Preview
FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477
NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 04/24/2023
EXHIBIT D
FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477
NYSCEF DOC.: NO.
|F ILED 180
MONTGOMERY COUNTY CLERK 0 2 / 10 INDEX
RECEIVED NO. EF20*2-477
NYSCEF: 04/24/2023
/ 2 0 2 3 12 : 5 6 PM|
NYSCdF DOC. NO. 143 RECEIVED NYSCEF: 02/10/2023
100 INSTR# : 2 010 -3 7 915 0 6 /0 7 / 2 010 MORTGAGE Image : 2 of 13
0UNTY TITLE/ESCROW
, (845)794-3050
ITLE#ACA- ,D/06
MORTGAGE
THIS MORTGAGE made this Ist day of April, 2010, between Robinhood Properties L.L.C., a New
York limited liability company with an office at 133 Main Street, Mountaindale, NY 12763 ("Mortgagor")
and Habib American Bank, located at 99 Madison Avenue, New York, NY I0016 ("Mortgagee");
WITNESSETH that to secure payment of a principal indebtedness in the sum of SIX HUNDRED
EIGHTY THOUSAND DOLLARS ($680,000) (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 to secure payment of all interest, late charges, and other sums, charges, premiums,
indemnification amounts, or other amounts, direct or indirect, absolute or contingent, jomt or several,
liquidated or not liquidated, due or to become due, 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 asecurity
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:
"A"
ALL that certain plot, piece or parcel of land, more particularly 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 commonlyknown as 60 EAST MAIN STREET, FONDA, NY,
AND AS SECTION35.12, BLOCK 3, LOT 23, 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 by this 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) all easements, 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
m the bed of any street, road or avenue, opened or proposed, in front of or the Premises to the
adjoining
center line thereof;
.
(b) all machinery, ap aratus, equipment, furniture, fittings, fixtures and other property ofevery kind
and nature whatsoever owne in connection with the Mortgaged
by the Mortgagor Property, or in which the
Mortgagor has or shall have an interest, now or hereafter located upon the Mortgaged Property, and usable
m connection with the present or future operation and occupancy of the Mortgaged Property, and all
buildmgs, 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
( ncludmg
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
hereafter entered into, and the right to receive and
y apply the rents, issues and profits of the Mortgaged
mperty to the payment of the aforementioned indebtedness;
(e) all proceeds of any unearned premiums on any insurance policies the Mortgaged
pro covering
Perty, moludmg, without the right to receive and apply the proceeds of any insurance,
limitation,
FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477
NYSCEF DOC.: NO. 180 INDEX
RECEIVED NO.
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F IÈfED MONTGOMERY COUNTY CLERK 0 2 / 10 / 2 0 2 3 12 : 5 6 PM|
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100 INSTR# : 2010 -37 915 0 6 /07 / 2010 MORTGAGE Image : 3 of 13
.
