Preview
FILED: ROCKLAND COUNTY CLERK 03/08/2023 04:30 PM INDEX NO. 034885/2021
NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/08/2023
EXHIBIT C
FILED: ROCKLAND COUNTY CLERK 03/08/2023 04:30 PM INDEX NO. 034885/2021
NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/08/2023
FILED: ROCKLAND COUNTY CLERK 11/30/2022 07:23 PM INDEX NO. 034885/2021
NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 11/30/2022
EXHIBIT “B”
FILED: ROCKLAND COUNTY CLERK 03/08/2023 04:30 PM INDEX NO. 034885/2021
NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/08/2023
FILED: ROCKLAND COUNTY CLERK 11/30/2022 07:23 PM INDEX NO. 034885/2021
NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 11/30/2022
MEZZANINE LOAN AGREEMENT
in the amou=t of up to $3,000,000.00
Between
HELLO LIVING DEVELOPER NOSTRAND LLC
and
1580 NOSTRAND MEZZ LLC
Dated as of: August 28, 2020
FILED: ROCKLAND COUNTY CLERK 03/08/2023 04:30 PM INDEX NO. 034885/2021
NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/08/2023
FILED: ROCKLAND COUNTY CLERK 11/30/2022 07:23 PM INDEX NO. 034885/2021
NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 11/30/2022
MEZZANINE LOAN AGREEMENT
THIS MEZZANINE LOAN AGREEMENT ("Agreement") dated as of the 28th
day of August, 2020, is made by and between HELLO LIVING DEVELOPER NOSTRAND
LLC, a New York limited liability company, having an address at 33 35th Street, 6th Floor, Suite
B-613, Brooklyn, NY 11232 ("Borrower"), and 1580 NOSTRAND MEZZ LLC, a Delaware
limited liability company, its successors and/or assigns, as their interests may appear, having
offices at 520 Madison Avenue, Suite 3501, New York, NY 10022 ("Lender").
E11N E fi E I][:
WHEREAS, on December 6, 2017, HELLO NOSTRAND LLC, a New York limited
liability company (the "Mortgage Borrower"), gave an Amended, Restated and Consolidated
Senior Loan Promis:sory Note (the "First Land Mortgage Note") to PROPHET MORTGAGE
OPPORTUNITIES LP (the "Original Mortgage Lender"), in the principal sum of
$17,730,000.00 (the "First Land Mortgage Loan");
WHEREAS, for the purposes of securing the Land Mortgage Note, on December 6, 2017,
Mortgage Borrower executd and delivered a certain Consolidation, Extension and Modification
of Senior Loan Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing
in the principal sum of $17,730,000.00 (the "First Land Mortgage"), wherein Mortgage
Borrower mortgaged in favor of Original Mortgage Lender the premises commonly known as 1580
Nostrand Avenue, Brooklyn, New York 11226 (the "Property"), as further described in the Land
Mortgage, as well as certain other documents, including, without limitation, that certain Senior
Loan Agreement dated as of December 6, 2017 (the "First Senior Loan Agreement"), executed
by certain third parties as additional security for the repayment of the sums due under the Land
Mortgage Note and Land Mortgage (collectively, including the Land Mortgage Note, the Land
Mortgage, and the Senior Loan Agreement, the "First Land Mortgage Loan Documents"),
which First Land Mortgage Loan Documents were thereafter assigned by an Assignment of
Consolidation, Extension and Modification of Senior Loan Mortgage, Assignment of Leases and
Rents, Security Agreement and Fixture Filing and Senior Loan Collateral Assignment of Leases
and Rents dated June 7, 2019 by Original Mortgage Lender to 1580 NOSTRAND AVE LLC, a
Delaware limited liability company (collectively, together with its successors and/or assigns, the
"Mortgage Lender");
WHEREAS, on December 6, 2017, Mortgage Borrower gave a Building Loan Promissory
Note (the "Bundig Mortgage Note") to Original Mortgage Lender in the principal sum of up to
$39,770,000.00 (the "Building Mortgage Loan");
WHEREAS, for the purposes of securing the Building Mortgage Note, on December 6,
2017, Mortgage Borrower executed and delivered a certain Building Loan Mortgage, Assignment
of Leases and Rents, Security Agreement and Fixture Filing in the principal sum of up to
