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FILED: MONTGOMERY COUNTY CLERK 02/10/2023 12:56 PM INDEX NO. EF2022-477
NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 02/10/2023
EXHIBIT E
FILED: MONTGOMERY COUNTY CLERK 02/10/2023 12:56 PM INDEX NO. EF2022-477
NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 02/10/2023
164218 Page 2 of 12
. SL COUNTY TITLE/ESCROW
(84S}794-3050
MORTGAGE TlRE # A A- O/O7
THIS MORTGAGE made this 7th day ofApril, 2010, between Little Falls Garden artments LLC,
a New York limited liability with an office at 133 Main Street, Mountaindale, NY 12763
company
("Mortgagor") and Habib American Bank, located at 99 Madison New York, NY 10016
Avenue,
("Mortgagee");
WITNESSETH that to secure payment of a principal indebtedness in the sum of THREE
HUNDRED THIRTY-TWO THOUSAND THREE HUNDRED SIXTY-SEVEN DOLLARS
(S332,367.00) (the "Loan") lawful money of the United States, due in accordance with a certain written
promissory note(hereinafter "Note") dated today in the same amount as the Loan, and also tosecure payment
of all interest, late charges, and other sums, charges,
premiums, indemnification amounts, or other amounts,
direct or indirect, absolute or contingent, joint or several, liquidated or not due or to become due,
liquidated,
including future advances, to Mortgagee under the Note and this mortgage and all extensions, renewals,
modifications, substitutions, and replacements of either of them, and to secure performance by Mortgagor
of all of its other obligations and covenants under the Note and this mortgage, Mortgagor has mortgaged,
given, granted, released, assigned, transferred, given a security interest in, and set over unto Mortgagee, and
by these presents does hereby mortgage, give, grant, release, assign, transfer, give a security interest in, and
set over unto Mortgagee, its successors and assigns forever, the following described property and rights:
ALL that certain plot, piece or parcel of land, more particularly "A"
described on Schedule attached
hereto and made a part hereof and the buildings and improvements now or hereinafter located thereon (the
"Improvements")-said premises being hereinafter referred to as the "Premises";
SAID premises also being commonly known as 759 East Monroe Street Extension, Little
Falls, NY, AND AS SECTION 115.45, BLOCK 1, LOT 2.2, and being and intended to
be the same premises conveyed to Mortgagor, as grantee, by Mortgagor, as Grantor, by a
certain deed dated today and intended to be recorded simultaneously herewith.
THE real property covered bythis mortgage is NOT principally improved or to be improved
by one or more structures containing in the aggregate not more than six residential dwelling
units, each having their own separate cooking facilities.
TOGETHER WITH all rights, title and interest of the Mortgagor in and to the following property,
rights and interests(the Premises and the Improvements together with such property, rights and interest being
hereinafter collectively called the "Mortgaged Property"):
(a) alG:asements, rights-of-way, gores of land, streets, ways, alleys, passages, sewer rights, and all
estates, rights, titles, interests, privileges, liberties, tenements, hereditaments, and appurtenances of any
nature whatsoever, in any way belonging, relating or pertaining to the Mortgaged Property and all land lying
in the bed of any street, road or avenue, opened or proposed, in front of or adjoining the Premises to the
center line thereof;
(b) all machinery, apparatus, equipment, furniture, fittings, fixtures and other property ofevery kind
and nature whatsoever owned by the Mortgagor in connection with the Mortgaged Property, or in which the
Mortgagor has or shall have an interest, now or hereafter located upon the Mortgaged Property, and usable
in connection with the present or future operation and occupancy of the Mortgaged Property, and all
buildings, equipment, materials and supplies of any nature whatsoever owned by and now or hereafter
located upon the Mortgaged Property, as to which, and as to all of the Mortgaged Property, this Mortgage
constitutes a security agreement under the Uniform Commercial Code (in addition to and not in lieu of any
other security agreement between the parties);
(c) all awards or payments, including interest thereon, and the right to receive the same, which may
be made with respect to the Mortgaged Property, whether from the exercise of the right of eminent domain
(including any transfer made in lieu of the exercise of said right), or for any other injury to or decrease in the
value of the Mortgaged Property;
(d) all leases and other agreements affecting the use or occupancy of the Mortgaged Property now
or hereafter entered into, and the right to receive and apply the rents, issues and profits of the Mortgaged
Property to the payment of the aforementioned indebtedness;
(c) all proceeds of any unearned premiums on any insurance policies c the Mortgaged
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. Property, inclùding, witho t limitation, the right to receive and apply the proceeds of any insurance,
judgments, or settlements made in lieu thereof, for damage to the Mortgaged Property;
(f) the right, in the name and on behalf of the Mortgagor to appear in and defend any action or
proceeding brought with respect to the Mortgaged Property and to commence any action or proceedings to
protect the interest of the Mortgagee in the Mortgaged Property.
TO HAVE AND TO HOLD the above granted and described Mortgaged Property unto and to the
proper use and benefit of the Mortgagee, and the successors and assigns of the Mortgagee, forever.
AND the Mortgagor, for further securing the payment of said Note, together with interest thereon
and other charges, amounts, expenses due under such Note or this mortgage, hereby mortgages to the
Mortgagee, and grants Mortgagee a security interest in, the Mortgaged Property.
And the Mortgagor covenants with the Mortgagee as follows:
1. CROSS DEFAULT; APPLICATION OF FUNDS. A default by Mortgagor either under this Mortgage,
or under any other mortgage (whether or not Mortgagee is mortgagee thereunder) on the real property
subject to this mortgage, or under any other loan obligation and/or agreement between Mortgagor and
Mortgagee constitutes a default by Mortgagor under this Mortgage and/or under the Note, and all any other
documents executed in connection with this loan by or on behalf of Mortgagor to Mortgagee and/or by any
guarantor and/or any person/entity affiliated or related in any way to Mortgagor or any guarantor
(collectively the "Loan Documents") . A default by Mortgagor under any of the Loan Documents
constitutes a default by Mortgagor under this mortgage, the obligation thereby secured, and every other loan
obligation and/or agreement between Mortgagor and Mortgagee. Notwithstanding any contrary provision
elsewhere in this instrument, at any time that Mortgagee is holding any other mortgage(s) securing either (a)
the same, or a different portion of, the indebtedness secured by this Mortgage, or (b) any other indebtedness
or obligation/loan of Mortgagor, Mortgagee shall have the sole discretion to determine how to apply wholly
or partially any payments made by, or on behalf of, Mortgagor to and among each indebtedness, obligation,
or loan, and/or portion of any of same, and/or mortgage pursuant to which any amounts (whether monthly
payments, overdue principal, late charges, taxes, insurance premiums, and/or any other amounts or items)
are due.
