Preview
FILED: ROCKLAND COUNTY CLERK 08/17/2021 07:20 PM INDEX NO. 034885/2021
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/17/2021
EXHIBIT “A”
FILED: ROCKLAND COUNTY CLERK 08/17/2021 07:20 PM INDEX NO. 034885/2021
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/17/2021
MEZZANINE PROMISSORY NOTE
up to $3,000,000.00 Dated: As of August 28, 2020
New York, New York
MEZZANINE PROMISSORY NOTE (hereinafter, this "Note") made as of the
28th day of August, 2020, by HELLO LIVING DEVELOPER NOSTRAND LLC, a New York
limited liability company, having an address at 33 35th Street, 6th Floor, Suite B-613, Brooklyn,
NY 11232 (hereinafter, the "Maker"), for the benefit of 1580 NOSTRAND MEZZ LLC, a
Delaware limited liability company, its successors and/or assigns, as their interests may appear,
having offices at 520 Madison Avenue, Suite 3501, New York, New York 10022 (hereinafter, the
"Payee").
FOR VALUE RECEIVED, Maker promises to pay to the order of Payee, at 520
Madison Avenue, Suite 3501, New York, New York 10022, or at such other place as Payee may
designate to Maker in writing from time to time, the principal sum of up to THREE MILLION
AND 00/100 DOLLARS ($3,000,000.00), or so much as has been advanced pursuant to the terms
of that certain Mezzanine Loan Agreement, dated the date hereof, between Maker and Payee (the
"Loan Agreement"), together with interest thereon at the Interest Rate (as defined below) (or the
Default Rate, as defined below, if applicable), calculated in accordance with the terms and
conditions set forth in this Note, from and including the date of this Note to the date this Note is
paid in full, as follows:
A. On the date hereof (the "Closing Date"), interest on the principal sum of
this Note from (and including) the Closing Date to August 31, 2020 at the Interest Rate.
B. Thereafter, interest only at the Interest Rate on the outstanding Principal
Balance (as defined below) shall be due monthly and shall be paid monthly in arrears, commencing
on October 1, 2020, and monthly thereafter on the first (12) day of each month (the "Payment
Date") until the Maturity Date (as defined below) (each such monthly payment, a "Monthly
Payment").
C. Thereafter, on the Maturity Date, the entire outstanding principal balance of
this Note, together with all accrued and unpaid interest through the Maturity Date at the Interest
Rate, and all other sums payable to the holder of this Note (whether pursuant to this Note or the
Loan Agreement or Other Security Documents (as such terms are hereinafter defined)) shall
become due and payable.
1. For the purposes of this Note, these terms shall be defined as follows:
Rate"
a. The term "Alternative shall mean, in the event LIBOR is no longer available
or charging of interest that is calculated based upon LIBOR would violate
applicable law or regulation, then in Payee's sole discretion, the Alternative Rate
shall be used instead of the LIBOR Based Rate, which shall mean either the Prime
Based Rate (as hereinafter deññed) or the ARRC Based Rate, as hereinafter defined
(in Payee's sole discretion as to whether Prime Based Rate or the ARRC Based
Rate shall be used).
FILED: ROCKLAND COUNTY CLERK 08/17/2021 07:20 PM INDEX NO. 034885/2021
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/17/2021
Rate"
b. The term "ARRC Based shall mean the sum of (i) Eleven and 00/100
Percent (11.00%) per annum plus (ii) the ARRC Rate (as hereinafter defined).
Rate"
c. The term "ARRC shall mean such replacement of LIBOR as may be
approved by the Alternative Reference Rates Committee (ARRC) (or comparable
organization) and approved and/or published by the Federal Reserve; provided,
however. in no event shall the ARRC Rate be less than One and 00/100 Percent
(1.00%).
Day"
d. The term "Busin ess shall mean a weekday, Monday through Friday, except
a legal holiday or a day on which banking institutions in New York, New York are
authorized by law to be closed.
"Debt"
e. The term shall mean all principal, interest and other sums of any nature
whatsoever, which may or shall become due to Payee in accordance with the
provisions of this Note, the Loan Agreement or Other Security Documents.
Period"
f. The term "Interest shall mean, initially, the period commencing on (and
including) the Closing Date and ending on (and including) the last day of the
calendar month in which the Closing Date occurs. Thereafter, each Interest Period
shall commence on (and include) the first day of each calendar month immediately
following the last day of the previous Interest Period and end on (and include) the
last day of such calendar month.
Rate"
g. The term "Interest as used in this Note shall mean interest at the annual rate
equal to the greater of (i) Eleven and 00/100 Percent (11.00%) per annum plus
LIBOR (collectively, the "LIBOR Based Rate") (or the Alternative Rate, as
applicable), and (ii) Twelve and 00/100 Percent (12.00%) per annum (the "Fixed
Base Rate"), adjusted for each Interest Period based upon the greater of the Prime
Based Rate, the LIBOR Based Rate (or the Alternative Rate, as applicable) and the
Fixed Base Rate at 11:00 a.m. (E.S.T.) two (2) Business Days prior to the Reset
Date (as defined below) applicable to such Interest Period (or the date hereof with
respect to the first Interest Period hereunder), which Interest Rate shall be
applicable from the date of this Note to the Maturity Date, except as otherwise
expressly provided herein.
"LIBOR"
h. The term shall mean the London Interbank Offered Rate (as defined
below) for U.S. dollar deposits being delivered in the London interbank eurodollar
market of one (1) month maturity (One Month LIBOR) as reported in the Money
Rates Section of the Wall Street Journal (or such other commercially available
source providing quotations of such London Interbank Offered Rate as may be
designated by Payee from time to time) as of 11:00 a.m., E.S.T., on a Business Day
(or if not so reported, then as determined by Payee from another recognized source
of interbank quotation), rounded up to the nearest one-eighth of one percent (1/8%).
A certificate made by an officer of Payee stating the LIBOR in effect on any given
day, for the purposes hereof, shall be conclusive evidence of the LIBOR in effect
on such day. The LIBOR is a base reference rate of interest adopted by Payee as a
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NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/17/2021
general benchmark from which Payee determines the floating interest rates
chargeable on various loans to borrowers with varying degrees of creditworthiness,
and Maker acknowledges and agrees that Payee has made no representations
whatsoever that the LIBOR is the interest rate actually offered by Payee to
borrowers of any particular creditworthiness.
