzanine Loan Guaranties"); the Mezzanine Loan
Agreement, the Mezzanine Loan Note, the Pledge, and the Mezzanine Loan Guaranties,
together with any and allother documents executed by Mezzanine Borrower or any other
party in favor of Mezzanine Lender as security for the repayment of the Mezzanine Loan,
Documents."
are referred to herein as the "Mezzanine Loan The proceeds of the
Mezzanine Loan shall be made available to Mezzanine Borrower according to the terms
and conditions set forth in the Mezzanine Loan Agreement. For the avoidance of doubt,
upon the occurrence of a Termination Event, or upon the occurrence of an Event of Default
under the Existing Loan Documents (other than the Existing Default), Mezzanine Lender
shall be under no obligation to provide any further advances under the Mezzanine Loan.
Advances under the Mezzanine Loan shall be made in accordance with the terms and
conditions of the Mezzanine Loan Documents. The information concerning the Mezzanine
Loan set forth in Section 2 above is for convenience only and shall not be construed as a
commitment by Lender (or Mezzanine Lender) to make any advance thereunder.
(iii) Senior Loan Protective Advances.
a. On the Effective Date, Lender shall make a protective advance from the
Senior Loan in the amount of $993,652.61, which shall be applied to pay the real estate
taxes due and payable with respect to the Mortgaged Property as of July 1,2020. This is
Taxes"
the line item for "Real Estate in Section 2 above. Such amount advanced by
Lender to pay the Real Estate Taxes shall accrue interestfrom and after the Effective Date
. . at the Interest.Rate set.forth.inSection 6(viii) below (subject to the claw-back provisions
set forth in Section 6(xviii) below).
b. On the Effective Date, Lender shall make a protective advance from the
Senior Loan in the amount of $250,000.00, which shall be applied to pay for eligible
"Insurance"
insurance costs for the Mortgaged Property. This is the line item for in
Section 2 above. Such amount advanced by Lender to pay the Insurance and shall accrae
5
FILED: KINGS
ROCKLAND COUNTY COUNTY CLERK CLERK 08/10/2021
11/02/2021 03:55 04:55 PM PM INDEX NO. 513756/2021
034885/2021
NYSCEF DOC. NO. 25
67 RECEIVED NYSCEF: 08/10/2021
11/02/2021
interest from and afterthe Effective Date at the Interest Rate set forth in Section 6(viii)
below (subject to the claw-back provisions set forth in Section 6(xviii) below).
(iv) Second Senior Loan. Lender has agreed to make a loan to Borrower in the original
principal amount of up to Eight Million Three Hundred Thousand and 00/100 Dollars
Loan"
($8,300,000.00) (the "Second Senior and, together with the Existing Loan and the
Mezzanine Loan, collectively, the "Loan"), which Second Senior Loan shall be evidenced
Note"
by that certain Mortgage Note (the "Second Senior Loan and, together with the
Existing Note and the Mezzanine Note, collectively, the "Note"), secured by, among other
things, that certain Mortgage and Security Agreement (the "Second Senior Loan
Mortgage"
and, together with the Existing Mortgage, collectively, the "Mortgage"), and
guaranteed by Guarantor pursuant to that certain Conditional Guaranty dated as of the
Effective Date, by incorporation of the Completion Guarantj/ pursuant to Section 21(e)
below, and by that certain Environmental Tndemnity Agreement dated as of the Effective
Guaranties"
Date (the "Second Senior Loan and, together with the Existing Loan
Guaranties and the Mezzanine Loan Guaranties, collectively, the "Guaranties"); the
Second Senior Loan Note, the Second Senior Loan Mortgage, and theSecond Senior Loan
Guaranties, together with any and all other documents executed by Borrower or any other
party in favor of Lender as security for the repayment of the Second Senior Loan are
Documents"
referred to herein as the "Second Senior Loan and, together with the Existing
Loan Documents and the Mezzanine Loan Documents, collectively, the "Loan
Documents."
The proceeds of the Second Senior Loan shall be made available to
Borrower according to the terms and conditions set forth in the Second Senior Loan
Documents. For the avoidance of doubt, upon the occurrence of a Termination Event, or
upon the occurrence of an Event of Default under the Existing Loan Documents (other than
the Existing Default), Lender shall be under no obligation to provide any further advances
under the Second Senior Loan. Pursuant to the Second Senior Loan Documents, and in
accordance with the terms and conditions hereof and thereof, Borrower may request the
following advances.
a. On the Effective Date, Lender shall add to the balance of the Second
Senior Loan the sum of $252,000.00 to pay the forbearance fee on account of the Existing
Loan, which is due and payable as of the Effective Date. This is the line item for the
Fee"
"Forbearance in Section 2 above.