2. Mortgagor's sole member has authorized execution of this mortgage.
3. LATE CHARGES. In the event that any payment shall become overdue for a period in excess of fifteen
charge"
days after
the due date, a "late of FIVE per cent of each dollar ($1.00) so overdue will be charged
by the Mortgagee for the purpose of defraying the expense incidental to handling such delinquent payment,
and such late charges are also secured by this Mortgage.
4. PAYMENT. The Mortgagor promises to pay the principal and interest, and/or any other amount, due
under the Note and/or other obligation secured by this Mortgage, when due and payable, plus all other
indebtedness secured by this Mortgage.
5. WARRANTY OF TITLE. The Mortgagor warrants the title to the Mortgaged Property, and warrants
and represents that the full amount owed as described above is secured by this Mortgage and that this
Mortgage is a valid first mortgage lien on, and security interest in, the Premises and Mortgaged Property.
6. INSURANCE. The Mortgagor will keep the buildings and improvements on the Mortgaged Property, as
coverage"
hereinbefore provided, insured against loss by fire and the perils covered by the usual "extended
endorsement, (and if this Mortgage includes personal property, said insurance shall include a "Lender's Loss
Payable" hundred
clause) in an amount to be approved by the Mortgagee, not exceeding in the aggregate one
percent (100%) of their full insurable value, and in companies to be approved by the Mortgagee, and will
on demand exhibit to the Mortgagee receipts evidencing payment of the premiums for such insurance and
the Mortgagor will assign and deliver the policy or policies of such insurance to the Mortgagee, which policy
or policies shall have endorsed thereon the standard New York Mortgagee Clause in the name of the
Mortgagee in such manner and form as approved by the Mortgagee, that the Mortgagee shall hold such policy
or policies as collateral and further security for the payment of the indebtedness and interest secured by this
Mortgage; and, in default of so doing, the Mortgagee may procure such insurance, and pay the premiums
therefor, and in such event the Mortgagor will on demand pay to the Mortgagee such premiums so paid, with
interest from the date of payment, and the same shall be deemed to be secured by this Mortgage and shall
be collectible thereupon in like manner as the principal monies; and, should the Mortgagee by reason of such
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insurance receive any sum or sums
of money for damage by the perils insured against, such sums may be
retained and applied
by the Mortgagee to payment of the indebtedness and interest secured by this Mortgage,
or the same may be paid over either wholly or in part to the Mortgagor for the repair of said buildings or for
the erection of new buildings in their place, or for any other purpose or object satisfactory to the Mortgagee,
and, if the Mortgagee receives and retains insurance money for such damage, the lien of this Mortgage shall
be affected only by the reduction of the amount of said lien by the amount of insurance money received and
retained by said Mortgagee. If the Mortgaged Property is determined to be in a flood hazard area under the
Flood Disaster Act of 1973, the Mortgagor must provide the Mortgagee with insurance against loss or
damage to the Mortgaged Property by flood to be written by a Company, on such terms, in such form and
for such periods and amounts, as may be satisfactory to Mortgagee.
7. TAXES. The Mortgagor will pay all taxes, including corporate franchise taxes, if applicable, assessments
and/or water rates and/or sewer rates and/or any and all taxes, charges, assessments which are applicable to
the use and/or occupancy and/or existence of the Mortgaged Property; and in the event that the Mortgagor
fails to pay same, Mortgagee may (but is not obligated to) pay same and the Mortgagor will, on demand, pay
to the Mortgagee any amounts so paid by the Mortgagee with interest from the day of payment, and the same
shall be deemed to be secured by the Mortgage and shall be collectible thereupon in like manner as the
principal monies.
8. ESCROWS FOR
TAXES, INSURANCE. Notwithstand ing any contrary provision of this mortgage,
upon written request
from mortgagee, at any time and/or from time to time at Mortgagee's sole discretion
during the life of this mortgage, mortgagor shall pay to mortgagee on or before the first day of each month
or such other day of the month selected by mortgagee, a sum equal to one-twelfth of the estimated annual
amount of all taxes, assessments, water, and/or sewer and/or comparable charges, and of all premiums for
insurance required hereunder. Mortgagee in its sole discretion shall determine the necessary and/or
fractional amounts to be deposited so that, as of one month prior to the due dates of each such obligation,
mortgagee shall hold sufficient funds to timely and fully pay the obligation or installment of same.
Mortgagee shall hold amounts payable hereunder without interest. Mortgagee shall apply such amounts to
payment of the obligations to which the amounts
relate, and, at mortgagee's option, in such order or priority
as mortgagee shall determine, the dates on which
on or before the same or any of them would delinquent.
If at any time before the due
date of any of such obligations, mortgagee determines that the amounts on
deposit do not suffice to timely and fully pay any such obligation, then mortgagor shall deposit the amount
of the deficiency with mortgagee within ten (10) days after demand. This paragraph shall not be deemed to
affect any right or remedy of mortgagee under this mortgage or under any statute or rule of law to pay such
amount and to add the amount so paid to the outstanding debt hereby secured. If there is a default under this
mortgage, mortgage may, at its option and without notice to mortgagor, apply any funds held under this
paragraph in payment of any amounts due under this mortgage. Any amount(s) determined by Mortgagee
to be due hereunder (whether single or recurring or otherwise) shall be payable upon not less than five (5)
business days notice from Mortgagee; one or more payments may be specified in any such notice.
9. NO ALTERATIONS. No building or improvement presently on or hereinafter constructed on the
premises shall be removed, demolished or altered in such a manner as to adversely affect its structural
strength or its value, without the consent of the Mortgagee.
10. ESTOPPEL CERTIFICATE. The Mortgagor, within five (5) business days upon request in person or
written notice will furnish a written statement duly acknowledged of the amount due on this Mortgage and
whether any offsets or defenses exist against the mortgage debt.
11. SECTION 13 OF THE LIEN LAW. The Mortgagor will receive the proceeds of indebtedness secured
by this Mortgage, subject to the trust fund provisions of Section 13 of the Lien Law.
12. NO RELEASE OR DISCHARGE UNTIL FULL PAYMENT; RIGHT TO RELEASE ANY
PORTION OF THE PROPERTY.. Until the full payment of all indebtedness evidenced by the Note with
interest at the rate therein
specified, (A) regardless of any subsequent agreement with any other person, firm
or corporation modifying, amending, altering or changing the terms of the Note or any agreement referred
to in said Note or this Mortgage, or spreading the lien thereof, or consolidating the same with any other
mortgage, the obligations of the Mortgagor to pay the indebtedness and interest at the rate specified in the
Note secured by this Mortgage shall not be released or discharged or affected in any way, and/or (B)
Mortgagor shall not, at the sole discretion of the Mortgagee, be entitled to a release or satisfaction of the lien
of this mortgage with respect to any of the Mortgaged Property. Notwithstanding the foregoing, Mortgagee
may release any portion ofthe Mortgaged Property for such consideration as Mortgagee may require without,
as to the remainder of the Mortgaged Property, in any way impairing or affecting the lien or prior t
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instrument, or improving the position ofany subordinate lien holder with respect thereto, except to the extent
that the obligations hereby secured shall have been reduced by the actual monetary consideration, if any,
received by Mortgagee for such release, and may accept by assignment, pledge, or otherwise any other
property in place thereof as Mortgagee may require without being accountable for so doing to any other lien
holder; and this instrument shall continue as a lien and security interest in the remaining portion of the
Mortgaged Property.