2
FILED: ROCKLAND COUNTY CLERK 03/08/2023 04:30 PM INDEX NO. 034885/2021
NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/08/2023
FILED: ROCKLAND COUNTY CLERK 11/30/2022 07:23 PM INDEX NO. 034885/2021
NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 11/30/2022
$39,770,000.00 (the "Building Mortgage"), wherein Mortgage Borrower mortgaged in favor of
Original Mortgage Lender the Property, as well as certain other documents, including, but not
limited to, that certain Building Loan Agreement (the "Building Loan Agreement"), executed by
certain third parties as additional security for the repayment of the sums due under the Building
Mortgage Note and the Building Mortgage (collectively, including the Building Mortgage Note,
the Building Mortgage and the Building Loan Agreement, the "Building Mortgage Loan
Documents"), which Building Mortgage Loan Documents were thereafter assigned by an
Assignmeñt of Building Loan Mortgage, Assignment of Leases and Rents, Security Agreement
and Fixture Filing and Building Loan Collateral Assignment of Leases and Rents dated June 7,
2019 by Original Mortgage Lender to Mortgage Lender;
WHEREAS, on December 6, 2017, Mortgage Borrower gave a Project Loan Promissory
Note (the "Project Mortgage Note") to Original Mortgage Lender in the principal sum of up to
$5,500,000.00 (the "Project Mortgage Loan");
WHEREAS, for the purposes of securing the Project Mortgage Note, on December 6,
2017, Mortgage Bonower executed and delivered a certain Project Loan Mortgage, Assignment
of Leases and Rents, Security Agreement and Fixture Filing in the principal sum of up to
$5,500,000.00 (the "Project Mortgage"), wherein Mortgage Borrower mortgaged in favor of
Original Mortgage Lender the Property, as well as certain other documents, including, but not
Agreement"
limited to, that certain Project Loan Agreement (the "Project Loan and, together
with the First Land Loan Agreement and the Building Loan Agreement, the "Mortgage Loan
Agreement"), executed by certain third parties as additional security for the repayment ofthe sums
due under the Project Mortgage Note and Project Mortgage (collectively, including the Project
Mortgage Note, the Project Mortgage and the Project Loan Agreement, the "Project Mortgage
Loan Documents"), which Project Mortgage Loan Documents were thereafter assigned by an
Assign-ment of Project Loan Mortgage, Assignment of Leases and Rents, Security Agreement and
Fixture Filing and Project Loan Collateral Assignment of Leases and Rents dated June 7, 2019 by
Original Mortgage Lender to Mortgage Lender;
WHEREAS, on the date hereof, Mortgage Borrower gave a Mortgage Loan Note (the
"Second Land Mortgage Note", and together with the First Land Mortgage Note, the Building
Mortgage Note and the Project Mortgage Note, hereinafter, collectively, the "Mortgage Note") to
Mortgage Lender in the principal sum of up to $8,300,000.00 (the "Sccond Land Mortgage
Loan", and together with the First Land Mortgage Loan, the Building Mortgage Loan and the
Project Mortgage Loan, hereinafter, collectively, the "Mortgage Loan");
WHEREAS, for the purposes of securing the Second Land Mortgage Note, on the date
hereof, Mortgage Borrower executed and delivered a certain Mortgage and Security Agreement in
the principal sum of up to $8,300,000.00 (the "Second Land Mortgage", and together with the
First Land Mortgage, the Building Mortgage, and the Project Mortgage, hereinafter, collectively,
the "Mortgage"), wherein Mortgage Borrower mortgaged in favor of Mortgage Lender the
3
FILED: ROCKLAND COUNTY CLERK 03/08/2023 04:30 PM INDEX NO. 034885/2021
NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/08/2023
FILED: ROCKLAND COUNTY CLERK 11/30/2022 07:23 PM INDEX NO. 034885/2021
NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 11/30/2022
Property, as well as certain other documents executed by certain third parties as additional security
