Preview
FILED: GENESEE COUNTY CLERK 08/31/2023 11:46 AM INDEX NO. E69938
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 08/31/2023
"A"
EXHIBIT
FILED: GENESEE COUNTY CLERK 08/31/2023 11:46 AM INDEX NO. E69938
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 08/31/2023
InstallmentNoto Page: 1 of5
11327 07/09
INSTALLMENT PROMISSORY NOTE
Filing Ref. : David A. Ficarella Printed: 08/I 1/2011
Date: August 12, 2011 Association: Farm Credit East, ACA
Branch: Batavia, NY 028-022
Note #: 7114591
Customer #: 0160137012
1. INDEBTEDNESS. For value received, the undersigned (collectively: "Borrower") jointly and severally
promise to pay to the order of Farm Credit East, ACA, or the Holder of this Note (collectively: "Lender")the
principal sum of One Hundred Fifty Thousand Dollars and Zero Cents (S150,000.00) together with interest
per annum as set forth herein, all future advances and all other sums due to Lender under the Loan Documents,
as defined herein (collectively "Indebtedness").
2. LOAN ACCOUNT(S). The outstanding principal balance of the Indebtedness evid.enced hereby is represented
("Account"
by the following loan account(s) or "Account(s)") and interest shall accrue on the Account(s) in
the manner so described. Indebtedness evidenced by any single Account is "Account Indebtedness." At
Lender's option, a change in interest rate or an optional future advance under the Account(s) may increase or
decrease one or more of the following: the amount of each Installment due, the amount of the final Installment
or the total number of Installments due.
A. Account Number: Description and Rate Type:
Account # 7114591-101 Lender's Variable Interest Rate Account
Account Billing Title: Mortgage
Construction Loan
Non-Revolving Loan
Repayment. The principal smn of $150,000.00, including any amount thereof which is not paid
when due and all future advances to this Account, shall bear interest from the date incurred or
advanced at the Lender's variable interest rato (hereinafter, "Lender's Variable Rate") as
described herein and in the section of this Note entitled LENDER'S VARIABLE INTEREST
"Installments"
RATE. Repayment shall be made in as described herein.
Interest Rate. Lender's Variable Rate applicable to this Account on the date hereof is 4.00% per
year. Interest shall accrue to the date of receipt of payment. Ifthe Indebtedness shall become due
because of a default under this Note or for any other reason, then in addition to Lender's rights
under the DEFAULT section of.this Note, interest for this Account shall continue under the
provisions of LENDER'S VARIABLE INTEREST RATE program until all Account Indebtedness
is paid in full.
The interest rate will never be higher than 6.0 percentage points (6.00%) above the rate applicable
on the date hereof.
Prepayment. A payment, in any amount, made in advance of the scheduled payment date is a
"prepayment", Borrower may make a prepayment of this Account, in whole or in part, at any time
without a prepayment charge.
Construction Loan. All or a portion of the funds evidenced by this Account are advanced by
"Improvements"
Lender for the purpose of erecting on the Premises, all as described in a certain
construction loan agreement or building loan agreement (collectively: the "Building Loan
Agreement") between Lender and Borrower, dated of even date herewith.
FILED: GENESEE COUNTY CLERK 08/31/2023 11:46 AM INDEX NO. E69938
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 08/31/2023
InstallmentNote Page: 2 ofS
I1327 07/09
. INSTALLMENT PROMISSORY NOTE
Filing Ref, : David A. Ficarella Printed: 08/11/2011
Despite any provisions to the contrary in this Note, until the first day of the first calendar month
"Improvements"
following the date the are completed, or until August 31, 2012, whichever should
occur first (the "Coinpletion Date"), the Borrower agrees to pay interest only, as billed, and at the
rate provided for in this Note on all amounts advanced under the Building Loan Agreement.
Interest shall be paid in Monthly Installments. Said Installments shall commence on the first
. . day of the first calendar month following the date of this Note and shall continue with the
same frequency and without interruption until the Completion Date, when Borrower shall
commence paying the Installments as described in this Notein the provisions below.
Installments. Instalhnents shall be made as follows:
Eleven (11) Monthly interest only payments in the amount billed, beginning on October 1,
2011.Three Hundred Forty-Seven (347) Monthly installments of principal and interest, in the
amount of $729.18, beginning on September 1, 2012, plus a final installment of any amount
necessary to pay the Indebtedness in full on August 1, 2041.
