Index MORTGAGES MONROE COUNTY CLERK'S OFFICE Return To: Book 20667 Page 0470 STONER & ASSOCIATES 2540 BRIGHTON HENRIETTA TL RD No. Pages 0016 ROCH NY 14623 Instrument MORTGAGE-OTH Date : 8/10/2006 Time : 2:31:00 Control # 200608100787 RSM IRONDEQUOIT BAY DEVELOPMEN MTG# M# CX 015026 T Luc CAPPA DANIEL P Employee ID | gMC40 (ORTGAGE TAK FILE FER-S$ 19.00 MORTGAGE AMOUNT $ — 1,925,000.00 FILE FEE-C § 8.00 REC FEE $ 48.00 BASIC MORTGAGE TAX $ 9,625.00 MISC FEE-C § +00 B MTG TAX $ 9,625.00 SPEC ADDIT MTG TAX $ 4,812.50 SA MTG TAX § 4,812.50 S MTG TAX $ 4,812.50 ADDITIONAL MTG TAX $ 4,812.50 $ +00 $s +00 ‘Total 8 19,250.00 Total: s 19,325.00 STATE OF NEW YORK ‘TRANSFER AMT MONROE COUNTY CLERK'S OFFICE WARNING - THIS SHEET CONSTITUTES THE CLERKS © TRANSFER AMT $ +00 ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAN OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. | TRANSFER TAX $ 00 Cheryl Dinolfo Monroe County Clerk M20bb 70470MORTGAGE $1,925,000.00 THIS MORTGAGE, 1s made this 4” day of August, 2006 BETWEEN, RSM Irondequoit Bay Development LLC, with an office at 197 West Main Street, Victor, New York, 14564, hereinafter called the "Mortgagor’, and Daniel P. Cappa, an individual having ts principal office at 14 LaCrom, Rochester, New York 14809, hereinafter called the “Mortgagee’, witnesseth that GRANTING CLAUSE NOW, THEREFORE, to secure the payment of an indebtedness in the principal sum of ‘One Milion Nine Hundred Twenty Five Thousand and 00/100 Dollars ($1,925,000 00), together with interest thereon, to be paid according to a certain Promissory Note made and delivered by the Mortgagor to the Mortgagee, bearing even date herewith (the “Note’), the Mortgagor hereby mortgages to the Mortgage, as continuing secunty for the payment of any and all indebtedness, liabilities and obligations now existing or which may hereafter anse by reason of the Note, this Mortgage, or any renewals, extensions, modifications or substitutions of the Note or this Mortgage (collectively, the “indebtedness”), and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the premises described on Schedule “A” attached hereto and made a part hereof (the “Premises”), Together with all buildings, structures and other improvements now or hereafter erected, constructed or situated on the Premises (the “Improvements”, and together wath all night, title and interest of Mortgagor now owned, or hereafter acquired, in and to the following property, rights and interests (the Premises, the Improvements, and such property, nghts and interests, being heremafter collectively referred to as the “Mortgaged Property") {a) all easements, rights-of-way, gores of land, streets, ways, alleys, passages, sewer rights, waters, water courses, water rights and powers, and all estates, nghts, title, interests, privileges, liberties, tenements, hereditaments, and appurtenances of any nature whatsoever, in any way belonging, relating or pertaining to the Premises or the Improvements, and all right, title and interest of Mortgagor, including any right to purchase, or to use and occupy, any land adjacent to the Premises and any land lying in the bed of any street, road or avenue, opened or proposed, in front of or adjoining the Premises, Record and return to Stoner & Associates 2540 Brighton Hennetta Townline Rd , Rochester, NY 14623 ROCHDOCSA91IS44(b) all machinery, apparatus, equipment, fittings, fixtures and other property of every kind and nature whatsoever owned by Mortgagor, or in which Mortgagor has or shall have an interest, now or hereafter located upon the Premises and/or the Improvements, or appurtenances thereto, and used or usable in connection with the present or future operation and occupancy of the Premises and/or the Improvements, and all building equipment, matenals and supplies of any nature whatsoever owned by Mortgagor. or in which Mortgagor has or shall have an interest, now or hereafter located in of upon the Premises and/or the Improvements, and all additions, replacements, modifications and alterations of any of the foregoing, including, but without limiting the generality of the foregoing, all heating, lighting, mcinerating and power equipment, engines, pipes, tanks, motors, condutts, switchboards, plumbing, lifting, cleaning, fire prevention, fire extinguishing, refrigerating, ventilating, and communications apparatus, air cooling and air-conditioning apparatus, elevators, ducts and compressors (collectively, the "Equipment’) All Equipment is part and parcel of the Premises and appropriated to the use of the Premises and, whether or not affixed or annexed to the Improvements, shall for the purpose of this Mortgage be deemed conclusively to be real estate and mortgaged hereby, (©) all awards or payments, and interest paid or payable with respect thereto, which may be made with respect to all or any portion of the Premises and/or the Improvements, whether from the exercise