Preview
FILED: NEW YORK COUNTY CLERK 03/04/2022 02:11 PM INDEX NO. 850250/2017
NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 03/04/2022
"D"
EXHIBIT
FILED: NEW YORK COUNTY CLERK 03/04/2022 02:11 PM INDEX NO. 850250/2017
NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 03/04/2022
PRE-NEGOTIATION AGREEMENT
May 11, 2021
Via Email
Melissa Fawer
Mark S. Fawer
52 East End Avenue
Apartment 12A
New York, NY 10028
RE: Mark Fawer and Melissa Fawer ("Borrowers")
52 East End Avenue. Apartments 12A, 12B, 14B & 14C, New York, New York (the
"Property")
C0ñsolidated Adjustable-Rate Note, dated June 25, 2014 in the amount of
$3,850,000.00 to First Choice Bank and C=so!!dated, Extencien. and Modiñcah Agreement,
dated June 25, 2014 recorded against the Property (the "Loan")
Dear Borrowers:
AC 31 LLC ("Lender") is the owner and holder of the above-referenced Loan. The Loan is evidenced by
certain notes and secured by certain dücüñietits, instruments, security agreements, deeds of trust, mortgages,
güarerities and such other documents executed in connection therewith (collectively, "Loan Documents").
Borrowers'
At request, Lender is willing to participate in discussions caiicerning the obligations (the
"Obligations") of Borrowers to Lender which are created, evidenced or secured by, or related to, the Loan
Documents, but only upon execution of, and in accordance with the tenns, covenants and enndit!nns contain6d
understanding^
in this agreement ("Agreement") in order to luütuâlly acknowledge the nature of, and certain
with respect to, the pro osed discussions.
Borrowersf specifically acknowledge and agree that tlirõüghoui the discü3310as conternplated by this
Agreement:
• Borrowers executed a certain forbearance agreement dated April 24, 2017, with Lender's predecessor
in interest, Berkshire Bank ("Forbearance Agreement"). Nothing in this Agreement shall be construed
to alter or modify the terms of the Forbearance Agicement.
4845-7412-9385\ v2
FILED: NEW YORK COUNTY CLERK 03/04/2022 02:11 PM INDEX NO. 850250/2017
NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 03/04/2022
52 East End Avenue, Apts. 12A, 12C, 14B & 14C
May 11, 2021
Page 2
• Lender, by its predecessor in interest, is the plaintiff in a pending action to foreclose on the
Property
in the Supreme Court ofNew York, County ofNewYork, Index No.850250/2017(the"Farcciosure").
• Lender is the current holder of the Loan Documents.
• Lender shall not be stayed this Agreement from to enforce prosecution of the
by ccatinuing
Foreclosure.
• The Loan Dccuments will remain in full force and effect and üñmed!E÷f unless and until a written
agreement is duly executed and delivered by authorized parties of Darrowers and Lender specifically
amending the Loan Documents;
• Neither Borrowers nor Lender shall be deemed to have amended or waived remedies or
any rights,
obligations contained in the Loan Documents;
• Lender has not waived any event of default that may now exist, or any event of default which may
hereafter arise, under the Loan Documents;
• Lender has made no promise, cem±zent, or representation whãtscêver, and Lender has no obligaticñ
to Borrowers to modify the terms of the Loan, offer any discounted payoff of the Loan, refinance the
Loan, grant any forbearance, consent to Bonewers incurring any iñdebtedness to the extent same is
prohibited under the Loan Documents, or extend any other financial accommodation to Borrówers;
• Lender has no fiduciary, ccñfidcñtial or special relationship with Borrowers and no such e!adeship
is created by the execution of this Agreement or the participation by Lender in the discussions
contemplated by this Agreement;
• Borrowers and Lender may not rely on any oral communicancñs including any oral agreement made
or purported to be made by or on behalf of Lender or Dericwers, respectively;
• The w==cement of and participation in discussions concerning the Loan shall be acñ-biñdiñg;
• Borrowers or Lender, in their respective sole discretion, shall have the right to terminate the discussions
ccñtemplated by this Agreement upon written notice to the other parties which specifies the date such
termination shall be effective (which may be upon receipt of such notice), and shall at all times during
the discussions retain the right to avail themselves of any remedy provided in the Loan Documents, at
law or in equity;
• All discussions which have been ccñducted heretofore between any ofthem with reference to the Loan
or this Agreement and which will be conducted hereafter with respect to the Loan are and shall be
considered sciticmcat discussions and negotiations with reference to real and bona fide disputes and
controversies which
presently exist between or among the Lender and Borrowers. All evid6ñce of
conduct and comsüñicadens of any nature (whether verbal or nonverbal,
