Forest City Modell's Block 927 Second Mortgage Oct. 14, 1997

deca pearenb 76) 890 BUILDING LOAN MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT ‘OF LEASES AND RENTS FC PACIFIC ASSOCIATES, LLC ‘clo Forest City Ratner Companies {| MetroTech Center North Brooklyn, New York 11201 ‘THE BANK OF NEW YORK One Wall Street New York, New York 10286 $1,800,572.00 ‘As of October 14, 1997 ‘Land and Improvements located at 140 Flatbush Avenue, Brooklyn, JAN York, commonly known as the Sneaker Stadium Store at The Shops at Allantic Center, Brooklyn, New York Section: 4 Block: 927 Loe 16 County: Kings qaNK b73% a ‘New York, New York 10271 Attention: John P. Uehlinger, Esq.qob T6184! BUILDING LOAN MORTGAGE, SECURITY AGREEMENT AND _AS- SIGNMENT OF LEASES AND RENTS, dated as of the 14th day of October, 1997 by and between FC PACIFIC ASSOCIATES, LLC, a New York limited liability company, having an office at clo Forest City Ratner Companies, 1 MeoTech Center North, Brook, lyn, New York 11201 ("Mortgagor") and THE BANK OF NEW YORK, a New York corporation, having an office at One Wall Street, New York, New York ("Mortgagec"). WITNESSETH WHEREAS, the Morigagor is the actual, record and beneficial owner ofa fee estate in the Land and the Improvements and the other Mortgaged Property, as hereinafter defined; end WHEREAS, Morigagee has agreed to make a loan to the Mortgagor, of which the Loan is portion thereof, pursuant tothe terms and conditions of the Commitment Letter and WHEREAS, Mortgagor proposes to construct the Improvements in avcordance With the requirements set forth in the Building Loan Agreement (hereinafter defined) and in accordance with the Plans (hereinafter defined); WHEREAS, the Mortgagor will borrow the Loan in accordance with the Building Loan Agreement from the Morigagee in accordance with the Commitment Letter, and said indetvedness is evidenced by the Note; and WHEREAS, the parties intend that the Note shall be secured by this Mortgage. ARTICLE I Section 1.1 Defined Terms, Mortgagor and Mortgagee agree that, unless the context otherwise specifies or re- uires, the following terms shall have the meanings herein specified, such definitions to be applicable equally to the singular and the plural forms of such terms| "Agreement" means this Building Loan Morigage, Security Agreement and As- signment of Leases and Rents and any renewals, extensions, amendments or modifications thereof. “Appraisal” means an appraisal of the Mortgaged Property prepared by an Ap- praiser, which apprasal must be prepared in sceordance withthe Uniform Standards of Appraisal Practice as adopted by the Appraisal Standards Board of the Appraisal Founda- tion, and which must be reasonably satisfactory to the Mortgagee in all respecs "Appraiser" means a "state certified general appraiser” as such term is defined and construed under applicable regulations and guidelines issued pursuant to Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, which appraiser must have been licensed and’ certified by the applicable Governmental Authority having jurisdiction in the State where the Morigaged Property is located, and which appraiser shall have been approved by the Mortgagee. In the event of any required reappraisal offect YOBT FE BIE the Mortgaged Property, the Mortgagee agrees 10 give the Mortgagor the choice (in its discretion) of 3 different Appraisers selected by Morigagee which may be engaged. “Assignment of Contracts" means that certain Assignment of Permits and Con- tracts dated the date hereof made by Mortgagor to Mortgage and any renewals, extensions, amendments or modifications thereof. “Assignment of Leases and Rents" has the meaning ascribed to such term in Scc- tion 8,2 hereof and any renewals, "Building Loan Agreement" means that certain Building Loan Agreement dated the date hereof between Mortgagor and Mortgagee and any renewals, extensions, amendments or modifications thereof. "City Contribution" means the City Contribution, as that term is defined in the Building Loan Agreement, "Chattels" means all furniture, furnishings, partitions, screens, awnings, venetian blinds, window shades, draperies, carpeting, pipes, ducts, conduits, dynamos, motors, ‘engines, compressors, generators, boilers, stokers, furnaces. pumps, tanks, elevators, es- calotors, vacuum cleaning systems, call'systems, switchboards, sprinkler systems, fire prevention and extinguishing apparatus, refrigerating, air conditioning, heating, dishwash ing, plumbing, ventilating. gas, steam, electrical and lighting fitings and fixtures, licenses or permits of any kind, trademarks, copyrights, accounts receivable, rights to any trade names, operating supplies and all building materials, equipment and goods now or hereafter delivered to the Premises (hereinafter defined) and intended to be instlled therein, and all other machinery, fixtures, tools, implements, apparatus, appliances, equipment, goods, facilities and other’ personal property of every’ kind and ‘character whatsoever, together with all renewals, replacements and substitutions thereof and additions and accessions thereto in which Mortgagor now has, or at any time hereafter acquires, an interest and which are now or hereafter located or situated in or upon, or affixed of attached to, or used in connection withthe enjoyment, occupancy and/or operation of, all or any portion of the Premises, and the proceeds of all of the foregoing items. "Commitment Letter" means that certain commitment ler relating to the Loan issued by Mortgage to Mortgagor dated October 14, 1997 and ascepted by Morgagor on tober 14, "Community Garden” means the real property now particularly described on Ex- hibit A-1 attached hereto. "Construction Term" shall have the meaning ascribed to it in the Note "Default Rate" means the Default Rate as defined in the Note, "Environmental Indemnification Agreement" means that certain Environmental Indemnification Agreement dated the date hereof made by Morigagor to Mortgagee and any renewals, extensions, amendments or modificetions thereof. “Event of Default" means the events and circumstances described as such in Ar- ticle V hereof.‘ecu 0 6176 1893: "GAAP" means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Centified Public Accountants and statements and pronouncements of the Financial Ac- counting Standsrds Board or in such other statement by such other entity as may be ap- Proved by a significant segment of the accounting profession, which are applicable to the Circumstances as of the date of determination, consistently applied, "Governmental Authority" means any nation of government, any focal, munici- 1, counly, state or other political subdivision thereof, any enity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any court or arbitrator. “Guarantee of Completion" means the Guarantee of Completion dated on or about the date hereof made by Forest City Rental Properties Corporation to Mortgagee and any renewals, extensions, amendments or modifications thereof. "Guarantor" means Forest City Rental Properties Corporation. "Hazardous Material" has the meaning ascribed to such term in Section 4.23(c) hereof, "Improvements" means all buildings, structures and other improvements presently ting or hereafter constructed, including, without limitation, all Improvements (as de fined in the Building Loan Agreement) on the land described in Exhibit A attached hereto, ‘indemnity Agreement" means the Indemnity Agreement given by Mortyagor to Mortgagee dated even date herewith, “Land means the land described in Exhibit A attached hereto, "Lease" has the meaning ascribed to such term in Section 6.1 hereof. "Lessee" has the meaning ascribed to such term in Section 6.1 hereof. ies" has the meaning ascribed to such term in Article III below, "Loan" means the $1,800,572 loan from Mortgagee to Mortgagor evidenced by the Note, to be advanced pursuant to the Building Loan Agreement, and secured by this ‘Mortgage, and defined in the Building Loan Agreement as the Building Loan. "Loan Documents" means this Mortgage, the Note, the Envionmental Indemni- fication Agreement, the Assignment of Contracts, the Guarantee of Completion, the As- signment of Leases and Rents, the Commitment Leter, the Project Loan Agreement, the Projet Loan Mortage, the Projet Loa Assignment of Leases and Ren, the Project Loan Note, the Re-Leasing Pledge, the Rate Cap Assignment and any other document ‘executed or delivered by or on behalf of Mortgagor in connection with the Loan, "Material Adverse Change" means a material adverse change, as determined by the Mortgagee in its sole judgment and discretion, on: (a) the financial condition and/ot peraton of () the MoragedPropery, i the Morigagor, or ii) during the Contuc- tion Term only (as defined in the Note), the Guarantor; or (b) the appraised value of the ‘Mortgaged Property as set forth in a current Appraisalett 4OBT FS TBM "Material Adverse Effect" means a material adverse effect, as determined by the Morigagee in its sole judgment and discretion, on: (a) the financial condition, and/or op- rations of () the Mortgaged Property, (ii) the Mortgagor, or (i) during the Construction Term only, the Guaranfor; or (b) the appraised value of the Morigaged Property as set forth in a current Appraisal ‘Maturity Date" means April 14, 1999, subject to extension to October 14, 2002 4s provided in Paragraph 29 of the Note. "Members" means the following Persons: RRG Master, Inc. FC Member, Inc. and Master Associates I “Minl-Permanent Term" shall have the meaning asctibed to it in the Note. "Mortgage" means this Building Loan Mortgage, Security Agreement and As- signment of Leases and Rent, "Mortgage Amount" means the principal sum of $1,800,572. Norteaged Property" has the meaning ascribed to such term in the Granting Clause (Article Il) below, "Mortgage" means: The Bank of New York, and its participants, successors and assigns. "Mortgagee's Notice Address" means collectively the following addresses of the Mortgagee: ‘The Bank of New York One Wall Street New York, New York 10286 Attention: "Marion Cunningham Vice President with a copy to: Emmet Marvin & Martin, LLP 120 Broadway New York, New York 10271 Attention: “John P, Ushlinger, Esq, "Mortgagor" means: FC Pacific Associates, LLC "“Mortgagor's Notice Address" means the following address of the Mortgagor: FC Pacific Associates, LLC gle Forest City Ratner Companies 1 MetroTech Center North Brooklyn, New York 11201 Alttention: General Counselvet HOB TPE B95, with a copy to: Forest City Enterprises, Ine 1160 Terminal Tower 50 Public Square Cleveland, Ohio 44113-2203, Attention;’ General Counsel; and Forest City Finance Corporation 1100 Terminal Tower 50 Public Square Cleveland, Ohio 44113-2203 Attention: Mr. Robert O'Brien "Note" means the Building Loan Mortgage Note bearing even date herewith in the principal sum of $1,800,572 rnade by the Mortgagor in favor of the Mortgagee ‘which is Secured by this Mortgage “Parking Easement" means that certain reciprocal easement agreement for parking dated April 18, 1997 between Mortgagor and A.J. Richards & Sons Inc. 1 be recorded tr the Kings County Register's Office on or about the date of recording hereof. "Person means an individual, a partnership, a corporation, a business trust, Joint stock company, a trust, an unincorporated association, a joint venture, a Govern ‘mental Authority or any other entity of whatever nature. ; Premises” means the land located in the City of New York, Kings County and State of New York, being designated as Section 4, Block 927, Lot 16 having a location at 140 Flatbush Avenue, Brooklyn, New York, being a part of The Shops at Atlantic Center ‘nd being more particularly described in Exhibit A annexed hereto, together with the Imm Provements thereon and hereafter constructed thereon or therein, and all of the easements, Fights. privileges and appurtenances thereunto belonging or’ in anywise appertaining thereto including, but not limited to, all of the estate, right, title, interest, claim or det mand whatsoever of Morigagor therein and in and to the strips and gores, steels and ways adjacent thereto, whether in law or in equity, in possession or expectancy, now or hereat, ter acquired and also any other realty or personally encompassed by the term "Morigaged Property", elsewhere herein defined. Until the Community Garden has been legally sub- divided from the rest of the Premises, the term "Premises" shall also include the Com. ‘munity Garden described on Exhibit A:1 attached hereto "Principal Amount" means the aggregate unpaid principal amount of the Note as ‘ay be advanced thereunder from time to time and as such amount may thereafter be te. «duced by payments made on account thereof, "Project Loan" means the Project Loan, as that term is defined in the Project Loan Agreement, Project Loan Agreement" means the Project Loan Agreement of even date here= with between Mortgagor and Mortgagee. "Project Loan Note" means the Project Loan Mortgage Note of even date herewith given by Mortgagor to Mortgugee.ett 4D 7761 BE “project Loan Assignment of Leases and Rents" means the Project Loan As- signment of Leases and Rents of even date herewith given by Mortgagor to Mortgagee. Project Loan Mortgage" means the Project Loan Mortgage, Security Agreement and Assgrett of eases nad Rents of oven dae herewith given by Marigagor to Mort ager. “Rate Cap Assignment" means that certain Interest Rate Cap Assignment and Security Agreement to be hereafter given by Mortgagor to Mortgagee. “'Re-Leasing Pledge" means that certain Pledge Agreement given by Mortgagor to Mortgage relating to the Re-Leasing Collateral, as that term is defined in the Building Loan Agreement “"Rent" has the meaning ascribed to such term in Section 6.1 hereof. "Service of Process Agent" means CT Corporation System, having an address for service of process at 1633 Broadway, New York, New York 10019. "Significant Person” has the meaning ascribed to such term in Section 5.1(f) hereof. "Sneaker Stadium" means SNKR Holding Corp., doing business under the name of Sneaker Stadium. "Sneaker Stadium Lease” means the Agreement of Lease dated September 18, 1997 between Borrower