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FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009
NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 06/14/2022
Exhibit N
(to Joseph Pistilli Affidavit)
FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009
NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 06/14/2022
GUARANTY MORTGAGE
(Parcel B)
This Mortgage ismade May 17, 2004, between
Adam D. Luckner at 619 Bridge Street,Woodmere, New York 11598,
residing
("Mortgagor"), and
308'
First Central Savings Bank, having an address at35-01 Avenue, Astoria, New
York 11103 ("Mortgagee").
WHEREAS, to secure Mortgagor's obligations under that certain Commercial Loan
Guaranty (the"Guaranty") executed by Mortgagor in favor of Mortgagee on even date herewith,
guarantying the payment of a promissory note (the"Note") from Bridge Associates of SoHo, Inc.,
to Mortgagee, as Borrower inthe aggregate sum of $1,188,000.00 lawful money of the Unite
States of America, tobe paid with interest and periodic changes (said obligations, interest,
periodic changes and allother sums which may or shallbecome due under said Guaranty and this
Mortgage being hereinafter collectively referred to as the"Obligations"), the Mortgagor does
hereby mortgage to theMortgagee the premises located at 619 Bridge Street, Woodmere, New
York 11598 and more particularly described as thatcertain plot,piece or parcel of land, with the
buildings and improvements thereon erected, described on Schedule A annexed hereto and made
a party hereof (referred to herein as the "Premises");
TOGETHER with allright,titleand interestof theMortgagor in and to the land lying in
the streetsand roads in frontof and adjoining saidPremises;
TOGETHER with all fixtures,chattels and articlesof personal property now orhereafter
owned by Mortgagor and how or hereafter attached to or used in connection with said Premises,
including butnot limitedto furnaces, boilers, oilburners, radiators, and piping, coal stokers,
plumbing and bathroom fixtures,refrigeration, airconditioning 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 allother
equipment and machinery, appliances, fittingsand fixtures of every kind inor used inthe
operation ofthe Premises, together with any and allreplacements thereof and additions thereto;
TOGETHER with allawards heretofore and hereafter made to the Mortgagor fortaking
by eminent domain the whole orany part of saidPremises orany 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 collectand receive the proceeds of such awards and to give proper
receipts and acquittances therefore, and to apply same toward the payment of the Obligations, as
hereinafter defined, notwithstanding the factthat 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 allassignments and otherinstruments sufficient for thepurpose of assigning said awards
to the Mortgagee, free,clear and discharged of any encumbrances of any kind or nature
whatsoever.
emett
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NOW, THEREFORE, the Mortgagor covenants with the Mortgagee as follows:
1. Warranties: Mortgagor warrants and certifiesto Mortgagee as follows:
(a) The Guaranty is in fullforce and effect.
(b) That there are no defenses, counterclaims, crosselaims or other claims,
demands or offsets of any nature whatsoever which can be asserted to: (i)reduce or eliminate all
or any part of Mortgagor's liability under the Guaranty or (ii)seek affirmative relief or damages
from Mortgagee.
(c) That allof the provisions of the Guaranty, this Mortgage, and any other
guaranty thereof are in full force and effect.
(d) That any and allliens and security interests in real and personal property
held by the Mortgagee to secure allor any part of the Obligations are third priority liens or
security interests, in full force and effect, subject to the FirstMortgage and the Second Mortgage
(each as hereinafter defined) and there are no defenses to such liens or security interests.
(e) That neither the Mortgagor nor any guarantor has (i) fileda petition
seeking relief under any provision of any bankruptcy, reorganization, arrangement or dissolution
law of any jurisdiction; (ii)made any assignments for the benefit of creditors; had
(iii) a receiver,
custodian, liquidator or trustee appointed by court order; or (iv)failed to pay, or admitted in
writing an inability to pay debts, generally asthey have become due.
(f) The execution and delivery of this Mortgage, the Guaranty and any
security agreement or other agreement purporting to be executed by Mortgagor in connection
with the Guaranty (collectively referred to herein as the "Guaranty Documents") have been duly
authorized by Mortgagor and all of the Guaranty Documents constitute the valid and binding
obligations of the Mortgagor, enforceable in accordance with their terms. .
2. Partial Payment. If the Mortgagee shall receive from or on behalf of the
Mortgagor any sum less than the fullamount then due and payable, the Mortgagee may, but shall
not be obligated to, accept the same (regardless of any endorsement or condition expressed by
Mortgagor with respect to such partial payment) and ifit elects to accept any such payment, it
may hold the same or any part thereof, without liabilityfor interest, in a special account and it
may from time to time apply the same or any part thereof to the Obligations or to the payment of
any taxes, assessments, sewer or water charges or insurance premiums desirable to maintain the
attorneys'
lien of this Mortgage or to any expenses, including costs and reasonable fees and
disbursements, incurred by the Mortgagee in attempting to collect any amount owing on the
Obligations and in bringing foreclosure proceedings with respect to this Mortgage. The
acceptance of partial payment shall in no way waive any right of Mortgagee to insistupon the
full payment of all amounts due and owing. The acceptance of partialpayments after default,
acceleration or maturity by the Mortgagee shallnot waive such default or acceleration.
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3. Insurance. (a) The Mortgagor will keep the premises insured against loss by fire
for the benefit of the Mortgagee; the Mortgagor will assign and deliver the policies to the
Mortgagee; and 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 premises or in so
assigning and delivering the policies. All renewal policies shall be delivered, and premiums paid,
at leastten (10) days before the expiration of the prior insurance policy. Anything herein to the
contrary notwithstanding, no duty to maintain such insurance shall be implied against or imposed
on the Mortgagee. Fire insurance shall be not less than the greater of (i) 100% of the full
insurable value of the improvements on the premises or (ii)the Obligations. Fire insurance may
be limited to 100% of the full insurable value of the improvements notwithstanding the amount
of the Obligations ifthe insurance policy includes a full replacement cost guaranty. Mortgagor
shall carry such additional insurance as Mortgagee shall request, including but not limited to,war
risk, business interruption or, ifMortgagor undertakes any form of rehabilitation or
reconstruction of the premises, builder's risk insurance. Mortgagor shall also at alltimes
maintain general liabilityinsurance covering itsoperations in an amount not less than $1,000,000
.per occurrence, $2,000,000 aggregate, with reasonable deductibles, naming the Mortgagee as an
additional insured. All insurance carriers are subject to prior approval of Mortgagee.
