Preview
FILED: BRONX COUNTY CLERK 04/23/2024 05:03 PM INDEX NO. 806674/2024E
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/23/2024
EXHIBIT A
FILED: BRONX COUNTY CLERK 04/23/2024 05:03 PM INDEX NO. 806674/2024E
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/23/2024
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PROSPECT AVE 733 LLC
$1,855,000.00
November 30, 2021
COMMERCIAL
CONSOLIDATED
PROMISSORY NOTE
FOR VALUERECEIVED, the undersigned, PROSPECT AVE 733 LLC, a New York Limited Liability
Company having an address at 15204 79TH AVE, FLUSHING, NY 11367("Maker"), promises to pay
to the order of LOAN FUNDER LLC, SERIES 24321 a Delaware limited liability company, having
its principal place of business at 645 Madison Avenue, 19th Floor, New York,NY 10022 ("Lender"),
or at such other place as the holder hereof may designate, the principal amount of One Million Eight
Hundred Fifty Five Thousand Dollars ($1,855,000.00), with interest on the principal amount of this
Note computed from the date hereof, together with all taxes assessed upon this Note and together with
attorneys'
any costs, expenses, and reasonable fees incurred in the collection ofthis Note or in protecting,
maintaining, or enforcing its security interest or any mortgage securing this Note or upon any litigation
or controversy affecting this Note or the security given therefor, including, without limitation,
proceedings under the Federal Bankruptcy Code.
1. Payments. Principal and interest hereunder shall be payable as follows:
A. From the date hereof, interest on the principal amount of this Note
shall accrue at the rate of 4.7% per annum, for the period from the date hereof to
and including November 30, 2021 shall be payable at the closing of the loan.
B. The rate of interest of this Note, which shall remain effective
until an Event of Default (as defined below), initially shall be fixed at 4.7%
per annum. Commencing 60 months after the date hereof, on December 1,
2026 ("First Interest Rate Change Date"), the interest rate on this Note is
subject to adjustment and shall accrue on the unpaid principal balance of this
Note at the determined in its sole equal to the 30-
rate, by Lender, discretion,
day Average Secured Overnight Financing Rate ("SOFR") index, as most
recently published by the Federal Reserve Bank of New York as of forty five
(45) days prior to the Interest Rate Change Date (the "SOFR Rate"), plus Four
and One Half percent (4.50%) and rounded up to the nearest 3 (three) decimal
places. In no event shall the SOFR Rate ever be less than one fourth of one
percent (0.25%) ("SOFR Floor").The rate of interest at the First Interest Rate
Change Date will not be greater than two percent (2%) from the initial interest
rate.The interest rate will be adjusted (each an "Adjusted Interest Rate") every
six months beginning on December 1, 2026 to reflect a change in the SOFR
Rate (each, an "Interest Rate Change Date"). Notwithstanding the foregoing,
the maximum possible interest rate, absent an event of default, shall not exceed
the Maximum Rate (as defined below). Additionally, in no event shall the
interest rate on this Promissory Note ever be less than 4.7% and in no event
shall the interest rate increase or decrease more than two percent (2%) from
the rate previously in effect or more than five percent (5%) from the initial
Interest Rate. The foregoing is a reference rate for information and its use by
the Lender herein in establishing the actual rates to be charged to Maker and
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NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/23/2024
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does not necessarily constitute its lowest or best rate. If the Lender determines
that no interest rate reporting service presented information to identify the
interest rate deferred above, the rate of interest at which deposits in dollars are
offered to major banks in the London interbank market for a one-year period
on the day that is two business days prior Interest Rate Change Date by any
bank reasonably selected by the Lender. The change in the interest rate is
effective whether or not Lender gives maker notice of the change. Interest on
this Note shall be calculated on the basis of a thirty (30) day month and three
hundred sixty (360) day year.