13. BOOKS, RECORDS AND FINANCIAL STATEMENTS. The Mortgagor wilI at all times keep
proper books and records and accounts in accordance with generally accepted accounting principles
consistently applied and shall within five (5) business days of demand:
13.1. permit the Mortgagee or its representatives to examine such books and records and all
supporting vouchers and data at any time from time to time on request, at its offices, or at such other location
as may be mutually agreed upon.
13.2. provide a balance sheet truly presenting the financial condition of the Mortgagor as of the
close of each fiscal year and statements of cash flow truly presenting the results of operations of the
Mortgagor for such fiscal year, and a statement of changes in financial position, all prepared in accordance
"reviewed"
with generally accepted accounting principles consistently applied and by independent certified
public accountants acceptable to the Mortgagee, together with, if requested, referred to in the preceding
subparagraph, a certificate of the independent certified public accountants who reviewed said annual report
statmg that in making the examination necessary to said review of the annual report they have obtained no
knowledge of any default by the Mortgagor in the performance of any of the covenants, conditions,
agreements or warranties under this Mortgage and the Note, or, ifthey shall have obtained knowledge of any
such default, the nature thereof.
13.3. within five business days after the close of each fiscal quarter, provide to Mortgagee a
compiled statement of fmancial position truly presenting the financial condition of the Mortgagor as of the
close of such fiscal quarter and compiled statements of operations and retained earnings and changes in
financial position truly presenting activities of the Mortgagor for such fiscal quarter, all prepared in
accordance with generally accepted accounting principles consistently applied and verified by the President
and Treasurer of the Mortgagor.
13.4. provide a certificate
of the President, a Vice President, or the Treasurer of the Mortgagor with
knowledge of the facts
in question stating that a review of the activities of the Mortgagor to date during the
fiscal year in question
has been made under [his/her] supervision with a view to determining whether the
Mortgagor has fulfilled all of its obligations under this Mortgage and the Note, and that the Mortgagor has
fulfilled all such obligations, or, if not, specifying all defaults of which [he/she] has knowledge.
14. INDEMNIFICATION. Mortgagor hereby covenants and agrees, at its sole cost and expense, to
indemnify, protect, defend and save harmless Mortgagee from and against any and all damages, losses,
liabilities, obligations, penalties, claims, litigation, demands, defenses,judgments, suits, actions, proceedings,
consultants'
costs, disbursements and/or expenses (including, without limitation, attorneys', and experts'fees,
expenses and disbursements) ofany kind or nature whatsoever by whomeyer asserted which may at any time
be imposed upon, incurred by or asserted or awarded against Mortgagee relating to, resulting from or arising
out of the past, present or future (a) use of the Mortgaged Property for the storage, treatment, generation,
transportation, processing, handling, production or disposal of any Hazardous Substance or as a landfill or
other waste disposal site or for military, manufacturing or industrial purposes; (b) presence of any Hazardous
Substances or a Release or the threat of a Release on, at or from the Mortgaged Property; c) appropriate
investigative, containment, removal, clean up and other remedial actions with respect to a Release or the
threat of any Releaseon, at or from the Mortgaged Property; (d) human exposure to any Hazardous
Substance or nuisances
of whatever kind to the extent the same arise from the condition of the Mortgaged
Property or the ownership, use, operation, sale, transfer or conveyance thereof; (e)violation ofany applicable
environmental law; or (f) noncompliance with any environmental permit.
14.1. The liability of Mortgagor to Mortgagee hereunder shall in no way be limited, abridged,
impaired or otherwise affected by (I) any amendment or modification of the Note; (ii) any increase in the
amount ofthe Note or the extension of any additional debt to the Mortgagor; (iii) any extensions of time for
payment or performance required by the Note; (iv) the release of Mortgagor, any guarantor of this loan or
any other person from the performance or observance of any of the agreements, covenants, terms or
conditions contained in the Note or this Mortgage; (v) any exculpatory provision contained in any of the
Loan Documents limiting Mortgagee's recourse to property encumbered by the Mortgage or to any other
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security or limiting Mortgagee's rights to a deficiencyjudgment against Mortgagor; (vi)any applicable statute
of limitations; (vii) any investigation or inquiry conducted by or on the behalf of Mortgagee or any
information which Mortgagee may have or obtain with respect to the environmental or ecological condition
of the Mortgaged Property; (viii) the sale, assignment or foreclosure of the Note or this Mortgage; (ix) the
sale, transfer, conveyance or lease of all or part of the Mortgaged Property; (x) the dissolution or liquidation
of Mortgagor; (xi) the death or legal incapacity of the Mortgagor; (xii) the release or discharge, in whole or
in part, of the Mortgagor in any bankruptcy, insolvency, reorganization, arrangement, readjustment,
composition, liquidation or similar proceeding; or (xiii) any other circumstances which might otherwise
constitute a legal or equitable release or discharge, in whole or in part, of Mortgagor under this Mortgage.
Substance"
14.2. For purposes of this
paragraph, "Hazardous means, without limitation, any
flammables, explosive, radon, radioactive materials, asbestos, urea formaldehyde foam insulation,
polychlorinated-biphenyls, petroleum and petroleum-based products or by-products, methane, hazardous
materials, medical waste, hazardous wastes, hazardous or toxic substances or related materials, as defined
in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. Sections 9601,etseq.), the Hazardous Materials Transportation Act, as amended (49U.S.C. Sections
1801,et seq.), the Toxic Substances Control Act, as amended (15 U.S.C. Sections 2601,et seq.), Articles 15
and 27 of the New York State Environmental Conservation Law and in the regulations promulgated
Substance"
thereunder. The term "Hazardous does not include consumer products which are stored and used
by a consumer with reasonable care and for their intended use.
"Release"
14.3. For purpose of this paragraph, means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment,
including the abandonment or discarding of barrels, containers, and other receptacles containing any
Hazardous Substance.
15. MORTGAGE TAX. Mortgagor agrees that in the event that mortgage recording tax is required for any
reason whatsoever, Mortgagor will pay said tax on demand to Mortgagee; and if Mortgagor fails to pay said
tax, the Mortgagee may pay same. The amounts paid by the Mortgagee, plus interest at the rate set forth in
the Note from the date of payment, shall be deemed to be secured by this Mortgage and shall be collected
in like manner as the principal monies.