for the repayment of the sums due under the Second Land Mortgage Note and Second Land
Mortgage (collectively, including the Second Land Mortgage Note and the Second Land
Mortgage, the "Second Land Mortgage Loan Documents", and together with the First Land
Mortgage Loan Documents, the Building Mortgage Loan Documents and the Project Mortgage
Loan Documents, hereinafter, collectively, as amended by the Forbearance Agreement, the
"Mortgage Loan Documents");
WHEREAS, as of the date hereof, Borrower, Lender, Mortgage Borrower, Mortgage
Lender, and Guarantor entered into that certain Forbearance Agreement relating to certain defaults
under the First Land Mortgage Loan, the Building Mortgage Loan, and the Project Mortgage Loan
(the "Forbearance Agrcem=‡"); each and every reference to the First Land Mortgage Loan
Documents, the Building Mortgage Loan Documents, and the Project Mortgage Loan Documents
described in the foregoing recitals, as such references appear below in this Agreement and in the
other Loan Documents, shall be interpreted to mean such First Land Mortgage Loan Documents,
Building Mortgage Loan Documents, and Project Mortgage Loan Documents as amended by the
Forbearance Agreement;
WHEREAS, Borrower is the direct beneficial owner of all of the membership interests in
Mortgage Borrower (collectively, the "Pledged Interests");
WHEREAS, Borrower has requested Lender to make a loan to it in the principal amount
of up to $3,000,000.00 (the "Loan"), which Loan is evidenced by that certain Mezzanine
Promissory Note executed by Borrower in favor of Lender (the "Note");
WHEREAS, as a condition precedent to the obligation of Lender to make the Loan to
Borrower, Borrower has entered into that certain Ownership Interests Pledge and Security
Agreement, dated as of the date hereof, in favor of Lender (as amended, supplemented or otherwise
modified from time to time, the "Pledge Agreement"), pursuant to which Borrower has granted
to Lender a first priority security interest in the Collateral (as hereinafter defiñed) as collateral
security for the Debt (as hereinafter defined) (the Pledge Agreement, together with the Note, this
Agreement, and all other documents and guarantees executed by Borrower and Guarantor and any
other party in favor of Lender in connection with the Loan, hereinafter, the "Loan Decuments");
WHEREAS, Borrower desires to obtain the Loan from Lender; and
WHEREAS, Lender is willing to make the Loan to Borrower, subject to and in accordance
with the terms of this Agreement and the other Loan Documents (as hereinafter defined).
Now, therefore, in consideration of the premises and mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
4
FILED: ROCKLAND COUNTY CLERK 03/08/2023 04:30 PM INDEX NO. 034885/2021
NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/08/2023
FILED: ROCKLAND COUNTY CLERK 11/30/2022 07:23 PM INDEX NO. 034885/2021
NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 11/30/2022
ARTICLE I
DEFINITIONS
Use of or reference to the following terms herein shall be construed as indicated
below. All other capitalized terms used but not otherwise defined in this Article I shall have the
meanings ascribed to such terms in this Agreement the Pledge Agreemelit or the Note:
1.1 Advance: Any disbursement of a portion of the Loan by Lender pursuant
to the terms hereof.
1.2 Affiliate: As to any Person, any other Person that, (i) directly or indirectly,
owns ten percent (10%) or more of the direct or indirect legal, beneficial or economic interests in
such Person, (ii) directly or indirectly, is in Control of, is Controlled by or is under common
Control with such Person, (iii) is a director or officer of such Person or of an Affiliate of such
Person, or (iv) is the spouse, issue or parent of such Person or of an Affiliate of such Person.
1.3 Architect: Ryan Min, or such architect as approved by Lender in its sole but
commercially reasonable discretion.
