throbber
FILED: KINGS COUNTY CLERK 09/29/2017 03:09 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 517704/2017
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`RECEIVED NYSCEF: 09/29/2017
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`Plaintiff,
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`: : : : : : : : : : : : :
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`------------------------------------------------------------------ x
`J. GOLT CORP,
`
`
`
`
`Index No. 517704/2017
`(Hon. Leon Ruchelsman)
`
`Motion Seq. 1
`
`
`
`AFFIRMATION OF LOUIS A.
`CURCIO IN OPPOSITION TO
`MOTION FOR PRELIMINARY
`
`INJUNCTION
`:
`------------------------------------------------------------------ x
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`Louis A. Curcio, an attorney duly admitted to practice before the Courts of the State of
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`-against-
`
`
`
`CAPITAL ONE BANK NA,
`
`
`
`Defendant.
`
`New York, hereby affirms as follows under penalties of perjury:
`
`1.
`
`I am a partner at Troutman Sanders LLP, attorneys for Defendant Capital One,
`
`N.A. (“Capital One”), named herein as Capital One Bank NA . As such, I am familiar with the
`
`facts and circumstances set forth herein.
`
`2.
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`I submit this affirmation in opposition to Plaintiff’s motion for a preliminary
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`injunction in conjunction with the accompanying Memorandum of Law filed contemporaneously
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`herewith.
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`3.
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`Attached hereto as Exhibt A is a loan commitment dated May 6, 2010 made by
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`Capital One and accepted by J. Golt Corp.
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`4.
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`Attached hereto as Exhibit B is a copy of the indictment filed in the matter
`
`captioned United States of America v. Rubin, Case No. 14-Cr.-741 (S.D.N.Y.).
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`FILED: KINGS COUNTY CLERK 09/29/2017 03:09 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 517704/2017
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`RECEIVED NYSCEF: 09/29/2017
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`5.
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`Attached hereto as Exhibit C is a copy of the transcript of a hearing held on
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`February 6, 2017 before the Honorable Lisa M. Smith, United States Magistrate Judge in the
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`matter captioned United States of America v. Rubin, Case No. 14-Cr.-741 (S.D.N.Y.).
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`Dated: New York, New York
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`September 29, 2017
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`Louis A. Curcio
` Louis A. Curcio
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`Page 2 of 2
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`2 of 112
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`FILED: KINGS COUNTY CLERK 09/29/2017 03:09 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 517704/2017
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`RECEIVED NYSCEF: 09/29/2017
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`Exhibit A
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`FILED: KINGS COUNTY CLERK 09312017 03:09 PM
`111932130. 577177704/2017
`INDEX NO. 517704/2017
`FILED: KINGS COUNTY CLERK 09/29/2017 03:09 PM
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`NYSCEF DOC. NO. 13
`RECEIVED NYSCEF: 09/29/2017
`NYSCEF doc. NO. 13
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`Q R«.c«.Iv«.D \lYSCEF: 09/29/2017
`,
`r Iii—W
`Capita
`ne. NA.
`631.844.1000
`275 Broadhollow Road
`-
`Ca ”a" ”13'
`no. Box 8914
`p /
`Melville. NY 11747
`Bank
`
`capitalonebank.com
`
`May 6, 2010
`
`
`
`J. Golt Corp.
`do Mr. Jeff Yoffe
`
`GF Financial, Inc.
`525 E. County Line Road
`Suite #9
`
`Lakewood. NJ 08701
`
`Re:
`
`863 Hancock Street
`
`Brooklyn. New York 11233
`Agglication No. 09—0971TWR
`
`Gentlemen:
`
`We are pleased to advise you that Capital One, N.A. (the ‘Bank') has approved a loan to
`you (the ‘Borrower') in the principal sum of $1 ,100,000.00 (the ‘Loan") to be secured by a
`first mortgage lien on the land and improvements located at and known as 863 Hancock
`Street. Brooklyn. NY (the "Property").
`
`The Loan will be made and accepted subject to and in accordance with the following terms
`and conditions:
`
`1. TERMS OF THE LOAN:
`
`Borrower:
`
`J. Golt Corp.