(b) Ifthe Mortgagee by reason of such insurance receives any money for loss
or damage, then the Mortgagee shall have the right in itssole discretion either to apply the
proceeds of such insurance in reduction of the amount owed under the Guaranty and this
Mortgage, or in lieu thereof to allow the provisions of Section 254 of the New York Real
Property Law to apply to the determination of whether and how such proceeds shall be available
to the Mortgagor. The Mortgagee shall not be obligated to see to the proper application of any
amount paid over to the Mortgagor, and ifthe Mortgagee receives and retains insurance money
for loss or damage to the premises, the lien hereof shall be reduced only by the amount of such
insurance money received and retained by the Mortgagee. If any provision under this paragraph
shall be interpreted by a court of competent jurisdiction as an unlawful waiver of any statutory
right of a third party, then such provision shallbe deemed ineffective.
All policies of insurance, including the unearned premiums paid thereon,
(c)
are assigned to the Mortgagee as further security for the Obligations and the lien of this
hereby
Mortgage shall continue as a lien against the proceeds of any such insurance.
On Mortgagee's demand, Mortgagor will deliver to Mortgagee a
(d)
certificate of or other proof acceptable to Mortgagee showing thatthe fireor any other
adequacy
insurance coverage is equal to the percentage of insurable value so required.
All insurance policies shall be in such form and amount, and with such
(e)
carriers, as is satisfactory to Mortgagee.
All fire insurance policies shall contain the usual extended coverage
(f)
endorsement.
Mortgagor shall notify Mortgagee within fourteen (14) days of the
(g)
occurrence of event rise to a right to make any claim under any such insurance policy.
any giving
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4. Alterations. The premises shall not be materially altered, removed or demolished
without the consent of the Mortgagee.
5. Maintenance of Premises. The Mortgagor shall maintain the premises in good
condition and repair, shall not commit or suffer any waste of the premises, and neither the value
of the premises nor the lien of this Mortgage will be diminished or impaired in any way by any
act or omission of the Mortgagor. The Mortgagor will not do or permit to be done to, in, upon or
about said premises or any part thereof, anything that may in any way impair or depreciate the
value thereof, or any part thereof, or weaken, diminish or impair the security of this Mortgage or
increase any fire,casualty or other hazard tisk to the premises. Mortgagor shall comply with, or
cause to be complied with, all statutes, ordinances and requirements of any governmental
authority relating to the premises. The Mortgagor shall promptly repair, restore, replace or
rebuild any part of the prernises now or hereafter subject to the lien of thisMortgage which may
be damaged or destroyed by any casualty whatsoever, or which may be affected by any
proceeding in the nature of condemnation. Mortgagor shall not seek, obtain or consent to any
restrictive covenant, zoning change, variance, landmark designation or other similar matter
which could have the effect of limiting the improvement, use, occupancy or transferability of the
premises. Ifthe use of the premises constitutes, or at any time hereafter constitutes, a non-
conforming use under any zoning ordinance, then Mortgagor may not take any action which
would cause such non-conforming use tobe abandoned or waived, or which would cause the
premises to lose the right to continue such non-conforming use.
6. Danger of Loss. If,in the opinion of the Mortgagee, the premises, or any
improvement, fixture or personal property thereon, are in danger of destruction or deterioration,
the Mortgagee may, without notice or demand, enter upon the premises and may perform such
acts thereon or with respect thereto as itmay deem suitable for preservation or protection of the
premises or such improvement, fixture or personal property. Mortgagee may thereafter leave the
premises or hold possession thereof at itsoption, provided, however, that, ifprior advance notice
or demand is required by law, Mortgagor agrees that five (5) days advance notice of intent to
enter the premises shall at alltimes be deemed reasonable unless a shorter period is permitted by
law.
7. Default. Upon the occurrence of any of the following, or any other default,
hereunder, Mortgagor agrees that Mortgagee may take such action, without notice or demand, as
itdeems advisable, to protect and enforce itsrights against Mortgagor and in and to the premises:
afterdefault in the payment of any obligation under the Guaranty; 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 afterdefault upon request in furnishing a statement of the
amount due on this Mortgage and whether any offsets or defenses exist against the Obligations.
An assessment which has been made payable in installments at the application of the Mortgagor
or lessee of the premises shall nevertheless, for the purpose of thisparagraph, be deemed due and
payable in itsentirety on the day the first installment becomes due or payable or a lien.