1.4 Architect's Agreement: That certain AIA Document B101-2007 Standard
Form of Agreement between Owner and Architect dated as of , between
Mortgage Borrower and the Architect, as the same may be amended, restated, extended or
otherwise modified from time to time in accordaiice with this Agreement or as otherwise approved
by Lender in its reasonable discretion.
1.5 Budget: Borrower's estilliate of the cost to construct the Improvements,
which estimate has been delivered to Lender, as the same may be revised from time to time in
accordance with the terms of this Agreement or with Lender's approval in its reasonable discretion.
1.6 Budgeted Amount: The portion of the Loan that Borrower expects to be
advanced for any particular line item of Costs, as set forth in the Budget.
1.7 Business Day: Any day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to close.
1.8 Casualty: The occurrence of any casualty, damage or injury, by fire or
otherwise, to the Property or any part thereof.
1.9 Collateral: The Pledged Interests, and all ainouilts on deposit in any reserve
account established under the Loan Documents and any and all other property or collateral in
5
FILED: ROCKLAND COUNTY CLERK 03/08/2023 04:30 PM INDEX NO. 034885/2021
NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/08/2023
FILED: ROCKLAND COUNTY CLERK 11/30/2022 07:23 PM INDEX NO. 034885/2021
NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 11/30/2022
which Lender is granted a security interest under any ofthe Loan Documents, in each case whether
existing on the date hereof or hereafter pledged or assigned to Lender.
1.10 Collateral Documents: The Pledge Agreement; any Uniform Commercial
Code financing statements filed in connection with the Pledge Agreemeñt; the Guaranty; and any
and all other loan documents executed by the Borrower for the benefit of Lender in coññection
with the Loan.
1.11 Condemnation: A temporary or permanent taking by any Govemmêñtal
Authority as the result or in lieu or in anticipation of the exercise of the right of condemnation or
eminent domain, of all or any part of the Property, or any interest therein or right accruing thereto,
including any right of access thereto or any change of grade affecting the Property or any part
thereof.
1.12 Construction Manager: Supreme Builders & Developers LLC, or such
general contractor or construction rñâñager as approved by Lender in its sole but commercially
reasonable discretion.
1.13 Construction Work: The construction of the Project, which is to be carried
out by Mortgage Borrower using the proceeds of the Loan, Mortgage Borrower's funds and
Borrower's funds, in compliance with the Budget.
1.14 Costs: Hard Costs and/or Soft Costs, individually and collectively, as the
case may be.
1.15 Debt: The outstanding principal amount set forth in, and evidêñced by, this
Agreement and the Note together with all interest accrued and unpaid thereon and all other sums
due to Lender in respect of the Loan under the Note, this Agreement, the Pledge Agreement or any
other Loan Document.
1.16 Environmental Laws: This term has the meaning ascribed thereto in that
certain Environmental Indemnity Agreement executed by Borrower and Guarantor of even date
herewith, in favor of Lender.
1.17 Existing Mortgage Loan Documents: Collectively, the First Land Mortgage
Loan Documents, the Building Mortgage Loan Documents, and the Project Mortgage Loan
Documents.
1.18 Fundine Date: The date on which an Advance is actually disbursed.
1.19 Govemmental Authority: Any court, board, agency, commission, office or
other authority of any nature whatsoever for any governmental unit (foreign, federal, state, county,
6
FILED: ROCKLAND COUNTY CLERK 03/08/2023 04:30 PM INDEX NO. 034885/2021
NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/08/2023
FILED: ROCKLAND COUNTY CLERK 11/30/2022 07:23 PM INDEX NO. 034885/2021
NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 11/30/2022
district, municipal, city or otherwise) whether now or hereafter in existence.