3. FUTURE ADVANCES. This Note is also given for optional future advances on all or any of the Account(s)
described herein up to an unlimited amount of Indebtedness, which may be made or arise from time to time;
but Lender is not obligated to make future advances. No future advance needs to be made or completed if a
default has occurred hereunder, or if Borrower is in default on any Loan Document or on any other loan,
obligation or Agreement with Lender or in which Lender has an interest. All future advances made hereunder
shall be added to the unpaid principal balance of the associated Account hereof, and shall bear interest, as
provided pursuant to the terms of such Account, at the rate applicable thereto from the date of such advance.
Any advance made by Lender for taxes, liens, judgments, assessments, insurance premiums, environmental
compliance or to protect collateral pursuant to any Loan Document, shall be payable on demand or, at Lender's
sole option, such amount may be added to the unpaid principal balance of any Accomit or subaccount of any
Account described herein or, if not already an active Account type, at Lender's Variable Rate as described in
the Note section entitled LENDER'S VARIABLE INTEREST RATE and shall bear interest pursuant to the
terms of such Account from the date of such advance.
4. LENDER'S VARIABLE INTEREST RATE. The "Lenders Variable Rate" (as
hereinatter described) is a
variable rate that corresponds to the applicable Interest Rate Tier, both of which shall be determined by Lender.
The Interest Rate Tier assigned to Borrower may be changed at any time, pursuant to Lender's credit criteria for
that Tier, which change in Tier may result in a change of the Variable Interest Rate applicable hereto. The
Variable Interest Rate applicable to any Tier also may be increased or decreased at any time pursuant to
Lender's Interest Rate Policy applicable to this Note and pursuant to the Farm Credit Act of 1971, as such
policy or law may hereafter be amended. Such Rate is detennined from time to time as a means of pricing loans
to Lender's customers, including Borrower, and is neither tied to any external rate or index, nor does it
necessarily reflect the lowest rate actually charged to any particular category of customers.
In adjusting Lender's Variable Rate, Lender considers certain standard factors set forth under Lender's Interest
Rate Policy, including but not limited to, changes in its cost of funds, operating expenses, earnings requirements
to meet certain capital objectives, credit risk factors, and the competitive environment, which factors may
change during the term of the loan.
Borrower understands and agrees that (a) the Interest Rate Tier to which this loan is assigned may be changed at
any time to any other Interest Rate Tier based on Lender's evaluation of a change in Borrower's credit quality,
quality of collateral, costs of servicing the loan, and other factors which are set forth in Lenders Interest Rate
Policy in effect at that time; and (b) the Interest Rate Tier may be automatically adjusted to the highest Interest
FILED: GENESEE COUNTY CLERK 08/31/2023 11:46 AM INDEX NO. E69938
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 08/31/2023
Installntent Note Page: 3 of5
11327 07/09
INSTALLMENT PROMISSORY NOTE
Piling Ref : David A. Ficarella Printed: 08/I.1/201 1
Rate Tier if a default occurs under this Note or under any other Note or agreement between Borrower and
Lender.
Lender's Variable Interest Rate shall not be limited by any State's usury or other legal interest rate limit. If
Lender changes Lender's Variable Rate for one or more applicable Accounts, Lender will give Borrower notice
of the change in rate as required by the then applicable law.
5. SECURITY. This Note is subject to a Loan Agreement, and the Note security includes but is not limited to:
Real Estate by a Real Estate Mortgage dated August 12, 201 1, to be filed at closing, and the security or
additional security described in the Loan Agreement, as all or any of these may be renewed or amended from
time to time. All liens shall continue in effect until the Indebtedness is paid in full, despite any interim period
of no Indebtedness outstanding, and until this Note and the security documents are terminated by Lender. At
Lender's request, Borrower shall execute a substitute negotiable demand promissory note for the full unpaid
balance of this Note.
6, EVIDENCE OF INDEBTEDNESS. Advances, interest and other charges, and repayments shall be posted to
Lender's accounting record, which record shall be evidence of the indebtedness owing hereunder and under any
Account(s) from time to time, and which record shall be admitted into evidence in any dispute involving this
; Note as prima facie evidence of the amount of the Indebtedness or any individual Account Indebtedness. Each
statement of account sent to Borrower shall constitute an account stated, and shall be deemed accepted by and
binding upon Borrower unless specific written objection thereto is received by Lender within 30 days after the
date thereof. All payments and credits shall be applied to the Indebtedness in such reasonable manner as
Lender in its sole discretion shall elect.