PL 174
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O
8. Additional Defaults. In addition to the defaults set forth in paragraph 7, the
occurrence of any one or more of the following events shall constitute a default under this
Mortgage:
(a) the failure to provide to the Mortgagee, within fifteen days after demand,
copies of receipts showing payment of alltaxes, water rates, sewer rents and assessments; or
(b) the actual or threatened demolition, removal or material alteration (other
than a planned alteration as described in a building loan contract, if any, between Mortgagor and
Mortgagee of even date herewith) of any portion of the premises without the written consent of
the Mortgagee; or
(c) the assignment of the rents of the premises or part thereof without the
any
written consent of the Mortgagee; or
. (d) if the fixtures and equipment on said premises are not maintained in
reasonably good repair; or
(e) the failure to comply with any requirement or order or notice or violation
of law or ordinance issued by any governmental department claiming jurisdiction over the
premises within three months from the issuance thereof; or
(f) if,on application of the Mortgagee, two or more fire insurance companies
lawfully doing business in the State of New York refuse to issue policies insuring the buildings
or 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 or articles of persona1property of equal value
and suitability, owned by Mortgagor free of security interests, liens or other encumbrances
thereon and free from any reservation of titlethereto; or
days'
(h) after thirty 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 an Event of Default, as defined in the Note, occurs, or if the Mortgagor
failsto keep, observe and perform any of the other covenants, conditions or agreements
contained in the Guaranty Documents, or if an event of default occurs under any of them, or if
any representation contained therein shall be false, or if any warranty contained therein shall be
breached; or
(j) the use of the premises in any way that violates any governmental law,
ordinance, rule, regulation or requirement or which could result in the commencement of
forfeiture proceedings with respect to the premises; or
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(k) ifany representation, warranty, certificate, statement, or financial data
heretofore or hereafter furnished by or on behalf of the Mortgagor pursuant to or in connection
with thisMortgage (including, without limitation, representations and warranties contained
herein or in the Guaranty Documents) proves to be or have been false or misleading in any
material respect or to have omitted any substantial contingent or unliquidated liability or claim
against, the Mortgagor; or
(1) in the event any action is commenced for the forfeiture of all or any part of
the premises or to foreclose upon any mortgage, lease, or lien affecting the premises which is,in
whole or in part,either superior or subordinate to the lien of this Mortgage; or
(m) ifthe intended use of the premises existing as of the date hereof shall
hereafter be changed in any material respect; or
(n) if,by order of a court of competent jurisdiction, a trustee, receiver or
liquidator of the premises, or any part thereof, shall be appointed, or if atany time the
Mortgagor, or any partner of Mortgagor (ifa partnership) or any principal under the Guaranty
shall be insolvent, shall grant a general assignment for the benefit of creditors, shall be placed in
receivership, shall file or have filed against ita petition for relief under the United States
Bankruptcy Code, or shall be dissolved, or if the filing of any petition by or against the
Mortgagor with respect to any of the foregoing shall occur; or
(0) if finaljudgment for the payment of money shallbe rendered against
Mortgagor or any principal under the Guaranty, in an amount in excess of $25,000.00, and
Mortgagor or such guarantor shall not discharge the same or cause itto be discharged within
sixty (60) days from the entry thereof, or shall not appeal therefrom or from the order, decree or
process upon which or pursuant to which said judgment was granted, based or entered, and
secure and maintain a stay of execution of such judgment; or
(p) ifit shall be illegalfor Mortgagor to pay any tax, assessment, charge, fee,
rent or other expense required to be paid under the Guaranty or this Mortgage or ifthe payment
of such tax, assessment, charge, fee,rent or other expense by Mortgagor would result in the
violation of applicable usury laws; or
(q) ifMortgagor, or any principal under Guaranty shall be in default under
any of the terms, covenants or conditions of any loan, mortgage, instrument or document
evidencing, securing or executed in connection with any other Obligations owed by Mortgagor
or such guarantor to Mortgagee.
9. Sale in One Parcel 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 If,in a foreclosure sale,
the premises are not sold in one parcel, then Mortgagee shall be permitted to have the same sold
in such order as Mortgagee determines, at the same time or separately, in Mortgagee's sole
discretion. Mortgagee shallnot be required to obtain a deficiency judgment, or any other court
approval, after the sale of any parcel in order for any other parcel to be sold. Neither Mortgagee
PL 176
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nor any referee shall be required to submit any report to the court or account for the proceeds
from the sale of any parcel until allparcels are sold. Mortgagee shall have the right, if itso
elects, to foreclose thisMortgage as to a portion of the premises without foreclosing this
Mortgage as to the remainder of the premises, and upon doing so this Mortgage shall remain a
valid and enforceable lien against the portion of the premises not subject to such foreclosure for
the full amount remaining owed to Mortgagee. If the Obligations are secured by separate
mortgages on different properties, then the Mortgagee may likewise foreclose said mortgages in
such order as itdetermines, either at the same time or separately, in Mortgagee's sole discretion.
10, Collection Costs. In any action to foreclose thisMortgage, or any action to
collect any debt secured by this Mortgage or created hereunder, or any other action arising
hereunder, or any action to foreclose any interest or lien prior in right or claimed to be prior in
right to allor part of the lien of the Mortgage, Mortgagor shall be liablefor and shall pay to
Mortgagee, in addition to any other liabilitywhich may be established in such action, all of
Mortgagee's court costs and attorneys fees in the prosecution or defense of such action, plus .
.. interest thereon at the Alternate Interest Rate (as defined below), and the amount thereof shall be
secured hereby. Such attorneys fees shall include, in addition to fees incurred directly in such
action or proceeding, any reasonable attorneys fees incurred, before or after the commencement
of such action or in the course of Inedification or work-
proceeding, negotiating any extension,
out of the Guaranty and any expenses customarily billed by such attorneys.
11. Counterclaims. Mortgagor, in any action to foreclose this Mortgage, hereby
waives the right to interpose any counterclaim against Mortgagee, allof which counterclaims
must be asserted in a separate action against Mortgagee which shall not be consolidated with
such foreclosure action.
12. Other Litigation and Related Expenses. If any action or proceeding be
commenced (except an action to foreclose the Mortgage or to collect any debt secured hereby),
to which action or proceeding the Mortgagee is made a party by virtue of itsstatus as holder of
the of the other or in which itbecomes ·
Guaranty, this Mortgage or any Guaranty Documents,
necessary to defend or uphold the lien of this Mortgage including, without limitation, any
condemnation or eminent domain proceedings, all sums paid by the Mortgagee for the expense
of any such litigation (including reasonable attorneys fees and expenses customarily billed by
such attorneys) shall be paid by the Mortgagor, together with interest at the Alternate Interest
Rate, and shall be a lien on the premises, prior to any right, or titleto, interest in or claim upon
said premises attaching or accruing subsequent to the lien of this Mortgage, and shall be deemed
to be secured by this Mortgage.
13. Receiver. The holder of this Mortgage, in any action to foreclose it,shall be
entitled to the appointment of a receiver. Mortgagee shall have the right to nominate a receiver
for appointment by the court, but such nomination shall in no way cause the receiver to be an
agent of Mortgagee, nor shall Mortgagee be liable for any actions taken by such receiver. Under
no circumstances shall Mortgagee be considered a mortgagee in possession by virtue of the
appointment of a receiver nominated by Mortgagee.
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14. Continuance of Obligation. The obligation of this Mortgage and the Guaranty
shall continue until the entire debt owed thereon is paid and all obligations under the Guaranty
have been fulfilled,notwithstanding any action or actions of partial foreclosure which may be
brought to recover any amount or for taxes, assessments, water rates, sewer rents or fire
insurance premiums due and payable hereunder.
