Preview
FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477
NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 04/24/2023
EXHIBIT J
FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477
NYSCEF
FILED DOC. NO. 186 INDEXNYSCEF:
RECEIVED 022 - 477
NO . EF204/24/2023
: MONTGOMERY COUNTY CLERK 0 2 /10 /2 023 12 : 5 6 PM)
NYSCEF DOC. NO. 147 RECEIVED NYSCEF: 02/10/2023
ALLONGE
This Allonge is intended to constitute an endorsement to that certain Consolidated Term Note
dated June 20, 2012 in the original consolidated principal amount of Two Million Three Hundred
Thousand and 00/100ths Dollars ($2,300,000.00) made by Robinhood Properties L.L.C., Little Falls
Garden Apartments LLC and Brookview Town Houses LLC (collectively, the "Borrower") in favor
of First Niagara Bank, N.A. ("First Niagara"), to which this Allonge is attached. The foregoing
Consolidated Term Note (the "Note") consolidated, amended and replaced certain prior promissory
notes as follows:
(a) Promissory Note dated as of April 1, 2010 made by Robinhood Properties L.L.C.
in favor of Habib American Bank in the original principal amount of
$680,000.00, as assigned to First Niagara by an Allonge dated as of June 19,
2012;
(b) Promissory Note dated as of April 1, 2010 made by Brookview Town Houses
LLC in favor of Habib American Bank in the original principal amount of
$265,000.00, as assigned to First Niagara by an Allonge dated as of June 19,
2012;
(c) Promissory Note dated as of April 7, 2010 made by Little Falls Garden
Apartments LLC in favor of Habib American Bank in the original principal
amount of $332,367.00, as consolidated with a Promissory Note dated as of
February 17, 2012 made by Little Falls Garden Apartments LLC in favor of
Habib American Bank in the original principal amount of $183,865.22 to form a
single consolidated promissory note in the principal amount of $500,000.00, and
as assigned to First Niagara by an Allonge dated as of June 19, 2012; and
(d) Promissory Note dated as of February 17, 2012 made by Little Falls Garden
Apartments LLC in favor of Habib American Bank in the original principal
amount of $100,000.00, as assigned to First Niagara by an Allonge dated as of
June 19, 2012.
PAY TO THE ORDER OF REALFI REAL ESTATE INVESTMENT TRUST LLC,
A DELAWARE SERIES LIMITED LIABILITY COMPANY AT ITS OFFICES AT 707
WESTCHESTER AVENUE, SUITE 305, WHITE PLAINS, NEW YORK 10604 1, ITS
SUCCESSORS, LEGAL REPRESENTATIVES AND/OR ASSIGNS, WITHOUT
RECOURSE, AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY IGND
WHATSOEVER, EITHER EXPRESS OR IMPLIED, EXCEPT AS SET FORTH IN THAT
CERTAIN LOAN SALE AGREEMENT DATED AS OF EVEN DATE HEREWITH.
[Signature appears on Following Page}
4596617.vl
FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477
NYSCEF INDEXNYSCEF:
NO. EF2022-477
FILED DOC.
: NO. 186
MONTGOMERY COUNTY CLERK 02 /10 /2 0 2 3 12 : 5 6 PMj
RECEIVED 04/24/2023
NYSCEF DOC. NO. 147 RECEIVED NYSCEF: 02/10/2023
IN WITNESS WHEREOF, the Assignor has made and executed this Non-Recourse
Assignment of Assignment of Leases and Rents as of the day of October 2020.
COR HOLDINGS LLC
By:
Name: CarTOfsini
Title: Member/Manager
STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
On the day of October 2020, before me, the undersigned, a notary public in and for said
state, personally appeared Carl Orsini, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his signature on the
instrument, the individual, or the corporation upon behalf of which the individual acted, executed the
instrument.
Not ry Public
SCOTTA. LlCKSTElN
NewYork
Notary Public, State of
Qualified in OnondagaCo., No. 02Ll4 33888
CommissionExpiresAugust31, 2
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FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477
NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 04/24/2023
Q FIRST
t§ NIAGARA
CONSOLIDATED TERM NOTE
(LIBOR SWAP TRANSACTION)
$2,300,000.00 DATE OF NOTE: JUNE 20, 2012
FOR VALUE RECEIV E D, and intending to be legally bound, LITTLE FALLS GARDEN APARTMENTS LLC,
ROBINHOOD PROPERTIES L.L.C., and BROOKVIEW TOWN HOUSES LLC
(separately or collectively,
"Borrower"), each a limited liability company organized under the laws of the State of New York, each having its
principal business address at
PO Box 121, Mountaindale, New York, 12767, jointly and severally promise to pay to
FIRST NIAGARA BANK, N.A. a national banking association with a corporate address at PO Box 28, Buffalo,
New York 14240-0028 ("Lender") or order, on or before the Maturity Date, as hereinbelow defined, the principal sum
of TWO MILLION THREE HUNDRED THOUSAND AND 00/100THS DOLLARS ($2,300,000.00) (the "Loan"),
together with interest thereon as provided under the terms of this Note until the Maturity Date, if not sooner paid in full.
1. INTEREST RATE. Subject to the terms of this Note, the outstanding principal balance of this Note shall bear
interest at a rate per annum equal to the LIBOR Rate for the Interest Period plus three hundred (300) basis points (the
"LIBOR-Based Rate").
The following capitalized terms used in this Note shall have the following meanings:
Period"
"Interest shall mean with respect to any LIBOR Advance, the one (1)-month period commencing on the first
day of each month, except for the first Interest Period hereunder, which first Interest Period shall commence on the later
of the date of this Note or the date upon which Lender advances the principal of the Loan to Borrower.
Advance"
"LIBOR shall mean any advances under the Note bearing interest based upon the LIBOR-Based Rate.
Rate"
"LIBOR shall mean a variable interest rate per annum (rounded upwards, if necessary) determined by Lender by
dividing (a) the British Bankers Association LIBOR rate which is published on Bloomberg Screen, BBAM1 (or any
successor as may replace such page in said service for the purposes of display of the interbank interest rates offered on
the London market) at 11:00 a.m. London time two (2) Business Days prior to the commencement of the Interest (
Rate"
Period; provided, however, if such rate in not available, "LIBOR shall mean the rate of interest per annum
determined by Lender to be the average rate per annum at which United States dollar deposits in a similar amount are
offered for such Interest Period by major banks in the London interbank deposit market at approximately 11:00 a.m.