Documents"
i. The term "Loan shall mean this Note, the Loan Agreement and all
and any of the documents now or hereafter executed by Maker and/or others and
by or in favor of Payee, which evidences, secures or guarantees all or any portion
of the payments due under this Note or otherwise is executed and/or delivered in
connection with this Note, the Loan Agreement, guarantees and agreements,
including, without limitation, that certain Completion and Cost Over-Run Guaranty
executed in connection with the Building Loan, and incorporated herein and made
applicable to the Loan pursuant to this reference and the terms of the Forbearance
Agreement and that certain Ownership Interests Pledge and Security Agreement
executed by the Maker in favor of Payee simultaneously herewith (the "Pledge
Agreement").
Rate"
j. The term "London Interbank Offered shall mean the London interbank
offered rate administered by ICE Benchmark Administration Limited (or any other
Person which takes over the administration of such rate).
Date"
k. The term "Maturity shall mean the earlier of (i)March 1, 2021, as the same
may be extended pursuant to the terms hereof, or (ii) such sooner date, by
acceleration or otherwise, as may be applicable pursuant to the terms hereof, at
which time the entire Debt shall become due and payable.
Documents"
1. The term "Other Security shall mean any of the documents other
than this Note or the Loan Agreement, now or hereafter executed by the Maker or
others, and by or in favor of Payee, which wholly or partially secure or guarantee
payment of this Note, or which otherwise pertain to the loan evidenced by this Note
(the "Loan"), including, without limitation, the Pledge Agreement.
"Person"
m. The term shall mean an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a govemment or political subdivision or an agency or instrumentality
thereof.
Rate"
n. The term "Prime Based shall mean the sum of (i) Eight and 75/100 Percent
(8.75%) per annum plus (ii)the Prime Rate (as hereinafter defined).
Rate"
0. The term "Prime shall mean the annual rate of interest which is the highest
prime lending rate of interest most recently in effect (as published in the Money
Rates Section in The Wall Street Journal or if The Wall Street Journal fails to
publish such rate, such other publication as Payee shall designate in its sole
discretion). A certificate made by an officer of Payee stating the Prime Rate in
effect on any given day, for the purposes hereof, shall be conclusive evidence of
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the Prime Rate in effect on such day. The Prime Rate is a base reference rate of
interest adopted by Payee as a general benchmark from which Payee determines
the floating interest rates chargeable on various loans to borrowers with varying
degrees of creditworthiness and Maker acknowledges and agrees that Payee has
made no representations whatsoever that the Prime Rate is the interest rate actually
offered by Payee to borrowers of any particular creditworthiness. In the event that
the concept of the Prime Rate shall no longer exist, then the Prime Rate shall be
deemed to be the Prime Rate as last reported in The Wall Street Journal.
Balance"
p. The term "Principal shall mean the outstanding principal balance of this
Note from time to time.
Date"
q. The term "Reset shall mean the first day of each Interest Period.
2. Any capitalized terms used herein but not defined shall have the meanings ascribed to them
in the Loan Agreement or Other Security Documents.
3. Interest shall be computed on the basis of a year of 360 days and actual days elapsed.
4. The failure to make any payment required under this Note or the occurrence of any Event
of Default (as such term is defined in the Loan Agreement or the Other Security Documents) shall
constitute an Event of Default under this Note.
5. Upon the occurrence of an Event of Default: (a) interest shall accrue hereunder at the
Default Rate prior to and subsequent to the entry of a Judgment of Foreclosure and Sale, (b) Payee
may, at its option, without any written notice given to the Maker (such notice being expressly
waived), DECLARE AND DEMAND this Note and the Debt immediately due and payable and
(c) Payee may pursue all rights and remedies available hereunder or under the Loan Agreement
and the Other Security Documents. Payee's rights, remedies and powers, as provided in this Note,
the Loan Agreement or the Other Security Documents are cumulative and concurrent, and may be
pursued singlely, successively or together against Maker, any Guarantor of the indebtedness
evidenced hereby or against any collateral granted or pledged by Maker under any of the Loan
Documents or any other collateral security given at any time to secure the payment hereof, all at
the sole discretion of Payee. Additionally, Payee may resort to every other right or remedy
available at law or in equity without first exhausting the rights and remedies contained herein, all
in Payee's sole discretion. Failure of Payee, for any period of time or on more than one occasion,
to DECLARE AND DEMAND this Note and the Debt immediately due and payable shall not
constitute a waiver of the right to exercise the same at any time from and after any Event of Default.
6. A payment shall not be deemed to have been made on any day unless such payment has
been received by Payee, at the required place ofpayment, in U.S. dollars by no later than 1:00 p.m.
(New York time) on such day. Whenever any payment to Payee hereunder would otherwise be
due (except by reason of acceleration) on a day that is not a Business Day, such payment shall
instead be due on the next succeeding Business Day. If any installment of principal, interest or
other sums due hereunder or under the Loan Agreement or any Other Security Document are not
paid on the date on which same are due, the Maker shall pay to the Payee a late charge of five
percent (5.00%) of such unpaid installment as a late payment charge, such late charge to be
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immediately due and payable without demand by the Payee. Notwithstanding anything to the
contrary, allpayments due under this Note, the Loan Agreement and the Loan Documents shall be
made by means of wire transfer to the order of Payee, as directed by Payee, and Payee shall have
the absolute right to reject any payment not made by wire transfer. In addition, Maker shall pay to
Payee the sum of $2,500.00 for any payment which is returned for any reason by Maker's bank
unpaid.
