Preview
Filing # 95475594 E-Filed 09/10/2019 03:53:14 PM
IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT
IN AND FOR MARION COUNTY, FLORIDA
CIVIL ACTION
WELLS FARGO BANK, N.A., SUCCESSOR BY
MERGER TO WACHOVIA BANK, N.A.,
Plaintiff,
CASE NO.: 42-2019-CA-000318
ys. DIVISION:
THE UNKNOWN HEIRS, DEVISEES, GRANTEES,
ASSIGNEES, LIENORS, CREDITORS, TRUSTEES,
OR OTHER CLAIMANTS CLAIMING BY,
THROUGH, UNDER OR AGAINST DAVID W.
KREBS, DECEASED, et al,
Defendant(s).
/
NOTICE OF FILING OF AFFIDAVIT AS TO AMOUNTS DUE AND OWING
Plaintiff, Wells Fargo Bank, N.A., Successor by Merger to Wachovia Bank, N.A., gives Notice of Filing of
Affidavit as to Amounts Due and Owing.
CERTIFICATE OF SERVICE
ae
THEREBY CERTIFY that a true and col of the foregoing has been furnished to all parties on the
attached service list by mail or eService on this day of September, 2019.
Albertelli Law
P.O. Box 23028
Tampa, FL 33623
(813)221-4743
(813) 221-9171 facsimile
eService: servealaw@albertellilaw.com
By;
Florida Bar No.:
~ 17-010720 Nathan P. Gryglewicz, Esq.
Florida Bar #762121
Electronically Filed Marion Case # 19CA000318AX 09/10/2019 03:53:14 PM
IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT
IN AND FOR MARION COUNTY, FLORIDA
CIVIL ACTION
WELLS FARGO BANK, N.A.,
SUCCESSOR BY MERGER TO
WACHOVIA BANK, N.A.
Plaintiff, CASE NO.: 42-2019-CA-000318
Vs. DIVISIO
THE UNKNOWN HEIRS, DEVISEES,
GRANTEES, ASSIGNEES, LIENORS,
CREDITORS, TRUSTEES, OR OTHER
CLAIMANTS CLAIMING BY, THROUGH,
UNDER OR AGAINST DAVID W. KREBS,
DECEASED, et al,
Defendant(s).
AFFIDAVIT AS TO AMOUNTS DUE AND OWING
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
BEFORE ME this day personally appeared Billie Lucrita Simpson, who, first being duly sworn
deposes and says:
Affiant is over the age of 18 and competent to testify to the matters stated herein. Affiant is Vice
President Loan Documentation, of Wells Fargo Bank, N.A., (hereinafter "Wells Fargo").
Affiant is authorized to make this Affidavit on behalf of the Plaintiff, In the regular performa
nce
of my job functions, I am familiar with business records maintained by Wells Fargo for
the
purpose of servicing mortgage loans. These records (which include data compilations,
electronically imaged documents, and others) are made at or near the time by, or from
information provided or transmitted by, persons with knowledge of the activity and
transactions
reflected in such records, and are kept in the course of business activity conducte
d regularly by
001-FL-V8
Wells Fargo. It is the regular practice of Wells Fargo’s mortgage servicing business to make
these records. In connection with making this affidavit, I have acquired knowledge of the
matters stated herein by examining these business records.
A lost Agreement affidavit has been executed in relation to the Agreement at issue. A copy of
the lost Agreement affidavit is attached hereto.
That Wells Fargo sent the Borrower(s) a letter, in accordance with the loan documents and the
procedures of Wells Fargo for sending such letter. The Borrower(s) have not cured the default.
Attached as exhibit(s) hereto are copies of the following business records:
A. Payment/balance history, Exhibit A
B. Mortgage, Exhibit B
C. Demand letter, Exhibit C
D. Supporting the total amount due, Exhibit D
The borrower has defaulted under the terms of the Equity Line Agreement and Mortgage, the
default has not been cured, making the entire balance due and owing in accordance with the
terms of the loan, along with accrued interest and Plaintiff is owed the following sums of
money:
The amount due the Plaintiff on said Agreement through 08/08/2019 is $110,926.39. which
breaks down as follows:
Principal $83,187.84
Interest
accrued interest at a variable rate $19,965.01
Pre-acceleration Late Charges $0.00
Hazard Insurance Disbursements $0.00
Tax Disbursements $7,773.54
Property Inspections/Preservation $0.00
PMI\MIP Insurance $0.00
Other (specify charges/fees) $0.00
Escrow Balance Credit $0.00
Credits to Borrower $0.00
001-FL-V8
Total $110,926.39
A daily variable per diem will accrue on the principal in accordance with the variable
rate as set forth in the Agreement
7. Plaintiff has agreed to pay its attorneys a reasonable fee for services rendered in the above-
styled litigation.
FURTHER AFFIANT SAYETH NOT.
—
Billie Lucrita Simpson-Viéé Président Loan Documentation
Wells Fargo Bank, N.A.
08/09/2019
State of North Carolina
County of _Mecitienks ry
The Foregoing instrument was swom to and subscribed before me this_47 day of
Avg ust » oly »by_ Billie Lucrita simpson
vice President Loan Ross mentation, Wells Fargo Bank, N.A., who is personally
known to me.
Gregory |. Metz
NOTARY PUBLIC Gregory bk Metz
Mecklenburg County, NC
My Commission Expires May 15, 2024 Notary Public, State of North Carolina
My Commission expires: os) ps/ aoa y
001-FL-V8
Rass
patter} EXHIBIT A
Transaction Statement
Transaction History
DAVID WKREBS
1306 JERICHO RD Statement Period: 11/01/2018 - 02/22/2019
ABINGTON, PA 190013313
STATEMENT SUMMARY
Original Bala |AUX Number,
‘Current Balance: $83,187.84 | Statement Date: August 09, 2019
Note Date; 2107/2005
Product LCA
TRANSACTIONS.
{Proc Date: EN Date. ‘Tran Code’ Action Interest Principal Mise 4 Miss 2 Miso3 Eactow: “Total Pmt = pan Bal
1101/2018 11/01/2018 46R bit Adjustment $0.00 $83,187.84 $0.00, $0.00 $0.00 $0.00 ‘$0.00 $83,187.84
11/01/2018 | 11/04/2018. 246 P. Eo]: Debit Adjusiment 1$16,247.24. $0.00 $0.00} $0.00; % $0.00 553$0.00 £30.00 $83,107.64!
01/03/2019, 01/01/2019 26R Credit Adjustment ($63.82) $0.00 $0.00, $0.00 $0.00 $0.00 $0.00 $83,187.84
“01/08/2019. 01/07/2019 462 Charge Assessment $0.00 $0.00 $8,014.99. $0,007} $0,007 $0.00. ‘$0.00 $83,187.64)
02/22/2019 02/22/2018 362 Foe Waiver $0.00 $0.00 ($241.45) $0.00 $0.00 $0.00 $0.00 $83,187.84
Transaction History
DAVID WKREBS
1306 JERICHO RD Statement Period: 11/04/2018
- 02/22/2019
ABINGTON, PA 190013313 .
STATEMENT SUMMARY
Original Bala $0.00 |AUX Number,
Current Balance: $83,187.84 Statement Date: August 09, 2019
Note Date: 02/07/2005
Product | LCA
BK SHAW, Ledger Transactions
Proc Ds Ef Dats “Tran, Code _ Change Data rest rinelpal
Tvo1n018 ‘woveote 46R. $0.00 $83,187.84 $0.00 $0.00 $0.00 $0.00 $0.00 $83,167.64
11/01/201841/01/2018 46 ECONW. $16,247.26 3.00. $0.00, ‘$0.00. $0.00 $0.00 $0.00: $83,167.84
01/03/2019 01/01/2019 36R ‘ADU ($63.82) $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $83,187.84
04/08/2019 01/07/2019 482 TAKA "230.00. $0.06 $3,014.99 $0.00 $0.00 $0.00 $0.00 $83,187.84
02/22/2019 02/22/2019, 362 TAX1 $0.00 $0.00 ($241.45) $0.00 $0.00 $0.00 $0.00 $83,187.84
BK SHAW Interest Rate History.
{Effective Date “Interest Rete’
11/01/2018 05.75000%
04/29/2019" {00000%
—?
pate ee
DAVDR. ELLSPERMANN, CLERK OF COUIRT MARION COUNTY
EXHIBIT B
' DATE: 02/24/2005 09:53:17AM
FILE #; 2005030407 OR BK 03958 PGS 1287-1297
RECORDING FEES 95.00
WACHOVIA BANK
MORT DOC TAX 350.00
PO BOX 50010
ROANOKE, VA 24022
em
PREPARED BY: Kathy Broadway
RETURN TO: ‘BCS Post-Closing, NC-1120
Wachovia Bank, National Association
Business Credit Solutions
8740 Research Drive, NC1120
Charlotte, North Carolina 28262
FLORIDA DOCUMENTARY STAMP TAXES. IN THE AMOUNT OF $350.00 ARE BEING PAID UPON
REGORDATION OF THIS INSTRUMENT, SUCH AMOUNT IS BASED UPON THE AMOUNT OF
$100,000.00, BEING THE MAXIMUM TAXABLE AMOUNT OF THE INDEBTEDNESS SECURED
HEREBY, NO NON-RECURRING INTANGIBLE TAX IS BEING PAID BECAUSE THIS INSTRUMENT
SECURES A CONTINGENT OBLIGATION.