and Sneaker Stadium reiting to Sneaker Sam's easing ofthe entire Premises. Tax Benefits" means any right of Mortgagor or the Premises in or to any abatement, exemption or reduction in real estate taxes, sewer charges or rents, building improvement distrit charges, and/or payments in liew of any of the foregoing now or hereafter existing relating to the Premises. "Title Company" means Commonwealth Land Title Insurance Company. "Tie Pally” means hat certain ie isuane ple issued by the Tie Com: pany, insuring this Mortgage as a fist lien on the Mortgaged Property as required by the Commitment Letter and as approved by Mortgages. Section 1.2 Other Definitlonal Provisions. (@) All terms defined in this Mortgage shall have the meanings given such terms herein when used in the Loan Documents or any certificate or other document made or delivered pursuant hereto or thereto, unless otherwise defined therein. (b)__Asused in the Loan Documents and in any certificate or other docu- ‘ment made or delivered pursuant hereto or thereto, accounting terms not defined in Sec- tion 1.1, and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP)sect YO 61P5 | 641 (©) The words "hereo!", "herein, "hereto" and "hereunder" and similar ‘words when used in this Mortgage shall refer to this Mortgage af a whole and not to any Particular provision of this Mortgage, and Section, schedule and exhibit references co tained herein shall refer to Sections hereof or schedules or exhibits hereto unless otherwise ‘expressly provided herein, (@)__ ‘The word "or" shall not be exclusive; “may not" is prohibitive and ‘not permissive; and the singular includes the plural. ARTICLE 11 GRANTING CLAUSE NOW, THEREFORE, Mortgagor, in consideration of the premises, and in order to secure the Mortgage Amount and all interest due thereon and all other costs and. ex- Denses due hereunder and under the Note, and the performance and discharge of all of the Provisions hereof, of the Note and all other Loan Documents, hereby gives, grants, bar. ‘gains, mortgages, grants a security interest in, and pledges to Mortgages, all of ‘Mortgagor's estate, righ, ttle and interest in, to and under any and all of the following Geseribed property whether now owned or hereafter acquired (all such properties being Collectively referred to as the "Mortgaged Property") A, All Mortgagor's right, title and interest in and to (i) the Premises, (if) the Improvements, (it) all fixtures of every kind and nature now or hereafter situated in, on ‘or about, or affixed or attached to the Improvements, (i) all and singular the tenements, hereditaments, easements, rights-of-way or use, rights, privileges and appurtenances to the Premises, now or hereafter belonging or in anywise appertaining thereto, including, with. ut limitation, any such right, title, interest, claim and demand in, to and under any agree- ‘ment granting, conveying or creating, forthe benefit ofthe Premises, any easement, right (r license in any way affecting other property and in, to and under any streets, ways, al- leys, vaults, gores of strips of land adjoining the Premises, or any parcel thereof, (0) the Parking Easement, (vi) all Tax Benefits, (vi) the City Contribution (to the extent of the Morigagor's right, ttle and interes, if any), and (vii) all claims or demands of Mortgagor either in law or in equity, in possession or expectancy, of, in and to the Premises Breall Tight tite and interest of Morigagor in and to all awards heretofore ‘made ot hereafier to be made forthe taking by eminent domain ofthe whole of any’ part of the above described premises, or any estate or easement therein, including any awards for change of grade of streets, all of which awards are hereby assigned to Mortgages, which is hereby authorized to collect and receive the proceeds of such awards and to give rope receipts and acquittances therefor and Mortgages shal have the right adoption to ‘apply such proceeds towards the payment of any sum owing on account o this Mortgage, the Note and the indebtedness secured theteby, notwithstanding the fact that such sum may ‘ot then be due and payable, subject to the restoration provisions hereof, C, The Chattels and the products and proceeds thereof. D. All present and future leases, subleases and licenses and any guarantees thereof, rents, issues and profits and additional rents now or at any time hereafter covering or affecting all or any portion of the Mortgaged Property (including but not limited to theee. OOTP | BAB: Sneaker Stadium Lease), and all proceeds of, and all privileges and appurtenances belonging ot in any way appertaining to, the Morigaged Property, or any part thereof, and all ‘other property subjected or required to be subjected to the len and/or security interest of the Mortgage, including, without limitation, all of the income, revenues, earnings, rents, ‘maintenance payments, tolls, isues, awards (including, without limitation, condemnation awards and insurance proceeds), products and profits thereof, which income, revenics, carnings, rents, maintenance payments, tolls, issues, awards, products and profits are hereby expressly assigned with the right to take and collect the samme upon the terms here inafter set forth; and all the estate, right, title, interest and claim whatsoever, at law and in equity, which Morigagor now has or may hereafter acquire in and to the aforementioned Property and every part thereof, provided that so long as no Event of Default (as hereina- ter defined) shall have occurred and be continuing, all such income, revenues, carnin ents, maintenance payments, tolls, issues, awards, products and profits shall remain with and under the control of Mortgagor except as otherwise expressly provided herein or in ‘any other writen agreement between Mortgagor and Morgagee. E, Allright, tile and interest of Mortgagor in and to all agreements, or con tracts, now or hereafter entered into for the sale, leasing, brokerage, development, man- ‘agement, maintenance and/or operation of the Premises (or any part thereof), including all ‘moneys due and to become due thereunder, and all permits, licenses, bonds, insurance Policies, plans and specifications relative to'the construction and/or operation ‘of the Im= rovements upon the Mortgaged Property. F, All of Mortgagor's claims and rights to the payment of damages arising from any rejection of a Lease under or pursuant to the Bankruptcy Code, 11 UsS-C. $101 136g. (the "Bankruptey Code) G.___All Morigagor's rights and remedies at any time arising under or pursuant to Section 365 of the Bankruptcy Code, including, without limitation, any rights fo reject any unexpired Lease and all of Mortgagor's rights of election under subsection (h) of said ‘Section 365, and all rights of Mortgagor to remain in possession of the Premises, H All proceeds of the conversion, voluntary or involuntary, of any of the foregoing into cash or liquidated claims, including, without limitation, proceeds of insut= ance and condemnation awards, and all righ, ttle and inerest of Mortgagor in and to all ‘unearned premiums accrued, accruing and t accrue under any or all insurance polices obtained by Mortgagor. ‘TO HAVE AND TO HOLD the Mortgaged Property, unto the Mortgagee and ite ‘successors and assigns, upon the terms, provisions and conditions herein set forth, for. ever, and Mortgagor does hereby bind itself and its successors, egal representatives, and assigns to warrant and forever defend all and singular the Mortgaged Property unto the Mortgage and its successors, against every person whomsoever lawfully elaiming or 10 elaim the same or any part thereof. ARTICLE IIT ‘SECURED INDEBTEDNESS ‘This Mortgage, and all rights, ties, interests, lens, security interests, powers, Drivileges and remedies created hereby or arising hereunder or by virtue hereof, ate given“eee 178 1844 Rete You? Fe 1699 to sou tepaymeat and pefomane of al idtitresies, dligation and labiltes of Noragraysng unr te Naess Monet ta ay aaa alist Deno eons heres ran oer Las Donan a gene. ame expenses incurred by Mortgagee, including, but not limited to, taxes, recording expenses tnd erry es In Geet wl OB Say ne san, eng spn thereof, and after an Event of Defaul the collection thereof il costs tesa fret nur by Mongar ithe enero af eae ee co nae of Wha tnd all ober roan payable by Morgaasr se he Nee nas Rieaan aware fret ndebudnese Sgn ne nes REN i MARE: (lo abilities"). Notwithstanding anything contained in this Agreement to the contrary, the maxi- ‘num amount of principal indebtedness secured by this Agreement at execution or which lunder any contingency may become secured hereby at any time hereafter is the principal sum of $1,800,572 together with interest thereon plus all sums expended or incurred by or Payable to Mortgage upon an Event of Default hereunder. ARTICLE IV PARTICULAR WARRANTIES, REPRESENTATIONS AND COVENANTS OF MORTGAGOR, Section 4.1 Warranties and Representations. Morigagor hereby warrants and represents as follows (a), Mortgagor i the actual, record and beneficial owner and holder of a 00d and marketable tile o an indefeasile fee estate in and to the Land and the Improve. ‘ments and the rest of the Mortgaged Property, subject to no lien, charge or encumbrance, except such as are listed in the Title Policy as permited exceptions. _Mortgagor owns the Chattels free and clear of liens and claims. ‘This Mortgage is and will remain a valid and enforceable second lien on the Mortgaged Property subject only to the Project Loan Mort- ‘age and said permitted exceptions and as otherwise provided herei (©) Morgagor has full power and lawful authority to mortgage the Mortgaged Property in the manner and form herein done or intended hereafter to be done. Mortgagor will preserve such ttle, and will forever warrant and defend the validity and priority of the lien hereof, against the claims of all persons and parties whomsnever, (©) The Premises is not located in an area identified by the Secretary of Housing and Urban Development as an area having special flood hazards. (d)_ Mortgagor is a duly organized and validly existing limited liability company under the laws of the State of New York, the sole members of which are the Members. ‘The undersigned Members are duly authorized by the operating agreement of the Mortgagor and by any necessary membership consent to enter into, execute, deliver ‘and carry out the terms of this Mortgage, to make the borrowings contemplated hereby, to execute, deliver and carry out the terms of the Note and Mortgage and the other Loan Documents, and to incur the obligations provided for herein and therein, {c) | Mortgagor is 99% owned by Master Associates Il, a New York gen- ral partnership, the general partners of which are BR Master Limited Partnership with @eee 242 7P6 1400" Ree 4ob7 Fo 1902 30% ownership interest and Forest City Commercial Holdings, Ine. with a 70% owner- Ship interest. (© The sole shareholder of Forest City Commercial Holdings, Inc. is Forest City Rental Properties Corporation, (g)__ RRG Master, Inc. is a New York corporation, is wholly owned by Bruce C. Ratner and is the managing member of the Mortgagor, FC Member, Inc. is & New York corporation and is wholly owned by Forest City Renial Properties Corporation. Forest City Rental Properties Corporation is a duly organized and corporation qualified to do business in the State of New York, ‘The Guarantor has full power and authority 10 consummate the transactions contemplated hereby and all Loan Documents executed by the Guarantor are valid and binding obliga: tions, enforceable in accordance with their terms. (i) The Mortgage Amount (to the full extent advanced and not repaid lunder the Note from time to time) is the principal indebtedness owed hereunder by the Mortgagor to the Morigagee without offset, counterclaim or defense by the Mortgagor in any event whatsoever, @ No consent, authorization or approval of, filing with, notice to, or exemption by, the stockholders of the Mortgagor, if any, any Governmental Authority or any other Person (except for those which have been oblained, made or given) is required {o authorize, or is required in connection with the execution, delivery and performance of the Loan Documents or is required as a condition to the validity or enforceability of the Loan Documents, No provision of any applicable statute, law (including, without limita. tion, any applicable usury or similar law), rule or regulation of any Governmental Au. thority prevents the execution, delivery or performance of, or affects the validity of, the Loan Documents, () This Mortgage and the other Loan Documents constitute the valid and legally binding obligations of the Mortgagor enforceable in accordance with their respective terms, () There are no actions, suits, arbittation proceedings or claims (whether or not purportedly on behalf of the Mortgagor) pending or, to the knowledge of the Mortgagor, threatened against the Mortgagor, or maintained by the Mortgagor af law or in equity, before any Governmental Authority which (I) could reasonably ‘be expected {o preclude the performance by Mortgagor of its obligations under the Loan Documents, or (i) call into question the validity or enforceability of any of the Loan Documents, (m) ‘The Mortgagor is not in default under any agreement to which it is a arty or by which it or the Mortgaged Property is bound, the effect of which default could Teasonably be expected to have a Material Adverse Effect or preclude the performance by Mortgagor of its obligations under the Loan Documents. (1) No provision of any existing mortgage, indenture, contract, agreement, statute, rule, regulation, judgment, decree or order binding on the Mortgagor or affecting the Morigaged Property conflicis with, or requires any consent which has not already been obtained under, or would in any way prevent the execution, delivery or per formance of the terms of, the Loan Documents. “The execution, delivery or carrying’ outHEEL YO B76 790 | of the terms of the Loan Documents will not constitute a default under, or result in the Greation or imposition of, or obligation to create, any lien upon the Mortgaged Property pursuant