Notice of Sale
Notice of Sale Under Power
Georgia, Barrow County
WHEREAS, SULLIVAN KNIGHT MANAGEMENT, LLC, a Georgia limited liability company ( Borrower ), did execute and deliver to Principal Commercial Funding, LLC, a Delaware limited liability company ( Original Lender ) that certain Deed to Secure Debt, Assignment of Leases and Rents, Fixture Filing and Security Agreement (the Security Deed ), filed January 2, 2007, in Deed Book 1264, beginning at Page 0524, with the Clerk of Superior Court of Barrow County, Georgia (the Barrow County Records ), as such Security Deed was assigned by Original Lender to Principal Commercial Funding II, LLC, a Delaware limited liability company ( First Interim Holder ), pursuant to an Assignment of Deed to Secure Debt, Assignment of Leases and Rents, Fixture Filing and Security Agreement, filed June 3, 2008, in Deed Book 1405, beginning at Page 0023, in the Barrow County Records, as such Security Deed was further conveyed, transferred and assigned by First Interim Holder to LaSalle Bank National Association, as Trustee for the holders of Bear Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-PWR15 ( Second Interim Holder ), pursuant to an Assignment of Deed to Secure Debt, Assignment of Leases and Rents, Fixture Filing, and Security Agreement, filed July 15, 2008, in Deed Book 1413, beginning at Page 0356, in the Barrow County Records, as corrected by that certain Corrective Assignment of Deed to Secure Debt, Assignment of Leases and Rents, Fixture Filing, and Security Agreement, filed August 25, 2008, in Deed Book 1419, beginning at Page 0695, in the Barrow County Records, and as further granted, sold, assigned, transferred and conveyed by Second Interim Holder to U.S. Bank National Association, as Trustee, as successor in interest to Bank of America, N.A., as Trustee, as successor by merger to LaSalle Bank National Association, as Trustee for the registered holders of Bear Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-PWR15 ( Holder ), pursuant to that certain Assignment of Deed to Secure Debt, Assignment of Leases and Rents, Fixture Filing and Security Agreement, recorded November 1, 2011, in Deed Book 1597, beginning at Page 555, in the Barrow County Records (said Security Deed, as so assigned being hereinafter called the Security Instrument ); and
WHEREAS, under and pursuant to the Security Instrument, Borrower did thereby grant, bargain, sell, transfer, assign, set over, and convey unto Holder, its successors and assigns forever, that certain real estate and all of Borrower s estate, right, title and interest therein, located in the county of Barrow, state of Georgia, more particularly described as follows (the Land ):
ALL THAT TRACT OR PARCEL OF LAND lying and being in the 243rd District, G.M., Barrow County, and being more particularly described as follows:
Beginning at a point at the intersection of the southwesterly right-of-way of May Street (a 60-foot right-of-way) and the southeasterly right-of-way of Wade Street (a 60-foot right-of-way) and thence proceeding southeasterly along said southwesterly right-of-way of May Street South 56 degrees 26 minutes 38 seconds East a distance of 163.00 feet to a 3/4 open top pipe; thence continuing southwesterly along said southwesterly right-of-way of May Street South 56 degrees 19 minutes 56 seconds East a distance of 87.95 feet to a point; thence continuing along said southwesterly right-of-way of May Street South 57 degrees 00 minutes 55 seconds East a distance of 96.17 feet to the mitered corner found at the intersection with the northwesterly right-of-way of Williams Street (a 30-foot right-of-way); thence leaving said southwesterly right-of-way of May Street proceeding along said mitered corner South 17 degrees 26 minutes 58 seconds East a distance of 33.58 feet to a point on said northwesterly right-of-way of Williams Street; thence proceeding southwesterly along said northwesterly right-of-way of Williams Street South 43 degrees 45 minutes 15 seconds West a distance of 155.40 feet to a point; thence leaving said northwesterly right-of-way of Williams Street and proceeding North 53 degrees 01 minutes 51 seconds West a distance of 81.64 feet to a point; thence continuing North 55 degrees 43 minutes 56 seconds West a distance of 38.85 feet to a point; thence South 36 degrees 04 minutes 22 seconds West a distance of 65.05 feet to a point on the northeasterly right-of-way of a 20 foot alley; thence northwesterly along said northeasterly right-of-way of said 20 foot alley North 53 degrees 43 minutes 02 seconds West a distance of 70.00 feet to a point; thence leaving said northeasterly right-of-way North 36 degrees 08 minutes 15 seconds East a distance of 62.59 feet to point; thence North 36 degrees 08 minutes 15 seconds East a distance of 38.37 feet to a 3/4 open top pipe; thence North 54 degrees 15 minutes 00 seconds West a distance of 158.11 feet to a point on the southeasterly right-of-way of Wade Street; thence North 33 degrees 53 minutes 44 seconds East a distance of 122.70 feet to point at the intersection with the southwesterly right-of-way of May Street and THE TRUE POINT OF BEGINNING, being improved property and containing 1.344 acres, more or less, all shown as Tracts Two (2), Three (3), and Four (4) on the survey for Sullivan Knight Management, LLC, dated December 15, 2006, by Brett Chandler, GRLS No. 2816, of Brett Chandler and Associates;