MORTGAGE AND ASSIGNMENT OF RENTS
This MORTGAGE AND ASSIGNMENT OF RENTS (hereafter referred to as “Mortgage") made February
7, 2005, by and between, David -W. Krebs, whose address Is 213 Colonial Heritage, Doylestown,
Pennsylvania 18901 ("Mortgagor") and Wachovia Bank, National Association, a national banking
association, whose address Is 123 South Broad Street, Philadelphia, Pennsylvania 19109 ("Bank").
WITNESSETH:
To secure payment and performance of obligations under a(n) Business Equity Line dated
February 7, 2005, and maturing on February 6, 2025, made by David W. Krebs d/b/a David W. Krebs (the
"Borrower’} In favor of Bank, and any renewals, extensions, novations, or modifications of the foregoing
(collectively the "Obligations"), and In consideration of these promises: and for other consideration,
Mortgagor does mortgage, grant and convey unto Bank (for itself and its affiliates), its successors and
assigns, all of Mortgagors right, title and interest now owned or hereafter acquired in and to each of the
following (collectively, ‘the "Property”): (1) all those certain tracts of land in the City of Ocala, County of
Marion, State of Florida described In EXHIBIT A attached hereto and made part hereof (the “Land"); (il) all
buildings and Impravements now or hereafter erected on the Land; (ii) all fixtures attached to the Land or
any buildings or improvements situated thereon; and (iv) all estates, rights, tenements, hereditaments,
privileges, rants, Issues, profits easements, and appt tenances of any kind benefiting the Land; ell means
of access to and from the Land, whether public or private; and all water and mineral rights,
In the event that Mortgagor Is the owner of a leasehold estate with respect to any portion of the
Property and Mortgagor obtains e fee estate in such portions of the Property, then, such fee estate shall
automatically, and without further action of any kind on the part of the Mortgagor, be and become subject
to the security title and llen of this Agreement.
TO HAVE AND TO HOLD the Property and all the estate, right, tille and Interest, In law and in
equily, of Mortgagor’s In and to the Property unto Bank, Its successors and assigns, forever.
wi mance
a
Sapr24
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Book3958/Page1287 © CFN#2005030407 Page 1 of 17
Mortgagor WARRANTS AND REPRESENTS that Mortgagor is lawfully seized of the Property, in
fee simple, absolute, that Mortgagor has the legal right to convey and encumber the same, and that the
Property Is free and clear of all liens and encumbrances. Mortgagor further warrants and will forever
defend all and singular the Property and title thereto to Bank and Bank’s successors and assigns, against
the lawful claims of all persons whomsoever.
PROVIDED ALWAYS that if ()) all the Obligations (including without limitation, all termination
payments and any other amounts due under or In connection with any swap agreements (as defined in 11
U.S.C. § 104, as in effect from time to time) secured hereunder) are paid In full, (li) each and every
representation, warranty, agreement, covenant and condition of this Mortgage, and the other Loan
Documents, are complied with and ablded by, and (Ili) any and all swap agreements (as defined in 11
U.S.C. § 101, as in effect from time to time) secured hereunder have matured or been terminated, then
this Mortgage and the estate hereby created shall cease and be null, vold, and canceled of record.
To protect the security of this Mortgage, Mortgagor further represents and agrees with Bank as
follows:
Payment of Obligations, That the Obligations shall be timely pald and performed.
Future Advances. This Mortgage Is given to secure not only existing Obligations, but also future
advances, including obligations under swap agreements made, and future swap agreements (as defined
in 11 U.S.C. § 101, as In effect from time to time) entered into with Bank or any of Its affillates, within 20
years of the date of this Mortgage to the same extent as If such future advances and swap agreements
‘are made on the date of the execution of this Mortgage. The principal amount that may be so secured
may decrease or increase from time to time, but the total amount so secured at any one time shall not
exceed $200,000.00, plus all interest, costs, reimbursements, fees and expenses due under this
Mortgage and secured hereby. Mortgagor shall not execute any document that impairs or otherwise
impacts the priority of any existing or future Obligations secured by this Mortgage.
Grant of Security Interest in Personal Property. This Mortgage constitutes a security
agreement under the UCC and shall | be deemed to constitute a fixture financing statement. Mortgagor
hereby grants a security Interest In ai ny personal property included in the Property. On request of Bank,
Mortgagor will execute one or more Financing Statements In form satisfactory to Bank and will pay all
costs and expenses of filing the same in all public filing offices, where filing Is deemed desirable by Bank.
Bank Is authorized to file Financing Statements relating to the Property without Mortgagor’s signature
where permitted by law. Mortgagor appoints Bank a: s its attorney-in-fact to execute such documents
necessary to perfect Bank's security Interest on Mortgagor's behalf. The app oIntment Is coupled with an.
Interest and shall be Irrevocable as tong as any Obligations remain outstanding.
Nothing herein obligates Bank to provide credit In excess of the Obligations.
Leases, Subleases and Easements. Mortgagor shall maintain, enforce and cause to be
performed ail of the terms and conditions un der any lease, sublease or easement which may constitute a
portion of the Property. Morigagor shall not, without the consent of Bank, enter into any new lease of all
or any portion of the Property, agreet fo the cancel lation or surrender under any lease of all or any
portion
of the Properly, agree to prepayment of rents, i issues or profits (other than rent paid at the signing of a
the
lease or sublease), modify any such lease so as to shorten the term, decrease the rent, accelerate
payment of rent, or change the terms o! f any renewal option; and any such put ported new lease,
cancellation, surrender, prepayment or mot diflcation made without the consent of Bank shall be void as
against Bank.
Required Insurance. Mortgagor shall maintain with respect to the Property: (i) during
construction of any improvements on the Property, "all-risk" builders risk insurance which must include
Loss
windstorm, hall damage, fire and vandalism (non-report ing Completed Value with Special Cause of
form), In an amount not less than the compl leted replacement value of the improvements under
Page 2 fr main.doc
845724 (Rev 14.0)
L
Book3958/Page1288 | CFN#2005030407 Page 2 of 11
we
construction, naming Bank as mortgagee and loss payee; (ii) upon completion of construction, upon
occupancy of any improvements, and at all other times, insurance against loss or damage by fire and
other casualties and hazards by insurance written on an “all risks” basis, Including malicious mischief,
collapse and sinkhole coverage, In an amount not ess than the replacement cost. thereof, including
coverage for loss of rents or business interruption if applicable, naming Bank as loss payee and
mortgagee; (iil) if the Property is required to be Insured pursuant to the National Flood Reform Act of
1994, and the regulations promulgated thereunder, flood Insurance Is required In the amount equal to the
lesser of the loan amount or maximum available under the National Flood Insurance Program, but in no
event should the amount of coverage be less than the value of the improved structure, naming Bank as
mortgagee and loss payee. If, after closing, the Property (or any part thereof) Is remapped and If the
vertical Improvements are determined to be located In a special flood hazard area, Mortgagor must obtain
and maintain a flood insurance policy. If, within forty-five (45) days of receipt of notification from Bank
that the Property has been reclassified by FEMA as being located in a special flood hazard area,
Mortgagor has not provided sufficient evidence of flood insurance, Bank Is mandated under faderal law to
purchase flood insurance on behalf of Mortgagor, and Bank will add the associated costs to the. principal
balance of the Note. If the.land or any portion thereof is located in a special flood hazard area, this
Agreement may be terminated by Bank at its sole option; (iv) as applicable, insurance which complies
with the workers’ compensation and employers’ llabllity laws of all states In which Mortgagor shall be
required to maintain such Insurance; and (v) liability insurance providing coverage In such amount as
Bank may-require but in no event less than $1,000,000.00 combined single fimit, naming Bank as an
additional insured; and (vi) such other Insurance as Bank may require from time to time.
All property insurance policies shall contain an endorsement or agreement by the Insurer in form
satisfactory to Bank that any loss shall be payable In accordance with the terms of such policy
notwithstanding any act or negligence of Mortgagor and the further agreement (within both the property
and tlabllity policies) of the insurer walving rights of subrogation against Bank, and rights of set-off,
counterclaim or deductions agalnst Mortgagor.
All Insurance -policies shall be in form, provide coverages, be Issued by companies and be In
amounts satisfactory to Bank, At least 30 days prior to the expiration of each such policy, Mortgagor shall
furnish Bank with evidence satisfactory to Bank that such policy has been renewed or replaced or Is no
longer required hereunder, All such policies shall provide that the policy will not be canceled or materially
amended without at least 30 days prior written notice to Bank. In the event Mortgagor falls to provide,
maintain, keep in force, and fumish to Bank the policies of insurance required. by this paragraph, Bank
may procure such Insurance or single-interest insurance in such amounts, at such premium, for such risks
and by such means a: s Bank chooses, at Mortgagor's expense; provided however, Bank shall have no
responsibility to obtain any insurance, but if Bank does obtain Insurance, Bank shall have no
responsibility to assure that the Insurance obtained shall be adequate or provide any protection to
Mortgagor.