15. Taxes. The Mortgagor will pay all taxes, assessments, sewer rents or water rates,
and in default thereof, the Mortgagee may pay the same. Mortgagee may, from time to time in its
sole discretion, filegrievances, appeals, tax certiorari proceedings or similar legal proceedings
seeking to reduce the real property tax assessment for the premises and the costs of any such
proceedings including, without limitation, court costs, attorneys fees and the expenses of
appraisals and other experts, shall be paid firstout of any recovery in such action and any
remaining amount shall be paid by Mortgagor. Mortgagor will co-operate with Mortgagee in
prosecuting any such proceeding. Mortgagee shall have no liability to Mortgagor with respect to
any such proceeding or the resolution thereof by settlement or otherwise, itbeing understood that
. Mortgagor may protect itsinterests by bringing such proceeding itself. Such costs, with interest,
shall be a lien on the premises prior to any right or titleto, interest in or claim upon said premises
attaching or accruing subsequent to the lien of this Mortgage, and shall be deemed to be secured
by thisMortgage and Mortgagor hereby assigns to Mortgagee as additional security for all
amounts due and owing under the Guaranty or this Mortgage any and allrefunds of real estate
taxes arising out of any tax grievance, tax certiorari proceeding or similar action with respect to
any period from and after the date of this Mortgage.
16. Tax and Insurance Escrow. At the option of the Mortgagee, the Mortgagor shall
pay, on the firstday of each month a sum equal to one-twelfth (1/12) of the annual insurance
premiums, real estate taxes, water rates and sewer rates to be held and applied by the Mortgagee
to the payment of said items; and in addition thereto, Mortgagor will pay to and deposit with
Mortgagee such additional reserve as may be necessary so that such sum, added together with the
monthly payments, shall make up a fund sufficient to pay allthe aforesaid items on their
respective due dates and also sufficient to establish a cushion equal to one-twelfth of the annual
amount payable. The determination of the amount payable under this paragraph by Mortgagor
may be based upon either the single item or aggregate method of analysis, at Mortgagee's option.
Such escrow account shall not bear interest and may be mingled with the general funds of the
Mortgagee; and inthe event of any default in the monthly payment of one-twelfth of such.
insuraDce premiums, taxes, water rates and sewer rates,or any failure to pay on demand any
additional sums necessary to fully discharge said items, the same shall constitute in all respects a
default in the tenns hereof and, at the option of the Mortgagee, all of the liabilitiesof the
Mortgagor on the Guaranty and this Mortgage, whether matured or unmatured, absolute or
contingent, shall become immediately due after any such default for a period of five days without
notice or demand. In the event of any default under thisMortgage or the Guaranty, the amount
held by the Mortgagee pursuant to this paragraph may be applied, without further notice or
demand, in reduction of the Obligations.
17. Application of Escrow Funds. If there shall be a default under any of the
provisions of this Mortgage resulting in the public sale of the premises covered hereby or ifthe
Mortgagee shall acquire the premises otherwise after default, the Mortgagee shall have the right
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to apply the balance of any funds held by itin escrow, either as a credit against the balance of the
Obligations then remaining unpaid or to the payment of any other charges, without any
obligation to account therefor to the Mortgagor.
18. Proof of Payment. Mortgagor shall deliver to Mortgagee, within 30 days after the
due date thereof, copies of paid receipts for all taxes, special assessments, water and sewer
charges applicable to the premises.
19. Protective Advances. If the Mortgagee shall pay or incur any expense.in order to
maintain the security of this Mortgage or to cure any default under the Guaranty Documents,
including, without limitation, the payment of any real estate taxes, water rates, sewer rents,
assessments, insurance premiums, or expenses of repairing, securing, or remedying any adverse
condition on the premises, any such payments shall bear interest at the Alternate Interest Rate,
but not to exceed the maximum rate allowed by law, and shall,with such interest, be secured by
this Mortgage. Nothing contained herein shall require Mortgagee to incur any such expenses.
Notwithstanding any other provision hereof, the Mortgagee may pay any such items without
advance notice to the Mortgagor if Mortgagee determines in itssole discretion that itwould be
appropriate to do so-If any such sums are paid by Mortgagee then Mortgagee may, at itssole
option and in addition to any other rights itmay have, declare the entire amount due and owing
under the Guaranty and this Mortgage, including such sums as may have been paid as aforesaid, .
and any and allother sums which shall be payable hereunder, due and payable with interest, or
place such sums with an attorney for collection without accelerating the Obligations, whereupon
Mortgagor shall be liable for allattorneys fees, expenses customarily billed by such attorneys,
and court costs incurred in such collection.
20. Payment of Other Liens. IfMortgagor failsto pay when due any amounts owed
on any mortgage or similar lien superior or subordinate to the lien of this Mortgage when such
installment becomes due, then Mortgagee may pay such installment, and Mortgagor on demand
will repay the amount so paid with interest thereon at the Alternate Interest Rate, and the same
shall be added to the Obligations and secured by this Mortgage. Mortgagor covenants that it shall
with allof the terms and conditions of any such superior or subordinate mortgage or lien.
comply
The failure to do so shallconstitute an event of default hereunder.
21. Statement of Amount Due. The Mortgagor within five days upon request in
persori 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 Obligations or any of Mortgagee's rights under any of the Guaranty Documents.
22. Warranty of Title. The Mortgagor warrants the titleto the premises, subject only
to the existing First Mortgage and Second Mortgage.
23. Mortgage Priority. Mortgagor warrants that this Mortgage is and shall remain a
third mortgage lien on the premises. Mortgagor shall not suffer or allow any other or further
restrictions, encumbrances or encroachments against the premises without the
liens, easements,
prior written consent of Mortgagee.
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24. Other Liens. Mortgagor covenants that itshall notify Mortgagee in of
writing
any mechanics liens or any other liens asserted against the premises of which itbecomes aware.
IfMortgagor shall failto eliminate such liens by bonding or otherwise, within ninety (90) days
of the date itbecomes aware of such liens, Mortgagee, in itssole discretion, may declare the
entire amount due and owing under the Guaranty and this Mortgage immediately due and
payable with interest.
