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, )

This instrument prepared by/return to:
Jeremy S. Friedberg, Esq.
Leitess Friedberg PC
1045 1 Mill Run Circle, Suite 1000
Owings Mills, Maryland 21117
[phone]

STATE OF NORTH CAROLINA )
ROCKINGHAM COUNTY
ASSIGNMENT OF CONSTRUCTION DEED OF TRUST
(Mayodan 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
Construction Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing
granted by Tyler Shopping Center LLC, a Delaware limited liability company, Pulaski Shopping
Center LLC, a Delaware limited liability company, Shawnee Shopping Center LLC, a Delaware
limited liability company, Ft. Dodge Shopping Center LLC, a Delaware limited liability
company, Keokuk Shopping Center LLC, a Delaware limited liability company, West Burlington
Shopping Center LLC, a Delaware limited liability company, Marshalltown Shopping Center
LLC, a Delaware limited liability company and Oskaloosa Shopping Center LLC, a Delaware
limited liability company (together "Grantor") to Lawyers Title Insurance Corporation, as
Trustee for the benefit of Assignor, as Beneficiary, recorded on August 29, 2006 at Book 1294
Page 1984 in the official records of Rockingham County, North Carolina, as amended by that
certain First Amendment to Construction Deed of Trust between Grantor and Assignor, recorded
on September 3, 2009 at Book 1381 Page 2228 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.I

I WITNESS WHEREOF, this instrument was signed as of the j
2013

7 day of September,

ASSIGNOR:
KEYBANK NATIONAL ASSOCIATION, a

national banking association

Witness Signature

7/

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. 1 day of September, 2013.

C

(

[NOTARIAL SEAL]

L
Notary Public

MYsL/j4res:
CARLA D. VVNTER
•

NOTARY PUBLIC STATE OF OH
-

MY COMMISSION EXFIRE
DECEMBER 18, 2016
/

DATED and effective as of this

27

day of September, 2013.

ECP COMMERCIAL I LLC, a Delaware limited

liability company

By:
Name: Ravi Bhá'gavatula
Its: Authorized Signatory

STATE OF CAL IFORNIA )

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
Commission
Notary Public - California
Orange County
MI Comm Expes Auj 31 2O1

AFFIX SEAL
My commission expires:_______

day of September, 2013

i;
Notary Public

BK: 1381 PQ: 2239

EXHIBIT A

Description of Land

All of that certain lot or parcel of land situated in Mayo Township, Rockingham County, North
Carolina, and more particularly described as follows:
All of Lot I as shown on the plat of IDK, LLC Subdivision recorded in Plat Book 60, Page Il,
Rockingham County Registry (the "Plat').
TOGETHER WITH non-exclusive easements for ingress, egress, regress, and utility purposes
over portions of Lots 2, 3, 4, and 5 as shown on the Plat for the benefit of said Lot 1, as follows:
1.

A 30-foot access and utility easement designated as "1 on the Plat;

2,

A 25-foot access and utility easement designated as 2" on the Plat; and

3.

A 30-foot access and utility easement designated as '3 on the Plat.

578465.1

A-i

This instrument prepared by/return to:
Jeremy S. Friedberg, Esq.
Leitess Friedberg PC
10451 Mill Run Circle, Suite 1000
Owings Mills, Maryland 21117
[phone]

STATE OF COLORADO )
PUEBLO COUNTY

1957991
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Gilbert Ortj Clerk/Recorder Pueblo County Co

Uhf

)

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ASSIGNMENT OF CONSTRUCTION DEED OF TRUST
(Pueblo West Shopping Center, Pueblo County, Colorado)

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 44 114-1306, 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
Construction Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing
granted by Durant Shopping Center LLC, a Delaware limited liability company, Newton
Shopping Center LLC, a Delaware limited liability company and Zachary Shopping Center LLC,
a Delaware limited liability company, (together, "Grantor") to Public Trustee of Pueblo County,
Colorado, as Trustee for the benefit of Assignor, as Beneficiary, recorded on October 20, 2006 as
instrument # 1698835 in the official records of Pueblo County, Colorado, as amended by that
certain First Amendment to Construction Deed of Trust between Grantor and Assignor, recorded
on August 25, 2009 as instrument # 1816477 in the official records of Pueblo County, Colorado
(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

EXHIBIT 46

1957991 PSN_TD 10/15/2013 12:20:51 PM
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Gilbert Ortiz Clerk/Recorder Pueblo County Co
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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

SN TD 10/15/2013 12:20:51 P11
1957991
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Gilbert Ortiz Clerk/Recorder Pueblo County, Co

R

ll' WITNESS WHEREOF, this instrument was signed as of the c

fl)

1"I'1'i1

11111

day of September,

2013.
ASSIGNOR:
KEYBANK NATIONAL ASSOCIATION, a
national banking association

iI?

-itness Signature

/
/
By:
/ //
Name: Jasn 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.

C\CL '

Notary Public

[NOTARIAL SEALI

My

_____________
:

CARLA D. WINTERS
NOTARY PUBLIC STATE OF OHI

MY COMMISSION EXPIRES
DECEMBER 18, 2016

SN ID 10/15/2013 12:20:51 P11
1957991
Page: 4 of S R 31.00 D 0.00 1 31.00
Gilbert Ortiz Clerk/Recorder, Pueblo County, Co

i'iI''i1

II I

DATED and effective as of this _____ day of September, 2013.

ECP COMMERCIAL I LLC, a Delaware limited
liability company

By:
Name: Ravi . hagavatula/'
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
O8ERTKESTEfl
Commission # 1989911
Notary Public California
Orange County
My Cornry Exres
31

day of September, 2013.

Notary Public

AFFIX SEAL
My commission expires:

-

/

ru

Page: 5 of 5 R 31.00 D 0.00 1 31.00
Gilbert Orti2 Clerk/Recorder Pueblo County, Co

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ThlI
08/2512009 0210:10 PM

EXHIBIT A
Description of Land

Parcel A", Lot Line Vacation No. 2006 - 010 (formerly Lots 13 through
17, Block 2, Tract 240) according to the plat thereof filed for record
October 3, 2006 Reception Number 1696395 in the Office of the
Pueblo County Clerk & Recorder, County of Pueblo, State of Colorado.

