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Muscogee County

STATE OF GEORGIA COUNTY OF MUSCOGEE NOTICE OF SALE UNDER POWER WHEREAS,
Aug 07, 2012 | 53 views | email to a friend | print

STATE OF GEORGIA COUNTY OF MUSCOGEE NOTICE OF SALE UNDER POWER WHEREAS, First Heritage Group, LLC, a Georgia limited liability company (ÒBorrowerÓ), did execute and deliver to Morgan Stanley Mortgage Capital Inc., a New York corporation (ÒOriginal LenderÓ), that certain Deed to Secure Debt and Security Agreement (the ÒSecurity DeedÓ), made as of September 22, 2005, filed and recorded September 26, 2005, in Deed Book 8096, beginning at Page 172, with the Clerk of the Superior Court of Muscogee County, Georgia (the ÒMuscogee County RecordsÓ), as such Security Deed was granted, bargained, sold, conveyed, assigned, transferred and set over by Original Lender to Wells Fargo Bank, N.A., as Trustee for the registered holders of GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates, Series 2006-C1 (ÒInterim HolderÓ), pursuant to that certain Assignment of Deed to Secure Debt and Security Agreement and Assignment of Assignment of Leases and Rents, effective January 31, 2005, filed and recorded April 3, 2006, in Deed Book 8358, beginning at Page 32, in the Muscogee County Records, and as such Security Deed was further granted, bargained, sold, conveyed, assigned, transferred and set over by Interim Holder to 1325 Veterans Parkway Holdings, LLC, a Maryland limited liability company (ÒHolderÓ), pursuant to that certain Assignment of Deed to Secure Debt and Security Agreement and Assignment of Assignment of Leases and Rents, dated August 1, 2012, filed and recorded in the Muscogee County Records (said Security Deed, as so assigned, being hereinafter called the ÒSecurity InstrumentÓ); and WHEREAS, under and pursuant to the Security Instrument, Borrower did thereby irrevocably grant, convey, bargain, sell, pledge, assign, warrant, transfer and convey to Holder, and grant a security interest to Holder, the following property, rights, interests and estates then owned, or thereafter acquired by Borrower (collectively, the ÒPropertyÓ): (a) Land. The real property more particularly described as follows (the ÒLandÓ): All that tract or parcel of land lying situate and being in the City of Columbus, Muscogee County, Georgia, being all of City Lot 377 and part of City Lots 376, 378, 379 and 380, and being more particularly described as follows: BEGIN at the west miter of the intersection of the west right-of-way of Veterans Parkway (variable R/W at this point) and the south right-of-way of Fourteenth Street (99' R/W), and running along miter S52¡ 25' 30ÓE a distance of 15.65' to a point on the west right-of-way of Veterans Parkway (132' R/W at this point); thence along west right-of-way of Veterans Parkway S2¡ 06' 54ÓE a distance of 375.77' to a point; thence S88¡ 04' 45ÓW a distance of 118.75' to an iron pin found; thence S2¡ 06' 45ÓE a distance of 60.0' to an iron pin set on the south line of City Lot 380; thence along the south line of City Lot 380 & 379 S87¡ 40' 38ÓW a distance of 80.2' to an iron pin set; thence N2¡ 05' 18ÓW a distance of 99.04' to an iron pin set; thence S88¡ 12' 43ÓW a distance of 100.0' to an iron pin found on the east right-of-way of Third Avenue (132' R/W); thence along the east right-of-way of Third Avenue N2¡ 05' 18ÓW a distance of 136.33' to an iron pin found; thence N88¡ 57' 43ÓE a distance of 148.94' to an iron pin found; thence N1¡ 24' 32ÓW a distance of 63.60' to an iron pin found; thence N88¡ 08' 00ÓE a distance of 37.25' to a nail on the east face of a brick wall; thence N2¡ 11' 58ÓW along said east face of brick wall a distance of 49.55' to a nail; running thence N88¡ 07' 39ÓW a distance of 16.56' to a point; thence N03¡ 36' 33ÓW a distance of 29.62' to a point; thence N88¡ 07' 44ÓW a distance of 20.15' to the center of a brick party wall; thence N2¡ 01' 00ÓW a distance of 67.96' to an iron pin found on the south right-of-way of Fourteenth Street; thence along south right-of-way line of Fourteenth Street N88¡ 08' 00ÓE a distance of 137.21' to the Point of Beginning; Said tract contains 1.8833 acres or 82,037 square feet; (b) Additional Land. All additional lands, estates and development rights thereafter acquired by Borrower for use in connection with the Land and the development of the Land and all additional lands and estates therein which may, from time to time, by supplemental mortgage