Preview
FILED: MONROE COUNTY CLERK 04/11/2024 02:40 PM INDEX NO. E2024006166
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/11/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3820267
Book Page CIVIL
Return To: No. Pages: 20
JOHN KEVIN MCANDREW
1900 Bausch & Lomb Place Instrument: EXHIBIT(S)
Rochester, NY 14604
Control #: 202404111272
Index #: E2024006166
Date: 04/11/2024
TOMPKINS COMMUNITY BANK Time: 2:46:20 PM
TOWPATH MOTEL, INC.
PATEL, SHAILESH N.
PATEL, MICKY S.
S & A HOSPITALITY INC.
New York State Department of Taxation and Finance
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
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PROMISSORY NOTE
$395,000.00 November 8, 2018
I. PROMJSE TO PAY
FOR VALUE RECEIVED, and intending to be lcgaUy bound, TOWPATH MOTEL,
INC., a New York corporation duly organized and validly existing under the laws of the State of
New York, having an office localed at 10 Falconbridge Drive, Pittsford, New York 14534
("Borrower"), promises to pay to the order ofTIIE BANK OF CASTILE, a New York banking
corporation having an office at 133 North Center Street, Perry, New York 14530 ("Lender"), on or
before the Maturity Date (hereinafter defined), in lawful money of the United State of America, the
principal sum ofTHREE HUNDRED NINETY-FIVE THOUSAND AND N0/100 DOLLARS
U.S. ($395,000.00) or the principal amount of all advances made by Lender to Borrower from time
to time (each a "Loan" or collectively "Loans") plus interest thereon from the date hereof, until the
indebtedness evidenced hereby is paid in ful1.
II. DEFINITIONS
When used in this Note, the following terms shall have the meanings indicated for each uf
them:
2.1 Business Day: A day on which commercial banks are not authorized or required to
close in New York State.
2.2 FHLB Rate: A fixed rate of interest determined by Lender to be the Regular Fixed
Advance Rate offered by the Federal Home Loan Bank of New York (as reported on a weekly
average basis) for instruments having a term of ten (10) years most recently available on the day
which is two (2) Business Days immediately preceding the date for such determination.
2.3 Guarantor: S & A Hospitality Inc. Shailesh N. Pate], and Micky S. Patel.
2.4 Interest Rate: The rate of interest set forth in Section 3 hereof.
2.5 Indebtedness: All loans, advances, debts, liabilities, indebtedness, obligations, and
credit owing by Borrower to Lender of any kind or nature, present or future, whether as borrower
or guarantor, however evidenced, whether arising hereunder or any other loan, note, letter of credit,
guaranty, collateral or other agreement or by operation of law, and whether direct or indirect,
absolute or contingent, due or to become due, now owing or existing or hereafter arising or created
and however acquired, and any amendments, extensions, renewals or increases thereof, including,
without limitation, all principle, interest, charges, expenses, commitment or facility fees, collateral
management or other fees, treasury management obligations, obligations due pursuant to any interest
rate protection agreement, reasonable attorneys' fees and expenses related to the collection of the
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foregoing, and any other amounts payable by Borrower whether executed in connection herewith or
otherwise (collectively, the "Indebtedness").
· 2.6 Loan Term: Commencing on the date hereof and ending on the Maturity Date.
2. 7 Loan Documents: Any and all documents executed and delivered by Borrower, and
any Guarantor, in favor or Lender, in connection with the Loan, and dated of even date herewith,
including but not limited to this Note, the Mortgage and Security Agreement, the Assignment of
Leases and Rents, the Financing Statements, the Guaranty of Payment and Pcrfonnance and the
Environmental Compliance and Indemnification Agreement, (together with any and all other
documents and instruments executed simultaneously herewith or previously executed and/or
delivered in connection with the loan evidenced by this Note, and all amendments and supplements
thereof).
2.8 Maturity Date: December 1, 2038.
2.9 Note: This Promissory Note and all amendments, supplements, renewals, replacements
or modifications thereof. The Indebtedness evidenced by this Note is secured by certain of the Loan
Documents and all of the covenants, conditions and agreements contained in all of the Loan
Documents are hereby made a part of and incorporated into this Note hy this reference. Reference
is hereby made to the Loan Documents for a description of the security and the oollateral covered
thereby, the rights ofl.ender and obligations of Borrower in respect thereto, but neither this reference
to the Loan Documents nor any provisions thereof shall affect or impair the obligation of Borrower
to pay the principal and interest of this Note and all other sums or charges hereunder when due and
payable in accordance with the terms and conditions hereof.
2.10 Morl~dge: The Mortgage and Security Agreement from Borrower to Lender of
even date herewith, which creates a first lien mortgage encumbering the Property to secure this
Note.
2.11 Property: That certain real property and tht! improvements thereon located at 2323
Monroe Avenue, Rochester, New York 14618 (the "Property").
III. INTEREST RATE AND ACCRUAL
3.1 Interest Accrual: Interest shall accrue at the applicable Interest Rate on the outstanding
principal balance hereof until paid in full. Borrower shall pay interest, calculated on the basis of a
360-day year (consisting of 12 months of 30 days each) for lhe actual number of days of each year
(365 or 366, as applicable), on the outstanding principal amount from and including the date of this
Note to, but not including, the date the outstanding principal amount is paid in full. Interest will be
payable monthly.
3.2 Interest Rate: From the date of the Note through and including the next Adjustment
Date (as defined below), interest shall accrue on the outstanding principal balance hereunder at a
fixed rate equal to the current FHLB Rate plus two and one half per cent (2.50%) per annum ("Period
One").
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The interest rate will adjust as of December l, 2028 (an "Adjustment Date") to the annual interest
rate equal to the then current FI-ILB Rate (as determined by Lender two (2) Business Days prior to
each Adjustment Date) plus two and one half per cent (2.50%) per annum ("Period Two").
Interest Rate Floor: Notwithstanding the foregoing, at no time during the Loan Term
will the rate at which interest accrues be less than four and a quarter per cent (4.25%) per annum.
3.3 Rate Not Available: If any interest rate index is not available, a similar rate based
upon a comparable index selected by Lender in its sole discretion will be utilized.
3.4 Maximum Rate of Interest: It is intended that the rate of interest hereon shall never
exceed the maximum rate, if any, which may he legally charged on the loan evidenced by this Note
("Maximum Rate"), and if the provisions for interest contained in this Note would result in a rate
higher than the Maximum Rate, interest shall nevertheless be limited to the Maximum Rate and any
amounts which may be paid toward interest in excess of the Maximum Rate shall be applied to the
reduction of principal, or, at the option of Lender, returned to Borrower.
IV. PAYMENT TERMS
4.1 Payments:
(a) On the date hereof, Borrower shall pay Lender interest accrued from the date
hereof through and including November 30, 2018. Commencing on Januaryl, 2019 through and
including the Maturity Date, Borrower shall make monlhly payments of principal and interest to
Lender in the amount necessary to repay the unpaid principal balance of the Loan and all accrued
interest thereon at the then applicable interest rate and based on a twenty (20) year amortization
period, with such payments to be adjusted on each Adjustment Date in an amount necessary to fully
amortize the remaining principal balance of the Loan over the remainder of the original twenty (20)
year amortization period at the adjusted interest rate. Payments shall be applied first to interest, then
to late fees, if any, then to principal, then to tax and insurance escrow payments, if any, and then to
prepayment premiums.
