ECP Commercial I LLC v. Boaz Shopping Center LLC et al
Filing
1
Agreed ORDER Appointing Receiver. $46.00; Receipt Number 073196. by Thomas Anderson, United States District Judge, Western District of Tennessee on 2/19/2016. (Attachments: # 1 Exhibit 1 Part 1, # 2 Exhibit 1 Part 2, # 3 Exhibit 1 Part 3, # 4 Exhibit 1 Part 4, # 5 Exhibit 1 Part 5, # 6 Exhibit 1 Part 6, # 7 Exhibit 2) (dbera, )
October 15, 2010, and as amended and restated pursuant to the Fourth Amended and Restated
Promissory Note #3 dated as of the date hereof (collectively, "Note #3") evidences the same
indebtedness evidenced by the promissory note(s) for the Project Loan for the Project commonly
known as Sweden, New York. The Amended and Restated Promissory Note #1 dated April 15,
2009, as further amended and restated pursuant to a Second Amended and Restated Promissory
Note #1dated as of July 15, 2010, as further amended and restated pursuant to a Third Amended
and Restated Promissory Note #1 dated as of October 15, 2010, and as amended and restated
pursuant to the Fourth Amended and Restated Promissory Note #1 dated as of the date hereof
(collectively, "Note #1") evidences the same indebtedness evidenced by the promissory notes for
all other Project Loans except for the Project Loans for the Project commonly known as Evans
Mills, New York and the Project commonly known as Sweden, New York. This Note, Note #1
and Note #3 are referred to herein as the "Aggregate Note." Payment of this Note is governed by
the Loan Agreement. The terms of the Loan Agreement are incorporated herein by express
reference as if fully set forth herein. All of the undersigned are Borrowers, as that term is
defined in the Loan Agreement, and agree to comply with and be bound by the terms of the Loan
Agreement. To the extent that any of the undersigned are Borrowers of Project Loans which
predate the Original Loan Agreement, for purposes of clarification, such Borrowers agree and
acknowledge that the Loan Agreement shall govern in the event of any conflict between the
terms of the Loan Agreement and any loan agreements entered into with respect to such Project
Loans prior to the Original Loan Agreement (the "Prior Agreements"). At the request of Payee,
such Borrowers shall execute and deliver within fifteen (15) days of written request any
documents confirming the terms of the Prior Agreements that are superseded by the Loan
Agreement.
The Spectra Group, Inc., a Tennessee corporation ("Spectra"), in its capacity as general
partner of Alice Shopping Center Unit Two Ltd., a Texas limited partnership, Longview
Shopping Center LP, a Texas limited partnership, and Carrollton Shopping Center LTD, a Texas
limited partnership shall have no personal liability under this Note by reason of the joint and
several liability of the parties thereto. The foregoing shall in no way affect or impair the liability
of Spectra under its guaranty of, among other things, the indebtedness evidenced by this Note
pursuant to the Guaranty of even date herewith.
1.
Interest. The principal amount hereof outstanding from time to time shall bear
interest until paid in full at the Applicable Rate, but in no event less than the Floor Interest Rate.
2.
Monthly Payments. Interest shall be payable in arrears on the fifteenth (15th)
day of each calendar month after the date hereof up to and including the Maturity Date in the
amount of all interest accrued during the immediately preceding calendar month. In addition to
interest payments, the undersigned shall make principal payments equal to Nine Thousand Six
Hundred Fifty-Three and 62/100 Dollars ($9,653.62) commencing on the fifteenth of each
calendar month after the date hereof up to and including the Maturity Date. All payments on
account of the indebtedness evidenced by this Note shall be made to Payee not later than
11:00 a.m. Cleveland, Ohio time on the day when due in lawful money of the United States and
shall be first applied to late charges, costs of collection or enforcement and other similar amounts
due, if any, under this Note, the Loan Agreement, the Project Documents and any other
documents entered into by Maker or others in connection with the indebtedness evidenced
hereby (the Loan Agreement, the Project Documents and such other documents being
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collectively referred to herein as the "Loan Documents"), then to interest due and payable
hereunder and the remainder to principal due and payable hereunder. All payments under the
Aggregate Note, except principal payments, shall be applied prorata to the Aggregate Note based
upon the outstanding principal amounts thereof. All principal payments under the Aggregate
Note shall be applied first to Note #1 and then prorata to this Note and Note #3 (except in the
event of release of the Project with respect to either of this Note or Note #3, in which event the
principal payment shall be applied to the note for such Project).
3.
Maturity Date. The indebtedness evidenced hereby shall mature on the Maturity
Date. On the Maturity Date, the entire outstanding principal balance hereof, together with
accrued and unpaid interest and all other sums evidenced by this Note, shall, if not sooner paid,
become due and payable.
4.
General Provisions.
(a)
Regardless of whether an Adjusted LIBOR Rate would otherwise then be
in effect, in the event (i) the principal balance hereof is not paid when due whether by
acceleration or upon the Maturity Date or (ii) an Event of Default exists, then the principal
balance hereof shall bear interest from and after the Default Rate. In addition, for any
installment (exclusive of the payment due upon the Maturity Date) which is not paid within ten
(10) days after the due date thereof a late charge equal to the greater of (a) ten percent (10%) of
the amount of such installment or (b) $25 shall be due and payable to the holder of this Note on
demand to cover the extra expense involved in handling delinquent payments.
(b)
Maker agrees that the obligation evidenced by this Note is an exempt
transaction under the Truth-in-Lending Act, 15 U.S.C. § 1601, et seq.
(c)
The parties hereto intend and believe that each provision in this Note
comports with all applicable local, state and federal laws and judicial decisions. However, if any
provision or provisions, or if any portion of any provision or provisions, in this Note is found by
a court of law to be in violation of any applicable local, state or federal ordinance, statute, law,
administrative or judicial decision, or public policy, and if such court should declare such
portion, provision or provisions of this Note to be illegal, invalid, unlawful, void or
unenforceable as written, then it is the intent of all parties hereto that such portion, provision or
provisions shall be given force to the fullest possible extent that they are legal, valid and
enforceable, that the remainder of this Note shall be construed as if such illegal, invalid,
unlawful, void or unenforceable portion, provision or provisions were not contained therein, and
that the rights, obligations and interest of Maker and the holder or holders hereof under the
remainder of this Note shall continue in full force and effect. All agreements herein are
expressly limited so that in no contingency or event whatsoever, whether by reason of
advancement of the proceeds hereof, acceleration of maturity of the unpaid principal balance
hereof, or otherwise, shall the amount paid or agreed to be paid to the holders hereof for the use,
forbearance or detention of the money to be advanced hereunder exceed the highest lawful rate
permissible under applicable usury laws. If, from any circumstances whatsoever, the fulfillment
of any provision hereof, at the time performance of such provision shall be due, shall involve
transcending the limit of validity prescribed by law which a court of competent jurisdiction may
deem applicable hereto, then, ipso facto, the obligation to be fulfilled shall be reduced to the
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limit of such validity and if from any circumstance the holder hereof shall ever receive as interest
an amount which would exceed the highest lawful rate, such amount which would be excessive
interest shall be applied to the reduction of the unpaid principal balance due hereunder and not to
the payment of interest.
(d)
This Note and all provisions hereof shall be binding upon Maker and all
persons claiming under or through Maker, and shall inure to the benefit of Payee, together with
its successors and assigns, including each owner and holder from time to time of this Note. The
obligations of Maker under this Note are joint and several.
(e)
Time is of the essence as to all dates set forth herein.
(f)
Maker agrees that its liability shall not be in any manner affected by any
indulgence, extension of time, renewal, waiver, or modification granted or consented to by
Payee; and Maker consents to any indulgences and all extensions of time, renewals, waivers, or
modifications that may be granted by Payee with respect to the payment or other provisions of
this Note, and to any substitution, exchange or release of the collateral, or any part thereof, with
or without substitution, and agrees to the addition or release of any makers, endorsers,
guarantors, or sureties, all whether primarily or secondarily liable, without notice to Maker and
without affecting its liability hereunder.
(g)
Maker hereby waives and renounces for itself, its successors and assigns,
all rights to the benefits of any statute of limitations and any moratorium, reinstatement,
marshalling, forbearance, valuation, stay, extension, redemption, appraisement, or exemption and
homestead laws now provided, or which may hereafter be provided, by the laws of the United
States and of any state thereof against the enforcement and collection of the obligations
evidenced by this Note.
(h)
If this Note is placed in the hands of attorneys for collection or is collected
through any legal proceedings, Maker promises and agrees to pay, in addition to the principal,
interest and other sums due and payable hereon, all costs of collecting or attempting to collect
this Note, including all reasonable attorneys' fees and disbursements.
(i)
All parties now or hereafter liable with respect to this Note, whether
Maker, principal, surety, guarantor, endorsee or otherwise hereby severally waive presentment
for payment, demand, notice of nonpayment or dishonor, protest and notice of protest. No
failure to accelerate the indebtedness evidenced hereby, acceptance of a past due installment
following the expiration of any cure period provided by this Note, any Loan Document or
applicable law, or indulgences granted from time to time shall be construed (i) as a novation of
this Note or as a reinstatement of the indebtedness evidenced hereby or as a waiver of such right
of acceleration or of the right of Payee thereafter to insist upon strict compliance with the terms
of this Note, or (ii) to prevent the exercise of such right of acceleration or any other right granted
hereunder or by any Laws. Maker hereby expressly waives the benefit of any statute or rule of
law or equity now provided, or which may hereafter be provided, which would produce a result
contrary to or in conflict with the foregoing.