or otherwise be expressly made subject to the security title of the Security Instrument; (c) Improvements. The buildings, structures, fixtures, additions, enlargements, extensions, modifications, repairs, replacements and improvements then or thereafter erected or located on the Land (the ÒImprovementsÓ); (d) Easements. All easements, rights-of-way or use, rights, strips and gores of land, streets, ways, alleys, passages, sewer rights, water, water courses, water rights and powers, air rights and development rights, and all estates, rights, titles, interests, privileges, liberties, servitudes, tenements, hereditaments and appurtenances of any nature whatsoever, in any way then or thereafter belonging, relating or pertaining to the Land and the Improvements and the reversion and reversions, remainder and remainders, and all land lying in the bed of any street, road or avenue, opened or proposed, in front of or adjoining the Land, to the center line thereof and all the estates, rights, titles, interests, dower and rights of dower, curtesy and rights of curtesy, property, possession, claim and demand whatsoever, both at law and in equity, of Borrower of, in and to the Land and the Improvements and every part and parcel thereof, with the appurtenances thereto; (e) Fixtures and Personal Property. All machinery, equipment, fixtures (including, but not limited to, all heating, air conditioning, plumbing, lighting, communications, elevator fixtures and beds, bureaus, chiffoniers, chests, chairs, desks, lamps, mirrors, bookcases, tables, rugs carpeting, drapes, draperies, curtains, shades, venetian blinds, screens, paintings, hangings, pictures, divans, couches, luggage carts, luggage racks, stools, sofas, chinaware, linens, pillows, blankets, glassware, foodcarts, cookware, dry cleaning facilities, dining room wagons, keys or other entry systems, bars, bar fixtures, liquor and other drink dispensers, icemakers, radios, television sets, intercom and paging equipment, potted plants, stoves, ranges, refrigerators, laundry machines, dishwashers, garbage disposals, washers and dryers and other customary hotel equipment and other property of every kind and nature whatsoever owned by Borrower, or in which Borrower then had or shall thereafter have an interest), then or thereafter located upon the Land and the Improvements, or appurtenant thereto, and usable in connection with the present or future operation and occupancy of the land and the Improvements and all building equipment, materials and supplies of any nature whatsoever owned by Borrower, or in which Borrower then had or shall thereafter have an interest, then or thereafter located upon the Land and the Improvements, or appurtenant thereto, or usable in connection with the present or future operation and occupancy of the Land and the Improvements (collectively, the ÒPersonal PropertyÓ) and the right, title and interest of Borrower in and to any of the Personal Property which may be subject to any security interests, as defined in the Uniform Commercial Code, as adopted and enacted by the state or states where any of the Property is located and all proceeds and products of the above; (f) Leases and Rents. All leases, subleases and other agreements affecting the use, enjoyment or occupancy of the Land and/or the Improvements theretofore or thereafter entered into and all extensions, amendments and modifications thereto, whether before or after the filing by or against Borrower of any petition for relief under 11 U.S.C. Section101 et seq., as the same may be amended from time to time (the ÒBankruptcy CodeÓ) (the ÒLeasesÓ) and all right, title and interest of Borrower, its successors and assigns therein and thereunder, including, without limitation, any guaranties of the lessees' obligations thereunder, cash or securities deposited thereunder to secure the performance by the lessees of their obligations thereunder and all rents, additional rents, early termination fees and payments and other termination fees and payments, revenues, issues and profits (including all oil and gas or other mineral royalties and bonuses) from the Land and the Improvements, including, without limitation, all revenues and credit card receipts collected from guest rooms, restaurants, bars, meeting rooms, banquet rooms and recreational facilities, all receivables, customer obligations, installment payment obligations and other obligations then existing or thereafter arising or created