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:
I. CROSS DEFAULT; APPLICATION OF FUNDS. A default by Mortgagoreither 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"
clause) in an amount to be approved by the Mortgagee, not exceeding in the aggregate one hundred
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 payment of the premiums for such insurance and
evidencing
the Mortgagor will assign and deliver the
policy or policies of such insurance to the Mortgagee, which policy
or pobcies shall have endorsed thereon the standard New York Mortgagee Clause in the name of the
Mortgagee in such manner and form as approved bythe 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 defauh of so doing, the Mortgagee
therefor, and in such event the Mortgagor
may procure such insurance, and pay the premiums
will on demand pay to the Mortgagee such premiums so paid, with
mterest 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
msurance receive
any sum or sums of money for damage by the perils insured agamst, such sums may be
FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477
NYSCEF INDEX NO. EF2022-477
FILED:DOC. NO. 180
MONTGOMERY COUNTY CLERK 02 /10/2023 12 : 56 PM|
RECEIVED NYSCEF: 04/24/2023
NYS EF DOC. NO. 143 RECEIVED NYSCEF: 02/10/2023
100 INSTR#: 2010-37915 06/07/2010 MORTGAGE Image: 4 of 13
All County Title/Escrow Town: Mohawk
Title # 10-ACA-10108 SBL: 35.12-3-23
Schedule A Description
ALL THAT TRACT OR PARCEL OF LAND, situate in the Village of
Fonda, Montgomery County, New York, bounded and described as follows:
BEGINNING at an iron pipe set in the southerly margin of New York State
Route 5 (East Main Street) which point lies south-88 degrees 00 minutes 00
seconds east 38.73 feet as measured along said margin from the intersection
of the extension of the easterly margin of Cemetery Street with the southerly
5-
margin of said Route
THENCE south 88 degrees 00 minutes 00 seconds east 285.00 feet along the
southerly margin of said Route 5 to an iron pipe the most
marking
northwesterly corner of lands of Compani;
THENCE south 2 degrees 28 minutes 05 s,econds west 21 I.43 feet along the
westerly line of lands of Compani to an iron pipe set in the line of
northerly
lands of Montrose Railroad Company;
THENCE north 86 degrees 25 minutes 24 seconds 285.04 feet along the
northerly side of said Railroad to an iron pipe;
THENCE north 2 degrees 28 minutes 05 seconds east 203.59 feet along the
. easterly line of lands of Geloso to the point or place of beginning.
Containing 59,l38 feet or 1.36 acres of land, more or less.
-, Nore in
particularly described a recent survey by Daniel J.
O'Brien, PLS dated March 4, 2010 as follows:-
I
FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477
NYSCEF F:
F IIF DOC. NO. 180
MONTGOMERY COUNTY CLERK INDEX
RECEIVED NO.
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04/24/2023
0 2 / 10 / 2 0 2 3 12 : 5 6 PM)
NYSCIF DOC. NO. 143 RECEIVED NYSCEF: 02/10/2023
100 INSTR#: 2010-37915 06/07/2010 MORTGAGE Image: 5 of 13
All County Title/Escrow Town: Mohawk
Title # 10-ACA-10108 SBL: 35.12-3-23
.
Schedule A Description
All that certain lot, piece or parcel of land situate, lying and being in the Village of
Fonda, County of Montgomery, State ofNew York and being more accurately bounded and
described as follows:
Beginning at a point in the southerly line of New York State Route # 5 (a.k.a East Main
Street) being at the northeasterly corner of lands of Geloso as described in deed liber 404 page
802 and also being the northwesterly most corner of the here-in described parcel; thence from the
said point or place of beginning and following along the southerly line ofNew York State Route
#5, South 88 degrees 00 minutes 00 seconds East 285.00 feet to a point; thence along the line of
lands of Hanson as described in d1.708 pg.15, South 02 degrees 28 minutes 05 seconds West
211.43 feet to a point
being the rustedremains ofanold pipe found; thence along the lands of
New York Central
Line, Inc., North 86 degrees 25 minutes 24 seconds West 285.04 feet to a
point; thence along the line of Geloso before mentioned, North 02 degrees 28 minutes 05 seconds
East 203.59 feet to the point or place of beginning and containing 1.35 acres of land, more or less.
FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477
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retained and applied by the Mortgagee to payment ofthe indebtedness and interest secured by this Mortgage,
or the same may be paid over either wholly or in part to the Mortgagor for the repairof 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
forsuch 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.