WHICH LAND, together with the following described property, rights and interests, is collectively referred to herein and therein as the Premises :
A. All of Borrower s rights, title and interest as Lessor in and to all leases and all other tenancies, rental arrangements, subleases, and guarantees of the performance or obligations of any tenants thereunder affecting the Premises, or any part thereof, then existing or which may thereafter be executed at any time in the future during the life of the Security Instrument, and all amendments, extensions and renewals of said leases, subleases, and guarantees and any of them, all of which are hereinafter called the Leases and all rents or other income or payments, regardless of type or source of payment (including but not limited to common area maintenance charges, lease termination payments, purchase option payments, refunds of any type, prepayment of rents, settlements of litigation or settlements of past due rents) which may then or thereafter be or become due or owing under the Leases, and any of them, or on account of the use of the Premises, all of which are hereinafter called the Rents , which are pledged and assigned absolutely and directly (and not merely collaterally). It was intended thereby to establish a present and complete transfer of all the Leases and all rights of the lessor thereunder and all the Rents unto Holder, with the right, but without the obligation, to collect all of said Rents, which may become due during the life of the Security Instrument;
B. All and singular the tenements, hereditaments, easements, appurtenances, passages, waters, water courses, riparian rights, and other water rights, whether or not adjudicated, whether tributary or nontributary and whether evidenced by deed, water stock, permit or otherwise, sewer rights, rights in trade names and any name under which the Improvements were then or thereafter operated, licenses, permits and contracts, and all other rights of any kind or character in any way then or thereafter appertaining to the Land and Improvements, including but not limited to, homestead and any other claim at law or in equity as well as any after-acquired title, franchise or license and the reversion and reversions and remainder and remainders thereof;
C. All right, title and interest of Borrower in and to any and all buildings and improvements of every kind and description then or thereafter erected or placed on the said Land and all materials intended for construction, reconstruction, alteration and repairs of such buildings and improvements then or thereafter erected thereon, all of which materials shall be deemed to be included within the Premises immediately upon the delivery thereof to the Premises, and all improvements and fixtures then or thereafter owned by Borrower and attached to or contained in and used in connection with the Premises and appurtenances thereto; and all items of furniture, furnishings, machinery, equipment and personal property owned by Borrower used or useful in the operation of the Premises; and all renewals or replacements of all of the aforesaid property owned by Borrower or articles in substitution therefore, whether or not the same are or shall be attached to said buildings or improvements in any manner (collectively, the Improvements ); it being mutually agreed, intended and declared that all the aforesaid property owned by Borrower and placed by it on the Land or used in connection with the operation or maintenance of the Premises shall, so far as permitted by law, be deemed to form a part and parcel of the Land and for the purpose of the Security Instrument to be Land and covered by the Security Instrument, and as to any of the property aforesaid which does not form a part and parcel of the Land or does not constitute a fixture (as such term is defined in the Uniform Commercial Code ( UCC )) the Security Instrument and the other Loan Documents (as defined in the Security Instrument) (the terms of which grant a security interest in personal property or real property, the proceeds of which may become personal property) are each thereby made, declared and deemed to be, as well, a security agreement under the UCC for the purpose of creating a security interest in all items, including, but not limited to all property and rights which Borrower may grant, assign, bargain, sell, transfer, set over, deliver, or otherwise convey to Holder, as secured party, under the terms of the Security Instrument or any of the other Loan Documents, including any and all proceeds thereof (as used therein, Borrower shall mean Debtor