out of the sale, lease, sublease, license, concession or other grant of the right of the use and occupancy of property or rendering of services by Borrower or any operator or manager of the hotel or the commercial space located in the Improvements or acquired from others (including, without limitation, from the rental of any office space, retail space, guest rooms or other space, halls, stores, and offices, and deposits securing reservations of such space), license, lease, sublease and concession fees and rentals, health club membership fees, food and beverage wholesale and retail sales, service charges and vending machine sales, whether paid or accruing before or after the filing by or against Borrower of any petition for relief under the Bankruptcy Code (the ÒRentsÓ) and all proceeds from the sale or other disposition of the Leases and the right to receive and apply the Rents to the payment of the Debt (as defined in the Security Instrument); (g) Insurance Proceeds. All proceeds of and any unearned premiums on any insurance policies covering the Property, including, without limitation, the right to receive and apply the proceeds of any insurance, judgments, or settlements made in lieu thereof, for damage to the Property; (h) Condemnation Awards. All awards or payments, including interest thereon, which may theretofore and thereafter be made with respect to the Property, whether from the exercise of the right of eminent domain (including but not limited to any transfer made in lieu of or in anticipation of the exercise of the right), or for a change of grade, or for any other injury to or decrease in the value of the Property; (i) Tax Certiorari. All refunds, rebates or credits in connection with a reduction in real estate taxes and assessments charged against the Property as a result of tax certiorari or any applications or proceedings for reduction; (j) Conversion. All proceeds of the conversion, voluntary or involuntary, of any of the foregoing including, without limitation, proceeds of insurance and condemnation awards, into cash or liquidation claims; (k) Rights. The right, in the name and on behalf of Borrower, to appear in and defend any action or proceeding brought with respect to the Property and to commence any action or proceeding to protect the interest of Holder in the Property; (l) Agreements. All agreements, contracts, certificates, instruments, franchises, permits, licenses, plans, specifications and other documents, then or thereafter entered into, and all rights therein and thereto, respecting or pertaining to the use, occupation, construction, management or operation of the Land and any part thereof and any Improvements or respecting any business or activity conducted on the Land and any part thereof and all right, title and interest of Borrower therein and thereunder, including, without limitation, the right, upon the occurrence and during the continuance of an Event of Default (as defined in the Security Instrument), to receive and collect any sums payable to Borrower thereunder; (m) Franchise Agreement. To the extent assignable, that certain franchise agreement dated September 22, 2005 between Choice Hotels International, Inc., as franchisor, and Borrower, as franchisee; (n) Hotel Revenues. All revenues, credit card receipts, income, accounts, accounts receivable and other receivables including, without limitation, revenues, credit card receipts, income, receivables and accounts relating to or arising from rentals, rent equivalent income, income and profits from guest rooms, meeting rooms, banquet rooms and recreational facilities, restaurants, bars, other food and beverage facilities, vending machines, telephone and television systems, guest laundry, the provision or sale of other goods and services, concession fees and rentals, health club membership fees, food and beverage wholesale and retail sales, and any other items of revenue, receipts or other income as identified in the Uniform System of Accounts for Hotels, 9th Edition as published by the Hotel Association of New York City, Inc. (1996), as from time to time amended; (o) Intangibles. All trade names, trademarks, servicemarks, logos, copyrights, goodwill, books and records and all other general intangibles relating to or used in connection with the operation of the Property; and (p) Other Rights. Any and all other rights of Borrower in and to the items set forth in Subsections (a) through (m) above. WHEREAS, the