of night of condemnation, eminent domain or similar proceedings (including any transfer made in eu of the exercise of the right, or by advance payment agreement), of from any taking for public use, of for any other injury to or decrease in the value of all or any portion of the Premises and/or the Improvements (collectively, the "Eminent Domain Awards"), (d) all leases and other agreements, whiten or oral, affecting the use or occupancy of the Premises and/or the Improvements now or hereafter entered into (including, without limitation, ail subleases, licenses, concessions, tenancies, and other occupancy agreements covering or encumbering all or any portion of the Premises, and/or the Improvements) together with any modifications, extensions or renewals of the same, and all contracts of sale of shares (collectively, the "Leases") and the rents, issues and profits of the Premises and/or the Improvements (the "Rights"), together with the night, but not the obligation, upon the occurrence of a default (as hereafter defined), to collect, receive and receipt for the rents and apply the Rents to the payment of the Debt and to demand, sue for and recover the Rents (when due and payable) (e) all proceeds of, and any uneamed premiums on, any insurance policies covering all or any portion of the Premises, the Improvements and/or the Equipment, including, without limitation, the right to receive and apply the proceeds of any insurance, judgments, or settlements made in lieu thereof, for damage to all or any portion of the Premises, the Improvements and/or the Equipment and any interest paid or payable with respect thereto (collectively, the "Insurance Proceeds"), (f) the right, in the name and on behalf of Mortgagor, to appear in and defend any action or proceeding brought with respect to the Premises and/or the Improvements and ROCHDOCSH201154 -2-to commence any action or proceeding to protect the interest of Mortgagee in the Premises and/or the Improvements, and (g) any and all other, further or additional night, title, estates and interests which Mortgagor now has, or hereafter acquires in and to the Premises and/or the Improvements and/or the Equipment, Mortgagor expressly agreeing that if Mortgagor shall at any time acquire any other right, title, estate or interest in and to the Premises and/or the Improvements and/or the Equipment, the lien of this Mortgage shall automatically attach to and encumber such other right, title, estate or interest as a first lien thereon And the Mortgagor covenants with the Mortgage as follows 4 That the Mortgagor will pay the Indebtedness as provided in the Note 2 That, except as otherwise provided in a certain Lease of even date herewith by and between the Mortgagor, RSM Newport Marina LLC and Newport Manna, Inc (the ‘Marina Lease’) and a certain Lease of even date herewith by and between the Mortgagor, RSM Newport House Pub & Café LLC and Newport Pub & Café, Inc (the “Pub & Café Lease”) the Mortgagor will keep the buildings on the Premises insured against loss by fire or such other hazards for which the Mortgage requires coverage including floods and flooding, that the Mortgagor will provide certifications evidencing such insurance to the Mortgagee, and that the Mortgagor will reimburse the Mortgage for any premiums paid for surance made by the Mortgagee on the Mortgagor's default in so insuring the buildings or in so assigning and delivenng the policies 3 That the Mortgagor warrants the title to the Premises 4 That this Mortgage 1s subject to the trust fund provisions of Section 13 of the Lien Law 5 That, except as otherwise provided in the Manna Lease and the Pub & Café Lease, the Mortgagor will pay all taxes, assessments or water rates, and all payments which are or may become due on any prior mortgage on the Premises 6 That the whole of the Indebtedness shall immediately become due after default m the payment of any part thereof, or of interest thereon or any part thereof, or after any default in the payment of the principal or interest, or any installment thereof, pursuant to the terms of the Note or after default for thirty (30) days after notice and demand, in the payment of any tax, water rate or assessment, anything herein contained to the contrary notwithstanding, or upon the occurrence of any other event of default on the part of Mortgagor under the Note, following the expiration of any grace periods ROCHDOCSHISIIS -3-7 The Mortgagor authorizes the Mortgagee, without notice, to make any and all payments necessary to correct a default of Mortgagor under Paragraphs 2, 5, and 6 of this Mortgage The Mortgagor shall make repayment of all amounts paid by Mortgagee under this Paragraph 7 within ten (10) days after the Mortgagor's receipt of the Mortgagee's written demand for payment, together with interest at the highest interest rate provided for in the Note, but in no event in excess of the maximum interest rate