7. DEFAULT. It .is expressly agreed that the whole of the Indebtedness shall become irnmediately due and
Default"
payable, at Lender's sole option, together with collection costs if any of the following "Events of (also
called a "default") should occur: a.) The Indebtedness, or any Installment or other amount due under any
Account described herein or under any Loan Document remains unpaid for 30 days after the due date thereof
including all extensions, renewals and reamortizations; or b.) Borrower's or any Guarantor's failure to perform
timely or observe any term or provision of this Note or any other Loan Document securing or otherwise related
hereto; or c.) The breach of any warranty, representation, covenant or agreement in any Loan Document, or any
material misrepresentation made to Lender under any Loan Document, financial statement or loan application
related hereto; or d.) Lender declares Borrower or any Guarantor in default on any Loan Document securing or
otherwise related hereto; or e.) Lender declares a default on any other obligation of Borrower or any Guarantor
to Leader or in which Lender has an interest.
8. COLLECTION COSTS AND FEES. Borrower jointly and severally agrees to pay all costs, charges and
expenses, including reasonable attorneys fees, which are incurred by Lender in connection with preserving or
protecting Lender's rights and interests under this Note, any Mortgage, Security Agreement, Loan Agreement,
Guaranty or other legal document related to or affecting this Note or the Indebtedness (all collectively called
"Loan Documents") whether or not a legal action is filed; or incurred by Lender in the event of suit on the .
Loan Documents; or incurred in other legal proceedings for the collection of the Indebtedness secured hereby;
or incurred in any foreclosure brought by Lender; or incurred in any other legal proceeding to protect or sustain
any mortgage or lien granted as security for the Indebtedness; or incurred in any litigation or controversy,
including any action in Bankruptcy Court, affecting, arising from or connected with the Loan Documents or
Indebtedness. Such amounts, at Lender's sole discretion, shall be added to the unpaid principal balance of any
Account or subaccount of any Account described herein or, if not already an active Account type, at Lender's
Variable Rate as described in the Note section entitled LENDER'S VARIABLE INTEREST RATE and shall
bear interest pursuant to the terms of such Account(s) from the date advanced, notwithstanding the maximum
amount of Indebtedness described in any Loan Document; shall be evidenced by this Note and secured by all
loan collateral documents; and shall be a lien of the same priority on all loan collateral.
FILED: GENESEE COUNTY CLERK 08/31/2023 11:46 AM INDEX NO. E69938
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 08/31/2023
InstallmentNote Page: 4 of5
11327 07/09
INSTALLMENT PROMISSORY NOTE
Filing Ref. : David A. Ficarella Printed: 08/11/2011
9. ADDITIŒNAL TERMS. Borrower hereby jointly and severally: a) agrees to pay the Indebtedness evidenced
hereby without set-off, deduction, defense or counterclaim; and b) waives presentrnent, demand, protest, notice
of protest and dishonor; and c) guaranties payment of this Note when due and consents without notice to the
release ofsecurity and/or of other obligors and to any change in terms or extensions.of time for payment for any
period regardless of the original terms of this Note; and d) agrees not to assert against any holder of this Note
any defenses or rights of set-off which any of the Borrowers or any endorser may have against the payee hereof;
and e) agrees to provide, in a form acceptable to Lender, a current balance sheet and income statement at such
times as Lender may request in connection with loans; and f) agrees to deliver such additional security as
Lender may at any time deem necessary; and g) warrants and agrees that each Borrower has the authority,
power and capacity to enter into this loan and to execute all Loan Documents in connection herewith, and that
this Note and all Loan Documents, when executed, shall be valid and legally binding upon all Borrowers; and h)
agrees that the terms of the Loan Documents shall bind and inure to the benefit of the heirs, executors,
administrators, successors and assigns of the parties hereto, and i) agrees to execute, deliver, file and or record
such documents or instruments, or take such other actions, as may be reasonably required by Lender to
effectuate the intention of this transaction, or to assure the enforceability and collectability of the Indebtedness
or any Loan Document or lien, or to otherwise protect or enforce the rights of Lender thereunder.