whatsoever or express or
implied) of any party in côññêction with the diawamions contemplated by this Agreement, or in any
meeting or correspondence arising as a result of the Loan and this Agreement, shall be inadmissible
484s-7432-938s\ v2
FILED: NEW YORK COUNTY CLERK 03/04/2022 02:11 PM INDEX NO. 850250/2017
NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 03/04/2022
52 East End Avenue, Apts. 12A, 12C, 14B & 14C
May 11, 2021
Page 3
for any purpose whatsoever in any judicial or similar prueceding. The foregoing sentence is !ñt:ñded
to be broader than the restrictions on admissibility contained in F.R. Evid. 408 and the equivnient state
law set forth as the governing law on the deed(s) of trust or mortgage(s) payment of the Loan;
securing
• All discussions, other comm=:caticñs (written or oral) and all drafts of documents and instruments
hereafter held, disseminated, written, or produced in ccññection with the Loan Docüüients prior to the
termination of this Agreement by the Lender and the Borrowers shall be and remain privileged and
shall not be admissible, inhuduced or proffered as evidence in any legal or other dispute rese!uden
precêêding heredcz to occur between or among Borrowers and Lender or in which any of them is a
party;
• Lender Borrowers'
may send billing statements. The billing statements are generated for the
Borrowers'
information and convenience only, and do not waive, amend or alter the Obligations under
the Loan Documents. Thus to the extent that the billing statements are inconsistcñt with any term of
the Loan Documents or to the extent that the billing ± 3 do not accurately reflect balances and
any charges to which the Lender is entitled under the Loan Deca=ents, the Loan Documents shall
control;
• Borrowers aclaiswledge that Lender may accept partial payments of the Obligaticñs tendered by any
person or entity either before or after acceleration of the Loan. The acceptance of any such partial
payments by Lender shall not (i) constitute any agreement or commitment by Lender to amend or
modify the Obligations or the Loan Documents, (ii) constitute any agreement by Lender to continue
to accept such partial payments, (iii) constitute any course of conduct by Lender, (iv) reinstate the Loan
or cure any default or event of default under the Loan Documents, (v) constitute any agreement or
commitment by Lender to forbear from the exercise of any of Lender's rights or remedies pursuant to
the Loan Documents, (vi) otherwise waive or alter in any way any of Lender's rights or remedies
pursuant to the Loan Documents, app!!cabis law or othcw;ise, or (vii) constitute Lender's agreement
to or acceptance of any conditions set forth in connection with any such tendered payment, and the
parties hereto expressly agree that, ñotwithstanding any such purported conditions to any such tender,
no such conditions shall be binding upon Lender, actwithstâüding Lender's acceptance of such partial
payment, unless at such time such conditions are cxpressly accepted and agreed to by Lender in a
written agreement executed by Lender and delivered to the Borrowers in connection with such partial
payment;
• The parties acknowledge that Lenders have retained Harris Beach PLLC and Rosenberg & Steinmetz
PC to provide advice and consulting services to the Borrowers in connection with the negotiedons
contemplated by this Agreement Lender hereby authorizes Borrowers to ce===kate with, and to
provide financial and other information ccacesiing the Loan to either Harris Beach PLLC and
Rosenberg & Steinmetz PC and their officers, directors, employees, agents, representatives and
designees (collectively, the "Lender's Representatives"); and
• Borrowers actmewledge that all c:rs::5aticas between Lender, (including Lender's predecessers
in interest, affiliates, subsidiaries, participants, or assigns, and all of their respective past, present, and
future shareholders, mcmbcis, directors, managers, officers, employees, attorneys, advisers,
consultants, servicers, representatives, or agents (collectively, "Lender's Parties")), Lender's
Borrowers'
Representatives, Borrowers (iñcluding empicyces, agents, represcñtatives and designees,
4845-7412-930s\ v2
FILED: NEW YORK COUNTY CLERK 03/04/2022 02:11 PM INDEX NO. 850250/2017
NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 03/04/2022
52 East End Avenue, Apts. 12A, 12C, 14B & 14C
May 11, 2021
Page 4
was'
collectively, "Bouv Representatives") concerning the Loan shall be subject to the terms of this
Agreement and that any reference to Lender herein shall also include the Lender Parties.
This Agreement shall survive the effective date of termination, but this Agreement shall not be applicable to
any discussions or cemmunications between Lender and Borrowers occurring after such termination date.