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(j)
Maker hereby expressly acknowledges that the loan evidenced by this
Note is a "business loan" within the meaning of Chapter 1343 of the Ohio Revised Code.
(k)
With respect to any agreement by Borrower in this Note or in any other
Loan Document to pay Payee's attorneys' fees and disbursements incurred in connection with the
Loan, Borrower agrees that each Loan Document is a "contract of indebtedness" and that the
attorneys' fees and disbursements referenced are those which are a reasonable amount, all as
contemplated by Ohio Revised Code Section 1301.21, as such Section may hereafter be
amended. Borrower further agrees that the indebtedness incurred in connection with the Loan is
not incurred for purposes that are primarily personal, family or household and confirms that the
total amount owed on the contract of indebtedness exceeds One Hundred Thousand and No/100
Dollars ($100,000.00).
(l)
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(m)
MAKER AND PAYEE EACH WAIVE ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS UNDER THIS NOTE AND THE OTHER LOAN
DOCUMENTS OR RELATING THERETO OR ARISING FROM THE
LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY.
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THIRD AMENDED AND RESTATED
PROMISSORY NOTE #3
U.S. $2,670,206.11
As of April 15, 2011
FOR VALUE RECEIVED, all of the undersigned borrowers, having an address at 5851
Ridge Bend Road, Memphis, Tennessee 38120 (jointly and severally, "Maker"), hereby jointly
and severally promise to pay to the order of KEYBANK NATIONAL ASSOCIATION, a
national banking association ("Payee"), having an address at 8425 Woodfield Boulevard, Suite
500, Indianapolis, Indiana 46240, the principal sum of Two Million Six Hundred Seventy
Thousand Two Hundred Six and 11/100 Dollars ($2,670,206.11) or so much thereof as may be
advanced hereunder, and interest from the date hereof on the balance of principal from time to
time outstanding, in United States currency, at the rates and at the times hereinafter described.
This Note is issued by Maker pursuant to that certain Master Construction Loan
Agreement dated December 8, 2005 entered into between The Spectra Group, Inc., a Tennessee
Corporation, Jeff H. Farmer, Jr. and Payee (the "Original Loan Agreement"), as amended by a
First Amendment to Master Construction Loan Agreement dated June 30, 2006 between the
same parties (the "First Amendment"), as further amended by a Second Amendment to Master
Construction Loan Agreement dated October 10, 2006 between the same parties (the "Second
Amendment"), as further amended by a Third Amendment to Master Construction Loan
Agreement dated July 18, 2007 between the same parties (the "Third Amendment"), as further
amended by a Fourth Amendment to Master Construction Loan Agreement dated October 10,
2007 between the same parties (the "Fourth Amendment"), as further amended by a Fifth
Amendment to Master Construction Loan Agreement dated as of April 15, 2009 (the "Fifth
Amendment"), as further amendment by Extension Agreement and Sixth Amendment to Master
Construction Loan Agreement dated July 15, 2010 between the same parties (the "Sixth
Amendment"), as further amended by the Agreement dated October 15, 2010 between the same
parties (the "Agreement"), and as further amended by Seventh Amendment to Master
Construction Loan Agreement dated as of the date hereof between the same parties (the "Seventh
Amendment"; the Orginal Loan Agreement, as amended by the First Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the Sixth
Amendment, the Agreement and the Seventh Amendment, is hereinafter collectively referred to
as the "Loan Agreement"). Capitalized terms used and not otherwise defined herein shall have
the meanings given to them in the Loan Agreement. This Note evidences the same indebtedness
evidenced by, and amends and restates in their entirety, all promissory note(s) evidencing the
Project Loan for the Project commonly known as Sweden, New York, as such promissory note(s)
were amended and restated pursuant to the Amended and Restated Promissory Note #3 dated as
of April 15, 2009, a Second Amended and Restated Promissory Note #3 dated as of July 15,
2010, and a Third Amended and Restated Promissory Note #3 dated as of October 15, 2010, and
is not a novation of such promissory note(s) or such Project Loan. The Amended and Restated
Promissory Note #2 dated April 15, 2009, as further amended and restated pursuant to a Second
Amended and Restated Promissory Note #2 dated as of July 15, 2010, as further amended and
restated pursuant to a Third Amended and Restated Promissory Note #2 dated as of October 15,
2010, and as amended and restated pursuant to the Fourth Amended and Restated Promissory
EXHIBIT 36
Note #2 dated as of the date hereof (collectively, "Note #2"), evidences the same indebtedness
evidenced by the promissory note(s) for the Project Loan for the Project commonly known as
Evans Mills, New York. The Amended and Restated Promissory Note #1 dated April 15, 2009,
as further amended and restated pursuant to a Second Amended and Restated Promissory Note
#1 dated as of July 15, 2010, as further amended and restated pursuant to a Third Amended and
Restated Promissory Note #1 dated as of October 15, 2010, and as amended and restated
pursuant to the Fourth Amended and Restated Promissory Note #1 dated as of the date hereof
(collectively, "Note #1"), evidences the same indebtedness evidenced by the promissory notes
for all other Project Loans except for the Project Loans for the Project commonly known as
Evans Mills, New York and the Project commonly known as Sweden, New York. This Note,
Note #1 and Note #2 are referred to herein as the "Aggregate Note." Payment of this Note is
governed by the Loan Agreement. The terms of the Loan Agreement are incorporated herein by
express reference as if fully set forth herein. All of the undersigned are Borrowers, as that term
is defined in the Loan Agreement, and agree to comply with and be bound by the terms of the
Loan Agreement. To the extent that any of the undersigned are Borrowers of Project Loans
which predate the Original Loan Agreement, for purposes of clarification, such Borrowers agree
and acknowledge that the Loan Agreement shall govern in the event of any conflict between the
terms of the Loan Agreement and any loan agreements entered into with respect to such Project
Loans prior to the Original Loan Agreement (the "Prior Agreements"). At the request of Payee,
such Borrowers shall execute and deliver within fifteen (15) days of written request any
documents confirming the terms of the Prior Agreements that are superseded by the Loan
Agreement.
The Spectra Group, Inc., a Tennessee corporation ("Spectra"), in its capacity as general
partner of Alice Shopping Center Unit Two Ltd., a Texas limited partnership, Longview
Shopping Center LP, a Texas limited partnership, and Carrollton Shopping Center LTD, a Texas
limited partnership shall have no personal liability under this Note by reason of the joint and
several liability of the parties thereto. The foregoing shall in no way affect or impair the liability
of Spectra under its guaranty of, among other things, the indebtedness evidenced by this Note
pursuant to the Guaranty of even date herewith.
1.
Interest. The principal amount hereof outstanding from time to time shall bear
interest until paid in full at the Applicable Rate, but in no event less than the Floor Interest Rate.
2.
Monthly Payments. Interest shall be payable in arrears on the fifteenth (15th)
day of each calendar month after the date hereof up to and including the Maturity Date in the
amount of all interest accrued during the immediately preceding calendar month. In addition to
interest payments, the undersigned shall make principal payments equal to Five Thousand Six
Hundred Forty-Eight and 40/100 Dollars ($5,648.40) commencing on the fifteenth of each
calendar month after the date hereof up to and including the Maturity Date. All payments on
account of the indebtedness evidenced by this Note shall be made to Payee not later than
11:00 a.m. Cleveland, Ohio time on the day when due in lawful money of the United States and
shall be first applied to late charges, costs of collection or enforcement and other similar amounts
due, if any, under this Note, the Loan Agreement, the Project Documents and any other
documents entered into by Maker or others in connection with the indebtedness evidenced
hereby (the Loan Agreement, the Project Documents and such other documents being
collectively referred to herein as the "Loan Documents"), then to interest due and payable
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hereunder and the remainder to principal due and payable hereunder. All payments under the
Aggregate Note, except principal payments, shall be applied prorata to the Aggregate Note based
upon the outstanding principal amounts thereof. All principal payments under the Aggregate
Note shall be applied first to Note #1 and then prorata to Note #2 and this Note (except in the
event of release of the Project with respect to either of Note #2 or this Note, in which event the
principal payment shall be applied to the note for such Project).
3.
Maturity Date. The indebtedness evidenced hereby shall mature on the Maturity
Date. On the Maturity Date, the entire outstanding principal balance hereof, together with
accrued and unpaid interest and all other sums evidenced by this Note, shall, if not sooner paid,
become due and payable.
4.
General Provisions.
(a)
Regardless of whether an Adjusted LIBOR Rate would otherwise then be
in effect, in the event (i) the principal balance hereof is not paid when due whether by
acceleration or upon the Maturity Date or (ii) an Event of Default exists, then the principal
balance hereof shall bear interest from and after the Default Rate. In addition, for any
installment (exclusive of the payment due upon the Maturity Date) which is not paid within ten
(10) days after the due date thereof a late charge equal to the greater of (a) ten percent (10%) of
the amount of such installment or (b) $25 shall be due and payable to the holder of this Note on
demand to cover the extra expense involved in handling delinquent payments.
(b)
Maker agrees that the obligation evidenced by this Note is an exempt
transaction under the Truth-in-Lending Act, 15 U.S.C. § 1601, et seq.