16. DEFAULT.
16.1. Provided that this shall not be deemed to limit or modify
paragraph any of the terms of the
Note or rights of the Mortgagee thereunder, the Mortgagee shall be entitled, at its option, to declare the
Mortgagor in default and the whole of the indebtedness and interest to be immediately due and payable:
(a) añer failure to pay any installment of principal or of interest, and/or any other amount due under the
obligation secured by this mortgage, for fifteen days (15) days
(b) after failure to pay any tax, water rate or assessment, or to exhibit to the Mortgagee receipts evidencing
payment thereof, within ten (10) business days aher notice and demand;
(c) aher failure to pay any premiums on the policies insuring the buildings and improvements on the
Mortgaged Property, or to exhibit to the Mortgagee receipts evidencing payment thereof, or to assign and
deliver such policies to the Mortgagee, or to reimburse the Mortgagee for premiums paid on such insurance,
within ten (10) business days after notice and demand;
(d) after failure, upon request, to furnish a statement of the amount due on this Mortgage and whether any
offsets or defenses exist against the mortgage debt, as hereinbefore provided;
(e) upon the actual or threatened removal or demolition of any building or improvement on the Mortgaged
Property or the commission of any waste on the Mortgaged Property;
(f) upon the actual or threatened removal by anyone of any fixtures subject to the lien of this Mortgage;
(g) upon failure of the Mortgagor to notify the Mortgagee in writing within five (5) business days aher loss
or damage caused by fire or other casualty to the Mortgaged Property, or any part thereof, and prior to
making of any repairs tliereto, or the refusal of the Mortgagor to permit the Mortgagee to inspect such s
or damage prior to the making of any repairs thereto;
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(h) upon failure to pay any Mortgage tax now due or hereafter due on this Mortgage within five (5) business
days after notice and demand given by the Mortgagee to the Mortgagor;
(I) in the event that the Mortgagor or any owner of an interest in Mortgagor conveys, sells, assigns,
encumbers, or otherwise transfers, whether by operation of law or otherwise, including a voluntary
conveyance as a result or in lieu or in anticipation of the exercise of the right of condemnation or eminent
domain, either the Mortgaged Property, or any part thereof, or any interest therein or in Mortgagor, without
the prior written consent of the Mortgagee;
(j) in the event that the Mortgagor assigns the rents, or any part thereof, of the Mortgaged Property or
accepts prepayment of rents with respect to all or any part of the Mortgaged Property covering a period
greater than two (2) month(s);
(k) upon failure of the Mortgagor to cure any violation of any governmental requirements respecting the
Mortgaged Property including, without limitation, any laws, rules or regulations governing hazardous waste
removal and cleanup or arising from an intentional or unintentional action or omission of the Mortgagor or
any previous owner and/or operator of the Mortgaged Property, within ten (10) business days after receipt
of written notice and demand from the Mortgagee; or, if in the reasonable judgment of the Mortgagee, any
said violation cannot be cured within said ten (10) business day period, failure to either commence a cure
within said ten (10) business day period and/or to pursue said cure diligently until completed;
(1) upon the breach by the Mortgagor of any covenant or provision contained in this Mortgage or in the Loan
Documents, or upon the default in any debt instrument, term loan agreement, building loan agreement,
environmental indemnification agreement or any instrument of collateral security delivered by or on behalf
of the Mortgagor to the Mortgagee;
(m) upon the imposition of any mortgage, liens, charges or encumbrances upon the Mortgaged Property after
the date hereof, which mortgage, liens, charges or encumbrances are not released, vacated, suspended,
discharged, or bonded to the satisfaction of the Mortgagee within ten (10) business days oftheir imposition;
(n) in the event that the Mortgagor fails to submit to the Mortgagee the financial statements as required
elsewhere herein, and continuance ofsuch failure for fifteen (15) business days after receipt of written notice
from the Mortgagee;
(0) voluntary suspension of all or a substantial part of its business as a going concern by the Mortgagor,
insolvency ofthe Mortgagor or of any entity or person (hereinafter referred to as a "Guarantor")guaranteeing
payment of the indebtedness; commencement of any proceedings under any bankruptcy or insolvency law
by the Mortgagor or any Guarantor; an assignment for the benefit of creditors by the Mortgagor or any
Guarantor; application for consent to the appointment of any receiver or trustee or custodian for the
Mortgagor or any Guarantor of all or any substantial part of the properties of either; or assignment to an
agent authorized to liquidate any substantial part of the assets of the Mortgagor or any Guarantor;
(p) commencement of any proceedings under any bankruptcy or insolvency law against the Mortgagor orany
Guarantor, which proceedings are involuntary in nature, and failure to have said proceedings dismissed
within ten business days after the commencement thereof; or issuance of a writ or warrant or attachment of
similar process against all or any substantial portion of the property of the Mortgagor or any Guarantor, and
failure to have such writ or attachment of similar process released or bonded within ten business days after
its issuance;
(q) default beyond any grace perio'd pursuant to the terms and conditions of any other loan by Mortgagee
to Mortgagor;
(r) if any information furnished by or any representation or warranty of Mortgagor or of any Guarantor, or
any representative of Mortgagor or ofany Guarantor, madeherein or in any instrument or financial statement
furnished in connection herewith, or in any guaranty, shall prove false or misleading in any material respect.
16.2. Upon of an event of default,
the occurrence the Mortgagee, with or without entry, personally
or by its agents or attorneys or otherwise, may proceed forthwith to protect and enforce its rights under this
Mortgage and/or the other Loan Documents by such suits, actions or proceedings, in equity or at law, as it
shall deem appropriate, including, without limitation, an action to foreclose the lien of this Montgage, in
which case the Mortgaged Property or any interest therein or any part thereof may be sold in one or more
interests and in any order or manner. Moreover, the Mortgagee shall not be required to proceed hereunder
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, . . .
before proceeding against any other security, shall not be required to proceed against any other security
before proceeding hereunder, and shall not be precluded from proceeding against any or all of any security
in any order or at the same time.