allowed by law, from the date such amounts are paid by the Mortgagee until the date of full repayment of such amount by the Mortgagor All amounts paid by the Mortgagee pursuant to this Paragraph 7 which remain unpaid shall be added to Indebtedness and shall be secured by this Mortgage 8 That the whole of the Indebtedness now or hereafter secured hereby shall become immediately due and payable at the option of the Mortgagee upon a conveyance of the Premises or any part thereof Notwithstanding the foregoing or any other provision of this Mortgage or the Note to the contrary, the current members of the Mortgagor, shall be permitted to transfer their respective membership interests in the Morigagor to each other and to immediate family members for estate planning purposes, as long as Robert S Mancini and Steven P Mancini remain members of the Mortgagor and notice of such transfers is given to the Mortgage 9 That upon the making of an assignment for the benefit of creditors, by or upon the filing of a petition in bankruptcy by or against the Mortgagor, or upon the application for the appointment of a receiver of the property of the Mortgagor, or of any person or corporation which may become and be owner of the Mortgaged Property, or upon any act of insolvency or bankruptey of the Mortgagor, or of any such owner, the whole of the Indebtedness shall become due and payable forthwith, without notice or demand of payment The Mortgagor hereby waives presentment, demand of payment, protest, notice of nonpayment, and/or of protest of any instrument on which he is or may become liable, now or hereafter secured hereby, and the Mortgagor expressly agrees that the Mortgagee may release or extend the time of any party liable on any such obligation without notice and without affecting his obligation thereon or under this instrument 10 That if default shall be made in the payment of the Indebtedness now or hereafter secured by this Mortgage, or any part thereof.or all or any part of the interest thereon, at the time or times when the same shall become due and payable, or upon default under any of the provisions of this Mortgage, the Mortgagee shall have the right forthwith, after any default, to enter upon and take possession of the Mortgaged Property, and to let the Premises and receive the rents, issues and profits thereof, and to apply the same (after the payment of all charges and expenses which are necessary in the absolute discretion of the Mortgage) on the Indebtedness hereby intended to be secured, and the gross rents and profits are, in the event of any default under the provisions of this mstrument, hereby assigned to the Mortgagee without notice or demand The Mortgage shall be entitled to obtain an order from a court of competent jurisdiction enforcing the terms of this Paragraph 10 without prior notice to Mortgagor and Mortgagor hereby consents to the jurisdiction of the court im which such application ROCHDOCSW29I54ts made for that purpose 14 That the Mortgagee may immediately, after any such default, vpon a complaint filed, or any other proper legal proceedings being commenced for the foreclosure of this mortgage, apply for, and shall be entitled as a matter of right, without consideration of the value of the mortgaged premises as seounty for the Indebtedness or of the solvency of any person or persons hable for the payment of such indebtedness, and without prior notice to mortgagor, to the appointment by any competent court or tnbunal, of a receiver of the rents and profits of the premises, with power to lease the same or any part thereof, and with such other powers as may be deemed necessary, who, after deducting all proper charges and expenses attending the execution of the trust, as receiver, shall apply the residue of the rents and profits to the payment and satisfaction of the amount unpaid on the Indebtedness now or hereafter secured hereby, or to any deficiency which may exist after applying the proceeds of the sale of the premises to the payment of any and all indebtedness due the Mortgagee 12 tt us further expressly agreed that the Mortgagee may resort for the payment of the Indebtedness to any other assets held, in such order and manner as it may see fit, and may maintain an action to foreclose ths Mortgage notwithstanding the pendency of any action to recover any part of the Indebtedness secured hereby, of the recovery of any judgment in such action, nor shall the Mortgagee be required, during the pendency of any action to foreclose this Mortgage, to obtain leave of any court in order to commence or maintain any other action to recover any part of the Indebtedness secured hereby If this Mortgage 1s foreclosed, the Premises may be sold in one parcel 13 All notices, demands or requests hereunder or under any applicable law (including, without limitation, Article 14 of the New York Real Property Actions and Proceedings Law) will be effective