25. Assignment of Rents. The Mortgagor hereby assigns to the Mortgagee the rents,
issues and profits of the premises as further security for the payment of allamounts due and
owing from time to time under the Guaranty and this Mortgage, and the Mortgagor grants to the
Mortgagee the right to enter upon and to take possession of the premises for the purpose of
collecting the same and to letthe premises or any part thereof, and to apply the rents, issues and
profits, after payment of allnecessary charges and expenses, on account of the Obligations. This
assignment and grant shall continue in effect until the Obligations is paid in full. The Mortgagee
hereby waives the right to enter upon and to take possession of 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 under any of the covenants, conditions or agreements
contained in the Guaranty Documents,
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FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 06/14/2022 Exhibit N (to Joseph Pistilli Affidavit) FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 06/14/2022 GUARANTY MORTGAGE (Parcel B) This Mortgage ismade May 17, 2004, between Adam D. Luckner at 619 Bridge Street,Woodmere, New York 11598, residing ("Mortgagor"), and 308' First Central Savings Bank, having an address at35-01 Avenue, Astoria, New York 11103 ("Mortgagee"). WHEREAS, to secure Mortgagor's obligations under that certain Commercial Loan Guaranty (the"Guaranty") executed by Mortgagor in favor of Mortgagee on even date herewith, guarantying the payment of a promissory note (the"Note") from Bridge Associates of SoHo, Inc., to Mortgagee, as Borrower inthe aggregate sum of $1,188,000.00 lawful money of the Unite States of America, tobe paid with interest and periodic changes (said obligations, interest, periodic changes and allother sums which may or shallbecome due under said Guaranty and this Mortgage being hereinafter collectively referred to as the"Obligations"), the Mortgagor does hereby mortgage to theMortgagee the premises located at 619 Bridge Street, Woodmere, New York 11598 and more particularly described as thatcertain plot,piece or parcel of land, with the buildings and improvements thereon erected, described on Schedule A annexed hereto and made a party hereof (referred to herein as the "Premises"); TOGETHER with allright,titleand interestof theMortgagor in and to the land lying in the streetsand roads in frontof and adjoining saidPremises; TOGETHER with all fixtures,chattels and articlesof personal property now orhereafter owned by Mortgagor and how or hereafter attached to or used in connection with said Premises, including butnot limitedto furnaces, boilers, oilburners, radiators, and piping, coal stokers, plumbing and bathroom fixtures,refrigeration, airconditioning 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 allother equipment and machinery, appliances, fittingsand fixtures of every kind inor used inthe operation ofthe Premises, together with any and allreplacements thereof and additions thereto; TOGETHER with allawards heretofore and hereafter made to the Mortgagor fortaking by eminent domain the whole orany part of saidPremises orany 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 collectand receive the proceeds of such awards and to give proper receipts and acquittances therefore, and to apply same toward the payment of the Obligations, as hereinafter defined, notwithstanding the factthat 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 allassignments and otherinstruments sufficient for thepurpose of assigning said awards to the Mortgagee, free,clear and discharged of any encumbrances of any kind or nature whatsoever. emett PL 171 FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 06/14/2022 NOW, THEREFORE, the Mortgagor covenants with the Mortgagee as follows: 1. Warranties: Mortgagor warrants and certifiesto Mortgagee as follows: (a) The Guaranty is in fullforce and effect. (b) That there are no defenses, counterclaims, crosselaims or other claims, demands or offsets of any nature whatsoever which can be asserted to: (i)reduce or eliminate all or any part of Mortgagor's liability under the Guaranty or (ii)seek affirmative relief or damages from Mortgagee. (c) That allof the provisions of the Guaranty, this Mortgage, and any other guaranty thereof are in full force and effect. (d) That any and allliens and security interests in real and personal property held by the Mortgagee to secure allor any part of the Obligations are third priority liens or security interests, in full force and effect, subject to the FirstMortgage and the Second Mortgage (each as hereinafter defined) and there are no defenses to such liens or security interests. (e) That neither the Mortgagor nor any guarantor has (i) fileda petition seeking relief under any provision of any bankruptcy, reorganization, arrangement or dissolution law of any jurisdiction; (ii)made any assignments for the benefit of creditors; had (iii) a receiver, custodian, liquidator or trustee appointed by court order; or (iv)failed to pay, or admitted in writing an inability to pay debts, generally asthey have become due. (f) The execution and delivery of this Mortgage, the Guaranty and any security agreement or other agreement purporting to be executed by Mortgagor in connection with the Guaranty (collectively referred to herein as the "Guaranty Documents") have been duly authorized by Mortgagor and all of the Guaranty Documents constitute the valid and binding obligations of the Mortgagor, enforceable in accordance with their terms. . 2. Partial Payment. If the Mortgagee shall receive from or on behalf of the Mortgagor any sum less than the fullamount then due and payable, the Mortgagee may, but shall not be obligated to, accept the same (regardless of any endorsement or condition expressed by Mortgagor with respect to such partial payment) and ifit elects to accept any such payment, it may hold the same or any part thereof, without liabilityfor interest, in a special account and it may from time to time apply the same or any part thereof to the Obligations or to the payment of any taxes, assessments, sewer or water charges or insurance premiums desirable to maintain the attorneys' lien of this Mortgage or to any expenses, including costs and reasonable fees and disbursements, incurred by the Mortgagee in attempting to collect any amount owing on the Obligations and in bringing foreclosure proceedings with respect to this Mortgage. The acceptance of partial payment shall in no way waive any right of Mortgagee to insistupon the full payment of all amounts due and owing. The acceptance of partialpayments after default, acceleration or maturity by the Mortgagee shallnot waive such default or acceleration. 