7. Subject to Payee's due diligence review and completion of a credit check, satisfactory to
Payee in its sole discretion, and provided that: (a) this Note and the Other Security Documents are
in full force and effect and there exists no Event of Default at the time of the giving of Maker's
notice to extend, (b) Maker has made all Monthly Payments in accordance with the terms and
conditions hereof, and (c) with respect to the Second Extended Term (as defined below) only,
Maker shall have prepaid to Lender a sum equal to the greater of Thirteen Million and 00/100
Dollars ($13,000,000.00) or the Minimum Release Remittance (as defined in the Forbearance
Agreement, which is defined in the Loan Agreement), which Lender shall apply to the Loan, the
First Land Loan, the Second Land Loan, the Building Loan, or the Project Loan, in such order and
priority as Lender shall determine in its sole discretion, then Maker shall have the option, upon
providing written notice to Payee (in the manner provided in the Loan Agreement) to extend the
term of this Note for two (2) additional periods of three (3) months each (respectively, the "First
Term," Term,"
Extended and the "Second Extended and, individually or collectively, as the
context may require, the "Extended Term"). Maker's notice must be received by Payee no later
than fifteen (15) days prior to the then-applicable Maturity Date, time being of the essence with
respect thereto in each and every instance. Any extension of the term as set forth herein shall be
on the same terms and conditions of this Note and the Other Security Documents, except as
otherwise provided in this Note and the Other Security Documents. Notwithstanding anything
herein to the contrary, the term of this Note may not be extended unless, simultaneously with such
extension, the Termimtion Date (as defined in the Forbearance Agreement) with respect to the
First Land Loan, the Building Loan, the Project Loan, the Land Note, the Building Note, and the
Project Note, and the Maturity Date with respect to the Second Land Loan and the Second Land
Loan Note (as such terms are hereinafter defined) are also extended in accordance with terms of
the Forbearance Agreement and the Second Land Loan Documents, respectively, such that the
Termination Date of the Forbearance Period (as defined in the Forbearance Agreement) applicable
to the First Land Loan, the Building Loan, and the Project Loan, and the Maturity Date of the
Second Land Loan and the Second Land Note, shall be coterminous with the Loan.
8. Maker acknowledges and agrees that Mortgage Borrower is required to pay the Exit Fee,
Funding Losses, and all other fees, costs, and expenses set forth in the First Land Loan Documents,
the Building Loan Documents, and the Project Loan Documents (as such terms are defined
therein).
9. Notwithstanding anything to the contrary contained herein, except for the prepayment
described in Section 7(c) above, the Principal Balance of this Note may not be prepaid by Maker
unless, simultaneously with such prepayment, the following is also prepaid in full: (a) that certain
loan originated as of December 6, 2017 (the "First Land Loan") in the principal amount of
$17,730,000.00 from PROPHET MORTGAGE OPPORTUNITIES LP (the "Original
Mortgage Lender"), to HELLO NOSTRAND LLC, a New York limited liability company (the
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"Mortgage Borrower"), as evidenced by that certain Amended, Restated and Consolidated Senior
Loan Promissory Note dated as ofDecember 6, 2017 (the "First Land Note") in the principal
amount of $17,730,000.00 executed by Mortgage Borrower in favor of Original Mortgage Lender,
and as secured by that certain Consolidation, Extension and Modification of Senior Loan
Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing executed by
Mortgage Borrower in favor of Original Mortgage Lender in the principal amount of
$17,730,000.00 and encumbering the property owned by Mortgage Borrower located at 1580
Nostrand Avenue, Brooklyn, New York 11226 (the "Property"), as well as all guarantees,
pledges, and other documents executed in connection therewith (the "First Land Loan
Documents"), which First Land Loan was assigned by an Assignment of Consolidation, Extension
and Modification of Senior Loan Mortgage, Assignment of Leases and Rents, Security Agreement
and Fixture Filing and Senior Loan Collateral Assignment of Leases and Rents dated June 7, 2019
by Original Mortgage Lender to 1580 NOSTRAND AVE LLC, a Delaware limited liability
company (collectively, together with its successors and/or assigns, the "Mortgage Lender"); (b)
that certain building loan originated as of December 6, 2017 (the "Building Loan") in the principal
amount of $39,770,000.00 from Original Mortgage Lender to the Mortgage Borrower, as
evidenced by that certain Building Loan Promissory Note dated as of December 6, 2017 (the
"Building Note") in the principal amount of $39,770,000.00 executed by Mortgage Borrower in
favor of Original Mortgage Lender, and as secured by that certain Building Loan Mortgage,
Assignment of Leases and Rents, Security Agreement and Fixture Filing executed by Mortgage
Borrower in favor of Original Mortgage Lender in the principal amount of $39,770,000.00 and
encumbering the Property, as well as all guarantees, pledges, and other documents executed in
connection therewith (the "Building Loan Documents"), which Building Loan was assigned by
an Assignment of Building Loan Mortgage, Assignment of Leases and Rents, Security Agreement
and Fixture Filing and Senior Loan Collateral Assignment of Leases and Rents dated June 7, 2019
by Original Mortgage Lender to Mortgage Lender; (c) that certain project loan originated as of
December 6, 2017 (the "Project Loan") in the principal amount of $5,500,000.00 from Original
Mortgage Lender to the Mortgage Borrower, as evidenced by that certain Project Loan Promissory
Note dated as of December 6, 2017 (the "Project Note") in the principal amount of $5,500,000.00
executed by Mortgage Borrower in favor of Original Mortgage Lender, and as secured by that
certain Project Loan Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture
Filing executed by Mortgage Borrower in favor of Original Mortgage Lender in the principal
amount of $5,500,000.00 and encumbering the Property, as well as all guarantees, pledges, and
other documents executed in connection therewith (the "Project Loan Documents"), which
Project Loan was assigned by an Assignment of Project Loan Mortgage, Assignment of Leases
and Rents, Security Agreement and Fixture Filing and Senior Loan Collateral Assignment of
Leases and Rents dated June 7, 2019 by Original Mortgage Lender to Mortgage Lender; and (d)
that certain loan originated as of the date hereof (the "Second Land Loan") in the principal amount
of up to $8,300,000.00 from Mortgage Lender to the Mortgage Borrower, as evidenced by that
certain Mortgage Note dated as of the date hereof (the "Second Land Note") in the principal
amount of up to $8,300,000.00 executed by Mortgage Borrower in favor of Mortgage Lender, and
as secured by that certain Mortgage and Security Agreement executed by Mortgage Borrower in
favor of Mortgage Lender in the principal amount of up to $8,300,000.00 and encumbering the
Property, as well as all guarantees, pledges, and other documents executed in connection therewith
Documents"
(the "Second Land Loan and, together with the First Land Loan Documents, the
Building Loan Documents, and the Project Loan Docurnents, collectively, the "Mortgage Loan
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Documents"). The First Land Loan Documents the Building Loan Documents, and the Project
Loan Documents are subject to the terms of the Forbearance Agreement (as defined in the Loan
Agreement).
10. Separate and in addition to all other payment obligations of Maker contained herein, Maker
shall be required to pay a yearly servicing fee equal to Twenty Thousand and 00/100 Dollars
($20,000.00) payable in monthly instsdLments (the "Servicing Fee"). The Maker acknowledges
and agrees that the obligation to pay the Servicing Fee shall be secured by the Loan Agreement.