(b) All outstanding principal, interest and all other amounts due hereunder and
the documents securing the Loan, shall be due and payable on the Maturity Date, if not sooner paid.
4.2 Real Estate Tax Account: Lender will engage, at Borrower's expense, for a
lifetime monitoring service to monitor real property tax: accounts affecting the Property. Borrower
will pay to Lender by depositing into a non-interest bearing deposit account with Lender
("Imposition Account") on the first day of each month during the term hereof, a sum equal to one-
twelfth (1/12) of the annual aggregate amount, as estimated from time to time by Lender, of the
aggregate of all taxes, assessments, and sewer charges (collectively "Impositions") on the Property,
which will be held by Lender and applied by Lender to the payment of such Impositions as they
become due and payable. If at any time such payments shall be deemed by Lender to be insufficient
to pay such Impositions, Borrower will pay the amount of such deficiency, on demand, to Lender. I!
4.3 Due Date: All Indebtedness owed to Lender hereunder and not paid before the !
Maturity Date shall be
due and payable on the Maturity Date.
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4.4 Prepayments:
This Note may be prepaid in whole or in part during the Loan Term, provided,
however, that in the event a prepayment results from a refinancing hy a competitor to Lender,
Borrower shall also pay Lender a prepayment premium based on the following percentage of the sum
prepaid. For purposes of this Section, Loan Y car One shall be deemed to mean the firsl twelve (12)
full calendar months following the date hereof. Each twelve (12) month period thereafter shall be
deemed a Loan Year.
Loan Term: Prepavment Premium Due
Loan Year One 5% of the amount prepaid
Loan Year Two 4% of the amount prepaid
Loan Year Three 3% of the amount prepaid
Loan Year Four 2%of the amount prepaid
.Loan Year Five 1 % of the amount prepaid
Commencing in Loan Year Six, this Note may be prepaid, in whole or in part, without
prepayment premium of any kind. No prepayment premium shall be due from Borrower for any
payment of the Indebtedness made as a result of the application of insurance proceeds or
condemnation awards toward the Indebtedness.
Notwithstanding the above, no prepayment premium will be assessed if Lhe principal
payments are made from excess of cash flow.
4.5 Application: Business Dav: All payments hereon shall be made, and all notices lo
Lender required or authorized hereby shall be given, at the office of Lender at the address designated
in the heading of this Note, or to such other place as Lender may from time to time direct by written
notice to Borrower. 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. Lender shall apply all
payments received on this Note to any accrued and unpaid interest then due and owing, then to late
fees, if any, then to the reduction of principal of this Note, then to tax and insurance escrow
payments, if any, then to prepayment premiums and 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 below, 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.
4.6 Costs and Expenses: Borrower agrees to pay on demand all costs and expenses of
every kind and nature, including, without limitation, attorneys' fees and disbursements incurred by
Lender in retaining counsel for advice, suit, appeal, insolvency proceedings, or any other purpose
described in this Section or incurred by Lender (a) in enforcing this Note, (b) in collecting any
Indebtedness evidenced hereby from Borrower or any Guarantor, (c) in realizing upon or protecting
any collateral for the payment of this Note, and ( d) for any other purpose relating hereto.
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4.7 Collection Periods: Any check, draft, money order or other instrument given in
payment of all or any portion hereof may be accepted by Lender and handled for collection in the
customary manner, but the same shall not constitute payment hereunder or diminh;h any rights of
Lender except to the extent that actual cash proceeds of such instrument are unconditionally received
by Lender; provided, however, that this Note shall not be in default as the result of normal collection
period.<; on such instruments.
4.8 Late Payment Charge: 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 of $25.00 or an amount equal
to five per cent (5%) of such unpaid amount, whichever is greater. The late charge shall become
immediately due to Lender, at Lender's sole option, as agreed compensation to Lender for the
additional costs and expenses reasonably expected to be incurred by Lender by reason of such
nonpayment, such as in contacting Borrower and arranging for and processing remedial payment.
Borrower acknowledges that the exact amount of such costs and expenses may be difficult, if not
impossible, to determine with certainly, and further acknowledges and confesses the amount of such
charge to be a consciously considered, good faith estimate of the actual damage to Lender by reason
of such default. The payment of such late charge shall be secured by the Loan Documents, shall be
payable on demand, bul in any event not later than the due date of the next regularly scheduled
monthly payment hereunder, and shall apply only to monthly installments due and payable hereunder
prior to any acceleration by Lender of the Indebtedness evidenced hereby. Whether or not expressed,
this election shall not impair the Lender's further right to interest on the unpaid amount at the
Default Rate (defined below) from the date such payment was due through the date of actual
payment.
4.9 Default Interest: Borrower hereby agrees that in the event any payment due
hereunder is not paid when due or the entire Indebtedness evidenced by this Note is not paid when
due, then the rate of interest on this Note, at Lender's option, without notice or demand, which is
hereby expressly waived, shall be increased to be equal to the sum of three (3) percentage points plus
the interest rate otherwise applicable on the Loan or the highest rate which the parties may agree
under applicable law, whichever is less, and such rate shall continue to apply whether or not
.iudgment shall be entered on this Note, until such time as Borrower's payment default is cured.
Borrower shall be obligated thereafter to pay interest on the then unpaid principal balance of this
Note at the Default Rate, to be computed from the due date through and including the date of actual
receipt of the overdue payment, whether a monthly payment or the entire Indebtedness. Nothing
herein shall be constmed as an agreement or privilege to accelerate or extend the date of the payment
of any installment of, or the entire Indebtedness, nor as a waiver of any other right or remedy
ac(.,Tuing to Lender by reason of any such default.
4.10 Sale of the Properly: If Borrower elects to sell a Parcel or Parcels, the amount of
prepayment due to Lender shall be determined by Lender, in Lender's reasonable discreLion, based
on the ratable value of the Parcels ascribed in appraisals to be conducted at the time of the proposed
sale.
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V. EVENTSOFDEFAULT
The happening of any of the following events or OCL'tirrence of the following conditions; shall
be events of default hereunder (individually, an "Event of Default" and collectively "Events of
Default"):
(a) Nonpavmcnt: Nonpayment of principal of, interest on, or any fee or premium
provided for under this Note within ten (10) days after such amount is due, whether by acceleration
or otht:rwise.
(b) Failure to Perform Other Covenants: If Borrower shall continue to fail to perform
or be in default under any of the other terms, covenants or conditions of this Note for ten (10) days
after notice from Lender in lht: case of any default which can be cured by the payment of a sum of
money, or for thirty (30) days after notice from Lender in the case of any other equent holder of this Note from time
to time. If a court deems any provision of this Note invalid, the remainder of the Note shall remain
in effect.