A..1

ii

iii

First American Title Insurance Company
COMMITMENT INFORMATION SHEET
The Title Insurance Commitment is a legal contract between you and the Company. It is issued to show
the basis on which we will issue a Title Insurance Policy to you. The Policy will insure you against certain
risks to the land title, subject to the limitations shown in the Policy.
The Company will give you a sample of the Policy form, if you ask.
The Commitment is based on the land title as of the Commitment Date. Any changes in the land title or
the transaction may affect the Commitment and the Policy.
The Commitment is subject to its Requirements, Exceptions and Conditions.
THIS INFORMATION IS NOT PART OF THE TITLE INSURANCE COMMITMENT. YOU SHOULD READ THE
COMMITMENT VERY CAREFULLY.
If you have any questions about the Commitment, contact:
First American Title Insurance Company National Commercial Services
Six Concourse Parkway, Suite 2000
Atlanta, GA 30328
or
The office which issued this Commitment

TABLE OF CONTENTS
AGREEMENT TO ISSUE POLICY
SCHEDULE A
1.
2.
3.
4.

Commitment Date
Policies to be Issued, Amounts and Proposed Insureds
Interest in the Land and Owner
Description of the Land

SCHEDULE B-I -- REQUIREMENTS
SCHEDULE B-II -- EXCEPTIONS
CONDITIONS

EXHIBIT 47

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Commitment Number: NCS-708676-3-ATL

TITLE INSURANCE COMMITMENT
BY

First American Title Insurance Company
AGREEMENT TO ISSUE POLICY
We agree to issue a policy to you according to the terms of the Commitment. When we show the policy
amount and your name as the proposed insured in Schedule A, this Commitment becomes effective as of
the Commitment Date shown in Schedule A.
If the Requirements shown in this Commitment have not been met within six (6) months after the
Commitment Date, our obligation under this Commitment will end. Also, our obligation under this
Commitment will end when the Policy is issued and then our obligation to you will be under the Policy.
Our obligation under this Commitment is limited by the following:
The Provisions in Schedule A.
The Requirements in Schedule B-I.
The Exceptions in Schedule B-II.
The Conditions.
This Commitment is not valid without SCHEDULE A and Sections I and II of SCHEDULE B.

First American Title Insurance Company

o
Commitment Number: NCS-708676-3-ATL

SCHEDULE A
File No.: NCS-708676-3-ATL
1.

Commitment Date: December 23, 2014 at 8:00 a.m.

2.

Policy (or Policies) to be issued:
a. ALTA Owners Policy (06-17-06)

$To Be Determined

Proposed Insured:
ECP Commercial I, LLC
b. ALTA Loan Policy (06-17-06)

$To Be Determined

Proposed Insured:
A Natural Person or Legal Entity to be Designated

3.

Fee Simple interest in the land described in this Commitment is owned, at the Commitment Date,
by Plainview Shopping Center II LLC, a Delaware limited liability company by virtue of that
certain QuitClaim Deed from Plainview Shopping Center LLC, a Delaware limited liability
company, as to an undivided 91.67% tenant in common interest (Tell City Shopping Center LLC,
a Delaware limited liability company [as to an undivided 78.34% interest]; Ottumwa Shopping
Center LLC, a Delaware limited liability company [as to an undivided 11.05% interest]; and
Keokuk Shopping Center LLC, a Delaware limited liability company [as to an undivided 2.28%
interest], have merged into Plainview Shopping Center LLC, a Delaware limited liability company),
and Newcastle Shopping Center LLC, a Delaware limited liability company (as to an undivided
8.33% interest), dated February 4, 2013, filed February 12, 2013, and recorded in Deed Book
1456, Page 168, Polk County, Georgia records.

4.

The Land referred to in this Commitment is described as follows:
See Schedule A attached hereto and made a part hereof

First American Title Insurance Company

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Commitment Number: NCS-708676-3-ATL

SCHEDULE A (Continued)
File No.: NCS-708676-3-ATL
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, 112.59 feet to a point; South 01 degree 41 minutes 15 seconds West, 617.55
feet to a 5/8 inch capped rebar found, said point being the True Point of Beginning;
thence leaving said westerly land lot line South 73 degrees 13 minutes 13 seconds East, 89.54 feet to a
5/8 inch capped rebar found; thence North 16 degrees 45 minutes 46 seconds East, 46.21 feet to a 5/8
inch capped rebar found; thence South 73 degrees 17 minutes 27 seconds East, 71.38 feet to a 5/8 inch
capped rebar found; thence along a curve to the left, an arc distance of 122.11 feet, said curve having a
radius of 78.50 feet and being subtended by a chord of 109.55 feet, at North 61 degrees 10 minutes 20
seconds East, to a 5/8 inch capped rebar found; thence North 17 degrees 09 minutes 12 seconds East,
19.32 feet to a 5/8 inch 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 second East, to a 5/8 inch capped rebar found; thence South 73 degrees 09
minutes 17 seconds East, 605.78 feet to a 5/8 inch capped rebar found; thence South 18 degrees 51
minutes 11 seconds West, 29.38 feet to a 5/8 inch capped rebar found; thence South 73 degrees 10
minutes 30 seconds East, 140.35 feet to a 5/8 inch capped rebar found; thence South 18 degrees 41
minutes 23 seconds West, 149.68 feet to a 5/8 inch capped rebar found; thence South 64 degrees 46
minutes 57 seconds East, 205.97 feet to a 5/8 inch 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 148.87 feet, said curve having a radius of 4842.80 feet and being subtended by a
chord of 148.67 feet, at South 28 degrees 40 minutes 10 seconds West, to a 5/8 inch 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 inch capped rebar found; thence North 73 degrees 10 minutes 24 seconds West, 1107.27
feet to a 5/8 inch capped rebar found on the westerly land lot line of Land Lot 1075; thence along said
westerly land lot line North 01 degree 38 minutes 29 seconds East, 128.51 feet to a 5/8 inch capped
rebar found, said point being the True Point of Beginning;
Said tract or parcel of land contains 7.520 acres and is more accurately depicted on a plat of survey
prepared by GeoSurvey, Ltd., dated January 31, 2006, Job Number 20052638.
As shown on ALTA/ACSM Land Title Survey for Cedartown Shopping Center, LLC, prepared by
GeoSurvey, Ltd., bearing the seal and certification of Joseph T. Baker, Georgia Land Surveyor No. 2674,
dated June 23, 2006.
Together with rights and benefits pursuant to and contained in the following:
(A) Access Easement by and between Wal-Mart Stores East, LP, a Delaware limited partnership and
Cedartown LLC, a Delaware limited liability company, dated as of March 23, 2006, filed March 29, 2006
and recorded in Deed Book 1146, Page 527, records of the Superior Court of Polk County, Georgia; and
(B) Utility Easement Agreement by and between Wal-Mart Stores East, LP, a Delaware limited partnership
and Cedartown LLC, a Delaware limited liability company, dated as of March 23, 2006, filed March 29,
2006 and recorded in Deed Book 1146, Page 538, aforesaid records.
First American Title Insurance Company

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Commitment Number: NCS-708676-3-ATL

SCHEDULE B - SECTION I
REQUIREMENTS
File No.: NCS-708676-3-ATL
The following requirements must be met:
1.