b. On the Effective Date, Lender shall add to the balance of the Second
Senior Loan the sum of $4,363,328.58 to pay the Capitalized Accrued Default Interest (as
defined below and set forth in Section 2 above) due to Lender, which is due and payable
as of the Effective Date.
c. On the Effective Date, Lender shall add to the balance of the Second
Senior Loan the sum of $90,735.57 (the "Closing Costs") to pay for costs and expenses
incurred in connection with the preparation, negatiatión and execution of thisAgreerñerst,
the Second Senior Loan Documents, the Mezzanine Loan Documents, and the
consummation of the activitiesand transactions described herein and therein. This is the
Costs"
line item for "Closing in Section 2 above and includes legal fees and costs in the
amount of $18,500.00 due and owing to Kriss & Feuerstein LLP.
d. On the Effective Date, $3,302,890.78 shall be reserved (the "Interest
Reserve") for the payrñent of the monthly payments of interest due and owing under the
Existing Loan Documents, the Second Building Loan Documents, and the Mezzanine Loan
6
FILED: KINGS
ROCKLAND COUNTY COUNTY CLERK CLERK 08/10/2021
11/02/2021 03:55 04:55 PM PM INDEX NO. 513756/2021
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NYSCEF DOC. NO. 25
67 RECEIVED NYSCEF: 08/10/2021
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Documents for the initialsix (6) months of the Forbearance Period (and the corresponding
time periods under the Second Senior Loan and the Mezzanine Loan); such reserved funds
shall not accrue interestuntil such funds are disbursed by Lender. On the Effective Date
(with respect to the prepayments of interest required pursuant to the Second Senior Loan
Note and the Mezzanine Loan Note, which are shown in Section 2 above as the "Interest
Reserve Debits on the Effective Date") and, provided no Termination Event has occurred,
thereafter on each date that a payment is due under a Note, Lender shall advance from the
Second Senior Loan amounts sufficientto fully pay the monthly payments of interest then
due under the Loan. After the Interest Reserve isexhausted, or upon the occurrence of a
Termination Event, each of Borrower and Mezzanine Borrower shall be responsible for
makiñg allpayments that become due thereafter from their own funds in accordance with
the terms and conditions of the Loan Documents.
e. On the Effective Date, Lender shall add to the balance of the Second
Senior Loan the sum of $354,597.56 (the "Accrued Nominal Interest") to pay foraccrued
nominal interest on account of the Existing Loan. This is the line item for "Accrued
Interest"
Nominal in Section 2 above.
Mechanics'
(v) Cutstañdine Liens. Borrower acknowledges and agrees that as ofthe Effective
mechanics'
Date there are certain known outstanding liens recorded against and
mech5mles'
encumbering the Mortgaged Property (together with any other or
materialmen's liens recorded against or encumbering the Mortgaged Property, the
Mechanics'
"Outstanding Liens"). Borrower covenants and agrees to fullyresolve such
Mechanics'
Outstanding Liens within thirty (30) days following the Effective Date, and to
deliver to Lender and Kensington Vanguard National Land Services ("KV") such
documents and information that Lender and KV require to issue a date-
may reasonably
down to Lender's titleinsurance policy for the Mortgaged Property showing that titleto
Mechanics'
the Mortgaged Property is free from such Outstanding Liens and otherwise in
the condition required by the Loan Documents and thisAgreement. In the event Borrower
Mechanics'
fails to fullypay such Outstanding Liens and otherwise fullysatisfy the terms
and conditions of thisparagraph, the same shallconstitute an immediate Termination Event
under this Agreement, Lender shall be entitled to make a protective advance according to
the terms of the Loan Documents, and shall be entitled to charge interest on such advance
at the Default Rate of twenty-four percent (24%) per annum.
(vi) Subdivision: Sale ofSubdivided Portion. Provided no Event of Default has occurred under
the Loan Documents, and provided no Termination Event has occurred, Borrower shall be
permitted to (a) subdivide a portion of the Mortgaged Property as depicted on Exhibit A
attached hereto and incorporated herein by this reference (the "Subdivided Portion")
according to a plan of subdivision that is in full compliance with applicable law and
approved in writing by Lender in advance of any submissions by Borrower to any
governmental authority, which Subdivided Portion shall constitute a separate tax lot thatis
independently saleable, and (b) enter into a bona fide contract of sale with an unaffiliated
third party, which contract shall (i)include absolutely no closing contingencies, (ii)provide
for a closing date no later than sixty (60) days following the effective date.of such contract, .