to the tenms of any such mortgage, indenture, contract or agreement. Section 4,2 Further Assurances. Mortgagor will, at its sole expense, do, ¢x- cute, acknowledge and deliver every further act, deed, conveyance, mortgage, assign. hont, notice of assignment, transfer or assurance as Mortgages shall from time to time reasonably requie, forthe beter assuring, conveying, asiging, ansering and on; Timing unto Morigagee the property and fights hereby conveyed, mortgaged or assigned Or intended now of hereafter so to be, or Which Mortgagor may be or may hereafter be- tome bound to convey, mortgage or assign to Mortgagee or for carrying out the intention Sriuciltating the performance ofthe terms ofthis Mortgage, and for filing, registering or Secording this Mortgage and, promptly after demand, will execute and deliver, and heteby tuthorizes Mortgagee fo execute inthe name of Mortgagor to the extent it may lawfully do $0. one or more financing statements, chattel mortgages or comparable security insru- Imonis, and renewals thereof, to evidenoe more effectively the lien hereof upon the Chat- tels Section 4.3 Filings, Recordings, Payments etc. (®) — Mortgagor forthwith upon the execution of this Mortgage, and thereafter from time to time, will, at its expense, cause this Mortgage and any security instrument creating a lien or evidencing the lien hereof upon the Chattels and each instru iment of further assurance to be filed, registered or recorded in such manaer and in such ples as mayb required by any preset ot future law in order to publish notice of and fully to protest the Hen beret Upon ‘and the interest of Mortgagee in, the Morigaged roperty. (0) Mortgagor will pay all taxes, filing, registration and recording fees, ‘and all expenses incident to the execution and acknowledgment of this Mortgage, the Note, the Agreement, if any, any supplemental morigage, any other Loan Document, and ‘any security instrument with respect (0 the Chattels, and'any instrument of further assur- ange, and all federal, state, county and municipal stamp taxes and other taxes, duties, im- posts, assessments and charges arising out of or in connection with the execution and de Fivery of the Note, this Mortgege, the Building Loan Agreement, any supplemental rior gage, eny other Loan Document, any security instrument with respect to the Chatels or ny instrument or further assurance, other than income, franchise or other similar taxes imposed on Mortgagee in respect of income derived by Mortgagee under the Note or any ‘other Loan Document, Section 4.4. Payment of Sums Due, Mortgagor will punctually pay the principal ‘and interest and all other sums to become due in respect of this Mortgage, the Note, the Building Loan Agreement, and any other Loan Document at the time and place and in the manner specified herein or in the Note or any other Loan Document, as applicable, ac- Cording {0 the true infent and meaning thereof and without offset, counterclaim or defense, and without deduction or eet for ty amount payable for taxes, all in immediately available funds, Section 4.5 After Acquired Property. All right, title and interest of Mortgagor in and to all extensions, improvements, betierments, renewals, substitutes and replace- ‘ments of, and all additions and appurtenances to, the Mortgaged Property, hereafter ac- ‘ited by or released to Morigagor or constructed, assembled or placed by Morigagor onFEEL YO b7PG 1.902 the Promises, and all conversions of the security constituted thereby, immediately upon such acquisition, release, construction, assembling, placement OF conversion, as the case may be, and in each such case, without any further morigage, conveyance, assignment oF ‘other act by Mortgagor, shall become subject to the lien of this Mortgage as fully and completely, and with the same effect, as though now owned by Mongagor and specifcaly described in the granting clauses hereof, but al any and all times Morigagor will execute and deliver to Morigagce any and all such further assurances, mortgages. conveyances or assignments thereof as Morgagee may reasonably require for the purpose of expressing and specifically subjecting the same to the lien of this Mortgage. Section 4.6 Taxes, Fees, Other Charges (a) Mortgagor, from time to time when the same shall become due, and prior to the date of imposition of interest or penalty, will pay and discharge, or cause 10 be paid and discharged, all taxes of every kind and nature (including real and personal property taxes and income, franchise, withholding, transfer or recordation taxes. profits land gross receipt 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 Morigaged Property or any part thereof or upon the revenues, rents, issues, income and profits of the Premises or arising in respect of the occupancy, use of possession thereof, (b) _ Mortgagor will, within 30 days after Mortgagee's request therefor, deliver to Morigagee Mortgagor's certification of Mortgagor's payment of each real estate {ax and assessment on the due date thereof, together with evidence of such payment satis factory to Morigagee. (©) Mortgage may at its option, at any time and from time to time after the occurrence of an Event of Default hereunder, which option shall be exercised by writ. ten nate fo Morgagr, ree the deposit by Mo ggor a he tine of each payinen of an installment of interest or principal under the Note of an additional amount sufficient (0 discharge the obligations under this Section 4.6 when they become due. The determination of the amount so payable and of the fractional part theteof to be deposited with Mort. gage, so that the aggregate of such deposit shall be sufficient for this purpose, shall be made by Mortgagee in its sole but reasonable discretion, Such amounts shall be held by ‘Mortgage in an interest beating account acceptable 10 Mortgagee with interest to be added to the sums held in said account and applied to the payment of the obligations in Tespect to which such amounts were deposited or, after the occurrence of an Event of De~ fault at the option of Mortgagee and subject to applicable law, 10 the payment of the Li- abilities in such order or priority as Mortgagee shall determine, on or before the respective dates on which the same or any of them would become delinquent. If one month prior to the due date of any ofthe obligations under this subsection (c) the amounts then on deposit therefor shall be insufficient forthe payment of such obligations in full, Mortgagor wit ten (10) days after demand shall deposit the amount of the deficiency with Mortgage Nothing herein contained shall be deemed to affect any right or remedy of Mortgage under the provisions of this Morgage or of any statute or rule of law to pay any. such amount and tc add the amount so paid together with interest at the Default Rate to the indebiedness hereby secured. (4) Mortgagor will pay, from time to time when the same shall become due, all lawful and proper claims and demands of mechanics, materialmen, laborers, and ‘others which, if unpaid, might result in, or permit the creation of, alien on the MorigagedPEEL b TPE | 903 Property or any part thereof, or on the revenues, rents, issues, income and profits arising therefrom and in gencral will do or cause to be done everything necessary so thatthe lien hereof shall be fully preserved, atthe cost of Mortgagor, without expense to Mortgage. (©) Mortgagor will pay all taxes including, without limitation, any mort- ‘gage, transfer, gains, and recordation taxes (but not income, franchise or similar taxes) imposed on Morigagee by reason of or in connection with the Note or this Mortgage or any other Laan Document or Mortgagee's interest therein. (9 Mortgagor shall indemnify and hold Mortgagee harmless from any and all tax claims which may be made against Mortgagee relative to the Loan or the Mort- gaged Property (but not income or franchise taxes or assessments in respect of income derived by Mortgagee under the Note or any other Loan Document) Section 4.7 Law Changes. In the event of the present existence or the passage after the date of the mortgage of any law of the United States of America or the State of New York or any municipality thereof deducting from the value of real property for the purposes of taxation any lien thereon or changing in any way the laws for the taxation of mortgages ot debts secured by mortgage for state or local purposes or the manner of collection of any such taxes and imposing a tax, either directly or indirectly, on this Mort ‘age, or the Note, the holder of this Mortgage and the debt which it secures shall have the Fight to declare the unpaid principal balance and the interest due on a date to be specified by not less than ten (10) days written notice to Mortgagor. Mortgagee shall have a similar right if, at any time, the applicable usury laws prohibit collection of interest at the rates specified herein or in the Note, this Mortgage, of any other Loan Document Section 4.8 Insurance Coverages. Mortgagor agrees to at all times provide, maintain and keep in force the following policies of insurance: (@) Insurance against loss or damage to the Mortgaged Property by fire and any of the risks covered by insurance of the type now known as "broad form coverage” in an amount reasonably satisfactory to Mortgagee and in amount which is suficient {0 void any co-insurance requirements, and with a deductible approved by Morigagee (act- ing reasonably), from the 10ss payable for any casualty. The policies of insurance carried jn accordance with this subsection (a) shall contain a “Replacement Cost Endorsement”, a waiver of co-insurance endorsement and a "Permission to Occupy Endorsement”; , Commercial public libilty Insurance Gneluding coverage fr eeva tors and escalators, if any, on the Premises and, if any construction of new improvements coveurs after execution of this Morigage, completed operations coverage for one year after consiruction of the Improvements has been completed) on an "occurrence basis" against claims for "personal injury” including, without limitation, bodily injury, death or property damage occurring on, in or about the Premises, such insurance to afford immediate mink ‘mum protection to limits of not less than that reasonably required by Mortgage; (©) __ Worker's compensation insurance including employer's liability insurance for all employees of Mortgagor, if any, engaged on or with respect to the Pre- rises in such amount as is reasonably satisfactory to Morigagee, or, if such limits are hed by law, in such amounts;RELY Ob DPE 1 G04 (0) en luting the course of any demolition, sree 1 mprovements on the Mongayed Proneny totes ance against “all risks of physical lost i during constriction of such I 7 it Mon- agee, in non-reporting form, in an a Policy of insurance shail contain the * ccupancy" endorsement and a waiver sey, pratt and machinery insurance covering pressure vessels, air brilers, machinery, pressure piping, heating. ai conditioning and elevator equipr aout, €Quipment, provided the improvements cone equipment of such insurance against 1038 of occupancy or use Amounis as are reasonably satisfactory Spor ant 5 and busines ivereupon coveags, if ppicabe, either as ‘pare policy or as pat of the casualty pli referred toe eat @) above; Pesce oumentl insurance in form, substance and coverage satsfac- repress” MOMEREE in all respects sued by ares catatoes Mortgagee in ali respects; Qa echt policies of insurance relating to Property required by terms of this Mortgage shall contain a standard oF sal ey Negligence endorsement providing Suche pote the insurer that any loss shall be payed accordance with the terms of meanialigy notwithstanding any act or nepligenss op Mortgagor which might otherwise Ti 2 fOrfeture of such insurance and the Sorter agreement of the insurer waiving all "hs of et off, counterclaim or deductions again Mortgagor. Section 4.9 Miscellaneous tnsurance Related Provisions, (2) y afl] Policies of insurance shall be issued by companies and in fave ns teasonably satisfactory to Morigagee sad it policies of propeny insurance shall have attached thereto the standard 0 One Clause referred to in Section 4.8(h) above Set of Mortgages, not sublect to comtntss es insurance, all in form reasonably GMbfactory to Morigagee. Morgagor shall facet Mortgagee with a certified copy of the original paticy wi ct verage. At least thirty G0) days Prior to the expi ; hall furnish Mortgage with ev: dence reasonably sa ing i ance in force a8 requi amounts carried in excess of the re by Mortgagee, shall be in form ree, in full force and effect, and shallREEL DHT G1 405 If the insurance, or any part thereof, shall expire, or be withdrawn, or become void for ‘any reason, Mortgagor shall immediately upon letrning of such expiration or termination place new insurance on the Mortgaged Property complying with the terms and conditions (of Section 4.8 and 4.9 hereof, (b) In the event Mortgagor fails to provide, maintain, keep in force or deliver and furnish to Mortgage the evidence of insurance required by this Mortguge, Mortgagee may procure such insurance or single-interest insurance for such risks coveri Mortgagee's interest, and Mortgagor will pay all premiums thereon promptly upon demand by Mortgage, and until such payment is made by Mortgagor the amount of all such premiuins, together with interest thereon at the Default Rate shall be secured by the mortgage. (© After the happening of any casualty to the Mortgaged Property or any part thereof, Mortgagor shall give prompt written notice thereof to Morigagee, and Mortage tny inakeprof of Jos if not made promprly by Morgagor. Inthe event of such loss or damage all proceeds of insurance shall be payable to Mortgagee and Mort gagee shall have the right to join Mortgagor in adjusting or compromising any claims for Toss, damage or destruction in excess of $100,000 under any policy or policies of insurance. Each insurance company concerned is hereby authorized end directed to make pay- ‘ment under such insurance, including return of unearned premiums, directly to Morigagee instead of to Mortgagor and Mortgagee jointly, and Mortgagor irrevocably