and shall be deemed sufficiently given or served for all purposes when delivered to Mortgagor in person or deposited in the United States Mail, first class, postage-paid, addressed to the Mortgagor's address set forth above If the Mortgagor changes addresses, the Morigagor will notify the Mortgagee of the Mortgagor’s new address within ten (10) days in writing sent to 14 LaCrox Court, Rochester, New York 14622 14 No water by the Mortgagee of the breach of any of the foregoing covenants, or failure of the Mortgagee to exercise any option given to the Mortgagee, shall be deemed to be a waiver of any other breach of the same or any other covenant, or of Mortgagee's rights thereafter to exercise any such option 15 The Mortgagor may prepay all or any part of the Indebtedness at any time without penaity Any partial prepayments shall be applied first to amounts due under Paragraphs 2, 5, 6, 7, or 17, second to unpaid interest and late charges, third to any deferred interest, and fourth against the remaining principal amount of the Indebtedness outstanding Prepayments shall not postpone the due date of any subsequent monthly installments which become due and payable unless the Mortgagee shall otherwise agree in writing ROCHDOCSH2911541 5+16 Except as otherwise provided in this Mortgage, the Mortgagee may require immediate payment in full of any outstanding Indebtedness, principal and interest, due on the note which is secured by this Mortgage if all or any part of the Mortgaged Property (or any right(s) in the Mortgaged Property) is sold or otherwise transferred including by “land contract” without the por wntfen permission of the Mortgage 17 If the Mortgagor 1s in default under the terms of the note secured by this Mortgage, the Mortgagor agrees to pay any reasonable legal fees (including fees incurred for both attorney and paralegal services) and any other reasonable costs incurred by Mortgagee as a result of the default, the cost of an environmental assessment, and a third party appraisal of the value of the Mortgaged Property if this Mortgage is foreclosed, the Mortgage 1s entitled to recover reasonable attorney's fees for foreclosure, in addition to statutory costs or disbursements and any additional or supplemental allowance made pursuant to C PLR Section 8303 or other authority In addition, the Mortgage shall be entitled to recover, as a part of the Morigagee’s foreclosure judgment, the cost of a third party appraisal ordered in connection with the ‘commencement of the foreclosure action, and any amount expended by the Mortgage for the preservation of the Mortgaged Property These fees shall be a lien on the Mortgaged Property with prionty over the Mortgage, but shall be subject to the subordination provisions of Paragraph 21 of this Mortgage 18 any required payment of pnncipal or interest is overdue for a penod in excess of ten (10) days, a late charge as provided in the Note may be charged at the option of the Mortgagee 19 If the Mortgagor is in default under the terms of the Note this Mortgage, the Mortgagee may, either with or without entry or taking possession of the Mortgaged Property as provided in this Mortgage or otherwise, personally or by its agents or attorneys, and without prejudice to the nght to bring an action for foreclosure of this Mortgage, sell the Mortgaged Property or any part thereof pursuant to any procedures provided by applicable law, including, without limitation, the procedures set forth in Article 14 of the New York Real Property Actions and Proceedings Law (and any amendments or substitute statutes in regard thereto), and all estate, nght, tile, interest, claim and demand therein, and night of redemption thereof, at one or more sales as an entity or in parcels, and at such time and place upon such terms and after such notice thereof as may be required or permitted by applicable law The term "Mortgagor" and all words referring to the Mortgagor, shall be deemed to include any and/or either and/or all of the owner(s) of the Premises descnbed in this Mortgage, their hems, executors, administrators, successors or assigns 21 This Mortgage and the estate and interest of the Mortgage hereunder (and those claiming by, through or under the Mortgagee) shall be automatically subject and subordinate to any construction or permanent mortgage lien or charge created by the Mortgagor (the “Paramount Mortgage"), which at any time hereafter may be placed ROCHDOCSHI9IISas a first lien upon the Mortgaged Property, and to any renewals, extensions, modifications or substitutions thereof The Paramount Mortgage shall, be prior and paramount to this Mortgage and to the nights and interests of the Mortgagee hereunder and all persons claiming by, through or under the Mortgagee, or otherwise, and the Mortgagee shall attom to any lending institution with respect to the Paramount Mortgage and execute and deliver any instrument of subordination