London time two (2) Business Days prior to the commencement of the Interest Period, by (b) a number equal to 1.00
less the Reserve Requirement.
Documents"
"Loan shall mean collectively this Note, the Loan Agreement, as defined in Paragraph 9 of this Note, and
all other documents or instruments entered into, executed and delivered with respect to the Loan, whether now or
hereafter existing, and any and all consolidations, extensions, modifications, amendments, substitutions, replacements,
or changes in terms thereof.
"London Day" are open for international
Business shall mean any Business Day on which commercial banks business
(including dealings in United States dollar deposits in the London Interbank Eurodollar) in New York City.
Date"
"Maturity shall mean July 1, 2022, the date upon which all outstanding amounts outstanding under this Note and
the other Loan Documents are immediately due and payable in full.
Day"
"Business shall mean with respect to LIBOR Advances, a London Business Day and with respect to all other
advances, any day other than a Saturday, Sunday or legal holiday on which commercial banks in New York State are
required or permitted by law to close.
Rate"
"Prime shall mean the variable rate of interest announced by Lender from time to time as its prime rate for
calculating interest on certain loans. The Prime Rate may or may not be the most favorable rate charged by Lender to
its customers from time to time.
FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477
NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 04/24/2023
"Reserve Requirement"
shall mean the percentage which Lender determines to be the maximum reserve requirement
(including, without
limitation, any emergency, marginal, special or supplemental reserve requirement) prescribed for so-
liabilities"
called "Burocurrency (or any other category of eurocurrency funding) prescribed by the Board of Governors
of the Federal Reserve System (or under any successor regulation which Lender determines to be applicable) with each
change in such maximum reserve requirement automatically, immediately and without notice changing the LIBOR Rate
thereafter applicable to each LIBOR Advance.
Rate" the Prime The Variable change
"Variable shall mean Rate plus two percent (2.00%) per annum. Rate shall
simultaneously with changes to the Prime Rate.
Advance"
"Variable Rate shall mean any advances under the Note bearing interest based upon the Variable Rate.
2. ADDITIONAL INTEREST PROVISIONS.
(a) Borrowers shall pay interest, calculated on the basis of a 360-day year for the actual number of days
of each year (365 or 366, as applicable), on the outstanding principal amount of the Loan from and including the date of
this Note, through, but not including, the date all amounts outstanding under this Note and the other Loan Documents
are finally and indefeasibly paid in full.
(b) If, pursuant to the terms of this Note, Borrower is at any time obligated to pay interest on the principal
balance of this Note at a rate in excess of the maximum interest rate permitted by applicable law, the applicable interest
rate shall be immediately reduced to such maximum rate and all previous payments in excess of the maximum rate shall
be deemed to have been payments in reduction of principal and not on account of the interest due hereunder.
(c) After the occurrence of an Byent of Default, at Lender's option, interest shall accrue at a rate per
annum equal to the aggregate of six per cent (6%) plus the rate otherwise applicable (the "Default Rate"), and such
Default shall continue to apply whether or not judgment shall be entered on this Note.
(d) Upon request, Lender shall give prompt notice to Borrower of the LIBOR Rate as determined and
adjusted herein, which determination shall be conclusive absent manifest error.
(e) Bxcept as otherwise provided, each Interest Period shall commence on the first day of each month and
end on the last day of the Interest Period; provided, however, that (i) any Interest Period that would otherwise end on a
day which is not a Business Day shall be extended to the next Business Day unless such day falls in the next calendar
month, in which case the Interest Period shall end on the next preceding Business Day, (ii) Borrower may not select
any Interest Period that would otherwise extend beyond Maturity and (iii) each subsequent Interest Period, to the extent
applicable, shall commence automatically and immediately on the last day of the preceding Interest Period.
(f) In the
event that Lender shall determine that by reason of circumstances affecting the London
Interbank market, adequate and reasonable means do not exist for determining
Eurodollar the LIBOR Rate or dollar
deposits are not available to Lender in the Interbank Burodollar market with respect to a proposed LIBOR Advance,
Lender shall give Borrower notice of such determination and (i) any requested LIBOR Advance shall be made as a
Days'
Variable Rate Advance, unless Borrower gives Lender two (2) Business prior notice that its request for such
borrowing is canceled; (ii) any advance which was to have been converted to a LIBOR Advance shall be continued as a
Variable Rate Advance; and (iii) any outstanding LIBOR Advance shall be converted to a Variable Rate Advance on
the last Business Day of the applicable Interest Period. Thereafter, Lender shall have no obligation to make LIBOR
Advances or maintain outstanding LIBOR Advances and Borrower shall not have the right to request LIBOR Advances.
Lender shall be entitled to fund and maintain its funding of all or any part of any LIBOR Advance in any manner
Lender may from time to time deem advisable, Barrower hereby acknowledging that all determinations relating to
LIBOR Advances shall be made as if Lender had actually funded and maintained each such LIBOR Advance by the
purchase of deposits in an amount shnilar to the amount of that advance, with a maturity shnilar to the Interest Period
for that advance and bearing interest at LIBOR with respect to that advance.
(g) If Lender that any applicable
shall determine law, treaty, regulation, guideline or directive, or any
change therein or in the interpretation shall
or application
thereof, make it unlawful or impossible for Lender to make or
maintain LIBOR Advance, the obligation of Lender hereunder to make or maintain such LIBOR Advance shall
any
terminate and Borrower shall, if any such LIBOR Advance is outstanding, promptly upon request from Lender, prepay
such LIBOR Advance or convert such LIBOR Advance to a Variable Rate Advance. If any such payment is made on a
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NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 04/24/2023
day that is not the last Business Day of the then current Interest Period, Borrower shall pay Lender, upon Lender's
request, any amount required under Section 5 hereof..