under the UCC and Holder shall mean Secured Party under the UCC), and the Security Instrument shall be effective as a financing statement filed as a fixture filing with respect to all fixtures included in the Premises. Borrower thereby grants a security interest in and to any of the Premises governed by the UCC to Holder and appoints Holder as its attorney-in-fact to execute such documents necessary to perfect Holder s security interest and Borrower authorizes Holder at any time until the Indebtedness (as defined in the Security Instrument) is paid in full, to prepare and file, at Borrower s expense, any and all UCC financing statements, amendments, assignments, terminations and the like, necessary to create and/or maintain a prior security interest in such property all without Borrower s execution of the same. Furthermore, upon a default under the Loan Documents, Holder will, in addition to all other remedies provided for in the Loan Documents, have the remedies provided for under the UCC in effect in the state in which the Premises is located;
D. All right, title and interest of Borrower, then or thereafter acquired, in and to any and all strips and gores of land adjacent to and used in connection with the Premises and all right, title and interest of Borrower, then owned or thereafter acquired, in, to, over and under the ways, streets, sidewalks and alleys adjoining the Premises;
E. All funds then or thereafter held by Holder under any property reserves agreement (including any proceeds derived from any letter of credit) or escrow security agreement or under any of the terms thereof or of the Loan Documents;
F. All of Borrower s payment intangibles, letter of credit rights, interest rate cap agreements, tenant in common agreement rights, and any other contract rights of Borrower related in any manner to the ownership, operation, or management of the Premises, as well as any and all supporting obligations, and all proceeds, renewals, replacements and substitutions thereof; and
G. All funds, accounts and proceeds of any of the foregoing whether or not such funds, accounts or proceeds thereof are held by Holder under the terms of any of the Loan Documents, including, but not limited to bankruptcy claims of Borrower against any tenant at the Premises, and any proceeds thereof; proceeds of any Rents, insurance proceeds from all insurance policies required to be maintained by Borrower under the Loan Documents, and all awards, decrees, proceeds, settlements or claims for damage then or thereafter made to or for the benefit of Borrower by reason of any damage to, destruction of or taking of the Premises or any part thereof, whether the same shall be made by reason of the exercise of the right of eminent domain or by condemnation or otherwise.
WHEREAS, the Security Instrument secures, in part, that certain loan to Borrower made by Original Lender as evidenced by that certain Secured Promissory Note dated December 29, 2006 in the original principal amount of $2,500,000.00 (the Note ); and
WHEREAS, defaults and Events of Default (as defined in the Security Instrument) have occurred and are continuing under the Note and the Security Instrument due to the failure of Borrower to pay to Holder when due the amounts due under the Note, the Security Instrument and/or the other Loan Documents; and
WHEREAS, by reason of such defaults and Events of Default, the Indebtedness and all other sums owing to Holder under the Note, the Security Instrument and the other Loan Documents were accelerated and declared immediately due and payable and are hereby accelerated and declared immediately due and payable, and the Security Instrument has become, is, and is hereby subject to foreclosure as provided by law, the Note and the Security Instrument; and
WHEREAS, prior to the consummation of the exercise of the power of sale contained in the Security Instrument and the consummation of the foreclosure sale of the Premises, any and all funds, cash, letters of credit and other sums, if any, held by Holder for or on behalf of Borrower, in escrow, in reserve or in other accounts established under the Note, the Security Instrument and any other Loan Document for payment of taxes, assessments and other similar charges levied against the Premises, insurance, capital improvements, replacements, tenant improvements, leasing commissions or otherwise (collectively, the Funds ) have been or shall be applied by Holder toward payment of the Indebtedness and any other amounts due under the Note, the Security Instrument and any other Loan Documents, to the extent provided in the Loan Documents; and