2 8. ESCROWS FOR TAXES, INSURANCE. Notwithstanding 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 comparabie 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, on or before the dates on which 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 beld 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. or improvement
No building 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
r specified, (A) regardless of any subsequent agreement with any other person, firm
corporation modifying,
in said Note or amending, altering or changing the terms of the Note or any agreement referred
this Mortgage, or spreadmg the lien thereof, or consolidating the same with any other
Notegage, the obli ations of the Mortgagor to pay the indebtedness and interest at the rate specified in the
secured by is Mortgage shall not be released or discharged or affected in any way, and/or (B)
.gagor shall not, at the sole
discretion of the Mortgagee, be entitled to a release or satisfaction of the lien
inay'
% Ortgage with respect to
SScany portion ofthe
any of the Mortgaged Property. Notwithstanding the foregoing, Mortgagee
as to th c Mortgaged Property for such consideration as Mortgagee may require without,
retnainder of the Mortgaged Property, in any way impairing or affecting the lien or priority of this
. nt, or
improving the position of any subordinate lien holder with respect thereto, except to the e
FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477
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NYSCEF 180 INDEX
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NYSDEF DOC. NO. 143 RECEIVED NYSCEF: 02/10/2023
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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 will 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 perfonnance of any of the covenants, conditions,
agreements or warranties under this Mortgage and the Note, or, if they 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 financial 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 Presitient, 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,
costs, disbursements and/or expenses (including, without limitation, attorneys', consultants'and experts'fees,
expenses and disbursements) of any kind or nature whatsoever by whomever asserted which may at any time
be imposed upon, incurred by or asserted or awarded against Mortgagee relating to, resulting from orarising
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 ofany 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 Release on, 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 orthe ownership, use, operation, sale, transfer or conveyance thereof;(e) violation ofany applicable
environmental law; or (f) noncompliance with any environmental permit.
, I4.I. The liability of Mortgagor to Mortgagee hereunder shall in no way be limited, abridged,
impaired or otherwise affected by (1) any amendment or modification of the Note; (ii) any increase in the
amount of the 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
securityor limiting Mortgagee's rights to a deficiency judgment against Mortgagor;(vi)any applicablestatute
4
FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477
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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 Mongagor 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 pan, of Mortgagor under this Mortgage.
Substance"
14.2. For purposesof this paragraph, "H
Preview
FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 04/24/2023 EXHIBIT D FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477 NYSCEF DOC.: NO. |F ILED 180 MONTGOMERY COUNTY CLERK 0 2 / 10 INDEX RECEIVED NO. EF20*2-477 NYSCEF: 04/24/2023 / 2 0 2 3 12 : 5 6 PM| NYSCdF DOC. NO. 143 RECEIVED NYSCEF: 02/10/2023 100 INSTR# : 2 010 -3 7 915 0 6 /0 7 / 2 010 MORTGAGE Image : 2 of 13 0UNTY TITLE/ESCROW , (845)794-3050 ITLE#ACA- ,D/06 MORTGAGE THIS MORTGAGE made this Ist day of April, 2010, between Robinhood Properties L.L.C., a New York limited liability company with an office at 133 Main Street, Mountaindale, NY 12763 ("Mortgagor") and Habib American Bank, located at 99 Madison Avenue, New York, NY I0016 ("Mortgagee"); WITNESSETH that to secure payment of a principal indebtedness in the sum of SIX HUNDRED EIGHTY THOUSAND DOLLARS ($680,000) (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 to secure payment of all interest, late charges, and other sums, charges, premiums, indemnification amounts, or other amounts, direct or indirect, absolute or contingent, jomt or several, liquidated or not liquidated, due or to become due, 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 asecurity 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: "A" ALL that certain plot, piece or parcel of land, more particularly 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 commonlyknown as 60 EAST MAIN STREET, FONDA, NY, AND AS SECTION35.12, BLOCK 3, LOT 23, 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 