1.20 Guarantor: Eli Karp, pursuant to the Guaranty.
1.21 Guaranty: Collectively, (a) the Conditional Guaranty, dated as of the date
hereof, executed and delivered by Guarantor in connection with the Loan to and for the benefit of
Lender, (b) the Completion and Cost Over-Run Guaranty dated as of December 6, 2017, from
Guarantor for the benefit of Original Mortgage Lender, the terms of which are incorporated herein,
as set forth in the Forbearance Agreement, such that Guarantor's has fully guaranteed the
completion of the Construction Work, and (c) that certain Environmental Indemnity Agreement,
dated as of the date hereof, executed by Borrower and Guarantor in connection with the Loan to
and for the benefit of Lender, each as the same may be amended, restated, replaced, supplemented
or otherwise modified from time to time.
1.22 Hard Costs: The costs of labor, materials, equipment, as well as any other
improvement"
costs which are "costs of an (as such term is defined in Section 2(5) of the New
York Lien Law), in connection
Preview
FILED: ROCKLAND COUNTY CLERK 03/08/2023 04:30 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/08/2023 EXHIBIT C FILED: ROCKLAND COUNTY CLERK 03/08/2023 04:30 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/08/2023 FILED: ROCKLAND COUNTY CLERK 11/30/2022 07:23 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 11/30/2022 EXHIBIT “B” FILED: ROCKLAND COUNTY CLERK 03/08/2023 04:30 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/08/2023 FILED: ROCKLAND COUNTY CLERK 11/30/2022 07:23 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 11/30/2022 MEZZANINE LOAN AGREEMENT in the amou=t of up to $3,000,000.00 Between HELLO LIVING DEVELOPER NOSTRAND LLC and 1580 NOSTRAND MEZZ LLC Dated as of: August 28, 2020 FILED: ROCKLAND COUNTY CLERK 03/08/2023 04:30 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/08/2023 FILED: ROCKLAND COUNTY CLERK 11/30/2022 07:23 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 11/30/2022 MEZZANINE LOAN AGREEMENT THIS MEZZANINE LOAN AGREEMENT ("Agreement") dated as of the 28th day of August, 2020, is made by and between HELLO LIVING DEVELOPER NOSTRAND LLC, a New York limited liability company, having an address at 33 35th Street, 6th Floor, Suite B-613, Brooklyn, NY 11232 ("Borrower"), and 1580 NOSTRAND MEZZ LLC, a Delaware limited liability company, its successors and/or assigns, as their interests may appear, having offices at 520 Madison Avenue, Suite 3501, New York, NY 10022 ("Lender"). E11N E fi E I][: WHEREAS, on December 6, 2017, HELLO NOSTRAND LLC, a New York limited liability company (the "Mortgage Borrower"), gave an Amended, Restated and Consolidated Senior Loan Promis:sory Note (the "First Land Mortgage Note") to PROPHET MORTGAGE OPPORTUNITIES LP (the "Original Mortgage Lender"), in the principal sum of $17,730,000.00 (the "First Land Mortgage Loan"); WHEREAS, for the purposes of securing the Land Mortgage Note, on December 6, 2017, Mortgage Borrower executd and delivered a certain Consolidation, Extension and Modification of Senior Loan Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing in the principal sum of $17,730,000.00 (the "First Land Mortgage"), wherein Mortgage Borrower mortgaged in favor of Original Mortgage Lender the premises commonly known as 1580 Nostrand Avenue, Brooklyn, New York 11226 (the "Property"), as further described in the Land Mortgage, as well as certain other documents, including, without limitation, that certain Senior Loan Agreement dated as of December 6, 2017 (the "First Senior Loan Agreement"), executed by certain third parties as additional security for the repayment of the sums due under the Land Mortgage Note and Land Mortgage (collectively, including the Land Mortgage Note, the Land Mortgage, and the Senior Loan Agreement, the "First Land Mortgage Loan Documents"), which First Land Mortgage Loan Documents were thereafter assigned by an Assignment of Consolidation, Extension and Modification of Senior Loan Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing and Senior Loan Collateral Assignment of Leases and Rents dated June 7, 2019 by Original Mortgage Lender to 1580 NOSTRAND AVE LLC, a Delaware limited liability company (collectively, together with its successors and/or assigns, the "Mortgage Lender"); WHEREAS, on December 