3. REPAYMENT. On the date hereof, if requested by Lender, Borrower shall pay to Lender interest only in
advance for the month in which this Note is dated. Borrower shall repay the outstanding balance of this Note in one
hundred twenty (120) consecutive monthly payments of principal in the amount set forth on Schedule A hereto plus
accrued interest at the applicable
interest rate, commencing August 1, 2012,, and continuing on the first (1st) day of
each consecutive until the Maturity
month Date, when all amounts outstanding under this Note and the Loan Documents
shall immediately be due and payable in full without further notice being required to be given by Lender to Borrower.
Interest shall be payable, in arrears, on the first applicable Business Day following the expiration of the applicable
Interest Period or, at Lender's option, on'the first day of each month commencing with the month following the date of
this Note and on the date the LIBOR Advances are paid in full
4. APPLICATION; BUSINESS DAY. Borrower shall make all payments on this Note to Lender at its address
stated above or at such other place as the holder of this Note may designate. All payments shall be made absolutely net
of, without deduction or offset and free and clear of taxes, deductions, charges or withholding of any kind. Leader shall
apply all payments received on this Note to any accrued and unpaid interest then due and owing, then to the reduction of
principal of this Note, then to other sums due hereunder in such order and in such amounts as Lender may determine
from time to time. The sum or sums shown on Lender's records shall be evidence of the correct unpaid balances of
principal and interest on this Note, absent manifest error. If any payment comes due on a day that is not a Business
Day, as defined above, Borrower may make the payment on the first Business Day following the payment date and pay
the additional interest accrued to the date of payment,
S. PREPAYMENT.
This Note may be prepaid in whole or in part at any time provided that if Borrower prepays any LIBOR Advance or any
outstanding principal amount, in whole or in part, other than on the last day of any applicable Interest Period or upon the
occurrence of an Event of Default hereunder, then Borrower shall concurrently with such prepayment, pay to Lender (a)
the accrued interest on the principal being prepaid and (b) a prepayment premium in an amount computed as follows:
the current rate for United
States Treasury securities with a maturity date closest to the maturity hereof (the
"Reinvestment Rate") shall be subtracted from the LIBOR Rate at the time of prepayment. If the LIBOR Rate is less
than or equal to the Reinvestment Rate, no prepayment premium shall be due. If the Reinvestment Rate is less than the
LIBOR Rate, then the excess percentage shall be multiplied by the amount of the principal balance being prepaid. The
resulting amount shall be divided by 360 and multiplied by the number of days remaining until the Maturity Date, and
the amount shall be reduced to present value calculated by using the number of days remaining in the designated term
and using the above-referenced United States Treasury security rate and the number of days remaining until the
Maturity Date. The resulting amount shall be the prepayment premium due to Lender upon prepayment. If this Note
shall become due and payable for any reason (whether by demand or otherwise), then any prepayment premium with
respect to this Note shall become due and payable in the same manner as though Borrower had exercised its right of
prepayment. Borrower recognizes that Lender will incur substantial additional costs and expenses including loss of
yield and anticipated profitability in the event of prepayment of all or part of this Note and that the prepayment
premium compensates Lender for such costs and expenses. Borrower acknowledges that the prepayment premium is
bargained-for consideration and not a penalty. Borrower's indemnification obligations shall survive the termination of
this Note.
6. LATE FEE, If any payment due under this Note is unpaid for ten (10) days or more, Borrower shall pay, in
addition to any other sums due under this Note (and without limiting Lender's other remedies on account thereof), a late
charge in an amount equal to 6% of such unpaid amount.
7. USE OF PROCEEDS. The proceeds of the Loan shall be used by Borrower for (a) refinancing mortgage-
secured indebtedness which Borrower has outstanding with Lender; (b) taking equity from the Real Property for use in
recovering costs out-of-pocket expended by Borrower in performing certain renovations to the Real Property and/or
Improvements thereon, (c) funding all or a portion of the closing costs associated with obtaining and closing on the
Loan; and (d) making a distribution to Borrower's sole member.
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NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 04/24/2023
8. MAINTAIN OPERATING ACCOUNTS. Borrower agrees to maintain with Lender its primary deposit and
operating accounts. At the option of Lender, all interest payments, principal payments and fees will automatically be
deducted from Borrower's primary operating account.
9. LOAN AGREEMENT. This Note is executed and delivered subject to the terms of a Loan Agreement
dated as of even date herewith between Borrower and Lender may (as the same be amended or supplemented
from time to time, the "Loan
Agreement") and reference is hereby made to the Loan Agreement for the
provisions relating to Lender's rights of acceleration of the outstanding principal balance of the Loan upon the
occurrence of an Event of Default (as defined in the Loan Agreement) and Lender's remedies.
10. SETOFF. Without limiting its rights of setoff under New York law-generally, if the unpaid principal amount
of this Note, interest accrued on the unpaid principal amount thereof or other amount owing by Borrower under this
Note or the other Loan Documents shall have become due and payable (at maturity, by acceleration or otherwise),
Lender will have the right, in addition to all other rights and remedies available to it, without notice to Borrower, to
setoff against
and to appropriate and apply to such due and payable amounts any obligations owing to, and any other
funds held
in any manner for the account of, Borrower by Lender or any other direct or indirect subsidiary of First
Niagara Financial Group, Inc. ("FNFG"), including, without limitation, all funds in all deposit accounts (whether time
or demand, general or special, provisionally credited or finally credited, or otherwise) now or in the future maintained
by Barrower. Borrower consents to and confirms the foregoing arrangernents and confirms the rights of banker's lien
and setoff. Nothing in this Note will be deemed a waiver or prohibition of or restriction on such rights of banker's lien
or setoff.
11, LOSS OF MARGIN. of, any change in or any change in the interpretation
If the adoption of any law,
regulation or guideline by any applicable
governmental authority, central bank or similar agency exercising control over
financial institutions (a "Governmental
Rule") or the compliance by Lender with the Governmental Rule imposes any
reserve, deposit, allocation of capital or similar requirement (including, without limitation, Regulation D of the Board of
Governors of the Federal Reserve System) on Lender or FNFG and the result of which is to reduce the rate of return on
Lender's capital then, and in each such case, Lender will deliver to Borrower a statement of the justification therefor
and the amount necessary to compensate Lender or FNFG for such reduced rate of return, Each determination by
Lender shall be conclusive absent obvious error and shall be payable by Borrower to Lender upon Lender's demand, In
determining any such amount, Leader may use reasonable averaging and attribution methods.