Pay the agreed amounts for the interest in the Land and/or mortgage to be Insured.

2.

Pay us the premiums, fees and charges for the policy.

3.

Pay all taxes and/or assessments, levied and assessed against the land, which are due and
payable.

4.

You must tell us in writing the name of anyone not referred to in this commitment who will get
an interest in the Land or who will make a loan on the Land. We may then make additional
requirements or exceptions.

5.

Documents satisfactory to us creating the interest in the Land and/or the Mortgage to be insured
must be signed, delivered and recorded:
a.

b.

6.

Limited Warranty Deed from Plainview Shopping Center II LLC, a Delaware
limited liability company, in a form approved by the Company, to ECP Commercial
I, LLC conveying interest in subject property.
Deed to Secure Debt from ECP Commercial I, LLC, in a form approved by the
Company, to A Natural Person or Legal Entity to be Designated, conveying interest
in subject property to secure the loan.

As to the execution of the aforementioned Deed(s), the Company requires proof, satisfactory to
us, that:
a.

The Articles of Organization listing the members of the limited liability company have
been produced and reviewed;

b.

The Deeds(s), required above, has been authorized by the managing member, reciting
the terms of the conveyance; and

c.

The member executing the above-required Deed(s) hold office in the company as
evidenced by a certificate of incumbency.

7.

Evidence of the good standing of Owners and, as appropriate, of the Insured, and of the
incumbency and authority of the officers of Owners and of the Insured who will execute the
instrument of conveyance.

8.

Execution and delivery to us of an Owner's Affidavit, in context to the transaction. NOTE: if
brokers are involved in this transaction, we will require evidence of release and satisfaction of
broker's liens.
First American Title Insurance Company

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Commitment Number: NCS-708676-3-ATL

9.

A current and accurate survey of the land, certified to the Company, to the Insured, and to the
Lender, if we are expected to delete or modify the general survey exception.

10.

Proof satisfactory to the Company that no improvements or repairs were made upon the land
within the 95 days preceding the filing for record of the instrument creating the interest to be
insured, or in the event such improvements or repairs were made, that they are completed and
that all costs incurred in connection therewith have been fully paid; that there are no easements
or claims of easements which do not appear of public record; and that there are no parties in
possession or with a right to possession of the subject property.

11.

Payment, satisfaction and cancellation of or release from Deed to Secure Debt, Assignment of
Rents and Security Agreement from Cedartown LLC, a Delaware limited liability company, the
sole member of which is Building Exchange Company, as Virginia corporation to Phillip Bittker, et.
al, in the original principal amount of $1,100,000.00, dated March 23, 2006, filed March 29,
2006, and recorded in Deed Book 1146, Page 559, Polk County, Georgia, records; as affected by
that certain Loan Assumption Agreement by and among Cedartown LLC, a Delaware limited
liability company and Tell City Shopping Center LLC, a Delaware limited liability company (an
undivided 78.34% interest); Ottumwa Shopping Center LLC, a Delaware limited liability company
(an undivided 11.05% interest); Newcastle Shopping Center LLC, a Delaware limited liability
company (an undivided 8.33% interest) and Keokuk Shopping Center LLC, a Delaware limited
liability company (an undivided 2.28% interest), dated August 22, 2006, filed September 7, 2006,
and recorded in Deed Book 1177, Page 357, aforesaid records; as affected by that certain
Subordination Agreement by and among Cedartown LLC, a Delaware limited liability company
and Jeff H. Farmer, III, a Tennessee resident and duly authorized collection agent for the Payees
listed in the Deed to Secure Debt, for the use and benefit of KeyBank National Association, a
national banking association, dated August 25, 2006, filed September 7, 2006, and recorded in
Deed Book 1177, Page 364, aforesaid records; as affected by that certain Confirmatory
Subordination Agreement by Jeff H. Farmer, III, a Tennessee resident, as Collection Agent for
the use and benefit of KeyBank National Association, a national banking association, dated June
29, 2009, filed September 9, 2009, and recorded in Deed Book 1340, Page 133, aforesaid
records; as affected by that certain Confirmatory Subordination Agreement, dated July 28, 2011,
filed July 29, 2011, and recorded in Deed Book 1402, Page 98, aforesaid records.

12.

Payment, satisfaction and cancellation of or release from Mortgage Assignment of Rents, Security
Agreement and Fixture Filing from Cedartown LLC, a Delaware limited liability company to
KeyBank National Association, its successors and assigns, in the original principal amount of
$3,800,000.00, dated August 4, 2006, filed August 9, 2006, and recorded in Deed Book 1172,
Page 1, aforesaid records; as affected by that certain Transferee Agreement by and among Tell
City Shopping Center LLC, a Delaware limited liability company, Ottumwa Shopping Center LLC, a
Delaware limited liability company, New Castle Shopping Center LLC, a Delaware limited liability
company, and Keokuk Shopping Center LLC, a Delaware limited liability company and Cedartown
LLC, a Delaware limited liability company, and KeyBank National Association, dated, August 22,
2006, filed September 7, 2006, and recorded in Deed Book 1177, Page 344, aforesaid records; as
amended by that certain First Amendment to Mortgage, Assignment of Rents, Security
Agreement and Fixture Filing and Deed to Secure Debt, dated June 26, 2009, filed September 9,
2009, and recorded in Deed Book 1340, Page 112, aforesaid records; as assigned by that certain
Assignment of Mortgage from KeyBank National Association, a national banking association to
ECP Commercial I LLC, a Delaware limited liability company, dated September 27, 2013, and filed
October 7, 2013, and recorded in Deed Book 1483, Page 219, aforesaid records.

13.

