Preview
Docket No. UWY CV 17-6035269 S
NEW YORK COMMUNITY BANK i J.D. OF WATERBURY
v. i AT WATERBURY
HILLSIDE HEIGHTS, LLC et al, : October __, 2017
State of New York )
) Ss:
County of Nassau )
I, Henry W. Yabroudy, being duly sworn, depose and say:
ie I am an adult and understand the obligations of an oath.
2. 1am an officer of New York Community Bank (“NYCB”) and am currently
responsible for managing recovery of the $2,000,000 original principal loan (the “Loan”) made
by NYCB to Hillside Heights LLC (“Hillside”) that is the subject of this foreclosure case. I am
personally familiar with the circumstances of the Loan and its current status, and with the
Complaint filed by NYCB in this case. I make this affidavit in support of the NYCB’s motion
for appointment of receiver of rents.
3. Ihave read the Complaint filed in this case and am personally familiar with its
contents and with the contents of the exhibits attached to that Complaint. A true copy of the
Complaint and exhibits thereto is attached as Exhibit 1 hereto. I verify that the facts alleged in
the Complaint and the exhibits attached to that Complaint are, to the best of my personal
knowledge and belief, true and accurate.
4, The Loan is in default. As a result, the entire principal of $1,780,488.29, together
with accrued interest, default interest (now accruing at 11.5% per annum), and all other sums due
and coming due under the NYCB Note (including but not limited to reasonable attorney’s fees
and costs of collection), is now due and payable.
a5. The documents attached as Exhibit 2 hereto reflect fire safety code abatement
orders recorded against the property and which, per attached City records, remain outstanding,
6. Upon information and belief, two entire floors of the Property are unoccupied as a
result of Hillside, without having sought or obtained proper permits, making unit alterations
which created and/or exacerbated fire and safety hazards, and, when discovered by City
inspectors, resulted in the affected units being declared unfit for occupancy.
7. The document attached as Exhibit 3 hereto is the 2016 profit and loss statement
for the subject property provided to us by Hillside and its property manager, CK Investment
LLC. The statement reflects a net operating loss of $179,337.01 for the property for the most
recent completed year.
8. The document attached as Exhibit 4 hereto is a very recent appraisal of the
subject property conducted by Blue Ribbon Appraisals LLC and its licensed Connecticut
appraiser, Charles Liberti. The appraisal is based upon interior and exterior inspection, as well
as market factors, and concludes that the fee simple market value of the property as of October 2,
2017 is $880,000,
9. The appraisal also includes numerous current photographs of the interior and
exterior of the subject property. The photographs reveal visible evidence of deterioration of the
property.
10. Hillside continues to collect the rents generated by the Property.
11. — Section 5 of the Mortgage (see, attached Complaint, at Ex. C) expressly entitles
NYCB to the appointment of a receiver in any action to foreclose the mortgage, stating: “That
the holder of this Mortgage, in any action to foreclose it, shall be entitled to the appointment of areceiver irrespective of the adequacy of the security and without notice to the Mortgagor and
Mortgagor hereby consents to such appointment and waives notice of any application therefore."
12. I swear that the foregoing is true and accurate to the best of my knowledge
information and belief.
Henry—WV. Yabroudy
+4
Subscribed and sworn to me this 2S day of October 2017.
Commissioner of the Superior Court
Notary Public
My Commission Expires:
NADINE M. BARHAM
Notary Pubilc, State ‘of New York
No. 01BA6145308
1
Qualified in Nassau County
Commission Expires May 4, 20,EXHIBIT 1
|RETURN DATE: JUNE 27, 2017
NEW YORK COMMUNITY BANK J.D. WATERBURY
v.
HILLSIDE HEIGHTS, LLC;
YESHIVAH GEDOLAH OF
WATERBURY, INC.; T-MOBILE NORTHEAST, :
LLC; SIRIUS XM RADIO, INC.; and CITY OF
WATERBURY CT : JUNE 5, 2017
COMPLAINT
The Parties
1. The plaintiff New York Community Bank (“NYCB”) is a corporation organized
under the laws of New York with a principal place of business at 102 Duffy Ave., Hicksville,
New York, 11801. NYCB engages in, among other things, the business of making loans secured
by real estate such as the property that is the subject of this foreclosure action.
2. The defendant Hillside Heights LLC (“Hillside”) is a Connecticut limited liability
company with an address of 47 Buckingham Street, Waterbury CT 06710 and a resident agent of
Weisman Law Offices, LLC, 25 Central Ave., Waterbury CT 06750. Hillside is the owner of
the equity of redemption in the property that is the subject of this foreclosure action.
3. The defendant Yeshiva Gedolah of Waterbury, Inc. (“Yeshiva”) is member of
Hillside with an address of 47 Buckingham Street, Waterbury CT 06710. Yeshiva is a guarantor
of the note secured by the mortgage that is the subject of this foreclosure action.
4. The defendant T-Mobile Northeast, LLC (“T-Mobile”) is a Delaware limited
liability company with an address of 12920 SE 38" Street, Bellevue, Washington 98006 and a
resident agent of Corporation Service Company, 50 Weston Street, Hartford CT 06120-1737.5. The defendant Sirius XM Radio, Inc. (“Sirius”) is a Delaware corporation with an
address of 1221 Avenue of the Americas, New York NY 10020 and a resident agent of C T
Corporation System, One Corporate Center, Hartford CT, 06103-3220.
6. The defendant City of Waterbury (“City”) is a Connecticut municipality with an
address of 265 Grand St., Waterbury CT 06702.
The Subject Property
7. The property which is the subject of this foreclosure action consists of the land
and improvements situated in the City of Waterbury, County of New Haven, and State of
Connecticut located at 117 Pine Street (the “Property”); the Property is also referred to by the
address of 120 Hillside Avenue. A legal description of the Property is attached hereto as Exhibit
A and incorporated by reference herein.
8. The Property is a nine-story building consisting of approximately eighty (80)
apartment units and one management office.
NYCB’s $ 2,000,000 Secured Loan
9. On April 24, 2007, NYCB made a loan to Hillside in the principal sum of Two
Million Dollars ($2,000,000.00), as evidenced by a certain Promissory Note (the “NYCB Note”)
for said sum. Pursuant to Conn. Pr. Bk. § 10-29 the NYCB Note is identified herein as Exhibit
B, and incorporated herein by reference, a copy of which shall be mailed to all parties who enter
an appearance in this action.
10. The NYCB Note was a “balloon note” set to mature, absent prior default, on May
1, 2017, unless extended by mutual consent. The NYCB Note provided, inter alia, for (i)
monthly payments of interest only at the rate of 6.5% per annum through April 30, 2009, then
(ii) for the period May 1, 2009 through April 30, 2012, monthly payments of principal (based ona 30 year amortization schedule) and interest at 6.50 % per annum, and then (iii) for the period
May 1, 2012 through April 30, 2017, monthly payments of principal with interest adjusted
annually to a rate that is 2.5% above the Prime Rate as published in the New York Times, with a
floor of 6.5% and a ceiling of 16.0%.
11. To secure payment of the NYCB Note, Hillside granted to NYCB a mortgage
interest in the Property pursuant to that certain Open-End Mortgage Deed (the “NYCB
Mortgage”). The NYCB Mortgage was dated April 24, 2007 and was duly recorded at Volume
6109 Page 246 et seq. of the Waterbury, CT Land Records. Pursuant to Conn. Pr. Bk. § 10-29,
the NYCB Mortgage is identified herein as Exhibit C, and incorporated herein by reference, a
copy of which shall be mailed to all parties who enter an appearance in this action.
12. To further secure payment of the NYCB Note, Hillside granted to NYCB (i) a
collateral assignment of rents derived from the Property; and (ii) security interest in, among other
things, fixtures located at the Property.
13. In addition, Yeshiva executed a certain Limited Guarantee (the “Guarantee’’) of
sums due and owing under the Note and Mortgage. By its terms, the Guarantee became effective
as to all sums due and owing under the Note and Mortgage upon (i) occurrence of a monetary
default by Hillside, and (ii) the failure of Hillside to surrender possession of the Property to
NYCB at the time of such monetary default. Pursuant to Conn. Pr. Bk. § 10-29 the Guarantee is
identified herein as Exhibit D, and incorporated herein by reference, a copy of which shall be
mailed to all parties who enter an appearance in this action.
14. Hillside failed to make the payments due to NYCB on April 1, 2017 and May 1,
2017.15. By letters dated May 12, 2017, copies of which are attached hereto as Exhibit E
and incorporated by reference herein, NYCB notified Hillside and Yeshiva that the loan was in
monetary default and demanded cure thereof by May 22, 2017. Pursuant to Conn. Pr. Bk. § 10-
29, a copy of Exhibit E will be mailed to all parties who enter an appearance in this action.
16. Hillside failed and refused to cure the default, timely or otherwise. Accordingly,
by letters dated May 24, 2017, copies of which are attached hereto as Exhibit F and incorporated
by reference herein, NYCB notified Hillside and Yeshiva that the loan had been accelerated.
Pursuant to Conn. Pr. Bk. § 10-29, a copy of Exhibit F will be mailed to all parties who enter an
appearance in this action.
17. Accordingly, the entire principal and interest balance of the NYCB Note, together
with all other sums due under the NYCB Note (including but not limited to past due tax and
insurance escrow payments and accumulated late charges), is now due and payable.
18. Hillside has further failed to surrender possession of the Property to NYCB upon
the occurrence of the aforesaid monetary defaults.
19. Upon information and belief, Hillside is continuing directly or indirectly to collect
rents, income and/or profits from the Property without remitting any portion of said rents,
income and/or profits to NYCB, despite the existence of that certain Collateral Assignment of
Leases and Rentals dated April 24, 2007 (the “Collateral Assignment”) executed by Hillside in
favor of NYCB and recorded at Volume 6109 Page 267 et seq. of the Waterbury, CT Land
Records. A copy of the afore-described assignment of rents is attached hereto as Exhibit G and
incorporated by reference herein. Pursuant to Conn. Pr. Bk. § 10-29, a copy of Exhibit G will be
mailed to all parties who enter an appearance in this action.20. As further security for the loan, NYCB also recorded a fixture filing statement at
Volume 6109 Page 276 et seq. of the Waterbury, CT Land Records. A copy of the afore-
described fixture filing is attached hereto as Exhibit H and incorporated by reference herein.
Pursuant to Conn. Pr. Bk. § 10-29, a copy of Exhibit H will be mailed to all parties who enter an
appearance in this action.
Additional Claims against, Encumbrances on, or Interests in the Property
21. — The following encumbrances of record upon the Property sought to be foreclosed
herein are prior in right to the lien of the NYCB Mortgage and are not affected by this action:
a. Real estate taxes due to the City of Waterbury on the List of October 1, 2016;
and
b. Water and sewer charges due to the City of Waterbury.