Insurance Proceeds. After occurrence of any loss to any of the Property, Mortgagor shall give
prompt written notice thereof to Bank.
In the event of such loss all insurance proceeds, including unearned premiums, shall be payable
to Bank, and Mortgagor hereby authorizes and directs any affected insurance company to make payment
of such proceeds directly to Bank and not to Bank and Mortgagor Jointly. Bank is hereby authorized by
Mortgagor to make proof of loss If not promptly made by Mortgagor, settle, adjust or compromise any
claims for loss or damage under any policy or policies of Insurance and Mortgag! jor appoints Bank as its
attorney-in-fact to receive an d endorse any insurance proceeds to Bank, which appointment
t Is coupled
with an Interest and shall be Irrevocable as long as any Obligations remain unsatisfied. Mortgagor shall
pay the costs of collection, including attorneys’ fees, of Insurance proceeds payable on account of such
damage or destruction. Mortgagor s! hall have no claim against the Insurance proceeds, or be entitled to
any portion thereof, and all rights to tt he Insurance proceeds are hereby assigned to Bank as securlty for
payment of the Obligations.
Pago 3 mi_maindoe
848724 (Rev 14.0)
Book3958/Page1289 | CFN#2005030407 Page 3 of 17
cece
ae ee
In the event of any damage to or destruction of the Property, Bank shall have the option of
applying or paying all or part of the insurance proceeds to (i) the Obligations In such order as Bank may
determine, (ji) restoration, replacement or repair of the Property in accordance with Bank’s standard
construction loan disbursement conditions and requirements, or (iii) Mortgagor. Nothing herein shall be
deemed to excuse Mortgagor from restoring, repairing and maintaining the Property as required herein.
Minimum Standards. In addition to the requirements set forth in the Loan Documents, all
surveys, Insurance, title policles, construction documents, environmental reports, payment and
performance bonds, and any other due diligence or additional documents required in connection with this
Loan, shall comply with Bank's minimum standards In place from time to time for such documents, which
shall be provided In writing by Bank to Borrower upon request.
Impositions; Escrow Deposit. Mortgagor will pay all taxes, levies, assessments and other fees
and charges imposed upon or which may become a lien upon the Property under any law or ordinance
(all of the foregoing collectively “Impositions") before they become delinquent and in any event in the
same calendar year in which they first become due. Upon request of Bank, Mortgagor shall add to each
perlodic payment required under the Note the amount estimated by Bank to be sufficient to enable Bank
to pay, as they come due, all Impositions and Insurance premiums which Mortgagor is required to pay
hereunder. Payments requested under this provision shall be supplemented or adjusted as required by
Bank from time to time. Such funds may be cominingled with the general funds of Bank and shall not
earn interest. Upon the occurrence of a Default, Bank may apply such funds to pay any of the
Obligations.
Use of Property. Mortgagor shall use and operate, and require its lessees or licensees to use
and operate, the Property in compliance with all appiicable laws (including, for example, the Americans
with Disablities Act and the Fair Housing Act) and ordinances, covenants, and restrictions, and with all
applicable requirements of any lease or sublease now or hereafter affecting the Property. Mortgagor
shall not permit any unlawful use of the Property or any use that may give rise to a claim of forfeiture of
any of the Property. Mortgagor shall not allow changes in the stated use of Property from that disclosed
to Bank at the time of execution hereof. Mortgagor shall not initiate or acquiesce to a zoning change of
the Property without prior notice to, and written consent of, Bank.
Maintenance, Repairs and Alterations. Mortgagor shall keep and maintain the Property In
good condition and repalr and fully protected from the elements to the satisfaction of Bank. Mortgagor
will not remove, demolish or structurally alter any of the buildings or other Improvements on the Property
(except such alterations as may be required by laws, ordinances or regulations) without the prior written
consent of Bank. Mortgagor shall promptly notify Bank in writing of any material loss, damage or adverse
condition affecting the Property.
Eminent Domain. Should the Property or any interest therein be taken or damaged by reason of
any public use or Improvement or condemnation proceeding ("Condemnation"), or should Mortgagor
receive any notice or other Information regarding such Condemnation, Mortgagor shall give prompt
written notice thereof to Bank. Bank shall be entitled to all compensation, awards and other payments or
relief granted In connectlon with such Condemnation and, at its option, may commence, appear In and
prosecute In Its own name any action or proceedings relating thereto. Bank shall be entitled to make any
compromise or settlement in connection with such taking or damage. All compensation, awards, and
damages awarded to Mortgagor related to any Condemnation (the "Proceeds") are hereby assigned to
Bank and Mortgagor agrees to execute such further assignments of the Proceeds as Bank may require.
Bank shall have the option of applying or paying the Proceeds in the same manner as insurance
proceeds as provided herein. Mortgagor appoints Bank as Its attorney-in-fact to recelve and endorse the
Proceeds to Bank, which appointment Is coupled with an interest and shall be irrevocable as long as any
Obligations remain unsatisfied.
Environmental Condition of Property and Indemnity. Mortgagor warrants and represents to
Bank, except as reported by Mortgagor to Bank In writing, that: (i) Mortgagor has Inspected and Is
‘S48T24 (Rav 14.0) Page 4 mi_sosindoc
Book3956/Page1290 CFN#2005030407 Page 4 of 11
familiar with the environmental condition of the Property; (ii) the Property and Mortgagor, and any
‘occupants of the Property, are In compliance with and shall continue to be in compliance with all
applicable federal, state and local laws and regulations intended to protect the environment and public
health and safety as the same may be amended from time to time ("Environmental Laws’); (ill) the
Property Is not and has never been used to generate, handle, treat, store or dispose of, In any quantity,
oil, petroleum products, hazardous or toxic substances, hazardous waste, regulated substancesor
hazardous alr pollutants ("Hazardous Materials") in violation of any Environmental Laws; (iv) no
Hazardous Materials (including asbestos, mold or lead paint In any form) are located on or under the
Property or emanate from the Property; (v) there are no unregistered underground storage tanks on the
Property that are subject to any underground storage tank registration laws or regulations; (vi) no notice
has been received with regard to any Hazardous Material on the Property; (vii) no action, investigation or
proceeding Is pending or to Mortgagor’s knowledge threatened which seeks to enforce any right or
remedy against Mortgagor or the Property under any Environmental Law; and (vill) all licenses, permits
and other govemmental or regulatory actions necessary for the Property to comply with Environmental
Laws shall be obtained and maintained and Mortgagor shall assure compliance therewith.
Further, Mortgagor represents to Bank that no portion of the Property Is a protected wetland.
Mortgagor agrees to notify Bank Immediately upon recelpt of any citations, warnings, orders, notices,
consent agreements, process or clalms alleging or relating to violations of any Environmental Laws or to
the environmental condition of the Property and shall conduct and complete all investigations and all
cleanup actions necessary to comply with the Environmental Laws and to remove, In accordance with
Environmental Laws, any Hazardous Material from the Property.
Mortgagor shall indemnify, hold harmless, and defend Bank from and against any and all
damages, penalties, fines, claims, sults, liabilities, costs, judgments and expenses, Including attorneys’,
consultants’ or experts’ fees of every kind and nature Incurred, suffered by or asserted against Bank as a
direct or Indirect result of: (i) representations made by Mortgagor in this Section being or becoming
untrue in any material respect; (II) Mortgagor’s violation of or fallure to meet the requirements of any
Environmental Laws; or (ili) Hazardous Materials which, while the Property is subject to this Mortgage,
exist on the Property. Bank shall have the right to arrange for or conduct environmental inspections of
the Property from time to time (Including the taking of soil, water, air or material samples), The cost of
such inspections made after Default or which are required by laws or regulations applicable to Bank shall
be bome by Mortgagor. However, Mortgagor's Indemnity shall not apply to any negligent or intentional
act of Bank which takes place after foreclosure or satisfaction of this Mortgage. These indemnification
obligations are in addition to General Indemnification provisions set forth hereafter. Mortgagor's
Obligations under this section shall continue, survive and remain In full force and effect notwithstanding
the repayment of the Obligations, a foreclosure of or exercise of power of sale under this instrument, a
delivery of a deed In Ileu of foreclosure, a cancellation or termination of record of this instrument and the
transfer of the Property.
Appraisals. Mortgagor agrees that Bank may obtain an appraisal of the Property when required
by the regulations of the Federal Reserve Board or the Office of the Comptroller of the Currency, any
other regulatory agency or at such other times as Bank may reasonably require. Such appraisals shall be
performed by an independent third party appraiser selected by Bank. The cost of such appreisais shall
be borne by Mortgagor. If requested by Bank, Mortgagor shall execute an engagement letter addressed
to the appraiser selected by Bank. Mortgagor's failure or refusal to sign such an engagement fetter,
however, shall not impair Bank's right to obtain such an appraisal. Mortgagor agrees to pay the cost of
such appraisal within 10 days after receiving an Invoice for such appralsal,
Inspections, Bank, or Its representatives or agents, are authorized to enter at any reasonable
time upon any part of the Property for the purpose of inspecting the Property and for the purpose of
Performing any of the acts it Is authorized to perform under the terms of this Mortgage.
