Preview
FILED: NASSAU COUNTY CLERK 02/20/2024 03:06 PM INDEX NO. 603042/2024
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/20/2024
"B"
EXHIBIT
FILED: NASSAU COUNTY CLERK 02/20/2024 03:06 PM INDEX NO. 603042/2024
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/20/2024
THE BANK OF NEW YORK BUSINESS CREDITLINK®
AGREEMENT
LOAN MAXIMUM
NAME OF BORROWER ACCOUNT HR AMOUNT DATE
COruscation Ltd d/b/a
Shell Electric 9042 50,000.00 03/11/04
USE OF WORDS
The word "Agreement" means this Business CreditLink Agreement, as the
same, may be amended, modified or supplemented from time to time. The word "Borrower"
means the borrower this Agreement. The word "Bank" means The Bank of New
executing
York. The word "Loan" means loan which is extended to the Borrower under this
any
Agreement. The words "Loan Account" means the Business CreditLink loan account
established under this Agreement. The word "Guarantor" means and all persons
any
executing a guarantee of the Borrower's obligations to the Bank under this Agreement.
The word "Hypothecator" means any and all persons a hypothecation agreement
executing
authorizing the Borrower to pledge or grant a security interest in and lien on certain
property of such person as Collateral (as hereinafter defined) for the Borrower's
obligations to the Bank under this Agreement. Unless otherwise defined in this
Agreement, all terms used in this Agreement which are defined in the Uniform Commercial
Code of the State of New York (the "Code") have the meanings defined therein.
EFFECT OF ENTERING INTO THIS AGREEMENT
By entering into this Agreement, the Borrower requests the Bank to make
Loans as provided in this Agreement and to establish for the Borrower the Loan Account.
The Loan Account is not a deposit account. The Loan Account is established only for the
purpose of disbursing and recording the Loans made under this Agreement and the payments
of such Loans received by the Bank. By entering into this Agreement, the Borrower agrees
to be bound by and to comply with all terms and conditions of this Agreement. The
Borrower may elect, at its option, to maintain a business checking account at the Bank.
The Borrower agrees that if it maintains a business checking account at the Bank (the
"Designated Business Account"), the Bank is authorized to charge the Designated Business
Account for all amounts owing to the Bank under this Agreement.
USE OF LOAN PROCEEDS
The Borrower agrees that the proceeds of the Loans made by the Bank to the
Borrower under this Agreement shall be used only for business, commercial or
agricultural purposes and not in whole or in part for any personal, family or household
purposes. The Borrower acknowledges that the Bank is relying on the foregoing agreement
in determining that the Loans are exempt from the disclosure and other reouirements of
certain Federal and state laws and regulations applicable to extensions of credit for
personal, family or household purposes including, but not limited to, the Truth in
Lending Act and Regulation Z promulgated by the Board of Governors of the Federal
Reserve System, the Real Estate Settlement Procedure Act and Regulation X promulgated by
the U.S. Department of Housing and Urban Development, State of New York Plain Language
Law and other State of New York Banking Department rules and regulations.
CREDIT AVAILABILITY
Subject to the terms and conditions of this Agreement, the Bank agrees to
make Loans to the Borrower for the period beginning on the date of this Agreement and
ending on the one year anniversary date of this Agreement (the "Draw Period"). The Draw
Period shall automatically be extended for successive one year periods, each period to
begin on the last day of the then current Draw Period and end on the one year
anniversary date of the last day of the then current Draw Period unless the Bank shall
® Business CreditLink is a registered service mark of The Bank of New York.
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P
elect, in its sole and absolute discretion, not to extend the Draw Period. If the Bank
elects not to extend the Draw Period, the Bank shall provide the Borrower with written
notice at least thirty days prior to the end of the then current Draw Period that the
Draw Period will not be extended. If the Bank notifies the Borrower that the Draw Period
has not been extended, the Borrower may not obtain, and the Bank shall have no
obligation to make, any Loan requested after the then current Draw Period.
The outstanding amount of such Loans shall not exceed at any time during
the Draw Period the amount set forth above or agreed to in writing by the Bank and the
Borrower from time to time (the "Maximum Amount "). The Borrower shall not request a
Loan if after making such Loan, the amount of outstanding Loans would exceed the Maximum
Amount. The Bank shall have no obligation to make any Loan if after making such Loan,
the amount of outstanding Loans would exceed the Maximum Amount and the Bank shall have
no liability for not making such Loan. However, if the Borrower makes a request for a
Loan in excess of the Maximum Amount and the Bank, in its discretion, advances amounts
in excess of the Maximum Amount, the entire amount advanced (including the portion that
is in excess of the Maximum Amount) shall be a Loan and shall be subject to the terms of
this Agreement, provided that the portion in excess of the Maximum Amount shall be
payable on demand.
The Borrower may elect to terminate its Loan Account by giving the Bank
written notice of such termination. Such termination shall become effective as soon as
the Bank terminates the Borrower's ability to borrow under this Agreement, all principal
of and interest on the Loans then outstanding and all other amounts owing to the Bank
under this Agreement are paid in full and all unused Loan Account Checks (as hereinafter
defined) are returned to the Bank.