17. WAIVER OF COUNTER-CLAIM. In any action to foreclose the lien or liens of this Mortgage,
including a partial foreclosure, no defense, counterclaim or set off shall be available to Mortgagor other than
one which denies the existence or sufficiency of the facts upon which the action is grounded or which raises
an issue concerning the priority of liens or the statute of limi'tations or other bar to an action based on the
passage of time. If any defense, counterclaim or set off, other than one permitted by the preceding sentence,
is timely raised in such foreclosure action, such defense, counterclaim or set offshall be dismissed; provided,
however, if such defense, counterclaim or set off is based on a claim which could be tried in an action for
money damages, such claim may be brought in a separate action which shall not thereafter be consolidated
with such foreclosure action. The bringing of a separate action for money damages shall not be deemed to
afford any grounds for staying the foreclosur
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FILED: MONTGOMERY COUNTY CLERK 02/10/2023 12:56 PM INDEX NO. EF2022-477 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 02/10/2023 EXHIBIT E FILED: MONTGOMERY COUNTY CLERK 02/10/2023 12:56 PM INDEX NO. EF2022-477 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 02/10/2023 164218 Page 2 of 12 . SL COUNTY TITLE/ESCROW (84S}794-3050 MORTGAGE TlRE # A A- O/O7 THIS MORTGAGE made this 7th day ofApril, 2010, between Little Falls Garden artments LLC, a New York limited liability with an office at 133 Main Street, Mountaindale, NY 12763 company ("Mortgagor") and Habib American Bank, located at 99 Madison New York, NY 10016 Avenue, ("Mortgagee"); WITNESSETH that to secure payment of a principal indebtedness in the sum of THREE HUNDRED THIRTY-TWO THOUSAND THREE HUNDRED SIXTY-SEVEN DOLLARS (S332,367.00) (the "Loan") lawful money of the United States, due in accordance with a certain written promissory note(hereinafter "Note") dated today in the same amount as the Loan, and also tosecure payment of all interest, late charges, and other sums, charges, premiums, indemnification amounts, or other amounts, direct or indirect, absolute or contingent, joint or several, liquidated or not due or to become due, liquidated, including future advances, to Mortgagee under the Note and this mortgage and all extensions, renewals, modifications, substitutions, and replacements of either of them, and to secure performance by Mortgagor of all of its other obligations and covenants under the Note and this mortgage, Mortgagor has mortgaged, given, granted, released, assigned, transferred, given a security interest in, and set over unto Mortgagee, and by these presents does hereby mortgage, give, grant, release, assign, transfer, give a security interest in, and set over unto Mortgagee, its successors and assigns forever, the following described property and rights: ALL that certain plot, piece or parcel of land, more particularly "A" described on Schedule attached hereto and made a part hereof and the buildings and improvements now or hereinafter located thereon (the "Improvements")-said premises being hereinafter referred to as the "Premises"; SAID premises also being commonly known as 759 East Monroe Street Extension, Little Falls, NY, AND AS SECTION 115.45, BLOCK 1, LOT 2.2, and being and intended to be the same premises conveyed to Mortgagor, as grantee, by Mortgagor, as Grantor, by a certain deed dated today and intended to be recorded simultaneously herewith. THE real property covered bythis mortgage is NOT principally improved or to be improved by one or more structures containing in the aggregate not more than six residential dwelling units, each having their own separate cooking facilities. TOGETHER WITH all rights, title and interest of the Mortgagor in and to the following property, rights and interests(the Premises and the Improvements together with such property, rights and interest being hereinafter collectively called the "Mortgaged Property"): (a) alG:asements, rights-of-way, gores of land, streets, ways, alleys, passages, sewer rights, and all estates, rights, titles, interests, privileges, liberties, tenements, hereditaments, and appurtenances of any nature whatsoever, in any way belonging, relating or pertaining to the Mortgaged Property and all land lying in the bed of any street, road or avenue, opened or proposed, in front of or adjoining the Premises to the center line thereof; (b) all machinery, apparatus, equipment, furniture, fittings, fixtures and other property ofevery kind and nature whatsoever owned by the Mortgagor in connection with the Mortgaged Property, or in which the Mortgagor has or shall have an interest, now or hereafter located upon the Mortgaged Property, and usable in connection with the present or future operation and occupancy of the Mortgaged Property, and all buildings, equipment, materials and supplies of any nature whatsoever owned by and now or hereafter located upon the Mortgaged Property, as to which, and as to all of the Mortgaged Property, this Mortgage constitutes a security agreement under the Uniform Commercial Code (in addition to and not in lieu of any other security agreement between the parties); (c) all awards or payments, including interest thereon, and the right to receive the same, which may be made with respect to the Mortgaged Property, whether from the exercise of the right of eminent domain (including any transfer made in lieu of the exercise of said right), or for any other injury to or decrease in the value of the Mortgaged Property; (d) all leases and other agreements affecting the use or occupancy of the Mortgaged Property now or hereafter entered into, and the right to receive and apply the rents, issues and profits of the Mortgaged Property to the payment of the aforementioned indebtedness; (c) all proceeds of any unearned premiums on any insurance policies c the Mortgaged 1 FILED: MONTGOMERY COUNTY CLERK 02/10/2023 12:56 PM INDEX NO. EF2022-477 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 02/10/2023 . Property, inclùding, witho t limitation, the right to receive and apply the proceeds of any insurance, judgments, or settlements made in lieu thereof, for damage to the Mortgaged Property; (f) the right, in the name and on behalf of the Mortgagor to appear in and defend any action or proceeding brought with respect to the Mortgaged Property and to commence any action or proceedings to protect the interest of the Mortgagee in the Mortgaged Property. TO HAVE AND TO HOLD the above granted and described Mortgaged Property unto and to the proper use and benefit of the Mortgagee, and the successors and assigns of the Mortgagee, forever. AND the Mortgagor, for further securing the payment of said Note, together with interest thereon and other charges, amounts, expenses due under such Note or this mortgage, hereby mortgages to the Mortgagee, and grants Mortgagee a security interest in, the Mortgaged Property. And the Mortgagor covenants with the Mortgagee as follows: 1. CROSS DEFAULT; APPLICATION OF FUNDS. A default by Mortgagor either under this Mortgage, or under any other mortgage (whether or not Mortgagee is mortgagee thereunder) on the real property subject to this mortgage, or under any other loan obligation and/or agreement between Mortgagor and Mortgagee constitutes a default by Mortgagor under this Mortgage and/or under the Note, and all any other documents executed in connection with this loan by or on behalf of Mortgagor to Mortgagee and/or by any guarantor and/or any person/entity affiliated or related in any way to Mortgagor or any guarantor (collectively the "Loan Documents") . A default by Mortgagor under any of the Loan Documents constitutes a default by Mortgagor under this mortgage, the obligation thereby secured, and every other loan obligation and/or agreement between Mortgagor and Mortgagee. Notwithstanding any contrary provision elsewhere in this instrument, at any time that Mortgagee is holding any other mortgage(s) securing either (a) the same, or a different portion of, the indebtedness secured by this Mortgage, or (b) any other indebtedness or obligation/loan of Mortgagor, Mortgagee shall have the sole discretion to determine how to apply wholly or partially any payments made by, or on behalf of, Mortgagor to and among each indebtedness, obligation, or loan, and/or portion of any of same, and/or mortgage pursuant to which any amounts (whether monthly payments, overdue principal, late charges, taxes, insurance premiums, and/or any other amounts or items) are due. 2. Mortgagor's sole member has authorized execution of this mortgage. 