and (iii)establish a purchase price sufficient to allow Borrower to pay all closing costs
associated with the sale and transfer of the Subdivided Portion and thereafter remit to
Lender no less than Thirteen Million and 00/100 Dollars ($13,000,000.00) (the "Minimum
Release Price"). No less than twenty (20) days prior to the scheduled closing date for the
sale of the Subdivided Portion, Borrower shall submit to Lender a pro forma closing
statement and draft copies of all documents expected to be executed at such closing
7
FILED: KINGS
ROCKLAND COUNTY COUNTY CLERK CLERK 08/10/2021
11/02/2021 03:55 04:55 PM PM INDEX NO. 513756/2021
034885/2021
NYSCEF DOC. NO. 25
67 RECEIVED NYSCEF: 08/10/2021
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(including, without limitation, any documents requiring Lender's signature).
Contemporaneously with the closing ofthe saleof the Subdivided Portion, and thetransfer
of the same to the contract purchaser, which shall be consummated only following the
written approval of the Lender, Borrower shall (x) remit to Lender the greater of the
Minimum Release Price or the net proceeds of the sale afterBorrower's payment of closing
costs therefor (the "Minimum Release Remittance"), which closing costs shall not exceed
fivepercent (5%) of the gross contract salesprice, and Lender shallapply such remittance
to pay down the unpaid principal balance of the Loan in such order and prio
Preview
FILED: ROCKLAND COUNTY CLERK 11/02/2021 04:55 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 11/02/2021 Exhibit F (Immediately Follows This Page) FILED: KINGS ROCKLAND COUNTY COUNTY CLERK CLERK 08/10/2021 11/02/2021 03:55 04:55 PM PM INDEX NO. 513756/2021 034885/2021 NYSCEF DOC. NO. 25 67 RECEIVED NYSCEF: 08/10/2021 11/02/2021 FORBEARANCE AGREEMENT THIS FORBEARANCE AGREEMENT (this "Agreement") ismade as of August 28, 2020 (the "Effective Date") by and among: 1580 NOSTRAND AVE LLC, a Delaware limited liabilitycompany having an office at 520 Madison Avenue, Suite 3501, New York, New York 10022 (together with itssuccessors and assigns, the "Lender"); 35* HELLO NOSTRAND LLC, a New York limited liabilitycompany, having an address at 33 6* Street, Floor, Suite B-613, Brooklyn, New York 11232 (the "Borrower"); and ELI KARP, an individual, residing at 17 Tokay Lane, Monsey, New York 10952 (the "Guarantor"). THE LOAN: WHEREAS, pursuant to that certain Amended, Restated and Consolidated Senior Loan Promissory Note dated as of December 6, 2017 (the "Senior Note"), executed by Borrower in favor of Prophet Mortgage Opportunities LP, a Texas limited partnership (the "Original Lender"), Original Lender loaned to Borrower the aggregate principal sum of $17,730,000.00 (the "Senior Loan"); WHEREAS, the Senior Note (i) is secured by that certain Consolidation, Extension and Modification of Senior Loan Mortgage, Assignment of Leases and Rents, Agreement and Security Fixture Filing dated December 6, 2017 (the "Senior Loan Mortgage"), in the amount of $17,730,000.00, encumbering that certain property located at and commonly known as 1580 Nostrand Avenue, Brooklyn, New York 11226 (the "Mortgaged Property"), and (ii) is evidenced by that certain Senior Loan Agreement dated as of December 6, 2017 by and between Borrower and Original Lender (the "Senior Loan Agreement"; and together with the Senior Note, the Senior Loan Mortgage, and any and all other documents executed by Borrower or any other party in favor of Original Lender and/or Lender as security for the repayment of the Senior Note, collectively, the "Senior Loan Documents"); WHEREAS, pursuant to thatcertain Building Loan Promissory Note dated as of December 6, 2017 (the "Building Note"), executed by Borrower in favor of Original Lender, Original Lender loaned to Borrower the aggregate principal sum of up to $39,770,000.00 (the "Building Loan"); WHEREAS, the Building Note (i)is secured by that certain Building Loan Mortgage, Assignment Of Leases And Rents, Security Agreement And Fixture Filing dated as of December 6, 2017 (the "Bunding Loan Mortgage"), in the amount of up to $39,770,000.00, encumbering the Mortgaged Property, and (ii) is evidenced by that certain Building Loan Agreement dated as of December 6, 2017 by and between Borrower and Original Lender (the "Building Loan Agreement"; and together with the Building Note, the Building Loan Mortgage and any and all other documents executed by Borrower or any other party in favor of Original Lender and/or Lender as security for the repaymcñt of the Building Note, collectively, the "Building Loan Documents"); WHEREAS, pursuant to that Project Loan Promissery Note dated as of December 6, 2017 (the "Project Note", and together with the Senior Note and the Building Note, collectively, the "Existing Note"), executed by Borrower in favor of Original Lender, Original Lender loaned to Borrower