12. PAYMENT OF FEES AND EXPENSES. Borrower agrees to pay, upon demand, costs of collection of all
amounts due under this
Note, including, without
limitation, principal, interest and fees, or in connection with the
enforcement of, or realization on, any security for this Note, including, without limitation, to the extent permitted by
applicable attorneys'
law, reasonable fees and expenses.
13. GOVERNING LAW. This Note shall be interpreted and the rights and liabilities of the parties shall be
governed by the laws of the State of New York, without regard to principles of the conflict of laws. This Note has been
delivered to and accepted by Lender and will be deemed to be made in the State ofNew York.
14. GENERAL PROVISIONS.
(a) Borrower waives presentment, demand, notice, protest and all other demands and notices in
connection with delivery, acceptance, performance or enforcement of this Note.
(b) This Note, together with the other Loan Documents, contains the entire agreement between Lender
and Borrower respect to the subject matter hereof, and supersedes every course of dealing, other conduct, oral
with
agreement, commitment letter or other correspondence related thereto and representation previously made by Lender.
(c) Borrower agrees that in any legal proceeding, a copy of this Note kept in Lender's course of business
may be admitted into evidence as an original.
(d) This Note
is a binding obligation enforceable against Borrower and its permitted successors and
assigns and to the benefit of Lender and its successors and assigns.
shall inure Borrower may not assign any of its
rights or obligations hereunder without the prior written consent of Lender. If a court deems any provision of this Note
invalid, the remainder of this Note shall remain in effect.
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(e) At any time, promptly upon the request of Lender, Borrower shall furnish to Lender all information
relating to Borrower's business, operations, assets and condition, including, without limitation, verification of liquidity
. on an ongoing basis.
(f) If there is more than one Borrower, each of them shall be jointly and severally liable for all amounts
and obligations "Borrower"
which become due under this Note and the term shall include each as well as all of them,
(g) This Note is secured by collateral as specified in the applicable Loan Documents.
(h) No failure
by the holder hereof to exercise, and no delay in exercising, any right or remedy hereunder
shall operate as a waiver
thereof, nor shall any single or partial exercise by such holder of any right or remedy
hereunder preclude any other or further exercise thereof or the exercise of any other right or remedy. The rights and
remedies of the holder hereof as herein specified are cumulative and not exclusive of any other rights or remedies which
such holder may otherwise have.
(i) All notices, demands, or other communications hereunder must be in writing and will be effective
when delivered or mailed to the address set forth herein or such other address as provided by such party via overnight
delivery service or personal service or, if mailed, three (3) days after deposit, postage prepaid, in an official depository
maintained by the United States Post Office.
(i) Borrower
agrees to indemnify Lender and its affiliates and their respective officers, directors and
employees (collectively, "Indemnitees") and hereby holds Indemnitees harmless against all liabilities, claims, actions,
suits, proceedings, penalties, costs, expenses, brokerage or other fees .(including, without limitation, reasonable legal
fees and expenses), losses, damages and liabilities of any kind or nature including in tort, penalties and interest, which
Lender may incur in any manner other than Lender's own active gross negligence or willful misconduct, by reason of
any matter relating, directly or indirectly, to this Note and the related loan documents. This indemnity shall survive the
termination of this Note.
(k) To the fullest
extent permitted by applicable law, Borrower shall not assert, and hereby waives any
claim againstLender, on any theory of liability, for special, indirect, consequential or punitive damages (but excluding
direct or actual damages) arising out of in connection with or as a result of, this Note, any related loan documents, the
transactions contemplated hereby or thereby or any loan or the use of the proceeds.
15. JURISDICTION AND VENUE. BORROWER KNOWINGLY, VOLUNTARILY, INTENTIONALLY
AND IRREVOCABLY (A) CONSENTS IN EACH ACTION AND OTHER LEGAL PROCEEDING COMMENCBD
- BY LENDER AND ARIS1NG OUT OF OR OTHERWISE RELATING TO THIS NOTE OR ANY COLLATERAL
RELATED HERETO TO THE NONEXCLUSIVE PERSONAL JURISDICTION OF ANY COURT THAT IS
EITHER A COURT OF RECORD OF THE STATE OF NEW YORK OR A COURT OF THE UNITED STATES
LOCATED IN THE OF NEW YORK, (B) WAIVES
STATE EACH OBJECTION TO THE LAY1NG OF VENUE OF
ANY SUCH ACTION OR OTHER LEGAL PROCEEDING, (C) WAIVES PERSONAL SERVICE OF PROCESS IN
EACH SUCH ACTION AND OTHER LEGAL PROCEEDING, AND (D) CONSENTS TO THE MAKING OF
SERVICE OF PROCESS IN EACH SUCH ACTION AND OTHER LEGAL PROCEEDING BY REGISTERED
MAIL DIRECTED TO BORROWER AT THE LAST ADDRESS OF BORROWER SHOWN IN THE RECORDS
RELATING TO THIS NOTE MAINTAINED BY LENDER, WITH SUCH SERVICE OF PROCESS TO BE
DEEMED COMPLETED FIVE (5) DAYS AFTER THE MAILING THEREOF.
16. WAIVER OF JURY TRIAL. BORROWER KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND
IRREVOCABLY WAIVES EACH RIGHT BORROWER MAY HAVE TO A TRIAL BY JURY WITH RESPECT
TO, AND IN, ANY ACTION OR OTHER LEGAL PROCEEDING OF ANY NATURE, RELATING TO (A) THIS
NOTE, ANY RELATED LOAN DOCUMENT OR ANY COLLATERAL RELATED HERETO, (B) ANY
. TRANSACTION CONTEMPLATED BY ANY SUCH DOCUMENTS OR ANY NEGOTIATION,
(C)
PERFORMANCE OR ENFORCEMENT OF THIS NOTE, OR ANY COLLATERAL RELATED HERETO.