C. Beginning on the First Payment Date and continuing until and
including the monthly installment due on December 1, 2026, accrued interest shall
be payable by Maker in consecutive monthly installments of interest only due and
payable on the first day of each calendar month. The amount of the monthly
installment of interest only shall be $7265.42. Thereafter, Maker shall make
payments ofprincipal and interest, with said payments being in an amount amortized
so that the Principal Balance is repaid by the Maturity Date. Maker acknowledges
that it must repay the entire Principal Amount, together with all accrued unpaid
interest thereon, on the Maturity Date. The amount of the monthly installment of
principal and interest payable shall change on each Interest Rate Change Date (each,
a "Payment Change Date"). Commencing on the first Payment Change Date, the
monthly payment will be based on the applicable Adjusted Interest Rate, the
principal amount of the Loan then outstanding, and the Remaining Amortization
Period. Remaining Amortization Period shall mean as of the applicable Payment
Change Date, the Original Amortization Period minus the number of scheduled
monthly installments of principal and interest that have elapsed since the date of this
Note prior to the Payment Change Date. The Original Amortization Period shall
mean the number of months set forth in the amortization schedule.
D. If not sooner paid, the entire principal amount of this Note, together
with accrued interest and with all other sums due hereunder, shall be due and payable
in full on December 1, 2051 (the "Maturity Date"). It is understood and agreed by
Maker that if sufficient prepayments of principal have not been made, a balloon
payment will be due on the Maturity Date.
E. All payments received will be credited first to late charges and costs
hereunder, then to interest accrued at the applicable interest rate hereinafter set forth,
with the balance on account of principal.
F. At no time shall the interest rate exceed the maximum rate
permitted by the usury statutes governing this Note, if any. If, by application of the
above interest rate formula, the interest rate would exceed and violate such usury
statutes, interest shall accrue at the maximum rate permitted by law.
2. Security. This Note is secured by a first priority Commercial Mortgage, Security Agreement,
and Fixture Filing (the "Mortgage") on that certain piece or parcel of real property known as 733
Prospect Avenue, Bronx, NY 10455 being more specifically described in said Mortgage.
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NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/23/2024
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3. Default. If any of the following events occur (which is an "Event of Default"), Lender may
declare the entire outstanding principal balance hereof, together with any other amounts that Maker
owes to Lender, to be immediately due and payable:
a. Maker fails to pay any installment of principal and/or interest or any other charges due under
this Note within five (5) days after the same becomes due and payable;
b. Maker defaults in any other obligations, liabilities, or indebtedness with Lender (whether now
existing or hereafter arising);
c. Maker sells, leases, or otherwise disposes of all or substantially all of its property, assets, or
business, or if Maker ceases any of its business operations, dissolves, or commences
reorganization;
d. Makers makes or takes any action to make a general assignment for the benefit of its creditors
or becomes insolvent or has a receiver, custodian, trustee in Bankruptcy, or conservator
appointed for it or for substantially all or any of its assets;
e. Makers files or becomes the subject of a petition in Bankruptcy or upon the commencement of
any proceeding or action under any Bankruptcy laws, insolvency laws, relief of debtors laws, or
any other similar law affecting Maker, provided, however, that Maker shall have sixty (60) days
from the filing of any involuntary petition in Bankruptcy to have the same discharged and
dismissed;
f. Upon the failure by Maker to observe or perform, or upon default in, any covenants, agreements,
or provisions in the Mortgage, Loan Agreement or in any other instrument, document, or
agreement, executed and/or delivered in connection herewith or therewith;
g. Any representation or statement made herein or any other representation or statement made or
furnished to Lender by Maker was materially incorrect or misleading at the time it was made or
furnished;
h. In the event of any material adverse change in the financial condition of Maker or any guarantor
of the loan; or
i. Upon the death of any guarantor of the loan.
4. Default Rate. After the occurrence of an Event of Default, interest will accrue at the lesser of (i) 23%
per annum or (ii) the Maximum Rate (as defined in Section 16 below) allowed by applicable law. Interest
will continue to accrue at the default rate after judgment until the Note is paid in full.