REQUIREMENTS
Before the Bank makes any Loan under this Agreement, the Borrower must
satisfy all conditions set forth on schedule A to this Ag reemen t .
LOAN ACCOUNT USE
The Borrower may use any of the following means (if available) to obtain a
Loan under this Agreement:
ATM Access. Provided that the Borrower has an automated teller
machine ("ATM") business banking card ("ATM Card") and an active personal
identification number ("PIN") from the Bank, the Borrower may obtain a
Loan by debiting the Loan Account in the amount of the Loan at any Action
Banking Center ATM located at selected Bank branches ("Action Banking
ATM") or any participating network ATM and either (i) withdrawing such
Loan from the ATM in cash or (ii) provided the Borrower maintains a
Designated Business Account, at Action Banking ATM's only, crediting such
amount to the Designated Business Account linked to the Borrower's ATM
Card. A Loan obtained in this manner will be deemed advanced to the
Borrower by and upon the withdrawal of cash or the transfer of funds to
the Designated Business Account. Obtaining cash or transferring funds
through an ATM is subject to the ATM cardholder agreement given to the
Borrower at the time the Borrower requested its ATM Card and PIN as
amended from time to time, the rules and regulations of the Bank in effect
from time to time for ATM transactions generally and the maximum daily
limits for ATM withdrawals or debits applicable to the Borrower's ATM Card
and, in the case of a participating network ATM, the rules and regulations
of the owner or operator of such ATM. Obtaining cash or transferring
funds through an ATM is further subject to the applicable accounts being
linked to the ATM Card and any ATM system limitations for accessing
accounts and performing particular functions.
Loan Account Check. The Borrower may obtain a Loan by using checks
which may be drawn upon the Loan Account (the "Loan Account Checks"). A
supply of these checks will be provided to the Borrower upon execution of
this Agreement. The Bank's receipt of a Loan Account Check for payment or
certification will constitute the Borrower's request to the Bank to make a
Loan in the amount of such Loan Account Check. A Loan obtained in this
manner will be deemed advanced to the Borrower by and upon the payment or
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certification of the Loan Account Check. The Bank may, in its discretion,
refuse to pay or certify any Loan Account Check if after paying or
certifying such check, the amount of outstanding Loans would exceed the
Maximum Amount. However, if the Bank does pay such Loan Account Check, the
entire amount of the Loan Account Check (including the portion that is in
excess of the Maximum Amount) shall be a Loan and shall be subject to all
of the terms of this Agreement, provided that the portion in excess of the
Maximum Amount shall be payable on demand. If more than 5 Loan Account
Checks are drawn upon the Loan Account in a Statement Period (as
hereinafter defined), the Borrower agrees to pay to the Bank, a fee of $5
for each Loan Account Check drawn on the Loan Account in such Statement
Period in excess of 5 Loan Account Checks. The fee for each Loan Account
Check in excess of 5 Loan Account Checks drawn on the Loan Account in a
Statement Period shall be deemed to be a Loan advanced on the date the
Loan Account Check is paid and subject to all of the terms of this
Agreement provided that such Loan shall be payable on the payment date
specified in the Periodic Statement (as hereinafter defined) for such
Statement Period.
Automated Response Unit For Business Access. Provided that the
Borrower maintains a Designated Business Account and has an ATM Card and
an active PIN from the Bank, the Borrower may use the Bank's Automated
Response Unit For Business ("ARU") to obtain a Loan by debiting the amount
of the Loan from the Loan Account and crediting the Loan to the Designated
Business Account linked to the ARU. A Loan obtained in this manner will
be deemed advanced to the Borrower by and upon the transfer of funds to
the Designated Business Account. Transferring funds through the ARU is
subject to the rules and regulations of the Bank in effect from time to
time for ARU transactions generally.
Banking" Access.¹
The Bank of New York Direct 24 PC
Provided that the Borrower maintains a Designated Business Account and has
an ATM card and an active PIN from the Bank, the Borrower may use The Bank
of New York Direct 24 PC Banking computer services ("PC") to obtain a Loan
by debiting the Loan Account in the amount of the Loan and ³crediting such
amount to the Designated Business Account linked to the PC. A Loan
obtained in this manner will be deemed advanced to the Borrower by and
upon the transfer of funds to the Designated Business Account.
Transferring funds by PC is subject to the Direct 24 Banking services
agreement given to the Borrower at the time the Borrower requested PC
services as amended from time to time and the rules and regulations of the
Bank in effect from time to time for PC transactions generally.
Transferring funds by PC is subject to the applicable accounts being
linked to the PC and any PC system limitations for accessing accounts and
performing certain functions.
The Bank is not required to make all of the above means for obtaining a
Loan available to the Borrower at any one time. In addition, the Bank reserves the
right, from time to time, to eliminate one or more of such means for obtaining a Loan.
AUTHORIZED REPRESENTATIVES
The Borrower authorizes the Bank to accept Loan requests and other
instructions from the Borrower and any person otherwise properly authorized to do so.