`
`Principal Amount:
`
`$1,100,000.00
`
`Term:
`
`Rate of Interest:
`
`Five (5) years (the “initial Term”) with an option
`for an additional five (5) years (the “Extended
`Term”) as hereinafter set forth.
`
`During the Initial Term the interest rate shall be
`five and three quarters (5.75%) percent per
`annum.
`If the Borrower exercises its option. the
`interest rate during the Extended Term of the
`Loan will be the greater of (i) five and three
`quarters (5.75%) percent per annum. or (ii) three
`hundred and 'Wasis points above the
`US. Treasury Note Yield on five (5) year U.S.
`Treasury Note or Bonds as of ninety (90) days
`before the ex ration of the Initial Term.
`
`Lee (530)
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`U
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`-
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`Exercise of Option:
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`Monthly Payments:
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`Prepayment:
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`FILED: KINGS COUNTY CLERK 09m2017 703:09 PM
` NYSCISE doc: NO.
`FILED: KINGS COUNTY CLERK 09/29/2017 03:09 PM
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`13
`NYSCEF DOC. NO. 13
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`INDEX NO. 517704/2017
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`The term of the loan shall be automatically
`extended for an additional five (5) years (the
`”Extended Term') unless the Borrower delivers
`written notice to the Bank at least 30 days, but
`not more than 90 days, prior to the end of the
`initial Term that the Borrower does not wish to
`extend the term of the Loan as provided herein
`with time being of the essence.
`
`Notwithstanding the foregoing, the Bank shall
`have the right. but not the obligation, to decline
`to extend the term of the Loan if (i) the loan is in
`default. (ii) the Borrower has failed to furnish all
`of
`the information and documentation the
`Borrower is required to furnish to the Bank
`pursuant to the loan documents, and (iii) the
`Borrower has been late in making the monthly
`payments during the initial Term more than three
`(3) times in any twelve (12) month period.
`
`The monthly payments will consist of payments
`of principal and interest
`in the amount of
`$6,419.30 (based upon a 30-year payout).
`During the Extended Term, if any, the monthly
`payments will include amortization of principal
`based upon a 25-year payout.
`
`The Borrower shall have the right to prepay the
`principal in multiples of $10,000.00 with interest
`computed to the last day of the month in which
`any prepayment is made; provided. however.
`that if prepayment is made during the first year
`of the initial Term, the Borrower shall pay a
`prepayment penalty equal to 5% of the amount
`of principal prepaid, reducing by 1% in each
`subsequent year
`to minimum prepayment
`penalty of 1% of the amount of principal prepaid.
`The same provisions shall apply during the
`Extended Term, i.e., 5% during the sixth year,
`reducing by 1% in each subsequent year to a
`minimum of 1% of the amount of principal
`prepaid. The Borrower shall have the right to
`prepay without penalty during the last 60 days of
`the initial Term and/or the Extended term of the
`Loan.
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`FILED: KINGS COUNTY CLERK 09m26i7 03:09 PM
`FILED: KINGS COUNTY CLERK 09/29/2017 03:09 PM
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`NYSCEF DOC. NO. 13
`NYSCEE 60c. NO. 13
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`INDEX N0. 517704/2017
`INDEX NO. 517704/2017
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`RECEIVED NYSCEF: 09/29/2017
`. R«.c«.Iv«.D \lYSCEF: 09/29/2017
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`Borrower: Ownership
`Structure of Borrower:
`
`Annexed hereto as Exhibit ‘C' is a list of (a) all of
`the persons and/or entities that own an interest
`in the Borrower. and (b) all persons that own an
`interest in an entity that owns an interest in the
`Borrower (the "Ownership Schedule”).
`
`The Borrower represents and warrants to the
`Bank that
`the information contained in the
`Ownership Schedule is
`true. accurate and
`complete as of the date of this commitment and.
`at Closing,
`the Borrower shall execute a
`certificate in favor of the Bank providing that the
`information
`contained
`in
`the Ownership
`Schedule is true. accurate and complete as of
`the date of Closing.
`
`At least fifteen (15) days prior to Closing. the
`Bank and the Bank's counsel shall receive any
`and all documentation from the Borrower
`(including.