(c)
The parties hereto intend and believe that each provision in this Note
comports with all applicable local, state and federal laws and judicial decisions. However, if any
provision or provisions, or if any portion of any provision or provisions, in this Note is found by
a court of law to be in violation of any applicable local, state or federal ordinance, statute, law,
administrative or judicial decision, or public policy, and if such court should declare such
portion, provision or provisions of this Note to be illegal, invalid, unlawful, void or
unenforceable as written, then it is the intent of all parties hereto that such portion, provision or
provisions shall be given force to the fullest possible extent that they are legal, valid and
enforceable, that the remainder of this Note shall be construed as if such illegal, invalid,
unlawful, void or unenforceable portion, provision or provisions were not contained therein, and
that the rights, obligations and interest of Maker and the holder or holders hereof under the
remainder of this Note shall continue in full force and effect. All agreements herein are
expressly limited so that in no contingency or event whatsoever, whether by reason of
advancement of the proceeds hereof, acceleration of maturity of the unpaid principal balance
hereof, or otherwise, shall the amount paid or agreed to be paid to the holders hereof for the use,
forbearance or detention of the money to be advanced hereunder exceed the highest lawful rate
permissible under applicable usury laws. If, from any circumstances whatsoever, the fulfillment
of any provision hereof, at the time performance of such provision shall be due, shall involve
transcending the limit of validity prescribed by law which a court of competent jurisdiction may
deem applicable hereto, then, ipso facto, the obligation to be fulfilled shall be reduced to the
limit of such validity and if from any circumstance the holder hereof shall ever receive as interest
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an amount which would exceed the highest lawful rate, such amount which would be excessive
interest shall be applied to the reduction of the unpaid principal balance due hereunder and not to
the payment of interest.
(d)
This Note and all provisions hereof shall be binding upon Maker and all
persons claiming under or through Maker, and shall inure to the benefit of Payee, together with
its successors and assigns, including each owner and holder from time to time of this Note. The
obligations of Maker under this Note are joint and several.
(e)
Time is of the essence as to all dates set forth herein.
(f)
Maker agrees that its liability shall not be in any manner affected by any
indulgence, extension of time, renewal, waiver, or modification granted or consented to by
Payee; and Maker consents to any indulgences and all extensions of time, renewals, waivers, or
modifications that may be granted by Payee with respect to the payment or other provisions of
this Note, and to any substitution, exchange or release of the collateral, or any part thereof, with
or without substitution, and agrees to the addition or release of any makers, endorsers,
guarantors, or sureties, all whether primarily or secondarily liable, without notice to Maker and
without affecting its liability hereunder.
(g)
Maker hereby waives and renounces for itself, its successors and assigns,
all rights to the benefits of any statute of limitations and any moratorium, reinstatement,
marshalling, forbearance, valuation, stay, extension, redemption, appraisement, or exemption and
homestead laws now provided, or which may hereafter be provided, by the laws of the United
States and of any state thereof against the enforcement and collection of the obligations
evidenced by this Note.
(h)
If this Note is placed in the hands of attorneys for collection or is collected
through any legal proceedings, Maker promises and agrees to pay, in addition to the principal,
interest and other sums due and payable hereon, all costs of collecting or attempting to collect
this Note, including all reasonable attorneys' fees and disbursements.
(i)
All parties now or hereafter liable with respect to this Note, whether
Maker, principal, surety, guarantor, endorsee or otherwise hereby severally waive presentment
for payment, demand, notice of nonpayment or dishonor, protest and notice of protest. No
failure to accelerate the indebtedness evidenced hereby, acceptance of a past due installment
following the expiration of any cure period provided by this Note, any Loan Document or
applicable law, or indulgences granted from time to time shall be construed (i) as a novation of
this Note or as a reinstatement of the indebtedness evidenced hereby or as a waiver of such right
of acceleration or of the right of Payee thereafter to insist upon strict compliance with the terms
of this Note, or (ii) to prevent the exercise of such right of acceleration or any other right granted
hereunder or by any Laws. Maker hereby expressly waives the benefit of any statute or rule of
law or equity now provided, or which may hereafter be provided, which would produce a result
contrary to or in conflict with the foregoing.
(j)
Maker hereby expressly acknowledges that the loan evidenced by this
Note is a "business loan" within the meaning of Chapter 1343 of the Ohio Revised Code.
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(k)
With respect to any agreement by Borrower in this Note or in any other
Loan Document to pay Payee's attorneys' fees and disbursements incurred in connection with the
Loan, Borrower agrees that each Loan Document is a "contract of indebtedness" and that the
attorneys' fees and disbursements referenced are those which are a reasonable amount, all as
contemplated by Ohio Revised Code Section 1301.21, as such Section may hereafter be
amended. Borrower further agrees that the indebtedness incurred in connection with the Loan is
not incurred for purposes that are primarily personal, family or household and confirms that the
total amount owed on the contract of indebtedness exceeds One Hundred Thousand and No/100
Dollars ($100,000.00).
(l)
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(m)
MAKER AND PAYEE EACH WAIVE ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS UNDER THIS NOTE AND THE OTHER LOAN
DOCUMENTS OR RELATING THERETO OR ARISING FROM THE
LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY.
[The remainder of this page is intentionally left blank]
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AMENDED AND RESTATED
PROMISSORY NOTE
U.S. $732,032.97
As of April 15, 2011
FOR VALUE RECEIVED, all of the undersigned borrowers, having an address at 5851
Ridge Bend Road, Memphis, Tennessee 38120 (jointly and severally, "Maker"), hereby jointly
and severally promise to pay to the order of KEYBANK NATIONAL ASSOCIATION, a
national banking association ("Payee"), having an address at 8425 Woodfield Crossing
Boulevard, Suite 500, Indianapolis, Indiana 46240, the principal sum of Seven Hundred ThirtyTwo Thousand Thirty-Two and 97/100 Dollars ($732,032.97) or so much thereof as may be
advanced hereunder, and interest from the date hereof on the balance of principal from time to
time outstanding, in United States currency, at the rates and at the times hereinafter described.
This Note is issued by Maker pursuant to that certain Loan Agreement dated June 16,
2006 entered into between The Spectra Exchange Group 1, LLC, a Delaware limited liability
company ("Spectra") and Payee (the "Original Loan Agreement"), as amended by an
Amendment to Loan Agreement dated August 9, 2007 between the Maker and the Bank (the
"First Amendment"), as further amended by an Amendment dated March 5, 2008 between the
same parties (the "Second Amendment"), as further amended by a Third Amendment to Loan
Agreement and First Amendment to Promissory Note dated April 15, 2009 between the same
parties (the "Third Amendment"), as further amended by an Agreement dated October 15, 2010
between the same parties (the "2010 Agreement"), and as further amendment by a Fourth
Amendment to Loan Agreement dated as of the date hereof between the same parties (the
"Fourth Amendment", the Orginal Loan Agreement, as amended by the First Amendment, the
Second Amendment, the Third Amendment, the Agreement and the Fourth Amendment, is
hereinafter collectively referred to as the "Loan Agreement"). Capitalized terms used and not
otherwise defined herein shall have the meanings given to them in the Loan Agreement. This
Note evidences the same indebtedness evidenced by, and amends and restates in its entirety, the
Promissory Note dated June 16, 2006 between Spectra and Payee (the "Original Note") as
amended by the Third Amendment and as amended and restated by the Amended and Restated
Promissory Note dated as of October 15, 2010 (the Original Note, as amended, referred to as the
"Amended Note") and is not a novation of such note or the indebtedness evidenced thereby.
Payment of this Amended and Restated Note is governed by the Loan Agreement. The terms of
the Loan Agreement are incorporated herein by express reference as if fully set forth herein. All
of the undersigned are Borrowers, as that term is defined in the Loan Agreement, and agree to
comply with and be bound by the terms of the Loan Agreement.
1.
Interest. The principal amount hereof outstanding from time to time shall bear
interest until paid in full at the Applicable Rate, but in no event less than the Floor Interest Rate.
2.
Monthly Payments. Interest shall be payable in arrears on the fifteenth (15th)
day of each calendar month after the date hereof up to and including the Maturity Date in the
amount of all interest accrued during the immediately preceding calendar month. In addition to
interest payments, the undersigned shall make principal payments equal to One Thousand Eleven
EXHIBIT 37
and 29/100 Dollars ($1,011.29) commencing on the fifteenth of each calendar month after the
date hereof up to and including the Maturity Date. All payments on account of the indebtedness
evidenced by this Note shall be made to Payee not later than 11:00 a.m. Cleveland, Ohio time on
the day when due in lawful money of the United States and shall be first applied to late charges,
costs of collection or enforcement and other similar amounts due, if any, under this Note, the
Loan Agreement and any other documents entered into by Maker or others in connection with
the indebtedness evidenced hereby (the Note, the Loan Agreement and such other documents
being collectively referred to herein as the "Loan Documents"), then to interest due and payable
hereunder and the remainder to principal due and payable hereunder.
3.
Maturity Date. The indebtedness evidenced hereby shall mature on the Maturity
Date. On the Maturity Date, the entire outstanding principal balance hereof, together with
accrued and unpaid interest and all other sums evidenced by this Note, shall, if not sooner paid,
become due and payable.
4.
General Provisions.
(a)
Regardless of whether an Adjusted LIBOR Rate would otherwise then be
in effect, in the event (i) the principal balance hereof is not paid when due whether by
acceleration or upon the Maturity Date or (ii) an Event of Default exists, then the principal
balance hereof shall bear interest from and after the Default Rate. In addition, for any
installment (exclusive of the payment due upon the Maturity Date) which is not paid within ten
(10) days after the due date thereof a late charge equal to the greater of (a) ten percent (10%) of
the amount of such installment or (b) $25 shall be due and payable to the holder of this Note on
demand to cover the extra expense involved in handling delinquent payments.