For the avoidance of doubt, the Servicing Fee required hereunder shall not be in duplication of the
Servicing Fee defined in and required under the Mortgage Loan Documents.
11. Maker acknowledges that this Note and Maker's obligations under this Note are and shall
at all times continue to be absolute and unconditional in all respects. This Note, the Loan
Agreement and the Other Security Documents set forth the entire agreement and understanding of
Payee and Maker.
12. Maker agrees to pay all costs and expenses of collection incurred by Payee, in addition to
attorneys'
principal and interest (including, without limitation, reasonable fees and disbursements),
and including all costs and expenses incurred in connection with the pursuit by Payee of any of its
rights or remedies hereunder or under the Loan Agreement and/or the Other Security Documents
or the protection of or realization of collateral or in connection with any of Payee's collection
efforts, whether or not any action or proceeding on this Note, on the Loan Agreement and/or the
Other Security Documents or any foreclosure proceeding is filed, allsuch costs and expenses being
payable on demand, together with interest at the Default Rate thereon and being secured by the
Loan Agreement and the Other Security Documents.
13. The indebtedness herein evidenced by this Note is secured by the Loan Agreement and the
Other Security Documents.
14. THIS NOTE HAS BEEN EXECUTED AND DELIVERED AT AND SHALL BE
DEEMED TO HAVE BEEN MADE AND PERFORMED IN THE STATE OF NEW YORK
AND THIS NOTE, THE LOAN AGREEMENT AND EACH OF THE OTHER SECURITY
DOCUMENTS SHALL IN ALL RESPECTS BE GOVERNED, CONSTRUED, APPLIED AND
ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW (OTHER THAN
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
15. Maker does hereby agree that upon the occurrence of an Event of Default, or upon the
failure of Maker to pay the Debt in full on the Maturity Date, Payee shall be entitled to receive and
Maker shall pay interest on the entire Debt at the rate of twenty-four percêñt (24%) per annum or
at the maximum rate of interest which Maker may by law pay, whichever is lower (the "Default
Rate"), to be computed from the occurrence of the Event of Default until the actual receipt and
collection of the Debt, including all periods prior to or subsequent to the entry of a Judgment of
Foreclosure and Sale. This charge shall be added to the Debt and shall be deemed secured by the
Loan Agreement. This clause, however, shall not be construed as an agreement or privilege to
extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing
to Payee by reason of the occurrence of any Event of Default.
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16. This Note is subject to the express condition that at no time shall Maker be obligated or
required to pay interest on the Principal Balance at a rate which could subject Payee to either civil
or criminal liability as a result of being in excess of the maximum rate which Maker is permitted
by law to contract or agree to pay. For the purposes of calculating the actual amount of interest
paid and or payable, in respect of laws pertaining to usury or such other laws, all sums paid or
agreed to be paid to Payee for the use, forbearance or detention of the indebtedness evidenced
hereby shall, to the extent permitted by applicable law, be amortized, allocated and spread from
the date of disbursement of the proceeds thereof until payment in full of the Loan obligations, so
that the actual rate of interest on account thereof is uniform throughout the term hereof. If, by the
terms of this Note, Maker is at any time required or obligated to pay interest on the Principal
Balance at a rate in excess of such maximum rate, the rate of interest under this Note shall be
deemed to be im-mediately reduced to such maximum rate, and interest payable hereunder shall be
computed at such maximum rate and the portion of all prior interest payments in excess of such
maximum rate shall be applied and shall be deemed to have been payments in reduction of the
Principal Balance.
17. In the event LIBOR is no longer available or charging of interest that is calculated based
upon LIBOR would violate applicable law or regulation, then in Payee's sole discretion, the
Alternative Rate shall replace the LIBOR Based Rate, which Alternative Rate shall mean either
the Prime Based Rate or the ARRC Based Rate, (inPayee's sole discretion as to whether the Prime
Based Rate or the ARRC Based Rate shall be used).
18. No delay on the part of Payee in exercising any right or remedy under this Note, the Loan
Agreement or the Other Security Documents or failure to exercise the same shall operate as a
waiver in whole or in part of any such right or remedy. No notice to or demand on Maker shall be
deemed to be a waiver of the obligation of Maker or of the right of Payee to take further action
without further notice or demand as provided in this Note, the Loan Agreement and the Other
Security Documents.
19. Each of Payee's rights and remedies under this Note shall be in addition to all of itsother
rights and remedies under the Loan Agreement, Other Security Documents and applicable law.
20. TIME IS OF THE ESSENCE with regard to Maker's performance of all the terms,
covenants and conditions of this Note.
21. Any provision of this Note, the Loan Agreement or the Other Security Documents that is
prohibited or unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions thereof or affecting the validity or
enforceability of such provision.
22. All of the provisions of this Note shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
23. Maker hereby warrants, represents and covenants that no funds disbursed hereunder shall
be used for personal family or household purposes.
24. Maker (and the undersigned representative of Maker, if any) represents that Maker has full
power, authority and legal right to execute and deliver this Note and that the Debt hereunder
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constitutes a valid and binding obligation of Maker.
25. All notices to be given under this Note shall be given in the same manner as provided in
the Loan Agreement.
26. This Note, and any provisions hereof, may not be modified, amended, waived, extended,
changed, discharged or terminated orally or by any act or failure to act on the part of Maker or
Payee, but only by an agreement in writing signed by the party against whom enforcement of any
modification, amendment, waiver, extension, change, discharge or termination is sought.