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7.4 Waiver of Marshalling of Assets: Borrower hereby waives for itself and, to the fullest
extent not prohibited by applicable law, for any subsequent lienor, any right Borrower may now or
hereafter have under the doctrine of marshalling of assets or otherwise which would require Lender
to proceed against certain property cov~red by any of the Loan Documents before proceeding against
any other properly covered by any of the Loan Documents. Lender shall have the right to proceed,
in il<; sole discretion, against the property secured by any of the Loan Documents in such order and
in such portions as Lender may determine, without regard to the adequacy of value or other liens on
any such property, and any such action shall not in any way be considered as a waiver of any of the
rights, benefits, liens or security interests created by any of the Loan Documenl<;.
7.5 Setoff: Without limiting its rights of setoffunder New York law generally, upon and
at any time and from time to time after the occurrence and during the continuance of an Event of
Default, Lender shall have the right to place an administrative hold on, and setoff against each
obligation of Borrower hereunder and each obligation of Lender in any capacity to Borrower,
whether now existing or hereafter arising or accruing, whether or not then due and whether pursuant
to any deposit account or certificate of deposit or otherwise. Such setoff shall hecome effective at
the time Lender determines even though evidence thereof is not entered in the records of Lender until
later.
7.6 Waiver: Borrower hereby waives demand, presentment for payment, protest, notice
of protest, notice of nonpayment and any and all lack of diligence or delays in collection or
enforcement of this Note or the other Loan Documents, and expressly consents to any extension of
time of payment hereof, release of any party primarily or secondarily liable hereunder or of any of
the security for this Note, acceptance of other parties to be liable for any of the Indebtedness
evidenced hereby or under the other Loan Documents or of other security therefor, or any other
indulgence or forbearance which may be made, without notice to any party and without in any way
affecting the liability of any party. The Borrower hereby waives, in favor of the holder thereof, any
and all rights of contribution, subrogation, exoneration and any similar rights and interest so long
as any amount evidenced by this Note, together with any additional amount secured by any of the
Loan Documents, remains unpaid.
7.7 Governing I.aw: This Note and the right and obligations of the parties hereto shall
be governed by and construed according to the internal laws of the State of New York, without
regard to principles of the conflict of laws.
7.8 Counterpart Signatures: This Note may be executed in any number of duplicate
originals or counterparts and each such duplicate or counterpart shall be deemed to constitute but one
and the same instrument.
7.9 CONSENTTOJURISDICTION: BORROWER KNOWINGLY, VOLUNTARILY,
INTENTIONALLY AND IRREVOCABLY (a) CONSENTS IN EACH ACTION AND OTHER
IBGALPROCEEDTNGCOMMENCEDBYIBNDERANDARISINGOUTOFOROTIIERWlSE
RELATING TO THIS NOTE OR ANY COLLATERAL RELATED HERETO TO THE
NONEXCLUSIVEPERSONALJURISDICTIONOFANYCOURTTHATISEITHERACOURT
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OF RECORD OF THE STATE OF NEW YORK OR A COURT OF THE UNITED STATES
LOCATED IN THE STATE OP NEW YORK, (b) WAIVES EACH OBJECTION TO THE
LAYING OF VENUE OF ANY SUCH ACTION OR OTHER LEGAL PROCEEDING, (c)
WAIVES PERSONAL SERVICE OF PROCESS IN EACHSUCHACTIONAND OTHER LEGAL
PROCEEDING, AND ( d) CONSENTS TO TIIE MAKING OF SERVICE OF PROCESS IN EACH
SUCHACTION ANDOTHERLEGALPROCEEDING BY REGISTERED MAILDIRECTEDTO
BORROWER AT THE LAST ADDRESS OF BORROWER SHOWN IN THE RECORDS
RELATING TO THIS NOTE MAINTAINED BY IBNDER, WHICH SUCH SERVICE OF
PROCESS TO BE DEEMED COMPLETED FIVE (5) DAYS AFTER THE MAILING THEREOF.
7.10 WAIVER OF JURY TRIAL: BORROWER KNOWINGLY, VOLUNTARILY,
INTENTIONALLY Al\10 IRREVOCABLY WAIVES EACH RIGHT BORROWER MAY HAVE
TO A TRIAL BY JURY WITH RESPECT TO, AND EACH RIGHT TO ASSERT ANY CLAIM
FOR DAMAGES (INCLUDING, BUT NOT UMITED TO, PUNITIVE DAMAGES) IN ANY
ACTION OR OTHER LEGAL PROCEEDING OF ANY NATURE, RELATING TO (a) THIS
NOTE, ANY RELATED WAN DOCUMENT OR ANY COLLATERAL RELATED HERETO,
(b) ANY TRANSACTION CONTEMPLATED BY ANY SUCH DOCUMENTS OR (c) ANY
NEGOTIATION, PERFORMANCE OR ENFORCEMENT OF THIS NOTE, OR ANY
COLLATERAL RELATED HERETO.
[Signature Page to Follow]
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IN "WITNESS WHEREOF, Borrower has executed this instrument the date first above
written.
TOWPATH MOTEL, INC.
By: ~;VP~
SHAILESH N. PATEL, President
STATE OF NEW YORK )
COUNTY OF MONROE ) ss.:.
On the 8th day of November in the year 2018 before me, the undersigned, a notary public in
and for said state, personally appeared Shailesh N. Patel, 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 person upon behalf of which the individual acted,
executed the instrument ~
STEVEN J. PHETERSON ' No , u lie
Notary Public, State of New York
Qualified In Monroe County ') J
Commission Expires August 31. 20~!
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TOMPI..1:ended and
continued. The Borrower and guarantor, if any, acknowledges Uiat he/she/it has been represented by counsel or Uiat he/she/it
has had an opportunity to consult with counsel in connection with the execution und delivery of the Modification. This
Modification is being entered into at the Borrower's request and for its material benefit. This Modification shall be interpreted
and construed according to its fair meaning and neither for nor against any party hereto irrespective of which party caused
U1e same to be drafted. The perforrna.nce and construction of Uris Modification shall be governed by the internal laws of tl1e
State of New York without reference to its conflicts of law p1inciplcs. If any term, provision or condition of this Modification
or of the Loan Documents as modified hereby shall be deemed invalid or unenforceable by any court or governmental agency
of competent jurisdiction, such invalidity or unenforceability shall not affect the remainder of such term, provision or
condition or any other terni, provision or condition, and this Modification and the Loan Documents as modified hereby shall
survive and be construed as if such invalid or unenforceable terrn, provision or condition had not been contained therein.
This Modification may be executed in any mnnber of co1mterparts and by the different parties hereto on separate cormterparts
each of which, when so executed, sliall be deemed an original, bul all such counterparts sliall conslilute but one and U1e same
instnnncnt. Borrower agrees that in any legal proceeding, a copy oftlris Modification kept in Lender's course of business
may be admitted into evidence as an original. Counterpart signature pages to this Modification transmitted by facsimile
transmission, by electronic mail in portable document form.at (.pdt), or by any other electronic means will have the same
effect as physical delivery of the paper document bearing an original signature. BORROWER REAFFIRMS ITS KNOWING
AND VOLUNTARY WAIYER OF ruR.Y TRIAL SET FORTH IN THE NOTE.
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IN WITNESS WHEREOF, each party has caused its duly authorized officer to execute and deliver this Modification as of
date first above written with the intention that this Modification sllall constitute a sealed instnunent.