(b)
Maker agrees that the obligation evidenced by this Note is an exempt
transaction under the Truth-in-Lending Act, 15 U.S.C. § 1601, et seq.
(c)
The parties hereto intend and believe that each provision in this Note
comports with all applicable local, state and federal laws and judicial decisions. However, if any
provision or provisions, or if any portion of any provision or provisions, in this Note is found by
a court of law to be in violation of any applicable local, state or federal ordinance, statute, law,
administrative or judicial decision, or public policy, and if such court should declare such
portion, provision or provisions of this Note to be illegal, invalid, unlawful, void or
unenforceable as written, then it is the intent of all parties hereto that such portion, provision or
provisions shall be given force to the fullest possible extent that they are legal, valid and
enforceable, that the remainder of this Note shall be construed as if such illegal, invalid,
unlawful, void or unenforceable portion, provision or provisions were not contained therein, and
that the rights, obligations and interest of Maker and the holder or holders hereof under the
remainder of this Note shall continue in full force and effect. All agreements herein are
expressly limited so that in no contingency or event whatsoever, whether by reason of
advancement of the proceeds hereof, acceleration of maturity of the unpaid principal balance
hereof, or otherwise, shall the amount paid or agreed to be paid to the holders hereof for the use,
forbearance or detention of the money to be advanced hereunder exceed the highest lawful rate
permissible under applicable usury laws. If, from any circumstances whatsoever, the fulfillment
of any provision hereof, at the time performance of such provision shall be due, shall involve
-2-
transcending the limit of validity prescribed by law which a court of competent jurisdiction may
deem applicable hereto, then, ipso facto, the obligation to be fulfilled shall be reduced to the
limit of such validity and if from any circumstance the holder hereof shall ever receive as interest
an amount which would exceed the highest lawful rate, such amount which would be excessive
interest shall be applied to the reduction of the unpaid principal balance due hereunder and not to
the payment of interest.
(d)
This Note and all provisions hereof shall be binding upon Maker and all
persons claiming under or through Maker, and shall inure to the benefit of Payee, together with
its successors and assigns, including each owner and holder from time to time of this Note. The
obligations of Maker under this Note are joint and several.
(e)
Time is of the essence as to all dates set forth herein.
(f)
Maker agrees that its liability shall not be in any manner affected by any
indulgence, extension of time, renewal, waiver, or modification granted or consented to by
Payee; and Maker consents to any indulgences and all extensions of time, renewals, waivers, or
modifications that may be granted by Payee with respect to the payment or other provisions of
this Note, and to any substitution, exchange or release of the collateral, or any part thereof, with
or without substitution, and agrees to the addition or release of any makers, endorsers,
guarantors, or sureties, all whether primarily or secondarily liable, without notice to Maker and
without affecting its liability hereunder.
(g)
Maker hereby waives and renounces for itself, its successors and assigns,
all rights to the benefits of any statute of limitations and any moratorium, reinstatement,
marshalling, forbearance, valuation, stay, extension, redemption, appraisement, or exemption and
homestead laws now provided, or which may hereafter be provided, by the laws of the United
States and of any state thereof against the enforcement and collection of the obligations
evidenced by this Note.
(h)
If this Note is placed in the hands of attorneys for collection or is collected
through any legal proceedings, Maker promises and agrees to pay, in addition to the principal,
interest and other sums due and payable hereon, all costs of collecting or attempting to collect
this Note, including all reasonable attorneys' fees and disbursements.
(i)
All parties now or hereafter liable with respect to this Note, whether
Maker, principal, surety, guarantor, endorsee or otherwise hereby severally waive presentment
for payment, demand, notice of nonpayment or dishonor, protest and notice of protest. No
failure to accelerate the indebtedness evidenced hereby, acceptance of a past due installment
following the expiration of any cure period provided by this Note, any Loan Document or
applicable law, or indulgences granted from time to time shall be construed (i) as a novation of
this Note or as a reinstatement of the indebtedness evidenced hereby or as a waiver of such right
of acceleration or of the right of Payee thereafter to insist upon strict compliance with the terms
of this Note, or (ii) to prevent the exercise of such right of acceleration or any other right granted
hereunder or by any Laws. Maker hereby expressly waives the benefit of any statute or rule of
law or equity now provided, or which may hereafter be provided, which would produce a result
contrary to or in conflict with the foregoing.
-3-
(j)
Maker hereby expressly acknowledges that the loan evidenced by this
Note is a "business loan" within the meaning of Chapter 1343 of the Ohio Revised Code.
(k)
With respect to any agreement by Borrower in this Note or in any other
Loan Document to pay Payee's attorneys' fees and disbursements incurred in connection with the
Loan, Borrower agrees that each Loan Document is a "contract of indebtedness" and that the
attorneys' fees and disbursements referenced are those which are a reasonable amount, all as
contemplated by Ohio Revised Code Section 1301.21, as such Section may hereafter be
amended. Borrower further agrees that the indebtedness incurred in connection with the Loan is
not incurred for purposes that are primarily personal, family or household and confirms that the
total amount owed on the contract of indebtedness exceeds One Hundred Thousand and No/100
Dollars ($100,000.00).
(l)
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(m)
MAKER AND PAYEE EACH WAIVE ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS UNDER THIS NOTE AND THE OTHER LOAN
DOCUMENTS OR RELATING THERETO OR ARISING FROM THE
LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY.
[The remainder of this page is intentionally left blank]
-4-
5th
XXXXXX
EXHIBIT 38
of July,
EXHIBIT 39
EXHIBIT 40
EXHIBIT 41
ALLONGE
Reference is made to that certain Amended and Restated Promissory Note dated as of
April 15, 2011, in the original principal amount of $732,032.97 executed by Radcliff Shopping
Center LLC, Ottumwa Shopping Center LLC, Shelbyville Shopping Center LLC, Plainview
Shopping Center LLC, Boaz Shopping Center LLC, La Junta Shopping Center LLC, Wauseon
Shopping Center LLC and Ft. Dodge Shopping Center LLC to the order of KeyBank National
Association (the "Note"). It is intended that this Allonge be attached to and made a permanent
part of the Note.
Pay to the order of ECP COMMERCIAL I LLC, a Delaware limited liability company,
WITHOUT RECOURSE, REPRESENTATIONS OR WARRANTIES, EXPRESS,
IMPLIED OR BY OPERATION OF LAW, OF ANY KIND OR NATURE
WHATSOEVER, except as set forth in that certain Purchase and Sale Agreement for Distressed
Trades by and between Assignor and Assignee, dated as of September 16, 2013.
DATED this _____ day of September, 2013.
KEYBANK NATIONAL ASSOCIATION,
a national b.ncing association
//
I
By: /
) '
Name: Jason E. Egger
Title: Vice President
/
/'
2118883
z
/
/
j/
/
EXHIBIT 42
ij)fr7 r
1i :J
..-
ii F -
i:
:
_:
iE F T
L
uu•rry
This instrument prepared by/return to:
Jeremy S. Friedberg, Esq.
Leitess Friedberg PC
10451 MiH Run Circle, Suite 1000
Owings Mills, Maryland 21117
REC: C372(
(410) 581-7400
STATE OF GEORGIA
)
DATE: /[- p7-13
CHECK: '2'1/2TT:
POLK COUNTY
) PT:
ASSIGNMENT OF MORTGAGE
(Cedartown Shopping Center, Polk County, Georgia)
KNOW ALL MEN BY THESE PRESENTS; that KeyBank National Association, a
national banking association having its address at 127 Public Square, Mailcode: OH-U 1-27-0504,
Cleveland, Ohio 44114-1306, Attention: Dale Clayton, ("Assignor"), for valuable
consideration, the receipt of which is hereby acknowledged, does hereby assign, without
recourse, to ECP Commercial I LLC, a Delaware limited liability company having its address at
4695 MacArthur Court, Suite 370 Newport Beach, CA 92660, Attention: Ravi Bhagavatula,
("Assignee"), all of Assignor's legal and equitable right, title, and interest in that certain August
4, 2006 Mortgage, Assignment of Rents, Security Agreement and Fixture Filing granted by
Cedartown LLC, a Delaware limited liability company for the benefit of Assignor, recorded on
August 9, 2006 at Book 1172 Page 1 in the official records of Polk County, Georgia, as amended
by that certain June 26, 2009 First Amendment to Mortgage between Tell City Shopping Center
LLC, a Delaware limited liability company, Ottumwa Shopping Center LLC, a Delaware limited
liability company, Newcastle Shopping Center LLC, a Delaware limited liability company, and
Keokuk Shopping Center LLC, a Delaware limited liability company and Assignor, recorded on
September 9,2009 at Book 1340 Page 112 in the official records of Polk County, Georgia
(collectively, the "Mortgage"), encumbering certain premises described in the Mortgage and in
Exhibit A attached hereto, together with the note(s) and obligations described in the Mortgage
and the moneys due and to grow due thereon with interest; provided, however, such assignment
does not include the note(s), obligations and moneys due with respect to the Swap Termination
Loan (as such term is defined in that certain Purchase and Sale Agreement for Distressed Trades
by and between Assignor and Assignee, dated as of September 16, 2013, (the "Purchase and Sale
Agreement"));
TO HAVE AND TO HOLD same unto Assignee, its successors and assigns, forever,
subject only to the provisions of the Mortgage.
This Assignment is made WIThOUT RECOURSE OR REPRESENTATION OR
WARRANTY, EXPRESS, IMPLIED OR BY OPERATION OF LAW, OF ANY KIND
EXHIBIT 43
AND NATURE WhATSOEVER, except as expressly set forth in the Purchase and Sale
Agreement.