3. LATE CHARGES. In the event that any payment shall become overdue for a period in excess of fifteen charge" days after the due date, a "late of FIVE per cent of each dollar ($1.00) so overdue will be charged by the Mortgagee for the purpose of defraying the expense incidental to handling such delinquent payment, and such late charges are also secured by this Mortgage. 4. PAYMENT. The Mortgagor promises to pay the principal and interest, and/or any other amount, due under the Note and/or other obligation secured by this Mortgage, when due and payable, plus all other indebtedness secured by this Mortgage. 5. WARRANTY OF TITLE. The Mortgagor warrants the title to the Mortgaged Property, and warrants and represents that the full amount owed as described above is secured by this Mortgage and that this Mortgage is a valid first mortgage lien on, and security interest in, the Premises and Mortgaged Property. 6. INSURANCE. The Mortgagor will keep the buildings and improvements on the Mortgaged Property, as coverage" hereinbefore provided, insured against loss by fire and the perils covered by the usual "extended endorsement, (and if this Mortgage includes personal property, said insurance shall include a "Lender's Loss Payable" hundred clause) in an amount to be approved by the Mortgagee, not exceeding in the aggregate one percent (100%) of their full insurable value, and in companies to be approved by the Mortgagee, and will on demand exhibit to the Mortgagee receipts evidencing payment of the premiums for such insurance and the Mortgagor will assign and deliver the policy or policies of such insurance to the Mortgagee, which policy or policies shall have endorsed thereon the standard New York Mortgagee Clause in the name of the Mortgagee in such manner and form as approved by the Mortgagee, that the Mortgagee shall hold such policy or policies as collateral and further security for the payment of the indebtedness and interest secured by this Mortgage; and, in default of so doing, the Mortgagee may procure such insurance, and pay the premiums therefor, and in such event the Mortgagor will on demand pay to the Mortgagee such premiums so paid, with interest from the date of payment, and the same shall be deemed to be secured by this Mortgage and shall be collectible thereupon in like manner as the principal monies; and, should the Mortgagee by reason of such 2 FILED: MONTGOMERY COUNTY CLERK 02/10/2023 12:56 PM INDEX NO. EF2022-477 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 02/10/2023 insurance receive any sum or sums of money for damage by the perils insured against, such sums may be retained and applied by the Mortgagee to payment of the indebtedness and interest secured by this Mortgage, or the same may be paid over either wholly or in part to the Mortgagor for the repair of said buildings or for the erection of new buildings in their place, or for any other purpose or object satisfactory to the Mortgagee, and, if the Mortgagee receives and retains insurance money for such damage, the lien of this Mortgage shall be affected only by the reduction of the amount of said lien by the amount of insurance money received and retained by said Mortgagee. If the Mortgaged Property is determined to be in a flood hazard area under the Flood Disaster Act of 1973, the Mortgagor must provide the Mortgagee with insurance against loss or damage to the Mortgaged Property by flood to be written by a Company, on such terms, in such form and for such periods and amounts, as may be satisfactory to Mortgagee. 7. TAXES. The Mortgagor will pay all taxes, including corporate franchise taxes, if applicable, assessments and/or water rates and/or sewer rates and/or any and all taxes, charges, assessments which are applicable to the use and/or occupancy and/or existence of the Mortgaged Property; and in the event that the Mortgagor fails to pay same, Mortgagee may (but is not obligated to) pay same and the Mortgagor will, on demand, pay to the Mortgagee any amounts so paid by the Mortgagee with interest from the day of payment, and the same shall be deemed to be secured by the Mortgage and shall be collectible thereupon in like manner as the principal monies. 8. ESCROWS FOR TAXES, INSURANCE. Notwithstand ing any contrary provision of this mortgage, upon written request from mortgagee, at any time and/or from time to time at Mortgagee's sole discretion during the life of this mortgage, mortgagor shall pay to mortgagee on or before the first day of each month or such other day of the month selected by mortgagee, a sum equal to one-twelfth of the estimated annual amount of all taxes, assessments, water, and/or sewer and/or comparable charges, and of all premiums for insurance required hereunder. Mortgagee in its sole discretion shall determine the necessary and/or fractional amounts to be deposited so that, as of one month prior to the due dates of each such obligation, mortgagee shall hold sufficient funds to timely and fully pay the obligation or installment of same. Mortgagee shall hold amounts payable hereunder without interest. Mortgagee shall apply such amounts to payment of the obligations to which the amounts relate, and, at mortgagee's option, in such order or priority as mortgagee shall determine, the dates on which on or before the same or any of them would delinquent. If at any time before the due date of any of such obligations, mortgagee determines that the amounts on deposit do not suffice to timely and fully pay any such obligation, then mortgagor shall deposit the amount of the deficiency with mortgagee within ten (10) days after demand. This paragraph shall not be deemed to affect any right or remedy of mortgagee under this mortgage or under any statute or rule of law to pay such amount and to add the amount so paid to the outstanding debt hereby secured. If there is a default under this mortgage, mortgage may, at its option and without notice to mortgagor, apply any funds held under this paragraph in payment of any amounts due under this mortgage. Any amount(s) determined by Mortgagee to be due hereunder (whether single or recurring or otherwise) shall be payable upon not less than five (5) business days notice from Mortgagee; one or more payments may be specified in any such notice. 9. NO ALTERATIONS. No building or improvement presently on or hereinafter constructed on the premises shall be removed, demolished or altered in such a manner as to adversely affect its structural strength or its value, without the consent of the Mortgagee. 10. ESTOPPEL CERTIFICATE. The Mortgagor, within five (5) business days upon request in person or written notice will furnish a written statement duly acknowledged of the amount due on this Mortgage and whether any offsets or defenses exist against the mortgage debt. 11. SECTION 13 OF THE LIEN LAW. The Mortgagor will receive the proceeds of indebtedness secured by this Mortgage, subject to the trust fund provisions of Section 13 of the Lien Law. 12. NO RELEASE OR DISCHARGE UNTIL FULL PAYMENT; RIGHT TO RELEASE ANY PORTION OF THE PROPERTY.. Until the full payment of all indebtedness evidenced by the Note with interest at the rate therein specified, (A) regardless of any subsequent agreement with any other person, firm or corporation modifying, amending, altering or changing the terms of the Note or any agreement referred to in said Note or this Mortgage, or spreading the lien thereof, or consolidating the same with any other mortgage, the obligations of the Mortgagor to pay the indebtedness and interest at the rate specified in the Note secured by this Mortgage shall not be released or discharged or affected in any way, and/or (B) Mortgagor shall not, at the sole discretion of the Mortgagee, be entitled to a release or satisfaction of the lien of this mortgage with respect to any of the Mortgaged Property. Notwithstanding the foregoing, Mortgagee may release any portion ofthe Mortgaged Property for such consideration as Mortgagee may require without, as to the remainder of the Mortgaged Property, in any way impairing or affecting the lien or prior t 3 FILED: MONTGOMERY COUNTY CLERK 02/10/2023 12:56 PM INDEX NO. EF2022-477 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 02/10/2023 instrument, or improving the position ofany subordinate lien holder with respect thereto, except to the extent that the obligations hereby secured shall have been reduced by the actual monetary consideration, if any, received by Mortgagee for such release, and may accept by assignment, pledge, or otherwise any other property in place thereof as Mortgagee may require without being accountable for so doing to any other lien holder; and this instrument shall continue as a lien and security interest in the remaining portion of the Mortgaged Property. 