the FILED: KINGS ROCKLAND COUNTY COUNTY CLERK CLERK 08/10/2021 11/02/2021 03:55 04:55 PM PM INDEX NO. 513756/2021 034885/2021 NYSCEF DOC. NO. 25 67 RECEIVED NYSCEF: 08/10/2021 11/02/2021 aggregate principal sum of $5,500,000.00 (the "Project Loan"; and together with the Senior Loan and the Building Loan, collectively, the "Existing Loan"); WHEREAS, the Project Note (i)is secured by that certain Project Loan Mortgage, Assignment Of Leases And Rents, Security Agreement And Fixture Filing dated as of December 6, 2017 (the "Project Loan Mortgage"; and together with the Senior Loan Mortgage and the Building Loan Mortgage, colledively, the "Existing Mortgage"), in the amount of $5,500,000.00, encumbering the Mortgaged Property, and (ii)is evidenced by that certain Project Loan Agreement dated as of December 6, 2017 by and between Borrower and Original Lender (the "Project Loan Agreement"; and together with the Senior Loan Agreement and the Building Loan Agreement, collectively, the "Existing Loan Agreement") (the Project Loan Agreement, together with the Project Note, the Project Loan Mortgage and any and all other documents executed by Borrower or any other party in favor of Original Lender and/or Lender as security for the repayment of the Project Note, collectively, the "Project Loan Documents"; and together with the Senior Loan Documents and theBuilding Loan Documents, collectively, the "Existing Loan Docn-h); the Loan isfurther secured other that certain Non- WHEREAS, Existing by, among documents, (i) Recourse Carve-Out Guaranty, dated December 6, 2017, by the Guarantor in favor of Original Lender (the "Canditicad Guaranty"), (ii)that certain Completion and Cost Over-Run Guaranty, dated December 6, 2017, by the Guarantor in favor of Original Lender (the "Completion Guaranty") and (iii)that certain Environmental Indemnity Agreement, dated as of December 6, 2017, by the Guarantor and the Bouv wa in favor of Original Lender (the "Environmental Guaranty"; together with the Conditional Guaranty and Guaranty" the Completion Guaranty, each an "Existing and collectively, the "Existing Guaranties"), which Existing Guaranties are included in the defined term "Existing Loan Documents"; WHEREAS, on or about June 7, 2019, (i)Original Lender assigned allof itsrights, titleand interest in the Senior Note, the Building Note, and the Project Note to Lender, and (ii)Original Lender assigned all of its rights, title and interest in the Existing Mortgage, the Existing Loan Agreement, the Existing Guaranties, and the other Exhting Loan Documents to Lender, upon which time Original Lender was released from its obligations under the Existing Loan and Lender became the lender under the Existing Loan; and WHEREAS, on or about June 29, 2020, Lender and Borrower entered into a pre-negotiation letter (the "PNL") as a condition precedent to discussing possible modifications to the Existing Loan, which PNL remains infull force and effect as of the date hereof. DEFAULTS WHEREAS, pursuant to Section 2.3 of the Existing Loan Agreement and Section 2 of the Existing Note, on each Payment Date (as defined in the Existing Loan Documents) Borrower is required to pay to Lender interest on the Principal Indebtedness (as defined in the Existing Loan Documents) accrued and accruing through the lastday of the Interest Accrual Period (as defined in the Existing Loan Documents); WHEREAS, pursuant to Section 9 of the Existing Mortgage, Borrower is required to pay the real estate taxes prior to such real estate taxes becoming delinquent or prior to the date any penalty for nonpayment attaches thereto; . . Default" WHEREAS, Borrower has committed multiple "Events of under the terms of the Existing Loan Documents (as such term is defined in the Existing Loan Documsts) by (i)failing to pay to Lender the monthly payments ofinterest on the Principal Indebtedness (as defined in the Existing Loan Documents) . accrued and accruing through the last day of the Interest Accrual Period (as defined in the Existing Loan . Documents) that were due and payable on the Payment Dates (as defined in the Existing Loan Documents) 2 FILED: KINGS ROCKLAND COUNTY COUNTY CLERK CLERK 08/10/2021 11/02/2021 03:55 04:55 PM PM INDEX NO. 513756/2021 034885/2021 NYSCEF DOC. NO. 25 67 RECEIVED NYSCEF: 08/10/2021 11/02/2021 occurring from Noverabcr 1, 2019 through and including August 1, 2020, and (ii)failing to pay the real estate taxes on or prior to July 1, 2019 (the "Existing Default Date"), January 1, 2020, and July 1, 2020 (collectively, the "Existing Defaults"). For the avoidance of doubt, each missed monthly payment of Default" interest and each missed real estate tax payracnt constituted a separate "Event of under the Existing Loan Documents; and WHEREAS, conditioned upon Borrower's and Guarantor's timely performance and full compliance with this