Release from Assignment of Leases and Rents from Cedartown LLC, a Delaware limited liability
company to KeyBank National Association, a national banking association, dated August 4, 2006,
filed August 9, 2006, and recorded in Deed Book 1172, Page 30, aforesaid records; as amended
by that certain First Amendment to Assignment of Leases and Rents by and among Tell City
Shopping Center LLC, a Delaware limited liability company, Ottumwa Shopping Center LLC, a
Delaware limited liability company, New Castle Shopping Center LLC, a Delaware limited liability
First American Title Insurance Company

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Commitment Number: NCS-708676-3-ATL

company, and Keokuk Shopping Center LLC, a Delaware limited liability company and KeyBank
National Association, a national banking association, dated June 26, 2009, filed September 9,
2009, and recorded in Deed Book 1340, Page 123, aforesaid records; assigned by that certain
Assignment of Assignment of Leases and Rents from KeyBank National Association and KeyBank
National Association to ECP Commercial I LLC, a Delaware limited liability company, dated
September 27, 2013, filed October 7, 2013, and recorded in Deed Book 1483, Page 238,
aforesaid records.
14.

Termination of or release from UCC Financing Statement showing Cedartown LLC, a Delaware
limited liability company as Debtor, and KeyBank National Association as Secured Party, filed
August 9, 2006, and recorded in Deed Book 1172, Page 43, aforesaid records; as amended to
continue by that certain UCC Financing Statement Amendment, filed April 4, 2011, and recorded
in Deed Book 1392, Page 526, aforesaid records; as amended to assign by that certain UCC
Financing Statement from KeyBank National Association to ECP Commercial I LLC, filed October
28, 2013, and recorded in Deed Book 1485, Page 246, aforesaid records.

15.

Payment, satisfaction and cancellation of or release from Deed to Secure Debt, Assignment of
Rents, Security Agreement and Fixture Filing from Tell City Shopping Center LLC, a Delaware
limited liability company, Ottumwa Shopping Center LLC, a Delaware limited liability company,
New Castle Shopping Center LLC, a Delaware limited liability company, and Keokuk Shopping
Center LLC, a Delaware limited liability company to Keybank National Association, its successors
and assigns, in the original principal amount of $68,416,993.77, dated July 28, 2011, filed July
29, 2011, and recorded in Deed Book 1402, Page 55, aforesaid records; as affected by that
certain Confirmatory Subordination Agreement, dated July 28, 2011, filed July 29, 2011, and
recorded in Deed Book 1402, Page 98, aforesaid records; as assigned by that certain Assignment
of Deed to Secure Debt from KeyBank National Association, a national banking association to ECP
Commercial I LLC, a Delaware limited liability company, dated September 27, 2013, filed October
7, 2013, and recorded in Deed Book 1483, Page 227, aforesaid records.

16.

Release from Assignment of Leases and Rents from Tell City Shopping Center LLC, a Delaware
limited liability company, Ottumwa Shopping Center LLC, a Delaware limited liability company,
New Castle Shopping Center LLC, a Delaware limited liability company, and Keokuk Shopping
Center LLC, a Delaware limited liability company to KeyBank National Association, a national
banking association, dated July 28, 2011, filed July 29, 2011, and recorded in Deed Book 1402,
Page 83, aforesaid records; as assigned by that certain Assignment of Assignment of Leases and
Rents from KeyBank National Association, a national banking association to ECP Commercial I
LLC, a Delaware limited liability company, dated September 27, 2013, filed October 7, 2013, and
recorded in Deed Book 1483, Page 234, aforesaid records.

17.

Termination of or release from UCC Financing Statement showing Tell City Shopping Center LLC,
a Delaware limited liability company as Debtor, and KeyBank National Association as Secured
Party, filed July 29, 2011, and recorded in Deed Book 1402, Page 94, aforesaid records; as
assigned by that certain UCC Financing Statement Amendment from KeyBank National
Association to ECP Commercial I LLC, filed October 28, 2013, and recorded in Deed Book 1485,
Page 247, aforesaid records.

18.

Payment, satisfaction and cancellation of or release from that Fifa by Tell City Shopping Center
LLC, dated June 11, 2014, filed June 25, 2014, and recorded in Lien Book 152, Page 233,
aforesaid records, in the original sum of $35,831.55, plus penalty and interest, if any.

19.

Payment, satisfaction and cancellation of or release from that Fifa by Tell City Shopping Center
LLC, dated May 20, 2014, filed June 2, 2014, and recorded in Lien Book 150, Page 342, aforesaid
records, in the original sum of $14, 814.24, plus penalty and interest, if any.

First American Title Insurance Company

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Commitment Number: NCS-708676-3-ATL

20.

Payment, satisfaction and cancellation of or release from that Fifa by Tell City Shopping Center
LLC, dated June 28, 2013, filed July 22, 2013, and recorded in Lien Book 144, Page 801,
aforesaid records, in the original sum of $42,510.09, plus penalty and interest, if any.

21.

Payment, satisfaction and cancellation of or release from that Fifa by Tell City Shopping Center
LLC, dated July 8, 2013, filed for record July 15, 2013, and recorded in Lien Book 143, Page 42,
aforesaid records, in the original sum of $17,642.36, plus penalty and interest, if any.

NOTE: The Company will insure without exception for secured indebtedness which appears of record only
if:
a.
A current payoff letter with a per diem accrual and wiring instructions is received by the
company at or prior to closing from the record holder of the debt and funds for the payoff are
paid to the Company's account for satisfaction of the amount due;
OR
b.
On or before the date set for closing the Company receives a duly executed and recordable
release, cancellation and satisfaction the debt, duly executed by and with a cover letter from the
record holder of the debt, which unconditionally authorizes the Company to record the release
upon the occurrence of closing.
22.

The Georgia Commercial Real Estate Broker Lien Act applies to a sale, lease, option, loan or other
transfer of commercial real estate. The Company must be provided proof, in affidavit form from
the Seller and Purchaser, satisfactory to the Company, (a) of payment in full of any broker's
services which have been engaged with regard to the management, sale, purchase, lease, option
or other conveyance or proposed conveyance of any interest in the subject commercial real
estate, together with a lien waiver or estoppel letter from any party determined by such affidavit
to have a right to file a broker's lien, and (b) that no notice of lien for any such services has been
received. In the event that said affidavit(s) contain any qualification with respect to any such
services, proof of payment in full for all such services, together with a lien waiver or estoppel
letter from such identified Broker(s) must be obtained.
NOTE: Where the possibility of a right to file a broker's lien is determined and no lien waiver or
estoppel letter provided to the Company, the following exception will be included in the policy to
be issued pursuant to this Commitment.
Any broker's lien, or right to a broker's lien, imposed by law.