requested by such lending institution In addition, upon the acceptance and recordation in the Monroe County Clerk’s Office of easements to the Town of Irondequoit for sanitary sewers, water mains and vehicle turnaround, as shown on a map of the Premises prepared by Costich Engineering dated July __, 2006, the lien of this Mortgage shall automatically be subordinated to the lien of such easements 22 (a) If at any time that the Note Is outstanding, the Mortgagor causes to be placed on the Mortgaged Properly a Paramount Mortgage such that the Mortgage 1s subject to and subordinate to the lien of the Paramount Mortgage, then, unless the appraised fair market value of the Premises exceeds one hundred twenty-five percent (125%) of the combined amount of (1) the principal amount of the Paramount Mortgage, (u) the principal amount then owed by the Mortgagor pursuant to the Note, (ii!) the principal amount then owed by RSM Newport House Pub & Café LLC pursuant to the Promissory Note issued by RSM Newport House Pub & Café LLC to Newport House Pub & Café, Inc , and (iv) the principal amount then owed by RSM Newport Marina LLC pursuant to the Promissory Note issued by Newport Marina LLC to Newport Marina, Inc , within sixty (60) days after the recording of the Paramount Mortgage, Robert S. Mancini and Steven P Mancini shall provide to the Mortgagee, for informational purposes only, their personal balance sheets dated as of the date of the closing of the Paramount Mortgage (b) Any financial information provided by Robert S Mancini or Steven P Mancini pursuant to this Paragraph 22 shall be maintained by the Mortgagee in strictest confidence and shall not be disclosed by Mortgagee to any other person except Mortgagee’s attorney and accountant Any such permitted disclosure shall only be permitted if Mortgagee's attorney or accountant agree to be similarly bound to maintain the content of such financial information in strictest confidence At any time (1) the value of the Premises as reflected in a certified appraisal exceeds the then combined outstanding principal amount of the obligations set forth in Paragraph 22 (a)(i) through (iv) by at least one hundred twenty-five percent (125%), or (u) the Note is paid in full, then, in any such event, any financial information ever delivered to Mortgagee, and any copies thereof, shall be returned to Robert S Mancini and Steven P, Mancini as soon as reasonably possible The return of financial information pursuant to the preceding sentence shall not in any manner diminish the confidentiality obligations set forth in the first sentence of this Paragraph 22 (b), which confidentiality obligations shail continue to remain effective 23 Notwithstanding any contrary provisions of this Mortgage, Mortgage acknowledges that the transaction with Mortgagor whereby the Mortgagor acquired the ROCHDOCSH291155¢ 7+Mortgaged Property and pursuant to which this Mortgage has been granted, are part of a series of simultaneous transactions relating to the Newport House Pub & Café, Inc Asset Purchase Agreement and the Newport Marina, Inc. Asset Purchase Agreement, each of even date with a Land Purchase Agreement by and between the Mortgagor and the Mortgagee for the purchase and sale of the Mortgaged Property In recognition of the simultaneous occurrence of these transactions, as to which Mortgagee acknowledges having received substantial benefits thereunder, the following nghts of offset are hereby granted to Mortgagor, and to the other parties referenced herein, by the Mortgagee" {a) The Mortgagee acknowledges and agrees that the Mortgage will receve substantial benefit from the closing of the transactions contemplated by the Newport House Pub & Café, Inc Asset Purchase Agreement and the lease entered into pursuant thereto (the “Pub & Café Lease") and by the Newport Marina, Inc Asset Purchase Agreement and the lease entered into pursuant thereto (the "Manna Lease”) ‘As such, the Mortgagor has the right to offset any obligation or payment that the Mortgagor is obligated to pay to the Mortgage pursuant to the Land Purchase Agreement, the Note, or this Mortgage (1) mn the event of any default or breach by Mortgage or Newport House Pub & Café, Inc of the terms of the Newport House Pub & Café, Inc Asset Purchase Agreement, or (u) in the event of any default or breach by Mortgage of the terms or conditions of the Land Purchase Agreement, or (ii) m the event of any default or beach by Newport Marina, Inc or the “Shareholders” (as defined in the Newport Marina, Inc Asset Purchase Agreement) of the terms or conditions of the Newport Marina, Inc Asset Purchase Agreement, or (Iv) in the event of any default or breach by the Mortgage or Newport House Pub & Café, Inc of the terms and conditions of the Pub & Café Lease; or (v) in the event of any default or breach by Newport Marina, Inc or the “Shareholders” of the terms or conditions of the Marna Lease (b) The