LENDER: Tompkins Bank of Castile
By: - - - - - - - - - - - - - -
Name: Tyna S. Slocum
Title: Senior Vice President
BORRO\VER:
!J'.Q'\\~~tHM9~1;\tJ.~.J
By: _g_p~__,_,___-
Narne: Sllailesh N. Patel
By: -------------~
Name:
Title: President Title:
ATTACHMENT(S): Promissory Note, given by Borrower to Lender, dated ~~~¥~~if§vi9~{~
Any additional page(s) for additional Borrower or Guarantor signatures tli.at may be required.
CONSENT AND REAFFffiMATION OF GUARANTY AGREEMENT
By signing below, tli.e undersigned intending to be legally bound, hereby acknowledges and agrees tli.at (i) he/she/it
consents to ilie foregoing Nole Modification Agreement between Borrower and Lender, (ii) each Guaranty Agreement of the
loan secured by the Note and any related agreement from the undersigned to Lender remains in full force and effect and is
unaffected by the foregoing Note Modification Agreement, (iii) each Guarantor is bound as if he/she/it were a party to the
Note Modification Agreement, and (iv) each undersigii.ed Guarantor hereby reaffinns and restates his/her/its continuing,
absolute, irrevocable and unconditional guaranty of the obligations and indebtedness of Borrower to Lender whether now
existing or hereafter arising, including, but not limited to, those obligations and indebtedness evidenced by the foregoing
Note Modification Agreement
GUARANTOR:
:~~A
Name: Shailesh N. Patel
By: _ _i_h___,,_{....._
.. -~-----
Name: Mickeyben S. Patel
Title: Indh·idual Title: Individual
t&;~J\:}r6$RiiillitY®~
By:_;L_Q_~~-
Name: Sllailesh N. Patel
By: - - - - - - - - - - - - - -
Name:
Title: President Title:
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NOTE MODIFICATION AGREEMENT
Loan No. 520006813
THIS NOTE MODIFICATION AGREEMENT made and entered into on September 25. 2020 (this
"Amendment"). by and between the tmdusigned borrower (uBorrower") and THE BANK OF CASTILE (together with its
successors and assigns. "Lender").
I
'
BACKGROUND: Borrower and Lender previously entered into a Note Modification Agreement, together with any
subsequent additional modificatioo thereof (collectively, the "Modification") in response to the 2020 COVID-19 pandemic
to allow for a deferment of certain payments for a period oftime ("Forbearance Period") and the Borrower has requested an
additional extension of the Forbearance Period. Borrower acknowledges that this Amendment has not been required by
Lender and is made at Borrower's request For and in consideration of One Dollars ($1.00) and other good and valuable
consideration, the mutual and receipt and sufficiency of which is hereby acknowledged, the parties hereby agree to modify
the Note as follows:
1. Acknowledgment ofBack:ground and ofDebt. The "Background" provisions described above are expressly
incorporated into this Amendment The Note given by Borrower to Lender to secure the loan ("Loan") under the Loan No.
first set forth above. together with the Modification and all other documents executed by the Borrower, and any guarantor(s)
and mortgagor(s) in connection with the Loan, are hereinafter collectively referred to as the "Loan Documents."
2. Certifications. Borrower certifies to Lender that: (i) Borrower is experiencing a f"tnanciaJ hardmip as a
result or the COVID-19 pandemic (ie. materially reduced revenue and/or cash Oow and/or liquidity); (ii) if Bon-ower
has not yet resumed norm.al business operatioos, that Borrower intends and expects to resume norm.al business
operations as soon as such business operations are economically feasible and consistent with governmental
guidance/executive orders; and (iii) that eiccept to the extent affected by this Agreement and the Modificatioo, all covenants,
representation and certifications made by Borrower in the Loan Documents remain true and correct.
3. Extension of Forbearance Period. The Forbearance Period shall be extended upon the same terms as set
forth in the Modification, except that (i) the total Forbearance Period, including the prior period under the Modification, shall
be extended to a total of five (5) deferred monthly payments and shall expire on the last day of the month immediately
preceding the following date: October I, 2020 ("Payment Date") and (ii) any escrow payments that may be required under
the Loan must be made in accordance with the tenns of this Agreement All Loan payments shall resume unda" the terms of
the Note, as modified by the Modification, m the Payment Date.
4. Escrow Payments. Notwithstanding the deferral of any loan payments granted in this Agreement, if
required by Borrower's Loan Documents, Borrower shall be required to timely make all escrow payments during that portion
of the Forbearance Period that is the subject of this Amendment Any ~ow payments that were previously deferred under
the Modification and not repaid prior to expiration of the Forbearance Period will be recaptured at the next annual escrow
analysis performed by Lender and capitalized over the next year's required monthly payments. Borrower will receive an
invoice for monthly payment of escrow amowtts.
s. Full Force and Effect. Suryjval of Terms. Except as expressly amended by this Amendment, all of the
certifications, representations. warranties and agreements of Borrower made or set forth in the Loan Documents and the
Modification are incorporated herein, remain in full force and effect, and are restated and reaffirmed by Borrower herein by
reference. Any misrepresentation or breach of any certification, representation, warranty or agreement contained herein or in
any of the Loan Documents shall constitute an Event of Default under the Loan Documents.
6. Miscellaneous. Any defined term not specifically defined herein shall have the meaning assigned to it
under the Loan Documents, such definiti~s being in~orated herein by reference. This Amendment may be executed in
umber of counterparts and by the different partles hereto on separate counterparts each of which, when so executed,
~fbe deemed an origina~ but all s~ch counterparts sh~! consti~e but one and ~e same instrument. Borrower agrees that
in any legal prooeeding. a copy of dns ~endment kept m Len~er s course _of _business ~¥ be ad nutted into evidence as an
. . Counterpart signature pages to this Amendment transmitted by facsmule transm1SS1on, by electronic mail in portable
1
r=~t format (.pdf), or by any other electronic means will have the same effect as physical delivery of the paper document
bearing an original signature.
202404111272 IndexNO.
INDEX #: E2024006166
E2024006166
FILED: MONROE COUNTY CLERK 04/11/2024 02:40 PM
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/11/2024
IN WITNESS WHEREOF, each party has caused its duly authorized officer to execute and deliver this Amendment as of
date first above written with the intention that this Amendment shall constitute a sealed instrument
:~~ ~-A-S_T_IL_E_ _ ___,...