BORROWER CERTIFIES THAT NEITHER LENDER NOR ANY REPRESENTATIVE OF LENDER HAS
REPRESENTED TO BORROWER THAT LENDER WILL NOT SEEK TO ENFORCE THE WAIVER MADE BY
BORROWER 1N THIS PARAGRAPH. BORROWER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED
BY INDEPENDENT LEGAL COUNSEL OF ITS OWN CHOOSING WITH RESPECT TO THIS NOTE AND THE
LOAN.
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FILED: MONTGOMERY COUNTY CLERK 04/24/2023
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FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 04/24/2023 EXHIBIT J FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477 NYSCEF FILED DOC. NO. 186 INDEXNYSCEF: RECEIVED 022 - 477 NO . EF204/24/2023 : MONTGOMERY COUNTY CLERK 0 2 /10 /2 023 12 : 5 6 PM) NYSCEF DOC. NO. 147 RECEIVED NYSCEF: 02/10/2023 ALLONGE This Allonge is intended to constitute an endorsement to that certain Consolidated Term Note dated June 20, 2012 in the original consolidated principal amount of Two Million Three Hundred Thousand and 00/100ths Dollars ($2,300,000.00) made by Robinhood Properties L.L.C., Little Falls Garden Apartments LLC and Brookview Town Houses LLC (collectively, the "Borrower") in favor of First Niagara Bank, N.A. ("First Niagara"), to which this Allonge is attached. The foregoing Consolidated Term Note (the "Note") consolidated, amended and replaced certain prior promissory notes as follows: (a) Promissory Note dated as of April 1, 2010 made by Robinhood Properties L.L.C. in favor of Habib American Bank in the original principal amount of $680,000.00, as assigned to First Niagara by an Allonge dated as of June 19, 2012; (b) Promissory Note dated as of April 1, 2010 made by Brookview Town Houses LLC in favor of Habib American Bank in the original principal amount of $265,000.00, as assigned to First Niagara by an Allonge dated as of June 19, 2012; (c) Promissory Note dated as of April 7, 2010 made by Little Falls Garden Apartments LLC in favor of Habib American Bank in the original principal amount of $332,367.00, as consolidated with a Promissory Note dated as of February 17, 2012 made by Little Falls Garden Apartments LLC in favor of Habib American Bank in the original principal amount of $183,865.22 to form a single consolidated promissory note in the principal amount of $500,000.00, and as assigned to First Niagara by an Allonge dated as of June 19, 2012; and (d) Promissory Note dated as of February 17, 2012 made by Little Falls Garden Apartments LLC in favor of Habib American Bank in the original principal amount of $100,000.00, as assigned to First Niagara by an Allonge dated as of June 19, 2012. PAY TO THE ORDER OF REALFI REAL ESTATE INVESTMENT TRUST LLC, A DELAWARE SERIES LIMITED LIABILITY COMPANY AT ITS OFFICES AT 707 WESTCHESTER AVENUE, SUITE 305, WHITE PLAINS, NEW YORK 10604 1, ITS SUCCESSORS, LEGAL REPRESENTATIVES AND/OR ASSIGNS, WITHOUT RECOURSE, AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY IGND WHATSOEVER, EITHER EXPRESS OR IMPLIED, EXCEPT AS SET FORTH IN THAT CERTAIN LOAN SALE AGREEMENT DATED AS OF EVEN DATE HEREWITH. [Signature appears on Following Page} 4596617.vl FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477 NYSCEF INDEXNYSCEF: NO. EF2022-477 FILED DOC. : NO. 186 MONTGOMERY COUNTY CLERK 02 /10 /2 0 2 3 12 : 5 6 PMj RECEIVED 04/24/2023 NYSCEF DOC. NO. 147 RECEIVED NYSCEF: 02/10/2023 IN WITNESS WHEREOF, the Assignor has made and executed this Non-Recourse Assignment of Assignment of Leases and Rents as of the day of October 2020. COR HOLDINGS LLC By: Name: CarTOfsini Title: Member/Manager STATE OF NEW YORK ) ) ss.: COUNTY OF NASSAU ) On the day of October 2020, before me, the undersigned, a notary public in and for said state, personally appeared Carl Orsini, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the corporation upon behalf of which the individual acted, executed the instrument. Not ry Public SCOTTA. LlCKSTElN NewYork Notary Public, State of Qualified in OnondagaCo., No. 02Ll4 33888 CommissionExpiresAugust31, 2 4596617.vi FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 04/24/2023 Q FIRST t§ NIAGARA CONSOLIDATED TERM NOTE (LIBOR SWAP TRANSACTION) $2,300,000.00 DATE OF NOTE: JUNE 20, 2012 FOR VALUE RECEIV E D, and intending to be legally bound, LITTLE FALLS GARDEN APARTMENTS LLC, ROBINHOOD PROPERTIES L.L.C., and BROOKVIEW TOWN HOUSES LLC (separately or collectively, "Borrower"), each a limited liability company organized under the laws of the State of New York, each having its principal business address at PO Box 121, Mountaindale, New York, 12767, jointly and severally promise to pay to FIRST NIAGARA BANK, N.A. a national banking association with a corporate address at PO Box 28, Buffalo, New York 14240-0028 ("Lender") or order, on or before the Maturity Date, as hereinbelow defined, the principal sum of TWO MILLION THREE HUNDRED THOUSAND AND 00/100THS DOLLARS ($2,300,000.00) (the "Loan"), together with interest thereon as provided under the terms of this Note until the Maturity Date, if not sooner paid in full. 1. INTEREST RATE. Subject to the terms of this Note, the outstanding principal balance of this Note shall bear interest at a rate per annum equal to the LIBOR Rate for the Interest Period plus three hundred (300) basis points (the "LIBOR-Based Rate"). The following capitalized terms used in this Note shall have the following meanings: Period" "Interest shall mean with respect to any LIBOR Advance, the one (1)-month period commencing on the first day of each month, except for the first Interest Period hereunder, which first Interest Period shall commence on the later of the date of this Note or the date upon which Lender advances the principal of the Loan to Borrower. Advance" "LIBOR shall mean any advances under the Note bearing interest based upon the LIBOR-Based Rate. Rate" "LIBOR shall mean a variable interest rate per annum (rounded upwards, if necessary) determined by Lender by dividing (a) the British Bankers Association LIBOR rate which is published on Bloomberg Screen, BBAM1 (or any successor as may replace such page in said service for the purposes of display of the interbank interest rates offered on the London market) at 11:00 a.m. London time two (2) Business Days prior to the commencement of the Interest ( Rate" Period; provided, however, if such rate in not available, "LIBOR shall mean the rate of interest per annum determined by Lender to be the average rate per annum at which United States dollar deposits in a similar amount are offered for such Interest Period by major banks in the London interbank deposit market at approximately 11:00 a.m. London time two (2) Business Days prior to the commencement of the Interest Period, by (b) a number equal to 1.00 less the Reserve Requirement. Documents" "Loan shall mean collectively this Note, the Loan Agreement, as defined in Paragraph 