10. NŒN-WAlVER. Lender's waiver of Borrower's breach, or Lender's failure to exercise any right, or Lender's
rights"
granting of forbearance, restructuring or "borrower (under the Farm Credit Act or other applicable law or
regulations) shall not be deemed a waiver of any subsequent breach of the same covenant or the breach of any
other covenant, or of Lender's rights thereafter to exercise any right. Any provision of the Loan Documents
may be waived only by a writing, signed by an authorized representative of Lender. This Note may be assumed
only with prior written permission of the Lender.
11 RELEASES. Lender may, at its sole option and without notice, release any part of the security described in the
Loan Documents, or release any person or entity liable for or guaranteeing the Indebtedness, or agree to extend
rights"
time for payment of the Indebtedness, or provide "borrower under the Farm Credit Act without in any
way affecting the lien thereof (except to the extent released) or without releasing any unreleased person or
entity obligated to pay or guaranty the Indebtedness.
12. AGENCY. Each of the undersigned hereby appoints each of the other undersigned as his, her or its agent for
purposes of the within obligations until written notice of termination of such agency is actually received by
Lender.
FILED: GENESEE COUNTY CLERK 08/31/2023 11:46 AM INDEX NO. E69938
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 08/31/2023
InstallmentNote Page: 5 of5
11327 07/09
INSTALLMENT PROMISSORY NOTE
Filing Ref. : David A. Ficarella Printed: 08/11/2011
THIS NOTE IS SUBJECT TO THE TERMS ON TH.E PREVIOUS PAGE(S) AND, WHEN
APPLICABLE, THE TERMS ON ANY ATTACHMENTS OR RIDERS, ALL OF WHICH THE
UNDERSIGNED HAVE READ PRIOR TO SIGNING.
Accepted and agreed to by each of the undersigned as of the date first written above:
David A. Ficarella, Individual
Kate FIcarella, individual
Guarantor
iv·
D 1 A. carell Trust, dated November 28, 2005
By: Davi A. Ficarell , Trustee
Signed and Sealed in t1 e Presence of:
WITNESS To All
NOTICE TO CO-SIGNER: YOUR SIGNATURE ON THIS NOTE MEANS THAT YOU ARE EQUALLY
LIABLE FOR REPAYMENT OF THIS LOAN. IF THE BORROWER DOES NOT PAY, THE LENDER
HAS A LEGAL RIG.HT TO COLLECT FROM YOU.
Preview
FILED: GENESEE COUNTY CLERK 08/31/2023 11:46 AM INDEX NO. E69938 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 08/31/2023 "A" EXHIBIT FILED: GENESEE COUNTY CLERK 08/31/2023 11:46 AM INDEX NO. E69938 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 08/31/2023 InstallmentNoto Page: 1 of5 11327 07/09 INSTALLMENT PROMISSORY NOTE Filing Ref. : David A. Ficarella Printed: 08/I 1/2011 Date: August 12, 2011 Association: Farm Credit East, ACA Branch: Batavia, NY 028-022 Note #: 7114591 Customer #: 0160137012 1. INDEBTEDNESS. For value received, the undersigned (collectively: "Borrower") jointly and severally promise to pay to the order of Farm Credit East, ACA, or the Holder of this Note (collectively: "Lender")the principal sum of One Hundred Fifty Thousand Dollars and Zero Cents (S150,000.00) together with interest per annum as set forth herein, all future advances and all other sums due to Lender under the Loan Documents, as defined herein (collectively "Indebtedness"). 2. LOAN ACCOUNT(S). The outstanding principal balance of the Indebtedness evid.enced hereby is represented ("Account" by the following loan account(s) or "Account(s)") and interest shall accrue on the Account(s) in the manner so described. Indebtedness evidenced by any single Account is "Account Indebtedness." At Lender's option, a change in interest rate or an optional future advance under the Account(s) may increase or decrease one or more of the following: the amount of each Installment due, the amount of the final Installment or the total number of Installments due. A. Account Number: Description and Rate Type: Account # 7114591-101 Lender's Variable Interest Rate Account Account Billing Title: Mortgage Construction Loan Non-Revolving Loan Repayment. The principal smn of $150,000.00, including any amount thereof which is not paid when due and all future advances to this Account, shall bear interest from the date incurred or advanced at the Lender's variable interest rato (hereinafter, "Lender's Variable Rate") as described herein and in the section of this Note entitled LENDER'S VARIABLE INTEREST "Installments" RATE. Repayment shall be made in as described herein. Interest Rate. Lender's Variable Rate applicable to this Account on the date hereof is 4.00% per year. Interest shall accrue to the date of receipt of payment. Ifthe Indebtedness shall become due because of a default under this Note or for any other reason, then in addition to Lender's rights under the DEFAULT section of.this Note, interest for this Account