22. In addition to the equity of redemption interest of the fee owner, Hillside, the
following encumbrances of record exist upon the Property and are subsequent in right and
subordinate to NYCB’s Mortgage sought to be foreclosed upon in this action:
a. A Lease for installation of a cell phone tower from Hillside Heights, LLC to
defendant, T-Mobile Northeast, LLC dated 11/30/2012 and recorded 3/5/2013
at Volume 7040, Page 99 of the Waterbury Land Records;
b. Any interest claimed by virtue of any lease agreement written or oral between
the defendant Hillside Heights LLC and the defendant Sirius XM Radio, Inc.;
c. Any interest claimed by virtue of a Notice of Fire Safety Code Abatement
Orders issued against the defendant Hillside Heights LLC by the Waterbury
Fire Department and recorded 10/27/2016 at Volume 7560 page 216 of the
Waterbury Land Records.
COUNT ONE (Reformation of NYCB’s Mortgage, Collateral Assignment and Fixture Filing)
1-22. The allegations of paragraph 1-22 set forth herein above are realleged as
paragraphs 1-22 of this Count One, as though fully set forth.23. In their respectively scheduled property descriptions, both the NYCB Mortgage
(Exhibit C hereto) and the Collateral Assignment (Exhibit G hereto) correctly refer to the
Property’s street address as “That certain piece or parcel of land situated in the City of
Waterbury, County of New Haven and State of Connecticut known as 117 Pine Street and more
particularly described as follows [metes and bounds description].”
24. However, in both instances the metes and bounds description of the property as
scheduled erroneously and unintentionally reflects property located at 170 Hillside Avenue,
instead of the property located at 117 Pine Street, the latter of which was in fact the property
deeded to Hillside from Waterbury Carlton Apartments LLC by Warranty Deed recorded at
Volume 6109, Pages 243-245 of the Waterbury Land Records on April 27, 2007 and for which
NYCB contemporaneously provided Hillside with the financing described hereinabove.
25. The fixture filing, also referring to the property being encumbered as that located
at 120 Hillside Avenue a/k/a 117 Pine Street, Waterbury CT 06710, expressly references the
NYCB Mortgage.
26. In order to accurately reflect the intention of the parties to encumber the Property
located at 117 Pine Street, Waterbury CT (as properly described at Schedule A hereto), the
NYCB Mortgage and the Collateral Assignment should be reformed to reflect the correct metes
and bounds description of the property located at 117 Pine Street, Waterbury CT.
COUNT TWO (Enforcement of the NYCB Note and Mortgage)
1-26. The allegations of paragraph 1-26 set forth herein above are realleged as
paragraphs 1-26 of this Count Two, as though fully set forth.27. Asadirect and proximate result of Hillside’s conduct, including its defaults under
the NYCB Note, the NYCB Mortgage, and the Collateral Assignment, NYCB has suffered, and
is continuing to suffer, economic harm.
28. Accordingly, NYCB is entitled to pursue remedies granted to it under the NYCB
Note, the NYCB Mortgage, at common law and in equity, including but not limited to
foreclosure of all interests in the Property junior to the NYCB Mortgage, assessment of a
deficiency judgment against Hillside and its guarantor, and enforcement of NYCB’s assignment
of rents.
COUNT THREE (Enforcement of the Guarantee)
1-28. The allegations of paragraph 1-28 set forth herein above are realleged as
paragraphs 1-28 of this Count Three, as though fully set forth.
29. Defendant Yeshiva is personally liable to NYCB for all sums which Hillside has
failed to pay on account of the Note and Mortgage.
30. Asa direct and proximate result of Yeshiva’s failure to perform under the terms
of the Guarantee, NYCB has suffered, and is continuing to suffer, economic harm.
WHEREFORE, the Plaintiff requests the following relief:
AS TO COUNT ONE:
1. Reformation of the NYCB Mortgage, Collateral Assignment, and fixture
filing to accurately reflect, as intended by the parties, the correct metes
and bounds description of the Property being encumbered by said.
instruments;
2 Such further relief as equity may require.AS TO COUNT TWO:
3. Pre-judgment enforcement of NYCB’s assignment of rents;
4. Appointment of a receiver of rents for the Property;
5. A foreclosure of the NYCB Mortgage as to the interests of Hillside, the
guarantor Yeshiva, and any other interest junior to the interest of NYCB;
6. Assessment of all interest (including post-default interest), late fees, and
other charges due or becoming due until the time of judgment;
7. All costs and fees, including reasonable attorney’s fees, incurred by the
Plaintiff in this action;
8. A deficiency judgment against Hillside and Yeshiva; and
9. Such further relief as equity may require.
AS TO COUNT THREE
10. Damages for breach of the Guarantee given by Yeshiva;
11. All costs and fees, including reasonable attorney’s fees, incurred by the
Plaintiff in this action;
12. Such other and further relief as the Court may deem appropriate.
fé.
Dated at New Haven, Connecticut this & day of June, 2017.
THE PLAINTIFF
NEW YORK COMMUNITY BANK
Neubert Pepe & Monteith, P.C.
Its Attorneys
195 Church Street, 13" Floor
New Haven, CT 06510
Tel. 203.821.2000
Fax 203.821.2009
Juris No. 407996RETURN DATE: JUNE 27, 2017
NEW YORK COMMUNITY BANK : J.D. WATERBURY
Vv.
HILLSIDE HEIGHTS, LLC;
YESHIVAH GEDOLAH OF
WATERBURY, INC.; T-MOBILE NORTHEAST, :
LLC; SIRIUS XM RADIO, INC., and CITY OF
WATERBURY CT : JUNE 5, 2017
STATEMENT OF AMOUNT IN DEMAND
The Plaintiff hereby states that the amount in demand, exclusive of interest and costs, is
greater than FIFTEEN THOUSAND ($15,000.00) DOLLARS.
THE PLAINTIFF
NEW YORK COMMUNITY BANK
Jpfnes C. Graham
leubert Pepe & Monteith, P.C.
Its Attorneys
195 Church Street, 13" Floor
New Haven, CT 06510
Tel. 203.821.2000
Fax 203.821.2009
Juris No. 407996EXHIBIT ASCHEDULE A
All that cetlain place or parcel of land together with the buildings and improvements thereon
situated in the Town of Waterbury, County of New Haven and State of Connecticut being more
particularly bounded and described as follows:
Commencing at a point which marks the intersection of the northerly street line of Hillside Avenue
with the westerly street line of Pine Street being the southeast corner of the herein described parce]
of land, thence running N 67°21’ W 180.18” along the said northerly street line of Hillside Avenue,
to apoint; thence turning and running along other Jand to be conveyed to Brutus Associates, LLC
(Second Piece) the following courses and distances: N 35° 01’ 43” E 173.49” and N 34° 18 15” B
80.07’, to a point on the southerly street line of Kellogg Street; thence turning and running along
the said southerly street line of Kellogg Street the following courses and distances: S 60° 20’ 15”
E 1,00” and $ 63° 02’ 45” E 178.46”, to a point which marks the intersection of the said southerly
street line of Kellogg Street and the said westerly street line of Pine Street; thence turning and
running S 35° 11° 30” W240.09” along the said westerly street line of Pine Street, to the point and
place of beginning,EXHIBIT BPROMISSORY NOTE
$2,000,000.00 Queens, New York
April 24, 2007
FOR VALUE RECEIVED, HILLSIDE HEIGHTS, LLC, a Connecticut Limited Liability
Company, whose principal place of business is located at 47 Buckingham Street, Waterbury,
Connecticut 06710, the Mortgagor also referred to herein as “the payor”, promises to pay NEW
YORK COMMUNITY BANK, the Mortgage also referred to herein as “the payee”, a Corporation
organized and existing under the laws of the State of New York, having its principal place of
business at One Jericho Plaza, Jericho, New York 11753, or at such other place as may be designated
in writing by the holder of this Note, the principal sum of Two Million and 00/100 ($2,000,000.00)
Dollars which sum the undersigned agrees to pay with interest thereon to be computed as follows:
(A) Starting on the date of closing of this loan, the interest rate of 6.50% percent, per annum will
be payable from the date hereof until April 30, 2009. The monthly payments will be interest
only.
(B) From May 1, 2009 until April 30, 2012, the interest rate of 6.50%, per annum will be
payable. The monthly payments of principal and interest will be based upon a thirty (30)
year amortization schedule.
The privilege to prepay this mortgage loan during the first year of the loan shall be
computed for that purpose from May 1, 2007, is reserved upon giving thirty (30) days prior
written notice to the payee to prepay principal in part or in full provided there is also paid to
the payee as consideration for the exercise of said privilege, a sum equal to five (5%) percent
of the amount of the principal balance being prepaid. Thereafter and during the second year
of the loan as computed pursuant to the language contained in the first sentence of this
paragraph, the privilege is reserved upon giving thirty (30) days prior written notice to the
payee to prepay principal in part or in full provided there is also paid to the payee as
consideration for the exercise of said privilege, a sum equal to four (4%) percent of the
amount of the principal balance being prepaid. Thereafter and during the third year of the
Joan as computed pursuant to the language contained in the first sentence of this paragraph,
the privilege is reserved upon giving thirty (30) days prior written notice to the payee to
prepay principal in part or in full provided there is also paid to the payee as consideration for
the exercise of said privilege, a sum equal to three (3%) percent of the amount of the
principal balance being prepaid. Thereafter and during the fourth year of the loan as
computed pursuant to the language contained in the first sentence of this paragraph, the
privilege is reserved upon giving thirty (30) days prior written notice to the payee to prepay
principal in part or in full provided there is also paid to the payee as consideration for the
exercise of said privilege, a sum equal to two (2%) percent of the amount of the principal
balance being prepaid. Thereafter and during the fifth year of the loan as computed pursuant
to the language contained in the first sentence of this paragraph, the privilege is reserved
upon giving thirty (30) days prior written notice to the Payee to prepay principal in part or
in full provided there is also paid to the payee as consideration for the exercise of said
privilege, a sum equal to one (1%) percent of the amount of the principal balance beingw
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prepaid. Thereafter, the privilege is reserved upon giving thirty (30) days prior written notice
to the payee to prepay the principal balance then remaining unpaid, without consideration for
the exercise of said privilege. There will be a sixty (60) day period prior to the expiration of
the fifth year to prepay without penalty.