Since the parties recognize that these discussions and negetiaticas may not produce a mütüâ:ly accepteble
resolutica of the overall probicm, Borrowers should not forego any acceptable alternative opportunities while
such negotiations are pending, subject to the terms and condide= ofthe Loan Documents. Lendermay conduct
Borrowers'
discussions or negotiations with Borrowers, Representatives or any other person or entity obligated
to Lender with respect to the indebtedness
evidenced by the Loan Documents, any other person or entity
affiliated with or representing
Borrowers Borrowers, or any co-lender, mezzanine lender, franchiser, loan
participant or any other Loan secüïitizatica party or participant, with or without the participation of Borrowers
and all parties hereto hereby consent to such discussions and negotiations.
Borrowers acknowledge and agree that during the discussions between Lender and Borrowers leading to the
vacution of this Agreement, and during those which may follow the execution of this Agreement, Borrowêrs
have been or will be rcprescated by counsel of their own selection and on whom Berrowers are relying solely
for legal representation and counseling.
This Agreement may not be modified or amended except by written instrument signed by each ofthe Borrowers
and Lender. This Agreement constitutes the entire agreement concerning the subject matter hereof and
supersedes any prior or contemponneous oral and written agreements concerning the subject matter hereof,
other than the Loan Documents.
This Ag-::ment may be executed in one or more counterparts, each of which shall be deemed an original and
all of which taken together shall cc=‡its one and the same instrument. A facsimile or eleetronic copy of this
Agreement and any signatures hereon shall be comidered for all purposes an original. This Agreement shall
. inure to the benefit of and be binding upon each party hereto, and their respective heirs, successors and assigns,
and shall be governed by the law set forth as the goveming law in the deed(s) of trust or m0stgagê(s) securing
payment of the Loan.
BALANCE OF PAGE INTENTIONALLY LEFT BLANK
4845-7412-9385\ v2
FILED: NEW YORK COUNTY CLERK 03/04/2022 02:11 PM INDEX NO. 850250/2017
NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 03/04/2022
52 EastEnd Avemic, Apts. 12A, 12C, 14B& 14C
May I 1, 202I
Page 6
Pleaseindicateyour agreementwith the (crutsof this Agreementby countersigningin thespacebelowand
returningtheoriginalexecutedagreementto theundersigned.
Sincerely,
LENDER:
AC 31 LLC
By:
AGREEDAND ACCEPTEDTHIS DAY OF 2021
BORROWER:
_.. . .
51 lissaFawer
BORROWER:
Mark S. Fawer
4345.7412.9335\
v2
Preview
FILED: NEW YORK COUNTY CLERK 03/04/2022 02:11 PM INDEX NO. 850250/2017 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 03/04/2022 "D" EXHIBIT FILED: NEW YORK COUNTY CLERK 03/04/2022 02:11 PM INDEX NO. 850250/2017 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 03/04/2022 PRE-NEGOTIATION AGREEMENT May 11, 2021 Via Email Melissa Fawer Mark S. Fawer 52 East End Avenue Apartment 12A New York, NY 10028 RE: Mark Fawer and Melissa Fawer ("Borrowers") 52 East End Avenue. Apartments 12A, 12B, 14B & 14C, New York, New York (the "Property") C0ñsolidated Adjustable-Rate Note, dated June 25, 2014 in the amount of $3,850,000.00 to First Choice Bank and C=so!!dated, Extencien. and Modiñcah Agreement, dated June 25, 2014 recorded against the Property (the "Loan") Dear Borrowers: AC 31 LLC ("Lender") is the owner and holder of the above-referenced Loan. The Loan is evidenced by certain notes and secured by certain dücüñietits, instruments, security agreements, deeds of trust, mortgages, güarerities and such other documents executed in connection therewith (collectively, "Loan Documents"). Borrowers' At request, Lender is willing to participate in discussions caiicerning the obligations (the "Obligations") of Borrowers to Lender which are created, evidenced or secured by, or related to, the Loan Documents, but only upon execution of, and in accordance with the tenns, covenants and enndit!nns contain6d understanding^ in this agreement ("Agreement") in order to luütuâlly acknowledge the nature of, and certain with respect to, the pro osed discussions. Borrowersf specifically acknowledge and agree that tlirõüghoui the discü3310as conternplated by this Agreement: • Borrowers executed a certain forbearance agreement dated April 24, 2017, with Lender's predecessor in interest, Berkshire Bank ("Forbearance Agreement"). Nothing in this Agreement shall be construed to alter or modify the terms of the Forbearance Agicement. 