2 P L 172 FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 06/14/2022 3. Insurance. (a) The Mortgagor will keep the premises insured against loss by fire for the benefit of the Mortgagee; the Mortgagor will assign and deliver the policies to the Mortgagee; and 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 premises or in so assigning and delivering the policies. All renewal policies shall be delivered, and premiums paid, at leastten (10) days before the expiration of the prior insurance policy. Anything herein to the contrary notwithstanding, no duty to maintain such insurance shall be implied against or imposed on the Mortgagee. Fire insurance shall be not less than the greater of (i) 100% of the full insurable value of the improvements on the premises or (ii)the Obligations. Fire insurance may be limited to 100% of the full insurable value of the improvements notwithstanding the amount of the Obligations ifthe insurance policy includes a full replacement cost guaranty. Mortgagor shall carry such additional insurance as Mortgagee shall request, including but not limited to,war risk, business interruption or, ifMortgagor undertakes any form of rehabilitation or reconstruction of the premises, builder's risk insurance. Mortgagor shall also at alltimes maintain general liabilityinsurance covering itsoperations in an amount not less than $1,000,000 .per occurrence, $2,000,000 aggregate, with reasonable deductibles, naming the Mortgagee as an additional insured. All insurance carriers are subject to prior approval of Mortgagee. (b) Ifthe Mortgagee by reason of such insurance receives any money for loss or damage, then the Mortgagee shall have the right in itssole discretion either to apply the proceeds of such insurance in reduction of the amount owed under the Guaranty and this Mortgage, or in lieu thereof to allow the provisions of Section 254 of the New York Real Property Law to apply to the determination of whether and how such proceeds shall be available to the Mortgagor. The Mortgagee shall not be obligated to see to the proper application of any amount paid over to the Mortgagor, and ifthe Mortgagee receives and retains insurance money for loss or damage to the premises, the lien hereof shall be reduced only by the amount of such insurance money received and retained by the Mortgagee. If any provision under this paragraph shall be interpreted by a court of competent jurisdiction as an unlawful waiver of any statutory right of a third party, then such provision shallbe deemed ineffective. All policies of insurance, including the unearned premiums paid thereon, (c) are assigned to the Mortgagee as further security for the Obligations and the lien of this hereby Mortgage shall continue as a lien against the proceeds of any such insurance. On Mortgagee's demand, Mortgagor will deliver to Mortgagee a (d) certificate of or other proof acceptable to Mortgagee showing thatthe fireor any other adequacy insurance coverage is equal to the percentage of insurable value so required. All insurance policies shall be in such form and amount, and with such (e) carriers, as is satisfactory to Mortgagee. All fire insurance policies shall contain the usual extended coverage (f) endorsement. Mortgagor shall notify Mortgagee within fourteen (14) days of the (g) occurrence of event rise to a right to make any claim under any such insurance policy. any giving 3 PL 1173 FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 06/14/2022 4. Alterations. The premises shall not be materially altered, removed or demolished without the consent of the Mortgagee. 5. Maintenance of Premises. The Mortgagor shall maintain the premises in good condition and repair, shall not commit or suffer any waste of the premises, and neither the value of the premises nor the lien of this Mortgage will be diminished or impaired in any way by any act or omission of the Mortgagor. The Mortgagor will not do or permit to be done to, in, upon or about said premises or any part thereof, anything that may in any way impair or depreciate the value thereof, or any part thereof, or weaken, diminish or impair the security of this Mortgage or increase any fire,casualty or other hazard tisk to the premises. Mortgagor shall comply with, or cause to be complied with, all statutes, ordinances and requirements of any governmental authority relating to the premises. The Mortgagor shall promptly repair, restore, replace or rebuild any part of the prernises now or hereafter subject to the lien of thisMortgage which may be damaged or destroyed by any casualty whatsoever, or which may be affected by any proceeding in the nature of condemnation. Mortgagor shall not seek, obtain or consent to any restrictive covenant, zoning change, variance, landmark designation or other similar matter which could have the effect of limiting the improvement, use, occupancy or transferability of the premises. Ifthe use of the premises constitutes, or at any time hereafter constitutes, a non- conforming use under any zoning ordinance, then Mortgagor may not take any action which would cause such non-conforming use tobe abandoned or waived, or which would cause the premises to lose the right to continue such non-conforming use. 6. Danger of Loss. If,in the opinion of the Mortgagee, the premises, or any improvement, fixture or personal property thereon, are in danger of destruction or deterioration, the Mortgagee may, without notice or demand, enter upon the premises and may perform such acts thereon or with respect thereto as itmay deem suitable for preservation or protection of the premises or such improvement, fixture or personal property. Mortgagee may thereafter leave the premises or hold possession thereof at itsoption, provided, however, that, ifprior advance notice or demand is required by law, Mortgagor agrees that five (5) days advance notice of intent to enter the premises shall at alltimes be deemed reasonable unless a shorter period is permitted by law. 7. Default. Upon the occurrence of any of the following, or any other default, hereunder, Mortgagor agrees that Mortgagee may take such action, without notice or demand, as itdeems advisable, to protect and enforce itsrights against Mortgagor and in and to the premises: afterdefault in the payment of any obligation under the Guaranty; 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 afterdefault upon request in furnishing a statement of the amount due on this Mortgage and whether any offsets or defenses exist against the Obligations. An assessment which has been made payable in installments at the application of the Mortgagor or lessee of the premises shall nevertheless, for the purpose of thisparagraph, be deemed due and payable in itsentirety on the day the first installment becomes due or payable or a lien. PL 174 FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 06/14/2022 O 8. Additional Defaults. In addition to the defaults set forth in paragraph 7, the occurrence of any one or more of the following events shall constitute a default under this Mortgage: (a) the failure to provide to the Mortgagee, within fifteen days after demand, copies of receipts showing payment of alltaxes, water rates, sewer rents and assessments; or (b) the actual or threatened demolition, removal or material alteration (other than a planned alteration as described in a building loan contract, if any, between Mortgagor and Mortgagee of even date herewith) of any portion of the premises without the written consent of the Mortgagee; or (c) the assignment of the rents of the premises or part thereof without the any written consent of the Mortgagee; or . (d) if the fixtures and equipment on said premises are not maintained in reasonably good repair; or (e) the failure to comply with any requirement or order or notice or violation of law or ordinance issued by any governmental department claiming jurisdiction over the premises within three months from the issuance thereof; or (f) if,on application of the Mortgagee, two or more fire insurance companies lawfully doing business in the State of New York refuse to issue policies insuring the buildings or 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 or articles of persona1property of equal value and suitability, owned by Mortgagor free of security interests, liens or other encumbrances thereon and free from any reservation of titlethereto; or days' (h) after thirty 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 an Event of Default, as defined in the Note, occurs, or if the Mortgagor failsto keep, observe and perform any of the other covenants, conditions or agreements contained in the Guaranty Documents, or if an event of default occurs under any of them, or if any representation contained therein shall be false, or if any