This Assignment may be executed in any number of counterparts, each of which shall
constitute one and the same instrument, and any party hereto may execute this Assignment by
signing any such counterpart.
The terms and provisions of this Assignment shall inure to the benefit of, and shall be
binding upon, the successors and assigns of the parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
2
:i 221
IN WITNESS WHEREOF, this instrument was signed as of the
J)
day of September,
2013.
ASSIGNOR:
KEYBANK NATIONAL ASSOCIATION, a
national banking association
Witness Signature
By:
Name: Jason E. Egger
Its: Vice President
.
Witness Printed Name
STATE OF OHIO
COUNTY OF CUYAHOGA
I, the undersigned, a Notary Public in and for said county in said state, hereby certify that
JASON E. EGGER, whose name as Vice President of KEYBANK NATIONAL
ASSOCIATION, a national banking association, is signed to the foregoing instrument, and who
is known to me, acknowledged before me on this day that, being informed of the contents of said
instrument, he, as such officer and with full authority, executed the same voluntarily for and as
the act of said banking corporation.
Given under my hand and official seal this ,
day of September, 2013.
L\
J
Notary Public
[NOTARIAL SEAL
Mycc
CARLA D. WINTERS
NOTARY PUBLIC - STATE OF OHIO
MY COMMISSION EXPIRES
DECEMBER 18, 2016
mn
3
DATED and effective as of this _____ day of September, 2013
ECP COMMERCIAL I LLC, a Delaware limited
liability company
By:
Name: Ravi S. Bhagavatula
Its: Authorized Signatory
STATE OF CALIFORNIA )
ORANGE COUNTY
)
I, the undersigned, a Notary Public in and for said county in said State, hereby certify that
Ravi S. Bhagavatula, whose name as Authorized Signatory of ECP COMMERCIAL I LLC, a
Delaware limited liability company, is signed to the foregoing instrument and who is known to
me, acknowledged before me on this day that, being informed of the contents of said instrument,
he, as such officer and with full authority, executed the same voluntarily for and as the act of said
limited liability company.
Given under my hand and official seal this
ROBERT KESTER
Commission # 1989911
Notary PubUc - Cahfornia
Orange County
MjComm. Exres Auj 31, 2016ç
day of September, 2013.
Notary Public
AFFIX SEAL
My commission expires:
El
800K
i172PAGEOO2
EXHIBIT A
LEGAL DESCRIPTION OF THE PREMISES
All that tract or parcel of land lying and being in Land Lots 1075 and 1086 of the 2nd District,
4th Section, Polk County, Georgia, and being more particularly described as follows:
Commencing at the northwest corner of Land Lot 1075, said corner being common to Land Lots
1013, 1014, 1075 and 1076; thence along the westerly land lot line of Land Lot 1075 the
following courses and distances South 00 degrees 27 minutes 05 seconds West, 99.88 feet to a
point; South 00 degrees 40 minutes 37 seconds West, 112.89 feet to a point; South 01 degrees 41
minutes 15 seconds West, 617.55 feet to a 518" capped rebar found, said point being the TRUE
POINT OF BEGfNN[NG; thence leaving said westerly land lot line South 73 degrees 13 minutes
13 seconds East, 89.54 feet to a 5/8" capped rebar found; thence North 16 degrees 45 minutes 46
seconds East, 46.21 feet to a 5/8" capped rebar found; thence South 73 degrees 17 minutes 27
seconds East, 71 .38 feet to a 5/8" capped rebar found; thence along a curve to the left, an arc
distance of 122.11 feet, said curve having a radius of 76.50 feet and being subtended by a chord
of 109.55 feet, at North 61 degrees 10 minutes 20 seconds East, to a 5/8" capped rebar found;
thence North 17 degrees 09 minutes 12 seconds East, 19.32 feet to a 5/8" capped rebar found;
thence along a curve to the right, an arc distance of 107.60 feet, said curve having a radius of
68.50 feet and being subtended by a chord of 96.87 feet, at North 61 degrees 50 minutes 01
seconds East, to a 5/8" capped rebar found; thence South 73 degrees 09 minutes 17 seconds East,
605.78 feet to a 5/8' capped rebar found; thence South 16 degrees 51 minutes 11 seconds West,
29.38 feet to a 5/8' capped rebar found; thence South 73 degrees 10 minutes 30 seconds East,
140.35 feet to a 5/8" capped rebar found; thence South 18 degrees 41 minutes 23 seconds West,
149.68 feet to a 5/8" capped rebar found; thence South 64 degrees 46 minutes 57 seconds East,
208.97 feet to a 5/8" capped rebar found on the westerly right-of-way of U.S. Highway 27
(variable right-of-way); thence along said westerly right-of-way and a curve to the right, an arc
distance of 148.67 feet, said curve having a radius of 4842.60 feet and being subtended by a
chord of 148.67 feet, at South 28 degrees 40 minutes 10 seconds West, to a 5/8" capped rebar
found; thence leaving said westerly right-of-way North 60 degrees 30 minutes 25 seconds West,
84.67 feet to a 5/8" capped rebar found; thence North 73 degrees 10 minutes 24 seconds West,
1107.27 feet to a 5/8tt capped rebar found on the westerly land lot line of Land Lot 1075; thence
along said westerly land lot line North 01 degrees 38 minutes 29 seconds East, 128.51 feet to a
5/8" capped rebar found, said point being the TRUE POINT OF BEGINNING;
Said tract or parcel of land contains 7.620 acres and is more accurately depicted on a plat of
survey prepared by GeoSurvey, Ltd., dated January 31, 2006, job number 20052638.
BOOK
I1'2PiWEUO27
EXHIBIT A-i
DESCRIPTION OF THE PREMISES
(Shopping Center Parcel)
Approximately 6.61 acres of the land described on Exhibit A, the legal description for which
shall be provided by the Mortgagor in form and substance satisfactory to the Mortgagee in its
sole discretion.
BUUK112PAGEOO28
EXHIBIT A-2
DESCRIPTION OF THE PREMISES
(Outlot Parcel)
Approximately 1.01 acres of the land described on Exhibit A, the legal description for
which shall be provided by the Mortgagor in form and substance satisfactory to the Mortgagee,
in its sole discretion.
Mortgage
25
Cedartown
Po'k County
BOOK
2OL,
WLReCOr
I
CIeI4
ii 1 72 0 0 2 )
PAGE
SCHEDULE B
SPECIFIC PROVISIONS
The following provisions shall govern and control in the event of a conflict with any of
the other provisions of the Mortgage to which this Schedule B is attached.
In case the debt hereby secured shall not be paid when it becomes due by maturity in due
course, or by reason of any Event of Default as herein provided, Grantor hereby grants to
Grantee and assigns, the following irrevocable power of attorney: To sell the said property or
any part thereof at auction, at the usual place for conducting sales at the Court House in the
County where the land or any part thereof lies, in said State, to the highest bidder for cash, after
advertising the time, terms and place of such sale once a week for four weeks immediately
preceding such sale (but without regard to the number of days) in a newspaper published in the
County where the land lies, or in the paper in which the Sheriffs advertisements for such County
are published, all other notice being hereby waived by Grantor, and Grantee or any person on
behalf of Grantee, or assigns, may bid and purchase at such sale and thereupon execute and
deliver to the purchaser or purchasers at such sale a sufficient conveyance of said premises in fee
simple, which conveyance shall contain recitals as to the happening of the default upon which
the execution of the power of sale herein granted depends, and Grantor hereby constitutes and
appoints Grantee and assigns, the agent and attorney in fact of Grantor to make such recitals, and
hereby covenants and agrees that the recitals so to be made by Grantee, or assigns, shall be
binding and conclusive upon Grantor, and the heirs, executors, administrators and assigns of
Grantor, and that the conveyance to be made by Grantee or assigns, shall be effectual to bar all
equity of redemption of Grantor, or the successors in interest of Grantor, in and to said premises,
and Grantee or assigns, shall collect the proceeds of such sale, and after reserving therefrom the
entire amount of principal and interest due, together with the amount of any taxes, assessments
and premiums of insurance or other payments theretofore paid by Grantee, together with all costs
and expenses of sale and 15 per centum of the aggregate amount due for attorney's fees, shall pay
any over-plus to Grantor, or to the heirs or assigns of Grantor as provided by law,
The power and agency hereby granted are coupled with an interest and are irrevocable by
death or otherwise and are granted as cumulative to the remedies for collection of said
indebtedness provided by law.
Grantor hereby waives for itself, its successors and assigns, any rights of homestead
against Grantee, its successors and assigns, and further covenants that it will not avail itself of
any rights of exemption, valuation, stay, marshalling, redemption, appraisal, or moratorium now
or hereafter in force, and acknowledges that it makes this waiver as a material inducement to
Grantee to lend funds to Grantor, and further acknowledges that it has made this waiver
knowingly, intelligently, and after consultation with counsel of its choice.
This deed is intended to be, and should be construed as, a deed passing legal title under
the laws of the State of Georgia regarding conveyances to secure debt, and not as a mortgage,
and is intended as security for the payment of all sums secured hereby.
This deed and the Note or Notes hereby secured shall be deemed and construed to be
contracts executed and to be performed in Georgia.
Mrtgage
26
Cedartown
BOOK
1464
PAGE
1898 (12)
518503
l
Filed
Rockingham County, NC
Rebecca B. Cipriani, Register of Deeds
10/11/2013 11:05:17AM
Fee Amt: $26.00
NC Excise Tax: $0.00
MITZI M. EVANS
ASSIGNMENT OF CONSTRUCTION DEED OF TRUST
(Eden Shopping Center, Rockingham, County, North Carolina)
Return To:
Jeremy S. Friedberg, Esq.