4845-7412-9385\ v2 FILED: NEW YORK COUNTY CLERK 03/04/2022 02:11 PM INDEX NO. 850250/2017 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 03/04/2022 52 East End Avenue, Apts. 12A, 12C, 14B & 14C May 11, 2021 Page 2 • Lender, by its predecessor in interest, is the plaintiff in a pending action to foreclose on the Property in the Supreme Court ofNew York, County ofNewYork, Index No.850250/2017(the"Farcciosure"). • Lender is the current holder of the Loan Documents. • Lender shall not be stayed this Agreement from to enforce prosecution of the by ccatinuing Foreclosure. • The Loan Dccuments will remain in full force and effect and üñmed!E÷f unless and until a written agreement is duly executed and delivered by authorized parties of Darrowers and Lender specifically amending the Loan Documents; • Neither Borrowers nor Lender shall be deemed to have amended or waived remedies or any rights, obligations contained in the Loan Documents; • Lender has not waived any event of default that may now exist, or any event of default which may hereafter arise, under the Loan Documents; • Lender has made no promise, cem±zent, or representation whãtscêver, and Lender has no obligaticñ to Borrowers to modify the terms of the Loan, offer any discounted payoff of the Loan, refinance the Loan, grant any forbearance, consent to Bonewers incurring any iñdebtedness to the extent same is prohibited under the Loan Documents, or extend any other financial accommodation to Borrówers; • Lender has no fiduciary, ccñfidcñtial or special relationship with Borrowers and no such e!adeship is created by the execution of this Agreement or the participation by Lender in the discussions contemplated by this Agreement; • Borrowers and Lender may not rely on any oral communicancñs including any oral agreement made or purported to be made by or on behalf of Lender or Dericwers, respectively; • The w==cement of and participation in discussions concerning the Loan shall be acñ-biñdiñg; • Borrowers or Lender, in their respective sole discretion, shall have the right to terminate the discussions ccñtemplated by this Agreement upon written notice to the other parties which specifies the date such termination shall be effective (which may be upon receipt of such notice), and shall at all times during the discussions retain the right to avail themselves of any remedy provided in the Loan Documents, at law or in equity; • All discussions which have been ccñducted heretofore between any ofthem with reference to the Loan or this Agreement and which will be conducted hereafter with respect to the Loan are and shall be considered sciticmcat discussions and negotiations with reference to real and bona fide disputes and controversies which presently exist between or among the Lender and Borrowers. All evid6ñce of conduct and comsüñicadens of any nature (whether verbal or nonverbal, whatsoever or express or implied) of any party in côññêction with the diawamions contemplated by this Agreement, or in any meeting or correspondence arising as a result of the Loan and this Agreement, shall be inadmissible 484s-7432-938s\ v2 FILED: NEW YORK COUNTY CLERK 03/04/2022 02:11 PM INDEX NO. 850250/2017 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 03/04/2022 52 East End Avenue, Apts. 12A, 12C, 14B & 14C May 11, 2021 Page 3 for any purpose whatsoever in any judicial or similar prueceding. The foregoing sentence is !ñt:ñded to be broader than the restrictions on admissibility contained in F.R. Evid. 408 and the equivnient state law set forth as the governing law on the deed(s) of trust or mortgage(s) payment of the Loan; securing • All discussions, other comm=:caticñs (written or oral) and all drafts of documents and instruments hereafter held, disseminated, written, or produced in ccññection with the Loan Docüüients prior to the termination of this Agreement by the Lender and the Borrowers shall be and remain privileged and shall not be admissible, inhuduced or proffered as evidence in any legal or other dispute rese!uden precêêding heredcz to occur between or among Borrowers and Lender or in which any of them is a party; • Lender Borrowers' may send billing statements. The billing statements are generated for the Borrowers' information and convenience only, and do not waive, amend or alter the Obligations under the Loan Documents. Thus to the extent that the billing statements are inconsistcñt with any term of the Loan Documents or to the extent that the billing ± 3 do not accurately reflect balances and any charges to which the Lender is entitled under the Loan Deca=ents, the Loan Documents shall control; • Borrowers aclaiswledge that Lender may accept partial payments of the Obligaticñs tendered by any person or entity either before or after acceleration of the Loan. The acceptance of any such partial payments by Lender shall not (i) constitute any agreement or commitment by Lender to amend or modify the Obligations or the Loan Documents, (ii) constitute any agreement by Lender to continue to accept such partial payments, (iii) constitute any course of conduct by Lender, (iv) reinstate the Loan or cure any default or event of default under the Loan Documents, (v) constitute any agreement or commitment by Lender to forbear from the exercise of any of Lender's rights or remedies pursuant to the Loan Documents, (vi) otherwise