Name: Thomas H. Kishlar
Title: Vk.e President
THIS AGREEMENT IS EXECUTED UNDER SEAL
By. -===_..::;;...,~-1.~~~~~"""-~~~
Name: ·iesh N. Patel
Title: President
TIIlS AGREEMENT IS EXECUTED UNDER SEAL
2
Preview
FILED: MONROE COUNTY CLERK 04/11/2024 02:40 PM INDEX NO. E2024006166 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/11/2024 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3820267 Book Page CIVIL Return To: No. Pages: 20 JOHN KEVIN MCANDREW 1900 Bausch & Lomb Place Instrument: EXHIBIT(S) Rochester, NY 14604 Control #: 202404111272 Index #: E2024006166 Date: 04/11/2024 TOMPKINS COMMUNITY BANK Time: 2:46:20 PM TOWPATH MOTEL, INC. PATEL, SHAILESH N. PATEL, MICKY S. S & A HOSPITALITY INC. New York State Department of Taxation and Finance Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 202404111272 Index #NO. INDEX : E2024006166 E2024006166 FILED: MONROE COUNTY CLERK 04/11/2024 02:40 PM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/11/2024 • • I I {9057965: } 202404111272 IndexNO. INDEX #: E2024006166 E2024006166 FILED: MONROE COUNTY CLERK 04/11/2024 02:40 PM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/11/2024 PROMISSORY NOTE $395,000.00 November 8, 2018 I. PROMJSE TO PAY FOR VALUE RECEIVED, and intending to be lcgaUy bound, TOWPATH MOTEL, INC., a New York corporation duly organized and validly existing under the laws of the State of New York, having an office localed at 10 Falconbridge Drive, Pittsford, New York 14534 ("Borrower"), promises to pay to the order ofTIIE BANK OF CASTILE, a New York banking corporation having an office at 133 North Center Street, Perry, New York 14530 ("Lender"), on or before the Maturity Date (hereinafter defined), in lawful money of the United State of America, the principal sum ofTHREE HUNDRED NINETY-FIVE THOUSAND AND N0/100 DOLLARS U.S. ($395,000.00) or the principal amount of all advances made by Lender to Borrower from time to time (each a "Loan" or collectively "Loans") plus interest thereon from the date hereof, until the indebtedness evidenced hereby is paid in ful1. II. DEFINITIONS When used in this Note, the following terms shall have the meanings indicated for each uf them: 2.1 Business Day: A day on which commercial banks are not authorized or required to close in New York State. 2.2 FHLB Rate: A fixed rate of interest determined by Lender to be the Regular Fixed Advance Rate offered by the Federal Home Loan Bank of New York (as reported on a weekly average basis) for instruments having a term of ten (10) years most recently available on the day which is two (2) Business Days immediately preceding the date for such determination. 2.3 Guarantor: S & A Hospitality Inc. Shailesh N. Pate], and Micky S. Patel. 2.4 Interest Rate: The rate of interest set forth in Section 3 hereof. 2.5 Indebtedness: All loans, advances, debts, liabilities, indebtedness, obligations, and credit owing by Borrower to Lender of any kind or nature, present or future, whether as borrower or guarantor, however evidenced, whether arising hereunder or any other loan, note, letter of credit, guaranty, collateral or other agreement or by operation of law, and whether direct or indirect, absolute or contingent, due or to become due, now owing or existing or hereafter arising or created and however acquired, and any amendments, extensions, renewals or increases thereof, including, without limitation, all principle, interest, charges, expenses, commitment or facility fees, collateral management or other fees, treasury management obligations, obligations due pursuant to any interest rate protection agreement, reasonable attorneys' fees and expenses related to the collection of the 202404111272 IndexNO. INDEX #: E2024006166 E2024006166 FILED: MONROE COUNTY CLERK 04/11/2024 02:40 PM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/11/2024 foregoing, and any other amounts payable by Borrower whether executed in connection herewith or otherwise (collectively, the "Indebtedness"). · 2.6 Loan Term: Commencing on the date hereof and ending on the Maturity Date. 2. 7 Loan Documents: Any and all documents executed and delivered by Borrower, and any Guarantor, in favor or Lender, in connection with the Loan, and dated of even date herewith, including but not limited to this Note, the Mortgage and Security Agreement, the Assignment of Leases and Rents, the Financing Statements, the Guaranty of Payment and Pcrfonnance and the Environmental Compliance and Indemnification Agreement, (together with any and all other documents and instruments executed simultaneously herewith or previously executed and/or delivered in connection with the loan evidenced by this Note, and all amendments and supplements thereof). 2.8 Maturity Date: December 1, 2038. 2.9 Note: This Promissory Note and all amendments, supplements, renewals, replacements or modifications thereof. The Indebtedness evidenced by this Note is secured by certain of the Loan Documents and all of the covenants, conditions and agreements contained in all of the Loan Documents are hereby made a part of and incorporated into this Note hy this reference. Reference is hereby made to the Loan Documents for a description of the security and the oollateral covered thereby, the rights ofl.ender and obligations of Borrower in respect thereto, but neither this reference to the Loan Documents nor any provisions thereof shall affect or impair the obligation of Borrower to pay the principal and interest of this Note and all other sums or charges hereunder when due and payable in accordance with the terms and conditions hereof. 2.10 Morl~dge: The Mortgage and Security Agreement from Borrower to Lender of even date herewith, which creates a first lien mortgage encumbering the Property to secure this Note. 2.11 Property: That certain real property and tht! improvements thereon located at 2323 Monroe Avenue, Rochester, New York 14618 (the "Property"). III. INTEREST RATE AND ACCRUAL 3.1 Interest Accrual: Interest shall accrue at the applicable Interest Rate on the outstanding principal balance hereof until paid in full. Borrower shall pay interest, calculated on the basis of a 360-day year (consisting of 12 months of 30 days each) for lhe actual number of days of each year (365 or 366, as applicable), on the outstanding principal amount from and including the date of this Note to, but not including, the date the outstanding principal amount is paid in full. Interest will be payable monthly. 3.2 Interest Rate: From the date of the Note through and including the next Adjustment Date (as defined below), interest shall accrue on the outstanding principal balance hereunder at a fixed rate equal to the current FHLB Rate plus two and one half per cent (2.50%) per annum ("Period One"). 2 202404111272 IndexNO. INDEX #: E2024006166 E2024006166 FILED: MONROE COUNTY CLERK 04/11/2024 02:40 PM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/11/2024 The interest rate will adjust as of December l, 2028 (an "Adjustment Date") to the annual interest rate equal to the then current FI-ILB Rate (as determined by Lender two (2) Business Days prior to each Adjustment Date) plus two and one half per cent (2.50%) per annum ("Period Two"). Interest Rate Floor: Notwithstanding the foregoing, at no time during the Loan Term will the rate at which interest accrues be less than four and a quarter per cent (4.25%) per annum. 3.3 Rate Not Available: If any interest rate index is not available, a similar rate based upon a comparable index selected by Lender in its sole discretion will be utilized. 