Liens and Subrogation. Mortgagor shall pay and promptly discharge all liens, claims and
encumbrances upon the Property. M ortgagor shall have the right to contest in good falth the validity of
any such fien, claim or encumbrance, provided: (I) such contest suspends the collection thereof or there
545724 (Rev 14.0) Page 5 milgain soo
Book3958/Page1291 CFN#2005030407 Page 5 of 11
-
Is no danger of the Property being sold or forfeited while such contest Is pending; (Ii) Mortgagor first
deposits with Bank a bond or other security satisfactory to Bank in such amounts as Bank shall
reasonably require; and (ili) Mortgagor thereafter diligently proceeds to cause such lien, claim or
encumbrance to be removed and discharged.
Bank shail be subrogated to any liens, claims and encumbrances against Mortgagor or the
Property that are pald or discharged through payment by Bank or with loan proceeds, notwithstanding the
record cancellation or satisfaction thereof.
Walver of Mortgagor's Rights. To the fullest extent permitted by law, Mortgagor waives the
benefit of all laws now existing or that hereafter may be enacted providing for (|) any appraisement before
sale of any portion of the Property, (li) in any way extending the time for the enforcement of the collection
of the Note or the debt evidenced thereby or any of the other Obligations, and any rights to hearing prior
to the exercise by Bank of any right, power, or remedy herein provided to Bank.
To the full extent Mortgagor may do so, Mortgagor agrees that Mortgagor will not at any time
Insist upon, plead, clalm or seek to take the benefit or advantage of any law now or hereafter in farce
providing for any exemption (including homestead exemption), appralsement, valuation, stay, extension
‘or redemption, and Mortgagor for themselves and thelr respective heirs, devisees, representatives,
successors and assigns, and for any and all persons claiming any interest in the Property, to the extent
permitted by law, hereby waive and release all rights of valuation, appralsement, redemption, stay of
execution, the benefit of all exemption laws, notice of election to mature or declare due the whole of the
secured indebtedness and marshalling In the event of foreclosure of the liens hereby created. Mortgagor
further waives any and all notices Including, without limitation, notice of intention to accelerate and of
acceleration of the Obligations.
Payments by Bank. In the event of default In the timely payment or performance of any of the
Obligations, Bank, at its option and without any duly on its part to determine the validity or necessity
thereof, may pay the sums for which Mortgagor Is obligated. Further, Bank may pay such sums as Bank
deems appropriate for the protection and maintenence of the Property including, without limitation, sums
to pay Impositions and other levies, assessments or liens, maintain Insurance, make repairs, secure the
Property, maintain utliity service, intervene In any condemnation and pay attomeys’ fees and other fees
and costs to enforce this Mortgage or protect the lien hereof (including foreclosure) or collect the
Obligations, without {imitation, including those incurred In any proceeding including Bankruptcy or
arbitration, Any amounts so paid shall bear interest at the default rate stated in the Note and shall be
secured by this Mortgage.
Indemnification. Mortgagor shall protect, indemnify and save harmless Bank from and against
all losses, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses
(including, without limitation, reasonable attorneys’ fees and expenses) (collectively, Damages”) imposed
upon, Incurred by or asserted against Bank on account of (I) the-Loan Documents or any failure or alleged
fallure of Mortgagor to comply with any of the terms or representations of this Agreement; (i) any claim of
loss or damage to the Property or any injury or claim of injury to, or death of, any person or property that
may be occasioned by any cause whatsoever pertaining to the Property or the ust e, occupancy or
operation thereof, (ili) any failure or alleged failure of Mortgagor to comply with any law, rule or regulation
applicable to the Property or the use, occupancy or operation of the Property (including, without limitation,
the failure to pay any taxes, fees or ol ther charges), provided that such indemnity shall be effective only to
the extent of any Damages that may be sustained by Bank in excess of any net proceeds received by It
from any insurance of Mortgagor (other than self-insu ance) with respect to such Damages, (Iv) any
Damages whatsoever by reason of any alleged action, obligation or undertaking of Bank relating in any
way to or any matter contemplated by th @ Loan Documents, (v) any clalm for brokerage fees or such
other commissions relating to the Property or any other Oblig ations, or (vl) any and ail llabllity arising from
any leases related to the Property. Ne lothing contained herein shall require Mortgagor to indemnify Bank
for any Damages resulting from Bank’: 's gross negligence or its willful and wrongful acts. The Indemnity
directors,
provided for herein shall survive payment of the Obligations and shall extend to the officers,
employees and duly authorized agents of Bank. In the event the Bank incurs any Damages arising out of
848724 (Rev 14.0) Page 6 m_main.doe
Book3958/Page1292 | CFN#2005030407 Page 6 of 11
or In any. way relating to the transaction contemplated by the Loan Documents (Including any of the
matters referred to in this section), the amounts of such Damages shall be added to the Obligations, shall
bear Interest, to the extent permitted by law, at the Interest rate borne by the Obligations from the date
Incurred until paid and shall be payable on demand.
Assignment of Rents. Mortgagor hereby absolutely assigns and transfers to Bank all the
leases, rents, issues and profits of the Property (collectively "Rents"). Although this assignment is
effective Immediately, so long as no Default exists, Bank gives to and confers upon Mortgagor the
privilege under a revocable license to collect as they become due, but not prior to accrual, the Rents and
to demand, receive and enforce payment, give receipts, releases and satisfactions, and sue in the name
of Mortgagor for all such Rents. Mortgagor represents there has been no prior assignment of leases or
Rents, and agrees not to further assign such leases or Rents. Upon any occurrence of Default, the
license granted to Mortgagor herein shall be automatically revoked without further notice to or demand
upon Mortgagor, and Bank shall have the right, In its discretion, Ithout notice, by agent or by a receiver
appointed by a court, and without regard to the adequacy of any security for the Obligations, (j) to enter
upon and take possession of the Property, (ii) notify tenants, subtenants and any property manager to
pay Rents to Bank or its designee, and upon receipt of such notice such persons are authorized and
directed to make payment as specified In the notice and disregard any contrary direction or instruction by
Mortgagor, and (ill) In its own name, sue for or otherwise collect Rents, including those past due, and
apply Rents, less costs and expenses of operation and collection, including attorneys’ fees, to the
Obligations in such order and manner as Bank may determine or as otherwise provided for herein.
Bank's exercise of any one or more of the foregoing rights shall not cure or waive any Default or notice of
Default hereunder,
Due on Sale or Further Encumbrance or Transfer of an Interest In Mortgagor. Without the
prior written consent of Bank In each Instance, Mortgagor shall not (I) sell, convey, transfer or encumber
the Property, or any part thereof or interest therein, whether legal or equitable, (Ii) cause or permit any
transfer of the Property or any part thereof, whether voluntarily, involuntarily or by operation of law, or (lil)
enter into any agreement or transaction to transfer, or accomplish In form or substance a transfer, of the
Property. A "transfer" of the Property Includes: (a) the direct or Indirect sale, transfer or conveyance of
the Property or any portion thereof or Interest therein; (b) the execution of an installment sale contract or
similar instrument affecting all or any portion of the Property; (c) if Mortgagor or any general partner or
member of Mortgagor, is a corporation, partnership, limited liability company, trust or other business
entity, the transfer (whether in one transaction or a series of transactions) of any stock, partnership,
limited llabllity company or other ownership interests In such corporation, partnership, limited liabllity
company or entity Including, without limitation, changes in stockholders, partners, members, managers,
trustees, beneficiaries, or their respective Interests; (d) if Mortgagor, or any general partner or member of
Mortgagor, Is a corporation, the creation or Issuance of new stock by which an aggregate of more than
0% of such corporation's stock shall be vested In a party or parties who are not now stockholders; and
(e) an agreement by Mortgagor leasing all or a substantial part of the Property for other than actual
occupancy by a space tenant thereunder or a sale, assignment or other transfer of or the grant of a
security Interest In and to any Leases.
Bank's consent to any conveyance or encumbrance may be conditioned upon an increase in the
Interest rate specified in the Note (or other Obligations), an extension or curtallment of the maturity of the
Obligations, or other modification of the Note or this Instrument.