The Borrower is responsible for the proper distribution and monitoring of
the usage of its ATM Card, PIN and any password for access by PC in connection with the
Loan Account.
The Borrower assumes the entire risk of any Loan obtained through the
improper, fraudulent or unauthorized use of the Borrower's ATM Card, PIN, password for
'"
The Bank of New York Direct 24 PC Banking is a service mark of The Bank of New York.
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access by PC or the ARU and will be responsible to repay such Loan and all interest
thereon.
PRINCIPAL PAYMENTS
Subject to the terms and conditions of this Agreement, the Borrower agrees
to pay the outstanding principal balance of the Loans in equal consecutive monthly
installments, on the date specified in the Periodic Statement (as hereinafter defined),
each in the amount of 1/60 of the principal balance of the Loans outstanding on the last
day of the Draw Period , commencing the first calendar month after the calendar month in
which the Draw Period ends and continuing thereafter each successive calendar month
until the fifty-ninth month after the making of the first principal payment when the
remaining unpaid principal balance of the Loans shall be due and payable.
The Borrower may prepay the outstanding principal balance of the Loans in
whole or in part at any time and from time to time.
If, at any time during the Draw Period, the principal balance of the Loans
exceeds the Maximum Amount, the Borrower shall prepay the Loans on demand in an amount
such that, after giving effect to such prepayment, the principal balance of the Loans
does not e3tceed the Maximum Amount.
Subject to the terms and conditions of this Agreement, each prepayment
shall be applied to the outstanding principal balance of the Loans and, if prepayment is
made after the end of the Draw Period, such prepayment shall be applied against the
remaining monthly installments of principal in the inverse order of maturity of such
installments. To the extent that prepayments reduce the outstanding principal amount of
the Loans below the Maximum Amount during the Draw Period, credit availability is
restored.
INTEREST
The Borrower agrees to pay interest monthly o the outstanding principal
balance of the loans, on the date specified in the Period c Statement, at a rate per
annum equal to the Prime Rate (as defined below) plus 1.500%, but not to exceed the
maximum rate permitted by law. If an Event of Default described below occurs and is
continuing, the Borrower agrees to pay interest on the outstanding principal balance of
the Loans, on demand, at a rate per annum equal to the sum of the rate set forth in the
preceding sentence plus 3%, but not to exceed the maximum rate permitted by law. "Prime
Rate" for the prime commercial rate of the Bank as publicly
means, any day, lending
announced to be in effect from time to time, such rate to be adjusted automatically and
without notice, on the effective date of any change in such rate. The Borrower agrees
that the Prime Rate is not the lowest rate at which the Bank may make loans. Interest
shall be calculated on the basis of a 360 day year for the actual number of days
elapsed.
FEE
The Borrower agrees to pay to the Bank upon signing this Agreement a non-
refundable fee in an amount equal to the amount specified on Schedule A to this
Agreement. The Borrower agrees to pay to the Bank at the time of each extension of the
Draw Period a non-refundable fee equal to the Bank's standard annual fee for Business
CreditLink in effect on the date of such extension. The Bank shall debit the Loan
Account for such fee on the first day of each extension of the Draw Period. The
debiting of the Loan Account in the amount of such fee shall be a Loan and shall be
subject to the terms of this Agreement provided that such Loan shall be payable on the
payment date specified in the Periodic Statement (as hereinafter defined) for such
Statement Period.
LATE CHARGBS
If any payment of principal of or interest on the Loans is not paid within
10 days of the due date of such payment, the Borrower agrees to pay to the Bank, a fee
equal to 5% of the amount of any payment of principal and/or interest not received when
due but in any event not less than $25 with respect to each such overdue payment for the
purpose of defraying the Bank's expenses incident to the handling of such delinquent
payment, which shall be payable on the eleventh day after the due date of such payment.
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Such fee shall be in addition to, and not in lieu of, any other remedy that the Bank may
have.
PERIODIC STATEMENT; CHARGING ACCOUNTS
The Bank will send to the Borrower a monthly statement (the "Periodic
Statement") which statement will set forth the principal amount of each Loan made during
the period covered by such statement (the "Statement Period"), the payments received
during 4uch Statement Period and the amount payable on the next payment date specified
in the Periodic Statement. All payments shall be made in U.S. Dollars and in available
funds. If a payment is not made in available funds, the Bank may apply the payment
immediately but is not required to restore credit availability until such funds are
available.
If the Borrower maintains a Designated Business Account, the Bank shall
charge the Designated Business Account for the principal of and interest on the Loans,
any fees and other amounts owing to the Bank under this Agreement on the date such
amounts become due. The failure of the Bank to charge the Designated Business Account,
shall not affect the Borrower's obligation to make such payments when due.
The Borrower shall promptly examine the Periodic Statement. If the
Periodic Statement contains an error or a discrepancy with respect to Business
CreditLink activity, the Borrower agrees to give the Bank written notice thereof within
30 days after receipt of the statement. If the Borrower fails to give such notice, the
Bank shall be released of all liability to the Borrower.