From May 1, 2012 until April 30, 2017 (the "Adjustable Rate Period"), the annual interest
to be charged on the unpaid principal balance with amortization based on the remaining
amortization period will be two and one-half (2.5%) percent over the Prime Rate as
published in the New York Times or in the event more than one prime rate is listed, the
highest rate shall prevail or such comparable prime rate in the event the New York Times
ceases to publish a prime rate, in effect on each May Ist, (each, a “Change Date") during the
Adjustable Rate Period. Interest shall remain unchanged for the twelve (12) month period
following each Change Date. At no time shall the interest rate pursuant to this paragraph be
less than 6.50% or more than 16.00% per annum.
Subject to the terms and conditions hereinafter set forth the payor at its option may elect prior
to expiration of the initial term stated above to fix the interest rate of this loan for the next
five (5) years. The annual interest rate to be charged on the unpaid principal balance will be
at a rate equal to 275 basis points over the published weekly average yield of the Five Year
United States Treasury Note constant Maturities as published in the Federal Reserve
statistical release H.15 (519) as of ninety (90) days prior to the expiration of the first five (5)
years of the mortgage term but in no event will said rate of interest be less than 6.50% per
annum. The payee will notify the payor of the proposed rate of interest sixty (60) to seventy-
five (75) days prior to the end of the preceding five (5) year period.
The exercise of this option is contingent upon the payor meeting the following precedent
conditions:
i, The payor did not breach, beyond any applicable notice, grace or cure periods, the
terms and conditions of the note, mortgage and the other loan documents during the
preceding five (5) year period including but not limited to the obligations to make
timely monthly mortgage payments.
ii. The payor must give written notice to the payee of its election to exercise the option
at least thirty (30) days prior to the end of the preceding five (5) year period.
iii. | The payor must pay to the payee an amount equal to one (1%) percent of the
outstanding principal balance as of the time of its election to exercise the option.
iv. The payor agrees the prepayment penalty for the ensuing five (5) year period is as
follows:gs
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The privilege to prepay this mortgage loan during the sixth year of the option period shall
be computed for that purpose from May 1, 2007, is reserved upon giving thirty (30) days
prior written notice to the payee to prepay principal in part or in full provided there is also
paid to the payee as consideration for the exercise of said privilege, a sum equal to five (5%)
percent of the amount of the principal balance being prepaid. Thereafter and during the
seventh year of the loan as computed pursuant to the language contained in the first sentence
of this paragraph, the privilege is reserved upon giving thirty (30) days prior written notice
to the payee to prepay principal in part or in full provided there is also paid to the payee as
consideration for the exercise of said privilege, a sum equal to four (4%) percent of the
amount of the principal balance being prepaid. Thereafter and during the eighth year of the
Joan as computed pursuant to the language contained in the first sentence of this paragraph,
the privilege is reserved upon giving thirty (30) days prior written notice to the payee to
prepay principal in part or in full provided there is also paid to the payee as consideration for
the exercise of said privilege, a sum equal to three (3%) percent of the amount of the
principal balance being prepaid. Thereafter and during the ninth year of the loan as
computed pursuant to the language contained in the first sentence of this paragraph, the
privilege is reserved upon giving thirty (30) days prior written notice to the payee to prepay
principal in part or in full provided there is also paid to the payee as consideration for the
exercise of said privilege, a sum equal to two (2%) percent of the amount of the principal
balance being prepaid. Thereafter and during the tenth year of the Joan as computed
pursuant to the language contained in the first sentence of this paragraph, the privilege is
reserved upon giving thirty (30) days prior written notice to the payee to prepay principal in
part or in full provided there is also paid to the payee as consideration for the exercise of said
privilege, a sum equal to one (1%) percent of the amount of the principal balance being
prepaid. There will be a sixty (60) day period prior to the expiration of the tenth year to
prepay without penalty.
This is a Balloon Payment Loan, payable in full at the end of ten (10) years.
The payor will make monthly payments on the first day of each month beginning June, 2007.
Each of the initial monthly payments of interest will be in the amount of U.S. $10,833.33.
This amount may change.
i. In the event of a default by the payor by failing to pay a monthly interest or interest
or principal and interest payment within thirty (30) days of the date as provided for
herein or in the further event that the payor has failed to pay the final payment of the
entire indebtedness which, if not sooner paid, shall be due and payable on the Ist day
of May, 2017, then and in either event, interest shall continue to be payable at the
default rate stated in ii.w
ii. In the event the principal indebtedness evidenced by this Note becomes due and
payable by the terms hereof or by reason of the holder hereof exercising its option to
call the same due, interest thereafter shall accrue at the lower of either (a) the highest
rate permitted by applicable law or (b) five (5%) percent above the current interest
rate (said rate of interest is referred to as the “Default Rate") and such interest shall
continue to accrue and be payable at the rate or rates herein specified and the Same
shall be collectible in any action to enforce this Note and/or foreclose the mortgage
securing this Note. a
iii. The payor will deposit with the payee on the first day of each and every month
hereafter, in addition to the payments on account of interest or principal and interest
on said indebtedness, an amount equal to one-twelfth of the annual charges for real
estate taxes, water sewer charges, flood insurance (if applicable), at the payee's
option fire insurance premiums (all as estimated by the payee) affecting the premises
mortgaged as security for this Note at least one month before they become due and
payable, current bills for which shall be fumnished by the payor. These escrows will
be held in a non-interest bearing account.
IT IS EXPRESSLY AGREED, that the said principal sum secured by this Note shall become
due at the option of the holder thereof on the happening of any default or event by which, under the
terms of the mortgage securing this Note, said principal sum may or shall become due and payable;
also, that all of the covenants, conditions and agreements contained in said mortgage are hereby
made part of this instrument. Presentment for payment, notice of dishonor, protest and notice of
protest are hereby waived.
Upon any default by the payor and following the acceleration of maturity as provided herein
or in the evidence of debt, tender of payment of the amount necessary to satisfy the entire
indebtedness secured hereby made at any time prior to consummation of a foreclosure sale, by the
payor, its successor or assigns or by anyone on behalf of the payor, its successor or assigns shall
. constitute an evasion of the prepayment terms of the evidence of debt and shall be deemed to be a
voluntary prepayment thereunder and any such payment to the extent permitted by law, will,
therefore, include the additional payment required under the prepayment privilege, if any, contained
in the evidence of debt.
Notwithstanding any term, provision, obligation, covenant or agreement contained herein or
in the mortgage secured hereby, the covenants, obligations and liabilities of the payor to the payee
or any holder of the note secured hereby, whether under any of the foregoing documents or
instruments or otherwise, shall not be the personal liability of the payor. The payee as well as any
holder of the note secured hereby shall not seek or be entitled to any personal judgment against the
payor or any successor or assigns of the payor and the sole remedies of the payee or any holder of
the note secured hereby, in the event of any default shall be to proceed against the premises, non-
Tecourse to payor, except for environmental issues, fraud, misrepresentation and the limited guaranty
given the same date hereof.a
This Note is secured by a mortgage made by the payor to the payee of even date herewith on
the property known as 120 Hillside Avenue a/k/a 117 Pine Street, Waterbury, City Waterbury and
County of New Haven, State of Connecticut, Assessors Map# 235 and 234, Block 543, Lot 7 on the
Tax map of the County of New Haven.
This Note may not be changed or terminated orally.
M/S HW
Name Diy Paver 74.7
LLM hig
HILLSIDE HEIGHTS, LLC
by: Yeshiva Gedolah of Waterbury, Inc., its
Sole Member
by: GL
Ahron Kaufman, Authorized SignatorySTATE OF NEW YORK _)
)SS.:
COUNTY OF QUEENS )
NY
On April 24, 2007, before me the undersigned, a Notary Public in and for said state, personally
appeared Ahron Kaufman, personally known to me or proved to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his capacity, and that by his signature(s) on the instrument, the
person, or the entity(ies) upon behalf of which the person acted, executed the instrument as his free
act and deed and the free act and deed of the person or entity(ies) upon behalf of which the person
acted.
Sa--\h A,
Notary Public
SARAH B. ZAKS
Notary Public, State of New York
No. 01ZA6067794
Qualified in Kings County
Commission Expires December 17, 201EXHIBIT CVE 61 oS PG:
OPEN-END MORTGAGE DEED 246
MORTGAGE, made this April 24, 2007, by HILLSIDE HEIGHTS, LLC, a Connecticut
Limited Liability Company, whose principal place of business is located at 47 Buckingham Street,
Waterbury, Connecticut 06710, hereinafter referred to as “the Mortgagor”, to NEW YORK
COMMUNITY BANK, a Corporation organized and existing under the laws of the State of New
York and having its principal place of business at One Jericho Plaza, Jericho, in the County of
Nassau, State of New York, hereinafter referred to as “the Mortgagee”.
WITNESSETH, that to secure the payment of an indebtedness in the sum of Two Million
and 00/100 ($2,000,000.00) Dollars lawful money of the United States, to be paid with interest
thereon, according to a certain bond, note or obligation or Promissory Note bearing even date
herewith ("Note") a copy of which Note is attached hereto as Schedule "B" and made a part hereof,
the Mortgagor hereby gives, grants, bargains, conveys and mortgages to the Mortgage, and to its
successors and assigns the premises as more fully described on Schedule"A" attached hereto.
TOGETHER with all right, title and interest of the Mortgagor in and to the land lying in the
streets and roads in front of and adjoining said premises,
TOGETHER with all fixtures, chattels and articles of personal property now or hereafter
attached to or used in connection with said premises, including but not limited to furnaces, boilers,
oil burners, radiators and piping, coal stokers, plumbing and bathroom fixtures, refrigeration, air
conditioning and sprinkler systems, wash-tubs, sinks, gas and electric fixtures, stoves, ranges,
awnings screens, window shades, elevators, motors,’ dynamos, refrigerators, kitchen cabinets,
incinerators, plants and shrubbery and all other equipment and machinery, appliances, fittings, and
fixtures of every kind in or used in the operation of the buildings standing on said premises, together
with any and all replacements thereof and additions thereto;
TOGETHER with all awards heretofore and hereafter made to the Mortgagor for taking by
eminent domain the whole or any part of said premises or any easement therein, including any
awards for changes of grade of streets, which said awards are hereby assigned to the Mortgagee, who
is hereby authorized to collect and receive the proceeds of such awards and to give proper receipts
and acquittances therefor, and to apply the same toward the payment of the mortgage debt,
notwithstanding the fact that the amount owing thereon may not then be due and payable; and the
said Mortgagor hereby agrees, upon request, to make, execute and deliver any and all assignments
and other instruments sufficient for the purpose of assigning said awards to the Mortgagee, free, clear
and discharged of any encumbrances of any kind of nature whatsoever.
AND the Mortgagor covenants with the Mortgagee as follows:
1. That the Mortgagor will pay the indebtedness as hereinbefore provided.
As
30-084 777-410.