Remedies of Bank on Default, Fallure of Mortgagor or any other person liable to timely pay or
perform any of the Obligations is a default ("Default") under this Mortgage. Upon the occurrence of
Default the following remedies are avallable, without limitation, to Bank: (|) Bank may exercise any or all
of Bank's remedies under this Mortgage or other Loan Documents including, without limitation,
acceleration of the maturity of all payments and Obligations, other than Obligations under any swap
agreements (as defined in 11 U.S.C. § 101, as In effect from time to time) with Bank or any of its affiliates,
which shall be due in accordance with and governed by the provisions of sald swap agreements; (ii) Bank
may take Immediate possession of the Property or any part thereof (which Mortgagor agrees to surrender
to Bank) and manage, control or lease the same to such persons and at such rental as it may deem
545724 (Rev 14.0) Page7 mi_msin.coe
Book3958/Page1293 CFN#2005030407 Page 7 of 17
proper and collect and apply Rents to the payment of: (a) the Obligations, together with all costs and
attorneys’ fees; (b) all Impositions and any other levies, assessments or Ilens which may be prior In flen or
payment to the Obligations, and premiums for insurance, with interest on all such items; and (c) the cost
of all alterations, repairs, replacements and expenses Incident to taking and retaining possession of the
Property and the management and operation thereof; all in such order or priority as Bank In its sole
discretion may determine, The taking of possession shall not prevent concurrent or later proceedings for
the foreclosure sale of the Property; (iii) Bank may apply to any court of competent jurisdiction for the
appointment of a recelver for all purposes including, without limitation, to manage and operate the
Property or any part thereof, and to apply the Rents therefrom as hereinabove provided. In the event
Preview
Filing # 95475594 E-Filed 09/10/2019 03:53:14 PM IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND FOR MARION COUNTY, FLORIDA CIVIL ACTION WELLS FARGO BANK, N.A., SUCCESSOR BY MERGER TO WACHOVIA BANK, N.A., Plaintiff, CASE NO.: 42-2019-CA-000318 ys. DIVISION: THE UNKNOWN HEIRS, DEVISEES, GRANTEES, ASSIGNEES, LIENORS, CREDITORS, TRUSTEES, OR OTHER CLAIMANTS CLAIMING BY, THROUGH, UNDER OR AGAINST DAVID W. KREBS, DECEASED, et al, Defendant(s). / NOTICE OF FILING OF AFFIDAVIT AS TO AMOUNTS DUE AND OWING Plaintiff, Wells Fargo Bank, N.A., Successor by Merger to Wachovia Bank, N.A., gives Notice of Filing of Affidavit as to Amounts Due and Owing. CERTIFICATE OF SERVICE ae THEREBY CERTIFY that a true and col of the foregoing has been furnished to all parties on the attached service list by mail or eService on this day of September, 2019. Albertelli Law P.O. Box 23028 Tampa, FL 33623 (813)221-4743 (813) 221-9171 facsimile eService: servealaw@albertellilaw.com By; Florida Bar No.: ~ 17-010720 Nathan P. Gryglewicz, Esq. Florida Bar #762121 Electronically Filed Marion Case # 19CA000318AX 09/10/2019 03:53:14 PM IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND FOR MARION COUNTY, FLORIDA CIVIL ACTION WELLS FARGO BANK, N.A., SUCCESSOR BY MERGER TO WACHOVIA BANK, N.A. Plaintiff, CASE NO.: 42-2019-CA-000318 Vs. DIVISIO THE UNKNOWN HEIRS, DEVISEES, GRANTEES, ASSIGNEES, LIENORS, CREDITORS, TRUSTEES, OR OTHER CLAIMANTS CLAIMING BY, THROUGH, UNDER OR AGAINST DAVID W. KREBS, DECEASED, et al, Defendant(s). AFFIDAVIT AS TO AMOUNTS DUE AND OWING STATE OF NORTH CAROLINA COUNTY OF MECKLENBURG BEFORE ME this day personally appeared Billie Lucrita Simpson, who, first being duly sworn deposes and says: Affiant is over the age of 18 and competent to testify to the matters stated herein. Affiant is Vice President Loan Documentation, of Wells Fargo Bank, N.A., (hereinafter "Wells Fargo"). Affiant is authorized to make this Affidavit on behalf of the Plaintiff, In the regular performa nce of my job functions, I am familiar with business records maintained by Wells Fargo for the purpose of servicing mortgage loans. These records (which include data compilations, electronically imaged documents, and others) are made at or near the time by, or from information provided or transmitted by, persons with knowledge of the activity and transactions reflected in such records, and are kept in the course of business activity conducte d regularly by 001-FL-V8 Wells Fargo. It is the regular practice of Wells Fargo’s mortgage servicing business to make these records. In connection with making this affidavit, I have acquired knowledge of the matters stated herein by examining these business records. A lost Agreement affidavit has been executed in relation to the Agreement at issue. A copy of the lost Agreement affidavit is attached hereto. That Wells Fargo sent the Borrower(s) a letter, in accordance with the loan documents and the procedures of Wells Fargo for sending such letter. The Borrower(s) have not cured the default. Attached as exhibit(s) hereto are copies of the following business records: A. Payment/balance history, Exhibit A B. Mortgage, Exhibit B C. Demand letter, Exhibit C D. Supporting the total amount due, Exhibit D The borrower has defaulted under the terms of the Equity Line Agreement and Mortgage, the default has not been cured, making the entire balance due and owing in accordance with the terms of the loan, along with accrued interest and Plaintiff is owed the following sums of money: The amount due the Plaintiff on said Agreement through 08/08/2019 is $110,926.39. which breaks down as follows: Principal $83,187.84 Interest accrued interest at a variable rate $19,965.01 Pre-acceleration Late Charges $0.00 Hazard Insurance Disbursements $0.00 Tax Disbursements $7,773.54 Property Inspections/Preservation $0.00 PMI\MIP Insurance $0.00 Other (specify charges/fees) $0.00 Escrow Balance Credit $0.00 Credits to Borrower $0.00 001-FL-V8 Total $110,926.39 A daily variable per diem will accrue on the principal in accordance with the variable rate as set forth in the Agreement 7. Plaintiff has agreed to pay its attorneys a reasonable fee for services rendered in the above- styled litigation. FURTHER AFFIANT SAYETH NOT. — Billie Lucrita Simpson-Viéé Président Loan Documentation Wells Fargo Bank, N.A. 08/09/2019 State of North Carolina County of _Mecitienks ry The Foregoing instrument was swom to and subscribed before me this_47 day of Avg ust » oly »by_ Billie Lucrita simpson vice President Loan Ross mentation, Wells Fargo Bank, N.A., who is personally known to me. Gregory |. Metz NOTARY PUBLIC Gregory bk Metz Mecklenburg County, NC My Commission Expires May 15, 2024 Notary Public, State of North Carolina My Commission expires: os) ps/ aoa y 001-FL-V8 Rass patter} EXHIBIT A Transaction Statement Transaction History DAVID WKREBS 1306 JERICHO RD Statement Period: 11/01/2018 - 02/22/2019 ABINGTON, PA 190013313 STATEMENT SUMMARY Original Bala |AUX Number, ‘Current Balance: $83,187.84 | Statement Date: August 09, 2019 Note Date; 2107/2005 Product LCA TRANSACTIONS. {Proc Date: EN Date. ‘Tran Code’ Action Interest Principal Mise 4 Miss 2 Miso3 Eactow: “Total Pmt = pan Bal 1101/2018 11/01/2018 46R bit Adjustment $0.00 $83,187.84 $0.00, $0.00 $0.00 $0.00 ‘$0.00 $83,187.84 11/01/2018 | 11/04/2018. 246 P. Eo]: Debit Adjusiment 1$16,247.24. $0.00 $0.00} $0.00; % $0.00 553$0.00 £30.00 $83,107.64! 01/03/2019, 01/01/2019 26R Credit Adjustment ($63.82) $0.00 $0.00, $0.00 $0.00 $0.00 $0.00 $83,187.84 “01/08/2019. 01/07/2019 462 Charge Assessment $0.00 $0.00 $8,014.99. $0,007} $0,007 $0.00. ‘$0.00 $83,187.64) 02/22/2019 02/22/2018 362 Foe Waiver $0.00 $0.00 ($241.45) $0.00 $0.00 $0.00 $0.00 $83,187.84 Transaction History DAVID WKREBS 1306 JERICHO RD Statement Period: 11/04/2018 - 02/22/2019 ABINGTON, PA 190013313 . STATEMENT SUMMARY Original Bala $0.00 |AUX Number, Current Balance: $83,187.84 Statement Date: August 09, 2019 Note Date: 02/07/2005 Product | LCA BK SHAW, Ledger Transactions Proc Ds Ef Dats “Tran, Code _ Change Data rest rinelpal Tvo1n018 ‘woveote 46R. $0.00 $83,187.84 $0.00 $0.00 $0.00 $0.00 $0.00 $83,167.64 11/01/201841/01/2018 46 ECONW. $16,247.26 3.00. $0.00, ‘$0.00. $0.00 $0.00 $0.00: $83,167.84 01/03/2019 01/01/2019 36R ‘ADU ($63.82) $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $83,187.84 04/08/2019 01/07/2019 482 TAKA "230.00. $0.06 $3,014.99 $0.00 $0.00 $0.00 $0.00 $83,187.84 02/22/2019 02/22/2019, 362 TAX1 $0.00 $0.00 ($241.45) $0.00 $0.00 $0.00 $0.00 $83,187.84 BK SHAW Interest Rate History. {Effective Date “Interest Rete’ 11/01/2018 05.75000% 04/29/2019" {00000% —? pate ee DAVDR. ELLSPERMANN, CLERK OF COUIRT MARION COUNTY EXHIBIT B ' DATE: 02/24/2005 09:53:17AM FILE #; 2005030407 OR BK 03958 PGS 1287-1297 RECORDING FEES 95.00 WACHOVIA BANK MORT DOC TAX 350.00 PO BOX 50010 ROANOKE, VA 24022 em PREPARED BY: Kathy Broadway RETURN TO: ‘BCS Post-Closing, NC-1120 Wachovia Bank, National Association Business Credit Solutions 8740 Research Drive, NC1120 Charlotte, North Carolina 28262 FLORIDA DOCUMENTARY STAMP TAXES. IN THE AMOUNT OF $350.00 ARE BEING PAID UPON REGORDATION OF THIS INSTRUMENT, SUCH AMOUNT IS BASED UPON THE AMOUNT OF $100,000.00, BEING THE MAXIMUM TAXABLE AMOUNT OF THE INDEBTEDNESS SECURED HEREBY, NO NON-RECURRING INTANGIBLE TAX IS BEING PAID BECAUSE THIS INSTRUMENT SECURES A CONTINGENT OBLIGATION. MORTGAGE AND ASSIGNMENT OF RENTS This MORTGAGE AND ASSIGNMENT OF RENTS (hereafter referred to as “Mortgage") made February 7, 2005, by and between, David -W. Krebs, whose address Is 213 Colonial Heritage, Doylestown, Pennsylvania 18901 ("Mortgagor") and Wachovia Bank, National Association, a national banking association, whose address Is 123 South Broad Street, Philadelphia, Pennsylvania 19109 ("Bank"). WITNESSETH: To secure payment and performance of obligations under a(n) Business Equity Line dated February 7, 2005, and maturing on February 6, 2025, made by David W. Krebs d/b/a David W. Krebs (the "Borrower’} In favor of Bank, and any renewals, extensions, novations, or modifications of the foregoing (collectively the "Obligations"), and In consideration of these promises: and for other consideration, Mortgagor does mortgage, grant and convey unto Bank (for itself and its affiliates), its successors and assigns, all of Mortgagors right, title and interest now owned or hereafter acquired in and to each of the following (collectively, ‘the "Property”): (1) all