5. Payments Past Maturity. Maker hereby authorizes Lender, at Lender's sole discretion, to instruct
Lender's servicer or subservicer to continue accepting payments from Maker past the then original
Maturity Date of this Note at the original terms stated herein and in the other Loan Documents. Maker
hereby authorizes Lender and its servicer and subservicer to either (i) initiate, and/or continue the
initiation of, ACH direct debit transactions from Maker's bank account supplied to Lender or its servicer
or subservicer; and/or (ii) otherwise accept monthly payments due and owing on this Note in the form of
paper checks or as otherwise agreed by and between Maker and Lender's servicer or subservicer. If the
then original Maturity Date of this Note has passed, the continued acceptance of payments by Lender shall
be at the sole and absolute discretion of Lender, and Lender shall not be obligated to accept such
FILED: BRONX COUNTY CLERK 04/23/2024 05:03 PM INDEX NO. 806674/2024E
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/23/2024
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payments. Lender reserves the right to cease or discontinue acceptance of any such payments from Maker
at any time and to pursue all of its available remedies under this Note and the other Loan Documents.
6. Prepayment. Provided that Maker is not in default hereunder, except as provided herein, Maker may
prepay all or any portion of the unpaid principal balance ofthis Note at any time. All prepayment shall be
applied first to any costs or charges due hereunder, then to interest due and owing hereunder, and then
to principal then outstanding, in inverse order of maturity. Should Borrower need to repay the loan prior
to the Maturity Date, Lender will permit Borrower to repay and Borrower will be charged a prepayment
premium (whether by sale of the Premises or refinance) equal to 5% of Loan Amount in Year 1, 4% of
Loan Amount in Year 2, 3% of the Loan Amount in Year 3, 2% of the Loan Amount in Year 4, 1% of the
Loan Amount in Year 5, 0% thereafter of the Loan, each based on the amount of principal prepaid during
the established Loan term.
7. Late Charge. It is further agreed that the holder hereof may collect a late charge equal to five percent
(5%) of any payment required hereunder, including the final payment, or required under any security
agreement, mortgage, or any other instrument, document, or agreement executed and/or delivered in
connection herewith which is not paid within ten (10) days of the due date thereof. This late charge is to
cover the extra expenses involved in handling delinquent payments and is not to be construed to cover
attorneys'
other costs and fees incurred in any action to collect this Note or to foreclose the mortgage
securing the same. This provision shall not affect or limit the holder's rights or remedies with respect to
any Event ofDefault.
8. Lien/Set Off. Maker hereby gives the holder hereof a lien and right of set off for all of Maker's
liabilities to the holderhereofor Lenderupon and against all deposits, credits, and other property ofMaker
now or hereafter in the possession or control of the holder hereof, or in transit to it, excepting however,
funds held in trust by Maker. All payments shall be made in lawful currency of the United States of
America in immediately available funds, without abatement, counterclaim, or set-off, and free and clear
of, and without any deduction or withholding for, any taxes or other matters.
9. Purpose of Loan. Maker represents and warrants that the proceeds of this Note are to be used solely
for business and commercial purposes and not at all for any personal, family, household, or other
noncommercial or farming or agricultural purposes. Maker acknowledges that Lender is making this loan
to Maker in reliance upon the above representation by Maker. The above representation by Maker will
survive the closing of this loan and repayment of amounts due to Lender hereunder.
10. Other Obligations. To the extent that
the outstanding balance of this Note is reduced or paid in full
by reason of any payment to Lender by an accommodation maker, endorser, or guarantor, and all or any
part of such payment is rescinded, avoided, or recovered from Lender for any reason whatsoever,
including, without limitation, any proceedings in connection with the insolvency, bankruptcy, or
reorganization of the accommodation maker, endorser, or guarantor, the amount of such rescinded,
avoided, or returned payment shall be added to or, in the event this Note has been previously paid in full,
shall revive the principal balance of this Note upon which interest may be charged at the applicable rate
set forth in this Note and shall be considered part ofthe outstanding balance ofthis Note and all terms and
provisions herein shall thereafter apply to the same.