`but
`not
`limited
`to.
`a
`partnership/operating agreement) confirming the
`information contained within the Ownership
`Schedule. The Borrower acknowledges that the
`identity of the persons with whom the Bank deals
`is of material importance to it: as such, in the
`event that the information contained within the
`Ownership Schedule is incorrect. inaccurate or
`misleading in any respect. or conflicts in any way
`with any information previously provided to the
`Bank, this commitment shall, without notice to
`the Borrower.
`automatically terminate and
`become of no force and effect and it is agreed
`that the Bank will have suffered damages as a
`result thereof and shall retain the commitment
`fee/good faith deposit as the agreed amount of
`its liquidated damages.
`
`The Property. The Property consists of a 4-story. walk-up apartment building
`2.
`containing 8 residential apartments (32 rooms) located at and known as 863 Hancock
`Street. Brooklyn. New York.
`
`Security for the Loan. The Loan will be evidenced by a note in the amount
`3.
`thereof and will be secured by a mortgage or a consolidation and modification agreement
`or similar agreement (any of which shall be referred to as the ‘Mortgage') on the Property.
`which shall be a valid first lien on a good. unencumbered and marketable title in fee simple
`to the Property. The Loan will also be secured by (a) a security interest duly perfected
`under the Uniform Commercial Code, subject to no prior or superior interest. covering all
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`. FILED: KINGS COUNTY CLERK 09312017” 0737:709 PM
`FILED: KINGS COUNTY CLERK 09/29/2017 03:09 PM
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`NYSC
`NYSCEF DOC. NO. 13
`31F 130C: NO. 13
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`INDEX NO~ 517704/2017
`INDEX NO. 517704/2017
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`equipment, fixtures and articles of personal property at any time affixed to, installed at, or
`used in connection with the operation of the Property, (b) an assignment of all leases, rents
`and profits of the Property, and (c) all other security instruments and interests referred to in
`this commitment. All documents relating to the Loan must constitute legal, valid and
`binding obligations of the Borrower, enforceable in accordance with their terms and
`conditions and free from any right of setoff. counterclaim or other defense.
`
`4.
`following:
`
`Mortgage Provisions. The Mortgage will provide, among other things, the
`
`Restrictions on Transfer. The Mortgage shall contain a provision
`(a)
`giving the Bank the right to call the Loan in the event of a sale of the Property, or if
`Borrower is a corporation. upon the conveyance of any of the shares of said corporation or
`the sale or transfer of a substantial portion of such corporation's assets, or if the Borrower
`is a partnership, Upon the transfer of any interest in the partnership, or if the Borrower is a
`Limited Liability Company or upon the transfer of any interest in the Limited Liability
`Company.
`
`Tax Escrow. The Borrower will deposit with the Bank at the Closing,
`(D)
`and monthly thereafter, such amounts as the Bank shall determine to be required in order
`to have sufficient funds available to pay real estate taxes with respect to the Property one
`(1) month prior to the date such taxes and water and sewer charges are next payable
`without interest or penalty. The amounts so deposited will be held by the Bank, not as a
`trust fund and without interest (except as may be required by applicable law), to be applied
`to the payment of such taxes and charges as they become due and payable.
`
`The Borrower shall provide evidence that a meter has been installed at
`the Property for measurement and billing of water and sewer usage, or that a meter
`application is in process.
`
`Records and Accounts. The Borrowerwill keep proper books of record
`(c)
`and account with respect to the operation of the Property in accordance with generally
`accepted accounting principles and will furnish the Bank with annual accounting
`statements (including an annual certified “rent roll”) within ninety (90) days after the end of
`each calendar year. in form satisfactory to the Bank, which shall disclose in reasonable
`detail all earnings and expenses with respect to the operation of the Property. certified by
`independent certified public accountants of recognized standing satisfactory to the Bank.
`in addition, the Borrower will submit to the Bank copies of any operating statements or the
`like when the Borrower is required to submit such information to any administrative or
`regulatory authority or agency having jurisdiction.
`
`If any payment required under the terms of the
`Late Charges.