those certain tracts of land in the City of Ocala, County of Marion, State of Florida described In EXHIBIT A attached hereto and made part hereof (the “Land"); (il) all buildings and Impravements now or hereafter erected on the Land; (ii) all fixtures attached to the Land or any buildings or improvements situated thereon; and (iv) all estates, rights, tenements, hereditaments, privileges, rants, Issues, profits easements, and appt tenances of any kind benefiting the Land; ell means of access to and from the Land, whether public or private; and all water and mineral rights, In the event that Mortgagor Is the owner of a leasehold estate with respect to any portion of the Property and Mortgagor obtains e fee estate in such portions of the Property, then, such fee estate shall automatically, and without further action of any kind on the part of the Mortgagor, be and become subject to the security title and llen of this Agreement. TO HAVE AND TO HOLD the Property and all the estate, right, tille and Interest, In law and in equily, of Mortgagor’s In and to the Property unto Bank, Its successors and assigns, forever. wi mance a Sapr24 Rar 14.0) Book3958/Page1287 © CFN#2005030407 Page 1 of 17 Mortgagor WARRANTS AND REPRESENTS that Mortgagor is lawfully seized of the Property, in fee simple, absolute, that Mortgagor has the legal right to convey and encumber the same, and that the Property Is free and clear of all liens and encumbrances. Mortgagor further warrants and will forever defend all and singular the Property and title thereto to Bank and Bank’s successors and assigns, against the lawful claims of all persons whomsoever. PROVIDED ALWAYS that if ()) all the Obligations (including without limitation, all termination payments and any other amounts due under or In connection with any swap agreements (as defined in 11 U.S.C. § 104, as in effect from time to time) secured hereunder) are paid In full, (li) each and every representation, warranty, agreement, covenant and condition of this Mortgage, and the other Loan Documents, are complied with and ablded by, and (Ili) any and all swap agreements (as defined in 11 U.S.C. § 101, as in effect from time to time) secured hereunder have matured or been terminated, then this Mortgage and the estate hereby created shall cease and be null, vold, and canceled of record. To protect the security of this Mortgage, Mortgagor further represents and agrees with Bank as follows: Payment of Obligations, That the Obligations shall be timely pald and performed. Future Advances. This Mortgage Is given to secure not only existing Obligations, but also future advances, including obligations under swap agreements made, and future swap agreements (as defined in 11 U.S.C. § 101, as In effect from time to time) entered into with Bank or any of Its affillates, within 20 years of the date of this Mortgage to the same extent as If such future advances and swap agreements ‘are made on the date of the execution of this Mortgage. The principal amount that may be so secured may decrease or increase from time to time, but the total amount so secured at any one time shall not exceed $200,000.00, plus all interest, costs, reimbursements, fees and expenses due under this Mortgage and secured hereby. Mortgagor shall not execute any document that impairs or otherwise impacts the priority of any existing or future Obligations secured by this Mortgage. Grant of Security Interest in Personal Property. This Mortgage constitutes a security agreement under the UCC and shall | be deemed to constitute a fixture financing statement. Mortgagor hereby grants a security Interest In ai ny personal property included in the Property. On request of Bank, Mortgagor will execute one or more Financing Statements In form satisfactory to Bank and will pay all costs and expenses of filing the same in all public filing offices, where filing Is deemed desirable by Bank. Bank Is authorized to file Financing Statements relating to the Property without Mortgagor’s signature where permitted by law. Mortgagor appoints Bank a: s its attorney-in-fact to execute such documents necessary to perfect Bank's security Interest on Mortgagor's behalf. The app oIntment Is coupled with an. Interest and shall be Irrevocable as tong as any Obligations remain outstanding. Nothing herein obligates Bank to provide credit In excess of the Obligations. Leases, Subleases and Easements. Mortgagor shall maintain, enforce and cause to be performed ail of the terms and conditions un der any lease, sublease or easement which may constitute a portion of the Property. Morigagor shall not, without the consent of Bank, enter into any new lease of all or any portion of the Property, agreet fo the cancel lation or surrender under any lease of all or any portion of the Properly, agree to prepayment of rents, i issues or profits (other than rent paid at the signing of a the lease or sublease), modify any such lease so as to shorten the term, decrease the rent, accelerate payment of rent, or change the terms o! f any renewal option; and any such put ported new lease, cancellation, surrender, prepayment or mot diflcation made without the consent of Bank shall be void as against Bank. Required Insurance. Mortgagor shall maintain with respect to the Property: (i) during construction of any improvements on the Property, "all-risk" builders risk insurance which must include Loss windstorm, hall damage, fire and vandalism (non-report ing Completed Value with Special Cause of form), In an amount not less than the compl leted replacement value of the improvements under Page 2 fr main.doc 845724 (Rev 14.0) L Book3958/Page1288 | CFN#2005030407 Page 2 of 11 we construction, naming Bank as mortgagee and loss payee; (ii) upon completion of construction, upon occupancy of any improvements, and at all other times, insurance against loss or damage by fire and other casualties and hazards by insurance written on an “all risks” basis, Including malicious mischief, collapse and sinkhole coverage, In an amount not ess than the replacement cost. thereof, including coverage for loss of rents or business interruption if applicable, naming Bank as loss payee and mortgagee; (iil) if the Property is required to be Insured pursuant to the National Flood Reform Act of 1994, and the regulations promulgated thereunder, flood Insurance Is required In the amount equal to the lesser of the loan amount or maximum available under the National Flood Insurance Program, but in no event should the amount of coverage be less than the value of the improved structure, naming Bank as mortgagee and loss payee. If, after closing, the Property (or any part thereof) Is remapped and If the vertical Improvements are determined to be located In a special flood hazard area, Mortgagor must obtain and maintain a flood insurance policy. If, within forty-five (45) days of receipt of notification from Bank that the Property has been reclassified by FEMA as being located in a special flood hazard area, Mortgagor has not provided sufficient evidence of flood insurance, Bank Is mandated under faderal law to purchase flood insurance on behalf of Mortgagor, and Bank will add the associated costs to the. principal balance of the Note. If the.land or any portion thereof is located in a special flood hazard area, this Agreement may be terminated by Bank at its sole option; (iv) as applicable, insurance which complies with the workers’ compensation and employers’ llabllity laws of all states In which Mortgagor shall be required to maintain such Insurance; and (v) liability insurance providing coverage In such amount as Bank may-require but in no event less than $1,000,000.00 combined single fimit, naming Bank as an additional insured; and (vi) such other Insurance as Bank may require from time to time. All property insurance policies shall contain an endorsement or agreement by the Insurer in form satisfactory to Bank that any loss shall be payable In accordance with the terms of such policy notwithstanding any act or negligence of Mortgagor and the further agreement (within both the property and tlabllity policies) of the insurer walving rights of subrogation against Bank, and rights of set-off, counterclaim or deductions agalnst Mortgagor. All Insurance -policies shall be in form, provide coverages, be Issued by companies and be In amounts satisfactory to Bank, At least 30 days prior to the expiration of each such policy, Mortgagor shall furnish Bank with evidence satisfactory to Bank that such policy has been renewed or replaced or Is no longer required hereunder, All such policies shall provide that the policy will not be canceled or materially amended without at least 30 days prior written notice to Bank. In the event Mortgagor falls to provide, maintain, keep in force, and fumish to Bank the policies of insurance required. by this paragraph, Bank may procure such Insurance or single-interest insurance in such amounts, at such premium, for such risks and by such means a: s Bank chooses, at Mortgagor's expense; provided however, Bank shall have no responsibility to obtain any insurance, but if Bank does obtain Insurance, Bank shall have no responsibility to assure that the Insurance obtained shall be adequate or provide any protection to Mortgagor. Insurance Proceeds. After occurrence of any loss to any of the Property, Mortgagor shall give prompt written notice thereof to Bank. In the event of such loss all insurance proceeds, including unearned premiums, shall be payable to Bank, and Mortgagor hereby authorizes and directs any affected insurance company to make payment of such proceeds directly to Bank and not to Bank and Mortgagor Jointly. Bank is hereby authorized by Mortgagor to make proof of loss If not promptly made by Mortgagor, settle, adjust or compromise any claims for loss or damage under any policy or policies of Insurance and Mortgag! jor appoints Bank as its attorney-in-fact to receive an d endorse any insurance proceeds to Bank, which appointment t Is coupled with an Interest and shall be Irrevocable as long as any Obligations remain unsatisfied. Mortgagor shall pay the costs of collection, including attorneys’ fees, of Insurance proceeds payable on account of such damage or destruction. Mortgagor s! hall have no claim against the Insurance proceeds, or be entitled to any portion thereof, and all rights to tt he Insurance proceeds are hereby assigned to