3.4 Maximum Rate of Interest: It is intended that the rate of interest hereon shall never exceed the maximum rate, if any, which may he legally charged on the loan evidenced by this Note ("Maximum Rate"), and if the provisions for interest contained in this Note would result in a rate higher than the Maximum Rate, interest shall nevertheless be limited to the Maximum Rate and any amounts which may be paid toward interest in excess of the Maximum Rate shall be applied to the reduction of principal, or, at the option of Lender, returned to Borrower. IV. PAYMENT TERMS 4.1 Payments: (a) On the date hereof, Borrower shall pay Lender interest accrued from the date hereof through and including November 30, 2018. Commencing on Januaryl, 2019 through and including the Maturity Date, Borrower shall make monlhly payments of principal and interest to Lender in the amount necessary to repay the unpaid principal balance of the Loan and all accrued interest thereon at the then applicable interest rate and based on a twenty (20) year amortization period, with such payments to be adjusted on each Adjustment Date in an amount necessary to fully amortize the remaining principal balance of the Loan over the remainder of the original twenty (20) year amortization period at the adjusted interest rate. Payments shall be applied first to interest, then to late fees, if any, then to principal, then to tax and insurance escrow payments, if any, and then to prepayment premiums. (b) All outstanding principal, interest and all other amounts due hereunder and the documents securing the Loan, shall be due and payable on the Maturity Date, if not sooner paid. 4.2 Real Estate Tax Account: Lender will engage, at Borrower's expense, for a lifetime monitoring service to monitor real property tax: accounts affecting the Property. Borrower will pay to Lender by depositing into a non-interest bearing deposit account with Lender ("Imposition Account") on the first day of each month during the term hereof, a sum equal to one- twelfth (1/12) of the annual aggregate amount, as estimated from time to time by Lender, of the aggregate of all taxes, assessments, and sewer charges (collectively "Impositions") on the Property, which will be held by Lender and applied by Lender to the payment of such Impositions as they become due and payable. If at any time such payments shall be deemed by Lender to be insufficient to pay such Impositions, Borrower will pay the amount of such deficiency, on demand, to Lender. I! 4.3 Due Date: All Indebtedness owed to Lender hereunder and not paid before the ! Maturity Date shall be due and payable on the Maturity Date. 3 I 202404111272 Index NO. INDEX #: E2024006166 E2024006166 FILED: MONROE COUNTY CLERK 04/11/2024 02:40 PM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/11/2024 4.4 Prepayments: This Note may be prepaid in whole or in part during the Loan Term, provided, however, that in the event a prepayment results from a refinancing hy a competitor to Lender, Borrower shall also pay Lender a prepayment premium based on the following percentage of the sum prepaid. For purposes of this Section, Loan Y car One shall be deemed to mean the firsl twelve (12) full calendar months following the date hereof. Each twelve (12) month period thereafter shall be deemed a Loan Year. Loan Term: Prepavment Premium Due Loan Year One 5% of the amount prepaid Loan Year Two 4% of the amount prepaid Loan Year Three 3% of the amount prepaid Loan Year Four 2%of the amount prepaid .Loan Year Five 1 % of the amount prepaid Commencing in Loan Year Six, this Note may be prepaid, in whole or in part, without prepayment premium of any kind. No prepayment premium shall be due from Borrower for any payment of the Indebtedness made as a result of the application of insurance proceeds or condemnation awards toward the Indebtedness. Notwithstanding the above, no prepayment premium will be assessed if Lhe principal payments are made from excess of cash flow. 4.5 Application: Business Dav: All payments hereon shall be made, and all notices lo Lender required or authorized hereby shall be given, at the office of Lender at the address designated in the heading of this Note, or to such other place as Lender may from time to time direct by written notice to Borrower. 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. Lender shall apply all payments received on this Note to any accrued and unpaid interest then due and owing, then to late fees, if any, then to the reduction of principal of this Note, then to tax and insurance escrow payments, if any, then to prepayment premiums and 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 below, 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. 4.6 Costs and Expenses: Borrower agrees to pay on demand all costs and expenses of every kind and nature, including, without limitation, attorneys' fees and disbursements incurred by Lender in retaining counsel for advice, suit, appeal, insolvency proceedings, or any other purpose described in this Section or incurred by Lender (a) in enforcing this Note, (b) in collecting any Indebtedness evidenced hereby from Borrower or any Guarantor, (c) in realizing upon or protecting any collateral for the payment of this Note, and ( d) for any other purpose relating hereto. 4 202404111272 IndexNO. INDEX #: E2024006166 E2024006166 FILED: MONROE COUNTY CLERK 04/11/2024 02:40 PM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/11/2024 4.7 Collection Periods: Any check, draft, money order or other instrument given in payment of all or any portion hereof may be accepted by Lender and handled for collection in the customary manner, but the same shall not constitute payment hereunder or diminh;h any rights of Lender except to the extent that actual cash proceeds of such instrument are unconditionally received by Lender; provided, however, that this Note shall not be in default as the result of normal collection period.<; on such instruments. 4.8 Late Payment Charge: 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 of $25.00 or an amount equal to five per cent (5%) of such unpaid amount, whichever is greater. The late charge shall become immediately due to Lender, at Lender's sole option, as agreed compensation to Lender for the additional costs and expenses reasonably expected to be incurred by Lender by reason of such nonpayment, such as in contacting Borrower and arranging for and processing remedial payment. Borrower acknowledges that the exact amount of such costs and expenses may be difficult, if not impossible, to determine with certainly, and further acknowledges and confesses the amount of such charge to be a consciously considered, good faith estimate of the actual damage to Lender by reason of such default. The payment of such late charge shall be secured by the Loan Documents, shall be payable on demand, bul in any event not later than the due date of the next regularly scheduled monthly payment hereunder, and shall apply only to monthly installments due and payable hereunder prior to any acceleration by Lender of the Indebtedness evidenced hereby. Whether or not expressed, this election shall not impair the Lender's further right to interest on the unpaid amount at the Default Rate (defined below) from the date such payment was due through the date of actual payment. 4.9 Default Interest: Borrower hereby agrees that in the event any payment due hereunder is not paid when due or the entire Indebtedness evidenced by this Note is not paid when due, then the rate of interest on this Note, at Lender's option, without notice or demand, which is hereby expressly waived, shall be increased to be equal to the sum of three (3) percentage points plus the interest rate otherwise applicable on the Loan or the highest rate which the parties may agree under applicable law, whichever is less, and such rate shall continue to apply whether or not .iudgment shall be entered on this Note, until such time as Borrower's payment default is cured. Borrower shall be obligated thereafter to pay interest on the then unpaid principal balance of this Note at the Default Rate, to be computed from the due date through and including the date of actual receipt of the overdue payment, whether a monthly payment or the entire Indebtedness. Nothing herein shall be constmed as an agreement or privilege to accelerate or extend the date of the payment of any installment of, or the entire Indebtedness, nor as a waiver of any other right or remedy ac(.,Tuing to Lender by reason of any such default. 