warranty contained therein shall be breached; or (j) the use of the premises in any way that violates any governmental law, ordinance, rule, regulation or requirement or which could result in the commencement of forfeiture proceedings with respect to the premises; or 5 PL 175 FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 06/14/2022 (k) ifany representation, warranty, certificate, statement, or financial data heretofore or hereafter furnished by or on behalf of the Mortgagor pursuant to or in connection with thisMortgage (including, without limitation, representations and warranties contained herein or in the Guaranty Documents) proves to be or have been false or misleading in any material respect or to have omitted any substantial contingent or unliquidated liability or claim against, the Mortgagor; or (1) in the event any action is commenced for the forfeiture of all or any part of the premises or to foreclose upon any mortgage, lease, or lien affecting the premises which is,in whole or in part,either superior or subordinate to the lien of this Mortgage; or (m) ifthe intended use of the premises existing as of the date hereof shall hereafter be changed in any material respect; or (n) if,by order of a court of competent jurisdiction, a trustee, receiver or liquidator of the premises, or any part thereof, shall be appointed, or if atany time the Mortgagor, or any partner of Mortgagor (ifa partnership) or any principal under the Guaranty shall be insolvent, shall grant a general assignment for the benefit of creditors, shall be placed in receivership, shall file or have filed against ita petition for relief under the United States Bankruptcy Code, or shall be dissolved, or if the filing of any petition by or against the Mortgagor with respect to any of the foregoing shall occur; or (0) if finaljudgment for the payment of money shallbe rendered against Mortgagor or any principal under the Guaranty, in an amount in excess of $25,000.00, and Mortgagor or such guarantor shall not discharge the same or cause itto be discharged within sixty (60) days from the entry thereof, or shall not appeal therefrom or from the order, decree or process upon which or pursuant to which said judgment was granted, based or entered, and secure and maintain a stay of execution of such judgment; or (p) ifit shall be illegalfor Mortgagor to pay any tax, assessment, charge, fee, rent or other expense required to be paid under the Guaranty or this Mortgage or ifthe payment of such tax, assessment, charge, fee,rent or other expense by Mortgagor would result in the violation of applicable usury laws; or (q) ifMortgagor, or any principal under Guaranty shall be in default under any of the terms, covenants or conditions of any loan, mortgage, instrument or document evidencing, securing or executed in connection with any other Obligations owed by Mortgagor or such guarantor to Mortgagee. 9. Sale in One Parcel 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 If,in a foreclosure sale, the premises are not sold in one parcel, then Mortgagee shall be permitted to have the same sold in such order as Mortgagee determines, at the same time or separately, in Mortgagee's sole discretion. Mortgagee shallnot be required to obtain a deficiency judgment, or any other court approval, after the sale of any parcel in order for any other parcel to be sold. Neither Mortgagee PL 176 FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 06/14/2022 nor any referee shall be required to submit any report to the court or account for the proceeds from the sale of any parcel until allparcels are sold. Mortgagee shall have the right, if itso elects, to foreclose thisMortgage as to a portion of the premises without foreclosing this Mortgage as to the remainder of the premises, and upon doing so this Mortgage shall remain a valid and enforceable lien against the portion of the premises not subject to such foreclosure for the full amount remaining owed to Mortgagee. If the Obligations are secured by separate mortgages on different properties, then the Mortgagee may likewise foreclose said mortgages in such order as itdetermines, either at the same time or separately, in Mortgagee's sole discretion. 10, Collection Costs. In any action to foreclose thisMortgage, or any action to collect any debt secured by this Mortgage or created hereunder, or any other action arising hereunder, or any action to foreclose any interest or lien prior in right or claimed to be prior in right to allor part of the lien of the Mortgage, Mortgagor shall be liablefor and shall pay to Mortgagee, in addition to any other liabilitywhich may be established in such action, all of Mortgagee's court costs and attorneys fees in the prosecution or defense of such action, plus . .. interest thereon at the Alternate Interest Rate (as defined below), and the amount thereof shall be secured hereby. Such attorneys fees shall include, in addition to fees incurred directly in such action or proceeding, any reasonable attorneys fees incurred, before or after the commencement of such action or in the course of Inedification or work- proceeding, negotiating any extension, out of the Guaranty and any expenses customarily billed by such attorneys. 11. Counterclaims. Mortgagor, in any action to foreclose this Mortgage, hereby waives the right to interpose any counterclaim against Mortgagee, allof which counterclaims must be asserted in a separate action against Mortgagee which shall not be consolidated with such foreclosure action. 12. Other Litigation and Related Expenses. If any action or proceeding be commenced (except an action to foreclose the Mortgage or to collect any debt secured hereby), to which action or proceeding the Mortgagee is made a party by virtue of itsstatus as holder of the of the other or in which itbecomes · Guaranty, this Mortgage or any Guaranty Documents, necessary to defend or uphold the lien of this Mortgage including, without limitation, any condemnation or eminent domain proceedings, all sums paid by the Mortgagee for the expense of any such litigation (including reasonable attorneys fees and expenses customarily billed by such attorneys) shall be paid by the Mortgagor, together with interest at the Alternate Interest Rate, and shall be a lien on the premises, prior to any right, or titleto, interest in or claim upon said premises attaching or accruing subsequent to the lien of this Mortgage, and shall be deemed to be secured by this Mortgage. 13. Receiver. The holder of this Mortgage, in any action to foreclose it,shall be entitled to the appointment of a receiver. Mortgagee shall have the right to nominate a receiver for appointment by the court, but such nomination shall in no way cause the receiver to be an agent of Mortgagee, nor shall Mortgagee be liable for any actions taken by such receiver. Under no circumstances shall Mortgagee be considered a mortgagee in possession by virtue of the appointment of a receiver nominated by Mortgagee. 7 P L 177 FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 06/14/2022 14. Continuance of Obligation. The obligation of this Mortgage and the Guaranty shall continue until the entire debt owed thereon is paid and all obligations under the Guaranty have been fulfilled,notwithstanding any action or actions of partial foreclosure which may be brought to recover any amount or for taxes, assessments, water rates, sewer rents or fire insurance premiums due and payable hereunder. 