11. WAIVER. MAKER (AND EACH AND EVERY ENDORSER, GUARANTOR, AND SURETY
OF THIS NOTE) ACKNOWLEDGES THAT THE LOAN EVIDENCED BY THIS NOTE IS A
COMMERCIAL TRANSACTION, AND HEREBY VOLUNTARILY AND KNOWINGLY
WAIVES THE RIGHT TO NOTICE AND HEARING UNDER NEW YORK GENERAL
STATUTES, OR ANY SUCCESSOR STATUTE OF SIMILAR IMPORT, WITH RESPECT TO
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NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/23/2024
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ANY PREJUDGMENT REMEDY AS DEFINED THEREIN, AND FURTHER WAIVES
DILIGENCE, DEMAND, PRESENTMENT FOR PAYMENT, NOTICE OF NONPAYMENT,
PROTEST AND NOTICE OF PROTEST AND NOTICE OF ANY RENEWALS OR
EXTENSIONS OF THIS NOTE, AND ALL RIGHTS UNDER ANY STATUTE OF
LIMITATIONS, AND AGREES THAT THE TIME FOR PAYMENT OF THIS NOTE MAY BE
CHANGED AND EXTENDED AS PROVIDED IN SAID MORTGAGE OR ANY SECURITY
AGREEMENT, WITHOUT IMPAIRING MAKER'S LIABILITY THEREON, AND FURTHER
CONSENTS TO THE RELEASE OF ALL OR ANY PART OF THE SECURITY FOR THE
PAYMENT HEREOF, OR THE RELEASE OF ANY PARTY LIABLE FOR THIS
OBLIGATION WITHOUT AFFECTING THE LIABILITY OF THE OTHER PARTIES
HERETO. ANY DELAY ON THE PART OF THE HOLDER HEREOF IN EXERCISING ANY
RIGHT HEREUNDER SHALL NOT OPERATE AS A WAIVER OF ANY SUCH RIGHT, AND
ANY WAIVER GRANTED FOR ONE OCCASION SHALL NOT OPERATE AS A WAIVER IN
THE EVENT OF ANY SUBSEQUENT DEFAULT. MAKER FURTHER WAIVES TRIAL BY
JURY AND ACKNOWLEDGES THAT IT MAKES THIS WAIVER KNOWINGLY,
VOLUNTARILY, AND ONLY AFTER CONSIDERATION OF THE RAMIFICATIONS OF
THE WAIVER BY ITS ATTORNEY.
12. Binding Effect. This Note shall be binding on Maker, its successors and assigns and shall inure to
the benefit of Lender, any holder hereof, its successors and assigns.
13. Governing Law. This Note shall be governed by, and construed in accordance with, the laws of the
State of New York, without reference to conflicts of laws principles thereof.
14. Joint and Several. Should this Note be signed by more than one Maker, references in this Note to
Maker in the singular shall include the plural and all obligations herein contained shall be joint and
several of each signer hereof.
15. Maximum Rate. Notwithstanding anything to the contrary contained herein, under no circumstances
shall the aggregate amount paid or agreed to be paid hereunder exceed the highest lawful rate permitted
under applicable usury law (the "Maximum Rate") and the payment obligations of Maker under this Note
are hereby limited accordingly. If under any circumstances, whether by reason of advancement or
acceleration of the maturity of the unpaid principal balance hereof or otherwise, the aggregate amounts
paid on this Note shall include amounts which by law are deemed interest and which would exceed the
Maximum Rate, Maker stipulates that payment and collection of such excess amounts shall have been
and will be deemed to have been the result of a mistake on the part of both Maker and the holder of this
Note, and the party receiving such excess payments shall promptly credit such excess (to the extent only
of such payments in excess of the Maximum Rate) against the unpaid principal balance hereof and any
portion of such excess payments not capable of being so credited shall be refunded to Maker.
16. Rights Cumulative. The rights and remedies of Lender shall be cumulative and not in the alternative,
and shall include all rights and remedies granted herein, in any document referred to herein or executed
and/or delivered in connection herewith, and under all applicable laws, and the exercise of any one or
more of them will not be a waiver of any other.
17. Severability. If any term, clause, or provision hereof shall be adjudged to be invalid or unenforceable
by a court of appropriate jurisdiction, the validity and enforceability of the remainder shall not affected
thereby and each such term, clause, or provision shall be valid and enforceable to the fullest extent
permitted by law.