APPLICATION OF PAYMENTS
The Bank shall choose the order in which payments are applied to the
amounts due under this Agreement, except as otherwise required by law. Any payment in
excess of the total outstanding obligations of the Borrower under this Agreement may be
credited by the Bank to the Designated Business Account as a deposit provided the
Borrower maintains a Designated Business Account or returned to the Borrower in
accordance with the Bank's practices.
RIGHT OF SET-OFF
The Bank shall have a lien on the balances of the Borrower now or
hereafter on deposit with or held as custodian by the Bank and the Bank shall have full
authority to set-off such balances against the obligations of the Borrower under this
Agreement or any other obligation of the Borrower to the Bank, and may at any time,
without notice to the extent permitted by law, apply the same to such obligations,
whether or not due.
ACCOUNT8; ATM, ARU AND PC SERVICES
Any checking or savings accounts which the Borrower maintains at the Bank,
and ATM, ARU and PC services, are governed by the terms and conditions of other
agreements between the Bank and the Borrower and such rules and regulations as the Bank
may establish from time to time. ATM transactions conducted at a participating network
ATM may be subject to additional applicable rules and regulations of the owner or
oPerator of such ATM. Pursuant to such other agreements, rules and regulations, the
Bank may impose charges in connection with, and place limitations on the use of, such
accounts, or ATM, ARU or PC services. Any such charges and limitations will be in
addition to all charges and limitations imposed under this Agreement. In the event any
term or condition in this Agreement with respect to the Loan Account conflicts with any
term or condition of any agreement governing such other accounts, or ATM, ARU or PC
services, the terms and conditions of this Agreement will be controlling with respect to
the Loan Account.
A Loan obtained from a participating network ATM located in a foreign
country, and which is advanced from such ATM in a currency other than U.S. Dollars, will
be denominated on the books and records of the Bank as a Loan in U.S. Dollars. The
Borrower will be bound by the Bank's determination of the currency conversion rate and
the date and manner in which the Bank made the conversion.
LOAN ACCOUNT; LOAN ACCOUNT CHECKS
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The Bank has the right to debit the Loan Account if (i) the Bank is served
with legal papers in connection with a judgment or tax lien or other legal mandate
resulting from legal proceedings in which the Borrower is involved, or (ii) any payment
made to the Bank under this Agreement is returned to the Bank for any reason.
Paid Loan Account Checks will not be returned to the Borrower. Copies of
the checks may be obtained from the Bank upon request. The Bank may charge the Borrower
for any costs or expenses incurred by the Bank if the Bank processes a stop payment
order of a Loan Account Check, certifies a Loan Account Check or produces copies of
canceled Loan Account Checks or statements of account. The Bank may charge the Borrower
for the cost of printing the Loan Account Checks. The cost of printing Loan Account
Checks will vary depending on the design and quantity selected.
If the Borrower gives the Bank an order not to pay any Loan Account Check,
the Bank will not be responsible even though the Loan Account Check is paid by the Bank
if (i) the Bank acted in a commercially reasonable manner, or (ii) the Bank did not have
a reasonable opportunity to act on the Borrower's order. The Bank will not be
responsible if the Bank pays any Loan Account Check more than 14 days after the Borrower
nas verbally ordered the Bank not to pay it, or more than 6 months after the Borrower
nas ordered the Bank in writing not to pay it. The Borrower agrees not to issue any
post-dated Loan Account Checks. If, however, the Borrower issues a post-dated Loan
Account Check, the Bank will not be responsible if for any reason the Bank pays the Loan
Account Check before the stated date of the Loan Account Check, unless applicable law
requires otherwise.
The Borrower agrees to safe-guard the Loan Account Checks. The Borrower
will promptly notify the Bank in writing of any Loan Account Checks which have been lost
or stolen and the circumstances surrounding the loss or theft, In the event the Bank's
obligation to make Loans terminates or the Borrower closes its Loan Account, the
Sorrower will return any unused Loan Account Checks to the Bank at the address set forth
opposite its name on the signature page of this Agreement or such other address
nereinafter specified by written notice from the Bank to the Borrower.
All Loan Account Checks must be payable in the currency of the United
States of America. The Borrower agrees not to draw a Loan Account Check payable in any
foreign currency. If the Borrower does, the Bank will have the right to return the Loan
Account Check unpaid. If, however, the Bank should pay the Loan Account Check, the
Borrower will be bound by the Bank's determination of the currency conversion rate and
che date and manner in which the Bank made the conversion.