Ve
eo VF 6109 PE: 245
That the mortgagor will keep the buildings on the premises insured against loss by fire and
any other hazard that may be required by the mortgagee for the benefit of the mortgagee; that
the mortgagor will assign and deliver the policies to the mortgagee; and that the mortgagor
will reimburse the mortgagee for any premiums paid for insurance made by the mortgagee
on the mortgagor's default in so insuring the buildings or in so assigning and delivering the
policies. :
That no building on the premises shall be altered, removed or demolished without the
consent of the Mortgagee.
That the whole of said principal sum and interest shall become due, at the option of the
Mortgagee, after default in the payment of any installment of principal or of interest for thirty
days; or after default in the payment of any tax, water rate, sewer rent or assessment for thirty
days after notice and demand; or after default after notice and demand either in assigning and
delivering the policies insuring the buildings against loss by fire or in reimbursing the
Mortgagee for premiums paid on such insurance, as hereinbefore provided; or after default
upon request in furnishing a statement of the amount due on the mortgage and whether any
offsets or defenses exist against the mortgage debt, as hereinafter provided; or after failure
to establish a lease security or reserve account, if same is required, within 120 days of the
date hereof.
That the holder of this Mortgage, in any action to foreclose it, shall be entitled to the
appointment of a receiver, irrespective of the adequacy of the security and without notice to
the Mortgagor and Mortgagor hereby consents to such appointment and waives notice of any
application therefor.
That the Mortgagor within five days upon request in person or within ten days upon request
by mail will furnish a written statement duly acknowledged of the amount due on this
Mortgage and whether any offsets or defenses exist against the mortgage debt.
That notice and demand or request may be in writing and may be served in person or by mail.
That the Mortgagor warrants the title to the premises free and clear of all encumbrances.
That the fire insurance policy required by paragraph #2 above shall contain the usual
extended coverage endorsement: that in addition thereto the Mortgagor, within thirty days
after notice and demand, will keep the premises insured against war risk and any other hazard
that may reasonably be required by the Mortgagee. All of the provisions of paragraph #2 and
#4 above relating to fire insurance and the provisions of the State of Connecticut construing
the same shall apply to the additional insurance required by this paragraph.
That the Mortgagor will pay all taxes, assessments, sewer rents or water rates, on or before
same shall become due, and in default thereof, the Mortgagee may pay the same.1.
12.
13.
VE 6109 PE: 2428
That in case of a foreclosure sale, said premises, or so much thereof as may be affected by
this Mortgage, may be sold in one parcel.
That if any action or proceeding be commenced to which action or proceeding the Mortgagee
is made a party, or in which it becomes necessary to defend or uphold the lien of this
Mortgage, all sums paid by the Mortgage for the expense of any litigation to prosecute or
defend the rights and lien created by this Mortgage (including reasonable counsel fees) shall
be paid by the Mortgagor, together with interest thereon at the default rate (as defined in the
Note), or the maximum rate allowed by law whichever is less and any such sum and the
interest thereon shall be a lien on said premises, prior to any right, or title to, interest in or
claim upon said premises attaching or accruing subsequent to the lien of said Mortgage, and
shall be deemed to be secured by this Mortgage. In any action or proceeding to foreclose this
Mortgage, or to recover or collect the debts secured thereby, the provisions of law respecting
the recovering of costs, disbursements and allowances shall prevail, except that interest shall
be paid after the initial default, following the expiration of any applicable notice and cure
periods, at the rate stated in the Note, or the highest rate permitted by law together with
reasonable attorney's fees which in no event shall be less than $1,500.00.
That the Mortgagor hereby assigns to the Mortgagee the rents, issues and profits of the
premises as further security for the payment of said indebtedness, and the Mortgagor grants
to the Mortgagee the right to enter upon the premises for the purpose of collecting the same
and to let the premises or any part thereof, and to apply the rents, issues and profits, after
payment of all necessary charges and expenses on account of said indebtedness. This
assignment grant shall continue in effect until this Mortgage is paid. The Mortgagee hereby
waives the right to enter upon said premises for the purpose of collecting said rents, issues
and profits and the Mortgagor shall be entitled to collect and receive said rents, issues and
profits until default at the rate under any of the covenants, conditions or agreements
contained in this Mortgage, and agrees to use such rents, issues and profits in payment of
interest or principal and interest becoming due on this Mortgage and in payment of taxes,
assessments, sewer rents, water rates and carrying charges becoming due against said
premises, but such right of the Mortgagor may be revoked by the Mortgagee upon any default
on five days’ written notice. The Mortgagor agrees that it will not cancel, abridge or
otherwise modify tenancies, subtenancies, leases or subleases of the rea] property mortgaged
herein in existence at the date of this Mortgage (except in the ordinary course of business)
or accept prepayments of installments of rent to become due thereunder without the consent
of the holder of this Mortgage; and in the event of any default under this Mortgage will pay
monthly in advance to the Mortgagee, or to any receiver appointed to collect said rents,
issues and profits, the fair and reasonable rental value for the use and occupation of said
premises or of such part thereof as may be in the possession of the Mortgagor, and upon
default in any such payment will vacate and surrender the possession of said premises to the
Mortgagee or to such receiver, and in default thereof may be evicted by summary
proceedings.14.
16.
. V2 6109 pee
249
That the whole of said principal sum and the interest shall become due at the option of the
Mortgagee: (a) after failure to exhibit to the Mortgagee, within ten days after demand,
receipts showing payment of all taxes, water rates, sewer rents and assessments; or (b) after
the actual or threatened alteration, demolition or removal of any building on the premises
without the written consent of the Mortgagee; or (c) after the assignment of the rents of the
premises or any part thereof without the written consent of the Mortgagee; or (d) if the
buildings on said premises are not maintained in reasonably good repair; or (e) after failure
to comply with any requirement or order or notice of violation of law or ordinance issued by
any governmental department claiming jurisdiction over the premises within three months
from the issuance thereof, unless such violation is incapable of being cured within 3 months
in which event Mortgagor shall promptly commence calling and diligently prosecute
completion of such cure; or (f) if on application of the Mortgagee two or more fire insurance
companies lawfully doing business in the State of Connecticut refuse to issue policies
insuring the buildings on the premises; or (g) in the event of the removal demolition or
destruction in whole or in part of any of the fixtures, chattels or articles of personal property
covered hereby unless the same are promptly replaced by similar fixtures, chattels and
articles of personal property at least equal in quality and condition to those replaced, free
from chattel mortgages or other encumbrances thereon and free from any reservation of title
thereto; or (h) after thirty days’ notice to the Mortgagor in the event of the passage of any law
deducting from the value of land for the purposes of taxation any lien thereon, or changing
in any way the taxation of mortgages or debts secured thereby for state or local purposes: or
(i) if the Mortgagor fails to keep, observe and perform any of the other covenants, conditions
or agreements contained in this said agreement or in this Mortgage, after notice and the
application of grace period, if any.
That Mortgagor (and if Mortgagoris a limited liability company, each member of Mortgagor)
has full power and authority to own its property and assets and to carry on its business and
operations as now being conducted and as presently contemplated, to execute, deliver and
perform, as applicable, the Loan Documents to which it is a party, to make the borrowings
hereunder, to execute and deliver the Note and to grant to Mortgagee a first, prior, perfected
and continuing lien on and security interest in the Premises.
That the execution, delivery and performance of the Loan Documents to which it is a party,
the making of the borrowings thereunder, the execution and delivery of the Note, the grant
of the liens on the Premises, pursuant to the Loan Documents to which it is a party and the
consummation of the Loan have been duly authorized by Mortgagor by all requisite action
(including, without limitation, approvals of members) and will not (i) violate any provision
of its Operating Agreement or Articles of Organization or, to its knowledge, any law,
judgment, order, rule or regulation of any court, arbitration panel or other Govemmental
Authority, domestic or foreign, or other Person affecting or binding upon Mortgagor or the
Premises; (ii) violate any provision of any indenture, agreement, Mortgage, contract or other
instrument to which Mortgagor is a party or by which any of its property, assets or revenues
are bound, or be in conflict with, result in an acceleration of any obligation or a breach of or
constitute (with notice or lapse of time or both) a default or require any payment or17.
18.
19.
20.
21.
22.
V2 6109 PE: 250
prepayment under, any such indenture, agreement, Mortgage, contract or other instrument
or (iii) result in the creation or imposition of any lien, except those in favor of Mortgagee as
provided in the Loan Documents to which it is a party. Mortgagor is not required to obtain
any consent, approval or authorization from, or to file any declaration or statement with, any
Governmental Authority or other agency in connection with or as a condition to the
execution, delivery or performance of this Mortgage, the Note or the other Loan Documents
which has not been so obtained or filed.
That the Mortgagor is now the owner of the premises upon which said mortgage is a valid
lien for the amount above specified with interest thereon at the rate above set forth, and that
there are no defenses or offsets to said mortgage or to the debt which it secures.
In the event that any payment shall become overdue for a period in excess of fifteen (15)
days, a “late charge" of 4¢ for each dollar ($1.00) so overdue may be charged by the
Mortgagee for the purpose of defraying the expense incident to handling such delinquent
payment.
The fire insurance policy and all replacements during the term of the loan must be issued by
a company satisfactory to the Mortgagee.
The note or other obligations hereby secured shall become due and payable at the option of
the mortgagee herein upon any transfer of title or transfer of stock to the premises herein
mortgaged, except for transfers to immediate family members, existing partners or entities
comprised of the same, subject to the OFAC requirement herein.
The Mortgagor herein expressly agrees that in the event of a default under the terms of this
Note and Mortgage if permitted by applicable law, a foreclosure by power of sale may be
brought by the Mortgagee at its sole option.