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IN WITNESS WHEREOF, the undersigned have executed this Commercial
Promissory Note on November 30, 2021
BORROWER
PROSPECT AVE 733 LLC
By:
Name: Ephra o o ov
Title: Managing & Sole
Member
State of NY )
)ss.:
County of QUEENS )
On the 30 day ofNovember in the year 2021, before me, the undersigned
notary public, personally
appeared Ephraim godolov, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the
individual(s)
Preview
FILED: BRONX COUNTY CLERK 04/23/2024 05:03 PM INDEX NO. 806674/2024E NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/23/2024 EXHIBIT A FILED: BRONX COUNTY CLERK 04/23/2024 05:03 PM INDEX NO. 806674/2024E NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/23/2024 Page 1 of 6 PROSPECT AVE 733 LLC $1,855,000.00 November 30, 2021 COMMERCIAL CONSOLIDATED PROMISSORY NOTE FOR VALUERECEIVED, the undersigned, PROSPECT AVE 733 LLC, a New York Limited Liability Company having an address at 15204 79TH AVE, FLUSHING, NY 11367("Maker"), promises to pay to the order of LOAN FUNDER LLC, SERIES 24321 a Delaware limited liability company, having its principal place of business at 645 Madison Avenue, 19th Floor, New York,NY 10022 ("Lender"), or at such other place as the holder hereof may designate, the principal amount of One Million Eight Hundred Fifty Five Thousand Dollars ($1,855,000.00), with interest on the principal amount of this Note computed from the date hereof, together with all taxes assessed upon this Note and together with attorneys' any costs, expenses, and reasonable fees incurred in the collection ofthis Note or in protecting, maintaining, or enforcing its security interest or any mortgage securing this Note or upon any litigation or controversy affecting this Note or the security given therefor, including, without limitation, proceedings under the Federal Bankruptcy Code. 1. Payments. Principal and interest hereunder shall be payable as follows: A. From the date hereof, interest on the principal amount of this Note shall accrue at the rate of 4.7% per annum, for the period from the date hereof to and including November 30, 2021 shall be payable at the closing of the loan. B. The rate of interest of this Note, which shall remain effective until an Event of Default (as defined below), initially shall be fixed at 4.7% per annum. Commencing 60 months after the date hereof, on December 1, 2026 ("First Interest Rate Change Date"), the interest rate on this Note is subject to adjustment and shall accrue on the unpaid principal balance of this Note at the determined in its sole equal to the 30- rate, by Lender, discretion, day Average Secured Overnight Financing Rate ("SOFR") index, as most recently published by the Federal Reserve Bank of New York as of forty five (45) days prior to the Interest Rate Change Date (the "SOFR Rate"), plus Four and One Half percent (4.50%) and rounded up to the nearest 3 (three) decimal places. In no event shall the SOFR Rate ever be less than one fourth of one percent (0.25%) ("SOFR Floor").The rate of interest at the First Interest Rate Change Date will not be greater than two percent (2%) from the initial interest rate.The interest rate will be adjusted (each an "Adjusted Interest Rate") every six months beginning on December 1, 2026 to reflect a change in the SOFR Rate (each, an "Interest Rate Change Date"). Notwithstanding the foregoing, the maximum possible interest rate, absent an event of default, shall not exceed the Maximum Rate (as defined below). Additionally, in no event shall the interest rate on this Promissory Note ever be less than 4.7% and in no event shall the interest rate increase or decrease more than two percent (2%) from the rate previously in effect or more than five percent (5%) from the initial Interest Rate. The foregoing is a reference rate for information and its use by the Lender herein in establishing the actual rates to be charged to Maker and FILED: BRONX COUNTY CLERK 04/23/2024 05:03 PM INDEX NO. 806674/2024E NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/23/2024 Page 2 of 6 does not necessarily constitute its lowest or best rate. If the Lender determines that no interest rate reporting service presented information to identify the interest rate deferred above, the rate of interest at which deposits in dollars are offered to major banks in the London interbank market for a one-year period on the day that is two business days prior Interest Rate Change Date by any bank reasonably selected by the Lender. The change in the interest rate is effective whether or not Lender gives maker notice of the change. Interest on this Note shall be calculated on the basis of a thirty (30) day month and three hundred sixty (360) day year. C. Beginning