COLLATERAL
To secure the Borrower's obligations to the Bank under this Agreement
including but not limited to, the Borrower's obligations to repay the Loans and to pay
interest, fees, expenses and other amounts described in this Agreement, and any other
indebtedness, liabilities and obligations of the Borrower of any kind to the Bank
whether in existence now or arising at any time in the future, the Borrower grants to
the Bank a security interest in and a lien upon all personal property (other than margin
stock) and fixtures of the Borrower whether presently existing or existing in the future
or presently owned or acquired in the future by the Borrower and whether or not subject
co the Code, including, but not limited to, all goods, money, instruments, accounts,
farm products, inventory, equipment, documents, chattel paper, investment property
(other than margin stock), deposit accounts, supporting obligations and general
intangibles, and all interest, dividends and other distr
Preview
FILED: NASSAU COUNTY CLERK 02/20/2024 03:06 PM INDEX NO. 603042/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/20/2024 "B" EXHIBIT FILED: NASSAU COUNTY CLERK 02/20/2024 03:06 PM INDEX NO. 603042/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/20/2024 THE BANK OF NEW YORK BUSINESS CREDITLINK® AGREEMENT LOAN MAXIMUM NAME OF BORROWER ACCOUNT HR AMOUNT DATE COruscation Ltd d/b/a Shell Electric 9042 50,000.00 03/11/04 USE OF WORDS The word "Agreement" means this Business CreditLink Agreement, as the same, may be amended, modified or supplemented from time to time. The word "Borrower" means the borrower this Agreement. The word "Bank" means The Bank of New executing York. The word "Loan" means loan which is extended to the Borrower under this any Agreement. The words "Loan Account" means the Business CreditLink loan account established under this Agreement. The word "Guarantor" means and all persons any executing a guarantee of the Borrower's obligations to the Bank under this Agreement. The word "Hypothecator" means any and all persons a hypothecation agreement executing authorizing the Borrower to pledge or grant a security interest in and lien on certain property of such person as Collateral (as hereinafter defined) for the Borrower's obligations to the Bank under this Agreement. Unless otherwise defined in this Agreement, all terms used in this Agreement which are defined in the Uniform Commercial Code of the State of New York (the "Code") have the meanings defined therein. EFFECT OF ENTERING INTO THIS AGREEMENT By entering into this Agreement, the Borrower requests the Bank to make Loans as provided in this Agreement and to establish for the Borrower the Loan Account. The Loan Account is not a deposit account. The Loan Account is established only for the purpose of disbursing and recording the Loans made under this Agreement and the payments of such Loans received by the Bank. By entering into this Agreement, the Borrower agrees to be bound by and to comply with all terms and conditions of this Agreement. The Borrower may elect, at its option, to maintain a business checking account at the Bank. The Borrower agrees that if it maintains a business checking account at the Bank (the "Designated Business Account"), the Bank is authorized to charge the Designated Business Account for all amounts owing to the Bank under this Agreement. USE OF LOAN PROCEEDS The Borrower agrees that the proceeds of the Loans made by the Bank to the Borrower under this Agreement shall be used only for business, commercial or agricultural purposes and not in whole or in part for any personal, family or household purposes. The Borrower acknowledges that the Bank is relying on the foregoing agreement in determining that the Loans are exempt from the disclosure and other reouirements of certain Federal and state laws and regulations applicable to extensions of credit for personal, family or household purposes including, but not limited to, the Truth in Lending Act and Regulation Z promulgated by the Board of Governors of the Federal Reserve System, the Real Estate Settlement Procedure Act and Regulation X promulgated by the U.S. Department of Housing and Urban Development, State of New York Plain Language Law and other State of New York Banking Department rules and regulations. CREDIT AVAILABILITY Subject to the terms and conditions of this Agreement, the Bank agrees to make Loans to the Borrower for the period beginning on the date of this Agreement and ending on the one year anniversary date of this Agreement (the "Draw Period"). The Draw Period shall automatically be extended for successive one year periods, each period to begin on the last day of the then current Draw Period and end on the one year anniversary date of the last day of the then current Draw Period unless the Bank shall ® Business CreditLink is a registered service mark of The Bank of New York. 03053sde (7/9/01) FILED: NASSAU COUNTY CLERK 02/20/2024 03:06 PM INDEX NO. 603042/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/20/2024 P elect, in its sole and absolute discretion, not to extend the Draw Period. If the Bank elects not to extend the Draw Period, the Bank shall provide the Borrower with written notice at least thirty days prior to the end of the then current Draw Period that the Draw Period will not be extended. If the Bank notifies the Borrower that the Draw Period has not been extended, the Borrower may not obtain, and the Bank shall have no obligation to make, any Loan requested after the then current Draw Period. The outstanding amount of such Loans shall not exceed at any time during the Draw Period the amount set forth above or agreed to in writing by the Bank and the Borrower from time to time (the "Maximum Amount "). The Borrower shall not request a Loan if after making such Loan, the amount of outstanding Loans would exceed the Maximum Amount. The Bank shall have no obligation to make any Loan if after making such Loan, the amount of outstanding Loans would exceed the Maximum Amount and the Bank shall have no liability for not making such Loan. However, if the Borrower makes a request for a Loan in excess of the Maximum Amount and the Bank, in its discretion, advances amounts in excess of the Maximum Amount, the entire amount advanced (including the portion that is in