Leitess Friedberg PC
/
10451 Miii Run Circle, Suite 1000
Owings Mills, Maryland 21117
(410) 581-7400
EXHIBIT 44
This instrument prepared by/return to:
Jeremy S. Friedberg, Esq.
Leitess Friedberg p
10451 Mill Run Circle, Suite 1000
Owings Mills, Maryland 21117
(410) 581-7400
c
I
STATE OF NORTH CAROLINA )
ROCKINGHAM COUNTY
ASSIGNMENT OF CONSTRUCTION DEED OF TRUST
(Eden Shopping Center, Rockingham County, North Carolina)
KNOW ALL MEN BY THESE PRESENTS; that KeyBank National Association, a
national banking association having its address at 127 Public Square, Mailcode: OH-01-27-0504,
Cleveland, Ohio 44114-1306, Attention: Dale Clayton, ("Assignor"), for valuable
consideration, the receipt of which is hereby acknowledged, does hereby assign, without
recourse, to ECP Commercial I LLC, a Delaware limited liability company having its address at
4695 MacArthur Court, Suite 370 Newport Beach, CA 92660, Attention: Ravi Bhagavatula,
("Assignee"), all of Assignor's legal and equitable right, title, and interest in that certain August
3, 2005 Construction Deed of Trust, Assignment of Rents, Security Agreement and Fixture
Filing granted by Eden Shopping Center LLC, a Delaware limited liability company ("Grantor")
to Lawyers Title Insurance Corporation, as Trustee for the benefit of Assignor, as Beneficiary,
recorded on August 8, 2005 at Book 1252 Page 483 in the official records of Rockingham
County, North Carolina, as amended by that certain June 26, 2009 First Amendment to
Construction Deed of Trust between Grantor and Assignor, recorded on September 3, 2009 at
Book 1381 Page 2214 in the official records of Rockingham County, North Carolina
(collectively, the "Construction Deed of Trust"), encumbering certain premises described in the
Construction Deed of Trust and in Exhibit A attached hereto, together with the note(s) and
obligations described in the Construction Deed of Trust and the moneys due and to grow due
thereon with interest; provided, however, such assignment does not include the note(s),
obligations and moneys due with respect to the Swap Termination Loan (as such term is defined
in that certain Purchase and Sale Agreement for Distressed Trades by and between Assignor and
Assignee, dated as of September 16, 2013, (the "Purchase and Sale Agreement"));
TO HAVE AND TO HOLD same unto Assignee, its successors and assigns, forever,
subject only to the provisions of the Construction Deed of Trust.
This Assignment is made WITHOUT RECOURSE OR REPRESENTATION OR
WARRANTY, EXPRESS, IMPLIED OR BY OPERATION OF LAW, OF ANY KIND
AND NATURE WHATSOEVER, except as expressly set forth in the Purchase and Sale
Agreement.
This Assignment may be executed in any number of counterparts, each of which shall
constitute one and the same instrument, and any party hereto may execute this Assignment by
signing any such counterpart.
The terms and provisions of this Assignment shall inure to the benefit of, and shall be
binding upon, the successors and assigns of the parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.1
'1
day of September,
LN WITNESS WHEREOF, this instrument was signed as of the
2013.
ASSIGNOR:
KEYBANK NATIONAL ASSOCIATION, a
national banking association
7
itness Signature
/ /
By:
Name: Jaspn E. Egger
Its: Vice President
7'
//'
)7
Witness Printed Name
STATE OF OHIO
COUNTY OF CUYAHOGA
I, the undersigned, a Notary Public in and for said county in said state, hereby certify that
JASON E. EGGER, whose name as Vice President of KEYBANK NATIONAL
ASSOCIATION, a national banking association, is signed to the foregoing instrument, and who
is known to me, acknowledged before me on this day that, being informed of the contents of said
instrument, he, as such officer and with full authority, executed the same voluntarily for and as
the act of said banking corporation.
day of September, 2013.
Given under my hand and official seal this
D.
Notary Public
[NOTARIAL SEALI
My comhkpe:
CARLA D. WNTERS
NOTARY PUELIC - STATE OF OHIO
• ..
MY COMMISSION EXPIRES
DECEMBER 18, 2016
JY.
.... .
0
DATED and effective as of this _____ day of September, 2013
ECP COMMERCIAL I LLC, a Delaware limited
liability company
By:
Name: Ravi S.
Its: Authorized Signatory
STATE OF CALIFORNIA )
ORANGE COUNTY
)
I, the undersigned, a Notary Public in and for said county in said State, hereby certify that
Ravi S. Bhagavatula, whose name as Authorized Signatory of ECP COMMERCIAL I LLC, a
Delaware limited liability company, is signed to the foregoing instrument and who is known to
me, acknowledged before me on this day that, being informed of the contents of said instrument,
he, as such officer and with full authority, executed the same voluntarily for and as the act of said
limited liability company.
Given under my hand and official seal this
Z
3,.
ROBERT KESTER
Commission # 1989911
Notary Public - California
Orange County
MjComm Expires Auj
AFFIX SEAL
My commission expires:______________
day of September, 2013.
-
Notary Public
509
EXHIBIT "A"
EDEN SHOPPING CENTER. LLC PROPERTY
PROPERTY OF OSOBNE INVESTMENTS, LLC.; ALL THAT CERTAIN PARCEL OF LAND WITH
IMPROVEMENTS THEREON, SITUATED IN THE CITY OF EDEN, LEAKSVI1S2 TOWNSHIP, COUNTY OF
ROCKJNGHAM, STATE OF NORTH CAROLINA, AND LYING NORTH OF ARBOR LANE, EAST OF. PIERCE
STREET, AND WEST OF SOUTHWOOI) DRIVE, BEING KNOWN AS TAX PARCEL 7989064 S 1295, MC)RF
PARTICULARLY BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT AN EXISTING #5 REBAR LYNG IN THE NORTHERN RIGHT OF WAY OP ARBOR LANE;
SAID POINT LIES S 14°05'45" W, 5236.24'(GRID lIE = 5236.70' C.F.4.O000880) FROM AN EXISTING NORTH
CAROLINA GEODETIC SURVEY MONUMENT "CLUB"; THENCE WITH THE NORTHERN RIGHT OF WAY OF
ARBOR LANE AND THE EASTERN RIGHT OF WAY OF PIERCE STREET A CURVE TURNING TO THE RJGI1T
WITH A RADrUS OF 20.00', WITH AN ARC LENGTH OF 31.27', WITH A CHORD BEARING OF N 4333'22" W,
WITH A CHORD LENGTH OF 28.18' TO A NEW #5 REBAR SET, ENCE WITH THE EASTERN RIGHT OP
WAY OF PIERCE STREET THE FOLLOWING CALLS N 01°14'17" E A DiSTANCE OF 73.23' TO ANEW #5
REBAR SET; THENCE WITH A CURVE TURNING TO 'IHE LEFT WITH A RADIUS OP 430.00, WITH AN ARC
LENGTH OF 182.91', WIIHA CHORD BEARING OF N 10 0 5651 W, WITH A CHORD LENGTH OF iS 133' TO A
NEW #5 REBAR. SET, THENCE WITH A CURVE TLJPNING TO THE LEFT WITH A RADIUS OF 950.00', WITH
AN ARC LENGTH OF 87.21', WITH A CHORD BEARING OFN 25°45'47" W, WiTH A CHORD LENGTH OF 87.18'
TO A NEW #5 REBAR. SET, THENCE N 28°23'35" WA DISTANCE OF 135.19' TO A NEW #5 REBAR SET IN TJ-U
EASTERN RIGHT OF WAY OF PIERCE STREET AND AT THE SOUTHWEST CORNER OF THE PROPERTY OF
MOKEHEAD MEMORIAL HOSPITAL (DEED BOOK 1241 PAGE 1966); THENCE WITH THE SOUTERN
PROPERTY LINE OF MOREHEAD MEMORIAL HOSPITAL N 77°3 5'42" H A DISTANCE OF 341.25' TO AN
EXISTING #5 REBAR FOLTND IN THE WESTERN RIGHT OP WAY OF SOUTHWOOD DRIVE; THENCE WITI-I
THE WESTERN RIGHT OF WAY OF SOUTHWOOD DRIVE A CURVE TURNING TO THE LEFT WITH A
RADIUS OP 950:00', WITH AN ARC LENGTH OF 502.46', WITH A CHORD BEARING OF S 26°20'40" E, WITH A
CHORD LENGTH OF 496.62' TO A NEW #5 REBAR SET, THENCE WITH THE WESTERN RIGHT OP WAY OF
SOUTHWOOD DRIVE AND THE NORTHERN RIGHT OF WAY OF ARBOR LANE A CURVE TURNING TO TIlE
RIGHT WITH A RADIUS OF 20.00', WITH AN ARC LENGTH OF 31.99', WITH A CHORD BEARING OF S
04°1920" W, WITH A CHORD LENGTH OF 28.69' TO AN EX1S11NG #5 REBAR FOUND IN THE NORTFIERN
RIGI-IT OF WAY OF ARBOR LANE, THENCE WITH TIlE NORTHERN RIGHT OF WAY OF ARBOR LANE A
CURVE TURNING TO THE RIGHT WITH A RADIUS OF 320.00', WITH AN ARC LENGTH OF 231.83', WIIB A
CHORD BEARING OF S 70°53'43" W, WITH A CHORD LENGTH OF 226.79' TO AN EXISTING #5 REBAR
FOUND, THENCEN 88°21'02" WAD1STANCE OF 182.79' TO ANEXISTING #5 REBARFOUND; SAID #5
REBAR IS THE POINT AND PLACE OF BEGINNING, HAVING AN AREA OF 179288.75 SQUARE FEET ANT)
4.116 ACRES.
510
EXHIBIT B
Leasehold Deed of Trust Addendum
The following terms and conditions are included as additional provisions to the Deed of
Trust to which it is attached:
Grantor will pay or cause to be paid all rent and other charges required under that
1.