4.10 Sale of the Properly: If Borrower elects to sell a Parcel or Parcels, the amount of prepayment due to Lender shall be determined by Lender, in Lender's reasonable discreLion, based on the ratable value of the Parcels ascribed in appraisals to be conducted at the time of the proposed sale. 5 202404111272 IndexNO. INDEX #: E2024006166 E2024006166 FILED: MONROE COUNTY CLERK 04/11/2024 02:40 PM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/11/2024 V. EVENTSOFDEFAULT The happening of any of the following events or OCL'tirrence of the following conditions; shall be events of default hereunder (individually, an "Event of Default" and collectively "Events of Default"): (a) Nonpavmcnt: Nonpayment of principal of, interest on, or any fee or premium provided for under this Note within ten (10) days after such amount is due, whether by acceleration or otht:rwise. (b) Failure to Perform Other Covenants: If Borrower shall continue to fail to perform or be in default under any of the other terms, covenants or conditions of this Note for ten (10) days after notice from Lender in lht: case of any default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other equent holder of this Note from time to time. If a court deems any provision of this Note invalid, the remainder of the Note shall remain in effect. 10 202404111272 IndexNO. INDEX #: E2024006166 E2024006166 FILED: MONROE COUNTY CLERK 04/11/2024 02:40 PM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/11/2024 7.4 Waiver of Marshalling of Assets: Borrower hereby waives for itself and, to the fullest extent not prohibited by applicable law, for any subsequent lienor, any right Borrower may now or hereafter have under the doctrine of marshalling of assets or otherwise which would require Lender to proceed against certain property cov~red by any of the Loan Documents before proceeding against any other properly covered by any of the Loan Documents. Lender shall have the right to proceed, in il<; sole discretion, against the property secured by any of the Loan Documents in such order and in such portions as Lender may determine, without regard to the adequacy of value or other liens on any such property, and any such action shall not in any way be considered as a waiver of any of the rights, benefits, liens or security interests created by any of the Loan Documenl<;. 7.5 Setoff: Without limiting its rights of setoffunder New York law generally, upon and at any time and from time to time after the occurrence and during the continuance of an Event of Default, Lender shall have the right to place an administrative hold on, and setoff against each obligation of Borrower hereunder and each obligation of Lender in any capacity to Borrower, whether now existing or hereafter arising or accruing, whether or not then due and whether pursuant to any deposit account or certificate of deposit or otherwise. Such setoff shall hecome effective at the time Lender determines even though evidence thereof is not entered in the records of Lender until later. 7.6 Waiver: Borrower hereby waives demand, presentment for payment, protest, notice of protest, notice of nonpayment and any and all lack of diligence or delays in collection or enforcement of this Note or the other Loan Documents, and expressly consents to any extension of time of payment hereof, release of any party primarily or secondarily liable hereunder or of any of the security for this Note, acceptance of other parties to be liable for any of the Indebtedness evidenced hereby or under the other Loan Documents or of other security therefor, or any other indulgence or forbearance which may be made, without notice to any party and without in any way affecting the liability of any party. The Borrower hereby waives, in favor of the holder thereof, any and all rights of contribution, subrogation, exoneration and any similar rights and interest so long as any amount evidenced by this Note, together with any additional amount secured by any of the Loan Documents, remains unpaid. 7.7 Governing I.aw: This Note and the right and obligations of the parties hereto shall be governed by and construed according to the internal laws of the State of New York, without regard to principles of the conflict of laws. 7.8 Counterpart Signatures: This Note may be executed in any number of duplicate originals or counterparts and each such duplicate or counterpart shall be deemed to constitute but one and the same instrument. 7.9 CONSENTTOJURISDICTION: BORROWER KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY (a) CONSENTS IN EACH ACTION AND OTHER IBGALPROCEEDTNGCOMMENCEDBYIBNDERANDARISINGOUTOFOROTIIERWlSE RELATING TO THIS NOTE OR ANY COLLATERAL RELATED HERETO TO THE NONEXCLUSIVEPERSONALJURISDICTIONOFANYCOURTTHATISEITHERACOURT 11 202404111272 IndexNO. INDEX #: E2024006166 E2024006166 FILED: MONROE COUNTY CLERK 04/11/2024 02:40 PM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/11/2024 OF RECORD OF THE STATE OF NEW YORK OR A COURT OF THE UNITED STATES LOCATED IN THE STATE OP NEW YORK, (b) WAIVES EACH OBJECTION TO THE LAYING OF VENUE OF ANY SUCH ACTION OR OTHER LEGAL PROCEEDING, (c) WAIVES PERSONAL SERVICE OF PROCESS IN EACHSUCHACTIONAND OTHER LEGAL PROCEEDING, AND ( d) CONSENTS TO TIIE MAKING OF SERVICE OF PROCESS IN EACH SUCHACTION ANDOTHERLEGALPROCEEDING BY REGISTERED MAILDIRECTEDTO BORROWER AT THE LAST ADDRESS OF BORROWER SHOWN IN THE RECORDS RELATING TO THIS NOTE MAINTAINED BY IBNDER, WHICH SUCH SERVICE OF PROCESS TO BE DEEMED COMPLETED FIVE (5) DAYS AFTER THE MAILING THEREOF. 7.10 WAIVER OF JURY TRIAL: BORROWER KNOWINGLY, VOLUNTARILY, INTENTIONALLY Al\10 IRREVOCABLY WAIVES EACH RIGHT BORROWER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO, AND EACH RIGHT TO ASSERT ANY CLAIM FOR DAMAGES (INCLUDING, BUT NOT UMITED TO, PUNITIVE DAMAGES) IN ANY ACTION OR OTHER LEGAL PROCEEDING OF ANY NATURE, RELATING TO (a) THIS NOTE, ANY RELATED WAN DOCUMENT OR ANY COLLATERAL RELATED HERETO, (b) ANY TRANSACTION CONTEMPLATED BY ANY SUCH DOCUMENTS OR (c) ANY NEGOTIATION, PERFORMANCE OR ENFORCEMENT OF THIS NOTE, OR ANY COLLATERAL RELATED HERETO. [Signature Page to Follow] 12 202404111272 IndexNO. INDEX #: E2024006166 E2024006166 FILED: MONROE COUNTY CLERK 04/11/2024 02:40 PM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/11/2024 IN "WITNESS WHEREOF, Borrower has executed this instrument the date first above written. TOWPATH MOTEL, INC. By: ~;VP~ SHAILESH N. PATEL, President STATE OF NEW YORK ) COUNTY OF MONROE ) ss.:. On the 8th day of November in the year 2018 before me, the undersigned, a notary public in and for said state, personally appeared Shailesh N. Patel, 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 person upon behalf of which the individual acted, executed the instrument ~ STEVEN J. PHETERSON ' No , u lie Notary Public, State of New York Qualified In Monroe County ') J Commission Expires August 31. 20~! 13 202404111272 IndexNO. INDEX #: E2024006166 E2024006166 FILED: MONROE COUNTY CLERK 04/11/2024 02:40 PM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/11/2024 TOMPI..1:ended and continued. The Borrower and guarantor, if any, acknowledges Uiat he/she/it has been represented by counsel or Uiat he/she/it has had an opportunity to consult with counsel in connection with the execution und delivery of the Modification. This Modification is being entered into at the Borrower's request and for its material benefit. This Modification shall be interpreted and construed according to its fair meaning and neither for nor against any party hereto irrespective of which party caused U1e same to be drafted. The perforrna.nce and construction of Uris Modification shall be governed by the internal laws of tl1e State of New York without reference to its conflicts of law p1inciplcs. If any term, provision or condition of this Modification or of the Loan Documents as modified hereby shall be deemed invalid or unenforceable by any court or governmental agency of competent jurisdiction, such invalidity or unenforceability shall not affect the remainder of such term, provision or condition or any other terni, provision or condition, and this Modification and the Loan Documents as modified hereby shall survive and be construed as if such invalid or unenforceable terrn, provision or condition had not been contained therein. This Modification may be executed in any mnnber of co1mterparts and by the different parties hereto on separate cormterparts each of which, when so executed, sliall be deemed an original, bul all such counterparts sliall conslilute but one and U1e same instnnncnt. Borrower agrees that in any legal proceeding, a copy oftlris Modification kept in Lender's course of business may be admitted into evidence as an original. Counterpart signature pages to this Modification transmitted by facsimile transmission, by electronic mail in portable document form.at (.pdt), or by any other electronic means will have the same effect as physical delivery of the paper document bearing an original signature. BORROWER REAFFIRMS ITS KNOWING AND VOLUNTARY WAIYER OF ruR.Y TRIAL SET FORTH IN THE NOTE. 2 202404111272 IndexNO. INDEX #: E2024006166 E2024006166 FILED: MONROE COUNTY CLERK 04/11/2024 02:40 PM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/11/2024 IN WITNESS WHEREOF, each party has caused its duly authorized officer to execute and deliver this Modification as of date first above written with the intention that this Modification sllall constitute a sealed instnunent. LENDER: Tompkins Bank of Castile By: - - - - - - - - - - - - - - Name: Tyna S. Slocum Title: Senior Vice President BORRO\VER: !J'.Q'\\~~tHM9~1;\tJ.