27. Without limiting any other provisions of the Loan Agreement or the Loan Documents,
Maker, for itself and all endorsers, guarantors and sureties of this Note, and their heirs, legal
representatives, successors and assigns, hereby waives valuation, appraisement, presentment for
payment, demand, notice of nonpayment, notice of dishonor, protest of any dishonor, notice of
protest and protest of this Note, lack of diligence, delays in collection or enforcement of this Note,
notice of the intention to accelerate, the benefit of all applicable law affording any right or
redemption or cure and allother notices in connection with the delivery, acceptance, performance,
default or enforcement of the payment of this Note, except as expressly provided herein or in the
Loan Agreement or any of the Other Security Documents, and in connection with any suit, action
or proceeding brought by Payee on this Note, any and every right itmay have to (a) a trialby jury,
(b) interpose any counterclaim therein (other than a counterclaim which can only be asserted in a
suit, action or proceeding brought by Payee on this Note and cannot be maintained in a separate
action), and (c) have the same consolidated with any other or separate suit, action or proceeding,
and agrees that their respective liability shall be unconditional and without regard to the liability
of any other party and shall not be in any manner affected by any indulgence, extension of time,
renewal, waiver or modification granted or consented to by Payee. Maker, for itself and all
endorsers, guarantors and sureties of this Note, and their heirs, legal representatives, successors
and assigns, hereby consents to every extension of time, renewal, waiver or modification that may
be granted by Payee with respect to the payment or other provisions of this No
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FILED: ROCKLAND COUNTY CLERK 08/17/2021 07:20 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/17/2021 EXHIBIT “A” FILED: ROCKLAND COUNTY CLERK 08/17/2021 07:20 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/17/2021 MEZZANINE PROMISSORY NOTE up to $3,000,000.00 Dated: As of August 28, 2020 New York, New York MEZZANINE PROMISSORY NOTE (hereinafter, this "Note") made as of the 28th day of August, 2020, by HELLO LIVING DEVELOPER NOSTRAND LLC, a New York limited liability company, having an address at 33 35th Street, 6th Floor, Suite B-613, Brooklyn, NY 11232 (hereinafter, the "Maker"), for the benefit of 1580 NOSTRAND MEZZ LLC, a Delaware limited liability company, its successors and/or assigns, as their interests may appear, having offices at 520 Madison Avenue, Suite 3501, New York, New York 10022 (hereinafter, the "Payee"). FOR VALUE RECEIVED, Maker promises to pay to the order of Payee, at 520 Madison Avenue, Suite 3501, New York, New York 10022, or at such other place as Payee may designate to Maker in writing from time to time, the principal sum of up to THREE MILLION AND 00/100 DOLLARS ($3,000,000.00), or so much as has been advanced pursuant to the terms of that certain Mezzanine Loan Agreement, dated the date hereof, between Maker and Payee (the "Loan Agreement"), together with interest thereon at the Interest Rate (as defined below) (or the Default Rate, as defined below, if applicable), calculated in accordance with the terms and conditions set forth in this Note, from and including the date of this Note to the date this Note is paid in full, as follows: A. On the date hereof (the "Closing Date"), interest on the principal sum of this Note from (and including) the Closing Date to August 31, 2020 at the Interest Rate. B. Thereafter, interest only at the Interest Rate on the outstanding Principal Balance (as defined below) shall be due monthly and shall be paid monthly in arrears, commencing on October 1, 2020, and monthly thereafter on the first (12) day of each month (the "Payment Date") until the Maturity Date (as defined below) (each such monthly payment, a "Monthly Payment"). C. Thereafter, on the Maturity Date, the entire outstanding principal balance of this Note, together with all accrued and unpaid interest through the Maturity Date at the Interest Rate, and all other sums payable to the holder of this Note (whether pursuant to this Note or the Loan Agreement or Other Security Documents (as such terms are hereinafter defined)) shall become due and payable. 1. For the purposes of this Note, these terms shall be defined as follows: Rate" a. The term "Alternative shall mean, in the event LIBOR is no longer available or charging of interest that is calculated based upon LIBOR would violate applicable law or regulation, then in Payee's sole discretion, the Alternative Rate shall be used instead of the LIBOR Based Rate, which shall mean either the Prime Based Rate (as hereinafter deññed) or the ARRC Based Rate, as hereinafter defined (in Payee's sole discretion as to whether Prime Based Rate or the ARRC Based Rate shall be used). FILED: ROCKLAND COUNTY CLERK 08/17/2021 07:20 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/17/2021 Rate" b. The term "ARRC Based shall mean the sum of (i) Eleven and 00/100 Percent (11.00%) per annum plus (ii) the ARRC Rate (as hereinafter defined). Rate" c. The term "ARRC shall mean such replacement of LIBOR as may be approved by the Alternative Reference Rates Committee (ARRC) (or comparable organization) and approved and/or published by the Federal Reserve; provided, however. in no event shall the ARRC Rate be less than One and 00/100 Percent (1.00%). Day" d. The term "Busin ess shall mean a weekday, Monday through Friday, except a legal holiday or a day on which banking institutions in New York, New York are authorized by law to be closed. "Debt" e. The term shall mean all principal, interest and other sums of any nature whatsoever, which may or shall become due to Payee in accordance with the provisions of this Note, the Loan Agreement or Other Security Documents. Period" f. The term "Interest shall mean, initially, the period commencing on (and including) the Closing Date and ending on (and including) the last day of the calendar month in which the Closing Date occurs. Thereafter, each Interest Period shall commence on (and include) the first day of each calendar month immediately following the last day of the previous Interest Period and end on (and include) the last day of such calendar month. Rate" g. The term "Interest as used in this Note shall mean interest at the annual rate equal to the greater of (i) Eleven and 00/100 Percent (11.00%) per annum plus LIBOR (collectively, the "LIBOR Based Rate") (or the Alternative Rate, as applicable), and (ii) Twelve and 00/100 Percent (12.00%) per annum (the "Fixed Base Rate"), adjusted for each Interest Period based upon the greater of the Prime Based Rate, the LIBOR Based Rate (or the Alternative Rate, as applicable) and the Fixed Base Rate at 11:00 a.m. (E.S.T.) two (2) Business Days prior to the Reset Date (as defined below) applicable to such Interest Period (or the date hereof with respect to the first Interest Period hereunder), which Interest Rate shall be applicable from the date of this Note to the Maturity Date, except as otherwise expressly provided herein. "LIBOR" h. The term shall mean the London Interbank Offered Rate (as defined below) for U.S. dollar deposits being delivered in the London interbank eurodollar market of one (1) month maturity (One Month LIBOR) as reported in the Money Rates Section of the Wall Street Journal (or such other commercially available source providing quotations of such London Interbank Offered Rate as may be designated by Payee from time to time) as of 11:00 a.m., E.S.T., on a Business Day (or if not so reported, then as determined by Payee from another recognized source of interbank quotation), rounded up to the nearest one-eighth of one percent (1/8%). A certificate made by an