waive or alter in any way any of Lender's rights or remedies pursuant to the Loan Documents, app!!cabis law or othcw;ise, or (vii) constitute Lender's agreement to or acceptance of any conditions set forth in connection with any such tendered payment, and the parties hereto expressly agree that, ñotwithstanding any such purported conditions to any such tender, no such conditions shall be binding upon Lender, actwithstâüding Lender's acceptance of such partial payment, unless at such time such conditions are cxpressly accepted and agreed to by Lender in a written agreement executed by Lender and delivered to the Borrowers in connection with such partial payment; • The parties acknowledge that Lenders have retained Harris Beach PLLC and Rosenberg & Steinmetz PC to provide advice and consulting services to the Borrowers in connection with the negotiedons contemplated by this Agreement Lender hereby authorizes Borrowers to ce===kate with, and to provide financial and other information ccacesiing the Loan to either Harris Beach PLLC and Rosenberg & Steinmetz PC and their officers, directors, employees, agents, representatives and designees (collectively, the "Lender's Representatives"); and • Borrowers actmewledge that all c:rs::5aticas between Lender, (including Lender's predecessers in interest, affiliates, subsidiaries, participants, or assigns, and all of their respective past, present, and future shareholders, mcmbcis, directors, managers, officers, employees, attorneys, advisers, consultants, servicers, representatives, or agents (collectively, "Lender's Parties")), Lender's Borrowers' Representatives, Borrowers (iñcluding empicyces, agents, represcñtatives and designees, 4845-7412-930s\ v2 FILED: NEW YORK COUNTY CLERK 03/04/2022 02:11 PM INDEX NO. 850250/2017 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 03/04/2022 52 East End Avenue, Apts. 12A, 12C, 14B & 14C May 11, 2021 Page 4 was' collectively, "Bouv Representatives") concerning the Loan shall be subject to the terms of this Agreement and that any reference to Lender herein shall also include the Lender Parties. This Agreement shall survive the effective date of termination, but this Agreement shall not be applicable to any discussions or cemmunications between Lender and Borrowers occurring after such termination date. Since the parties recognize that these discussions and negetiaticas may not produce a mütüâ:ly accepteble resolutica of the overall probicm, Borrowers should not forego any acceptable alternative opportunities while such negotiations are pending, subject to the terms and condide= ofthe Loan Documents. Lendermay conduct Borrowers' discussions or negotiations with Borrowers, Representatives or any other person or entity obligated to Lender with respect to the indebtedness evidenced by the Loan Documents, any other person or entity affiliated with or representing Borrowers Borrowers, or any co-lender, mezzanine lender, franchiser, loan participant or any other Loan secüïitizatica party or participant, with or without the participation of Borrowers and all parties hereto hereby consent to such discussions and negotiations. Borrowers acknowledge and agree that during the discussions between Lender and Borrowers leading to the vacution of this Agreement, and during those which may follow the execution of this Agreement, Borrowêrs have been or will be rcprescated by counsel of their own selection and on whom Berrowers are relying solely for legal representation and counseling. This Agreement may not be modified or amended except by written instrument signed by each ofthe Borrowers and Lender. This Agreement constitutes the entire agreement concerning the subject matter hereof and supersedes any prior or contemponneous oral and written agreements concerning the subject matter hereof, other than the Loan Documents. This Ag-::ment may be executed in one or more counterparts, each of which shall be deemed an original and all of which taken together shall cc=‡its one and the same instrument. A facsimile or eleetronic copy of this Agreement and any signatures hereon shall be comidered for all purposes an original. This Agreement shall . inure to the benefit of and be binding upon each party hereto, and their respective heirs, successors and assigns, and shall be governed by the law set forth as the goveming law in the deed(s) of trust or m0stgagê(s) securing payment of the Loan. BALANCE OF PAGE INTENTIONALLY LEFT BLANK 4845-7412-9385\ v2 FILED: NEW YORK COUNTY CLERK 03/04/2022 02:11 PM INDEX NO. 850250/2017 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 03/04/2022 52 EastEnd Avemic, Apts. 12A, 12C, 14B& 14C May I 1, 202I Page 6 Pleaseindicateyour agreementwith the (crutsof this Agreementby countersigningin thespacebelowand returningtheoriginalexecutedagreementto theundersigned. Sincerely, LENDER: AC 31 LLC By: AGREEDAND ACCEPTEDTHIS DAY OF 2021 BORROWER: _.. . . 51 lissaFawer BORROWER: Mark S. Fawer 4345.7412.9335\ v2