`(d)
`Mortgage shall become overdue for a period in excess of ten (10) days, then, to the extent
`permitted by law, a late charge of four ($.04) cents for each dollar so overdue shall become
`immediately due to the Bank as liquidated damages for failure to make timely payment and
`such late charge shall be secured by the Mortgage.
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`GWEN?! “IMMUNE“ BMW? MES!!! rumWOOL! CO” 1 NWT LnWm MAYA NIODOC.
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`. FILED: KINGS COUNTY CLERK 09m2017 03:09 PM-
`FILED: KINGS COUNTY CLERK 09/29/2017 03:09 PM
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`NYSCI
`NYSCEF DOC. NO. 13
`3F DOC.- NO. 13
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`INDEX NO. 517704/2017
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`09/29/2017
`RECEIVED NYSCEF: 09/29/2017
`. R*.C*.IV*.D \IYSCEF:
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`Post DefaulUMaturity Interest. Upon default under the Mortgage or
`(e)
`upon maturity of the Loan (whether by acceleration or otherwise) or upon the failure to
`SUpply the records and other information required in subparagraph (0) hereof and until such
`records and/or information are furnished. the interest payable on the Loan shall be at the
`rate of 24% per annum or the maximum rate allowed to be charged bylaw. whichever is
`lower. Payment of the Loan following an acceleration of the Loan due to the Borrower's
`default thereunder shall be deemed to be a voluntary prepayment and the Borrower shall
`pay. in addition to all other amounts due and payable under the Mortgage. the prepayment
`consideration specified herein.
`
`New York State Gains Tax. The Borrower shall (a) pay. when due. any
`(f)
`tax imposed upon the Borrower or the Bank pursuant to Article 31-8 of the New York Tax
`Law and regulations thereunder. and shall file any forms. affidavits and/or returns required
`by said Article, (b) appoint the Bank attorney-in-fact to prepare. execute and file. on the
`Borrower’s behalf. forms. affidavits and returns as may be required by said Article.
`(c) certify to the Bank the Borrower’s "original purchase price'. as defined in said Article.
`and agree to certify to the Bank from time to time the amount and description of any and all
`capital improvements. (d) agree to pay. upon written demand from the Bank. following
`default by the Borrower in the payment of the tax imposed by said Article upon a transfer of
`the Property to the holder of the Mortgage resulting from foreclosure or deed in lieu of
`foreclosure and payment of such tax by the Bank. an amount equal to such tax. and
`(e) provide the Bank with such other information as the Bank may determine to be
`necessary to comply with the provisions of said Article.
`
`Air Rights. At the option of the Bank. the Loan shall become
`(9)
`immediately due and payable in the event of the conveyance or lease of the air
`development rights with respect to the Property without the prior written consent of the
`Bank. and the Borrower agrees that such sale or lease shall conclusively impair the
`security interest of the Mortgage.
`
`.
`
`Hazardous Materials. The Mortgage will provide a representation
`(h)
`made by the Borrower to the Bank that the Property and the use thereof are and have
`been in full compliance with all federal. state and local laws. ordinances, rules and
`regulations regarding hazardous and toxic materials and the Borrower shall indemnify the
`Bank with regard to same.
`
`Exculpatory Provision. Except for (i) the obligations of the Borrower
`(i)
`under the provisions of the preceding subparagraph (h).
`(ii) any acts or omissions
`constituting fraud or misrepresentation in applying for the Loan or in supplying information
`or documentation to the Bank subsequent to the Closing. (iii) the misapprOpriation or
`misapplication of the rents collected at the Property. (iv) liability for rental or other income
`generated from the Property received by the Borrower after default underthe Mortgage. or
`(v) deliberate waste. the Mortgage will provide that the Loan is made on a non-recourse
`basis.
`
`Secondary Financing. The Mortgage will provide that secondary
`(j)
`financing will be prohibited.
`
`(k)
`
`Partial Payments. The Mortgage will provide that the Bank shall have
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`emmnmmmmm umwvmrum WOMEN” -|DANCMTITIWDATED IMYQJOWDOC
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`FILED: KINGS COUNTY CLERK 09312017 03:09 PM
`FILED: KINGS COUNTY CLERK 09/29/2017 03:09 PM
`NYSCEF DOC. NO. 13
`NYSCEF ‘DOC: NO. 13
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`INDEX NO. 517704/2017
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`09/29/2017
`RECEIVED NYSCEF: 09/29/2017
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`the right (but not the obligation) to apply partial payments on account of principal. interest.