WHEREAS, also by reason of the occurrence and continuation of such defaults and Events of Default, a Verified Complaint and Petition for Appointment of a Receiver (the Complaint ) was filed on December 13, 2010 in the Superior Court of Hall County, State of Georgia, Civil Action File No. 2010CV4174B, and on December 14, 2010 said Court issued its Consent Order Appointing Receiver (the Order ) appointing GlassRatner Management & Realty Advisors, LLC, a Georgia limited liability company, as receiver (the Receiver ) of Borrower s assets including, without limitation, the Premises, which Order was filed on December 15, 2010 and which Order: (a) permitted the Holder to proceed with and exercise any and all available rights and remedies under the Loan Documents, including, without limitation, non-judicial foreclosure, power of sale or as otherwise provided under the Loan Documents, should the holder of the Loan Documents so elect; and (b) if and when judicial or non-judicial foreclosure proceedings shall have been consummated, the Receiver shall thereupon be discharged and relieved from the Order, except that the Receiver shall promptly remit to Holder all funds in any account maintained by the Receiver pursuant to the Order (collectively, the Receiver s Funds );
NOW, THEREFORE, under and pursuant to the power of sale contained in the Security Instrument and according to the terms of the Security Instrument and the laws in such cases made and provided, Holder will expose all or any part of the Premises (less and except the Funds and the Receiver s Funds) for sale, at public sale to the highest bidder, for cash on that certain first Wednesday in January, being January 2, 2013, during the legal hours for sale, before the courthouse door in Barrow County, Georgia. The Premises will be sold subject to the following:
1. All outstanding taxes and assessments, and any additional taxes which result from a reassessment of the Premises;
2. Rights of tenants in possession under unrecorded Leases, if any, that are senior to the Security Instrument;
3. All matter shown on that Survey for Sullivan Knight Management, LLC, dated August 15, 2005, last revised December 28, 2006, by Brett Chandler, GRLS No. 2816, of Brett Chandler and Associates;
4. All valid zoning ordinances; and
5. All other, if any, easements, limitations, reservations, covenants, restrictions, deeds to secure debt, liens and other encumbrances and matters of public records to which the Security Instrument is junior and subordinate in terms of priority under the laws of the State of Georgia.
The Indebtedness remaining in default and the aforesaid defaults and Events of Default continuing, the sale of the Premises (less and except the Funds and the Receiver s Funds) under and pursuant to the power of sale contained in the Security Instrument will be made for the purpose of applying the proceeds thereof, as provided for in the Security Instrument and pursuant to applicable law.
The Premises (less and except the Funds and the Receiver s Funds) will be sold on an as is, where is basis without recourse against Holder and without representation or warranty of any kind or nature whatsoever with respect thereto, with no assurance afforded as to the exact acreage of the Land.
To the best of Holder s knowledge and belief, the Premises is presently owned by Borrower, subject to the aforesaid interests of Holder, the Order and the matters set forth herein, and Borrower is the party in possession of the Premises, subject to the aforesaid interests.
The notice to Borrower, pursuant to O.C.G.A. 44-14-162.2, has been provided by Holder to Borrower in accordance with said O.C.G.A. 44-14-162.2.
The undersigned may sell the Premises (less and except the Funds and the Receiver s Funds) or any part of the Premises (less and except the Funds and the Receiver s Funds) in such manner and order as Holder may elect and may sell that portion of the Premises (less and except the Funds and the Receiver s Funds), which, under the laws of the State of Georgia, constitutes an estate or interest in real estate separately from that portion of the Premises (less and except the Funds and the Receiver s Funds), which, under the laws of the State of Georgia, constitutes personalty and not an interest in the real estate, in which case separate bids will be taken therefor, or collectively in a single sale or lot, in which case a single bid will be taken therefor. Notice of the undersigned s intent regarding the above shall be given by announcement made at the commencement of the public sale.
The recitals set forth hereinabove are hereby incorporated in and made a part of this Notice of Sale Under Power.
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, AS SUCCESSOR IN INTEREST TO BANK OF AMERICA, N.A., AS TRUSTEE, AS SUCCESSOR BY MERGER TO LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE REGISTERED HOLDERS OF BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-PWR15, as agent and attorney-in-fact for SULLIVAN KNIGHT MANAGEMENT, LLC, a Georgia limited liability company
By: C-III Asset Management LLC, a Delaware limited liability company, in its capacity as Special Servicer to Holder pursuant to that certain Pooling and Servicing Agreement dated as of March 1, 2007
By: its attorney-at-law:
/S. Bob Stupar/
S. Bob Stupar, Esq.
Kilpatrick Townsend & Stockton LLP
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309-4530