shall continue under the provisions of LENDER'S VARIABLE INTEREST RATE program until all Account Indebtedness is paid in full. The interest rate will never be higher than 6.0 percentage points (6.00%) above the rate applicable on the date hereof. Prepayment. A payment, in any amount, made in advance of the scheduled payment date is a "prepayment", Borrower may make a prepayment of this Account, in whole or in part, at any time without a prepayment charge. Construction Loan. All or a portion of the funds evidenced by this Account are advanced by "Improvements" Lender for the purpose of erecting on the Premises, all as described in a certain construction loan agreement or building loan agreement (collectively: the "Building Loan Agreement") between Lender and Borrower, dated of even date herewith. FILED: GENESEE COUNTY CLERK 08/31/2023 11:46 AM INDEX NO. E69938 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 08/31/2023 InstallmentNote Page: 2 ofS I1327 07/09 . INSTALLMENT PROMISSORY NOTE Filing Ref, : David A. Ficarella Printed: 08/11/2011 Despite any provisions to the contrary in this Note, until the first day of the first calendar month "Improvements" following the date the are completed, or until August 31, 2012, whichever should occur first (the "Coinpletion Date"), the Borrower agrees to pay interest only, as billed, and at the rate provided for in this Note on all amounts advanced under the Building Loan Agreement. Interest shall be paid in Monthly Installments. Said Installments shall commence on the first . . day of the first calendar month following the date of this Note and shall continue with the same frequency and without interruption until the Completion Date, when Borrower shall commence paying the Installments as described in this Notein the provisions below. Installments. Instalhnents shall be made as follows: Eleven (11) Monthly interest only payments in the amount billed, beginning on October 1, 2011.Three Hundred Forty-Seven (347) Monthly installments of principal and interest, in the amount of $729.18, beginning on September 1, 2012, plus a final installment of any amount necessary to pay the Indebtedness in full on August 1, 2041. 3. FUTURE ADVANCES. This Note is also given for optional future advances on all or any of the Account(s) described herein up to an unlimited amount of Indebtedness, which may be made or arise from time to time; but Lender is not obligated to make future advances. No future advance needs to be made or completed if a default has occurred hereunder, or if Borrower is in default on any Loan Document or on any other loan, obligation or Agreement with Lender or in which Lender has an interest. All future advances made hereunder shall be added to the unpaid principal balance of the associated Account hereof, and shall bear interest, as provided pursuant to the terms of such Account, at the rate applicable thereto from the date of such advance. Any advance made by Lender for taxes, liens, judgments, assessments, insurance premiums, environmental compliance or to protect collateral pursuant to any Loan Document, shall be payable on demand or, at Lender's sole option, such amount may be added to the unpaid principal balance of any Accomit or subaccount of any Account described herein or, if not already an active Account type, at Lender's Variable Rate as described in the Note section entitled LENDER'S VARIABLE INTEREST RATE and shall bear interest pursuant to the terms of such Account from the date of such advance. 4. LENDER'S VARIABLE INTEREST RATE. The "Lenders Variable Rate" (as hereinatter described) is a variable rate that corresponds to the applicable Interest Rate Tier, both of which shall be determined by Lender. The Interest Rate Tier assigned to Borrower may be changed at any time, pursuant to Lender's credit criteria for that Tier, which change in Tier may result in a change of the Variable Interest Rate applicable hereto. The Variable Interest Rate applicable to any Tier also may be increased or decreased at any time pursuant to Lender's Interest Rate Policy applicable to this Note and pursuant to the Farm Credit Act of 1971, as such policy or law may hereafter be amended. Such Rate is detennined from time to time as a means of pricing loans to Lender's customers, including Borrower, and is neither tied to any external rate or index, nor does it necessarily reflect the lowest rate actually charged to any particular category of customers. In adjusting Lender's Variable Rate, Lender considers certain standard factors set forth under Lender's Interest Rate Policy, including but not limited to, changes in its cost of funds, operating expenses, earnings requirements to meet certain capital objectives, credit risk factors, and the competitive