23.

Based upon information developed or received in satisfaction of the above, the Company
reserves the right to impose additional conditions or to set new requirements.

First American Title Insurance Company

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Commitment Number: NCS-708676-3-ATL

SCHEDULE B - SECTION II
EXCEPTIONS FROM COVERAGE
File No.: NCS-708676-3-ATL
Any policy we issue will have the following exceptions unless they are taken care of to our satisfaction.
1.

Taxes or assessments of any taxing authority that levies taxes or assessments on real property.

2.

Any facts, rights, interests, or claims that are not shown by the Public Records but that could be
ascertained by an inspection of the Land or that may be asserted by persons in possession of the
Land.

3.

Easements, liens or encumbrances, or claims thereof, not shown by the Public Records.

4.

Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title
that would be disclosed by an accurate and complete land survey of the Land and not shown by
the Public Records.

5.

Any mineral or mineral rights leased, granted or retained by current or prior owners.

6.

Taxes and assessments for the year 2014 which are liens due and payable, taxes for the year
2015 and subsequent years, not yet due and payable, and taxes for prior years arising from
reassessments or digest disputes.
The 2014 State and Polk County, Georgia taxes are due and payable in the amount of $31,465.24
on January 31, 2015 for tax map reference no. 029 002D. (The base amount was $30,848.27)
Amount due is good through February 2, 2014.
The 2014 City of Cedartown taxes are due and payable in the amount of $12,974.49 on January
31, 2015 for tax map reference no. 029 002D. (The base amount was $12,720.09)
The 2013 State and Polk County taxes are due and payable in the amount of $37,974.12 on
January 31, 2015 for tax map reference no. 029 002D. (The base amount was $30,608.16)
Amount due is good through February 2, 2014.
The 2013 City of Cedartown taxes are due and payable in the amount of $8,640.48 on January
31, 2015 for tax map reference no. 029 002D. (The base amount was $12,778.48) (Note:
Amount paid was not available)
The 2012 State and Polk County taxes are due and payable in the amount of $8,528.77 on
January 31, 2015 for tax map reference no. 029 002D. (The base amount was $36.316.32 and a
payment was made in the amount of $40,518.26) Amount due is good through February 2, 2014.

7.

Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in
the public records or attaching subsequent to the effective date hereof but prior to the date
the proposed Insured acquires for value of record the estate or interest covered by this
Commitment.

First American Title Insurance Company

Commitment Number: NCS-708676-3-ATL

8.

Any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished,
imposed by law and not shown by the public records.

9.

No insurance is afforded as to the acreage or square footage contained in the insured property.

10.

Rights of upper and lower riparian owner's in and to the waters of any creek or stream which
bounds or traverses the land, free from increase, decrease or pollution.

11.

Rights of tenants in possession, as tenants only, under unrecorded occupancy agreements.

12.

Use restrictions as contained in that certain Warranty Deed from Wal-Mart Stores East, LP, a
Delaware limited partnership to Cedartown LLC, a Delaware limited liability company, dated
March 23, 2006, filed for record March 29, 2006, and recorded in Deed Book 1146, Page
519, Polk County, Georgia records.

13.

Drainage Easement from Cedartown LLC, a Delaware limited liability company to Wal-Mart Stores
East, LP, a Delaware limited partnership, dated March 23, 2006, filed for record April 18, 2006,
and recorded in Deed Book 1150, Page 508, aforesaid records.

14.

Terms and provisions of that certain Utility Easement Agreement, by and between Wal-Mart
Stores East, LP, a Delaware limited partnership and Cedartown LLC, a Delaware limited liability
company, dated March 23, 2006, filed for record March 29, 2006, and recorded in Deed Book
1146, Page 538, aforesaid records. (insurable appurtenant easement)

15.

Access Easment from Wal-Mart Stores East, LP, a Delaware limited partnership to Cedartown
LLC, a Delaware limited liability company, dated March 23, 2006, filed for record March 29, 2006,
and recorded in Deed Book 1146, Page 527, aforesaid records. (insurable appurtenant easement)

16.

Conveyance of access rights as contained in that certain Right of Way Deed from Mary Virginia
Hamrick to Department of Transportation, dated July 31, 1995, filed for record July 31, 1995, and
recorded in Deed Book 519, Page 650, aforesaid records.

17.

Easement from D. C. Brock to Georgia Power Company dated April 11, 1944, filed for record April
26, 1944, and recorded in Deed Book 66, Page 167, aforesaid records.

18.

Matters as shown on that certain plat recorded in Plat Book Z, Page 106, aforesaid records.

19.

Matters as would be disclosed by a current and accurate survey and inspection of the subject
premises.

First American Title Insurance Company

Commitment Number: NCS-708676-3-ATL

CONDITIONS
1.

DEFINITIONS
(a) "Mortgage" means mortgage, deed of trust or other security instrument. (b) "Public Records"
means title records that give constructive notice of matters affecting your title according to the
state statutes where your Land is located.

2.

LATER DEFECTS
The Exceptions in Schedule B - Section II may be amended to show any defects, liens or
encumbrances that appear for the first time in the public records or are created or
attach between the Commitment Date and the date on which all of the Requirements (a) and (c)
of Schedule B - Section I are met. We shall have no liability to you because of this amendment.

3.

EXISTING DEFECTS
If any defects, liens or encumbrances existing at Commitment Date are not shown in Schedule B,
we may amend Schedule B to show them. If we do amend Schedule B to show these defects,
liens or encumbrances, we shall be liable to you according to Paragraph 4 below unless you knew
of this information and did not tell us about it in writing.

4.

LIMITATION OF OUR LIABILITY
Our only obligation is to issue to you the Policy referred to in this Commitment, when you have
met its Requirements. If we have any liability to you for any loss you incur because of an error in
this Commitment, our liability will be limited to your actual loss caused by your relying on this
Commitment when you acted in good faith to:
Comply with the Requirements shown in Schedule B - Section I
or
Eliminate with our written consent any Exceptions shown in Schedule B - Section II.
We shall not be liable for more than the Policy Amount shown in Schedule A of this Commitment
and our liability is subject to the terms of the Policy form to be issued to you.

5.

CLAIMS MUST BE BASED ON THIS COMMITMENT
Any claim, whether or not based on negligence, which you may have against us concerning the
title to the Land must be based on this Commitment and is subject to its terms.