certain ground lease made by Osborne Investments, LLC "lessor' and Grantor as lessee" dated
't 'y .1 J
, 2005 (the "Lease") as and when the same are due and Grantor will keep,
observe and perform, or cause to be kept, observed and performed, all of the other terms,
covenants, provisions and agreements of the Lease on the part of the lessee thereunder to be kept,
observed and performed, and will not in any manner, cancel, terminate or surrender, or permit
any cancellation, termination or surrender of the Lease, in whole or in part, or, without the
written consent of Beneficiary, either orally or in writing, modify, amend or permit any
modification or amendment of any of the terms thereof in any respect, and any attempt on the
part of Grantor to exercise any such right without such written consent of Beneficiary shall be
null and void and of no effect
Grantor will do, or cause to be done, all things necessary to preserve and keep
2.
unimpaired the rights of Grantor as lessee under the Lease, and to prevent any default under the
Lease, or any termination, surrender, cancellation, forfeiture or impairment thereof, and in the
event of the failure of Grantor to make any payment required to be made by Grantor pursuant to
the provisions of the Lease or to keep, observe or perform, or cause to be kept, observed or
performed, any of the terms, covenants, provisions or agreements of the Lease, Grantor agrees
that Beneficiary may (but shall not be obligated to), after notice to Grantor (provided, however,
that no such notice shall be required to be given after the occurrence of an Event of Default
hereunder or under any of the other Loan Documents) take any action on behalf of Grantor, to
make or cause to be kept, observed or performed any such terms, covenants, provisions or
agreements and to enter upon the Premises and take all such action thereof as may be necessary
therefor, to the end that the rights of Grantor in and to the leasehold estate created by the Lease
shall be kept unimpaired and free from default, and all money so expended by Beneficiary, with
interest thereon at the Default Rate (as defined in the Loan Agreement) from the date of each
such expenditure, shall be paid by Grantor to Beneficiary promptly upon demand by Beneficiary
and shall be added to the indebtedness and secured by the Deed of Trust and Beneficiary shall
have, in addition to any other remedy of Beneficiary, the same rights and remedies in the event
of non-payment of any such sum by Grantor as in the case of a default by Grantor in the payment
of any sums due under the Note.
Grantor will enforce the obligations of the lessor under the Lease to the end that
3.
Grantor may enjoy all of the rights granted to it under the Lease, and will promptly notify
Beneficiary in writing of any default by the lessor or by Grantor in the performance or
observance of any of the terms, covenants and conditions on the part of the lessor or Grantor, as
the case may be, to be performed or observed under the Lease and Grantor will promptly advise
Beneficiary in writing of the occurrences of any of the events of default enumerated in the Lease
and of the giving of any notice by the lessor to Grantor of any default by Grantor in performance
or observance of any of the terms, covenants or conditions of the Lease on the part of the Grantor
to be performed or observed and will deliver to Beneficiary a true copy of each such notice. If,
B-i
511
pursuant to the Lease, the lessor shall deliver to Beneficiary a copy of any notice of default given
to Grantor, such notice shall constitute full authority and protection to Beneficiary for any action
taken or omitted to be taken by Beneficiary in good faith in reliance thereon to cure such default.
4.
if any action or proceeding shall be instituted to evict Grantor or to recover
possession of the Premises or for any other purpose affecting the Lease or this Deed of Trust,
Grantor will, immediately upon service thereof on or to Grantor, deliver to Beneficiary a true
copy of each petition, summons, complaint, notice of motion, order to show cause and of all
other provisions, pleadings, and papers, however designated, served in any such action or
proceeding.
Grantor covenants and agrees that unless Beneficiary shall otherwise expressly
5.
consent in writing, the fee title to the property demised by the Lease and the leasehold estate
shall not merge but shall always remain separate and distinct, notwithstanding the union of said
estates either in the lessor, Grantor, or a third party by purchase or otherwise; and in case Grantor
acquires the fee title or any other estate, title or interest in the Premises, this Deed of Trust shall
attach to and cover and be a lien upon the fee title or such other estate so acquired, and such fee
title or other estate shall, without further assignment, Deed of Trust or conveyance, become and
be subject to the lien of and covered by this Deed of Trust.
No release or forbearance of any of Grantor's obligations under the Lease,
6.
pursuant to the Lease, or otherwise, shall release Grantor from any of its obligations under this
Deed of Trust, including its obligation with respect to the payment of rent as provided for in the
Lease and the performance of all of the terms, provisions, covenants, conditions and agreements
contained in the Lease, to be kept, performed and complied with by the tenant therein.
Upon the occurrence of an Event of Default Grantor shall not make any election
7.
or give any consent or approval (other than the exercise of a renewal right or extension right
pursuant to Paragraph 9 below) for which a right to do so is conferred upon Grantor as lessee
under the Lease without Beneficiary's prior written consent. In case of any Event of Default
under this Deed of Trust, all such rights, together with the right of termination, cancellation,
modification, change, supplement, alteration or amendment of the Lease, all of which have been
assigned for collateral purpose to Beneficiary, shall vest in and be exercisable solely by
Beneficiary.
Grantor will give Beneficiary prompt written notice of the commencement of any
8.
arbitration or appraisal proceeding under and pursuant to the provisions of the Lease.
Beneficiary shall have the right to intervene and participate in any such proceeding and Grantor
shall confer with Beneficiary to the extent which Beneficiary deems necessary for the protection
of Beneficiary. Upon the written request of Beneficiary, if an Event of Default exists, Grantor
will exercise all rights of arbitration conferred upon it by the Lease. Grantor shall select an
arbitrator who is approved in writing by Beneficiary, provided, however, that if at the time any
such proceeding shall be commenced, Grantor shall be in default in the performance or
observance of any covenant, condition or other requirement of the Lease, or of this Deed of
Trust, on the part of Grantor to be performed or observed, Beneficiary shall have, and is hereby
granted, the sole and exclusive right to designate and appoint on behalf of Grantor the arbitrator
or arbitrators, or appraiser, in such proceeding.
B-2
512
Grantor may exercise any option or right to renew or extend the term of the Lease
9.
or exercise the fee option contained therein without the prior written consent of Beneficiary.
Grantor shall give Beneficiary simultaneous written notice of the exercise of such option or right
to renew or extend, together with a copy of the instrument given to the lessor under the Lease
exercising such option or right, and, thereafter, shall promptly deliver to Beneficiary a copy of
any acknowledgment by the lessor under such Lease with respect to the exercise of such option
or right. If such option or right has not been exercised as aforesaid, then not more than three
hundred sixty (360) and not less than two hundred seventy (270) days before the right of Grantor
to exercise any option or right to renew or extend the term of the Lease shall expire, Grantor
shall give Beneficiary written notice specifying the date, term and manner for which such option
or renewal is to be exercised. Within fifteen (15) business days of written demand by
Beneficiary, Grantor shall exercise any such option or renewal which is necessary to extend the
term of the Lease beyond the term of this Deed of Trust or to comply with any law affecting
Grantor or Beneficiary or which is necessary, in Beneficiary's reasonable judgment, to preserve
the value of the security intended to be afforded by this Deed of Trust. Grantor shall promptly
provide evidence of such exercise of such option or right to Beneficiary's reasonable satisfaction.
In the event that Grantor fails to so exercise any such option or right or in the event of any
default hereunder which is continuing beyond the applicable cure periods, Grantor hereby agrees
and grants to Beneficiary all right and authority to exercise such option in the name of Grantor or
in its own name. Nothing contained herein shall affect or limit any rights of Beneficiary granted
under the Lease.
The lien of this Deed of Trust shall attach to all of Grantor's rights and remedies
10.
at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code,
11 U.S.C. § 365(h), including, without limitation, all of Grantor's rights to remain in possession
of the Premises.
Grantor shall not, without Beneficiary's prior written consent, elect to treat the
11.
Lease as terminated under Subsection 365(h)(1) of the Bankruptcy Code, 11 U.S.C. § 365(h)(l).
Any such election made without Beneficiary's consent shall be void.
Grantor hereby unconditionally assigns, transfers and sets over to Beneficiary all
12.
of Grantor's claims and rights to the payment of damages arising from any rejection of the Lease
by lessor or any other fee owner of the Premises under the Bankruptcy Code. Beneficiary shall
have the right to proceed in its own name or in the name of Grantor in respect of any claim, suit,
action or proceeding relating to the rejection of the Lease, including, without limitation, the right
to file and prosecute, either in its own name or in the name of Grantor, any proofs of claim,
complaints, motions, applications, notices and other documents, in any case in respect to the
lessor or any fee owner under the Bankruptcy Code. This assignment constitutes a present,
irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall
continue in effect until all of the obligations secured by this Deed of Trust shall have been
satisfied and discharged in full. Any amounts received by Beneficiary as damages arising out of
the rejection of the Lease as aforesaid shall be applied first to all costs and expenses of
Beneficiary (including, without limitation, attorneys' fees) incurred in connection with the
exercise of any of its rights or remedies under this Section and then in accordance with the
provisions of this Deed of Trust. Grantor shall promptly make, execute, acknowledge and
deliver, in form and substance satisfactory to Beneficiary, a UCC Financing Statement (Form
UCC-l) and all such additional instruments, agreements and other documents, as may at any
B-3
513
time hereafter be required by Beneficiary to effectuate and carry out the assignment made
pursuant to this Section.