The privilege to prepay this Mortgage loan during the first year of the loan shall be
computed for that purpose from May 1, 2007, is reserved upon giving thirty (30) days prior
written notice to the Mortgagee to prepay principal in part or in full provided there is also
paid to the Mortgagee as consideration for the exercise of said privilege, a sum equal to five
(5%) percent of the amount of the principal balance being prepaid. Thereafter and during the
second year of the loan as computed pursuant to the language contained in the first sentence
of this paragraph, the privilege is reserved upon giving thirty (30) days prior written notice
to the Mortgagee to prepay principal in part or in full provided there is also paid to the
Mortgagee as consideration for the exercise of said privilege, a sum equal to four (4%)
percent of the amount of the principal balance being prepaid. Thereafter and during the third
year of the loan as computed pursuant to the language contained in the first sentence of this
paragraph, the privilege is reserved upon giving thirty (30) days prior written notice to the
Mortgagee to prepay principal in part or in full provided there is also paid to the Mortgagee
as consideration for the exercise of said privilege, a sum equal to three (3%) percent of the
amount of the principal balance being prepaid. Thereafter and during the fourth year of theVi 6109 Pe: 254
loan as computed pursuant to the language contained in the first sentence of this paragraph,
the privilege is reserved upon giving thirty (30) days prior written notice to the Mortgagee
to prepay principal in. part or in full provided there is also paid to the Mortgagee as
consideration for the exercise of said privilege, a sum equal to two (2%) percent of the
amount of the principal balance being prepaid. Thereafter and during the fifth year of the
loan as computed pursuant to the language contained in the first sentence of this paragraph,
the privilege is reserved upon giving thirty (30) days prior written notice to the Mortgagee
to prepay principal in part or in full provided there is also paid to the Mortgagee as
consideration for the exercise of said privilege, a sum equal to one (1%) percent of the
amount of the principal balance being prepaid. Thereafter, the privilege is reserved upon
giving thirty (30) days prior wri
Preview
Docket No. UWY CV 17-6035269 S NEW YORK COMMUNITY BANK i J.D. OF WATERBURY v. i AT WATERBURY HILLSIDE HEIGHTS, LLC et al, : October __, 2017 State of New York ) ) Ss: County of Nassau ) I, Henry W. Yabroudy, being duly sworn, depose and say: ie I am an adult and understand the obligations of an oath. 2. 1am an officer of New York Community Bank (“NYCB”) and am currently responsible for managing recovery of the $2,000,000 original principal loan (the “Loan”) made by NYCB to Hillside Heights LLC (“Hillside”) that is the subject of this foreclosure case. I am personally familiar with the circumstances of the Loan and its current status, and with the Complaint filed by NYCB in this case. I make this affidavit in support of the NYCB’s motion for appointment of receiver of rents. 3. Ihave read the Complaint filed in this case and am personally familiar with its contents and with the contents of the exhibits attached to that Complaint. A true copy of the Complaint and exhibits thereto is attached as Exhibit 1 hereto. I verify that the facts alleged in the Complaint and the exhibits attached to that Complaint are, to the best of my personal knowledge and belief, true and accurate. 4, The Loan is in default. As a result, the entire principal of $1,780,488.29, together with accrued interest, default interest (now accruing at 11.5% per annum), and all other sums due and coming due under the NYCB Note (including but not limited to reasonable attorney’s fees and costs of collection), is now due and payable. a5. The documents attached as Exhibit 2 hereto reflect fire safety code abatement orders recorded against the property and which, per attached City records, remain outstanding, 6. Upon information and belief, two entire floors of the Property are unoccupied as a result of Hillside, without having sought or obtained proper permits, making unit alterations which created and/or exacerbated fire and safety hazards, and, when discovered by City inspectors, resulted in the affected units being declared unfit for occupancy. 7. The document attached as Exhibit 3 hereto is the 2016 profit and loss statement for the subject property provided to us by Hillside and its property manager, CK Investment LLC. The statement reflects a net operating loss of $179,337.01 for the property for the most recent completed year. 8. The document attached as Exhibit 4 hereto is a very recent appraisal of the subject property conducted by Blue Ribbon Appraisals LLC and its licensed Connecticut appraiser, Charles Liberti. The appraisal is based upon interior and exterior inspection, as well as market factors, and concludes that the fee simple market value of the property as of October 2, 2017 is $880,000, 9. The appraisal also includes numerous current photographs of the interior and exterior of the subject property. The photographs reveal visible evidence of deterioration of the property. 10. Hillside continues to collect the rents generated by the Property. 11. — Section 5 of the Mortgage (see, attached Complaint, at Ex. C) expressly entitles NYCB to the appointment of a receiver in any action to foreclose the mortgage, stating: “That the holder of this Mortgage, in any action to foreclose it, shall be entitled to the appointment of areceiver irrespective of the adequacy of the security and without notice to the Mortgagor and Mortgagor hereby consents to such appointment and waives notice of any application therefore." 12. I swear that the foregoing is true and accurate to the best of my knowledge information and belief. Henry—WV. Yabroudy +4 Subscribed and sworn to me this 2S day of October 2017. Commissioner of the Superior Court Notary Public My Commission Expires: NADINE M. BARHAM Notary Pubilc, State ‘of New York No. 01BA6145308 1 Qualified in Nassau County Commission Expires May 4, 20,EXHIBIT 1 |RETURN DATE: JUNE 27, 2017 NEW YORK COMMUNITY BANK J.D. WATERBURY v. HILLSIDE HEIGHTS, LLC; YESHIVAH GEDOLAH OF WATERBURY, INC.; T-MOBILE NORTHEAST, : LLC; SIRIUS XM RADIO, INC.; and CITY OF WATERBURY CT : JUNE 5, 2017 COMPLAINT The Parties 1. The plaintiff New York Community Bank (“NYCB”) is a corporation organized under the laws of New York with a principal place of business at 102 Duffy Ave., Hicksville, New York, 11801. NYCB engages in, among other things, the business of making loans secured by real estate such as the property that is the subject of this foreclosure action. 2. The defendant Hillside Heights LLC (“Hillside”) is a Connecticut limited liability company with an address of 47 Buckingham Street, Waterbury CT 06710 and a resident agent of Weisman Law Offices, LLC, 25 Central Ave., Waterbury CT 06750. Hillside is the owner of the equity of redemption in the property that is the subject of this foreclosure action. 3. The defendant Yeshiva Gedolah of Waterbury, Inc. (“Yeshiva”) is member of Hillside with an address of 47 Buckingham Street, Waterbury CT 06710. Yeshiva is a guarantor of the note secured by the mortgage that is the subject of this foreclosure action. 4. The defendant T-Mobile Northeast, LLC (“T-Mobile”) is a Delaware limited liability company with an address of 12920 SE 38" Street, Bellevue, Washington 98006 and a resident agent of Corporation Service Company, 50 Weston Street, Hartford CT 06120-1737.5. The defendant Sirius XM Radio, Inc. (“Sirius”) is a Delaware corporation with an address of 1221 Avenue of the Americas, New York NY 10020 and a resident agent of C T Corporation System, One Corporate Center, Hartford CT, 06103-3220. 6. The defendant City of Waterbury (“City”) is a Connecticut municipality with an address of 265 Grand St., Waterbury CT 06702. The Subject Property 7. The property which is the subject of this foreclosure action consists of the land and improvements situated in the City of Waterbury, County of New Haven, and State of Connecticut located at 117 Pine Street (the “Property”); the Property is also referred to by the address of 120 Hillside Avenue. A legal description of the Property is attached hereto as Exhibit A and incorporated by reference herein. 8. The Property is a nine-story building consisting of approximately eighty (80) apartment units and one management office. NYCB’s $ 2,000,000 Secured Loan 9. On April 24, 2007, NYCB made a loan to Hillside in the principal sum of Two Million Dollars ($2,000,000.00), as evidenced by a certain Promissory Note (the “NYCB Note”) for said sum. Pursuant to Conn. Pr. Bk. § 10-29 the NYCB Note is identified herein as Exhibit B, and incorporated herein by reference, a copy of which shall be mailed to all parties who enter an appearance in this action. 10. The NYCB Note was a “balloon note” set to mature, absent prior default, on May 1, 2017, unless extended by mutual consent. The NYCB Note provided, inter alia, for (i) monthly payments of interest only at the rate of 6.5% per annum through April 30, 2009, then (ii) for the period May 1, 2009 through April 30, 2012, monthly payments of principal (based ona 30 year amortization schedule) and interest at 6.50 % per annum, and then (iii) for the period May 1, 2012 through April 30, 2017, monthly payments of principal with interest adjusted annually to a rate that is 2.5% above the Prime Rate as published in the New York Times, with a floor of 6.5% and a ceiling of 16.0%. 11. To secure payment of the NYCB Note, Hillside granted to NYCB a mortgage interest in the Property pursuant to that certain Open-End Mortgage Deed (the “NYCB Mortgage”). The NYCB Mortgage was dated April 24, 2007 and was duly recorded at Volume 6109 Page 246 et seq. of the Waterbury, CT Land Records. Pursuant to Conn. Pr. Bk. § 10-29, the NYCB Mortgage is identified herein as Exhibit C, and incorporated herein by reference, a copy of which shall be mailed to all parties who enter an appearance in this action. 12. To further secure payment of the NYCB Note, Hillside granted to NYCB (i) a collateral assignment of rents derived from the Property; and (ii) security interest in, among other things, fixtures located at the Property. 13. In addition, Yeshiva executed a certain Limited Guarantee (the “Guarantee’’) of sums due and owing under the Note and Mortgage. By its terms, the Guarantee became effective as to all sums due and owing under the Note and Mortgage upon (i) occurrence of a monetary default by Hillside, and (ii) the failure of Hillside to surrender possession of the Property to NYCB at the time of such monetary default. Pursuant to Conn. Pr. Bk. § 10-29 the Guarantee is identified herein as Exhibit D, and incorporated herein by reference, a copy of which shall be mailed to all parties who enter an appearance in this action. 14. Hillside failed to make the payments due to NYCB on April 1, 2017 and May 1, 2017.15. By letters dated May 12, 2017, copies of which are attached hereto as Exhibit E and incorporated by reference herein, NYCB notified Hillside and Yeshiva that the loan was in monetary default and demanded cure thereof by May 22, 2017. Pursuant to Conn. Pr. Bk. § 10- 29, a copy of Exhibit E will be mailed to all parties who enter an appearance in this action. 16. Hillside failed and refused to cure the default, timely or otherwise. Accordingly, by letters dated May 24, 2017, copies of which are attached hereto as Exhibit F and incorporated by reference herein, NYCB notified Hillside and Yeshiva that the loan had been accelerated. Pursuant to Conn. Pr. Bk. § 10-29, a copy of Exhibit F will be mailed to all parties who enter an appearance in this action. 17. Accordingly, the entire principal and interest balance of the NYCB Note, together with all other sums due under the NYCB Note (including but not limited to past due tax and insurance escrow payments and accumulated late charges), is now due and payable. 18. Hillside has further failed to surrender possession of the Property to NYCB upon the occurrence of the aforesaid monetary defaults. 