by this 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) all easements, 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 m the bed of any street, road or avenue, opened or proposed, in front of or the Premises to the adjoining center line thereof; . (b) all machinery, ap aratus, equipment, furniture, fittings, fixtures and other property ofevery kind and nature whatsoever owne in connection with the Mortgaged by the Mortgagor Property, or in which the Mortgagor has or shall have an interest, now or hereafter located upon the Mortgaged Property, and usable m connection with the present or future operation and occupancy of the Mortgaged Property, and all buildmgs, 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 ( ncludmg 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 hereafter entered into, and the right to receive and y apply the rents, issues and profits of the Mortgaged mperty to the payment of the aforementioned indebtedness; (e) all proceeds of any unearned premiums on any insurance policies the Mortgaged pro covering Perty, moludmg, without the right to receive and apply the proceeds of any insurance, limitation, FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477 NYSCEF DOC.: NO. 180 INDEX RECEIVED NO. NYSCEF: EF2022-477 04/24/2023 F IÈfED MONTGOMERY COUNTY CLERK 0 2 / 10 / 2 0 2 3 12 : 5 6 PM| NYSÓEF DOC. NO. 143 RECEIVED NYSCEF: 02/10/2023 100 INSTR# : 2010 -37 915 0 6 /07 / 2010 MORTGAGE Image : 3 of 13 . 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: I. CROSS DEFAULT; APPLICATION OF FUNDS. A default by Mortgagoreither 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" clause) in an amount to be approved by the Mortgagee, not exceeding in the aggregate one hundred 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 payment of the premiums for such insurance and evidencing the Mortgagor will assign and deliver the policy or policies of such insurance to the Mortgagee, which policy or pobcies shall have endorsed thereon the standard New York Mortgagee Clause in the name of the Mortgagee in such manner and form as approved bythe 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 defauh of so doing, the Mortgagee therefor, and in such event the Mortgagor may procure such insurance, and pay the premiums will on demand pay to the Mortgagee such premiums so paid, with mterest 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 msurance receive any sum or sums of money for damage by the perils insured agamst, such sums may be FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477 NYSCEF INDEX NO. EF2022-477 FILED:DOC. NO. 180 MONTGOMERY COUNTY CLERK 02 /10/2023 12 : 56 PM| RECEIVED NYSCEF: 04/24/2023 NYS EF DOC. NO. 143 RECEIVED NYSCEF: 02/10/2023 100 INSTR#: 2010-37915 06/07/2010 MORTGAGE Image: 4 of 13 All County Title/Escrow Town: Mohawk Title # 10-ACA-10108 SBL: 35.12-3-23 Schedule A Description ALL THAT TRACT OR PARCEL OF LAND, situate in the Village of Fonda, Montgomery County, New York, bounded and described as follows: BEGINNING at an iron pipe set in the southerly margin of New York State Route 5 (East Main Street) which point lies south-88 degrees 00 minutes 00 seconds east 38.73 feet as measured along said margin from the intersection of the extension of the easterly margin of Cemetery Street with the southerly 5- margin of said Route THENCE south 88 degrees 00 minutes 00 seconds east 285.00 feet along the southerly margin of said Route 5 to an iron pipe the most marking northwesterly corner of lands of Compani; THENCE south 2 degrees 28 minutes 05 s,econds west 21 I.43 feet along the westerly line of lands of Compani to an iron pipe set in the line of northerly lands of Montrose Railroad Company; THENCE north 86 degrees 25 minutes 24 seconds 285.04 feet along the northerly side of said Railroad to an iron pipe; THENCE north 2 degrees 28 minutes 05 seconds east 203.59 feet along the . easterly line of lands of Geloso to the point or place of beginning. Containing 59,l38 feet or 1.36 acres of land, more or less. -, Nore in particularly described a recent survey by Daniel J. O'Brien, PLS dated March 4, 2010 as follows:- I FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477 NYSCEF F: F IIF DOC. NO. 180 MONTGOMERY COUNTY CLERK INDEX RECEIVED NO. NYSCEF: EF2022-477 04/24/2023 0 2 / 10 / 2 0 2 3 12 : 5 6 PM) NYSCIF DOC. NO. 143 RECEIVED NYSCEF: 02/10/2023 100 INSTR#: 2010-37915 06/07/2010 MORTGAGE Image: 5 of 13 All County Title/Escrow Town: Mohawk Title # 10-ACA-10108 SBL: 35.12-3-23 . Schedule A Description All that certain lot, piece or parcel of land situate, lying and being in the Village of Fonda, County of Montgomery, State ofNew York and being more accurately bounded and described as follows: Beginning at a point in the southerly line of New York State Route # 5 (a.k.a East Main Street) being at the northeasterly corner of lands of Geloso as described in deed liber 404 page 802 and also being the northwesterly most corner of the here-in described