`tax escrow installments or tax arrears as it shall determine in its sole discretion.
`
`inspection Fee. The Mortgage will provide that the Borrower shall be
`(I)
`required to pay an inspection fee of $125.00 for the cost of the Bank’s inspection of the
`Property during the extended term, if any. Such fee shall be due and payable upon the
`exercise by the Borrower of its option to extend the Loan as hereinabove provided.
`
`Conditions. The obligation of the Bank to make the Loan is expressly subject
`5.
`to the satisfaction of and compliance with each of the provisions and conditions of this
`commitment. including the General Conditions annexed hereto as Exhibit A and the
`Special Conditions annexed hereto as Exhibit B which are an integral part of this
`commitment.
`
`Restrictions on Assignment. The identity of the persons with whom the Bank
`6.
`deals is of material importance to it. Accordingly, this commitment may not be assigned or
`transferred by the Borrower.
`
`Commitment Fee. There is no commitment fee due to the Bank hereunder.
`7.
`The Bank acknowledges receipt of a good faith deposit in the amount of $4,000.00 which it
`will apply toward the Bank's closing costs. In the event the good faith deposit exceeds all
`amounts due the Bank. the same will be refunded to the Borrower at Closing.
`
`Broker. The Borrower represents and warrants to the Bank that the Borrower
`8.
`has not dealt with any broker other than Grate Fund Financial, Inc. with respect to the
`transaction contemplated hereby and by accepting this commitment the Borrower agrees
`forever to indemnify and save the Bank harmless from and against any and all claims or
`suits for compensation. commissions or othemrise (and all costs. losses and expenses,
`including. but not limited to. attorneys' fees and expenses related thereto) that may be
`asserted or made by any broker. person or entity claiming to have dealt with or to have
`been employed by the Borrower or the Borrower’s representative. This provision shall
`survive the Closing.
`
`Bank's Counsel. The Bank will be represented in this matter by Smyth Nora.
`9.
`LLP, 143 Main Street, Huntington, New York 11743 -- telephone number (631) 271-7500.
`All correspondence directed to the Bank's counsel should be addressed to the attention of
`Karen E. Nora. Esq.
`
`Closing. The closing of the Loan (the "Closing') will take place at the offices
`10.
`of the Bank or the Bank's counsel on such date on or prior to the Commitment Expiration
`Date (as hereinafter defined) as shall be designated by the Borrower in a written notice to
`the Bank and its counsel given not more than thirty (30) days nor less than ten (10) days
`prior to the date so designated, provided that the title report. survey, leases and any other
`documents and information requested by the Bank or its counsel in connection with the
`Loan have been furnished to and are satisfactory to the Bank and its counsel and all
`conditions required by this commitment have been complied with to the satisfaction of the
`Bank and its counsel on or before the date such notice is given. All documents required
`under this commitment will be executed and delivered at the Closing.
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`CWMMMIIHWEMWYMIW WWI”! -I.oumunmnnomn:mnoc
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`FILED: KINGS COUNTY CLERK 09/29/2017 03:09 PM
`FILED: KINGS COUNTY CLERK 09m2017 03:09 PM
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`NYSCEF DOC. NO. 13
`NYSCEE DOC. NO. 13
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`:33: NO. 51777504/2017
`INDEX NO. 517704/2017
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`RECEIVED NYSCEF: 09/29/2017
`. R«.C«.IV«.D \lYSCEF: 09/29/2017
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`Expenses. The Borrower’s acceptance of this commitment shall constitute its
`11.
`unconditional agreement to pay all fees, costs, charges and expenses with respect to the
`Loan or its making or in any way connected therewith. including, without limiting the
`generality thereof. the fees and expenses of the Bank's counsel forthe preparation of the
`loan documentation and the examination of title, survey. tenant leases, etc. and for closing
`the Loan. title report and title insurance premiums, survey costs, recording and filing fees,
`credit information charges, real estate tax service charges, documentary stamps, mortgage
`taxes and any and all other taxes. fees and expenses payable in connection with this
`transaction.