Agreement, the Lender iswilling to agree to forbear from enforcing its rights under the Existing Loan Documents until the earlier of (i) March 13 2021, as the same may be extended in accordance with the terms and conditions of thisAgreement, or (ii)a Termination Event (as deñued below), at which time the entire Indebt-iness (as defined in the Existing Loan Documents) and all of the Existing Loan Obligations (as defined below) shall become due and payable, TIME BEING OF THE ESSENCE (the "Termin afian (the period from the Effective Date to the Termination Date isreferred to herein Date") as the "Forbearance Period"), on the terms, covenants and conditions set forth herein below. NOW THEREFORE, for the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, it ishereby agreed by and among the Borrower, the Guarantor, and the Lender, as follows: 1. The parties to this Agreement acknowledge and agree that the above-referenced recitals are true, correct, and complete and are hereby incorporated by reference into this Agreement. 2. The Borrower and the Guarantor hereby acknowledge and agree that,in accordance with the terms and conditions of the Existing Loan Decüracnts, and notwithstanding anything to the contrary set forth in the Existing Loan Documents, Borrower is liableto the Lender asfollows as of the Effective Date (unless otherwise specified below): Unpaid - Senior Loan* Principal Balance $17,730,000.00 Unpaid Principal Balance - Loan** $17,849,615.29 Building Principal Balance - Project Loan*** Unpaid $5,500,000.00 _ Insurance $250,000.00 Fee**** $52,000.00 Exit Real Estate Taxes***** $993,652.61 Waived Default Interest - Effective Date)****** $3,897,997.15 Conditionally (11/1/19 Interest Held in Suspense by Lender (Senior Loan) ($129,312.99) TOTAL $46,143,952.06 __ * The Senior Loan is funded. fully ** The draw period under the Loan expired priorto theEffective Date. Building *** The ProjectLoan is funded. fully **** The ExitFee shall accrue interest from and afterthe Effective Date at theInterestRate set forthin Section6(viii) below (subject to theclaw-back provisions setforth in Section 6(xviii)below). ***** The amount set forthfor Real Estate Taxes was obtained from KV (as defined and reflectsinterest below) through September 4, 2020. ****** See Section below for details. . . . . . . 6(vii) Hereinafter, allamounts due as setforth above in this Section 2 above shall be referred to collectively as Obligatians" the "Existing Loan and are further described in Section 6 below. 3 FILED: KINGS ROCKLAND COUNTY COUNTY CLERK CLERK 08/10/2021 11/02/2021 03:55 04:55 PM PM INDEX NO. 513756/2021 034885/2021 NYSCEF DOC. NO. 25 67 RECEIVED NYSCEF: 08/10/2021 11/02/2021 In connection with this Agreement, upon the terms and conMtions set forth herein, Lender has agreed to make a new Second Senior Loan and Lender's affiliatehas agreed to make a new Mezzanine Loan (as such tenns are defined below). The following tables appear for convenience only. MEZZANINE LOA Effective Date Advance for Eligible Construction Costs* $2,000,000.00 | *Following the Effective Date advance (to the extent made in fullpursuant to the terms of the Mezzanine Loan Documents), there willbe up to $1,000,000.00 re"N and eligibleto be drawn under the Mezzanine Loan. ____ SECOND SENIOR LOAN Forbearance Fee [ $252,000.00 Interest - Effective Date)* $4,363,328.58 Capitalized Accrued Default (11/1/19 Closing Costs - $90,735.57 Interest Reserve Debits on the Effective Date $65,760.50 - Effective Date)** Accrued Nominal Interest (10/1/19 | $354,597.56 * See Section below for details. 6(vii) ** Senior Loan Loan Project Loan see Section below ($156,980.44); Building ($148,920.99); ($48,696.13); 6(iv)(e) for details. 3. Forbearance and Reinstatement. In consideration of the Borrower's and Guarantor's performance in accordance with the terms of thisAgreement, provided thatno Event of Default arises under the Existing Loan Docürñents after the Effective Date, the Lender shall forbear from exercising itsrights and rernedies under the Existing Loan Documents with respect to the Existing Default until the earlier occurrence of either (a) a Termination Event (as defined below), or (b) the Termination Date. Notwithstanding the foregoing, nothing contained in this Agreement shallconstitute a waiver by the Lender of any default or event of default, whether now existing or hereafter arising (including, without limitation, the Existing Default). This Agreement shall only constitute an agreement by the Lender to forbear from enforcing itsrights and remedies under the Existing Loan Documents as a result of the Existing Default upon the terms and conditions set forth herein. Notwithstandmg anything to the contrary contained herein, this Agreement and the forbearance granted by Lender for the benefit of Borrower shall not preclude Lender from making protective advances in accordance with the terms and conditions of the Existing Loan Documents or the Loan Documents (as defined below), if so warrañted, and shall not preclude Lender or Mezzanine Lender (as defined below) from exercising all of their respective rights and remedies under the Second Senior Loan Documents or the Mezzanine Loan Documents (as each is defned below). 