First American Title Insurance Company

Commitment Number: NCS-708676-3-ATL

Privacy Information
We Are Committed to Safeguarding Customer Information
In order to better serve your needs now and in the future, we may ask you to provide us with certain information. We understand that you may be concerned about what we will do with such
information - particularly any personal or financial information. We agree that you have a right to know how we will utilize the personal information you provide to us. Therefore, together with our
subsidiaries we have adopted this Privacy Policy to govern the use and handling of your personal information.
Applicability
This Privacy Policy governs our use of the information that you provide to us. It does not govern the manner in which we may use information we have obtained from any other source, such as
information obtained from a public record or from another person or entity. First American has also adopted broader guidelines that govern our use of personal information regardless of its source.
First American calls these guidelines its Fair Information Values.
Types of Information
Depending upon which of our services you are utilizing, the types of nonpublic personal information that we may collect include:
Information we receive from you on applications, forms and in other communications to us, whether in writing, in person, by telephone or any other means;
Information about your transactions with us, our affiliated companies, or others; and
Information we receive from a consumer reporting agency.
Use of Information
We request information from you for our own legitimate business purposes and not for the benefit of any nonaffiliated party. Therefore, we will not release your information to nonaffiliated parties
except: (1) as necessary for us to provide the product or service you have requested of us; or (2) as permitted by law. We may, however, store such information indefinitely, including the period
after which any customer relationship has ceased. Such information may be used for any internal purpose, such as quality control efforts or customer analysis. We may also provide all of the types of
nonpublic personal information listed above to one or more of our affiliated companies. Such affiliated companies include financial service providers, such as title insurers, property and casualty
insurers, and trust and investment advisory companies, or companies involved in real estate services, such as appraisal companies, home warranty companies and escrow companies. Furthermore,
we may also provide all the information we collect, as described above, to companies that perform marketing services on our behalf, on behalf of our affiliated companies or to other financial
institutions with whom we or our affiliated companies have joint marketing agreements.

•
•
•

Former Customers
Even if you are no longer our customer, our Privacy Policy will continue to apply to you.
Confidentiality and Security
We will use our best efforts to ensure that no unauthorized parties have access to any of your information. We restrict access to nonpublic personal information about you to those individuals and
entities who need to know that information to provide products or services to you. We will use our best efforts to train and oversee our employees and agents to ensure that your information will be
handled responsibly and in accordance with this Privacy Policy and First American's Fair Information Values. We currently maintain physical, electronic, and procedural safeguards that comply with
federal regulations to guard your nonpublic personal information.
Information Obtained Through Our Web Site
First American Financial Corporation is sensitive to privacy issues on the Internet. We believe it is important you know how we treat the information about you we receive on the Internet.
In general, you can visit First American or its affiliates’ Web sites on the World Wide Web without telling us who you are or revealing any information about yourself. Our Web servers collect the
domain names, not the e-mail addresses, of visitors. This information is aggregated to measure the number of visits, average time spent on the site, pages viewed and similar information. First
American uses this information to measure the use of our site and to develop ideas to improve the content of our site.
There are times, however, when we may need information from you, such as your name and email address. When information is needed, we will use our best efforts to let you know at the time of
collection how we will use the personal information. Usually, the personal information we collect is used only by us to respond to your inquiry, process an order or allow you to access specific
account/profile information. If you choose to share any personal information with us, we will only use it in accordance with the policies outlined above.
Business Relationships
First American Financial Corporation's site and its affiliates' sites may contain links to other Web sites. While we try to link only to sites that share our high standards and respect for privacy, we are
not responsible for the content or the privacy practices employed by other sites.
Cookies
Some of First American's Web sites may make use of "cookie" technology to measure site activity and to customize information to your personal tastes. A cookie is an element of data that a Web site
can send to your browser, which may then store the cookie on your hard drive.
FirstAm.com uses stored cookies. The goal of this technology is to better serve you when visiting our site, save you time when you are here and to provide you with a more meaningful and
productive Web site experience.
-------------------------------------------------------------------------------Fair Information Values
Fairness We consider consumer expectations about their privacy in all our businesses. We only offer products and services that assure a favorable balance between consumer benefits and consumer
privacy.
Public Record We believe that an open public record creates significant value for society, enhances consumer choice and creates consumer opportunity. We actively support an open public record
and emphasize its importance and contribution to our economy.
Use We believe we should behave responsibly when we use information about a consumer in our business. We will obey the laws governing the collection, use and dissemination of data.
Accuracy We will take reasonable steps to help assure the accuracy of the data we collect, use and disseminate. Where possible, we will take reasonable steps to correct inaccurate information.
When, as with the public record, we cannot correct inaccurate information, we will take all reasonable steps to assist consumers in identifying the source of the erroneous data so that the consumer
can secure the required corrections.
Education We endeavor to educate the users of our products and services, our employees and others in our industry about the importance of consumer privacy. We will instruct our employees on
our fair information values and on the responsible collection and use of data. We will encourage others in our industry to collect and use information in a responsible manner.
Security We will maintain appropriate facilities and systems to protect against unauthorized access to and corruption of the data we maintain.

Form 50-PRIVACY (9/1/10)

Page 1 of 1

Privacy Information (2001-2010 First American Financial Corporation)

First American Title Insurance Company

First American Title Insurance Company
COMMITMENT INFORMATION SHEET
The Title Insurance Commitment is a legal contract between you and the Company. It is issued to show
the basis on which we will issue a Title Insurance Policy to you. The Policy will insure you against certain
risks to the land title, subject to the limitations shown in the Policy.
The Company will give you a sample of the Policy form, if you ask.
The Policy contains an arbitration clause. All arbitrable matters when the Amount of Insurance is
$2,000,000 or less shall be arbitrated at the option of either the Company or you as the exclusive remedy
of the parties. You may review a copy of the arbitration rules at http://www.alta.org/.
The Commitment is based on the land title as of the Commitment Date. Any changes in the land title or
the transaction may affect the Commitment and the Policy.
The Commitment is subject to its Requirements, Exceptions and Conditions.
THIS INFORMATION IS NOT PART OF THE TITLE INSURANCE COMMITMENT. YOU SHOULD READ THE
COMMITMENT VERY CAREFULLY.
If you have any questions about the Commitment, contact:
First American Title Insurance Company National Commercial Services
Six Concourse Parkway, Suite 2000
Atlanta, GA 30328
or
The office which issued this Commitment

TABLE OF CONTENTS
AGREEMENT TO ISSUE POLICY
SCHEDULE A
1.
2.
3.
4.