`including the Bank’s property inspection fee of $125.00 for the Bank's
`inspection to be made during the initial Term of the Loan. The Bank will not be required to
`pay any premium. brokerage fee or commission or similar compensation in connection with
`this transaction and the Borrower agrees to defend, indemnify and hold the Bank harmless
`from and against any and all claims for any fees, charges. taxes or compensation in
`connection with the Loan and its making. This provision shall survive the Closing.
`
`Acceptance and Expiration. This commitment shall not become effective
`12.
`unless the Borrower shall accept the same by executing the enclosed copy of this
`commitment and returning same to the Bank within five (5) days from the date of this
`commitment. Acceptance of this commitment will constitute the Borrower’s agreement to
`accept the Loan from the Bank and an authorization for the Bank's counsel to proceed at
`the Borrower's expense with the examination of title to the Property and to prepare for the
`Closing.
`
`This commitment will expire and all obligations of the Bank hereunder will terminate
`on July 6, 2010. (“Commitment Expiration Date”). which date shall be of the essence with
`respect to the Borrower’s obligations hereunder.
`
`
`
`‘
`i
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`Financial lnforrnation. The Borrower hereby represents that all financial
`13.
`statements. documents and income and operating expense statements which have been
`previously submitted to the Bank are true and accurate and accurately reflect the total
`revenues and expenses for the Property. This provision shall survive the Closing.
`
`Funding. The Bank's obligation to fund is expressly conditioned upon the
`14.
`Borrower’s submission to it and/or its counsel of: (i) evidence satisfactory to the Bank that
`the Property has an annual rental income of at least $160,824.00, as set forth on the
`annexed rent roll: (ii) income and expense statements for the operation of the Property for
`a period of three (3) years prior to the date hereof. certified by the Borrower and
`satisfactory to the Bank: and (iii) statements certified by the Borrower setting forth the
`monthly rents billed and collected for the twelve (12) month period preceding the date of
`Closing, satisfactory to the Bank.
`
`Lease Security Deposits and Operating Account. The Borrower shall open
`15.
`with the Bank at Closing and shall maintain such accounts on deposit the lease security
`deposit and operating accounts for the Property with the Bank until the Loan is paid in full.
`
`The tenant security account shall be funded with an amount from the Loan proceeds
`equal to one-twelfth (1/12) the annual rent roll for the Building at the Premises. The
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`fimfl WEWIIIHW gammy mm!mm Gal—'03” v WW1“! UPDATE? RAVI ”N 90‘:
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`FILED: KINGS COUNTY CLERK 09312015 63:097PM
`FILED: KINGS COUNTY CLERK 09/29/2017 03:09 PM
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`NYSCEF DOC. NO. 13
`NYSCEF D00. NO. 13
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`INDEX NO~ 517704/2017
`INDEX NO. 517704/2017
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`RECEIVED NYSCEF: 09/29/2017
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`operating account shall be funded with the net mortgage proceeds and monthly payments
`due on the Loan shall be automatically debited therefrom. Both accounts shall be
`maintained at the Bank for the life of the Loan.
`
`Entire Agreement. No statements. agreements or representations, oral or
`16.
`written. which may have been made by the Bank or any employee. officer or agent acting
`on the Bank's behalf with respect to the Loan shall be of any force or effect. except to the
`extent stated in this commitment. This commitment, together with all representations
`and/or documentation heretofore furnished by the Borrower to the Bank, embodies and
`constitutes the entire understanding with respect to the Loan and supersedes all prior
`understandings and agreements by the Borrower or on the Borrower’s behalf or
`representations by the Bank. No waiver. extension or modification of any of the terms or
`provisions of this commitment will be binding on the Bank unless embodied in a document
`executed by it.
`
`Very truly yours,
`
`CAPITA
`
`N
`
`By'
`“Gerard Marron
`Vice President
`
`Approved and Accepted:
`
`J. Golt Corp.