Bank as securlty for payment of the Obligations. Pago 3 mi_maindoe 848724 (Rev 14.0) Book3958/Page1289 | CFN#2005030407 Page 3 of 17 cece ae ee In the event of any damage to or destruction of the Property, Bank shall have the option of applying or paying all or part of the insurance proceeds to (i) the Obligations In such order as Bank may determine, (ji) restoration, replacement or repair of the Property in accordance with Bank’s standard construction loan disbursement conditions and requirements, or (iii) Mortgagor. Nothing herein shall be deemed to excuse Mortgagor from restoring, repairing and maintaining the Property as required herein. Minimum Standards. In addition to the requirements set forth in the Loan Documents, all surveys, Insurance, title policles, construction documents, environmental reports, payment and performance bonds, and any other due diligence or additional documents required in connection with this Loan, shall comply with Bank's minimum standards In place from time to time for such documents, which shall be provided In writing by Bank to Borrower upon request. Impositions; Escrow Deposit. Mortgagor will pay all taxes, levies, assessments and other fees and charges imposed upon or which may become a lien upon the Property under any law or ordinance (all of the foregoing collectively “Impositions") before they become delinquent and in any event in the same calendar year in which they first become due. Upon request of Bank, Mortgagor shall add to each perlodic payment required under the Note the amount estimated by Bank to be sufficient to enable Bank to pay, as they come due, all Impositions and Insurance premiums which Mortgagor is required to pay hereunder. Payments requested under this provision shall be supplemented or adjusted as required by Bank from time to time. Such funds may be cominingled with the general funds of Bank and shall not earn interest. Upon the occurrence of a Default, Bank may apply such funds to pay any of the Obligations. Use of Property. Mortgagor shall use and operate, and require its lessees or licensees to use and operate, the Property in compliance with all appiicable laws (including, for example, the Americans with Disablities Act and the Fair Housing Act) and ordinances, covenants, and restrictions, and with all applicable requirements of any lease or sublease now or hereafter affecting the Property. Mortgagor shall not permit any unlawful use of the Property or any use that may give rise to a claim of forfeiture of any of the Property. Mortgagor shall not allow changes in the stated use of Property from that disclosed to Bank at the time of execution hereof. Mortgagor shall not initiate or acquiesce to a zoning change of the Property without prior notice to, and written consent of, Bank. Maintenance, Repairs and Alterations. Mortgagor shall keep and maintain the Property In good condition and repalr and fully protected from the elements to the satisfaction of Bank. Mortgagor will not remove, demolish or structurally alter any of the buildings or other Improvements on the Property (except such alterations as may be required by laws, ordinances or regulations) without the prior written consent of Bank. Mortgagor shall promptly notify Bank in writing of any material loss, damage or adverse condition affecting the Property. Eminent Domain. Should the Property or any interest therein be taken or damaged by reason of any public use or Improvement or condemnation proceeding ("Condemnation"), or should Mortgagor receive any notice or other Information regarding such Condemnation, Mortgagor shall give prompt written notice thereof to Bank. Bank shall be entitled to all compensation, awards and other payments or relief granted In connectlon with such Condemnation and, at its option, may commence, appear In and prosecute In Its own name any action or proceedings relating thereto. Bank shall be entitled to make any compromise or settlement in connection with such taking or damage. All compensation, awards, and damages awarded to Mortgagor related to any Condemnation (the "Proceeds") are hereby assigned to Bank and Mortgagor agrees to execute such further assignments of the Proceeds as Bank may require. Bank shall have the option of applying or paying the Proceeds in the same manner as insurance proceeds as provided herein. Mortgagor appoints Bank as Its attorney-in-fact to recelve and endorse the Proceeds to Bank, which appointment Is coupled with an interest and shall be irrevocable as long as any Obligations remain unsatisfied. Environmental Condition of Property and Indemnity. Mortgagor warrants and represents to Bank, except as reported by Mortgagor to Bank In writing, that: (i) Mortgagor has Inspected and Is ‘S48T24 (Rav 14.0) Page 4 mi_sosindoc Book3956/Page1290 CFN#2005030407 Page 4 of 11 familiar with the environmental condition of the Property; (ii) the Property and Mortgagor, and any ‘occupants of the Property, are In compliance with and shall continue to be in compliance with all applicable federal, state and local laws and regulations intended to protect the environment and public health and safety as the same may be amended from time to time ("Environmental Laws’); (ill) the Property Is not and has never been used to generate, handle, treat, store or dispose of, In any quantity, oil, petroleum products, hazardous or toxic substances, hazardous waste, regulated substancesor hazardous alr pollutants ("Hazardous Materials") in violation of any Environmental Laws; (iv) no Hazardous Materials (including asbestos, mold or lead paint In any form) are located on or under the Property or emanate from the Property; (v) there are no unregistered underground storage tanks on the Property that are subject to any underground storage tank registration laws or regulations; (vi) no notice has been received with regard to any Hazardous Material on the Property; (vii) no action, investigation or proceeding Is pending or to Mortgagor’s knowledge threatened which seeks to enforce any right or remedy against Mortgagor or the Property under any Environmental Law; and (vill) all licenses, permits and other govemmental or regulatory actions necessary for the Property to comply with Environmental Laws shall be obtained and maintained and Mortgagor shall assure compliance therewith. Further, Mortgagor represents to Bank that no portion of the Property Is a protected wetland. Mortgagor agrees to notify Bank Immediately upon recelpt of any citations, warnings, orders, notices, consent agreements, process or clalms alleging or relating to violations of any Environmental Laws or to the environmental condition of the Property and shall conduct and complete all investigations and all cleanup actions necessary to comply with the Environmental Laws and to remove, In accordance with Environmental Laws, any Hazardous Material from the Property. Mortgagor shall indemnify, hold harmless, and defend Bank from and against any and all damages, penalties, fines, claims, sults, liabilities, costs, judgments and expenses, Including attorneys’, consultants’ or experts’ fees of every kind and nature Incurred, suffered by or asserted against Bank as a direct or Indirect result of: (i) representations made by Mortgagor in this Section being or becoming untrue in any material respect; (II) Mortgagor’s violation of or fallure to meet the requirements of any Environmental Laws; or (ili) Hazardous Materials which, while the Property is subject to this Mortgage, exist on the Property. Bank shall have the right to arrange for or conduct environmental inspections of the Property from time to time (Including the taking of soil, water, air or material samples), The cost of such inspections made after Default or which are required by laws or regulations applicable to Bank shall be bome by Mortgagor. However, Mortgagor's Indemnity shall not apply to any negligent or intentional act of Bank which takes place after foreclosure or satisfaction of this Mortgage. These indemnification obligations are in addition to General Indemnification provisions set forth hereafter. Mortgagor's Obligations under this section shall continue, survive and remain In full force and effect notwithstanding the repayment of the Obligations, a foreclosure of or exercise of power of sale under this instrument, a delivery of a deed In Ileu of foreclosure, a cancellation or termination of record of this instrument and the transfer of the Property. Appraisals. Mortgagor agrees that Bank may obtain an appraisal of the Property when required by the regulations of the Federal Reserve Board or the Office of the Comptroller of the Currency, any other regulatory agency or at such other times as Bank may reasonably require. Such appraisals shall be performed by an independent third party appraiser selected by Bank. The cost of such appreisais shall be borne by Mortgagor. If requested by Bank, Mortgagor shall execute an engagement letter addressed to the appraiser selected by Bank. Mortgagor's failure or refusal to sign such an engagement fetter, however, shall not impair Bank's right to obtain such an appraisal. Mortgagor agrees to pay the cost of such appraisal within 10 days after receiving an Invoice for such appralsal, Inspections, Bank, or Its representatives or agents, are authorized to enter at any reasonable time upon any part of the Property for the purpose of inspecting the Property and for the purpose of Performing any of the acts it Is authorized to perform under the terms of this Mortgage. Liens and Subrogation. Mortgagor shall pay and promptly discharge all liens, claims and encumbrances upon the Property. M ortgagor shall have the right to contest in good falth the validity of any such fien, claim or encumbrance, provided: (I) such contest suspends the collection thereof or there 545724 (Rev 14.0) Page 5 milgain soo Book3958/Page1291 CFN#2005030407 Page 5 of 11 - Is no danger of the Property being sold or forfeited while such contest Is pending; (Ii) Mortgagor first deposits with Bank a bond or other security satisfactory to Bank in such amounts as Bank shall reasonably require; and (ili) Mortgagor thereafter diligently proceeds to cause such lien, claim or encumbrance to be removed and discharged. Bank shail be subrogated to any liens, claims and encumbrances against Mortgagor or the Property that are pald or discharged through payment by Bank or with loan proceeds, notwithstanding