on the First Payment Date and continuing until and including the monthly installment due on December 1, 2026, accrued interest shall be payable by Maker in consecutive monthly installments of interest only due and payable on the first day of each calendar month. The amount of the monthly installment of interest only shall be $7265.42. Thereafter, Maker shall make payments ofprincipal and interest, with said payments being in an amount amortized so that the Principal Balance is repaid by the Maturity Date. Maker acknowledges that it must repay the entire Principal Amount, together with all accrued unpaid interest thereon, on the Maturity Date. The amount of the monthly installment of principal and interest payable shall change on each Interest Rate Change Date (each, a "Payment Change Date"). Commencing on the first Payment Change Date, the monthly payment will be based on the applicable Adjusted Interest Rate, the principal amount of the Loan then outstanding, and the Remaining Amortization Period. Remaining Amortization Period shall mean as of the applicable Payment Change Date, the Original Amortization Period minus the number of scheduled monthly installments of principal and interest that have elapsed since the date of this Note prior to the Payment Change Date. The Original Amortization Period shall mean the number of months set forth in the amortization schedule. D. If not sooner paid, the entire principal amount of this Note, together with accrued interest and with all other sums due hereunder, shall be due and payable in full on December 1, 2051 (the "Maturity Date"). It is understood and agreed by Maker that if sufficient prepayments of principal have not been made, a balloon payment will be due on the Maturity Date. E. All payments received will be credited first to late charges and costs hereunder, then to interest accrued at the applicable interest rate hereinafter set forth, with the balance on account of principal. F. At no time shall the interest rate exceed the maximum rate permitted by the usury statutes governing this Note, if any. If, by application of the above interest rate formula, the interest rate would exceed and violate such usury statutes, interest shall accrue at the maximum rate permitted by law. 2. Security. This Note is secured by a first priority Commercial Mortgage, Security Agreement, and Fixture Filing (the "Mortgage") on that certain piece or parcel of real property known as 733 Prospect Avenue, Bronx, NY 10455 being more specifically described in said Mortgage. FILED: BRONX COUNTY CLERK 04/23/2024 05:03 PM INDEX NO. 806674/2024E NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/23/2024 Page 3 of 6 3. Default. If any of the following events occur (which is an "Event of Default"), Lender may declare the entire outstanding principal balance hereof, together with any other amounts that Maker owes to Lender, to be immediately due and payable: a. Maker fails to pay any installment of principal and/or interest or any other charges due under this Note within five (5) days after the same becomes due and payable; b. Maker defaults in any other obligations, liabilities, or indebtedness with Lender (whether now existing or hereafter arising); c. Maker sells, leases, or otherwise disposes of all or substantially all of its property, assets, or business, or if Maker ceases any of its business operations, dissolves, or commences reorganization; d. Makers makes or takes any action to make a general assignment for the benefit of its creditors or becomes insolvent or has a receiver, custodian, trustee in Bankruptcy, or conservator appointed for it or for substantially all or any of its assets; e. Makers files or becomes the subject of a petition in Bankruptcy or upon the commencement of any proceeding or action under any Bankruptcy laws, insolvency laws, relief of debtors laws, or any other similar law affecting Maker, provided, however, that Maker shall have sixty (60) days from the filing of any involuntary petition in Bankruptcy to have the same discharged and dismissed; f. Upon the failure by Maker to observe or perform, or upon default in, any covenants, agreements, or provisions in the Mortgage, Loan Agreement or in any other instrument, document, or agreement, executed and/or delivered in connection herewith or therewith; g. Any representation or statement made herein or any other representation or statement made or furnished to Lender by Maker was materially incorrect or misleading at the time it was made or furnished; h. In the event of any material adverse change in the financial condition of Maker or any guarantor of the loan; or i. Upon the death of any guarantor of the loan. 4. Default Rate. After the occurrence of an Event of Default, interest