6, 2017, Mortgage Borrower gave a Building Loan Promissory Note (the "Bundig Mortgage Note") to Original Mortgage Lender in the principal sum of up to $39,770,000.00 (the "Building Mortgage Loan"); WHEREAS, for the purposes of securing the Building Mortgage Note, on December 6, 2017, Mortgage Borrower executed and delivered a certain Building Loan Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing in the principal sum of up to 2 FILED: ROCKLAND COUNTY CLERK 03/08/2023 04:30 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/08/2023 FILED: ROCKLAND COUNTY CLERK 11/30/2022 07:23 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 11/30/2022 $39,770,000.00 (the "Building Mortgage"), wherein Mortgage Borrower mortgaged in favor of Original Mortgage Lender the Property, as well as certain other documents, including, but not limited to, that certain Building Loan Agreement (the "Building Loan Agreement"), executed by certain third parties as additional security for the repayment of the sums due under the Building Mortgage Note and the Building Mortgage (collectively, including the Building Mortgage Note, the Building Mortgage and the Building Loan Agreement, the "Building Mortgage Loan Documents"), which Building Mortgage Loan Documents were thereafter assigned by an Assignmeñt of Building Loan Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing and Building Loan Collateral Assignment of Leases and Rents dated June 7, 2019 by Original Mortgage Lender to Mortgage Lender; WHEREAS, on December 6, 2017, Mortgage Borrower gave a Project Loan Promissory Note (the "Project Mortgage Note") to Original Mortgage Lender in the principal sum of up to $5,500,000.00 (the "Project Mortgage Loan"); WHEREAS, for the purposes of securing the Project Mortgage Note, on December 6, 2017, Mortgage Bonower executed and delivered a certain Project Loan Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing in the principal sum of up to $5,500,000.00 (the "Project Mortgage"), wherein Mortgage Borrower mortgaged in favor of Original Mortgage Lender the Property, as well as certain other documents, including, but not Agreement" limited to, that certain Project Loan Agreement (the "Project Loan and, together with the First Land Loan Agreement and the Building Loan Agreement, the "Mortgage Loan Agreement"), executed by certain third parties as additional security for the repayment ofthe sums due under the Project Mortgage Note and Project Mortgage (collectively, including the Project Mortgage Note, the Project Mortgage and the Project Loan Agreement, the "Project Mortgage Loan Documents"), which Project Mortgage Loan Documents were thereafter assigned by an Assign-ment of Project Loan Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing and Project Loan Collateral Assignment of Leases and Rents dated June 7, 2019 by Original Mortgage Lender to Mortgage Lender; WHEREAS, on the date hereof, Mortgage Borrower gave a Mortgage Loan Note (the "Second Land Mortgage Note", and together with the First Land Mortgage Note, the Building Mortgage Note and the Project Mortgage Note, hereinafter, collectively, the "Mortgage Note") to Mortgage Lender in the principal sum of up to $8,300,000.00 (the "Sccond Land Mortgage Loan", and together with the First Land Mortgage Loan, the Building Mortgage Loan and the Project Mortgage Loan, hereinafter, collectively, the "Mortgage Loan"); WHEREAS, for the purposes of securing the Second Land Mortgage Note, on the date hereof, Mortgage Borrower executed and delivered a certain Mortgage and Security Agreement in the principal sum of up to $8,300,000.00 (the "Second Land Mortgage", and together with the First Land Mortgage, the Building Mortgage, and the Project Mortgage, hereinafter, collectively, the "Mortgage"), wherein Mortgage Borrower mortgaged in favor of Mortgage Lender the 3 FILED: ROCKLAND COUNTY CLERK 03/08/2023 04:30 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/08/2023 FILED: ROCKLAND COUNTY CLERK 11/30/2022 07:23 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 11/30/2022 Property, as well as certain other documents executed by certain third parties as additional security for the repayment of the sums due under the Second Land Mortgage Note and Second Land Mortgage (collectively, including the Second Land Mortgage