4. Waiver of Claims and Release. The Borrower and Guarantor hereby acknowledge and agree that they have no offsets,defenses, claims, or counterclaims against the Lender, itspredecessors in interest, or any of their respective parents, subsidiaries, affiliates,members, managers, partners, agents, officers, principals, directors, shareholders, employees, attorneys, representatives, servicers, participants, predecessors, successors, assigns, or any person holding an interest in the Existing Loan (collectively, the "Lender Parties") with respect to the Existing Loan, the Existing Loan Documents, or the Existing Loan Obligations, including, without limitation, the Existing Default, or otherwise, and that ifthe Borrower or the Guarantor now have, or ever did have, any offsets, defenses, claims, or counterclaims whatsoever against the Lender Parties, whether known or unknown, foreseen or unforeseen (regardless of by whom raised), at law or in equity (or mixed), from the beginning of the world through the Effective Date and through the time of execution of this Agreement, all of them are hereby expressly WAIVED, and the Borrower and Guarantor each hereby remises, RELEASES, acquits, and discharges the Lender Parties from any liabilitytherefor. Itis understood and agreed that thisparagraph shall not be deemed or construed as an admission by Lender of liabilityof any nature whatsoever arising from or related to the subject of this paragraph or otherwise. 4 FILED: KINGS ROCKLAND COUNTY COUNTY CLERK CLERK 08/10/2021 11/02/2021 03:55 04:55 PM PM INDEX NO. 513756/2021 034885/2021 NYSCEF DOC. NO. 25 67 RECEIVED NYSCEF: 08/10/2021 11/02/2021 5. Intentionally Omitted. 6. Forbearance Terms. Provided the Borrower and the Guarantor comply with the terms and conditions of thisAgreement, and provided a Termination Event does not occur, the following provisions shall apply to the Existing Loan and the Existing Loan Documents during the Forbearance Period: (i) No Advances Required. Notwithstanding anything to the contrary set forthin the Existing Loan Documents, Lender is under no obligation to provide any advances under the Existing Loan as of the Effective Date. (ii) New Mezzanine Loan. 1580 Nostrand Mezz LLC, a Delaware limited liabilitycompany (the "Mezzanine Lender") has agreed to make a loan to the sole member of Borrower, Hello Living Developer Nostrand LLC, a New York limited liability company (the "Mezzanine Borrower"), in the original principal amount of up to Three Million and 00/100 Dollars ($3,000,000.00) (the "Mezzanine Loan"), which Mezzanine Loan shall be evidenced by that certain Mezzanine Loan Agreement (the "Mezzanine Loan Agreement" and, together with the Mortgage Loan Agreement, the "Loan Agracmêñt") and that certain Mezzanine Promissory Note (the "Mezzanine Loan Note") secured by, among other things, that certain Ownership Interests Pledge and Security Agreement (the "Pledge"), and guaranteed by Guarantor pursuant to that certain Conditional Guaranty dated as of the Effective Date, by incorporation of the Completion Guaranty pursüâñt to Section 21(e) below, and by thatcertain Environmental Indemnity Agreement dated as of the Effective Date (collectively, the "Mezzanine Loan Guaranties"); the Mezzanine Loan Agreement, the Mezzanine Loan Note, the Pledge, and the Mezzanine Loan Guaranties, together with any and allother documents executed by Mezzanine Borrower or any other party in favor of Mezzanine Lender as security for the repayment of the Mezzanine Loan, Documents." are referred to herein as the "Mezzanine Loan The proceeds of the Mezzanine Loan shall be made available to Mezzanine Borrower according to the terms and conditions set forth in the Mezzanine Loan Agreement. For the avoidance of doubt, upon the occurrence of a Termination Event, or upon the occurrence of an Event of Default under the Existing Loan Documents (other than the Existing Default), Mezzanine Lender shall be under no obligation to provide any further advances under the Mezzanine Loan. Advances under the Mezzanine Loan shall be made in accordance with the terms and conditions of the Mezzanine Loan Documents. The information concerning the Mezzanine Loan set forth in Section 2 above is for convenience only and shall not be construed as a commitment by Lender (or Mezzanine Lender) to make any advance thereunder. (iii) Senior Loan Protective Advances. a. On the Effective Date, Lender shall make a protective advance from the Senior Loan in the amount