15. Taxes. The Mortgagor will pay all taxes, assessments, sewer rents or water rates, and in default thereof, the Mortgagee may pay the same. Mortgagee may, from time to time in its sole discretion, filegrievances, appeals, tax certiorari proceedings or similar legal proceedings seeking to reduce the real property tax assessment for the premises and the costs of any such proceedings including, without limitation, court costs, attorneys fees and the expenses of appraisals and other experts, shall be paid firstout of any recovery in such action and any remaining amount shall be paid by Mortgagor. Mortgagor will co-operate with Mortgagee in prosecuting any such proceeding. Mortgagee shall have no liability to Mortgagor with respect to any such proceeding or the resolution thereof by settlement or otherwise, itbeing understood that . Mortgagor may protect itsinterests by bringing such proceeding itself. Such costs, with interest, shall be a lien on the premises prior to any right or titleto, interest in or claim upon said premises attaching or accruing subsequent to the lien of this Mortgage, and shall be deemed to be secured by thisMortgage and Mortgagor hereby assigns to Mortgagee as additional security for all amounts due and owing under the Guaranty or this Mortgage any and allrefunds of real estate taxes arising out of any tax grievance, tax certiorari proceeding or similar action with respect to any period from and after the date of this Mortgage. 16. Tax and Insurance Escrow. At the option of the Mortgagee, the Mortgagor shall pay, on the firstday of each month a sum equal to one-twelfth (1/12) of the annual insurance premiums, real estate taxes, water rates and sewer rates to be held and applied by the Mortgagee to the payment of said items; and in addition thereto, Mortgagor will pay to and deposit with Mortgagee such additional reserve as may be necessary so that such sum, added together with the monthly payments, shall make up a fund sufficient to pay allthe aforesaid items on their respective due dates and also sufficient to establish a cushion equal to one-twelfth of the annual amount payable. The determination of the amount payable under this paragraph by Mortgagor may be based upon either the single item or aggregate method of analysis, at Mortgagee's option. Such escrow account shall not bear interest and may be mingled with the general funds of the Mortgagee; and inthe event of any default in the monthly payment of one-twelfth of such. insuraDce premiums, taxes, water rates and sewer rates,or any failure to pay on demand any additional sums necessary to fully discharge said items, the same shall constitute in all respects a default in the tenns hereof and, at the option of the Mortgagee, all of the liabilitiesof the Mortgagor on the Guaranty and this Mortgage, whether matured or unmatured, absolute or contingent, shall become immediately due after any such default for a period of five days without notice or demand. In the event of any default under thisMortgage or the Guaranty, the amount held by the Mortgagee pursuant to this paragraph may be applied, without further notice or demand, in reduction of the Obligations. 17. Application of Escrow Funds. If there shall be a default under any of the provisions of this Mortgage resulting in the public sale of the premises covered hereby or ifthe Mortgagee shall acquire the premises otherwise after default, the Mortgagee shall have the right 8 PL 178 FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 06/14/2022 to apply the balance of any funds held by itin escrow, either as a credit against the balance of the Obligations then remaining unpaid or to the payment of any other charges, without any obligation to account therefor to the Mortgagor. 18. Proof of Payment. Mortgagor shall deliver to Mortgagee, within 30 days after the due date thereof, copies of paid receipts for all taxes, special assessments, water and sewer charges applicable to the premises. 19. Protective Advances. If the Mortgagee shall pay or incur any expense.in order to maintain the security of this Mortgage or to cure any default under the Guaranty Documents, including, without limitation, the payment of any real estate taxes, water rates, sewer rents, assessments, insurance premiums, or expenses of repairing, securing, or remedying any adverse condition on the premises, any such payments shall bear interest at the Alternate Interest Rate, but not to exceed the maximum rate allowed by law, and shall,with such interest, be secured by this Mortgage. Nothing contained herein shall require Mortgagee to incur any such expenses. Notwithstanding any other provision hereof, the Mortgagee may pay any such items without advance notice to the Mortgagor if Mortgagee determines in itssole discretion that itwould be appropriate to do so-If any such sums are paid by Mortgagee then Mortgagee may, at itssole option and in addition to any other rights itmay have, declare the entire amount due and owing under the Guaranty and this Mortgage, including such sums as may have been paid as aforesaid, . and any and allother sums which shall be payable hereunder, due and payable with interest, or place such sums with an attorney for collection without accelerating the Obligations, whereupon Mortgagor shall be liable for allattorneys fees, expenses customarily billed by such attorneys, and court costs incurred in such collection. 20. Payment of Other Liens. IfMortgagor failsto pay when due any amounts owed on any mortgage or similar lien superior or subordinate to the lien of this Mortgage when such installment becomes due, then Mortgagee may pay such installment, and Mortgagor on demand will repay the amount so paid with interest thereon at the Alternate Interest Rate, and the same shall be added to the Obligations and secured by this Mortgage. Mortgagor covenants that it shall with allof the terms and conditions of any such superior or subordinate mortgage or lien. comply The failure to do so shallconstitute an event of default hereunder. 21. Statement of Amount Due. The Mortgagor within five days upon request in persori 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 Obligations or any of Mortgagee's rights under any of the Guaranty Documents. 22. Warranty of Title. The Mortgagor warrants the titleto the premises, subject only to the existing First Mortgage and Second Mortgage. 23. Mortgage Priority. Mortgagor warrants that this Mortgage is and shall remain a third mortgage lien on the premises. Mortgagor shall not suffer or allow any other or further restrictions, encumbrances or encroachments against the premises without the liens, easements, prior written consent of Mortgagee. 9 PL 179 FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 06/14/2022 24. Other Liens. Mortgagor covenants that itshall notify Mortgagee in of writing any mechanics liens or any other liens asserted against the premises of which itbecomes aware. IfMortgagor shall failto eliminate such liens by bonding or otherwise, within ninety (90) days of the date itbecomes aware of such liens, Mortgagee, in itssole discretion, may declare the entire amount due and owing under the Guaranty and this Mortgage immediately due and payable with interest. 25. Assignment of Rents. The Mortgagor hereby assigns to the Mortgagee the rents, issues and profits of the premises as further security for the payment of allamounts due and owing from time to time under the Guaranty and this Mortgage, and the Mortgagor grants to the Mortgagee the right to enter upon and to take possession of the premises for the purpose of collecting the same and to letthe premises or any part thereof, and to apply the rents, issues and profits, after payment of allnecessary charges and expenses, on account of the Obligations. This assignment and grant shall continue in effect until the Obligations is paid in full. The Mortgagee hereby waives the right to enter upon and to take possession of 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 under any of the covenants, conditions or agreements contained in the Guaranty Documents,