Mortgage acknowledges and agrees that, in the event of any default or breach by the Mortgagee of any of the terms or conditions of the Land Purchase Agreement (i) RSM Newport House Pub & Cafe LLC may offset against any obligation or payment that RSM Newport House Pub & Cafe LLC 1s obligated to make to the Mortgagee and Newport House Pub & Café, Inc pursuant to the Newport House Pub & Café, Inc Asset Purchase Agreement, or the Promissory Note issued pursuant thereto, the amount or value of all such defaults or breaches, and (u) the Mortgagor may offset against the Mortgagee any obligation or payment that the Mortgagor is obligated to make to the Mortgage pursuant to the Land Purchase Agreement or the Note, the amount or value of all such defaults or breaches, and (i) RSM Newport Manna LLC may offset against Newport Marina, Inc and the “Shareholders” any obligation or payment that RSM Newport Marina LLC 1s obligated to make to Newport Manna, Inc and the “Shareholders” Pursuant to the Newport Manna, Inc Asset Purchase Agreement or the Promissory Note 'ssued pursuant thereto, the amount or value of all such defaults or breaches (©) Without in any manner diminishing the obligations of any other parties pursuant to this Paragraph 23, this Mortgage is made with the express reliance upon the agreement of the Mortgage that the Mortgagee's obligations with regard to ROCHDOCSH91IS <8.the offset rights of the Mortgagor, of RSM Newport House Pub & Cafe LLC and of RSM Newport Marina LLC under this Paragraph 23 and this Mortgage are jomt and several with all other obligations of Newport House Pub & Café, Inc, Newport Marina, Inc and the “Shareholders” (as defined in the Newport Manna, Inc Asset Purchase Agreement) and that none of the Mortgagor, RSM Newport Marina LLC or RSM Newport House Pub & Café LLC are required to pursue or exhaust their nights against any other parties prior to exercising their rights of offset against the Mortgagee (d) _ In addition to the nghts of offset desonbed in Paragraph 23(a), (b) and (c) immediately above, the Mortgagee acknowledges and agrees that the Mortgagor shall have the right to offset on a dollar for dollar basis against payments due to the Mortgage under the Note the first $500,000 of “Environmental Costs” (as defined below) incurred by the Mortgagor (the “First Offset Amount") Mortgagor shall be solely responsible for, and the Mortgagor shall not have a nght of offset with respect to, the next $100,000 of Environmental Costs above the First Offset Amount (“Mortgagor's Environmental Cost Amount") Thereafter, to the extent the Mortgagor incurs Environmental Costs in excess of the aggregate of the First Offset Amount and Mortgagor’s Environmental Cost Amount, the Mortgagee agrees that the Mortgagor may offset on a doliar for dollar basis against payments due to the Mortgage under this Note the next $400,000 of Environmental Costs As used in this Note, the term “Environmental Costs” includes, without limitation, all costs and expenses incurred directly or indwectly by the Mortgagor, as determined by the Mortgagor, in the Morigagor's reasonable discretion, to be necessary to determine the nature and extent of contamination, to hold and attend public meetings, to prepare work plans and reports, to enter into and manage a cleanup agreement with the New York State Department of Environmental Conservation (‘NYSDEC’), to reimburse State costs, and to contain, clean up, remove, remediate and restore conditions at the Mortgaged Property to be protective, at a minimum, for restricted residential, recreational, restaurant and manna uses, and if deemed necessary by the NYSDEC, to protect groundwater quality and ecological resources Notwithstanding the foregoing, Environmental Costs shall not include the costs of any Phase | ESA and Phase Il limited testing performed by Morigagor, and shall include only testing costs incurred after a Phase II investigation detects contamination at concentrations in excess of relevant levels (eg NYSDEC TAGM 4048 recommended soil cleanup objectives, Part 703 surface water and groundwater quality standards and/or sediment cleanup criteria), and after Mortgagor determines, in Mortgagor's sole judgment, that NYSDEC involvement 1s necessary in determining the appropnate remediation Any night of offset provided in this Paragraph 23 shall include the reasonable attorneys’ fees, costs and expenses incurred by Mortgagor (e) The Mortgagee hereby acknowledges that the Mortgagee has applied to the New York State Office of General Services (‘OGS") for an amendment to the Mortgagee's existing Submerged Land License (License Number LUW00753) (the "OGS License”) to increase the number of slips permitted by the OGS License from 130 to 187, consisting of 177 rent producing sips, 5 service slips and 5 transient slips (the “Amended OGS License") The Mortgagee further acknowledges that the Mortgagee's ROCHDOCSH29IIS -9-