Security Instrument secures, in part, that certain loan (the ÒLoanÓ) to Borrower made by Original Lender, as evidenced by that certain Promissory Note (the ÒNoteÓ), dated September 22, 2005, in the original principal amount of $3,500,000.00, as endorsed and assigned to Holder; and WHEREAS, defaults and Events of Default 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 Other Security Documents (as defined in the Security Instrument); and WHEREAS, by reason of such defaults and Events of Default, the Debt was accelerated and declared immediately due and payable, and is 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 Property, the Escrow Fund (as defined in the Security Instrument), and any and all other 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 and the Security Instrument for payment of taxes, assessments and other similar charges levied against the Property, insurance, capital improvements, replacements, tenant improvements, leasing commissions or otherwise (collectively, the ÒFundsÓ) have been or shall be applied by Holder toward payment of the Debt and any other amounts due under the Note, the Security Instrument and any Other Security Documents, to the extent provided in such documents; 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 the Property (less and except the Funds) for sale, at public sale to the highest bidder, for cash on that certain first Tuesday in September, being September 4, 2012, during the legal hours for sale, before the courthouse door in Muscogee County, Georgia. The Property will be sold subject to the following: 1. All outstanding taxes and assessments, and any additional taxes which result from a reassessment of the Property; 2. Party Wall in the northwest corner of the Property, as shown on the survey prepared by The Orin Group, LLC, Job No. 20050005-1, dated August 7, 2005, and last revised September 16, 2005; 3. Right-of-Way Easement from Bush Development Co., Inc., James A. Bush to Georgia Power Company, dated March 19, 1959, filed for record March 21, 1959, recorded in Deed Book 694, Page 250, Muscogee County Records; 4. Easement from Follow Me Investments, Inc. to Georgia Power Company, recorded in Deed Book 1017, Page 23, Muscogee County Records; 5. Right-of-Way Easement from Cindy's Inc. to Georgia Power Company, dated July 28, 1978, filed for record August 9, 1978, recorded in Deed Book 1751, Page 97, Muscogee County Records; 6. All valid zoning ordinances; and 7. 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 Debt remaining in default and the aforesaid defaults and Events of Default continuing, the sale of the Property (less and except the 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 Property (less and except the Funds) will be sold on an Òas is, where isÓ 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 Property is presently owned by Borrower, subject to the aforesaid interests of Holder and the matters set forth herein, and Borrower is the party in possession of the Property, subject to the aforesaid interests. The notice to Borrower, pursuant to O.C.G.A. Section44-14-162.2, has been provided by Holder to Borrower in accordance with said O.C.G.A. Section44-14-162.2. The undersigned may sell the Property (less and except the Funds) or any part of the Property (less and except the Funds) in such manner and order as Holder may elect and may sell that portion of the Property (less and except the Funds), which, under the laws of the State of Georgia, constitutes an estate or interest in real estate separately from that portion of the Property (less and except the 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 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. 1325 VETERANS PARKWAY HOLDINGS, LLC, a Maryland limited liability company, as agent and attorney-in-fact for FIRST HERITAGE GROUP, LLC, a Georgia limited liability company By: Wells Fargo Bank, N.A., as Trustee for the registered holders of GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates, Series 2006-C1, sole Member/Manager of Holder By: CWCapital Asset Management LLC, a Massachusetts limited liability company, solely in its capacity as Special Servicer for sole Member/Manager of Holder By: its attorney-at-law: /Eric J. Berardi/ Eric J. Berardi, Esq. Kilpatrick Townsend & Stockton LLP 1100 Peachtree Street, Suite 2800 Atlanta, Georgia 30309-4530 404-815-6500 Pub:Aug.7,14,21&28,2012(2481883)
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