appoints Mort- sage as Mortgagor's attorney-in-fact to endorse any draft therefor. (@) Nothing herein contained shall be deemed to excuse Mortgagor from repairing or maintaining the Premises as provided in Section 4.15 hereof or restoring all damage or destruction to the Morigaged Property, regardless of whether or not there are insurance proceeds available or whether any such proceeds are sufficient in amount, and the application or release by Mortgagee of any insurance proceeds shall not cute or waive any default oF notice of default under the mortgage ot invalidate any act done pursuant to such notice, (©) ___ Any monies in excess of $100,000 received as payment for loss under any insurance shall be paid over to Mortgagee to be applied to the prepayment of the Note and/or for the restoration of the Improvements as hereinafter set forth. Receipt by Mortgagee and application in reduction of indebtedness cf any insurance proceeds less than the full amount of the then outstanding interest, principal and other sums due here under, and under the Note and this Mortgage, shall not defer, alter or modify Mortgagor's obligation to continue to pay the regular installments of principal, f any, interest on the ‘outstanding principal balance and other charges specified in the Note and herein, (Inthe event of forectosure of this Mortgage or other transfer of title ‘or assignment of the Premises in extinguishment, in whole or in part, of the debt secured hereby, allright, title and interest of Mortgagor in and to all policies of insurance required by Section 4.8 (other than blanket polices of insurance covering other properties) and this ‘Section shall to the extent permitted under said policies inure to the benefit of and pass to ‘the successor in interest to Mortgagor or the purchaser or grantee of the Premises. Mortgagor shall not take out separate insurance concurrent in form ‘or contributing in the event of loss with that required to be maintained under Section 48, unless Mortgagee has approved the insurance company and the formn and content of the insurance policy, including, without limitation, the naming thereon of Mortgagee as aREEL YO 1P6 1906 named insured with loss payable to Mortgage under a standard mortgagee endorsement of the character above described and the inclusion of a provision therein obligating said insurance company to provide Mortgagee with notice thirty (30) days prior to cancellation, lapse or material alteration of any policy. Morigagor shall immediately notify Morgasee whenever any such separate insurance 1s taken out and shall promptly deliver to. Mor. sage a certified copy of the policy or policies of such insurance. (i) __ Ifa part of the Mortgaged Property shall be destroyed by fire, flood ‘other casualty, and the cost of restoration of the Premises is $250,000 or less, then Morigagor may use such proceeds to restore the Mortgaged Property, provided that (i) the net insurance proceeds are sufficient in the opinion of Mortgagee on advice from its ar- chiteet to restore the Morigaged Property, or if such procerds are insufficient to restore the Mortgaged Property, Morigagor shail have deposited with Mortgagee ‘ash in an amount equal tothe difference between the cost of such restoration and such proceeds, (i) there shal exist no Event of Default, nor any event which, after notice or the passage of time would become an Event of Default (the cure however of a defay ing an Event of Default shall be deemed to satisfy this subparagraph (i), (i) in the opinion of Mortgagee on advice from its architect the Morigaged Property can be completely restored within 180 days (or the maximum period of time covered by rent insurance then in effect with respect to the Morigaged Property but in no event more than 270 days and Provided no Leases are terminable as a result of such extended period whose termination would have a Material Adverse Effect or results in a Material Adverse Change) from the occurrence of such casualty or by the Maturity Date, whichever occurs first; (iv) annual gross and net income of the Mortgaged Property after the restoration are projected by Mortgagee to result in the continued compliance with the debt service coverage ratio set forth in Section 4.28 hereof; (¥) Sneaker Stadium has no right to terminate the Sneaker Staclum Lease a a rest of such casually provied restrain oour in accordance wih the terms hereof and Sneaker Stadium confirms same to the Mortgage in writing; (vi the 4oan to value ratio ofthe Loan at the time of restoration shall not be greater than the previously existing loan to value ratio that was, based upon the Appraisal delivered in connection with the making of the Mortgage, which loan to value ratio with respect to the pro. posed restoration of the Morigaged Property shall be based upon a new current Appraisal to be prepared by an Appraiser, the entie cost of which Appraisal shall be paid by Mort ‘agor. In the event insurance proceeds are used to repair or restore the Mortgaged Prop- ety pursuant to this Section, Morigagor shall obtain, at its sole cost and expense, an ar- hits who shal uit plans to Mortgage forte repair o estorton of he Morgnged Property indicating that such repair or restoration can be completed within the period provided for herein, together with a budget itemizing the projected costs of such repait oF restoration. Said plans and budget are subject tothe reasonable approval of Morigegee. Mortgagor shall also obiain and post, at its sole cost and expense, all necessary Feder ‘State and local permits and approvals prior to the commencement of such repait or res tation. Mortgagor agrees that all insurance proceeds to be used to repait or restore the Mortgaged Property shall be held by Mortgagee and disbursed periodically: (i) on advice from Mortgagee's architect (who shall be employed by Mortgagee at Mortgagor's sole expense) that the work completed or materials installed conform to said budget and plans, 4 reasonably approved by Mortgage; and (ii) upon presentment of receipted bills and releases reasonably satisfactory to Mortgagee. The expenses incurred by Morigagee, including architects and atone’ fees, and all sof and bard cousin connection with sich restoration, shall be paid by Mortgagor to the exient insurance proceeds are insufficient to pay same. At no time shall Mortgagee be obligated to disburse any funds if the undis. bursed balance is, in the opinion of Mortgages fused on advice from is architect, insufficient to timely complete the restoration of the Mortgaged Property free and clear of allFEEL NOB TPG 1907 liens. Mortgagor agrees to post such bonds, obtain such guaranteed maximum price gen- ‘eral contract agreement and/or enter into such agreements and arrangements as Morigagee may reasonably require to insure lien-ftee completion of such repairs or restoration by the end of the period provided herein for completion of such repairs or restoration, (If a part of the Mortgaged Property shall he destroyed by fire, flood or other casualty and the pr 8 of paragraph (h) above does not apply or the conditions thereof have not been satisfied. the Mortgages may in its sole discretion either permit Morigagor to use such proceeds for restoration on terms. and conditions satisfactory t0 ‘Mortgagee in its sole discretion or Mortgagee may apply such proceeds in reduction of the Lean and any Fined Rate Funding Lost or Libor Funding Lost, a hese terms are defined in the Note. Section 4.10 Insurance Escrow. Mortgagee may at its option at any time ‘and from time to time after the occurrence of an Event of Default hereunder, which option shall be exercised by written notice to Mortgagor, require the deposit by Mortgagor, at the time of each payment of an installment of inferest or principal under the Note, of an additional amount sufficient to discharge the obligations of the Mortgagor under Sections 4.8 and 4.9 when they become due. The determination of the amount so payable and of the fractional part thereof to be deposited with Mortgagee with each installment, so that the regate of such deposit shall be sufficient for this purpose, shall be made by Mortgagee in its sole but reasonable discretion, Such amounts shall be held by Mortgagee in an interest bearing account acceptable to Mortgagee with interest to be added to the sums held in said account and applied to the payment of the obligations in respect to which such amounts were deposited or, at the option of Mortgagee, 10 the payment of said obligations in such order or priority as Mortgage shall determine, on or before the respective dates ‘on which the same or any of them would become delinquent. If one month prior to the due date of any of the aforementioned obligations the amounts then on deposit therefor shall be insufficient for the payment of such obligations in full, Morigagor within ten (10) days after demand shall deposit the amount of the deficiency with Mortgagee. Nothing herein contained shall be deemed 10 affect any right or remedy of Mortgagee under the plovisions of the mortgage or of any statute oF rule of law to pay any such amount and to add the amount so paid together with interest at the Default Rate to the indebtedness hereby secured, Section 4.11 Condemnation, (2) Inthe event the Morigaged Property or any material part thereof or imerest therein, be taken or damaged by eminent domain, alteration of the grade of any street, or other inj rease in the value of the Mortgaged Property. by reason of | any public or quasi-public improvement or condemnation proceeding, or in any other similar manner ("Condemnation"), or should Mortgagor receive any rotice or other information regarding such Condemination or a proposed Condemnation, Mortgagor shall ‘ive prompt written notice thereof to Mortgagee. (0). Mortgagee shall be entitled to receive all compensation, awards and other payments or relief payable as a result of any such Condemnation, and shall be en- tiled, at its option, to participate in any Condemnation proceedings. Mortgagor shall ex- cute and deliver to Mongngee, promptly pon request erefor, al instruments necessary to enable Mortgagee to participate in any such proceedings, employing on Morigagee’s behalf, at Mortgagor's sole expense, such counsel as Morigagee shall select. Mortgagee shall also be entitled to join in any compromise or settlement in connection with any suchREEL 406 7P61908 Condemnation. All such compensation, awards, damages, rights of action and proceeds awarded to Mongagor (the “Proceeds") are hereby assigned to Mortgagee and Mortgagor agrees to execule such further assignments of the Proceeds as Morigagee may require. Mortgagee shall be under no obligation to question the amount of any such award or com Pensation and may accept the same in the amount paid. (©) Nothing herein contained shall be deemed to excuse Mortgagor from tgPuring or maining the Premises as provided in Seton 4.18 hereof or restoring all damage or destruction to the Mortgaged Property, regardless of whether ot not there are proceeds available or whether any such Proceeds are sufficient in amount, and the application or release by Mortgagee of any Proceeds shall not cure or waive any default oF notice of default under this Mortgage or invalidate any act done pursuant to such notice. () Any monies received as a condemnation award shall be paid over to Morigagee to be applied it the option of Mortgagee tothe prepayment of the Note and/or for the restoration ofthe Improvements, Receipt by Morigagee and application in reduc tion of indebtedness of any Proceeds less than the full amount of the then outstanding Lic abilities shall not defer, alter or modify Mortgagor's obligation to continue to pay the Tega instalment of principal, interest on the oustanding principal balance and her charges specified inthe Note and herein. (©) If prior to the receipt of the Proceeds by Morigagee the Premises shall have been sold on foreclosure of this Mortgage, Morigagee shall, nevertheless. have the right to receive the Proceeds and to retain, for its own account, (i)'an amount equal 1o the counsel fees, costs and disbursements incurred by Mortgagee in connection with col. lection of the Proceeds and not repaid by Mortgagor and (i) the full amount of all such Proceeds if Mongage is the successful purchaser athe foreclosure sale, 1 the extet of amounts owed under the Note or hereunder, Cg HF aa tte tere hall cecur a parla condemnation or parti taking, and the cost of restoration of the Premises is $250,000 or less, then. Mortgagor may use such Proceeds to restore the Mortgaged Property, provided that () the net Pro- ceeds are sufficient in the opinion of Morigagee on advice from its architect to restore the Mortgaged Propery, or if such proceeds are insufficient to restore the Morlgaged. Prop. erty, Mortgagor shall have deposited with Mortgagee cash in an amount equal 10 the df. ference between the cost of such restoration and such Proceeds, (i) there shall Event of Default, nor any event which, after notice or the passage of time would become an Event of Default (he cure however of a default prior toils becoming an Event of De. fault shall be deemed to satisfy this subparagraph (i), (i) in te opinion of Morigagee on advice from its architect the Mortgaged Property can be completely restored within 180 days (or the maximum period of time covered by rent insurance then in effect with respect to the Mortgaged Property but in no event more than 270 days and provided no Leases are terminable as a result of such extended period whose termination Would have a Material Adverse Effector results in a Material Adverse Change) from the occurrence of such par- tial condemnation or taking, or by the Maturity Date, whichever occurs fist, (iv) anu] gross and net income of the Mortgaged Property after the restoration, as projected by Mortgagee, shall result in the continued compliance with the debt service coverage ratio set forth in Section 4,28 hereof; (¥) Sneaker Stadium has no right to terminate the Sneaker Stadium Lease as a result of such condemnation or taking provided restoration occurs in accordance with the terms hereof and Sneaker Stadium confirms