the record cancellation or satisfaction thereof. Walver of Mortgagor's Rights. To the fullest extent permitted by law, Mortgagor waives the benefit of all laws now existing or that hereafter may be enacted providing for (|) any appraisement before sale of any portion of the Property, (li) in any way extending the time for the enforcement of the collection of the Note or the debt evidenced thereby or any of the other Obligations, and any rights to hearing prior to the exercise by Bank of any right, power, or remedy herein provided to Bank. To the full extent Mortgagor may do so, Mortgagor agrees that Mortgagor will not at any time Insist upon, plead, clalm or seek to take the benefit or advantage of any law now or hereafter in farce providing for any exemption (including homestead exemption), appralsement, valuation, stay, extension ‘or redemption, and Mortgagor for themselves and thelr respective heirs, devisees, representatives, successors and assigns, and for any and all persons claiming any interest in the Property, to the extent permitted by law, hereby waive and release all rights of valuation, appralsement, redemption, stay of execution, the benefit of all exemption laws, notice of election to mature or declare due the whole of the secured indebtedness and marshalling In the event of foreclosure of the liens hereby created. Mortgagor further waives any and all notices Including, without limitation, notice of intention to accelerate and of acceleration of the Obligations. Payments by Bank. In the event of default In the timely payment or performance of any of the Obligations, Bank, at its option and without any duly on its part to determine the validity or necessity thereof, may pay the sums for which Mortgagor Is obligated. Further, Bank may pay such sums as Bank deems appropriate for the protection and maintenence of the Property including, without limitation, sums to pay Impositions and other levies, assessments or liens, maintain Insurance, make repairs, secure the Property, maintain utliity service, intervene In any condemnation and pay attomeys’ fees and other fees and costs to enforce this Mortgage or protect the lien hereof (including foreclosure) or collect the Obligations, without {imitation, including those incurred In any proceeding including Bankruptcy or arbitration, Any amounts so paid shall bear interest at the default rate stated in the Note and shall be secured by this Mortgage. Indemnification. Mortgagor shall protect, indemnify and save harmless Bank from and against all losses, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) (collectively, Damages”) imposed upon, Incurred by or asserted against Bank on account of (I) the-Loan Documents or any failure or alleged fallure of Mortgagor to comply with any of the terms or representations of this Agreement; (i) any claim of loss or damage to the Property or any injury or claim of injury to, or death of, any person or property that may be occasioned by any cause whatsoever pertaining to the Property or the ust e, occupancy or operation thereof, (ili) any failure or alleged failure of Mortgagor to comply with any law, rule or regulation applicable to the Property or the use, occupancy or operation of the Property (including, without limitation, the failure to pay any taxes, fees or ol ther charges), provided that such indemnity shall be effective only to the extent of any Damages that may be sustained by Bank in excess of any net proceeds received by It from any insurance of Mortgagor (other than self-insu ance) with respect to such Damages, (Iv) any Damages whatsoever by reason of any alleged action, obligation or undertaking of Bank relating in any way to or any matter contemplated by th @ Loan Documents, (v) any clalm for brokerage fees or such other commissions relating to the Property or any other Oblig ations, or (vl) any and ail llabllity arising from any leases related to the Property. Ne lothing contained herein shall require Mortgagor to indemnify Bank for any Damages resulting from Bank’: 's gross negligence or its willful and wrongful acts. The Indemnity directors, provided for herein shall survive payment of the Obligations and shall extend to the officers, employees and duly authorized agents of Bank. In the event the Bank incurs any Damages arising out of 848724 (Rev 14.0) Page 6 m_main.doe Book3958/Page1292 | CFN#2005030407 Page 6 of 11 or In any. way relating to the transaction contemplated by the Loan Documents (Including any of the matters referred to in this section), the amounts of such Damages shall be added to the Obligations, shall bear Interest, to the extent permitted by law, at the Interest rate borne by the Obligations from the date Incurred until paid and shall be payable on demand. Assignment of Rents. Mortgagor hereby absolutely assigns and transfers to Bank all the leases, rents, issues and profits of the Property (collectively "Rents"). Although this assignment is effective Immediately, so long as no Default exists, Bank gives to and confers upon Mortgagor the privilege under a revocable license to collect as they become due, but not prior to accrual, the Rents and to demand, receive and enforce payment, give receipts, releases and satisfactions, and sue in the name of Mortgagor for all such Rents. Mortgagor represents there has been no prior assignment of leases or Rents, and agrees not to further assign such leases or Rents. Upon any occurrence of Default, the license granted to Mortgagor herein shall be automatically revoked without further notice to or demand upon Mortgagor, and Bank shall have the right, In its discretion, Ithout notice, by agent or by a receiver appointed by a court, and without regard to the adequacy of any security for the Obligations, (j) to enter upon and take possession of the Property, (ii) notify tenants, subtenants and any property manager to pay Rents to Bank or its designee, and upon receipt of such notice such persons are authorized and directed to make payment as specified In the notice and disregard any contrary direction or instruction by Mortgagor, and (ill) In its own name, sue for or otherwise collect Rents, including those past due, and apply Rents, less costs and expenses of operation and collection, including attorneys’ fees, to the Obligations in such order and manner as Bank may determine or as otherwise provided for herein. Bank's exercise of any one or more of the foregoing rights shall not cure or waive any Default or notice of Default hereunder, Due on Sale or Further Encumbrance or Transfer of an Interest In Mortgagor. Without the prior written consent of Bank In each Instance, Mortgagor shall not (I) sell, convey, transfer or encumber the Property, or any part thereof or interest therein, whether legal or equitable, (Ii) cause or permit any transfer of the Property or any part thereof, whether voluntarily, involuntarily or by operation of law, or (lil) enter into any agreement or transaction to transfer, or accomplish In form or substance a transfer, of the Property. A "transfer" of the Property Includes: (a) the direct or Indirect sale, transfer or conveyance of the Property or any portion thereof or Interest therein; (b) the execution of an installment sale contract or similar instrument affecting all or any portion of the Property; (c) if Mortgagor or any general partner or member of Mortgagor, is a corporation, partnership, limited liability company, trust or other business entity, the transfer (whether in one transaction or a series of transactions) of any stock, partnership, limited llabllity company or other ownership interests In such corporation, partnership, limited liabllity company or entity Including, without limitation, changes in stockholders, partners, members, managers, trustees, beneficiaries, or their respective Interests; (d) if Mortgagor, or any general partner or member of Mortgagor, Is a corporation, the creation or Issuance of new stock by which an aggregate of more than 0% of such corporation's stock shall be vested In a party or parties who are not now stockholders; and (e) an agreement by Mortgagor leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of or the grant of a security Interest In and to any Leases. Bank's consent to any conveyance or encumbrance may be conditioned upon an increase in the Interest rate specified in the Note (or other Obligations), an extension or curtallment of the maturity of the Obligations, or other modification of the Note or this Instrument. Remedies of Bank on Default, Fallure of Mortgagor or any other person liable to timely pay or perform any of the Obligations is a default ("Default") under this Mortgage. Upon the occurrence of Default the following remedies are avallable, without limitation, to Bank: (|) Bank may exercise any or all of Bank's remedies under this Mortgage or other Loan Documents including, without limitation, acceleration of the maturity of all payments and Obligations, other than Obligations under any swap agreements (as defined in 11 U.S.C. § 101, as In effect from time to time) with Bank or any of its affiliates, which shall be due in accordance with and governed by the provisions of sald swap agreements; (ii) Bank may take Immediate possession of the Property or any part thereof (which Mortgagor agrees to surrender to Bank) and manage, control or lease the same to such persons and at such rental as it may deem 545724 (Rev 14.0) Page7 mi_msin.coe Book3958/Page1293 CFN#2005030407 Page 7 of 17 proper and collect and apply Rents to the payment of: (a) the Obligations, together with all costs and attorneys’ fees; (b) all Impositions and any other levies, assessments or Ilens which may be prior In flen or payment to the Obligations, and premiums for insurance, with interest on all such items; and (c) the cost of all alterations, repairs, replacements and expenses Incident to taking and retaining possession of the Property and the management and operation thereof; all in such order or priority as Bank In its sole discretion may determine, The taking of possession shall not prevent concurrent or later proceedings for the foreclosure sale of the Property; (iii) Bank may apply to any court of competent jurisdiction for the appointment of a recelver for all purposes including, without limitation, to manage and operate the Property or any part thereof, and to apply the Rents therefrom as hereinabove provided. In the event