officer of Payee stating the LIBOR in effect on any given day, for the purposes hereof, shall be conclusive evidence of the LIBOR in effect on such day. The LIBOR is a base reference rate of interest adopted by Payee as a - 2 - FILED: ROCKLAND COUNTY CLERK 08/17/2021 07:20 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/17/2021 general benchmark from which Payee determines the floating interest rates chargeable on various loans to borrowers with varying degrees of creditworthiness, and Maker acknowledges and agrees that Payee has made no representations whatsoever that the LIBOR is the interest rate actually offered by Payee to borrowers of any particular creditworthiness. Documents" i. The term "Loan shall mean this Note, the Loan Agreement and all and any of the documents now or hereafter executed by Maker and/or others and by or in favor of Payee, which evidences, secures or guarantees all or any portion of the payments due under this Note or otherwise is executed and/or delivered in connection with this Note, the Loan Agreement, guarantees and agreements, including, without limitation, that certain Completion and Cost Over-Run Guaranty executed in connection with the Building Loan, and incorporated herein and made applicable to the Loan pursuant to this reference and the terms of the Forbearance Agreement and that certain Ownership Interests Pledge and Security Agreement executed by the Maker in favor of Payee simultaneously herewith (the "Pledge Agreement"). Rate" j. The term "London Interbank Offered shall mean the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other Person which takes over the administration of such rate). Date" k. The term "Maturity shall mean the earlier of (i)March 1, 2021, as the same may be extended pursuant to the terms hereof, or (ii) such sooner date, by acceleration or otherwise, as may be applicable pursuant to the terms hereof, at which time the entire Debt shall become due and payable. Documents" 1. The term "Other Security shall mean any of the documents other than this Note or the Loan Agreement, now or hereafter executed by the Maker or others, and by or in favor of Payee, which wholly or partially secure or guarantee payment of this Note, or which otherwise pertain to the loan evidenced by this Note (the "Loan"), including, without limitation, the Pledge Agreement. "Person" m. The term shall mean an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity or organization, including a govemment or political subdivision or an agency or instrumentality thereof. Rate" n. The term "Prime Based shall mean the sum of (i) Eight and 75/100 Percent (8.75%) per annum plus (ii)the Prime Rate (as hereinafter defined). Rate" 0. The term "Prime shall mean the annual rate of interest which is the highest prime lending rate of interest most recently in effect (as published in the Money Rates Section in The Wall Street Journal or if The Wall Street Journal fails to publish such rate, such other publication as Payee shall designate in its sole discretion). A certificate made by an officer of Payee stating the Prime Rate in effect on any given day, for the purposes hereof, shall be conclusive evidence of - 3 - FILED: ROCKLAND COUNTY CLERK 08/17/2021 07:20 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/17/2021 the Prime Rate in effect on such day. The Prime Rate is a base reference rate of interest adopted by Payee as a general benchmark from which Payee determines the floating interest rates chargeable on various loans to borrowers with varying degrees of creditworthiness and Maker acknowledges and agrees that Payee has made no representations whatsoever that the Prime Rate is the interest rate actually offered by Payee to borrowers of any particular creditworthiness. In the event that the concept of the Prime Rate shall no longer exist, then the Prime Rate shall be deemed to be the Prime Rate as last reported in The Wall Street Journal. Balance" p. The term "Principal shall mean the outstanding principal balance of this Note from time to time. Date" q. The term "Reset shall mean the first day of each Interest Period. 2. Any capitalized terms used herein but not defined shall have the meanings ascribed to them in the Loan Agreement or Other Security Documents. 3. Interest shall be computed on the basis of a year of 360 days and actual days elapsed. 4. The failure to make any payment required under this Note or the occurrence of any Event of Default (as such term is defined in the Loan Agreement or the Other Security Documents) shall constitute an Event of Default under this Note. 5. Upon the occurrence of an Event of Default: (a) interest shall accrue hereunder at the Default Rate prior to and subsequent to the entry of a Judgment of Foreclosure and Sale, (b) Payee may, at its option, without any written notice given to the Maker (such notice being expressly waived), DECLARE AND DEMAND this Note and the Debt immediately due and payable and (c) Payee may pursue all rights and remedies available hereunder or under the Loan Agreement and the Other Security Documents. Payee's rights, remedies and powers, as provided in this Note, the Loan Agreement or the Other Security Documents are cumulative and concurrent, and may be pursued singlely, successively or together against Maker, any Guarantor of the indebtedness evidenced hereby or against any collateral granted or pledged by Maker under any of the Loan Documents or any other collateral security given at any time to secure the payment hereof, all at the sole discretion of Payee. Additionally, Payee may resort to every other right or remedy available at law or in equity without first exhausting the rights and remedies contained herein, all in Payee's sole discretion. Failure of Payee, for any period of time or on more than one occasion, to DECLARE AND DEMAND this Note and the Debt immediately due and payable shall not constitute a waiver of the right to exercise the same at any time from and after any Event of Default. 6. A payment shall not be deemed to have been made on any day unless such payment has been received by Payee, at the required place ofpayment, in U.S. dollars by no later than 1:00 p.m. (New York time) on such day. Whenever any payment to Payee hereunder would otherwise be due (except by reason of acceleration) on a day that is not a Business Day, such payment shall instead be due on the next succeeding Business Day. If any installment of principal, interest or other sums due hereunder or under the Loan Agreement or any Other Security Document are not paid on the date on which same are due, the Maker shall pay to the Payee a late charge of five percent (5.00%) of such unpaid installment as a late payment charge, such late charge to be - 4- FILED: ROCKLAND COUNTY CLERK 08/17/2021 07:20 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/17/2021 immediately due and payable without demand by the Payee. Notwithstanding anything to the contrary, allpayments due under this Note, the Loan Agreement and the Loan Documents shall be made by means of wire transfer to the order of Payee, as directed by Payee, and Payee shall have the absolute right to reject any payment not made by wire transfer. In addition, Maker shall pay to Payee the sum of $2,500.00 for any payment which is returned for any reason by Maker's bank unpaid. 