9 of this Note, and all other documents or instruments entered into, executed and delivered with respect to the Loan, whether now or hereafter existing, and any and all consolidations, extensions, modifications, amendments, substitutions, replacements, or changes in terms thereof. "London Day" are open for international Business shall mean any Business Day on which commercial banks business (including dealings in United States dollar deposits in the London Interbank Eurodollar) in New York City. Date" "Maturity shall mean July 1, 2022, the date upon which all outstanding amounts outstanding under this Note and the other Loan Documents are immediately due and payable in full. Day" "Business shall mean with respect to LIBOR Advances, a London Business Day and with respect to all other advances, any day other than a Saturday, Sunday or legal holiday on which commercial banks in New York State are required or permitted by law to close. Rate" "Prime shall mean the variable rate of interest announced by Lender from time to time as its prime rate for calculating interest on certain loans. The Prime Rate may or may not be the most favorable rate charged by Lender to its customers from time to time. FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 04/24/2023 "Reserve Requirement" shall mean the percentage which Lender determines to be the maximum reserve requirement (including, without limitation, any emergency, marginal, special or supplemental reserve requirement) prescribed for so- liabilities" called "Burocurrency (or any other category of eurocurrency funding) prescribed by the Board of Governors of the Federal Reserve System (or under any successor regulation which Lender determines to be applicable) with each change in such maximum reserve requirement automatically, immediately and without notice changing the LIBOR Rate thereafter applicable to each LIBOR Advance. Rate" the Prime The Variable change "Variable shall mean Rate plus two percent (2.00%) per annum. Rate shall simultaneously with changes to the Prime Rate. Advance" "Variable Rate shall mean any advances under the Note bearing interest based upon the Variable Rate. 2. ADDITIONAL INTEREST PROVISIONS. (a) Borrowers shall pay interest, calculated on the basis of a 360-day year for the actual number of days of each year (365 or 366, as applicable), on the outstanding principal amount of the Loan from and including the date of this Note, through, but not including, the date all amounts outstanding under this Note and the other Loan Documents are finally and indefeasibly paid in full. (b) If, pursuant to the terms of this Note, Borrower is at any time obligated to pay interest on the principal balance of this Note at a rate in excess of the maximum interest rate permitted by applicable law, the applicable interest rate shall be immediately reduced to such maximum rate and all previous payments in excess of the maximum rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder. (c) After the occurrence of an Byent of Default, at Lender's option, interest shall accrue at a rate per annum equal to the aggregate of six per cent (6%) plus the rate otherwise applicable (the "Default Rate"), and such Default shall continue to apply whether or not judgment shall be entered on this Note. (d) Upon request, Lender shall give prompt notice to Borrower of the LIBOR Rate as determined and adjusted herein, which determination shall be conclusive absent manifest error. (e) Bxcept as otherwise provided, each Interest Period shall commence on the first day of each month and end on the last day of the Interest Period; provided, however, that (i) any Interest Period that would otherwise end on a day which is not a Business Day shall be extended to the next Business Day unless such day falls in the next calendar month, in which case the Interest Period shall end on the next preceding Business Day, (ii) Borrower may not select any Interest Period that would otherwise extend beyond Maturity and (iii) each subsequent Interest Period, to the extent applicable, shall commence automatically and immediately on the last day of the preceding Interest Period. (f) In the event that Lender shall determine that by reason of circumstances affecting the London Interbank market, adequate and reasonable means do not exist for determining Eurodollar the LIBOR Rate or dollar deposits are not available to Lender in the Interbank Burodollar market with respect to a proposed LIBOR Advance, Lender shall give Borrower notice of such determination and (i) any requested LIBOR Advance shall be made as a Days' Variable Rate Advance, unless Borrower gives Lender two (2) Business prior notice that its request for such borrowing is canceled; (ii) any advance which was to have been converted to a LIBOR Advance shall be continued as a Variable Rate Advance; and (iii) any outstanding LIBOR Advance shall be converted to a Variable Rate Advance on the last Business Day of the applicable Interest Period. Thereafter, Lender shall have no obligation to make LIBOR Advances or maintain outstanding LIBOR Advances and Borrower shall not have the right to request LIBOR Advances. Lender shall be entitled to fund and maintain its funding of all or any part of any LIBOR Advance in any manner Lender may from time to time deem advisable, Barrower hereby acknowledging that all determinations relating to LIBOR Advances shall be made as if Lender had actually funded and maintained each such LIBOR Advance by the purchase of deposits in an amount shnilar to the amount of that advance, with a maturity shnilar to the Interest Period for that advance and bearing interest at LIBOR with respect to that advance. (g) If Lender that any applicable shall determine law, treaty, regulation, guideline or directive, or any change therein or in the interpretation shall or application thereof, make it unlawful or impossible for Lender to make or maintain LIBOR Advance, the obligation of Lender hereunder to make or maintain such LIBOR Advance shall any terminate and Borrower shall, if any such LIBOR Advance is outstanding, promptly upon request from Lender, prepay such LIBOR Advance or convert such LIBOR Advance to a Variable Rate Advance. If any such payment is made on a - 2 - FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 04/24/2023 day that is not the last Business Day of the then current Interest Period, Borrower shall pay Lender, upon Lender's request, any amount required under Section 5 hereof.. 