13. BOOKS, RECORDS AND FINANCIAL STATEMENTS. The Mortgagor wilI at all times keep proper books and records and accounts in accordance with generally accepted accounting principles consistently applied and shall within five (5) business days of demand: 13.1. permit the Mortgagee or its representatives to examine such books and records and all supporting vouchers and data at any time from time to time on request, at its offices, or at such other location as may be mutually agreed upon. 13.2. provide a balance sheet truly presenting the financial condition of the Mortgagor as of the close of each fiscal year and statements of cash flow truly presenting the results of operations of the Mortgagor for such fiscal year, and a statement of changes in financial position, all prepared in accordance "reviewed" with generally accepted accounting principles consistently applied and by independent certified public accountants acceptable to the Mortgagee, together with, if requested, referred to in the preceding subparagraph, a certificate of the independent certified public accountants who reviewed said annual report statmg that in making the examination necessary to said review of the annual report they have obtained no knowledge of any default by the Mortgagor in the performance of any of the covenants, conditions, agreements or warranties under this Mortgage and the Note, or, ifthey shall have obtained knowledge of any such default, the nature thereof. 13.3. within five business days after the close of each fiscal quarter, provide to Mortgagee a compiled statement of fmancial position truly presenting the financial condition of the Mortgagor as of the close of such fiscal quarter and compiled statements of operations and retained earnings and changes in financial position truly presenting activities of the Mortgagor for such fiscal quarter, all prepared in accordance with generally accepted accounting principles consistently applied and verified by the President and Treasurer of the Mortgagor. 13.4. provide a certificate of the President, a Vice President, or the Treasurer of the Mortgagor with knowledge of the facts in question stating that a review of the activities of the Mortgagor to date during the fiscal year in question has been made under [his/her] supervision with a view to determining whether the Mortgagor has fulfilled all of its obligations under this Mortgage and the Note, and that the Mortgagor has fulfilled all such obligations, or, if not, specifying all defaults of which [he/she] has knowledge. 14. INDEMNIFICATION. Mortgagor hereby covenants and agrees, at its sole cost and expense, to indemnify, protect, defend and save harmless Mortgagee from and against any and all damages, losses, liabilities, obligations, penalties, claims, litigation, demands, defenses,judgments, suits, actions, proceedings, consultants' costs, disbursements and/or expenses (including, without limitation, attorneys', and experts'fees, expenses and disbursements) ofany kind or nature whatsoever by whomeyer asserted which may at any time be imposed upon, incurred by or asserted or awarded against Mortgagee relating to, resulting from or arising out of the past, present or future (a) use of the Mortgaged Property for the storage, treatment, generation, transportation, processing, handling, production or disposal of any Hazardous Substance or as a landfill or other waste disposal site or for military, manufacturing or industrial purposes; (b) presence of any Hazardous Substances or a Release or the threat of a Release on, at or from the Mortgaged Property; c) appropriate investigative, containment, removal, clean up and other remedial actions with respect to a Release or the threat of any Releaseon, at or from the Mortgaged Property; (d) human exposure to any Hazardous Substance or nuisances of whatever kind to the extent the same arise from the condition of the Mortgaged Property or the ownership, use, operation, sale, transfer or conveyance thereof; (e)violation ofany applicable environmental law; or (f) noncompliance with any environmental permit. 14.1. The liability of Mortgagor to Mortgagee hereunder shall in no way be limited, abridged, impaired or otherwise affected by (I) any amendment or modification of the Note; (ii) any increase in the amount ofthe Note or the extension of any additional debt to the Mortgagor; (iii) any extensions of time for payment or performance required by the Note; (iv) the release of Mortgagor, any guarantor of this loan or any other person from the performance or observance of any of the agreements, covenants, terms or conditions contained in the Note or this Mortgage; (v) any exculpatory provision contained in any of the Loan Documents limiting Mortgagee's recourse to property encumbered by the Mortgage or to any other 4 FILED: MONTGOMERY COUNTY CLERK 02/10/2023 12:56 PM INDEX NO. EF2022-477 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 02/10/2023 security or limiting Mortgagee's rights to a deficiencyjudgment against Mortgagor; (vi)any applicable statute of limitations; (vii) any investigation or inquiry conducted by or on the behalf of Mortgagee or any information which Mortgagee may have or obtain with respect to the environmental or ecological condition of the Mortgaged Property; (viii) the sale, assignment or foreclosure of the Note or this Mortgage; (ix) the sale, transfer, conveyance or lease of all or part of the Mortgaged Property; (x) the dissolution or liquidation of Mortgagor; (xi) the death or legal incapacity of the Mortgagor; (xii) the release or discharge, in whole or in part, of the Mortgagor in any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding; or (xiii) any other circumstances which might otherwise constitute a legal or equitable release or discharge, in whole or in part, of Mortgagor under this Mortgage. Substance" 14.2. For purposes of this paragraph, "Hazardous means, without limitation, any flammables, explosive, radon, radioactive materials, asbestos, urea formaldehyde foam insulation, polychlorinated-biphenyls, petroleum and petroleum-based products or by-products, methane, hazardous materials, medical waste, hazardous wastes, hazardous or toxic substances or related materials, as defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections 9601,etseq.), the Hazardous Materials Transportation Act, as amended (49U.S.C. Sections 1801,et seq.), the Toxic Substances Control Act, as amended (15 U.S.C. Sections 2601,et seq.), Articles 15 and 27 of the New York State Environmental Conservation Law and in the regulations promulgated Substance" thereunder. The term "Hazardous does not include consumer products which are stored and used by a consumer with reasonable care and for their intended use. "Release" 14.3. For purpose of this paragraph, means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment, including the abandonment or discarding of barrels, containers, and other receptacles containing any Hazardous Substance. 15. MORTGAGE TAX. Mortgagor agrees that in the event that mortgage recording tax is required for any reason whatsoever, Mortgagor will pay said tax on demand to Mortgagee; and if Mortgagor fails to pay said tax, the Mortgagee may pay same. The amounts paid by the Mortgagee, plus interest at the rate set forth in the Note from the date of payment, shall be deemed to be secured by this Mortgage and shall be collected in like manner as the principal monies. 