7. Subject to Payee's due diligence review and completion of a credit check, satisfactory to Payee in its sole discretion, and provided that: (a) this Note and the Other Security Documents are in full force and effect and there exists no Event of Default at the time of the giving of Maker's notice to extend, (b) Maker has made all Monthly Payments in accordance with the terms and conditions hereof, and (c) with respect to the Second Extended Term (as defined below) only, Maker shall have prepaid to Lender a sum equal to the greater of Thirteen Million and 00/100 Dollars ($13,000,000.00) or the Minimum Release Remittance (as defined in the Forbearance Agreement, which is defined in the Loan Agreement), which Lender shall apply to the Loan, the First Land Loan, the Second Land Loan, the Building Loan, or the Project Loan, in such order and priority as Lender shall determine in its sole discretion, then Maker shall have the option, upon providing written notice to Payee (in the manner provided in the Loan Agreement) to extend the term of this Note for two (2) additional periods of three (3) months each (respectively, the "First Term," Term," Extended and the "Second Extended and, individually or collectively, as the context may require, the "Extended Term"). Maker's notice must be received by Payee no later than fifteen (15) days prior to the then-applicable Maturity Date, time being of the essence with respect thereto in each and every instance. Any extension of the term as set forth herein shall be on the same terms and conditions of this Note and the Other Security Documents, except as otherwise provided in this Note and the Other Security Documents. Notwithstanding anything herein to the contrary, the term of this Note may not be extended unless, simultaneously with such extension, the Termimtion Date (as defined in the Forbearance Agreement) with respect to the First Land Loan, the Building Loan, the Project Loan, the Land Note, the Building Note, and the Project Note, and the Maturity Date with respect to the Second Land Loan and the Second Land Loan Note (as such terms are hereinafter defined) are also extended in accordance with terms of the Forbearance Agreement and the Second Land Loan Documents, respectively, such that the Termination Date of the Forbearance Period (as defined in the Forbearance Agreement) applicable to the First Land Loan, the Building Loan, and the Project Loan, and the Maturity Date of the Second Land Loan and the Second Land Note, shall be coterminous with the Loan. 8. Maker acknowledges and agrees that Mortgage Borrower is required to pay the Exit Fee, Funding Losses, and all other fees, costs, and expenses set forth in the First Land Loan Documents, the Building Loan Documents, and the Project Loan Documents (as such terms are defined therein). 9. Notwithstanding anything to the contrary contained herein, except for the prepayment described in Section 7(c) above, the Principal Balance of this Note may not be prepaid by Maker unless, simultaneously with such prepayment, the following is also prepaid in full: (a) that certain loan originated as of December 6, 2017 (the "First Land Loan") in the principal amount of $17,730,000.00 from PROPHET MORTGAGE OPPORTUNITIES LP (the "Original Mortgage Lender"), to HELLO NOSTRAND LLC, a New York limited liability company (the - 5 - FILED: ROCKLAND COUNTY CLERK 08/17/2021 07:20 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/17/2021 "Mortgage Borrower"), as evidenced by that certain Amended, Restated and Consolidated Senior Loan Promissory Note dated as ofDecember 6, 2017 (the "First Land Note") in the principal amount of $17,730,000.00 executed by Mortgage Borrower in favor of Original Mortgage Lender, and as secured by that certain Consolidation, Extension and Modification of Senior Loan Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing executed by Mortgage Borrower in favor of Original Mortgage Lender in the principal amount of $17,730,000.00 and encumbering the property owned by Mortgage Borrower located at 1580 Nostrand Avenue, Brooklyn, New York 11226 (the "Property"), as well as all guarantees, pledges, and other documents executed in connection therewith (the "First Land Loan Documents"), which First Land Loan was assigned by an Assignment of Consolidation, Extension and Modification of Senior Loan Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing and Senior Loan Collateral Assignment of Leases and Rents dated June 7, 2019 by Original Mortgage Lender to 1580 NOSTRAND AVE LLC, a Delaware limited liability company (collectively, together with its successors and/or assigns, the "Mortgage Lender"); (b) that certain building loan originated as of December 6, 2017 (the "Building Loan") in the principal amount of $39,770,000.00 from Original Mortgage Lender to the Mortgage Borrower, as evidenced by that certain Building Loan Promissory Note dated as of December 6, 2017 (the "Building Note") in the principal amount of $39,770,000.00 executed by Mortgage Borrower in favor of Original Mortgage Lender, and as secured by that certain Building Loan Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing executed by Mortgage Borrower in favor of Original Mortgage Lender in the principal amount of $39,770,000.00 and encumbering the Property, as well as all guarantees, pledges, and other documents executed in connection therewith (the "Building Loan Documents"), which Building Loan was assigned by an Assignment of Building Loan Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing and Senior Loan Collateral Assignment of Leases and Rents dated June 7, 2019 by Original Mortgage Lender to Mortgage Lender; (c) that certain project loan originated as of December 6, 2017 (the "Project Loan") in the principal amount of $5,500,000.00 from Original Mortgage Lender to the Mortgage Borrower, as evidenced by that certain Project Loan Promissory Note dated as of December 6, 2017 (the "Project Note") in the principal amount of $5,500,000.00 executed by Mortgage Borrower in favor of Original Mortgage Lender, and as secured by that certain Project Loan Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing executed by Mortgage Borrower in favor of Original Mortgage Lender in the principal amount of $5,500,000.00 and encumbering the Property, as well as all guarantees, pledges, and other documents executed in connection therewith (the "Project Loan Documents"), which Project Loan was assigned by an Assignment of Project Loan Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing and Senior Loan Collateral Assignment of Leases and Rents dated June 7, 2019 by Original Mortgage Lender to Mortgage Lender; and (d) that certain loan originated as of the date hereof (the "Second Land Loan") in the principal amount of up to $8,300,000.00 from Mortgage Lender to the Mortgage Borrower, as evidenced by that certain Mortgage Note dated as of the date hereof (the "Second Land Note") in the principal amount of up to $8,300,000.00 executed by Mortgage Borrower in favor of Mortgage Lender, and as secured by that certain Mortgage and Security Agreement executed by Mortgage Borrower in favor of Mortgage Lender in the principal amount of up to $8,300,000.00 and encumbering the Property, as well as all guarantees, pledges, and other documents executed in connection therewith Documents" (the "Second Land Loan and, together with the First Land Loan Documents, the Building Loan Documents, and the Project Loan Docurnents, collectively, the "Mortgage Loan - 6 - FILED: ROCKLAND COUNTY CLERK 08/17/2021 07:20 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/17/2021 Documents"). The First Land Loan Documents the Building Loan Documents, and the Project Loan Documents are subject to the terms of the Forbearance Agreement (as defined in the Loan Agreement). 10. Separate and in addition to all other payment obligations of Maker contained herein, Maker shall be required to pay a yearly servicing fee equal to Twenty Thousand and 00/100 Dollars ($20,000.00) payable in monthly instsdLments (the "Servicing Fee"). The Maker acknowledges and agrees that the obligation to pay the Servicing Fee shall be secured by the Loan Agreement. For the avoidance of doubt, the Servicing Fee required hereunder shall not be in duplication of the Servicing Fee defined in and required under the Mortgage Loan Documents. 