excess of the Maximum Amount) shall be a Loan and shall be subject to the terms of this Agreement, provided that the portion in excess of the Maximum Amount shall be payable on demand. The Borrower may elect to terminate its Loan Account by giving the Bank written notice of such termination. Such termination shall become effective as soon as the Bank terminates the Borrower's ability to borrow under this Agreement, all principal of and interest on the Loans then outstanding and all other amounts owing to the Bank under this Agreement are paid in full and all unused Loan Account Checks (as hereinafter defined) are returned to the Bank. REQUIREMENTS Before the Bank makes any Loan under this Agreement, the Borrower must satisfy all conditions set forth on schedule A to this Ag reemen t . LOAN ACCOUNT USE The Borrower may use any of the following means (if available) to obtain a Loan under this Agreement: ATM Access. Provided that the Borrower has an automated teller machine ("ATM") business banking card ("ATM Card") and an active personal identification number ("PIN") from the Bank, the Borrower may obtain a Loan by debiting the Loan Account in the amount of the Loan at any Action Banking Center ATM located at selected Bank branches ("Action Banking ATM") or any participating network ATM and either (i) withdrawing such Loan from the ATM in cash or (ii) provided the Borrower maintains a Designated Business Account, at Action Banking ATM's only, crediting such amount to the Designated Business Account linked to the Borrower's ATM Card. A Loan obtained in this manner will be deemed advanced to the Borrower by and upon the withdrawal of cash or the transfer of funds to the Designated Business Account. Obtaining cash or transferring funds through an ATM is subject to the ATM cardholder agreement given to the Borrower at the time the Borrower requested its ATM Card and PIN as amended from time to time, the rules and regulations of the Bank in effect from time to time for ATM transactions generally and the maximum daily limits for ATM withdrawals or debits applicable to the Borrower's ATM Card and, in the case of a participating network ATM, the rules and regulations of the owner or operator of such ATM. Obtaining cash or transferring funds through an ATM is further subject to the applicable accounts being linked to the ATM Card and any ATM system limitations for accessing accounts and performing particular functions. Loan Account Check. The Borrower may obtain a Loan by using checks which may be drawn upon the Loan Account (the "Loan Account Checks"). A supply of these checks will be provided to the Borrower upon execution of this Agreement. The Bank's receipt of a Loan Account Check for payment or certification will constitute the Borrower's request to the Bank to make a Loan in the amount of such Loan Account Check. A Loan obtained in this manner will be deemed advanced to the Borrower by and upon the payment or coos3sde FILED: NASSAU COUNTY CLERK 02/20/2024 03:06 PM INDEX NO. 603042/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/20/2024 . ' - 3 - certification of the Loan Account Check. The Bank may, in its discretion, refuse to pay or certify any Loan Account Check if after paying or certifying such check, the amount of outstanding Loans would exceed the Maximum Amount. However, if the Bank does pay such Loan Account Check, the entire amount of the Loan Account Check (including the portion that is in excess of the Maximum Amount) shall be a Loan and shall be subject to all of the terms of this Agreement, provided that the portion in excess of the Maximum Amount shall be payable on demand. If more than 5 Loan Account Checks are drawn upon the Loan Account in a Statement Period (as hereinafter defined), the Borrower agrees to pay to the Bank, a fee of $5 for each Loan Account Check drawn on the Loan Account in such Statement Period in excess of 5 Loan Account Checks. The fee for each Loan Account Check in excess of 5 Loan Account Checks drawn on the Loan Account in a Statement Period shall be deemed to be a Loan advanced on the date the Loan Account Check is paid and subject to all of the terms of this Agreement provided that such Loan shall be payable on the payment date specified in the Periodic Statement (as hereinafter defined) for such Statement Period. Automated Response Unit For Business Access. Provided that the Borrower maintains a Designated Business Account and has an ATM Card and an active PIN from the Bank, the Borrower may use the Bank's Automated Response Unit For Business ("ARU") to obtain a Loan by debiting the amount of the Loan from the Loan Account and crediting the Loan to the Designated Business Account linked to the ARU. A Loan obtained in this manner will be deemed advanced to the Borrower by and upon the transfer of funds to the Designated Business Account. Transferring funds through the ARU is subject to the rules and regulations of the Bank in effect from time to time for ARU transactions generally. Banking" Access.¹ The Bank of New York Direct 24 PC Provided that the Borrower maintains a Designated Business Account and has an ATM card and an active PIN from the Bank, the Borrower may use The Bank of New York Direct 24 PC Banking computer services ("PC") to obtain a Loan by debiting the Loan Account in the amount of the Loan and ³crediting such amount to the Designated Business Account linked to the PC. A Loan obtained in this manner will be deemed advanced to the Borrower by and upon the transfer of funds to the Designated Business Account. Transferring funds by PC is subject to the Direct 24 Banking services agreement given to the Borrower at the time the Borrower requested PC services as amended from time to time and the rules and regulations of the Bank in effect from time to time for PC transactions generally. Transferring funds by PC is subject to the applicable accounts being linked to the PC and any PC system limitations for accessing accounts and performing certain functions. The Bank is not required to make all of the above means for obtaining a Loan available to the Borrower at any one time. In addition, the Bank reserves the right, from time to time, to eliminate one or more of such means for obtaining a Loan. AUTHORIZED REPRESENTATIVES The Borrower authorizes the Bank to accept Loan