16. DEFAULT. 16.1. Provided that this shall not be deemed to limit or modify paragraph any of the terms of the Note or rights of the Mortgagee thereunder, the Mortgagee shall be entitled, at its option, to declare the Mortgagor in default and the whole of the indebtedness and interest to be immediately due and payable: (a) añer failure to pay any installment of principal or of interest, and/or any other amount due under the obligation secured by this mortgage, for fifteen days (15) days (b) after failure to pay any tax, water rate or assessment, or to exhibit to the Mortgagee receipts evidencing payment thereof, within ten (10) business days aher notice and demand; (c) aher failure to pay any premiums on the policies insuring the buildings and improvements on the Mortgaged Property, or to exhibit to the Mortgagee receipts evidencing payment thereof, or to assign and deliver such policies to the Mortgagee, or to reimburse the Mortgagee for premiums paid on such insurance, within ten (10) business days after notice and demand; (d) after failure, upon request, to furnish a statement of the amount due on this Mortgage and whether any offsets or defenses exist against the mortgage debt, as hereinbefore provided; (e) upon the actual or threatened removal or demolition of any building or improvement on the Mortgaged Property or the commission of any waste on the Mortgaged Property; (f) upon the actual or threatened removal by anyone of any fixtures subject to the lien of this Mortgage; (g) upon failure of the Mortgagor to notify the Mortgagee in writing within five (5) business days aher loss or damage caused by fire or other casualty to the Mortgaged Property, or any part thereof, and prior to making of any repairs tliereto, or the refusal of the Mortgagor to permit the Mortgagee to inspect such s or damage prior to the making of any repairs thereto; FILED: MONTGOMERY COUNTY CLERK 02/10/2023 12:56 PM INDEX NO. EF2022-477 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 02/10/2023 (h) upon failure to pay any Mortgage tax now due or hereafter due on this Mortgage within five (5) business days after notice and demand given by the Mortgagee to the Mortgagor; (I) in the event that the Mortgagor or any owner of an interest in Mortgagor conveys, sells, assigns, encumbers, or otherwise transfers, whether by operation of law or otherwise, including a voluntary conveyance as a result or in lieu or in anticipation of the exercise of the right of condemnation or eminent domain, either the Mortgaged Property, or any part thereof, or any interest therein or in Mortgagor, without the prior written consent of the Mortgagee; (j) in the event that the Mortgagor assigns the rents, or any part thereof, of the Mortgaged Property or accepts prepayment of rents with respect to all or any part of the Mortgaged Property covering a period greater than two (2) month(s); (k) upon failure of the Mortgagor to cure any violation of any governmental requirements respecting the Mortgaged Property including, without limitation, any laws, rules or regulations governing hazardous waste removal and cleanup or arising from an intentional or unintentional action or omission of the Mortgagor or any previous owner and/or operator of the Mortgaged Property, within ten (10) business days after receipt of written notice and demand from the Mortgagee; or, if in the reasonable judgment of the Mortgagee, any said violation cannot be cured within said ten (10) business day period, failure to either commence a cure within said ten (10) business day period and/or to pursue said cure diligently until completed; (1) upon the breach by the Mortgagor of any covenant or provision contained in this Mortgage or in the Loan Documents, or upon the default in any debt instrument, term loan agreement, building loan agreement, environmental indemnification agreement or any instrument of collateral security delivered by or on behalf of the Mortgagor to the Mortgagee; (m) upon the imposition of any mortgage, liens, charges or encumbrances upon the Mortgaged Property after the date hereof, which mortgage, liens, charges or encumbrances are not released, vacated, suspended, discharged, or bonded to the satisfaction of the Mortgagee within ten (10) business days oftheir imposition; (n) in the event that the Mortgagor fails to submit to the Mortgagee the financial statements as required elsewhere herein, and continuance ofsuch failure for fifteen (15) business days after receipt of written notice from the Mortgagee; (0) voluntary suspension of all or a substantial part of its business as a going concern by the Mortgagor, insolvency ofthe Mortgagor or of any entity or person (hereinafter referred to as a "Guarantor")guaranteeing payment of the indebtedness; commencement of any proceedings under any bankruptcy or insolvency law by the Mortgagor or any Guarantor; an assignment for the benefit of creditors by the Mortgagor or any Guarantor; application for consent to the appointment of any receiver or trustee or custodian for the Mortgagor or any Guarantor of all or any substantial part of the properties of either; or assignment to an agent authorized to liquidate any substantial part of the assets of the Mortgagor or any Guarantor; (p) commencement of any proceedings under any bankruptcy or insolvency law against the Mortgagor orany Guarantor, which proceedings are involuntary in nature, and failure to have said proceedings dismissed within ten business days after the commencement thereof; or issuance of a writ or warrant or attachment of similar process against all or any substantial portion of the property of the Mortgagor or any Guarantor, and failure to have such writ or attachment of similar process released or bonded within ten business days after its issuance; (q) default beyond any grace perio'd pursuant to the terms and conditions of any other loan by Mortgagee to Mortgagor; (r) if any information furnished by or any representation or warranty of Mortgagor or of any Guarantor, or any representative of Mortgagor or ofany Guarantor, madeherein or in any instrument or financial statement furnished in connection herewith, or in any guaranty, shall prove false or misleading in any material respect. 16.2. Upon of an event of default, the occurrence the Mortgagee, with or without entry, personally or by its agents or attorneys or otherwise, may proceed forthwith to protect and enforce its rights under this Mortgage and/or the other Loan Documents by such suits, actions or proceedings, in equity or at law, as it shall deem appropriate, including, without limitation, an action to foreclose the lien of this Montgage, in which case the Mortgaged Property or any interest therein or any part thereof may be sold in one or more interests and in any order or manner. Moreover, the Mortgagee shall not be required to proceed hereunder 6 . . FILED: MONTGOMERY COUNTY CLERK 02/10/2023 12:56 PM INDEX NO. EF2022-477 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 02/10/2023 , . . . before proceeding against any other security, shall not be required to proceed against any other security before proceeding hereunder, and shall not be precluded from proceeding against any or all of any security in any order or at the same time. 17. WAIVER OF COUNTER-CLAIM. In any action to foreclose the lien or liens of this Mortgage, including a partial foreclosure, no defense, counterclaim or set off shall be available to Mortgagor other than one which denies the existence or sufficiency of the facts upon which the action is grounded or which raises an issue concerning the priority of liens or the statute of limi'tations or other bar to an action based on the passage of time. If any defense, counterclaim or set off, other than one permitted by the preceding sentence, is timely raised in such foreclosure action, such defense, counterclaim or set offshall be dismissed; provided, however, if such defense, counterclaim or set off is based on a claim which could be tried in an action for money damages, such claim may be brought in a separate action which shall not thereafter be consolidated with such foreclosure action. The bringing of a separate action for money damages shall not be deemed to afford any grounds for staying the foreclosur