`
`
`
`
`
`emu!”MD Slum-51mm umnmvmm [WWW carton «man an!Ln mam an u mom:
`
`11 of 112
`11 of 112
`
`

`

` NYSC
`FILED: KINGS COUNTY CLERK 09/29/2017 03:09 PM
`FILED: KINGS COUNTY CLERK 09m2017 03:09 PM
`NYSCEF DOC. NO. 13
`3F 130C.v NO. 13
`.
`
`EX NO.
`517704/2017
`
`INDEX NO. 517704/2017
`
`
`
`
`
`
`09/29/2017
`RECEIVED NYSCEF: 09/29/2017
`. R«.C«.IV«.D \IYSCEF:
`
`EXHIBIT A
`
`GENERAL CONDITIONS
`
`Title insurance. At the Closing the Borrower shall deliverto the Bank, at the
`1.
`80rrower’s cost. an ALTA policy of title insurance for the Loan. issued either directly by a
`Title Insurance Company (the "Title Company") or through an Abstract Company on the
`annexed Schedule of Approved Abstract Companies in the principal amount of the Loan,
`with such reinsurance or co-insurance as the Bank may require, showing good and
`marketable fee simple title to the Property in the Borrower and insuring the Bank that the
`Mortgage is a first and prior lien for the full amount of the Loan, subject only to such
`exceptions as shall be approved by the Bank's counsel. The Borrower shall pay the entire
`cost of said examination, policy, survey. recording fees, filing fees. mortgage recording
`taxes. municipal and departmental searches and all additional expenses and
`disbursements incidental to the making of the Loan and paid or incurred by the Bank or its
`counseL
`
`Survey. Prior to the Closing the Borrower shall deliver to the Bank a survey
`2.
`of the Property by a licensed engineer or surveyor, dated or redated not more than thirty
`(30) days prior to the Closing. which shall be certified to the Bank and the Title Company
`and which shall indicate the dimensions of the Property, the dimensions and locations of
`the improvements on the Property and of the easements, if any. the location of adjacent
`Avenues, and such other details as may be requested by the Bank or its counsel.
`
`Compliance with Laws. The Borrower shall provide the Bank with evidence
`3.
`satisfactory to the Bank and its counsel that:
`
`the Loan complies with all applicable laws, ordinances. rules and
`(a)
`regulations of any governmental authority having jurisdiction over the Property or the Loan
`in force at the time of the Closing;
`
`(b)
`than the Property;
`
`the tax lot or lots for the Property do not include any properties other
`
`a permanent and unconditional certificate of occupancy and all other
`(c)
`permits, licenses and other approvals required by all applicable laws and governmental
`authorities for the occupancy and operation of all portions of the Property have been
`issued and are in full force and were issued solely on the basis of the Property and not on
`the basis of other properties or easements or other interests that are not covered by the
`Mortgage. The certificate of occupancy shall cover all of the improvements described in
`“The Property' section (Paragraph 2) of this commitment and shall permit such
`improvements to be legally occupied for the purposes contemplated under "The Property'
`section hereof;
`
`the Property and the operation and use thereof comply in all respects
`(d)
`with all zoning. building. housing. subdivision, environmental. flood plain and all other
`applicable laws, ordinances. rules and regulations and other legal requirements affecting or
`relating to the Property and with all applicable insurance underwriting requirements. and
`
`9
`
`12 of 112
`12 of 112
`
`
`
`

`

`FILED: KINGS COUNTYWCLERK 09 m 2017 63:09 PM
`FILED: KINGS COUNTY CLERK 09/29/2017 03:09 PM
`NYSC.
`NYSCEF DOC. NO. 13
`3F 150C: NO. 13
`.
`
`517704/2017
`INDEX N0.
`INDEX NO. 517704/2017
`
`
`
`
`
`
`09/29/2017
`RECEIVED NYSCEF: 09/29/2017
`. R«.C«.IV«.D \IYSCEF:
`
`
`
`there is no violation or claimed violation of any of the foregoing: and
`
`the rentals and other charges payable under all Lease Agreements
`(e)
`(defined below) and all other provisions of the Lease Agreements comply with all
`applicable laws. ordinances. rules and regulations.