of $993,652.61, which shall be applied to pay the real estate taxes due and payable with respect to the Mortgaged Property as of July 1,2020. This is Taxes" the line item for "Real Estate in Section 2 above. Such amount advanced by Lender to pay the Real Estate Taxes shall accrue interestfrom and after the Effective Date . . at the Interest.Rate set.forth.inSection 6(viii) below (subject to the claw-back provisions set forth in Section 6(xviii) below). b. On the Effective Date, Lender shall make a protective advance from the Senior Loan in the amount of $250,000.00, which shall be applied to pay for eligible "Insurance" insurance costs for the Mortgaged Property. This is the line item for in Section 2 above. Such amount advanced by Lender to pay the Insurance and shall accrae 5 FILED: KINGS ROCKLAND COUNTY COUNTY CLERK CLERK 08/10/2021 11/02/2021 03:55 04:55 PM PM INDEX NO. 513756/2021 034885/2021 NYSCEF DOC. NO. 25 67 RECEIVED NYSCEF: 08/10/2021 11/02/2021 interest from and afterthe Effective Date at the Interest Rate set forth in Section 6(viii) below (subject to the claw-back provisions set forth in Section 6(xviii) below). (iv) Second Senior Loan. Lender has agreed to make a loan to Borrower in the original principal amount of up to Eight Million Three Hundred Thousand and 00/100 Dollars Loan" ($8,300,000.00) (the "Second Senior and, together with the Existing Loan and the Mezzanine Loan, collectively, the "Loan"), which Second Senior Loan shall be evidenced Note" by that certain Mortgage Note (the "Second Senior Loan and, together with the Existing Note and the Mezzanine Note, collectively, the "Note"), secured by, among other things, that certain Mortgage and Security Agreement (the "Second Senior Loan Mortgage" and, together with the Existing Mortgage, collectively, the "Mortgage"), and guaranteed by Guarantor pursuant to that certain Conditional Guaranty dated as of the Effective Date, by incorporation of the Completion Guarantj/ pursuant to Section 21(e) below, and by that certain Environmental Tndemnity Agreement dated as of the Effective Guaranties" Date (the "Second Senior Loan and, together with the Existing Loan Guaranties and the Mezzanine Loan Guaranties, collectively, the "Guaranties"); the Second Senior Loan Note, the Second Senior Loan Mortgage, and theSecond Senior Loan Guaranties, together with any and all other documents executed by Borrower or any other party in favor of Lender as security for the repayment of the Second Senior Loan are Documents" referred to herein as the "Second Senior Loan and, together with the Existing Loan Documents and the Mezzanine Loan Documents, collectively, the "Loan Documents." The proceeds of the Second Senior Loan shall be made available to Borrower according to the terms and conditions set forth in the Second Senior Loan Documents. For the avoidance of doubt, upon the occurrence of a Termination Event, or upon the occurrence of an Event of Default under the Existing Loan Documents (other than the Existing Default), Lender shall be under no obligation to provide any further advances under the Second Senior Loan. Pursuant to the Second Senior Loan Documents, and in accordance with the terms and conditions hereof and thereof, Borrower may request the following advances. a. On the Effective Date, Lender shall add to the balance of the Second Senior Loan the sum of $252,000.00 to pay the forbearance fee on account of the Existing Loan, which is due and payable as of the Effective Date. This is the line item for the Fee" "Forbearance in Section 2 above. b. On the Effective Date, Lender shall add to the balance of the Second Senior Loan the sum of $4,363,328.58 to pay the Capitalized Accrued Default Interest (as defined below and set forth in Section 2 above) due to Lender, which is due and payable as of the Effective Date. c. On the Effective Date, Lender shall add to the balance of the Second Senior Loan the sum of $90,735.57 (the "Closing Costs") to pay for costs and expenses incurred in connection with the preparation, negatiatión and execution of thisAgreerñerst, the Second Senior Loan Documents, the Mezzanine Loan Documents, and the consummation of the activitiesand transactions described herein and therein. This is the Costs" line item for "Closing in Section 2 above and includes legal fees and costs in the amount of $18,500.00 due and owing to Kriss & Feuerstein LLP. d. On the Effective Date, $3,302,890.78 shall be reserved (the "Interest Reserve") for the payrñent of the monthly payments of interest due and owing under the Existing Loan Documents, the Second Building Loan Documents, and the Mezzanine Loan 6 FILED: KINGS ROCKLAND COUNTY COUNTY CLERK CLERK 08/10/2021 11/02/2021 03:55 04:55 PM PM INDEX NO. 513756/2021 034885/2021 NYSCEF DOC. NO. 25 67 RECEIVED NYSCEF: 08/10/2021 11/02/2021 Documents for the initialsix (6) months