environment, which factors may change during the term of the loan. Borrower understands and agrees that (a) the Interest Rate Tier to which this loan is assigned may be changed at any time to any other Interest Rate Tier based on Lender's evaluation of a change in Borrower's credit quality, quality of collateral, costs of servicing the loan, and other factors which are set forth in Lenders Interest Rate Policy in effect at that time; and (b) the Interest Rate Tier may be automatically adjusted to the highest Interest FILED: GENESEE COUNTY CLERK 08/31/2023 11:46 AM INDEX NO. E69938 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 08/31/2023 Installntent Note Page: 3 of5 11327 07/09 INSTALLMENT PROMISSORY NOTE Piling Ref : David A. Ficarella Printed: 08/I.1/201 1 Rate Tier if a default occurs under this Note or under any other Note or agreement between Borrower and Lender. Lender's Variable Interest Rate shall not be limited by any State's usury or other legal interest rate limit. If Lender changes Lender's Variable Rate for one or more applicable Accounts, Lender will give Borrower notice of the change in rate as required by the then applicable law. 5. SECURITY. This Note is subject to a Loan Agreement, and the Note security includes but is not limited to: Real Estate by a Real Estate Mortgage dated August 12, 201 1, to be filed at closing, and the security or additional security described in the Loan Agreement, as all or any of these may be renewed or amended from time to time. All liens shall continue in effect until the Indebtedness is paid in full, despite any interim period of no Indebtedness outstanding, and until this Note and the security documents are terminated by Lender. At Lender's request, Borrower shall execute a substitute negotiable demand promissory note for the full unpaid balance of this Note. 6, EVIDENCE OF INDEBTEDNESS. Advances, interest and other charges, and repayments shall be posted to Lender's accounting record, which record shall be evidence of the indebtedness owing hereunder and under any Account(s) from time to time, and which record shall be admitted into evidence in any dispute involving this ; Note as prima facie evidence of the amount of the Indebtedness or any individual Account Indebtedness. Each statement of account sent to Borrower shall constitute an account stated, and shall be deemed accepted by and binding upon Borrower unless specific written objection thereto is received by Lender within 30 days after the date thereof. All payments and credits shall be applied to the Indebtedness in such reasonable manner as Lender in its sole discretion shall elect. 7. DEFAULT. It .is expressly agreed that the whole of the Indebtedness shall become irnmediately due and Default" payable, at Lender's sole option, together with collection costs if any of the following "Events of (also called a "default") should occur: a.) The Indebtedness, or any Installment or other amount due under any Account described herein or under any Loan Document remains unpaid for 30 days after the due date thereof including all extensions, renewals and reamortizations; or b.) Borrower's or any Guarantor's failure to perform timely or observe any term or provision of this Note or any other Loan Document securing or otherwise related hereto; or c.) The breach of any warranty, representation, covenant or agreement in any Loan Document, or any material misrepresentation made to Lender under any Loan Document, financial statement or loan application related hereto; or d.) Lender declares Borrower or any Guarantor in default on any Loan Document securing or otherwise related hereto; or e.) Lender declares a default on any other obligation of Borrower or any Guarantor to Leader or in which Lender has an interest. 8. COLLECTION COSTS AND FEES. Borrower jointly and severally agrees to pay all costs, charges and expenses, including reasonable attorneys fees, which are incurred by Lender in connection with preserving or protecting Lender's rights and interests under this Note, any Mortgage, Security Agreement, Loan Agreement, Guaranty or other legal document related to or affecting this Note or the Indebtedness (all collectively called "Loan Documents") whether or not a legal action is filed; or incurred by Lender in the event of suit on the . Loan Documents; or incurred in other legal proceedings for the collection of the Indebtedness secured hereby; or incurred in any foreclosure brought by Lender; or incurred in any other legal proceeding to protect or sustain any mortgage or lien granted as security for the Indebtedness; or incurred in any litigation or controversy, including any action in Bankruptcy Court, affecting, arising from or connected with the Loan Documents or Indebtedness. Such