Note and the Second Land Mortgage, the "Second Land Mortgage Loan Documents", and together with the First Land Mortgage Loan Documents, the Building Mortgage Loan Documents and the Project Mortgage Loan Documents, hereinafter, collectively, as amended by the Forbearance Agreement, the "Mortgage Loan Documents"); WHEREAS, as of the date hereof, Borrower, Lender, Mortgage Borrower, Mortgage Lender, and Guarantor entered into that certain Forbearance Agreement relating to certain defaults under the First Land Mortgage Loan, the Building Mortgage Loan, and the Project Mortgage Loan (the "Forbearance Agrcem=‡"); each and every reference to the First Land Mortgage Loan Documents, the Building Mortgage Loan Documents, and the Project Mortgage Loan Documents described in the foregoing recitals, as such references appear below in this Agreement and in the other Loan Documents, shall be interpreted to mean such First Land Mortgage Loan Documents, Building Mortgage Loan Documents, and Project Mortgage Loan Documents as amended by the Forbearance Agreement; WHEREAS, Borrower is the direct beneficial owner of all of the membership interests in Mortgage Borrower (collectively, the "Pledged Interests"); WHEREAS, Borrower has requested Lender to make a loan to it in the principal amount of up to $3,000,000.00 (the "Loan"), which Loan is evidenced by that certain Mezzanine Promissory Note executed by Borrower in favor of Lender (the "Note"); WHEREAS, as a condition precedent to the obligation of Lender to make the Loan to Borrower, Borrower has entered into that certain Ownership Interests Pledge and Security Agreement, dated as of the date hereof, in favor of Lender (as amended, supplemented or otherwise modified from time to time, the "Pledge Agreement"), pursuant to which Borrower has granted to Lender a first priority security interest in the Collateral (as hereinafter defiñed) as collateral security for the Debt (as hereinafter defined) (the Pledge Agreement, together with the Note, this Agreement, and all other documents and guarantees executed by Borrower and Guarantor and any other party in favor of Lender in connection with the Loan, hereinafter, the "Loan Decuments"); WHEREAS, Borrower desires to obtain the Loan from Lender; and WHEREAS, Lender is willing to make the Loan to Borrower, subject to and in accordance with the terms of this Agreement and the other Loan Documents (as hereinafter defined). Now, therefore, in consideration of the premises and mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 4 FILED: ROCKLAND COUNTY CLERK 03/08/2023 04:30 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/08/2023 FILED: ROCKLAND COUNTY CLERK 11/30/2022 07:23 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 11/30/2022 ARTICLE I DEFINITIONS Use of or reference to the following terms herein shall be construed as indicated below. All other capitalized terms used but not otherwise defined in this Article I shall have the meanings ascribed to such terms in this Agreement the Pledge Agreemelit or the Note: 1.1 Advance: Any disbursement of a portion of the Loan by Lender pursuant to the terms hereof. 1.2 Affiliate: As to any Person, any other Person that, (i) directly or indirectly, owns ten percent (10%) or more of the direct or indirect legal, beneficial or economic interests in such Person, (ii) directly or indirectly, is in Control of, is Controlled by or is under common Control with such Person, (iii) is a director or officer of such Person or of an Affiliate of such Person, or (iv) is the spouse, issue or parent of such Person or of an Affiliate of such Person. 1.3 Architect: Ryan Min, or such architect as approved by Lender in its sole but commercially reasonable discretion. 1.4 Architect's Agreement: That certain AIA Document B101-2007 Standard Form of Agreement between Owner and Architect dated as of , between Mortgage Borrower and the Architect, as the same may be amended, restated, extended or otherwise modified from time to time in accordaiice with this Agreement or as otherwise approved by Lender in its reasonable discretion. 1.5 Budget: Borrower's estilliate of the cost to construct the Improvements, which estimate has been delivered to Lender, as the same may be revised from time to time in accordance with the terms of this Agreement or with Lender's approval in its reasonable discretion. 