19. Upon information and belief, Hillside is continuing directly or indirectly to collect rents, income and/or profits from the Property without remitting any portion of said rents, income and/or profits to NYCB, despite the existence of that certain Collateral Assignment of Leases and Rentals dated April 24, 2007 (the “Collateral Assignment”) executed by Hillside in favor of NYCB and recorded at Volume 6109 Page 267 et seq. of the Waterbury, CT Land Records. A copy of the afore-described assignment of rents is attached hereto as Exhibit G and incorporated by reference herein. Pursuant to Conn. Pr. Bk. § 10-29, a copy of Exhibit G will be mailed to all parties who enter an appearance in this action.20. As further security for the loan, NYCB also recorded a fixture filing statement at Volume 6109 Page 276 et seq. of the Waterbury, CT Land Records. A copy of the afore- described fixture filing is attached hereto as Exhibit H and incorporated by reference herein. Pursuant to Conn. Pr. Bk. § 10-29, a copy of Exhibit H will be mailed to all parties who enter an appearance in this action. Additional Claims against, Encumbrances on, or Interests in the Property 21. — The following encumbrances of record upon the Property sought to be foreclosed herein are prior in right to the lien of the NYCB Mortgage and are not affected by this action: a. Real estate taxes due to the City of Waterbury on the List of October 1, 2016; and b. Water and sewer charges due to the City of Waterbury. 22. In addition to the equity of redemption interest of the fee owner, Hillside, the following encumbrances of record exist upon the Property and are subsequent in right and subordinate to NYCB’s Mortgage sought to be foreclosed upon in this action: a. A Lease for installation of a cell phone tower from Hillside Heights, LLC to defendant, T-Mobile Northeast, LLC dated 11/30/2012 and recorded 3/5/2013 at Volume 7040, Page 99 of the Waterbury Land Records; b. Any interest claimed by virtue of any lease agreement written or oral between the defendant Hillside Heights LLC and the defendant Sirius XM Radio, Inc.; c. Any interest claimed by virtue of a Notice of Fire Safety Code Abatement Orders issued against the defendant Hillside Heights LLC by the Waterbury Fire Department and recorded 10/27/2016 at Volume 7560 page 216 of the Waterbury Land Records. COUNT ONE (Reformation of NYCB’s Mortgage, Collateral Assignment and Fixture Filing) 1-22. The allegations of paragraph 1-22 set forth herein above are realleged as paragraphs 1-22 of this Count One, as though fully set forth.23. In their respectively scheduled property descriptions, both the NYCB Mortgage (Exhibit C hereto) and the Collateral Assignment (Exhibit G hereto) correctly refer to the Property’s street address as “That certain piece or parcel of land situated in the City of Waterbury, County of New Haven and State of Connecticut known as 117 Pine Street and more particularly described as follows [metes and bounds description].” 24. However, in both instances the metes and bounds description of the property as scheduled erroneously and unintentionally reflects property located at 170 Hillside Avenue, instead of the property located at 117 Pine Street, the latter of which was in fact the property deeded to Hillside from Waterbury Carlton Apartments LLC by Warranty Deed recorded at Volume 6109, Pages 243-245 of the Waterbury Land Records on April 27, 2007 and for which NYCB contemporaneously provided Hillside with the financing described hereinabove. 25. The fixture filing, also referring to the property being encumbered as that located at 120 Hillside Avenue a/k/a 117 Pine Street, Waterbury CT 06710, expressly references the NYCB Mortgage. 26. In order to accurately reflect the intention of the parties to encumber the Property located at 117 Pine Street, Waterbury CT (as properly described at Schedule A hereto), the NYCB Mortgage and the Collateral Assignment should be reformed to reflect the correct metes and bounds description of the property located at 117 Pine Street, Waterbury CT. COUNT TWO (Enforcement of the NYCB Note and Mortgage) 1-26. The allegations of paragraph 1-26 set forth herein above are realleged as paragraphs 1-26 of this Count Two, as though fully set forth.27. Asadirect and proximate result of Hillside’s conduct, including its defaults under the NYCB Note, the NYCB Mortgage, and the Collateral Assignment, NYCB has suffered, and is continuing to suffer, economic harm. 28. Accordingly, NYCB is entitled to pursue remedies granted to it under the NYCB Note, the NYCB Mortgage, at common law and in equity, including but not limited to foreclosure of all interests in the Property junior to the NYCB Mortgage, assessment of a deficiency judgment against Hillside and its guarantor, and enforcement of NYCB’s assignment of rents. COUNT THREE (Enforcement of the Guarantee) 1-28. The allegations of paragraph 1-28 set forth herein above are realleged as paragraphs 1-28 of this Count Three, as though fully set forth. 29. Defendant Yeshiva is personally liable to NYCB for all sums which Hillside has failed to pay on account of the Note and Mortgage. 30. Asa direct and proximate result of Yeshiva’s failure to perform under the terms of the Guarantee, NYCB has suffered, and is continuing to suffer, economic harm. WHEREFORE, the Plaintiff requests the following relief: AS TO COUNT ONE: 1. Reformation of the NYCB Mortgage, Collateral Assignment, and fixture filing to accurately reflect, as intended by the parties, the correct metes and bounds description of the Property being encumbered by said. instruments; 2 Such further relief as equity may require.AS TO COUNT TWO: 3. Pre-judgment enforcement of NYCB’s assignment of rents; 4. Appointment of a receiver of rents for the Property; 5. A foreclosure of the NYCB Mortgage as to the interests of Hillside, the guarantor Yeshiva, and any other interest junior to the interest of NYCB; 6. Assessment of all interest (including post-default interest), late fees, and other charges due or becoming due until the time of judgment; 7. All costs and fees, including reasonable attorney’s fees, incurred by the Plaintiff in this action; 8. A deficiency judgment against Hillside and Yeshiva; and 9. Such further relief as equity may require. AS TO COUNT THREE 10. Damages for breach of the Guarantee given by Yeshiva; 11. All costs and fees, including reasonable attorney’s fees, incurred by the Plaintiff in this action; 12. Such other and further relief as the Court may deem appropriate. fé. Dated at New Haven, Connecticut this & day of June, 2017. THE PLAINTIFF NEW YORK COMMUNITY BANK Neubert Pepe & Monteith, P.C. Its Attorneys 195 Church Street, 13" Floor New Haven, CT 06510 Tel. 203.821.2000 Fax 203.821.2009 Juris No. 407996RETURN DATE: JUNE 27, 2017 NEW YORK COMMUNITY BANK : J.D. WATERBURY Vv. HILLSIDE HEIGHTS, LLC; YESHIVAH GEDOLAH OF WATERBURY, INC.; T-MOBILE NORTHEAST, : LLC; SIRIUS XM RADIO, INC., and CITY OF WATERBURY CT : JUNE 5, 2017 STATEMENT OF AMOUNT IN DEMAND The Plaintiff hereby states that the amount in demand, exclusive of interest and costs, is greater than FIFTEEN THOUSAND ($15,000.00) DOLLARS. THE PLAINTIFF NEW YORK COMMUNITY BANK Jpfnes C. Graham leubert Pepe & Monteith, P.C. Its Attorneys 195 Church Street, 13" Floor New Haven, CT 06510 Tel. 203.821.2000 Fax 203.821.2009 Juris No. 407996EXHIBIT ASCHEDULE A All that cetlain place or parcel of land together with the buildings and improvements thereon situated in the Town of Waterbury, County of New Haven and State of Connecticut being more particularly bounded and described as follows: Commencing at a point which marks the intersection of the northerly street line of Hillside Avenue with the westerly street line of Pine Street being the southeast corner of the herein described parce] of land, thence running N 67°21’ W 180.18” along the said northerly street line of Hillside Avenue, to apoint; thence turning and running along other Jand to be conveyed to Brutus Associates, LLC (Second Piece) the following courses and distances: N 35° 01’ 43” E 173.49” and N 34° 18 15” B 80.07’, to a point on the southerly street line of Kellogg Street; thence turning and running along the said southerly street line of Kellogg Street the following courses and distances: S 60° 20’ 15” E 1,00” and $ 63° 02’ 45” E 178.46”, to a point which marks the intersection of the said southerly street line of Kellogg Street and the said westerly street line of Pine Street; thence turning and running S 35° 11° 30” W240.09” along the said westerly street line of Pine Street, to the point and place of beginning,EXHIBIT BPROMISSORY NOTE $2,000,000.00 Queens, New York April 24, 2007 FOR VALUE RECEIVED, HILLSIDE HEIGHTS, LLC, a Connecticut Limited Liability Company, whose principal place of business is located at 47 Buckingham Street, Waterbury, Connecticut 06710, the Mortgagor also referred to herein as “the payor”, promises to pay NEW YORK COMMUNITY BANK, the Mortgage also referred to herein as “the payee”, a Corporation organized and existing under the laws of the State of New York, having its principal place of business at One Jericho Plaza, Jericho, New York 11753, or at such other place as may be designated in writing by the holder of this Note, the principal sum of Two Million and 00/100 ($2,000,000.00) Dollars which sum the undersigned agrees to pay with interest thereon to be computed as follows: (A) Starting on the date of closing of this loan, the interest rate of 6.50% percent, per annum will be payable from the date hereof until April 30, 2009. The monthly payments will be interest only. (B) From May 1, 2009 until April 30, 2012, the interest rate of 6.50%, per annum will be payable. The monthly payments of principal and interest will be based upon a thirty (30) year amortization schedule. The privilege to prepay this mortgage loan during the first year of the loan shall be computed for that purpose from May 1, 2007, is reserved upon giving thirty (30) days prior written notice to the payee to prepay principal in part or in full provided there is also paid to the payee as consideration for the exercise of said privilege, a sum equal to five (5%) percent of the amount of the principal balance being prepaid. Thereafter and during the second year of the loan as computed pursuant to the language contained in the first sentence of this paragraph, the privilege is reserved upon giving thirty (30) days prior written notice to the payee to prepay principal in part or in full provided there is also paid to the payee as consideration for the exercise of said privilege, a sum equal to four (4%) percent of the amount of the principal balance being prepaid. Thereafter and during the third year of the Joan as computed pursuant to the language contained in the first sentence of this paragraph, the privilege is reserved upon giving thirty (30) days prior written notice to the payee to prepay principal in part or in full provided there is also paid to the payee as consideration for the exercise of said privilege, a sum equal to three (3%) percent of the amount of the principal balance being prepaid. Thereafter and during the fourth year of the loan as computed pursuant to the language contained in the first sentence of this paragraph, the privilege is reserved upon giving thirty (30) days prior written notice to the payee to prepay principal in part or in full provided there is also paid to the payee as consideration for the exercise of said privilege, a sum equal to two (2%) percent of the amount of the principal balance being prepaid. Thereafter and during the fifth year of the loan as computed pursuant to the language contained in the first sentence of this paragraph, the privilege is reserved upon giving thirty (30) days prior written notice to the Payee to prepay principal in part or in full provided there is also paid to the payee as consideration for the exercise of said privilege, a sum equal to one (1%) percent of the amount of the principal balance beingw (C) @) prepaid. Thereafter, the privilege is reserved upon giving thirty (30) days prior written notice to the payee to prepay the principal balance then remaining unpaid, without consideration for the exercise of said privilege. There will be a sixty (60) day period prior to the expiration of the fifth year to prepay without penalty. From May 1, 2012 until April 30, 2017 (the "Adjustable Rate Period"), the annual interest to be charged on the unpaid principal balance with amortization based on the remaining amortization period will be two and one-half (2.5%) percent over the Prime Rate as published in the New York Times or in the event more than one prime rate is listed, the highest rate shall prevail or such comparable prime rate in the event the New York Times ceases to publish a prime rate, in effect on each May Ist, (each, a “Change Date") during the Adjustable Rate Period. Interest shall remain unchanged for the twelve (12) month period following each Change Date. At no time shall the interest rate pursuant to this paragraph be less than 6.50% or more than 16.00% per annum. Subject to the terms and conditions hereinafter set forth the payor at its option may elect prior to expiration of the initial term stated above to fix the interest rate of this loan for the next five (5) years. The annual interest rate to be charged on the unpaid principal balance will be at a rate equal to 275 basis points over the published weekly average yield of the Five Year United States Treasury Note constant Maturities as published in the Federal Reserve statistical release H.15 (519) as of ninety (90) days prior to the expiration of the first five (5) years of