of the Forbearance Period (and the corresponding time periods under the Second Senior Loan and the Mezzanine Loan); such reserved funds shall not accrue interestuntil such funds are disbursed by Lender. On the Effective Date (with respect to the prepayments of interest required pursuant to the Second Senior Loan Note and the Mezzanine Loan Note, which are shown in Section 2 above as the "Interest Reserve Debits on the Effective Date") and, provided no Termination Event has occurred, thereafter on each date that a payment is due under a Note, Lender shall advance from the Second Senior Loan amounts sufficientto fully pay the monthly payments of interest then due under the Loan. After the Interest Reserve isexhausted, or upon the occurrence of a Termination Event, each of Borrower and Mezzanine Borrower shall be responsible for makiñg allpayments that become due thereafter from their own funds in accordance with the terms and conditions of the Loan Documents. e. On the Effective Date, Lender shall add to the balance of the Second Senior Loan the sum of $354,597.56 (the "Accrued Nominal Interest") to pay foraccrued nominal interest on account of the Existing Loan. This is the line item for "Accrued Interest" Nominal in Section 2 above. Mechanics' (v) Cutstañdine Liens. Borrower acknowledges and agrees that as ofthe Effective mechanics' Date there are certain known outstanding liens recorded against and mech5mles' encumbering the Mortgaged Property (together with any other or materialmen's liens recorded against or encumbering the Mortgaged Property, the Mechanics' "Outstanding Liens"). Borrower covenants and agrees to fullyresolve such Mechanics' Outstanding Liens within thirty (30) days following the Effective Date, and to deliver to Lender and Kensington Vanguard National Land Services ("KV") such documents and information that Lender and KV require to issue a date- may reasonably down to Lender's titleinsurance policy for the Mortgaged Property showing that titleto Mechanics' the Mortgaged Property is free from such Outstanding Liens and otherwise in the condition required by the Loan Documents and thisAgreement. In the event Borrower Mechanics' fails to fullypay such Outstanding Liens and otherwise fullysatisfy the terms and conditions of thisparagraph, the same shallconstitute an immediate Termination Event under this Agreement, Lender shall be entitled to make a protective advance according to the terms of the Loan Documents, and shall be entitled to charge interest on such advance at the Default Rate of twenty-four percent (24%) per annum. (vi) Subdivision: Sale ofSubdivided Portion. Provided no Event of Default has occurred under the Loan Documents, and provided no Termination Event has occurred, Borrower shall be permitted to (a) subdivide a portion of the Mortgaged Property as depicted on Exhibit A attached hereto and incorporated herein by this reference (the "Subdivided Portion") according to a plan of subdivision that is in full compliance with applicable law and approved in writing by Lender in advance of any submissions by Borrower to any governmental authority, which Subdivided Portion shall constitute a separate tax lot thatis independently saleable, and (b) enter into a bona fide contract of sale with an unaffiliated third party, which contract shall (i)include absolutely no closing contingencies, (ii)provide for a closing date no later than sixty (60) days following the effective date.of such contract, . and (iii)establish a purchase price sufficient to allow Borrower to pay all closing costs associated with the sale and transfer of the Subdivided Portion and thereafter remit to Lender no less than Thirteen Million and 00/100 Dollars ($13,000,000.00) (the "Minimum Release Price"). No less than twenty (20) days prior to the scheduled closing date for the sale of the Subdivided Portion, Borrower shall submit to Lender a pro forma closing statement and draft copies of all documents expected to be executed at such closing 7 FILED: KINGS ROCKLAND COUNTY COUNTY CLERK CLERK 08/10/2021 11/02/2021 03:55 04:55 PM PM INDEX NO. 513756/2021 034885/2021 NYSCEF DOC. NO. 25 67 RECEIVED NYSCEF: 08/10/2021 11/02/2021 (including, without limitation, any documents requiring Lender's signature). Contemporaneously with the closing ofthe saleof the Subdivided Portion, and thetransfer of the same to the contract purchaser, which shall be consummated only following the written approval of the Lender, Borrower shall (x) remit to Lender the greater of the Minimum Release Price or the net proceeds of the sale afterBorrower's payment of closing costs therefor (the "Minimum Release Remittance"), which closing costs shall not exceed fivepercent (5%) of the gross contract salesprice, and Lender shallapply such remittance to pay down the unpaid principal balance of the Loan in such order and prio