parcel; thence from the said point or place of beginning and following along the southerly line ofNew York State Route #5, South 88 degrees 00 minutes 00 seconds East 285.00 feet to a point; thence along the line of lands of Hanson as described in d1.708 pg.15, South 02 degrees 28 minutes 05 seconds West 211.43 feet to a point being the rustedremains ofanold pipe found; thence along the lands of New York Central Line, Inc., North 86 degrees 25 minutes 24 seconds West 285.04 feet to a point; thence along the line of Geloso before mentioned, North 02 degrees 28 minutes 05 seconds East 203.59 feet to the point or place of beginning and containing 1.35 acres of land, more or less. FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477 NYSCEF (F II)EDDOC.: NO. 180 MONTGOMERY COUNTY CLERK 0 2 / 10 12 INDEX RECEIVED NO. NYSCEF: EF2022-477 04/24/2023 / 2 0 2 3 : 5 6 PM| NYSÒEF DOC. NO. 143 RECEIVED NYSCEF: 02/10/2023 INSTR# : 2010-37 915 0 6 /O 7 / 2010 MORTGAGE Image : 6 of 13 100 retained and applied by the Mortgagee to payment ofthe indebtedness and interest secured by this Mortgage, or the same may be paid over either wholly or in part to the Mortgagor for the repairof 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 forsuch 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. 2 8. ESCROWS FOR TAXES, INSURANCE. Notwithstanding 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 comparabie 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, on or before the dates on which 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 beld 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. or improvement No building 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 r specified, (A) regardless of any subsequent agreement with any other person, firm corporation modifying, in said Note or amending, altering or changing the terms of the Note or any agreement referred this Mortgage, or spreadmg the lien thereof, or consolidating the same with any other Notegage, the obli ations of the Mortgagor to pay the indebtedness and interest at the rate specified in the secured by is Mortgage shall not be released or discharged or affected in any way, and/or (B) .gagor shall not, at the sole discretion of the Mortgagee, be entitled to a release or satisfaction of the lien inay' % Ortgage with respect to SScany portion ofthe any of the Mortgaged Property. Notwithstanding the foregoing, Mortgagee as to th c Mortgaged Property for such consideration as Mortgagee may require without, retnainder of the Mortgaged Property, in any way impairing or affecting the lien or priority of this . nt, or improving the position of any subordinate lien holder with respect thereto, except to the e FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477 [F Ib:DOC. NO. NYSCEF 180 INDEX RECEIVED NO. NYSCEF: EF2022-477 04/24/2023 MONTGOMERY COUNTY CLERK 0 2 / 10 / 2 0 2 3 12 : 5 6 PM) NYSDEF DOC. NO. 143 RECEIVED NYSCEF: 02/10/2023 100 INSTR #: 2010-37 915 0 6 /07 /2010 MORTGAGE Image: 7 of 13 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 will 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 perfonnance of any of the covenants, conditions, agreements or warranties under this Mortgage and the Note, or, if they 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 financial 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 Presitient, 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, costs, disbursements and/or expenses (including, without limitation, attorneys', consultants'and experts'fees, expenses and disbursements) of any kind or nature whatsoever by whomever asserted which may at any time be imposed upon, incurred by or asserted or awarded against Mortgagee relating to, resulting from orarising 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 ofany 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 Release on, 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 orthe ownership, use, operation, sale, transfer or conveyance thereof;(e) violation ofany applicable environmental law; or (f) noncompliance with any environmental permit. , I4.I. The liability of Mortgagor to Mortgagee hereunder shall in no way be limited, abridged, impaired or otherwise affected by (1) any amendment or modification of the Note; (ii) any increase in the amount of the 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 securityor limiting Mortgagee's rights to a deficiency judgment against Mortgagor;(vi)any applicablestatute 4 FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477 NYSCEF INDEX NO. EF2022-477 F IIEDDOC.: NO. 180 MONTGOMERY COUNTY CLERK 0 2 / 10 / 2 0 2 3 12 : 5 6 PM| RECEIVED NYSCEF: 04/24/2023 NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 02/10/2023 INSTR# : 2010-37 915 06/07/2010 MORTGAGE Ima ge : 8 of 13 100 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 Mongagor 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 pan, of Mortgagor under this Mortgage. Substance" 14.2. For purposesof this paragraph, "H