same to the Mortgagee inecu yOW7HE NAOT writing; (vi) Morigagee shall determine, based on advice from its architect, that the con- templeted restoration of the Morigaged Property shall, when completed, render the Mort- gaged Property a complete, economically viable architectural unt of substantially the same Usefulness, design and construction and fully functional for the same purposes and uses as existed prior to the condemnation; and (vi) the loan to value ratio of the Loan at the time of restoration shall not be greater than the loan to value ratio based upon the existing Ap- praisal that was delivered in connection with the making of this Mortgage, which loan to Value ratio with respect to the proposed restoration of the Morigaged Property shall be ‘based upon an Appraisal, the entire cost of which Appraisal shall be paid by Mortgagor. Inthe event such condemnation award is used to repair or restore the Mortgaged Property ‘pursuant to this Section, Mortgagor shall obtain, at its sole cost and expense, an ar ‘who shall submit plans to Morigagee for the restoration of the Mortgaged Property indi cating that such restoration can be completed within the period provided for herein, to- ether with a budget itemizing the projected costs of such restoration. Said plans and bud- et ate subject to the reasonable approval of Mortgage. Mortgagor stall also obtain and Post, at its sole cost and expense, all necessary Federal, State and local permits and approvals prior to the commencement of such restoration. Mortgagor agrees that condemnation awards to be used to restore the Mortgaged Property shall be held by Mortgagee and disbursed periodically: (i) on advice from Morigagee's architect (who shall be employed by Mortgagee at Morigagor's sole expense) that the work completed or materials installed conform to stid budget and plans, as reasonably approved by Mortgagee; and (ji) upon presentment of receipted bills and releases reasonably satisfactory to Mortgage. The expenses incurred by Mortgagee, including architects’ and attorneys’ fees, and all soft and hard costs in connection with such restoration, shall be paid by Morigagor to the extent Condemnation awards ae insulin 0 pay sme; At no tine stall Mortgage be oli gated to disburse any funds if the undisbursed balance is, in the opinion of Mortgagce based on advice from its architect, insuficient to timely complete the restoration of the Mortgaged Property free and clear ‘ofall liens. Morigagor agrees to post such bonds, obtain such guaranteed maximum price general contract agreement and/or enter info ‘such agreements and arrangements as Mortgagee may reasonably require to insure lien-free completion of such repairs or restoration by the end of the period provided herein for completion of such repairs or restoration, (g) Ifa part of the Mortgaged Property shall be subject to condemnation or taking in whole or in part and the provisions of paragraph (f) above does not apply or the conditions thereof have not been satisfied, the Morigagee may in its sole discretion either permit Mortgagor to use such Proceeds for restoration on terms and conditions satisfactory {to Mortgagee in its sole discretion or Mortgage apply such Proceeds in reduction of the Loan and any Fixed Rate Funding Loss or Libor Funding Los, as these tems are defined in the Note Section 4.12 Mortgagee's Payment or Performance of Mortgagor's Oblig tlons. Mortgagor agrees that if it fails to make, or cause to be made, any payment oF to doo ease 1 be, done, any acta ten prove, then Morgagee iy upon (vent (26) days prior notice (except in the event of an emergency), but shall not be obligated to, take such payment or undertake such act, Mortgagee being authorized to enter upon the Premises for such purposes, and any money so paid and any expenses incurred by Mort- gages shall be a demand obligation of Motgagor, shal bear interest at the Default Rate rom the date of making such payment until paid and shall be part of the indebtedness se- ‘cured by this Mortgage, and Mortgagee after making such payment shall be subrogated to all righls of the person receiving payment, The provisions of this Section 4.12 shall noten Sales wey Ob1PE 1910 prevent any default in the observance of any covenant contained herein or in the Note or any other Loan Document from constituting an Event of Default, Section 4.13 Mortgagr’s Records and Inspection Thereof Moryagor, wil keep adequate records and books of account in accordance with generally accepted ac- ‘counting principles and will permit Morigagee, by its agents, accountants and attorneys, t0 Visit and Inspect the Premises and examine its records and books of account and to discuss its affairs, finances and accounts with Mortgagor upon reasonable prior notice and at such reasonable times as may be requested by Mortgagee. Section 4.14 Information Covenants. Morigagor shall during the term of the Loan: @ erating Statement Submit to Mortgage within 45 days after the end of each fiscal quarter, the operating statement of Morigagor pertaining to all expenses incurred by Mortgagor in connection with its operation of the Premises, together with its cetfication that Sneaker Stadium (and/or any other tenant under a Lease at the Premises approved by the Mortgagec) is current in its payments and all other obligetions under the Sneaker Stadium Lease (and/or any other Lease at the Pre- iiss approved bythe Morag) and in compliance with th tems and condos of he Sneaker Stadium Lease (and/or any other Lease al the Premises approved by the Mort- agee) and any related agreements, or setting forth the facts and circumstances constituting, the exceptions to the foregoing certifications. All such statements and rent rolls of Mort= ‘agor shall be certified by Morigagor to be true and correct as of the date so delivered (©) Annual Financial Statements. Submit to Mortgagee annual financial statements of the Mortgagor for each fiscal year of Mortgagee no later than 120 days after the end of each fiscal year, prepared by a certified public accountant selecied by Mort- gagor, including a balance sheet and statement of profit and loss prepared in accordance with GAAP, certified by such accountant and by Mortgagor's Chief Financial Officer to be true and correct © z At the time of the delivery of the financial statements provided for in Section 4.14(b), a certificate of the chief financial officer or managing pariner ofthe Moriagor a the case muy be, tothe effect that 0 the best of his or her knowledge, no Event of Default has occurred and is continuing or, if any Event of Default has occurred and is continuing, specifying the nature and extent thereof and any actions taken or proposed tobe taken with respect 10 any such Event of Default. (@)__ Annual Tile Certifications. During the Mini-Permanent Term the Mortgage may obtain at the Mortgagor's expense an annual ttle update (but not redated litle insurance) and municipal violations search from a New York ttle insurance company indicating the then state of tite and violations of the Premises (© Appraisals. Except as otherwise expressly provided in the Building Loan Agreement, submit to Mortgage within thirty (30) days after notice, an Appraisal of the Mortgaged Propey to be prepared at Morigagor's sole cost and expene by an Ape praiser, which requirement for an Appraistl may be invoked by the Mortgagee from time to time after the occurrence of an Event of Defiult or if required or requested by any regulatory agency or directive. Mortgagor shall promptly pay to the Mortgage upon demand the cost of any appraisal, which payment shall be applied by the Mortgage as aFEEL HORDE IAIE reimbursement to itself if the Mortgage prepared or obtained the Appraisal, or if the Mortgagee previously paid an Appraiser for any reason. (© Environmental Audits. Submit to Mortgagee within thiny (30) days after notice, an environmental audit or assessment of the Mortgaged Property of the type ‘and scope specified by the Morigagee to be prepared at the Mortgagor's sole cost and expense by an environmental engineer or consultant approved by the Mortgagee, which re- uirement for an environmental audit may be invoked by the Mortgages from time to time if the Mortgagee determines that any representation under Section 4.23(b) hereof may be incorrect oF that the Mortgagor has failed to comply with any covenant or agreement set forth in any other subsection of Section 4,23 of this Mortgage, Morigagor shall promptly pay to the Mortgagee the entire cost of any environmental audit or assessment relating to the Mortgaged Property upon demand, which payment shall be applied by the Mortgagee as a reimbursement to itself ifthe Mortgage prepared or caused any such environmental audit or assessment t0 be obtained, or if the Mortgagee previously paid an environmental engineer or consultant for any reason, (@) Other In Events of Default Deliver prompt writen notice to the Mortgagee if: (1) any indebtedness of the Mortgagor is declared or shal! become due and payable prior toils sated maturity, of called and not paid when due, (i) a default shall have Occurred under any note or other evidence of indebtedness or the holder of any such note or other evidence of indebiedness has the right to declare any such indebtedness due and payable prior to its stated maturity asa result of such default, or (iii) there shall occur an Event of Default, or an event which, after the passage of time and/or the giving Of noice would become an Event of Default (H) Notices from Governmental Authority. Deliver to the Morigegee prompt written notice of: () any citation, summons, subpoena, order to show cause, municipal violation or other order relating to the Mortgaged Property naming the Mortgagor (or the Mortgaged Property a party to any proceeding before any Governmental Authority ‘which might have a Material Adverse Effect or which calls into question the validity or enforceability of any of the Loan Documents, and include with such notice a copy of such citation, surimons, subpoena, order to show cause, municipal violation or other order, (i) any lapse or other termination of any material license, certificate, permit, franchise or other authorization sued to the Morigagor or the Moriaged Property by any Govern- ‘mental Authority, (ii) any refusal by any Governmental Authority to renew or extend any such material license, permit, certificate, franchise or other authorization, and (iv) any dispute between the Mortgagor and any Governmental Authority or Person, which dispute ‘might have a Material Adverse Effect. : () Other Information. Delives to Mortgages with reasonable prompt- ness after written request by Mortgagee, such other financial and other information as Mortgagee may reasonably request from time to time. @ Mortgagor’s Statement. Submit to the Morigagee within ten (10) days upon request in person ot request by mal, a writen statement duly acknowledged of the amount die whether for principal or interest on this Mortgage and whether any offsets or defenses or counterclaims exist against the Liabilities and, if any are alleged to exist, the amoust and ature of each such offset or defense or courerelaim shal beset forth in full detailREEL YO DPCI VIZ Section 4.15 Waste, Maintenance, Repairs, Alterations. Mortgagor will not threaten, commit, permit or suffer any waste to occur on or to the Mortgaged Ptoperty or any part thereof of alter or demolish the Mortgaged Property or any part thereof in any ‘manner of make any change in it use or any change which will in any way inerease any fire or other hazards arising out of construction or operation of the Mortgaged Property. Notwithstanding the preceding restrictions of this Section 4.15, the Mortgagor may make the following alterations (each a “Permitted Alteration") to the Premises after the commencement of the Mini-Permanent Term without the Mortgagee's prior written consent (@) non-structural alterations, (b) structural alterations costing less than $50,000 in the aggregate; or (©) tenant improvement work to the extent expressly required under a Lease, During the Construction Term, any alterations must be made in accordance with the provisions of the Building Loan Agreement Mortgagor will, at all times, maintain the Mortgaged Property in good oper order and condition and will promptly make, from time to time, all repairs, renewals, replacements, additions and improvements in connection therewith which are’needful ot desirable to such end. Any improvements which may now or hereafter be located on the Land and owned by Morigagor shall not be removed, demolished or substantially altered, except for Permitted Alterations, nor shall any Chattels be removed, without the prior ‘written consent of Mortgagee, except where the appropriate replacements free of superior title, liens and claims are immediately made of value at least equal to the value of the Cattels removed. Section 4.16 Enforcement Expenses. Except where inconsistent withthe laws of the State of New York, Mortgagor agrees that if any action or proceeding be commenced, including an action to foreclose this Mortgage or to collect the indebtedness hereby se- ‘cured, to which action or proceeding Mortgagee is made a party by reason of the execution of this Mortgage or the Note, or in which it becomes necessary to defend or uphold the lien of this Mortgage or to foreclose this Mortgage, all sums paid by Morigagee for the expense of any litigation to prosecute or defend the transaction and the right created hereby or to foreclose this Mortgage (including reasonable attorneys' fees) shall be paid by Mortgagor together with interest thereon from date of payment by Mortgages at the Default Rate. All such sums paid and the interest thereon shall be immediately due and payable on demand, shall be a lien upon the Mortgaged Property, and shall be secured hereby as shall be all such sums incurred in connection with enforcement by Mortgagee of its rights hereunder or under any other Loan Document. Section 4.17 Adequate Facilities. Mortgagor covenants that the Mortgaged Prop- erty is now or will be upon completion, and until the Liabilities are fully repaid, will