11. Maker acknowledges that this Note and Maker's obligations under this Note are and shall at all times continue to be absolute and unconditional in all respects. This Note, the Loan Agreement and the Other Security Documents set forth the entire agreement and understanding of Payee and Maker. 12. Maker agrees to pay all costs and expenses of collection incurred by Payee, in addition to attorneys' principal and interest (including, without limitation, reasonable fees and disbursements), and including all costs and expenses incurred in connection with the pursuit by Payee of any of its rights or remedies hereunder or under the Loan Agreement and/or the Other Security Documents or the protection of or realization of collateral or in connection with any of Payee's collection efforts, whether or not any action or proceeding on this Note, on the Loan Agreement and/or the Other Security Documents or any foreclosure proceeding is filed, allsuch costs and expenses being payable on demand, together with interest at the Default Rate thereon and being secured by the Loan Agreement and the Other Security Documents. 13. The indebtedness herein evidenced by this Note is secured by the Loan Agreement and the Other Security Documents. 14. THIS NOTE HAS BEEN EXECUTED AND DELIVERED AT AND SHALL BE DEEMED TO HAVE BEEN MADE AND PERFORMED IN THE STATE OF NEW YORK AND THIS NOTE, THE LOAN AGREEMENT AND EACH OF THE OTHER SECURITY DOCUMENTS SHALL IN ALL RESPECTS BE GOVERNED, CONSTRUED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). 15. Maker does hereby agree that upon the occurrence of an Event of Default, or upon the failure of Maker to pay the Debt in full on the Maturity Date, Payee shall be entitled to receive and Maker shall pay interest on the entire Debt at the rate of twenty-four percêñt (24%) per annum or at the maximum rate of interest which Maker may by law pay, whichever is lower (the "Default Rate"), to be computed from the occurrence of the Event of Default until the actual receipt and collection of the Debt, including all periods prior to or subsequent to the entry of a Judgment of Foreclosure and Sale. This charge shall be added to the Debt and shall be deemed secured by the Loan Agreement. This clause, however, shall not be construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Payee by reason of the occurrence of any Event of Default. - 7 - FILED: ROCKLAND COUNTY CLERK 08/17/2021 07:20 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/17/2021 16. This Note is subject to the express condition that at no time shall Maker be obligated or required to pay interest on the Principal Balance at a rate which could subject Payee to either civil or criminal liability as a result of being in excess of the maximum rate which Maker is permitted by law to contract or agree to pay. For the purposes of calculating the actual amount of interest paid and or payable, in respect of laws pertaining to usury or such other laws, all sums paid or agreed to be paid to Payee for the use, forbearance or detention of the indebtedness evidenced hereby shall, to the extent permitted by applicable law, be amortized, allocated and spread from the date of disbursement of the proceeds thereof until payment in full of the Loan obligations, so that the actual rate of interest on account thereof is uniform throughout the term hereof. If, by the terms of this Note, Maker is at any time required or obligated to pay interest on the Principal Balance at a rate in excess of such maximum rate, the rate of interest under this Note shall be deemed to be im-mediately reduced to such maximum rate, and interest payable hereunder shall be computed at such maximum rate and the portion of all prior interest payments in excess of such maximum rate shall be applied and shall be deemed to have been payments in reduction of the Principal Balance. 17. In the event LIBOR is no longer available or charging of interest that is calculated based upon LIBOR would violate applicable law or regulation, then in Payee's sole discretion, the Alternative Rate shall replace the LIBOR Based Rate, which Alternative Rate shall mean either the Prime Based Rate or the ARRC Based Rate, (inPayee's sole discretion as to whether the Prime Based Rate or the ARRC Based Rate shall be used). 18. No delay on the part of Payee in exercising any right or remedy under this Note, the Loan Agreement or the Other Security Documents or failure to exercise the same shall operate as a waiver in whole or in part of any such right or remedy. No notice to or demand on Maker shall be deemed to be a waiver of the obligation of Maker or of the right of Payee to take further action without further notice or demand as provided in this Note, the Loan Agreement and the Other Security Documents. 19. Each of Payee's rights and remedies under this Note shall be in addition to all of itsother rights and remedies under the Loan Agreement, Other Security Documents and applicable law. 20. TIME IS OF THE ESSENCE with regard to Maker's performance of all the terms, covenants and conditions of this Note. 21. Any provision of this Note, the Loan Agreement or the Other Security Documents that is prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions thereof or affecting the validity or enforceability of such provision. 22. All of the provisions of this Note shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 23. Maker hereby warrants, represents and covenants that no funds disbursed hereunder shall be used for personal family or household purposes. 24. Maker (and the undersigned representative of Maker, if any) represents that Maker has full power, authority and legal right to execute and deliver this Note and that the Debt hereunder - 8 - FILED: ROCKLAND COUNTY CLERK 08/17/2021 07:20 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/17/2021 constitutes a valid and binding obligation of Maker. 25. All notices to be given under this Note shall be given in the same manner as provided in the Loan Agreement. 26. This Note, and any provisions hereof, may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Maker or Payee, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought. 27. Without limiting any other provisions of the Loan Agreement or the Loan Documents, Maker, for itself and all endorsers, guarantors and sureties of this Note, and their heirs, legal representatives, successors and assigns, hereby waives valuation, appraisement, presentment for payment, demand, notice of nonpayment, notice of dishonor, protest of any dishonor, notice of protest and protest of this Note, lack of diligence, delays in collection or enforcement of this Note, notice of the intention to accelerate, the benefit of all applicable law affording any right or redemption or cure and allother notices in connection with the delivery, acceptance, performance, default or enforcement of the payment of this Note, except as expressly provided herein or in the Loan Agreement or any of the Other Security Documents, and in connection with any suit, action or proceeding brought by Payee on this Note, any and every right itmay have to (a) a trialby jury, (b) interpose any counterclaim therein (other than a counterclaim which can only be asserted in a suit, action or proceeding brought by Payee on this Note and cannot be maintained in a separate action), and (c) have the same consolidated with any other or separate suit, action or proceeding, and agrees that their respective liability shall be unconditional and without regard to the liability of any other party and shall not be in any manner affected by any indulgence, extension of time, renewal, waiver or modification granted or consented to by Payee. Maker, for itself and all endorsers, guarantors and sureties of this Note, and their heirs, legal representatives, successors and assigns, hereby consents to every extension of time, renewal, waiver or modification that may be granted by Payee with respect to the payment or other provisions of this No