`
`Insurance. At least seven (7) days prior to the Closing the Borrower shall
`4.
`deliver to the Bank original policies of fire and extended coverage insurance covering the
`Property (and also covering all equipment, fixtures and other articles of personal property
`affixed to. installed at or used in connection with the operation of the Property) in such
`amounts as shall be required by the Bank and with premiums fully paid one (1) year in
`advance, with appropriate endorsements showing the interest of the Bank as first
`mortgagee without contribution and with loss payable to the Bank under a standard New
`York mortgagee endorsement. All such policies shall be satisfactory to the Bank as to
`amounts and types of coverage and the companies by which such policies are issued.
`Such policies shall be in the New York standard form of fire insurance policy with extended
`coverage and shall provide coverage against such other risks as the Bank may require. At
`least seven (7) days prior to the Closing the Borrower shall also deliver to the Bank either
`(a) a policy of flood insurance. in form that will insure the Bank, in an amount equal to the
`amount of the Loan or the maximum limit of coverage available under the National Flood
`Insurance Act. or (b) proof satisfactory to the Bank that the Property is not within a
`designated flood hazard area as identified by the Department of Housing and Urban
`Development.
`
`The Borrower shall carry rent insurance in an amount equal to one (1) year's
`gross income from the Property. The Borrower also shall maintain comprehensive general
`liability insurance. in an amount satisfactory to the Bank, against claims and liabilities for
`injury or damage to persons or property occurring on or about the Property. The Borrower
`shall provide a copy or certificate of all such policies to the Bank not less than seven (7)
`days prior to the Closing.
`
`Leases. At least seven (7) days prior to the Closing the Borrower shall
`5.
`submit to the Bank or its counsel true copies of all leases and occupancy agreements for
`the Property. including all amendments thereto or extensions thereof. and any guarantees
`thereof (collectively.
`the “Lease Agreements”).
`The Lease Agreements shall be
`satisfactory to the Bank and its counsel in all respects and each and every Lease
`Agreement shall contain a provision satisfactory to the Bank and its coUnsel subordinating
`such Lease Agreement to the Mortgage. all advances thereunder, and any renewals,
`extensions. modifications or consolidations thereof. The Mortgage. and such other
`agreement(s) as the Bank may require, shall provide forthe assignment to the Bank of the
`Lease Agreements and the rents. profits and issue thereof, as additional collateral security
`forthe Loan. The Borrower will be required to furnish to the Bank estoppel certificates for
`major tenants at the Property (as determined by the Bank) in form and substance
`satisfactory to the Bank and its counsel in all respects. All Lease Agreements entered into
`after the Closing shall be in form and substance satisfactory to the Bank and its coUnsel,
`shall comply with all applicable laws. rules and regulations of any governmental authority
`having jurisdiction over such Lease Agreement. and shall be assigned to the Bank as
`additional security for the Loan.
`
`
`
`13 of 112
`
`10
`
`

`

`F—_mfi_—”7 7
`FILED: KINGS COUNTY CLERK 09/29/2017 03:09 PM
`FILED: KINGS COUNTY CLERK 09m2017 03:09 PM
`
`NYSCEF DOC. NO. 13
`Nysczaa Doc: NO. 13
`.
`
`-:
`INDEX NO. 517704/2017
`
`IND-4X NO' 517704/2017
`
`
`
`
`
`RECEIVED NYSCEF: 09/29/2017
`. R«.c«.Iv«.D \lYSCEF: 09/29/2017
`
`
`
`No Change in Condition. At and as of the Closing. (a) the Property and all
`6.
`fixtures and equipment shall not have been destroyed or damaged. (b) no adverse change
`shall have occurred in the income of the Property or in the financial condition of the
`Borrower or any guarantor. and (c) no judicial or administrative proceeding shall be
`pending against the Borrower, any guarantor orthe Property which if adversely determined
`would. in the opinion of the Bank. affect the security of the Loan.
`
`At the Closing the Borrower shall certify to the Bank the existence or non-existence
`of such changes in the condition of the Property, the Borrower or any guarantor.
`
`Approval by Bank's Counsel. The Bank's obligations

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