requests and other instructions from the Borrower and any person otherwise properly authorized to do so. The Borrower is responsible for the proper distribution and monitoring of the usage of its ATM Card, PIN and any password for access by PC in connection with the Loan Account. The Borrower assumes the entire risk of any Loan obtained through the improper, fraudulent or unauthorized use of the Borrower's ATM Card, PIN, password for '" The Bank of New York Direct 24 PC Banking is a service mark of The Bank of New York. 00053sde .. FILED: NASSAU COUNTY CLERK 02/20/2024 03:06 PM INDEX NO. 603042/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/20/2024 access by PC or the ARU and will be responsible to repay such Loan and all interest thereon. PRINCIPAL PAYMENTS Subject to the terms and conditions of this Agreement, the Borrower agrees to pay the outstanding principal balance of the Loans in equal consecutive monthly installments, on the date specified in the Periodic Statement (as hereinafter defined), each in the amount of 1/60 of the principal balance of the Loans outstanding on the last day of the Draw Period , commencing the first calendar month after the calendar month in which the Draw Period ends and continuing thereafter each successive calendar month until the fifty-ninth month after the making of the first principal payment when the remaining unpaid principal balance of the Loans shall be due and payable. The Borrower may prepay the outstanding principal balance of the Loans in whole or in part at any time and from time to time. If, at any time during the Draw Period, the principal balance of the Loans exceeds the Maximum Amount, the Borrower shall prepay the Loans on demand in an amount such that, after giving effect to such prepayment, the principal balance of the Loans does not e3tceed the Maximum Amount. Subject to the terms and conditions of this Agreement, each prepayment shall be applied to the outstanding principal balance of the Loans and, if prepayment is made after the end of the Draw Period, such prepayment shall be applied against the remaining monthly installments of principal in the inverse order of maturity of such installments. To the extent that prepayments reduce the outstanding principal amount of the Loans below the Maximum Amount during the Draw Period, credit availability is restored. INTEREST The Borrower agrees to pay interest monthly o the outstanding principal balance of the loans, on the date specified in the Period c Statement, at a rate per annum equal to the Prime Rate (as defined below) plus 1.500%, but not to exceed the maximum rate permitted by law. If an Event of Default described below occurs and is continuing, the Borrower agrees to pay interest on the outstanding principal balance of the Loans, on demand, at a rate per annum equal to the sum of the rate set forth in the preceding sentence plus 3%, but not to exceed the maximum rate permitted by law. "Prime Rate" for the prime commercial rate of the Bank as publicly means, any day, lending announced to be in effect from time to time, such rate to be adjusted automatically and without notice, on the effective date of any change in such rate. The Borrower agrees that the Prime Rate is not the lowest rate at which the Bank may make loans. Interest shall be calculated on the basis of a 360 day year for the actual number of days elapsed. FEE The Borrower agrees to pay to the Bank upon signing this Agreement a non- refundable fee in an amount equal to the amount specified on Schedule A to this Agreement. The Borrower agrees to pay to the Bank at the time of each extension of the Draw Period a non-refundable fee equal to the Bank's standard annual fee for Business CreditLink in effect on the date of such extension. The Bank shall debit the Loan Account for such fee on the first day of each extension of the Draw Period. The debiting of the Loan Account in the amount of such fee shall be a Loan and shall be subject to the terms of this Agreement provided that such Loan shall be payable on the payment date specified in the Periodic Statement (as hereinafter defined) for such Statement Period. LATE CHARGBS If any payment of principal of or interest on the Loans is not paid within 10 days of the due date of such payment, the Borrower agrees to pay to the Bank, a fee equal to 5% of the amount of any payment of principal and/or interest not received when due but in any event not less than $25 with respect to each such overdue payment for the purpose of defraying the Bank's expenses incident to the handling of such delinquent payment, which shall be payable on the eleventh day after the due date of such payment. coos3sde . .. . . .. FILED: NASSAU COUNTY CLERK 02/20/2024 03:06 PM INDEX NO. 603042/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/20/2024 Such fee shall be in addition to, and not in lieu of, any other remedy that the Bank may have. PERIODIC STATEMENT; CHARGING ACCOUNTS The Bank will send to the Borrower a monthly statement (the "Periodic Statement") which statement will set forth the principal amount of each Loan made during the period covered by such statement (the "Statement Period"), the payments received during 4uch Statement Period and the amount payable on the next payment date specified in the Periodic Statement. All payments shall be made in U.S. Dollars and in available funds. If a payment is not made in available funds, the Bank may apply the payment immediately but is not required to restore credit availability until such funds are available. If the Borrower maintains a Designated Business Account, the Bank shall charge the Designated Business Account for the principal of and interest on the Loans, any fees and other amounts owing to the Bank under this Agreement on the date such amounts become due. The failure of the Bank to charge the Designated Business Account, shall not affect the Borrower's obligation to make such payments when due. The Borrower shall promptly examine the Periodic Statement. If the Periodic Statement contains an error or a discrepancy with respect to Business CreditLink activity, the Borrower agrees to give the Bank written notice thereof within 30 days after receipt of the statement. If the Borrower fails to give such notice, the Bank shall be released of all liability to the Borrower. APPLICATION