the mortgage term but in no event will said rate of interest be less than 6.50% per annum. The payee will notify the payor of the proposed rate of interest sixty (60) to seventy- five (75) days prior to the end of the preceding five (5) year period. The exercise of this option is contingent upon the payor meeting the following precedent conditions: i, The payor did not breach, beyond any applicable notice, grace or cure periods, the terms and conditions of the note, mortgage and the other loan documents during the preceding five (5) year period including but not limited to the obligations to make timely monthly mortgage payments. ii. The payor must give written notice to the payee of its election to exercise the option at least thirty (30) days prior to the end of the preceding five (5) year period. iii. | The payor must pay to the payee an amount equal to one (1%) percent of the outstanding principal balance as of the time of its election to exercise the option. iv. The payor agrees the prepayment penalty for the ensuing five (5) year period is as follows:gs €) The privilege to prepay this mortgage loan during the sixth year of the option period shall be computed for that purpose from May 1, 2007, is reserved upon giving thirty (30) days prior written notice to the payee to prepay principal in part or in full provided there is also paid to the payee as consideration for the exercise of said privilege, a sum equal to five (5%) percent of the amount of the principal balance being prepaid. Thereafter and during the seventh year of the loan as computed pursuant to the language contained in the first sentence of this paragraph, the privilege is reserved upon giving thirty (30) days prior written notice to the payee to prepay principal in part or in full provided there is also paid to the payee as consideration for the exercise of said privilege, a sum equal to four (4%) percent of the amount of the principal balance being prepaid. Thereafter and during the eighth year of the Joan as computed pursuant to the language contained in the first sentence of this paragraph, the privilege is reserved upon giving thirty (30) days prior written notice to the payee to prepay principal in part or in full provided there is also paid to the payee as consideration for the exercise of said privilege, a sum equal to three (3%) percent of the amount of the principal balance being prepaid. Thereafter and during the ninth year of the loan as computed pursuant to the language contained in the first sentence of this paragraph, the privilege is reserved upon giving thirty (30) days prior written notice to the payee to prepay principal in part or in full provided there is also paid to the payee as consideration for the exercise of said privilege, a sum equal to two (2%) percent of the amount of the principal balance being prepaid. Thereafter and during the tenth year of the Joan as computed pursuant to the language contained in the first sentence of this paragraph, the privilege is reserved upon giving thirty (30) days prior written notice to the payee to prepay principal in part or in full provided there is also paid to the payee as consideration for the exercise of said privilege, a sum equal to one (1%) percent of the amount of the principal balance being prepaid. There will be a sixty (60) day period prior to the expiration of the tenth year to prepay without penalty. This is a Balloon Payment Loan, payable in full at the end of ten (10) years. The payor will make monthly payments on the first day of each month beginning June, 2007. Each of the initial monthly payments of interest will be in the amount of U.S. $10,833.33. This amount may change. i. In the event of a default by the payor by failing to pay a monthly interest or interest or principal and interest payment within thirty (30) days of the date as provided for herein or in the further event that the payor has failed to pay the final payment of the entire indebtedness which, if not sooner paid, shall be due and payable on the Ist day of May, 2017, then and in either event, interest shall continue to be payable at the default rate stated in ii.w ii. In the event the principal indebtedness evidenced by this Note becomes due and payable by the terms hereof or by reason of the holder hereof exercising its option to call the same due, interest thereafter shall accrue at the lower of either (a) the highest rate permitted by applicable law or (b) five (5%) percent above the current interest rate (said rate of interest is referred to as the “Default Rate") and such interest shall continue to accrue and be payable at the rate or rates herein specified and the Same shall be collectible in any action to enforce this Note and/or foreclose the mortgage securing this Note. a iii. The payor will deposit with the payee on the first day of each and every month hereafter, in addition to the payments on account of interest or principal and interest on said indebtedness, an amount equal to one-twelfth of the annual charges for real estate taxes, water sewer charges, flood insurance (if applicable), at the payee's option fire insurance premiums (all as estimated by the payee) affecting the premises mortgaged as security for this Note at least one month before they become due and payable, current bills for which shall be fumnished by the payor. These escrows will be held in a non-interest bearing account. IT IS EXPRESSLY AGREED, that the said principal sum secured by this Note shall become due at the option of the holder thereof on the happening of any default or event by which, under the terms of the mortgage securing this Note, said principal sum may or shall become due and payable; also, that all of the covenants, conditions and agreements contained in said mortgage are hereby made part of this instrument. Presentment for payment, notice of dishonor, protest and notice of protest are hereby waived. Upon any default by the payor and following the acceleration of maturity as provided herein or in the evidence of debt, tender of payment of the amount necessary to satisfy the entire indebtedness secured hereby made at any time prior to consummation of a foreclosure sale, by the payor, its successor or assigns or by anyone on behalf of the payor, its successor or assigns shall . constitute an evasion of the prepayment terms of the evidence of debt and shall be deemed to be a voluntary prepayment thereunder and any such payment to the extent permitted by law, will, therefore, include the additional payment required under the prepayment privilege, if any, contained in the evidence of debt. Notwithstanding any term, provision, obligation, covenant or agreement contained herein or in the mortgage secured hereby, the covenants, obligations and liabilities of the payor to the payee or any holder of the note secured hereby, whether under any of the foregoing documents or instruments or otherwise, shall not be the personal liability of the payor. The payee as well as any holder of the note secured hereby shall not seek or be entitled to any personal judgment against the payor or any successor or assigns of the payor and the sole remedies of the payee or any holder of the note secured hereby, in the event of any default shall be to proceed against the premises, non- Tecourse to payor, except for environmental issues, fraud, misrepresentation and the limited guaranty given the same date hereof.a This Note is secured by a mortgage made by the payor to the payee of even date herewith on the property known as 120 Hillside Avenue a/k/a 117 Pine Street, Waterbury, City Waterbury and County of New Haven, State of Connecticut, Assessors Map# 235 and 234, Block 543, Lot 7 on the Tax map of the County of New Haven. This Note may not be changed or terminated orally. M/S HW Name Diy Paver 74.7 LLM hig HILLSIDE HEIGHTS, LLC by: Yeshiva Gedolah of Waterbury, Inc., its Sole Member by: GL Ahron Kaufman, Authorized SignatorySTATE OF NEW YORK _) )SS.: COUNTY OF QUEENS ) NY On April 24, 2007, before me the undersigned, a Notary Public in and for said state, personally appeared Ahron Kaufman, personally known to me or proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature(s) on the instrument, the person, or the entity(ies) upon behalf of which the person acted, executed the instrument as his free act and deed and the free act and deed of the person or entity(ies) upon behalf of which the person acted. Sa--\h A, Notary Public SARAH B. ZAKS Notary Public, State of New York No. 01ZA6067794 Qualified in Kings County Commission Expires December 17, 201EXHIBIT CVE 61 oS PG: OPEN-END MORTGAGE DEED 246 MORTGAGE, made this April 24, 2007, by HILLSIDE HEIGHTS, LLC, a Connecticut Limited Liability Company, whose principal place of business is located at 47 Buckingham Street, Waterbury, Connecticut 06710, hereinafter referred to as “the Mortgagor”, to NEW YORK COMMUNITY BANK, a Corporation organized and existing under the laws of the State of New York and having its principal place of business at One Jericho Plaza, Jericho, in the County of Nassau, State of New York, hereinafter referred to as “the Mortgagee”. WITNESSETH, that to secure the payment of an indebtedness in the sum of Two Million and 00/100 ($2,000,000.00) Dollars lawful money of the United States, to be paid with interest thereon, according to a certain bond, note or obligation or Promissory Note bearing even date herewith ("Note") a copy of which Note is attached hereto as Schedule "B" and made a part hereof, the Mortgagor hereby gives, grants, bargains, conveys and mortgages to the Mortgage, and to its successors and assigns the premises as more fully described on Schedule"A" attached hereto. TOGETHER with all right, title and interest of the Mortgagor in and to the land lying in the streets and roads in front of and adjoining said premises, TOGETHER with all fixtures, chattels and articles of personal property now or hereafter attached to or used in connection with said premises, including but not limited to furnaces, boilers, oil burners, radiators and piping, coal stokers, plumbing and bathroom fixtures, refrigeration, air conditioning and sprinkler systems, wash-tubs, sinks, gas and electric fixtures, stoves, ranges, awnings screens, window shades, elevators, motors,’ dynamos, refrigerators, kitchen cabinets, incinerators, plants and shrubbery and all other equipment and machinery, appliances, fittings, and fixtures of every kind in or used in the operation of the buildings standing on said premises, together with any and all replacements thereof and additions thereto; TOGETHER with all awards heretofore and hereafter made to the Mortgagor for taking by eminent domain the whole or any part of said premises or any easement therein, including any awards for changes of grade of streets, which said awards are hereby assigned to the Mortgagee, who is hereby authorized to collect and receive the proceeds of such awards and to give proper receipts and acquittances therefor, and to apply the same toward the payment of the mortgage debt, notwithstanding the fact that the amount owing thereon may not then be due and payable; and the said Mortgagor hereby agrees, upon request, to make, execute and deliver any and all assignments and other instruments sufficient for the purpose of assigning said awards to the Mortgagee, free, clear and discharged of any encumbrances of any kind of nature whatsoever. AND the Mortgagor covenants with the Mortgagee as follows: 1. That the Mortgagor will pay the indebtedness as hereinbefore provided. As 30-084 777-410. Ve eo VF 6109 PE: 245 That the mortgagor will keep the buildings on the premises insured against loss by fire and any other hazard that may be required by the mortgagee for the benefit of the mortgagee; that the mortgagor will assign and deliver the policies to the mortgagee; and that the mortgagor will reimburse the mortgagee for any premiums paid for insurance made by the mortgagee on the mortgagor's default in so insuring the buildings or in so assigning and delivering the policies. : That no building on the premises shall be altered, removed or demolished without the consent of the Mortgagee. That the whole of said principal sum and interest shall become due, at the option of the Mortgagee, after default in the payment of any installment of principal or of interest for thirty days; or after default in the payment of any tax, water rate, sewer rent or assessment for thirty days after notice and demand; or after default after notice and demand either in assigning and delivering the policies insuring the buildings against loss by fire or in reimbursing the Mortgagee for premiums paid on such insurance, as hereinbefore provided; or after default upon request in furnishing a statement of the amount due on the mortgage and whether any offsets or defenses exist against the mortgage debt, as hereinafter provided; or after failure to establish a lease security or reserve account, if same is required, within 120 days of the date hereof. That the holder of this Mortgage, in any action to foreclose it, shall be entitled to the appointment of a receiver, irrespective of the adequacy of the security and without notice to the Mortgagor and Mortgagor hereby consents to such appointment and waives notice of any application therefor. That the Mortgagor within five days upon request in person or within ten days upon request by mail will furnish a written statement duly acknowledged of the amount due on this Mortgage and whether any offsets or defenses exist against the mortgage debt. That notice and demand or request may be in writing and may be served in person or by mail. That the Mortgagor warrants the title to the premises free and clear of all encumbrances. That the fire insurance policy required by paragraph #2 above shall contain the usual extended coverage endorsement: that in addition thereto the Mortgagor, within thirty days after notice and demand, will keep the premises insured against war risk and any other hazard that may reasonably be required by the Mortgagee. All of the provisions of paragraph #2 and #4 above relating to fire insurance and the provisions of the State of Connecticut construing the same shall apply to the additional insurance required by this paragraph. That the Mortgagor will pay all taxes, assessments, sewer rents or water rates, on or before same shall become due, and in default thereof, the Mortgagee may pay the same.1. 