will accrue at the lesser of (i) 23% per annum or (ii) the Maximum Rate (as defined in Section 16 below) allowed by applicable law. Interest will continue to accrue at the default rate after judgment until the Note is paid in full. 5. Payments Past Maturity. Maker hereby authorizes Lender, at Lender's sole discretion, to instruct Lender's servicer or subservicer to continue accepting payments from Maker past the then original Maturity Date of this Note at the original terms stated herein and in the other Loan Documents. Maker hereby authorizes Lender and its servicer and subservicer to either (i) initiate, and/or continue the initiation of, ACH direct debit transactions from Maker's bank account supplied to Lender or its servicer or subservicer; and/or (ii) otherwise accept monthly payments due and owing on this Note in the form of paper checks or as otherwise agreed by and between Maker and Lender's servicer or subservicer. If the then original Maturity Date of this Note has passed, the continued acceptance of payments by Lender shall be at the sole and absolute discretion of Lender, and Lender shall not be obligated to accept such FILED: BRONX COUNTY CLERK 04/23/2024 05:03 PM INDEX NO. 806674/2024E NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/23/2024 Page 4 of 6 payments. Lender reserves the right to cease or discontinue acceptance of any such payments from Maker at any time and to pursue all of its available remedies under this Note and the other Loan Documents. 6. Prepayment. Provided that Maker is not in default hereunder, except as provided herein, Maker may prepay all or any portion of the unpaid principal balance ofthis Note at any time. All prepayment shall be applied first to any costs or charges due hereunder, then to interest due and owing hereunder, and then to principal then outstanding, in inverse order of maturity. Should Borrower need to repay the loan prior to the Maturity Date, Lender will permit Borrower to repay and Borrower will be charged a prepayment premium (whether by sale of the Premises or refinance) equal to 5% of Loan Amount in Year 1, 4% of Loan Amount in Year 2, 3% of the Loan Amount in Year 3, 2% of the Loan Amount in Year 4, 1% of the Loan Amount in Year 5, 0% thereafter of the Loan, each based on the amount of principal prepaid during the established Loan term. 7. Late Charge. It is further agreed that the holder hereof may collect a late charge equal to five percent (5%) of any payment required hereunder, including the final payment, or required under any security agreement, mortgage, or any other instrument, document, or agreement executed and/or delivered in connection herewith which is not paid within ten (10) days of the due date thereof. This late charge is to cover the extra expenses involved in handling delinquent payments and is not to be construed to cover attorneys' other costs and fees incurred in any action to collect this Note or to foreclose the mortgage securing the same. This provision shall not affect or limit the holder's rights or remedies with respect to any Event ofDefault. 8. Lien/Set Off. Maker hereby gives the holder hereof a lien and right of set off for all of Maker's liabilities to the holderhereofor Lenderupon and against all deposits, credits, and other property ofMaker now or hereafter in the possession or control of the holder hereof, or in transit to it, excepting however, funds held in trust by Maker. All payments shall be made in lawful currency of the United States of America in immediately available funds, without abatement, counterclaim, or set-off, and free and clear of, and without any deduction or withholding for, any taxes or other matters. 9. Purpose of Loan. Maker represents and warrants that the proceeds of this Note are to be used solely for business and commercial purposes and not at all for any personal, family, household, or other noncommercial or farming or agricultural purposes. Maker acknowledges that Lender is making this loan to Maker in reliance upon the above representation by Maker. The above representation by Maker will survive the closing of this loan and repayment of amounts due to Lender hereunder. 