OF PAYMENTS The Bank shall choose the order in which payments are applied to the amounts due under this Agreement, except as otherwise required by law. Any payment in excess of the total outstanding obligations of the Borrower under this Agreement may be credited by the Bank to the Designated Business Account as a deposit provided the Borrower maintains a Designated Business Account or returned to the Borrower in accordance with the Bank's practices. RIGHT OF SET-OFF The Bank shall have a lien on the balances of the Borrower now or hereafter on deposit with or held as custodian by the Bank and the Bank shall have full authority to set-off such balances against the obligations of the Borrower under this Agreement or any other obligation of the Borrower to the Bank, and may at any time, without notice to the extent permitted by law, apply the same to such obligations, whether or not due. ACCOUNT8; ATM, ARU AND PC SERVICES Any checking or savings accounts which the Borrower maintains at the Bank, and ATM, ARU and PC services, are governed by the terms and conditions of other agreements between the Bank and the Borrower and such rules and regulations as the Bank may establish from time to time. ATM transactions conducted at a participating network ATM may be subject to additional applicable rules and regulations of the owner or oPerator of such ATM. Pursuant to such other agreements, rules and regulations, the Bank may impose charges in connection with, and place limitations on the use of, such accounts, or ATM, ARU or PC services. Any such charges and limitations will be in addition to all charges and limitations imposed under this Agreement. In the event any term or condition in this Agreement with respect to the Loan Account conflicts with any term or condition of any agreement governing such other accounts, or ATM, ARU or PC services, the terms and conditions of this Agreement will be controlling with respect to the Loan Account. A Loan obtained from a participating network ATM located in a foreign country, and which is advanced from such ATM in a currency other than U.S. Dollars, will be denominated on the books and records of the Bank as a Loan in U.S. Dollars. The Borrower will be bound by the Bank's determination of the currency conversion rate and the date and manner in which the Bank made the conversion. LOAN ACCOUNT; LOAN ACCOUNT CHECKS coo53sde FILED: NASSAU COUNTY CLERK 02/20/2024 03:06 PM INDEX NO. 603042/2024 .... . . .. NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/20/2024 . - 6 - The Bank has the right to debit the Loan Account if (i) the Bank is served with legal papers in connection with a judgment or tax lien or other legal mandate resulting from legal proceedings in which the Borrower is involved, or (ii) any payment made to the Bank under this Agreement is returned to the Bank for any reason. Paid Loan Account Checks will not be returned to the Borrower. Copies of the checks may be obtained from the Bank upon request. The Bank may charge the Borrower for any costs or expenses incurred by the Bank if the Bank processes a stop payment order of a Loan Account Check, certifies a Loan Account Check or produces copies of canceled Loan Account Checks or statements of account. The Bank may charge the Borrower for the cost of printing the Loan Account Checks. The cost of printing Loan Account Checks will vary depending on the design and quantity selected. If the Borrower gives the Bank an order not to pay any Loan Account Check, the Bank will not be responsible even though the Loan Account Check is paid by the Bank if (i) the Bank acted in a commercially reasonable manner, or (ii) the Bank did not have a reasonable opportunity to act on the Borrower's order. The Bank will not be responsible if the Bank pays any Loan Account Check more than 14 days after the Borrower nas verbally ordered the Bank not to pay it, or more than 6 months after the Borrower nas ordered the Bank in writing not to pay it. The Borrower agrees not to issue any post-dated Loan Account Checks. If, however, the Borrower issues a post-dated Loan Account Check, the Bank will not be responsible if for any reason the Bank pays the Loan Account Check before the stated date of the Loan Account Check, unless applicable law requires otherwise. The Borrower agrees to safe-guard the Loan Account Checks. The Borrower will promptly notify the Bank in writing of any Loan Account Checks which have been lost or stolen and the circumstances surrounding the loss or theft, In the event the Bank's obligation to make Loans terminates or the Borrower closes its Loan Account, the Sorrower will return any unused Loan Account Checks to the Bank at the address set forth opposite its name on the signature page of this Agreement or such other address nereinafter specified by written notice from the Bank to the Borrower. All Loan Account Checks must be payable in the currency of the United States of America. The Borrower agrees not to draw a Loan Account Check payable in any foreign currency. If the Borrower does, the Bank will have the right to return the Loan Account Check unpaid. If, however, the Bank should pay the Loan Account Check, the Borrower will be bound by the Bank's determination of the currency conversion rate and che date and manner in which the Bank made the conversion. COLLATERAL To secure the Borrower's obligations to the Bank under this Agreement including but not limited to, the Borrower's obligations to repay the Loans and to pay interest, fees, expenses and other amounts described in this Agreement, and any other indebtedness, liabilities and obligations of the Borrower of any kind to the Bank whether in existence now or arising at any time in the future, the Borrower grants to the Bank a security interest in and a lien upon all personal property (other than margin stock) and fixtures of the Borrower whether presently existing or existing in the future or presently owned or acquired in the future by the Borrower and whether or not subject co the Code, including, but not limited to, all goods, money, instruments, accounts, farm products, inventory, equipment, documents, chattel paper, investment property (other than margin stock), deposit accounts, supporting obligations and general intangibles, and all interest, dividends and other distr