be, provided with adequate gas, sanitary sewer, storm sewer, electricity, water and other fa cities necessary forthe ui, oeupancy and operation ofthe Premises for thir intended Purposes, and Mortgagor will at all times comply with all applicable laws and regulations relating to said facilities Section 4.18 Defense of Mortgagee's Interests. If the interest of Mortgagee in the Mortgaged Property or any part thereof or the lien or security interest of the mortgageREEL AO 6 1PE 1443 {hercon shall be attacked, directly or indirectly, or if legal proceedings shall be instituted Tron a ee eaBe" ot Morgagce with respect thereto or aguinst Mortgage, Moree, Mongngor ins thereof, will promptly’ give writen noice theeot 10" Mongager and fo sation, siotion $19 Section 13 Lien Law Covenant. In compliance with Section 13 of the Lien Law, Morigagor agrees that it wll receive the advances seeseed by this Mortgage Punpay old the Fight to receive such advances as a trust fund to be apphed in eee ihe nayonetying the cost of the Improvements, and Mongagor will apply the san os to he payment of such costs before using any part ofthe same for any offey preps se beef, 4:20 No Impairment of Security. In no event shall Mongagor do or Pinson econ OF omit to do or permit the omission of, any act of thing. helo Snpal he Of hich would materially impair the security’ of the mortgage materially ‘impair the value of the Mortgaged Property ot any part thereof, seston 4.21 Restriction against Transfer, Mortgage, Conveyance and Sale, (> Mortengor will not directly o indirectly, by rnster, morgage, come pee see eyance or Syhfortgagor permit, do or sufer the asignmen, lease, tanele sole ace thoeot of ay ambvanes of furher mortgaging ofthe Mortaged Property, of aa) at thereof or any interest therein, without tke expres prior writen consent of Mongager, Sukie alt {ot in subparagraph () below. ‘While te Loan is ousting, none a ten conser oe te*Ship of Morgagor may be changed without the expres price one To change oy Mortgagee except asset forth in subparagraph (b) Below, and hen oes ts eng B® the management ofthe Premises other than with seater Montoae antes entity. (© semptle,the Loan is outstanding, (a) 100% of the ownership interests jn the managing member of the Mortgagor and (b) not less than S180 eit ‘ownership upon his dear, tgagor shal be owned, directly or indirectly, by Bruce C* Rewer ne iihon his death, his heirs), Forest City Eniemprises, Inc, or ts affhoter Notwithstanding pas oreing, the Mortgagor and/or it director indirect members, partners eed princi- Facectal be permitted to transfer, assign, pledge or convey theit kapestve membership aftlates of Feast esses oF 10 Bruce C. Ratner (or upon his death hs hele any aiiliates of Forest Cty Enterprises, Inc. without the content of (one wit Prompt written notice to) Mortgage. Section 4.22 Mortgagee's Defense. Mortgagee may appear in and def OF the see gai at aw or in equity or in bankruptey purporting fo aGet the Renan, or the security hereof or the rights and powers of Morigeges net ‘any appellate proceed- fees, and in such event Mbrigagor shall pay all of Morgagee'c cogs ‘charges and ex- Beno o cildng cost of evidence of title and reasonable atorneys ees meted ne thereon at Une tj, All costs» charges and expenses so incurred, together wi rience an 2 e Default Rate from the date of payment of same by Moreerce 2 aforesaid, Stal be Secured by the lien of this Mortgage and shall be due and pace ‘upon demand, eneve 4O67P5 ] 418 Section 4.23 Hazardous Materials, (@) _ Mortgagor will perform and comply promptly with, and cause the Premises to be maintai perated in accordance with, all applicable federal, State and local laws pertaining to air and water quality, hazardous waste, waste disposal, air emissions and other environmental matters. If Mortgagor receives any notice that Mortgagor or the Premises is in default under or is not in compliance with any of the foregoing, or notice of any proceeding initiated under or with respect to any of the foregoing, ‘Morigagor will promptly furnish a copy of such notice to Mertgagee. (0) Mortgagor hereby represents and warrants to Mortgagee that to the best of its knowledge and except as set forth in the Phase I Environmental Site Assessment Report of AKRF, Inc. dated August, 1997 and the leter of reliance to the Morigegee dated August 13, 1997: (i) no Hazardous Material has been generated, treated, stored oF disposed of, or otherwise deposited in or located on, under of about the Mortgaged Prop. erty, including without limitation the surface and ‘subsurface waters of the Mortgaged Property; (i) no activity has been undertaken on the Mortgaged Property which would ‘cause any Hazardous Material to be generated, treated, stored ot disposed of, or otherwise deposited in or located on, under or about the Mortgaged Property or any surface or sub surface waters thereof; (il) there ate no substances or conditions in or on the Mongaged Property which may support a claim or cause of action under RCRA, CERCLA, TSCA, CAA or CWA (as Such terms are defined below) cr any other federal’ state or local envi ronmental statues, regulations, ordinances or other environmental regulatory requirements; and (iv) no underground storage tanks now ot previously containing any Hazardous Mate: Fal, of underground deposits of any Hazardous Material, are located on of under the Morigaged Property. (©) _The term “Hazardous Material" means, collectively (i) any hazardous ot toxic substance, material or waste, including, but not limited to, those subslances, ‘materials, and wastes listed in the United States Department of Transportation Hazardous Materials Table (49 CFR 172.101) or by the Environmental Protection Agency as haz~ ardous substances (40 CFR Part 302) and amendments thereto and replacements therefor, or (i) such substances, materials or Wastes as are regulated by the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §6901 et. seq. ("RCRA"), the Comprehensive En. Vironmental Response, Compensation, and Liability Act of 1980, as amended by the Su. fund Amendments’ and Liability Act, 42 U.S.C. §9601 ¢t.'seq. ("CERCLA the Toxic Substance Control Act, 15 U.S.C. §2601 et seq. ("TSCA"), the Clean Air Act, 42 U.S.C. §7401 et seg. ("CAA"), the Ciean Water Act, 33 U.S.C $1251 a. seq. (CWA. and all amendments to any of the foregoing laws, and all orders, regulations, directions and requirements thereunder; and (ii) such toxic’ or hazardous substances, materials or Wastes that are or may become regulated under any other applicable municipal, county, state or federal law, rule, ordinance, direction, or regulation, (4) _, Mortgagor covenants that it shall keep or cause the Premises to be kept free of Hazardous Material and not knowingly cause or permit the Premises 10 be Used to generate, manufacture, refine, transport, treat, store, handle, dispose, produce or rocess Hazardous Material, except in compliance with all applicable Federal’ State and local laws or regulations (©) Mortgagor covenants to ensure compliance by all operators and oc- Cupants of the Premises with all applicable Federal, State and local laws, ordinances, rulesen yp 67 F011 and regulations and will ensure that all such operators and occupants obtain and comply with any and all required approvals, registrations or permits. (® Mortgagor shall conduct and complete all investigations, studies, samplings and testings relative to Hazardous Material ator affecting the Mortgaged Prop- erly as is required pursuant to Section 4.14(f) hereof. (@) _ Mortgagor shall defend, indemnify, and hold harmless Mortgagee, its employees, agents, officers and directors from and against any claims, demands, penalties, fies, liabilities, setlements, damages, costs or expenses of whatever kind or nature known or unknown, contingent or otherwise, arising out of oF in any way related to Haz- ardous Maierial at‘or affecting the Morigaged Property or the soil, water, vegetati buildings, personal property, persons, animals or otherwise and any personal injury (including wrongful death) of property damage arising out of or related to such Hazardous Material, except to the extent it is finally determined to be due to the gross negligence or willful misconduct of Mortgagee. (6) Foreclosure shall not operate as a discharge of Mortgagor's engage- ments as to Hazardous Material; and in the event Mortgagor tenders a deed in lieu of foreclosure, Mortgagor shall deliver the Premises to Mortgage (or its designee) free of any and all Hazardous Material which isin violation of law: (),_Iatany time it is determined that any Hazardous Material is located on or under the Mortgaged Property, Mortgagor shal diligently commence to take such action, at its sole expense, to comply with all governmental laws, regulations, orders, and requirements pertaining thereto. Failure of Morigagor to comply with all environmental requirements of Federal, state or loca law, statute, ordinance ot regulation, rule, court or ‘administrative order or decree, or private agreement, shall constitute and be a default under Section 5.1(b) of this Mortgage and Mortgagee, in lieu of foreclosure, shall have the option to require specific performance of Mortgagor's obligations hereunder. @__In the event Mortgagor does not timely perform any of the above obligations, Mortgage may upon twenty (20) days prior notice to Mortgagor (except in the event of an emergency when no notice will be required) perform said obligations at the expense of Mortgagor and such expense shall be added to the amount secured by the lien of this Mortgage. Section 4.24 Zoning Changes. Morigagor will not consent to, join in, permit or sow any change inte zoning lavs or oinanes relating or affecting the Premises 1nd will prompily notify Mortgagee of any changes to such zoning laws. Section 4.25 Grant of Security Interest. Mongagor, as further security for the payment of said indebtedness and in addition to all the rights and remedies otherwise Evailable to Morigegee under this Mortgage, the Note and the Agreement, if any, grants to Morigeges a security interest, under the Uniform Commercial Code as in effect in the State of New York, in and to the Mortgaged Property, except that owned by non-affiliated tenants of Mortgagor, and all proceeds thereof. In the Event of Default by Mortgagor in any of the terms, covenants and/or obligations contained herein or in the Note or this Mortgage, Mortgagee shall have, in addition to all the other rights and remedies allowed by Law, the rights and remedies of a secured party under the Uniform Commercial Code a in effect at that time. Morigagor further agrees thatthe security intrest created hereby also secures all expenses of Morgagee including reasonable expenses for legal services ofpet Db TPE LAID: every kind, and cost of any insurance, and payment of taxes or other charges) incurred in Gr incidental fo, the custody, care, stle or collection of, or realization upon, any of the Property secured hereby of in any way relating to the enforcement or protection of the Fights of Mortgages hereunder. Section 4.26 Compliance of Premises. (@) —_Momgagor warrants and covenants that the Premises are and will continue to be in compliance with all applicable local, municipal, county, state and federal faws and regulations and all building, housing and fire codes, rules and regulations, Mort- fgagor further warrants and covenanis that in the event that Morigagor shall obtain notice that the Premises are in violation of any of the aforesaid local, municipal, county, state and federal laws, regulations or building, housing or fire codes, rules or regulations, ‘whether as a result of a search of the public records or otherwise, Mortgagor shall, st Mortgagor’s sole expense, within 120 days of the date of oblaining notice of same, cure ‘ny such violation and provide the Mortgages promply with proof that the same has been red. The Mortgagee shall have the right, but not the obligation, to obtain the eure of ny violation at the Mortgagor's expense after 20 days notice to Mortgagor after Morigagor's failure to timely cure same, and the cost of curing the same shall be payable by the Mortgagor to the Mortgagee upon demand, and any such amount shall be secured by this Mortgage. (b) Without timiting the provisions of subsection (a) of this Section 4.26: (i) Mortgagor represents and warrants to Mortgagee that to the best of its know ge Morigagor is in full compliance with the Americans with Disabilities Act of 1990 (42 USCA. sec. 12101 ef, seq.), as the same may be amended from time to time (the ADA’) and all other federal, state and local laws pertaining to the acvessibility of the Premises by persons with disabilities (the ADA and such other laws are, collectively, the "Accessiblity Laws"); (i) Mortgagor covenants to ensure that the Premises will at all times comply with all applicable Accessibility Laws and, upon the request of Mortgage, Mortgagor will, upon the reasonable written request of the Morigagee and at reasonable intervals, conduct such surveys of the Premises as Mortgagce shall require to ascertain Such compliance, provided however, the Morigagee may only make such request and Morigagor will promptly conduct such surveys upon such request upon such times as Mortgages shall determine in its sole discretion that there exists or has reason to believe that there may exist 2 condition in violation of the Accessibility Laws; (iii) Mortgagor ‘will maintain accurate records of all expenditures made in connection with any alterations to the Premises and will deliver copies thereof to Mortgagee upon Mortgagee's request: and (iv) Mortgagor shall defend, indemnify and hold harmless Mortgagee, its employees, Agents, officers and directors, and any parent or affiliate of Mortgagee, from and against any claims, demands, penalties, fines, lables, setlements, damages, cost or expenses of whatever kind or nature, known or unknown, contingent or otherwise, arising out of or fn any way related to any violations of the Accessiblity Laws (including, without limitation, any costs incurred by Morigagee in complying with any Accessibility Laws). Ns ther payment