3. REPAYMENT. On the date hereof, if requested by Lender, Borrower shall pay to Lender interest only in advance for the month in which this Note is dated. Borrower shall repay the outstanding balance of this Note in one hundred twenty (120) consecutive monthly payments of principal in the amount set forth on Schedule A hereto plus accrued interest at the applicable interest rate, commencing August 1, 2012,, and continuing on the first (1st) day of each consecutive until the Maturity month Date, when all amounts outstanding under this Note and the Loan Documents shall immediately be due and payable in full without further notice being required to be given by Lender to Borrower. Interest shall be payable, in arrears, on the first applicable Business Day following the expiration of the applicable Interest Period or, at Lender's option, on'the first day of each month commencing with the month following the date of this Note and on the date the LIBOR Advances are paid in full 4. APPLICATION; BUSINESS DAY. Borrower shall make all payments on this Note to Lender at its address stated above or at such other place as the holder of this Note may designate. All payments shall be made absolutely net of, without deduction or offset and free and clear of taxes, deductions, charges or withholding of any kind. Leader shall apply all payments received on this Note to any accrued and unpaid interest then due and owing, then to the reduction of principal of this Note, then to other sums due hereunder in such order and in such amounts as Lender may determine from time to time. The sum or sums shown on Lender's records shall be evidence of the correct unpaid balances of principal and interest on this Note, absent manifest error. If any payment comes due on a day that is not a Business Day, as defined above, Borrower may make the payment on the first Business Day following the payment date and pay the additional interest accrued to the date of payment, S. PREPAYMENT. This Note may be prepaid in whole or in part at any time provided that if Borrower prepays any LIBOR Advance or any outstanding principal amount, in whole or in part, other than on the last day of any applicable Interest Period or upon the occurrence of an Event of Default hereunder, then Borrower shall concurrently with such prepayment, pay to Lender (a) the accrued interest on the principal being prepaid and (b) a prepayment premium in an amount computed as follows: the current rate for United States Treasury securities with a maturity date closest to the maturity hereof (the "Reinvestment Rate") shall be subtracted from the LIBOR Rate at the time of prepayment. If the LIBOR Rate is less than or equal to the Reinvestment Rate, no prepayment premium shall be due. If the Reinvestment Rate is less than the LIBOR Rate, then the excess percentage shall be multiplied by the amount of the principal balance being prepaid. The resulting amount shall be divided by 360 and multiplied by the number of days remaining until the Maturity Date, and the amount shall be reduced to present value calculated by using the number of days remaining in the designated term and using the above-referenced United States Treasury security rate and the number of days remaining until the Maturity Date. The resulting amount shall be the prepayment premium due to Lender upon prepayment. If this Note shall become due and payable for any reason (whether by demand or otherwise), then any prepayment premium with respect to this Note shall become due and payable in the same manner as though Borrower had exercised its right of prepayment. Borrower recognizes that Lender will incur substantial additional costs and expenses including loss of yield and anticipated profitability in the event of prepayment of all or part of this Note and that the prepayment premium compensates Lender for such costs and expenses. Borrower acknowledges that the prepayment premium is bargained-for consideration and not a penalty. Borrower's indemnification obligations shall survive the termination of this Note. 6. LATE FEE, If any payment due under this Note is unpaid for ten (10) days or more, Borrower shall pay, in addition to any other sums due under this Note (and without limiting Lender's other remedies on account thereof), a late charge in an amount equal to 6% of such unpaid amount. 7. USE OF PROCEEDS. The proceeds of the Loan shall be used by Borrower for (a) refinancing mortgage- secured indebtedness which Borrower has outstanding with Lender; (b) taking equity from the Real Property for use in recovering costs out-of-pocket expended by Borrower in performing certain renovations to the Real Property and/or Improvements thereon, (c) funding all or a portion of the closing costs associated with obtaining and closing on the Loan; and (d) making a distribution to Borrower's sole member. - 3 - FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 04/24/2023 8. MAINTAIN OPERATING ACCOUNTS. Borrower agrees to maintain with Lender its primary deposit and operating accounts. At the option of Lender, all interest payments, principal payments and fees will automatically be deducted from Borrower's primary operating account. 9. LOAN AGREEMENT. This Note is executed and delivered subject to the terms of a Loan Agreement dated as of even date herewith between Borrower and Lender may (as the same be amended or supplemented from time to time, the "Loan Agreement") and reference is hereby made to the Loan Agreement for the provisions relating to Lender's rights of acceleration of the outstanding principal balance of the Loan upon the occurrence of an Event of Default (as defined in the Loan Agreement) and Lender's remedies. 10. SETOFF. Without limiting its rights of setoff under New York law-generally, if the unpaid principal amount of this Note, interest accrued on the unpaid principal amount thereof or other amount owing by Borrower under this Note or the other Loan Documents shall have become due and payable (at maturity, by acceleration or otherwise), Lender will have the right, in addition to all other rights and remedies available to it, without notice to Borrower, to setoff against and to appropriate and apply to such due and payable amounts any obligations owing to, and any other funds held in any manner for the account of, Borrower by Lender or any other direct or indirect subsidiary of First Niagara Financial Group, Inc. ("FNFG"), including, without limitation, all funds in all deposit accounts (whether time or demand, general or special, provisionally credited or finally credited, or otherwise) now or in the future maintained by Barrower. Borrower consents to and confirms the foregoing arrangernents and confirms the rights of banker's lien and setoff. Nothing in this Note will be deemed a waiver or prohibition of or restriction on such rights of banker's lien or setoff. 