12. 13. VE 6109 PE: 2428 That in case of a foreclosure sale, said premises, or so much thereof as may be affected by this Mortgage, may be sold in one parcel. That if any action or proceeding be commenced to which action or proceeding the Mortgagee is made a party, or in which it becomes necessary to defend or uphold the lien of this Mortgage, all sums paid by the Mortgage for the expense of any litigation to prosecute or defend the rights and lien created by this Mortgage (including reasonable counsel fees) shall be paid by the Mortgagor, together with interest thereon at the default rate (as defined in the Note), or the maximum rate allowed by law whichever is less and any such sum and the interest thereon shall be a lien on said premises, prior to any right, or title to, interest in or claim upon said premises attaching or accruing subsequent to the lien of said Mortgage, and shall be deemed to be secured by this Mortgage. In any action or proceeding to foreclose this Mortgage, or to recover or collect the debts secured thereby, the provisions of law respecting the recovering of costs, disbursements and allowances shall prevail, except that interest shall be paid after the initial default, following the expiration of any applicable notice and cure periods, at the rate stated in the Note, or the highest rate permitted by law together with reasonable attorney's fees which in no event shall be less than $1,500.00. That the Mortgagor hereby assigns to the Mortgagee the rents, issues and profits of the premises as further security for the payment of said indebtedness, and the Mortgagor grants to the Mortgagee the right to enter upon the premises for the purpose of collecting the same and to let the premises or any part thereof, and to apply the rents, issues and profits, after payment of all necessary charges and expenses on account of said indebtedness. This assignment grant shall continue in effect until this Mortgage is paid. The Mortgagee hereby waives the right to enter upon said premises for the purpose of collecting said rents, issues and profits and the Mortgagor shall be entitled to collect and receive said rents, issues and profits until default at the rate under any of the covenants, conditions or agreements contained in this Mortgage, and agrees to use such rents, issues and profits in payment of interest or principal and interest becoming due on this Mortgage and in payment of taxes, assessments, sewer rents, water rates and carrying charges becoming due against said premises, but such right of the Mortgagor may be revoked by the Mortgagee upon any default on five days’ written notice. The Mortgagor agrees that it will not cancel, abridge or otherwise modify tenancies, subtenancies, leases or subleases of the rea] property mortgaged herein in existence at the date of this Mortgage (except in the ordinary course of business) or accept prepayments of installments of rent to become due thereunder without the consent of the holder of this Mortgage; and in the event of any default under this Mortgage will pay monthly in advance to the Mortgagee, or to any receiver appointed to collect said rents, issues and profits, the fair and reasonable rental value for the use and occupation of said premises or of such part thereof as may be in the possession of the Mortgagor, and upon default in any such payment will vacate and surrender the possession of said premises to the Mortgagee or to such receiver, and in default thereof may be evicted by summary proceedings.14. 16. . V2 6109 pee 249 That the whole of said principal sum and the interest shall become due at the option of the Mortgagee: (a) after failure to exhibit to the Mortgagee, within ten days after demand, receipts showing payment of all taxes, water rates, sewer rents and assessments; or (b) after the actual or threatened alteration, demolition or removal of any building on the premises without the written consent of the Mortgagee; or (c) after the assignment of the rents of the premises or any part thereof without the written consent of the Mortgagee; or (d) if the buildings on said premises are not maintained in reasonably good repair; or (e) after failure to comply with any requirement or order or notice of violation of law or ordinance issued by any governmental department claiming jurisdiction over the premises within three months from the issuance thereof, unless such violation is incapable of being cured within 3 months in which event Mortgagor shall promptly commence calling and diligently prosecute completion of such cure; or (f) if on application of the Mortgagee two or more fire insurance companies lawfully doing business in the State of Connecticut refuse to issue policies insuring the buildings on the premises; or (g) in the event of the removal demolition or destruction in whole or in part of any of the fixtures, chattels or articles of personal property covered hereby unless the same are promptly replaced by similar fixtures, chattels and articles of personal property at least equal in quality and condition to those replaced, free from chattel mortgages or other encumbrances thereon and free from any reservation of title thereto; or (h) after thirty days’ notice to the Mortgagor in the event of the passage of any law deducting from the value of land for the purposes of taxation any lien thereon, or changing in any way the taxation of mortgages or debts secured thereby for state or local purposes: or (i) if the Mortgagor fails to keep, observe and perform any of the other covenants, conditions or agreements contained in this said agreement or in this Mortgage, after notice and the application of grace period, if any. That Mortgagor (and if Mortgagoris a limited liability company, each member of Mortgagor) has full power and authority to own its property and assets and to carry on its business and operations as now being conducted and as presently contemplated, to execute, deliver and perform, as applicable, the Loan Documents to which it is a party, to make the borrowings hereunder, to execute and deliver the Note and to grant to Mortgagee a first, prior, perfected and continuing lien on and security interest in the Premises. That the execution, delivery and performance of the Loan Documents to which it is a party, the making of the borrowings thereunder, the execution and delivery of the Note, the grant of the liens on the Premises, pursuant to the Loan Documents to which it is a party and the consummation of the Loan have been duly authorized by Mortgagor by all requisite action (including, without limitation, approvals of members) and will not (i) violate any provision of its Operating Agreement or Articles of Organization or, to its knowledge, any law, judgment, order, rule or regulation of any court, arbitration panel or other Govemmental Authority, domestic or foreign, or other Person affecting or binding upon Mortgagor or the Premises; (ii) violate any provision of any indenture, agreement, Mortgage, contract or other instrument to which Mortgagor is a party or by which any of its property, assets or revenues are bound, or be in conflict with, result in an acceleration of any obligation or a breach of or constitute (with notice or lapse of time or both) a default or require any payment or17. 18. 19. 20. 21. 22. V2 6109 PE: 250 prepayment under, any such indenture, agreement, Mortgage, contract or other instrument or (iii) result in the creation or imposition of any lien, except those in favor of Mortgagee as provided in the Loan Documents to which it is a party. Mortgagor is not required to obtain any consent, approval or authorization from, or to file any declaration or statement with, any Governmental Authority or other agency in connection with or as a condition to the execution, delivery or performance of this Mortgage, the Note or the other Loan Documents which has not been so obtained or filed. That the Mortgagor is now the owner of the premises upon which said mortgage is a valid lien for the amount above specified with interest thereon at the rate above set forth, and that there are no defenses or offsets to said mortgage or to the debt which it secures. In the event that any payment shall become overdue for a period in excess of fifteen (15) days, a “late charge" of 4¢ for each dollar ($1.00) so overdue may be charged by the Mortgagee for the purpose of defraying the expense incident to handling such delinquent payment. The fire insurance policy and all replacements during the term of the loan must be issued by a company satisfactory to the Mortgagee. The note or other obligations hereby secured shall become due and payable at the option of the mortgagee herein upon any transfer of title or transfer of stock to the premises herein mortgaged, except for transfers to immediate family members, existing partners or entities comprised of the same, subject to the OFAC requirement herein. The Mortgagor herein expressly agrees that in the event of a default under the terms of this Note and Mortgage if permitted by applicable law, a foreclosure by power of sale may be brought by the Mortgagee at its sole option. The privilege to prepay this Mortgage loan during the first year of the loan shall be computed for that purpose from May 1, 2007, is reserved upon giving thirty (30) days prior written notice to the Mortgagee to prepay principal in part or in full provided there is also paid to the Mortgagee as consideration for the exercise of said privilege, a sum equal to five (5%) percent of the amount of the principal balance being prepaid. Thereafter and during the second year of the loan as computed pursuant to the language contained in the first sentence of this paragraph, the privilege is reserved upon giving thirty (30) days prior written notice to the Mortgagee to prepay principal in part or in full provided there is also paid to the Mortgagee as consideration for the exercise of said privilege, a sum equal to four (4%) percent of the amount of the principal balance being prepaid. Thereafter and during the third year of the loan as computed pursuant to the language contained in the first sentence of this paragraph, the privilege is reserved upon giving thirty (30) days prior written notice to the Mortgagee to prepay principal in part or in full provided there is also paid to the Mortgagee as consideration for the exercise of said privilege, a sum equal to three (3%) percent of the amount of the principal balance being prepaid. Thereafter and during the fourth year of theVi 6109 Pe: 254 loan as computed pursuant to the language contained in the first sentence of this paragraph, the privilege is reserved upon giving thirty (30) days prior written notice to the Mortgagee to prepay principal in. part or in full provided there is also paid to the Mortgagee as consideration for the exercise of said privilege, a sum equal to two (2%) percent of the amount of the principal balance being prepaid. Thereafter and during the fifth year of the loan as computed pursuant to the language contained in the first sentence of this paragraph, the privilege is reserved upon giving thirty (30) days prior written notice to the Mortgagee to prepay principal in part or in full provided there is also paid to the Mortgagee as consideration for the exercise of said privilege, a sum equal to one (1%) percent of the amount of the principal balance being prepaid. Thereafter, the privilege is reserved upon giving thirty (30) days prior wri