13.
if pursuant to Subsection 365(h)(2) of the Bankruptcy Code, 11 U. S.C.
§ 365(h)(2), Grantor shall seek to offset against the rent reserved in the Lease the amount of any
damages caused by the nonperformance by the lessor or any fee owner of any of their obligations
under the Lease after the rejection by the lessor or any fee owner of the Lease under the
Bankruptcy Code, Grantor shall, prior to effecting such offset, notify Beneficiary of its intent to
do so, setting forth the amounts proposed to be so offset and the basis therefor. Beneficiary sha]]
have the right to object to all or any part of such offset that, in the reasonable judgment of
Beneficiary, would constitute a breach of the Lease, and in the event of such objection, Grantor
shall not effect any offset of the amounts so objected to by Beneficiary. Neither Beneficiary's
failure to object as aforesaid nor any objection relating to such offset shall constitute an approval
of any such offset by Beneficiary.
14.
If any action, proceeding, motion or notice shall be commenced or filed in respect
of the lessor or any fee owner, the Premises or the Lease in connection with any case under the
Bankruptcy Code, Beneficiary shall have the option, exercisable upon notice from Beneficiary to
Grantor, to conduct and conirol any such litigation with counsel of Beneficiary's choice.
Beneficiary may proceed in its own name or in the name of Grantor in connection with any such
litigation, and Grantor agrees to execute any and all powers, authorizations, consents or other
documents reasonably required by Beneficiary in connection therewith. Grantor shall, upon
demand, pay to Beneficiary all costs and expenses (including attorneys' fees) paid or incurred by
Beneficiary in connection with the prosecution or conduct of any such proceedings. Any such
costs or expenses not paid by Grantor as aforesaid shall be secured by the lien of this Deed of
Trust and shall be added to the principal amount of the indebtedness secured hereby. Grantor
shall not commence any action, suit, proceeding or case, or file any application or make any
motion (unless such motion is for the purpose of protecting the Lease and its value as security for
the obligations secured by this Deed of Trust), in respect of the Lease in any such case under the
Bankruptcy Code without the prior written consent of Beneficiary, which consent shall not be
unreasonably withheld or delayed.
Grantor shall, after obtaining knowledge thereof, promptly notify Beneficiary of
15.
any filing by or against the lessor or other fee owner of a petition under the Bankruptcy Code.
Grantor shall promptly deliver to Beneficiary, following receipt, copies of any and all notices,
summonses, pleadings, applications and other documents received by Grantor in connection with
any such petition and any proceedings relating thereto.
if there shall be filed by or against Grantor a petition under the Bankruptcy Code
16.
and Grantor, as lessee under the Lease, shall determine to reject the Lease pursuant to
Section 365(a) of the Bankruptcy Code, Grantor shall give Beneficiary not less than thirty (30)
days' prior notice of the date on which Grantor shall apply to the Bankruptcy Court for authority
to reject the Lease. Beneficiary shall have the right, but not the obligation, to serve upon Grantor
within such thirty (30) day period a notice stating that Beneficiary demands that Grantor assume
and assign the Lease to Beneficiary pursuant to Section 365 of the Bankruptcy Code. If
Beneficiary shall serve upon Grantor the notice described in the preceding sentence, Grantor
shall not seek to reject the Lease and shall comply with the demand provided for in the preceding
sentence.
B-4
514
Notwithstanding anything to the contrary contained herein, this Deed of Trust
17.
shall not constitute an assignment of the Lease and Beneficiary shall have not liability or
obligation thereunder by reason of its acceptance of this Deed of Trust.
544601.2
B-5
BK: 1381 P0: 2227
EXHIfflTA
DescrptiOfl of Land
EDEN SHOPPING CEN'IERLLC PROPERTY
PROPERTY OF OSBORNE DVESTh1ENTS, LLC.; ALT. THAT CERTAIN PARCEL OF LAND WITH
DROVEMENTS THEREON, SrFUATED IN THE CITY .01' EDEN. ILAXSVILLB TOWNSIIU', COUI4TI OF
ROCKD'JGHAM, STATE OF NORTH CAXOLINA. AND LYING NORTH OF ARBOR LANE. EAST OF PIERCE
STREET, AND WEST' OF SOUTHW000 DR3VE BEING KNOWN AS TAX PARCEL 798906431295, MORE
PARTICULARLY BOUNDED AND DESCRHEI) AS FOLLOWS:
BEGINNING AT AN EXISTING #5 REBAR LVTNG IN 1118 NORTHERN IUGHT OP WAY OF ARBOR LANE;
SARI POINT LIES S 1405'45' W. 523 6.24'(ORE) TIE 5236.70' C.F.l.0000Z80) FROM All E3aSTIN NORTH
CAROLINA GEODETIC SURVEY MONUNENT "CLUB'; THENCE WITH THE NORTHEBI4 RIGHT OF WAY OF
ARBOR LANE AND DIE EASTERN RIGHT OF WAY OF PIERCE STREET A. CURVE TURNING TO TIlE lUGIIT
WITH A RADIUS OF 2O.00 WElls AN ARC LENGTH OF 31 D7'. WITHA CHORD BEARING OF N 43'33'22 W.
WITH A CHORD LENGTH OP 28.1 F TO A NEW #5 JIEBAR SET, THENCE WITH THE EASTERN IUCIHT OF
WAY OF PIERCE STREET THE FOLLOWING CALLS N 0101417 E A DISTANCE OF 73.23 TO ANEW ilS
REBAP. SET; THENCE WITH A CURVE TUBI1ING TO THE LEFT WIllS A RADIUS 01' 430.00', WITILA34 ARC
LENGTH 01 182.9 1', WiTH A CHORD BEARING OF 14 10$6'SI W, WIllS A CHORD LENGTH OP 111.53 TO A
NEW #5 REBAR SET, THENCE WITH A CURVE TURNING TO THE J2PT WITH A RADIUS 01' 950,00. WiTH
AN ARC LENGTH OF 87.21', WITH A CHORD BEARING OFN 25°4547' W, WITH A CHORD LENGTH OF 87.11
TO A NEW #5 RE8AR SET, THEI4CEN 2r23'35' WA DISTANCE 01' 135.19 TO A NEW #5 REBAR SET IN 1118
EASTERN RiGHT OP WAY OF PIERCE STREET AND AT THE SOUTHWEST CORNER OF THE PROPERTY OF
HOREOIEAD MEMORIAL HOSPITAL (DEED BOOK 1241 PAGE 1966); TISCE WITH THE SOUTIIERI4
PROPERTY LINE. OF MOREBEAD 314ORIAL HOSPITAL N T7'35'42 E A DISTANCE OP 341.25' TO AN
EXISTING OS REBAR FOUND IN TilE WESTERN RIGHT OF WAY OF SO T.TIIIWOOD DRIVE; THENCE WITH
THE WESTERN RiGHT OP WAY OF SOUTHW000 DRIVE A CURVE I1JRNOSG TO THE LEFT WITH A
RADiUS OP 950:01, WITH AN ARC LENGTH OF 502.46', WITH A CHORD BEABDIG OF S 26 020400 8, WITH A
CHORD LENGTH 01' 496.62 TO A NEW 45 EEBAR SET, THENCE WITH THE WESTERN RIGHT OP WAY OF
SOUTISWOOD DRIVE AND THE NORTHERN RIGHT 01' WAY OF ARBOR LANE A CURVE TURNING TO 1111
P.IOTIT WITH A RADIUS OF 20.OP, WITH AN ARC LENGTH OF 31,99; WITH A CHORD BEARING OF 5
041920 W, WIllS A CHORD LENGTH OP 21.6910 AN EXISTING #5 REBAR POUND INTHE NORTHERN
RIGHT OP WAY OF ABBOItLANE, THENCE WITH TIlE NORTHERN RIGHT OF WAY OF ARBOR LANE A
CURVE TURNING TO TOIEFJGHT WITH A RADIUS OP 320.OP, WITH AN ARC LENGTH 01' 231.83', WITH A
CHORD BEARING OF S 70 05343 0 W, WiTH A CHORD LENGTH OF 226.79' TO AJSEXISTB'0G #5 REBAR
FOUND, THENCE N 08 02r02" WA DISTANCE OF 112.79' TO AN EXISTING #5 REBAR POUND; SAD) #5
REBAI1. IS THE POINT AND PLACE OF BEGD4ND4G, HAVING A2SAJOEA OF 179218.75 SQUARE FEET AND
4.116 ACRES.
A-I
BOOK
518501
1464
PAGE
1888 (6)
)
IIllI Ill IIUI
Filed
Rockingham County, NC
Rebecca B. Cipriani, Register of Deeds
10/11/2013 11:00:55AM
Fee Amt: $26.00
NC Excise Tax: $0.00
MITZI M. EVANS
ASSIGNMENT OF CONSTRUCTION DEED OF TRUST
(Mayodan Shopping Center, Rockingham, County, North Carolina)
Return To:
/
Jeremy S. Friedberg, Esq.
1045 1 Mill Run Circle, Suite 1000
Owings Mills, MD 21117
(410)581-7400
EXHIBIT 45
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