of the indebtedness secured hereby nor foreclosure shall operate as a discharge of Mortgagor’s obligations under this subsection (b). In the event Mortgagor ten ders a deed in liew of foreciosure, Mortgagor shall deliver the Premises to Mortgagee (or its designee) free of any violations of the Accessibilty Laws. In the event Mortgagor does rot timely perform any of the above obligations, Mortgagee upon 20 days prior notice (except in an emergency, in which event no prior notice shall be required) may perform Said obligations at the expense of Morigagor and Mortgagor shall, upon written demand from Morigagee, reimburse Mortgagee for all costs, including reasonable attorney's feesseat ob 1761411 Ree yoo? and out-of-pocket expenses, and all liabilities incurred by Mortgage by reason of the foregoing, with inferest thereon at the Interest Rate from the date of such payment by Mortgagee to the earlier to occur of (i) the date that is five (5) days after Mortgagee's ‘written demand for repayment or (i) date of repayment and in the event (i) shall not occur prior to (), then in such event, with interest thereon at the Default Rate from the date referred to in (i) to the date of repayment. Until paid, said costs and expenses shall be secured by this Mortgage. Section 4.27 Intentionally Deleted. Section 4.28 Debt Service Coverage Ratio. If at any time after the earlier to occur of 13 months after the date hereof ot the date rent payment commences under the Sneaker Stadium Lease, the Morigagee shall determine that the ratio of (i) current cash flow (to be defined as net operating income after capital expenditures such as leasing ex. ses and tenant improvements, as determined in a manner reasonably satisfecrory to the fortgagee to (i) debt service on the Loan and the Project Loan (including Amortization ‘Amounts, as that term is defined in the Note) is less than 1.25:1 for any 2 consecutive calendar quarters, then the Morigagor must undertake one or more of the following (the selection of which actions to be determined by Mortgagor): (a) all net income from the Premises in excess of debt service will be deposited into a cash collateral account and held by the Mortgagee subject to a pledge agreement executed by the Mortgagor in favor of the Mortgagee reasonably satisfactory to the Mortgagee in all respects (Ihe "Pledge Agree- ment") and/or (b) a principal rediction of the Loan and the Project Loan (plus payment of any Fixed Rate Funding Loss or LIBOR Funding Loss, as those terms are defined in the Note and the Project Loan Note) must be made in an amount such that the debt service coverage shall be increased to 125:1 andor (call net income from the Premises in ex cess of debt service will be paid to the Mortgagee from time to time (but not Tess than monthly) in reduction of the Loan and the Project Loen (plus payment of any LIBOR Funding Loss or Fixed Rete Funding Loss, as those terms are defined in the Note and the Project Loan Note). In addition, during any such time that (x) the debt service coverage is Tess than 1.25:1 but is 1.15:1 or greater, then all management fees and leasing. commissions (other than leasing commissions and management fees payable to unaffiliated third parties) shall be restricted to 75% of the amount due (the balance to be deferred), and (y) during any such time that the debt service coverage is less than 1.15:1, then ali mangement fees end leasing commissions payable in connection with the Premises (other than leasing commissions and management fees payable to unafflited third parties) shall be deferred. The cash collateral specified in (a) above shall be released by the Mortgage of the application of net income in reduction of the Loan and the Project Loan specified in (©) above shall be ended and the reduction and deferral of leasing and management commissions specified above shall be ended only afler the foregoing rato is at least 1.25:1 for a period of two consecutive calendar quarters. In computing the foregoing ratio, come” shall not include the rent under a Lease for a tenant who is not paying rent in accordance with the terms of its Lease, but only to the extent of rent not paid ARTICLE V EVENTS OF DEFAULT AND REMEDIES Section 5.1 Events of Default, The following shall constitute defaults hereunder and, after the giving of notice and the passage of time as provided herein, shall constitute Events of Default: Ae ln7.pect OOTP 418" (@) if Mortgagor shall fi! to pay when due any installment of interest or tincipal or any other sums payable under this Mortgage, the Note, or any other Loan sument; OF (6) _ if defaut shall be made in the due observance or performance of any covenant, term, obligation, condition or agreement on the part of Mortgagor contained fherein or in the Note ot Mortgage or in any other Loan Document; or (© if any representation or warranty made by Mortgagor herein, or in any other Loan Document, or if any cenfiste or statement delivered to Mortgage by ‘Mérigagor in conection withthe Loan shall prove to have been incorrect or misleading Mhetmade toan extent deemed by Morigagee, in its sole judgment, to be material; or (@)_if'a default shall have occurred under the Assignment of Leases and ‘Rents or under any other Loan Document and said default remains uncured after the giving of any required notice and the passage of any applicable cure period: or (©) (if Guarantor shall fil to comply with any covenant made by it in the Guarantee of Completion beyond any applicable notice and grace periods or if at any time any representation or warranty made by Guarantor in the Guarantee of Completion or in any other document, statement or writing shall be incorrect or misleading when made, to at extent deemed material by Mortgagee, in its sole reasonable judgment, or (it) if a Gefault by Guarantor shall occur under the Guarantee, of Completion beyond any applicable notice and grace periods; or (li) if Guarantor shall revoke or attempt to revoke, vomtest, commence any action oF raise any defense against its obligations under the Guar- antee of Completion; oF (if Mortgagor during the term of the Loan and until the Note is re- ei nfl an a ign eh Mortgage and all other Loan Documents shall ve been fully performed, or if Forest City Rental Properties Corporation during the pe- Hod thatthe Guarantee of Completion shall remain in force and effect (each a "Si Person") shall (i) suspend or discontinue its business, or (ji) make an assignment for the benefit of ereditors, or (ii) admit in writing its inability to pay its debts as they become oe, or (iv) file 2 voluntary petition in bankruptcy, of (v) become insolvent, or (vi) file {ny petition or answer seeking for itself any reorganization, arrangement, composition, re- adjustment of debt liguidation or dissolution or similar relief under any present or future Statute law of regulation of any jurisdiction, or (vi) petition of apply to any tribunal for ny receiver, cusodian or any trustee for any substantial pat ofits property, or (vi) be the subject of any such bankruptcy, insolvency, liquidation, reorganization, dissolution or Similar proceeding commenced against it which remains undismissed for a period of 30 days; of (ix) file any answer admitting or not contesting the material allegations of any such petition filed against it, or of any order, judgment or decree approving such petition in any such bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proveeding, or (3) seek, approve, consent to, or acquiesce in any such bankruptcy, insol- Neney, liquidation, reorganization, dissolution or similar proceeding, ot in the appoint: meni of any tres, receiver, cstodian, liquidator of fiscal agent for it, or any substantial part of its property, or an order is entered appointing any such trustee, receiver, cusio~ ‘ian, liquidator or fiscal agent and such order remains in effect for 30 days, or (xi) take any formnal action for the purpose of effecting eny of the foregoing, or looking to its liq- ‘idation or winding up of any Significant Person; oreq yop ves tat4 (8) if an order for relief is entered under the United States bankruptcy laws or any other decree or order is entered by a court having jurisdiction over the gaged Property or over any Significant Person, (i) adjudicating any Significant Person & bankrupt or insolvent or (i) approving as properly ited a petition seeking reorganization, arrangement, adjustment or composition of or in respect of any Significant Person under ited Sates bankruptcy laws or any other applicable Federal or state law, or (ii) appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of any Significant Person or ‘of any substantial part of the property of any thereof, or (iv) ordering the winding up or liguidation of the affairs of any Significant Person and any such decree or order continues unstayed and in effect for a period of 30 days; or (v) a petition is filed against any Significant Person pursuant to any similar aw, Federal or siate, and the same is not discharged within 30 days; ot (tif final judgment for the payment of money shall be rendered against any Significant Person, which in Mortgagee's opinion would have a Material Adverse Eifect and such Significant Person shall not discharge the same or cause it to be discharged within 45 days from the entry thereof or if the Mortgaged Property shall be the subject of any judgment, levy, sequestration or other writ or mechanic's lien, which is not vacated, discharged or bonded within 45 days; ot (), if the Mortgaged Property or any material part thereof shall be con- demned, subject however to the provisions of Section 4.11 hereof; or (if any easement over, across, under or otherwise affecting the Mort- gaged Property or any portion thereof shall be granted or released without Morigagee's prior writen consent, which consent shall not be unreasonably withheld, or if there shall be material default by Morigagor under any easement, covenant or restriction affecting the Premises or any portion thereof or if any easement in favor of the Premises or any portion teen (neue but not limited to the Parking Easement) shal be ferminaed or modified or if a default by the Morigagor exists under the Parking Easement; or (&) if Mortgagor shal assign the rens from any lease for all ora part of the Premises without the prior written consent of Mortgagee or shall consent to the can- cellaion or surrender of any Lease without the prior written consent of Mortgagee, or shall modify any Lease so a8 to shorien the unexpired term thereof, or so as to decrease the amount of the rent payable thereunder, or shall in any other manner impair the security of Morigagee for the payment of the debt secured by this Mortgage; or (if, except as otherwise permitted herein, there exists any actual or threatened demoliticn oF removal of any building, or any portion thereof, erected or to be erected upon the Premises. or if the buildings on the Premises are not maintained in reasonably good repair for 30 days after notice thereof has been given to Mortgagor or if, witout Mortgage’ writen consent or except ss otherwise permite herein, demolition for renovation of, any structural alteration in, or addition to, any bullding or structure on the Premises shall be made or any change shall occur in the nature of use or occupancy of the Premises; ot : (mm) if the Morigaged Property, or any part thereof, or any interest in Mortgagor, shall be (except as otherwise expressiy permitted in this Mortgage) directly or indirectly, sold, assigned, leased, mortgaged, encumbered or in any manner conveyed, by operation of law or otherwise, of if any change occurs in the structure or ownership of theREL HO TPG 1920 Mortgagor or the management of the Mortgaged Property, without Mortgages's express prior writen consent, except es otherwise permitted herein; or (0) if default shall have occurred in respect of any other Joan or in- dobtedness owed to Morigagee by the Morigagor, or during the Construction Term only, by Guarantor; ot (0) _iffat any time during the last 2 years of the Mini-Permanent Term, the ratio of current cash flow to debt service for the Premises as calculated by Mortgagee ‘pursuant to Section 4,28 hereof shall be less than 1.1:1 for any 2 consecutive quarters and shall not within the subsequent 2 calendar quarters be increased to 1.1:1 or more (provided that if the Morigagor is diligently attempting to increase said ratio, Mortgagor shall upon request be given one additional calendar quarter to increase said ‘ratio to 1.1:1 or more); of (P) if an Event of Default exists under the Building Loan Agreement, the Project Loan Agreement, the Project Lean Mortgage, the Project Loan Assignment of Leases and Rents or the Project Loan Note. ‘The defaults heretofore described shall constitute Events of Default hereunder upon the giving of the following notice and the passage of the following time: (i) _ with respect to any monetary default, five (5) days after the same shall become due and payable, whether at maturity or by acceleration or otherwise: ii) with respect to any default under subsection (b) above, 30 days after the date notice of such default is given to Mortgagor by Mortgagee, provided that if such eb consied ee acl of such rights and powers shall be held toethauss ihe eave fine andra cra’ {REMY aid every sch right and power nay be xchange Morgagor ond ive o.tite. All grants, covenants, tems snd condizone ieee eat ey Mortgagor and all successive owners of the Premises’ Section 7.14 New York Gains Tax Provisions, Intentionally Omitted. os ia 4Setin_ 254 of Real Property Law. All covenants hereof, other lrseek 4O67E | 932 affording to Mortgagee rights additional to, and not exclusive of, the rights conferred under the provisions of Section 254 of the Real Property Law ofthe State of New York, Section 7.16 Submission to Jurisdiction, Appointment of Agent, and Service gf Process. Morigagor irrevocably submits to the jurisdiction of any New York State or Federal court siting in the City of New York over any suit, action or proceeding arising {ut of oF relating to this Mortgage or any Loan Document. Mortgagor hereby agrees the, Mortgagee shall