Commitment Date
Policies to be Issued, Amounts and Proposed Insureds
Interest in the Land and Owner
Description of the Land

SCHEDULE B-I -- REQUIREMENTS
SCHEDULE B-II -- EXCEPTIONS
CONDITIONS

EXHIBIT 48

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Commitment Number: NCS-708676-4-ATL

TITLE INSURANCE COMMITMENT
BY

First American Title Insurance Company
AGREEMENT TO ISSUE POLICY
We agree to issue a policy to you according to the terms of the Commitment. When we show the policy
amount and your name as the proposed insured in Schedule A, this Commitment becomes effective as of
the Commitment Date shown in Schedule A.
If the Requirements shown in this Commitment have not been met within six (6) months after the
Commitment Date, our obligation under this Commitment will end. Also, our obligation under this
Commitment will end when the Policy is issued and then our obligation to you will be under the Policy.
Our obligation under this Commitment is limited by the following:
The Provisions in Schedule A.
The Requirements in Schedule B-I.
The Exceptions in Schedule B-II.
The Conditions.
This Commitment is not valid without SCHEDULE A and Sections I and II of SCHEDULE B.

First American Title Insurance Company

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Commitment Number: NCS-708676-4-ATL

SCHEDULE A
1.

Commitment Date: January 07, 2015 at 8:00 am

2.

Policy (or Policies) to be issued:
a. ALTA Owners Policy (06-17-06)

$0.00

Proposed Insured:
ECP Commercial I, LLC
b. ALTA Loan Policy (06-17-06)

$0.00

Proposed Insured:
Will Advise

3.

The Estate or Interest in the land described or referred to in the Commitment is:
Leasehold Interest

4.

Title to the estate or interest in the land is at the Effective Date vested in:
Eden Shopping Center LLC

5.

The Land referred to in this Commitment is located in Rockingham County, North Carolina is
described as follows:
See Exhibit A attached hereto and made a part hereof:

First American Title Insurance Company

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Commitment Number: NCS-708676-4-ATL

EXHIBIT A (Continued)
File No.: NCS-708676-4-ATL
Property of Osborne Investments, L.L.C.; all that certain parcel of land with improvements thereon,
situated in the City of Eden, Leaksville Township, County of Rockingham, State of North Carolina, and
lying North of Arbor Lane, East of Pierce Street, and West of Southwood Drive, being known as Tax
Parcel 798906481295, more particularly bounded and described as follows:
Beginning at an existing #5 rebar lying in the northern right of way of Arbor Lane; said point lies S
14°05'45" W, 5236.24' (Grid Tie = 5236.70' C.F. = 1.0000880) 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 right with a radius of 20.00', with an arc length of 31.27', with
a chord bearing of N 43°33'22" W, with a chord bearing of 28.18' to a new #5 Rebar set, thence with the
eastern right of way of Pierce Street the following calls N 01°14'17" E a distance of 73.23' to a new #5
rebar set; thence with a curve turning to the left with a radius of 430.00', with an arc length of 182.91'
with a chord bearing of N 10°56'51" W, with a chord length of 181.53' to a new #5 rebar set, thence
with a curve turning to the left with a radius of 950.00', with an arc length of 87.21', with a chord bearing
of N 25°45'47" W, with a chord length of 87.18' to a new #5 rebar set, thence N 28°23'35" W a distance
of 135.19' to a new #5 rebar set in the eastern right of way of Pierce Street and at the Southwest corner
of the property of Morehead Memorial Hospital (Deed Book 1241, Page 1966); thence with the southern
property of Morehead Memorial Hospital N 77°35'42" E a distance of 341.25' to an existing #5 rebar
found in the western right of way of Southwood Drive; thence with the western right of way of
Southwood Drive a curve turning to the left with a radius of 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 of way of Southwood Drive and the northern right of way of Arbor Lane a curve turning to
the right with a radius of 20.00', with an arc length of 31.99', with a chord bearing of S 04°19'20" W,
with a chord length of 28.69' to an existing #5 rebar found in the northern right of way of Arbor Lane,
thence with the 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', with a chord bearing of S 70°53'43" W, with a chord length of 226.79' to
an existing #5 rebar found, thence N 88°21'02" W a distance of 182.79' to an existing #5 rebar found;
said #5 rebar is the point and place of beginning, having an area of 179288.75 square feet and 4.116
acres.

First American Title Insurance Company

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Commitment Number: NCS-708676-4-ATL

SCHEDULE B - SECTION I
REQUIREMENTS
File No.: NCS-708676-4-ATL
The following requirements must be met:
1.

Pay the agreed amounts for the interest in the Land and/or mortgage to be Insured.

2.

Pay us the premiums, fees and charges for the policy.

3.

Pay all taxes and/or assessments, levied and assessed against the land, which are due and
payable.

4.

You must tell us in writing the name of anyone not referred to in this commitment who will get
an interest in the Land or who will make a loan on the Land. We may then make additional
requirements or exceptions.

5.

Documents satisfactory to us creating the interest in the Land and/or the Mortgage to be insured
must be signed, delivered and recorded.

6.

For insurance regarding priority of conveyance by Seller to Proposed Insured Owner over
potential liens for labor, service or materials, including surveyors, architects, engineers and rental
equipment (herein “liens”) of Seller, or priority of Proposed Insured Lender’s Deed of Trust (once
recorded) over said liens of Seller and/or Construction Borrower, receipt of applicable NCLTA
form (or substantially similar form approved by Company counsel prior to closing), completed
and executed by all required parties in compliance with the applicable form’s instructions
regarding same, as follows:
NO RECENT (last 120 days) OR CONTEMPLATED CONSTRUCTION :
NCLTA FORM 1 (Owner Affidavit) from every seller (on sale) or borrower (on refinance) who has not contracted for recent or contemplated
improvements on the Land or for a construction loan.
NOTE: If a contract purchaser has contracted for or is contemplating improvements, see “CONSTRUCTION CONTEMPLATED OR IN
PROCESS” below.