11, LOSS OF MARGIN. of, any change in or any change in the interpretation If the adoption of any law, regulation or guideline by any applicable governmental authority, central bank or similar agency exercising control over financial institutions (a "Governmental Rule") or the compliance by Lender with the Governmental Rule imposes any reserve, deposit, allocation of capital or similar requirement (including, without limitation, Regulation D of the Board of Governors of the Federal Reserve System) on Lender or FNFG and the result of which is to reduce the rate of return on Lender's capital then, and in each such case, Lender will deliver to Borrower a statement of the justification therefor and the amount necessary to compensate Lender or FNFG for such reduced rate of return, Each determination by Lender shall be conclusive absent obvious error and shall be payable by Borrower to Lender upon Lender's demand, In determining any such amount, Leader may use reasonable averaging and attribution methods. 12. PAYMENT OF FEES AND EXPENSES. Borrower agrees to pay, upon demand, costs of collection of all amounts due under this Note, including, without limitation, principal, interest and fees, or in connection with the enforcement of, or realization on, any security for this Note, including, without limitation, to the extent permitted by applicable attorneys' law, reasonable fees and expenses. 13. GOVERNING LAW. This Note shall be interpreted and the rights and liabilities of the parties shall be governed by the laws of the State of New York, without regard to principles of the conflict of laws. This Note has been delivered to and accepted by Lender and will be deemed to be made in the State ofNew York. 14. GENERAL PROVISIONS. (a) Borrower waives presentment, demand, notice, protest and all other demands and notices in connection with delivery, acceptance, performance or enforcement of this Note. (b) This Note, together with the other Loan Documents, contains the entire agreement between Lender and Borrower respect to the subject matter hereof, and supersedes every course of dealing, other conduct, oral with agreement, commitment letter or other correspondence related thereto and representation previously made by Lender. (c) Borrower agrees that in any legal proceeding, a copy of this Note kept in Lender's course of business may be admitted into evidence as an original. (d) This Note is a binding obligation enforceable against Borrower and its permitted successors and assigns and to the benefit of Lender and its successors and assigns. shall inure Borrower may not assign any of its rights or obligations hereunder without the prior written consent of Lender. If a court deems any provision of this Note invalid, the remainder of this Note shall remain in effect. - 4 - FILED: MONTGOMERY COUNTY CLERK 04/24/2023 04:56 PM INDEX NO. EF2022-477 NYSCEF DOC. NO. 186 RECEIVED NYSCEF: 04/24/2023 (e) At any time, promptly upon the request of Lender, Borrower shall furnish to Lender all information relating to Borrower's business, operations, assets and condition, including, without limitation, verification of liquidity . on an ongoing basis. (f) If there is more than one Borrower, each of them shall be jointly and severally liable for all amounts and obligations "Borrower" which become due under this Note and the term shall include each as well as all of them, (g) This Note is secured by collateral as specified in the applicable Loan Documents. (h) No failure by the holder hereof to exercise, and no delay in exercising, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise by such holder of any right or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right or remedy. The rights and remedies of the holder hereof as herein specified are cumulative and not exclusive of any other rights or remedies which such holder may otherwise have. (i) All notices, demands, or other communications hereunder must be in writing and will be effective when delivered or mailed to the address set forth herein or such other address as provided by such party via overnight delivery service or personal service or, if mailed, three (3) days after deposit, postage prepaid, in an official depository maintained by the United States Post Office. (i) Borrower agrees to indemnify Lender and its affiliates and their respective officers, directors and employees (collectively, "Indemnitees") and hereby holds Indemnitees harmless against all liabilities, claims, actions, suits, proceedings, penalties, costs, expenses, brokerage or other fees .(including, without limitation, reasonable legal fees and expenses), losses, damages and liabilities of any kind or nature including in tort, penalties and interest, which Lender may incur in any manner other than Lender's own active gross negligence or willful misconduct, by reason of any matter relating, directly or indirectly, to this Note and the related loan documents. This indemnity shall survive the termination of this Note. (k) To the fullest extent permitted by applicable law, Borrower shall not assert, and hereby waives any claim againstLender, on any theory of liability, for special, indirect, consequential or punitive damages (but excluding direct or actual damages) arising out of in connection with or as a result of, this Note, any related loan documents, the transactions contemplated hereby or thereby or any loan or the use of the proceeds. 15. JURISDICTION AND VENUE. BORROWER KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY (A) CONSENTS IN EACH ACTION AND OTHER LEGAL PROCEEDING COMMENCBD - BY LENDER AND ARIS1NG OUT OF OR OTHERWISE RELATING TO THIS NOTE OR ANY COLLATERAL RELATED HERETO TO THE NONEXCLUSIVE PERSONAL JURISDICTION OF ANY COURT THAT IS EITHER A COURT OF RECORD OF THE STATE OF NEW YORK OR A COURT OF THE UNITED STATES LOCATED IN THE OF NEW YORK, (B) WAIVES STATE EACH OBJECTION TO THE LAY1NG OF VENUE OF ANY SUCH ACTION OR OTHER LEGAL PROCEEDING, (C) WAIVES PERSONAL SERVICE OF PROCESS IN EACH SUCH ACTION AND OTHER LEGAL PROCEEDING, AND (D) CONSENTS TO THE MAKING OF SERVICE OF PROCESS IN EACH SUCH ACTION AND OTHER LEGAL PROCEEDING BY REGISTERED MAIL DIRECTED TO BORROWER AT THE LAST ADDRESS OF BORROWER SHOWN IN THE RECORDS RELATING TO THIS NOTE MAINTAINED BY LENDER, WITH SUCH SERVICE OF PROCESS TO BE DEEMED COMPLETED FIVE (5) DAYS AFTER THE MAILING THEREOF. 16. WAIVER OF JURY TRIAL. BORROWER KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES EACH RIGHT BORROWER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO, AND IN, ANY ACTION OR OTHER LEGAL PROCEEDING OF ANY NATURE, RELATING TO (A) THIS NOTE, ANY RELATED LOAN DOCUMENT OR ANY COLLATERAL RELATED HERETO, (B) ANY . TRANSACTION CONTEMPLATED BY ANY SUCH DOCUMENTS OR ANY NEGOTIATION, (C) PERFORMANCE OR ENFORCEMENT OF THIS NOTE, OR ANY COLLATERAL RELATED HERETO. BORROWER CERTIFIES THAT NEITHER LENDER NOR ANY REPRESENTATIVE OF LENDER HAS REPRESENTED TO BORROWER THAT LENDER WILL NOT SEEK TO ENFORCE THE WAIVER MADE BY BORROWER 1N THIS PARAGRAPH. BORROWER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL OF ITS OWN CHOOSING WITH RESPECT TO THIS NOTE AND THE LOAN. - 5 - FILED: MONTGOMERY COUNTY CLERK 04/24/2023