10. Other Obligations. To the extent that the outstanding balance of this Note is reduced or paid in full by reason of any payment to Lender by an accommodation maker, endorser, or guarantor, and all or any part of such payment is rescinded, avoided, or recovered from Lender for any reason whatsoever, including, without limitation, any proceedings in connection with the insolvency, bankruptcy, or reorganization of the accommodation maker, endorser, or guarantor, the amount of such rescinded, avoided, or returned payment shall be added to or, in the event this Note has been previously paid in full, shall revive the principal balance of this Note upon which interest may be charged at the applicable rate set forth in this Note and shall be considered part ofthe outstanding balance ofthis Note and all terms and provisions herein shall thereafter apply to the same. 11. WAIVER. MAKER (AND EACH AND EVERY ENDORSER, GUARANTOR, AND SURETY OF THIS NOTE) ACKNOWLEDGES THAT THE LOAN EVIDENCED BY THIS NOTE IS A COMMERCIAL TRANSACTION, AND HEREBY VOLUNTARILY AND KNOWINGLY WAIVES THE RIGHT TO NOTICE AND HEARING UNDER NEW YORK GENERAL STATUTES, OR ANY SUCCESSOR STATUTE OF SIMILAR IMPORT, WITH RESPECT TO FILED: BRONX COUNTY CLERK 04/23/2024 05:03 PM INDEX NO. 806674/2024E NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/23/2024 Page 5 of 6 ANY PREJUDGMENT REMEDY AS DEFINED THEREIN, AND FURTHER WAIVES DILIGENCE, DEMAND, PRESENTMENT FOR PAYMENT, NOTICE OF NONPAYMENT, PROTEST AND NOTICE OF PROTEST AND NOTICE OF ANY RENEWALS OR EXTENSIONS OF THIS NOTE, AND ALL RIGHTS UNDER ANY STATUTE OF LIMITATIONS, AND AGREES THAT THE TIME FOR PAYMENT OF THIS NOTE MAY BE CHANGED AND EXTENDED AS PROVIDED IN SAID MORTGAGE OR ANY SECURITY AGREEMENT, WITHOUT IMPAIRING MAKER'S LIABILITY THEREON, AND FURTHER CONSENTS TO THE RELEASE OF ALL OR ANY PART OF THE SECURITY FOR THE PAYMENT HEREOF, OR THE RELEASE OF ANY PARTY LIABLE FOR THIS OBLIGATION WITHOUT AFFECTING THE LIABILITY OF THE OTHER PARTIES HERETO. ANY DELAY ON THE PART OF THE HOLDER HEREOF IN EXERCISING ANY RIGHT HEREUNDER SHALL NOT OPERATE AS A WAIVER OF ANY SUCH RIGHT, AND ANY WAIVER GRANTED FOR ONE OCCASION SHALL NOT OPERATE AS A WAIVER IN THE EVENT OF ANY SUBSEQUENT DEFAULT. MAKER FURTHER WAIVES TRIAL BY JURY AND ACKNOWLEDGES THAT IT MAKES THIS WAIVER KNOWINGLY, VOLUNTARILY, AND ONLY AFTER CONSIDERATION OF THE RAMIFICATIONS OF THE WAIVER BY ITS ATTORNEY. 12. Binding Effect. This Note shall be binding on Maker, its successors and assigns and shall inure to the benefit of Lender, any holder hereof, its successors and assigns. 13. Governing Law. This Note shall be governed by, and construed in accordance with, the laws of the State of New York, without reference to conflicts of laws principles thereof. 14. Joint and Several. Should this Note be signed by more than one Maker, references in this Note to Maker in the singular shall include the plural and all obligations herein contained shall be joint and several of each signer hereof. 15. Maximum Rate. Notwithstanding anything to the contrary contained herein, under no circumstances shall the aggregate amount paid or agreed to be paid hereunder exceed the highest lawful rate permitted under applicable usury law (the "Maximum Rate") and the payment obligations of Maker under this Note are hereby limited accordingly. If under any circumstances, whether by reason of advancement or acceleration of the maturity of the unpaid principal balance hereof or otherwise, the aggregate amounts paid on this Note shall include amounts which by law are deemed interest and which would exceed the Maximum Rate, Maker stipulates that payment and collection of such excess amounts shall have been and will be deemed to have been the result of a mistake on the part of both Maker and the holder of this Note, and the party receiving such excess payments shall promptly credit such excess (to the extent only of such payments in excess of the Maximum Rate) against the unpaid principal balance hereof and any portion of such excess payments not capable of being so credited shall be refunded to Maker. 16. Rights Cumulative. The rights and remedies of Lender shall be cumulative and not in the alternative, and shall include all rights and remedies granted herein, in any document referred to herein or executed and/or delivered in connection herewith, and under all applicable laws, and the exercise of any one or more of them will not be a waiver of any other. 17. Severability. If any term, clause, or provision hereof shall be adjudged to be invalid or unenforceable by a court of appropriate jurisdiction, the validity and enforceability of the remainder shall not affected thereby and each such term, clause, or provision shall be valid and enforceable to the fullest extent permitted by law. FILED: BRONX COUNTY CLERK 04/23/2024 05:03 PM INDEX NO. 806674/2024E NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/23/2024 Page 6 of 6 IN WITNESS WHEREOF, the undersigned have executed this Commercial Promissory Note on November 30, 2021 BORROWER PROSPECT AVE 733 LLC By: Name: Ephra o o ov Title: Managing & Sole Member State of NY ) )ss.: County of QUEENS ) On the 30 day ofNovember in the year 2021, before me, the undersigned notary public, personally appeared Ephraim godolov, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s)