1.6 Budgeted Amount: The portion of the Loan that Borrower expects to be advanced for any particular line item of Costs, as set forth in the Budget. 1.7 Business Day: Any day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close. 1.8 Casualty: The occurrence of any casualty, damage or injury, by fire or otherwise, to the Property or any part thereof. 1.9 Collateral: The Pledged Interests, and all ainouilts on deposit in any reserve account established under the Loan Documents and any and all other property or collateral in 5 FILED: ROCKLAND COUNTY CLERK 03/08/2023 04:30 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/08/2023 FILED: ROCKLAND COUNTY CLERK 11/30/2022 07:23 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 11/30/2022 which Lender is granted a security interest under any ofthe Loan Documents, in each case whether existing on the date hereof or hereafter pledged or assigned to Lender. 1.10 Collateral Documents: The Pledge Agreement; any Uniform Commercial Code financing statements filed in connection with the Pledge Agreemeñt; the Guaranty; and any and all other loan documents executed by the Borrower for the benefit of Lender in coññection with the Loan. 1.11 Condemnation: A temporary or permanent taking by any Govemmêñtal Authority as the result or in lieu or in anticipation of the exercise of the right of condemnation or eminent domain, of all or any part of the Property, or any interest therein or right accruing thereto, including any right of access thereto or any change of grade affecting the Property or any part thereof. 1.12 Construction Manager: Supreme Builders & Developers LLC, or such general contractor or construction rñâñager as approved by Lender in its sole but commercially reasonable discretion. 1.13 Construction Work: The construction of the Project, which is to be carried out by Mortgage Borrower using the proceeds of the Loan, Mortgage Borrower's funds and Borrower's funds, in compliance with the Budget. 1.14 Costs: Hard Costs and/or Soft Costs, individually and collectively, as the case may be. 1.15 Debt: The outstanding principal amount set forth in, and evidêñced by, this Agreement and the Note together with all interest accrued and unpaid thereon and all other sums due to Lender in respect of the Loan under the Note, this Agreement, the Pledge Agreement or any other Loan Document. 1.16 Environmental Laws: This term has the meaning ascribed thereto in that certain Environmental Indemnity Agreement executed by Borrower and Guarantor of even date herewith, in favor of Lender. 1.17 Existing Mortgage Loan Documents: Collectively, the First Land Mortgage Loan Documents, the Building Mortgage Loan Documents, and the Project Mortgage Loan Documents. 1.18 Fundine Date: The date on which an Advance is actually disbursed. 1.19 Govemmental Authority: Any court, board, agency, commission, office or other authority of any nature whatsoever for any governmental unit (foreign, federal, state, county, 6 FILED: ROCKLAND COUNTY CLERK 03/08/2023 04:30 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/08/2023 FILED: ROCKLAND COUNTY CLERK 11/30/2022 07:23 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 11/30/2022 district, municipal, city or otherwise) whether now or hereafter in existence. 1.20 Guarantor: Eli Karp, pursuant to the Guaranty. 1.21 Guaranty: Collectively, (a) the Conditional Guaranty, dated as of the date hereof, executed and delivered by Guarantor in connection with the Loan to and for the benefit of Lender, (b) the Completion and Cost Over-Run Guaranty dated as of December 6, 2017, from Guarantor for the benefit of Original Mortgage Lender, the terms of which are incorporated herein, as set forth in the Forbearance Agreement, such that Guarantor's has fully guaranteed the completion of the Construction Work, and (c) that certain Environmental Indemnity Agreement, dated as of the date hereof, executed by Borrower and Guarantor in connection with the Loan to and for the benefit of Lender, each as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time. 1.22 Hard Costs: The costs of labor, materials, equipment, as well as any other improvement" costs which are "costs of an (as such term is defined in Section 2(5) of the New York Lien Law), in connection