~.J By: _g_p~__,_,___- Narne: Sllailesh N. Patel By: -------------~ Name: Title: President Title: ATTACHMENT(S): Promissory Note, given by Borrower to Lender, dated ~~~¥~~if§vi9~{~ Any additional page(s) for additional Borrower or Guarantor signatures tli.at may be required. CONSENT AND REAFFffiMATION OF GUARANTY AGREEMENT By signing below, tli.e undersigned intending to be legally bound, hereby acknowledges and agrees tli.at (i) he/she/it consents to ilie foregoing Nole Modification Agreement between Borrower and Lender, (ii) each Guaranty Agreement of the loan secured by the Note and any related agreement from the undersigned to Lender remains in full force and effect and is unaffected by the foregoing Note Modification Agreement, (iii) each Guarantor is bound as if he/she/it were a party to the Note Modification Agreement, and (iv) each undersigii.ed Guarantor hereby reaffinns and restates his/her/its continuing, absolute, irrevocable and unconditional guaranty of the obligations and indebtedness of Borrower to Lender whether now existing or hereafter arising, including, but not limited to, those obligations and indebtedness evidenced by the foregoing Note Modification Agreement GUARANTOR: :~~A Name: Shailesh N. Patel By: _ _i_h___,,_{....._ .. -~----- Name: Mickeyben S. Patel Title: Indh·idual Title: Individual t&;~J\:}r6$RiiillitY®~ By:_;L_Q_~~- Name: Sllailesh N. Patel By: - - - - - - - - - - - - - - Name: Title: President Title: 3 202404111272 IndexNO. INDEX #: E2024006166 E2024006166 FILED: MONROE COUNTY CLERK 04/11/2024 02:40 PM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/11/2024 NOTE MODIFICATION AGREEMENT Loan No. 520006813 THIS NOTE MODIFICATION AGREEMENT made and entered into on September 25. 2020 (this "Amendment"). by and between the tmdusigned borrower (uBorrower") and THE BANK OF CASTILE (together with its successors and assigns. "Lender"). I ' BACKGROUND: Borrower and Lender previously entered into a Note Modification Agreement, together with any subsequent additional modificatioo thereof (collectively, the "Modification") in response to the 2020 COVID-19 pandemic to allow for a deferment of certain payments for a period oftime ("Forbearance Period") and the Borrower has requested an additional extension of the Forbearance Period. Borrower acknowledges that this Amendment has not been required by Lender and is made at Borrower's request For and in consideration of One Dollars ($1.00) and other good and valuable consideration, the mutual and receipt and sufficiency of which is hereby acknowledged, the parties hereby agree to modify the Note as follows: 1. Acknowledgment ofBack:ground and ofDebt. The "Background" provisions described above are expressly incorporated into this Amendment The Note given by Borrower to Lender to secure the loan ("Loan") under the Loan No. first set forth above. together with the Modification and all other documents executed by the Borrower, and any guarantor(s) and mortgagor(s) in connection with the Loan, are hereinafter collectively referred to as the "Loan Documents." 2. Certifications. Borrower certifies to Lender that: (i) Borrower is experiencing a f"tnanciaJ hardmip as a result or the COVID-19 pandemic (ie. materially reduced revenue and/or cash Oow and/or liquidity); (ii) if Bon-ower has not yet resumed norm.al business operatioos, that Borrower intends and expects to resume norm.al business operations as soon as such business operations are economically feasible and consistent with governmental guidance/executive orders; and (iii) that eiccept to the extent affected by this Agreement and the Modificatioo, all covenants, representation and certifications made by Borrower in the Loan Documents remain true and correct. 3. Extension of Forbearance Period. The Forbearance Period shall be extended upon the same terms as set forth in the Modification, except that (i) the total Forbearance Period, including the prior period under the Modification, shall be extended to a total of five (5) deferred monthly payments and shall expire on the last day of the month immediately preceding the following date: October I, 2020 ("Payment Date") and (ii) any escrow payments that may be required under the Loan must be made in accordance with the tenns of this Agreement All Loan payments shall resume unda" the terms of the Note, as modified by the Modification, m the Payment Date. 4. Escrow Payments. Notwithstanding the deferral of any loan payments granted in this Agreement, if required by Borrower's Loan Documents, Borrower shall be required to timely make all escrow payments during that portion of the Forbearance Period that is the subject of this Amendment Any ~ow payments that were previously deferred under the Modification and not repaid prior to expiration of the Forbearance Period will be recaptured at the next annual escrow analysis performed by Lender and capitalized over the next year's required monthly payments. Borrower will receive an invoice for monthly payment of escrow amowtts. s. Full Force and Effect. Suryjval of Terms. Except as expressly amended by this Amendment, all of the certifications, representations. warranties and agreements of Borrower made or set forth in the Loan Documents and the Modification are incorporated herein, remain in full force and effect, and are restated and reaffirmed by Borrower herein by reference. Any misrepresentation or breach of any certification, representation, warranty or agreement contained herein or in any of the Loan Documents shall constitute an Event of Default under the Loan Documents. 6. Miscellaneous. Any defined term not specifically defined herein shall have the meaning assigned to it under the Loan Documents, such definiti~s being in~orated herein by reference. This Amendment may be executed in umber of counterparts and by the different partles hereto on separate counterparts each of which, when so executed, ~fbe deemed an origina~ but all s~ch counterparts sh~! consti~e but one and ~e same instrument. Borrower agrees that in any legal prooeeding. a copy of dns ~endment kept m Len~er s course _of _business ~¥ be ad nutted into evidence as an . . Counterpart signature pages to this Amendment transmitted by facsmule transm1SS1on, by electronic mail in portable 1 r=~t format (.pdf), or by any other electronic means will have the same effect as physical delivery of the paper document bearing an original signature. 202404111272 IndexNO. INDEX #: E2024006166 E2024006166 FILED: MONROE COUNTY CLERK 04/11/2024 02:40 PM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/11/2024 IN WITNESS WHEREOF, each party has caused its duly authorized officer to execute and deliver this Amendment as of date first above written with the intention that this Amendment shall constitute a sealed instrument :~~ ~-A-S_T_IL_E_ _ ___,... Name: Thomas H. Kishlar Title: Vk.e President THIS AGREEMENT IS EXECUTED UNDER SEAL By. -===_..::;;...,~-1.~~~~~"""-~~~ Name: ·iesh N. Patel Title: President TIIlS AGREEMENT IS EXECUTED UNDER SEAL 2