amounts, at Lender's sole discretion, shall be added to the unpaid principal balance of any Account or subaccount of any Account described herein or, if not already an active Account type, at Lender's Variable Rate as described in the Note section entitled LENDER'S VARIABLE INTEREST RATE and shall bear interest pursuant to the terms of such Account(s) from the date advanced, notwithstanding the maximum amount of Indebtedness described in any Loan Document; shall be evidenced by this Note and secured by all loan collateral documents; and shall be a lien of the same priority on all loan collateral. FILED: GENESEE COUNTY CLERK 08/31/2023 11:46 AM INDEX NO. E69938 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 08/31/2023 InstallmentNote Page: 4 of5 11327 07/09 INSTALLMENT PROMISSORY NOTE Filing Ref. : David A. Ficarella Printed: 08/11/2011 9. ADDITIŒNAL TERMS. Borrower hereby jointly and severally: a) agrees to pay the Indebtedness evidenced hereby without set-off, deduction, defense or counterclaim; and b) waives presentrnent, demand, protest, notice of protest and dishonor; and c) guaranties payment of this Note when due and consents without notice to the release ofsecurity and/or of other obligors and to any change in terms or extensions.of time for payment for any period regardless of the original terms of this Note; and d) agrees not to assert against any holder of this Note any defenses or rights of set-off which any of the Borrowers or any endorser may have against the payee hereof; and e) agrees to provide, in a form acceptable to Lender, a current balance sheet and income statement at such times as Lender may request in connection with loans; and f) agrees to deliver such additional security as Lender may at any time deem necessary; and g) warrants and agrees that each Borrower has the authority, power and capacity to enter into this loan and to execute all Loan Documents in connection herewith, and that this Note and all Loan Documents, when executed, shall be valid and legally binding upon all Borrowers; and h) agrees that the terms of the Loan Documents shall bind and inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto, and i) agrees to execute, deliver, file and or record such documents or instruments, or take such other actions, as may be reasonably required by Lender to effectuate the intention of this transaction, or to assure the enforceability and collectability of the Indebtedness or any Loan Document or lien, or to otherwise protect or enforce the rights of Lender thereunder. 10. NŒN-WAlVER. Lender's waiver of Borrower's breach, or Lender's failure to exercise any right, or Lender's rights" granting of forbearance, restructuring or "borrower (under the Farm Credit Act or other applicable law or regulations) shall not be deemed a waiver of any subsequent breach of the same covenant or the breach of any other covenant, or of Lender's rights thereafter to exercise any right. Any provision of the Loan Documents may be waived only by a writing, signed by an authorized representative of Lender. This Note may be assumed only with prior written permission of the Lender. 11 RELEASES. Lender may, at its sole option and without notice, release any part of the security described in the Loan Documents, or release any person or entity liable for or guaranteeing the Indebtedness, or agree to extend rights" time for payment of the Indebtedness, or provide "borrower under the Farm Credit Act without in any way affecting the lien thereof (except to the extent released) or without releasing any unreleased person or entity obligated to pay or guaranty the Indebtedness. 12. AGENCY. Each of the undersigned hereby appoints each of the other undersigned as his, her or its agent for purposes of the within obligations until written notice of termination of such agency is actually received by Lender. FILED: GENESEE COUNTY CLERK 08/31/2023 11:46 AM INDEX NO. E69938 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 08/31/2023 InstallmentNote Page: 5 of5 11327 07/09 INSTALLMENT PROMISSORY NOTE Filing Ref. : David A. Ficarella Printed: 08/11/2011 THIS NOTE IS SUBJECT TO THE TERMS ON TH.E PREVIOUS PAGE(S) AND, WHEN APPLICABLE, THE TERMS ON ANY ATTACHMENTS OR RIDERS, ALL OF WHICH THE UNDERSIGNED HAVE READ PRIOR TO SIGNING. Accepted and agreed to by each of the undersigned as of the date first written above: David A. Ficarella, Individual Kate FIcarella, individual Guarantor iv· D 1 A. carell Trust, dated November 28, 2005 By: Davi A. Ficarell , Trustee Signed and Sealed in t1 e Presence of: WITNESS To All NOTICE TO CO-SIGNER: YOUR SIGNATURE ON THIS NOTE MEANS THAT YOU ARE EQUALLY LIABLE FOR REPAYMENT OF THIS LOAN. IF THE BORROWER DOES NOT PAY, THE LENDER HAS A LEGAL RIG.HT TO COLLECT FROM YOU.