have the option in is sole discretion to iay the venue of any sich suit, action or proceeding in the courts of the State of New York or the United States af America for the Southern District of New York and irevocably waives to the fullest ex: {ent permitted by law any objection which Morigagor may now or hereafter have te the laying of the venue of any such suit, action or proceeding brought in such cout and any laim that any suit, ation or proceeding brought in such court has been brought in an in, convenient forum. “Mortgagor agrees tht a final judgment of any such suit, ation of pro. ‘ceeding brought in such cour shall be conclusive and binding upon Mortgagor, Mortgagor hereby irrevocably appoints the Service of Process Agent as Mortgagor's authorized agent to accept and acknowledge, on behalf of Morigagor: service ‘of any and all process which may be served in any suit, action or proceeding of the raline teferted to sbove and any New York State or Federal court sitting in the State of New York. ‘Mortgagor represents and warrants that within five days from date of the execution and delivery of this Mortgage, Mortgagor shall obtain the consent of the Service of Pa {48s Agent to such appointment and that Mortgagor will deliver to Mortgagee tn such tine frame a true copy of such desi Shall be isrevoeable, If the Se . {nants and agrees that he shall irrevocably designate and appoint without delay another such agent satisfactory to Morigagee and shall promptly deliver to Morigagee evidence iy ‘writing of such other agent's acceptance of such appointment, Process may be served in any suit, ation or proceeding of the nature referred to ‘hove (i) by the mailing of copies thereof by registered or certified mail, postage prepaid, {plumn receipt requested to Mortgagor at Mortgagor's Notice Address of such cies ad {ress of which Mortgagor shall have given writen notice to Mortgagee or (ii) without fave MEMS eticacy of any service made pursuant to clause () above, if Morigagor shall tive filed an appearance within 21 days from the date of such filing by serving « copy thereof upon the Service of Process Agent, at the Service of Process Agent's atios oy Mortgagor's agent for service of process. Morigagor agrees that either such serviee shail be deemed in every respect effective service of process upon Mortgagor in any such eet, {ction oF proceeding and shall, to the fullest extent permitted by law be taken and held 10 be 8 valid personal service upon and personal delivery to Morigagor. Nothing in ths Ses, tion Shall affect the rights of Morigagee to serve process in any manner permitted by lew Of firuit the rights of Morgagee to bring the proceedings against Mortgagor in the courte of any other jurisdiction or jurisdictions, ae eae spe oeeet wObTEE NSIS Morigagee in connection with such assignment or participation, Mortgagee shall promptly notify Morigagor after any such assignment or the admission of any such participant of the identity of (and amount invested by) such assignee or participant, as the case may be. Section 7.18 Right of Set-Off, In addition to any rights and remedies of the Mortgagee provided by law, upon the occurrence of an Event of Default and acceleration of the obligations owing in connection with this Mortgage, or at any time upon the occur rence and during the continuance of an Event of Default under Section 5.1, the Morigagee shall have the right, without prior notice to the Mortgagor, any such notice being expressly waived by the Mortgagor to the extent not prohibited by applicable law, (0 set-off and apply against any indebledness, whether matured or unmatured, of the Mortgagor to the Mortgage, any amount owing’ from the Mortgagee to the Mortgagor, at, or at any time after, the happening of any of the above-mentioned events, To the extent not pro hibited by'applicable law, the aforesaid right of set-off may be exercised by the Mortgegee guint the Morgagor or agaist any trustee in bankrupt, custodian, dor in passes sion, assignee for the benefit of creditors, receiver, or execution, judgment or attachment creditor of the Mortgagor, or against anyone else claiming through or against the Mort- 4gagor or such trustee in bankruptcy, custodian, debtor in possession, assignee forthe ben eft of creditors, receivers, or execution, judgment or attachment creditor, notwithstanding the fact that such right of set-off shall not have been exercised by the Mortgagee prior to the making, filing or issuance, or service upon the Mortgagee of, of of notice of, any such petition, assignment for the benefit of creditors, appoiniment or application for the ap- ointment of a receiver, or issuance of execution, subpoena, order or warrant. ‘The Mort agee agrees promptly to notify the Morigagor after any such set-off and application made by the Morigagee, provided thatthe failure to give such notice shall not affect the validity of such set-off end application, Section 7.19 Headings Descriptive, The headings of the several sections and subsections of this Mortgage are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Mortgage. Section 7.20 Binding Agreement. This Mortgage shall be binding upon, and inure to the benefit of, the successors, heirs, executors, administrators and assigns of the respective partes hereto. Section 7.21 Waiver of Trial by Jury. The Mortgagor and the Mortgagee waive the right to trial by jury in any action or proceeding based upon, arising out of or in any way connected to this Mortgage. Section 7.22 Non-Recourse Provision, This isa valid and binding, full recourse obligation of the! Mortgagor and a non-recourse obligation of the members of the Mort- sagor and the officers, directors, shareholders and employees of the Mortgagor and its members. Notwithstanding the foregoing, the Members of the Mortgagor shall in any event be fully and personaly liable to the Mortgage at all times for (a) any fraud or tentional misrepresentations, (b) the misapplication of (I) proceeds paid under any insurance policies by reason of damage, loss or destruction to any portion of the properties encumbered by the Morage and the oer Loan Docume, or any of them, to the ful extent of such misapplied proceeds or (i) proceeds or awards resulting from the condem- ration or taking in lew of condemnation of any portion of the properties encumbered by this Mortgage and the other Loan Documents, or any of them, to the full extent of such misapplied proceeds or awards, (c) after an Event of Default, the misapplication of come, rents, issues, profits and revenues arising or issuing from or out of such propertiesvet 4 Ob 7P6 1934 or any part thereof to the full extent same shall have been misapplied, in exch case, in violation of the provisions hereof or of the other Loan Documents, (4) intentional waste of the Premises, or (c) their obligations under the Environmental Indemnification Agreement or the Indemnity Agreement, Section 7.23 Release of Community Garden. Provided no Event of Default ‘exists hereunder, Mortgagee will release for no consideration but at Mortgagor's expense the lien of this Mortgage and the Assignment of Leases and Rents from the Community Garden upon the legal subdivision and separate assessment of the Community Garden from the rest of the Premises.wee 40671935 IN WITNESS WHEREOF, this Mortgage has been duly executed by Mortgagor as of the day and year first above written. MORTGAGOR FC PACIFIC ASSOCIATES, LLC a New York limited liability company By: RRG Master, Inc. Member fame: Title: ruce C. Ratner President FC Member, Inc.‘Mortgagor: Mortgagee: Premises: FC Pacific Associates, LLC ‘The Bank of New York Sneaker Stadium Store ‘The Shops at Atlantic Center, 140 Flatbush Avenue, Brooklyn, New York ‘The attached mortgage covers real property principally improved or to be improved by one or more structures containing in the aggregate not more than six residential dwelling units, each having their own separate cooking facilites. ‘The attached mortgage does not cover real property improved as described IK above.smane or New Vary. comm oF ules on the Gt any of ostobar, 3997, netore no personally cane » to me known, who, being. by me Sar es 1a that he is the Vice/ Pfesident of RRG MASTER, INC,, a corporation, which cuescenianl ie sf acaaeloe eal eres taescunees stra gene Limited liability company described in and which executed the foregoing instrument; and that he signed his name thereto by authority of the directors of RRG MASTER, INC. as the act and deed of said corporation. 'y Public ven a i ie en, ‘Commission Expires March 20,1884pea 4b 1°61 938 STATE OF _ ohio COUNTY OF cuyshoaa on the Sth day of Ootober, 1997, before me personally came _pobert G, O'Brien + to ma known, who, being by me duly svorn, aid depoun and gay that he resides at No. ‘200 Teminal Tower, 50 Public Square, Ohio; and that he is the Vice President of FC MEMBER, INC., New York corporation, which corporation is a member of FC PACIFIC ASSOCIATES, LLC, the Limited liability company described in and vhich executed the foregoing instrument; and that he signed his name thereto by authority of the directors of FC MEMBER, INC. as the act and deed of said corporation. . feary Pablie JENNIFER &, CARPENTER cere See‘ge yo b1e0 1939 Barrrt A DESCRIPTION ALL, that certain plot, plece or parcel of land, stuste, lying and being in the Borough Brooklyn, County ‘of Kings, Cty and State of New York, bounded and desetibed as fellows: UEGINNINO at u point on the northerly side Hine of Pucific Street distant, north 58 degyses 1$ minutes (00 seconds west, 122 feet ftom the intersection of said northerly side line with the southwesterly side line of Flatbush Avenue; THENCE along said northerly side line of Pacific Street, north $8 degrees 15 minutes 00 seconds west, 16R.10 feet 10 a point, north 31 degrees 45 minutes 00 seconds east, 180.15 feel to the southerly side line of Atlantic THENCE along same, south $8 degrees 15 minutes 00 seconds exst, 22.85 feet to the southwesterly side line of Flatbush Aven THENCE along the southwesterly side line of Flatbush Avenue, south 24 degrees 16 minutes (X) seconds east, 175.17 feet THENCE south 31 deyrees 45 minutes 00 seconds west, 82,24 feet to the pusint of BEGINNING, ‘TOGETHER WITH the rights and benefits contained in Reciprocal Eascment Agreement dated as of April 1%, 1997 made between FC Pacific Associates, LLC and AJ Richard & Sons, Inc. und to he duly led in the Otfice of the Kings County Register,ree gO TPR TNO EXHIBrT A -/ PARCEL 2. ALL that ceriain Brooklyn, Count follows: BEGINNING at the intersection of the northerly side of Pacific Street with the Southwestery side lino of Flatbush avenue, THENCE along the northerly side of Pacife Street, north 58 degrees 15 minutes 00 Seconds west, 122 feet to a point, SHENCE north 31 degrees 45 minutes 00 Seconds east, 82.24 feet to the southwesterly side of Flatbush Avenue; THENCE along the southwesterly side of f atbush Avenue, south 26 degrees 16 minutes 00 Seconds east, 147.14 feet to he part ot Place of BEGINNING, Policy insures that parcels One and Two are contiguous,rece OG TPCT YT EXHIBIT B FORM OF LEASING SUMMARY LEASE INFORMATION TO BE FURNISHED AND CERTIFIED TO BY MORTGAGOR Note: If any item listed below is not referred to in the Lease, please indicate by using the symbol "NR’; items which are not under any circumstances applicable should be designated by the symbol "NA". If the Lease is Landlord's standard form, this abstract should so indicate, and only the items proper to the Lease under consideration and any de- Viations from the standard form need be referred to. Mortgagor: RC Pacific Associates, LLC Premises: 140 Flatbush Avenue, Brooklyn, New York ‘The Shops at Atlantic Center, Brooklyn, New York Standard Form Lease: Yes__No_ Date: Anicle, Page |. Tenant: ‘Trade Name: Date of Lease: Premises: Location: Area (sq, ft) Basic: Renewals:ae yob Tee 1882 Minimum Annual Rent: 1, Original Term: 2. Renewal Term: Percentage Rent: (Gross Receipts X Rate-Base) 1. Rate: 2. Base: cc. Tax escalation: 4, Applicable Operating Expense Escalation: Allowances by Landlord: a. Construction Work Letter b. Other: Permitted Use: Conditions Precedent to Lease Commencement: a. Key Tenant Requirements b. Completion of Tenant Improvements: c. Other: Construction: a, Scope of Landlord's Work b. Period for Completion of Landlord's Work: ©. Scope of Tenant's Work: 4, Period for Completion of Tenant's Work: Rent Abatement or Concessions: Rent Setoff: ‘Tenant's Cancellation Rights: 4. Condemnation: 1 of leased premi ____% of common area: Other: Casualty, whether or not restored: Destruction __% of leased premisesduring last___years of __ term. Co-Tenancy. fe. Other: ‘Subordination: a. Subordination provided: , Conditioned on Non-Disturbance: ce. Attornment: CERTIFICATE “The undersigned hereby certifies thatthe foregoing information js tue and corrects that tenant's use of the leased premises will not violate use restrictions contained in any other leases affecting the Premises and thatthe leases of other tenants do not violate use restrietions contained in this lease. ‘This Cerifiate is made with the intent that it be relied upon by THE BANK OF NEW YORK in connection with its loan tothe Mortzagor secured by a mortgage or the Mortgagor's interest in the Premises. FC PACIFIC ASSOCIATES, LLC By: RG Master, Inc. MemberCITY REGISTER RECORDING AND ENDORSEMENT ”_@ + KINGS COUNTY - (This page forms part of the instrument) [Retum to: ae Le PE ig zg ox LO Bpadigy Bava RRecord 8 =| naw iru (ata seo-a577 Tina tease ‘THE FOREGOING INSTRUMENT WAS ENDORSED FOR THE RECORD AS FOLLOWS: tsehg ; ee roped per ‘Bhock(a) ad Lotta] veriied by (7): Examptin ves ne 2 ee Y| ee ms) (at) timo ve lovamog ape: {rma} [2] fens] fee] Prowsra roe ia Fo.) Tsai Foe.) Fr Fee. wow) ___ woo Ta Yor Sa Ped Bin Ta Tar 7 $ FAX RECEIVED ON ABOVE MORTOAGE ¥ 9003.00 sera Nanton = Tow You iy Real le PropacyTraraar Tax Sera Nunbor => Tew York State RECORDED IN KINGS COUNTY OFFICE OF THE CITY REGISTER 47 Noy Y AIG Wines My Hand pA@Dp siciat Seal > Chey Rewiowe- fill

Forest City Modell's Block 927 Second Mortgage Oct. 14, 1997

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