RECENTLY COMPLETED IMPROVEMENTS:
Non-MLA project: NCLTA FORM 2 (Owner/Contractor Affidavit, Lien Waiver, and Indemnity) from every Owner and every Contractor.
MLA project:
(1) Receipt of proof satisfactory to the Company that prior to closing or prior to first contracting for construction (whichever occurs first),
a. A Lien Agent was designated on the LiensNC.com website, AND
b. The Appointment of Lien Agent was posted at the Land.
(2) NCLTA FORM 5 (Owner Affidavit) from every Owner; AND
(3) NCLTA FORM 6 (MLA Lien Waiver) from every PLC-MLA.
CONSTRUCTION CONTEMPLATED OR IN PROCESS:
Non-MLA project: NCLTA FORM 3 (Owner/Contractor Affidavit, Indemnity and Lien Subordination) (for lender coverage only) from every
Owner and every Contractor.
MLA project:
(1) Receipt of proof satisfactory to the Company that prior to closing or prior to first contracting for construction (whichever occurs first):
a. A Lien Agent was designated on the LiensNC.com website, AND
b. The Appointment of Lien Agent was posted at the Land;
(2) NCLTA FORM 5 (Owner Affidavit) from every Owner; AND;
(3) NCLTA FORM 6 (MLA Lien Waiver) or NCLTA FORM 7 (MLA Subordination of Liens) from every PLC-MLA.
NOTE: If a contract purchaser has contracted for or is contemplating improvements prior to closing, see “NO RECENT IMPROVEMENTS”
above regarding seller lien affidavits as well.
MLA Project – MLA NOT Appointed Prior to Contracting for Labor Services or Materials
First American Title Insurance Company

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Commitment Number: NCS-708676-4-ATL
In all cases in which an MLA was required but not (timely) appointed, prior approval and terms of coverage (if any) by Company underwriting
counsel is required.
Applicable Definitions
“Non-MLA Projects”: Improvements are (1) first contracted before April 1, 2013, (2) for a value less than $30,000 OR (3) solely for
improvements to owner’s existing residence. All other projects (other than public projects) are MLA projects.
“Owner” is holder of any interest in the Land, including leasehold owner or contract purchaser.
“Potential Lien Claimant” (or “PLC - MLA”) is any person (or entity) entitled to file a claim of lien on real property (herein “Liens”), for
providing labor, services, (including design professionals such as surveyors, architects, engineers and landscape engineers), materials or rental
equipment provided for improvements to the Land (herein “Improvements”), pursuant to Article 2 of Chapter 44A of the North Carolina
General Statutes AND who either has filed a Notice to Lien Agent, OR was identified in the original Appointment, OR is a Design Professional
OR is a PLC whose first furnishing was within 15 days prior to closing OR (for waivers) delivered a claim of lien upon funds on the Owner.
“Contractor” Any person or entity who has performed or furnished or has contracted to perform or furnish Labor, Services or Materials
pursuant to a contract, either express or implied, with the Owner of real property for the making of an Improvement thereon OR who has
delivered a claim of lien upon funds to the Owner.

The Company may require additional documentation review for construction loans or where construction has recently been
completed. In these situations, please notify the Company as quickly as possible for additional requirements.

7.

Receipt of satisfactory Broker’s Lien Waiver, if applicable.

8.

Company to be provided with a list of endorsements, if any, to be issued in conjunction with this
policy.

9.

Company to be provided with the necessary information and/or documentation to complete
requested endorsements, if any.

10.

Cancellation or Release of Construction Deed of Trust, Assignment of Rents, Security Agreement
and Fixture Filing for Keybank National Association recorded in Book 1252, Page 483; amended
by that certain First Amendment to Construction Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing recorded Book 1381, Page 2214; assigned by that certain
Assignment of Construction Deed of Trust recorded in Book 1464, Page 1898; further assigned
by that certain Collateral Assignment of Loan and Loan Documents recorded in Book 1483, Page
2733; affected by Assignment of Leases and Rents recorded in Book 1252, Page 515; amended
by that certain First Amendment to Assignment of Leases and Rents recorded in Book 1381, Page
2222; assigned by that certain Assignment of Assignment Leases and Rents recorded Book 1464,
Page 1910; and further assigned by that certain Assignment of Assignment of Leases and Rents
recorded in Book 1465, Page 653, Rockingham County Registry. If such Deed of Trust secures an
equity line of credit, the equity line balance must be reduced to zero and the borrower or
borrower's attorney must request in writing that the lender make written entry upon the security
instrument showing payment in full and satisfaction thereof pursuant to North Carolina General
Statutes 45-81(c).

11.

Termination or release of UCC Financing Statement showing Eden Shopping Center, LLC as
Debtor, and KeyBank National Association as Secured Party, recorded in Book 1252, Page 524
continued by that certain UCC Financing Statement Amendment recorded in Book 1392 and Page
175, Rockingham County Registry.

12.

Cancellation or Release of Deed of Trust to Neale Johnson for the benefit of Allan M. Bittner,
successor to Jeff H. Farmer, Jr., recorded in Book 1404, Page 1943, Rockingham County Registry.

First American Title Insurance Company

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Commitment Number: NCS-708676-4-ATL

SCHEDULE B - SECTION II
EXCEPTIONS FROM COVERAGE
File No.: NCS-708676-4-ATL
Any policy we issue will have the following exceptions unless they are taken care of to our satisfaction.

1.

Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in
the public records or attaching subsequent to the effective date hereof but prior to the date the
proposed Insured acquires for value of record the estate or interest or mortgage thereon covered
by this Commitment.

2.

Taxes for the year 2015, which are a lien, not yet due and payable, and all subsequent years.

3.

Terms and provisions of that certain unrecorded Lease executed by Osborne Investments, LLC, a
North Carolina limited liability company to Eden Shopping Center LLC, a Delaware limited liability
company dated as evidenced by a Memorandum of which is recorded in Book 1252, Page 477,
Rockingham County Registry.

4.

Terms and provisions of that certain unrecorded Lease executed by Eden Shopping Center LLC, a
Delaware limited liability company to The Cato Corporation, a Delaware Corporation dated as
evidenced by a Memorandum of which is recorded in Book 1276, Page 1979, Rockingham County
Registry.

5.

Right of Way Agreement to Duke Energy Corporation recorded in Book 1241,
Page 264, Rockingham County Registry.

6.

Right(s) of way Agreement to Duke Energy Corporation recorded in Book 1205,
Page 1242, Rockingham County Registry.

7.

Right of Way Deed to Duke Power Company recorded in Book 384, Page 467, Rockingham
County Registry.

8.

Right of Way Deed to Duke Power Company recorded in Book 506, Page 289, Rockingham
County Registry.

9.

Right of Way Deed to Duke Power Company recorded in Book 570, Page 57, Rockingham County
Registry.

10.

Right of Way Deed to Duke Power Company recorded in Book 576, Page 132, Rockingham
County Registry.

11.

Easements and any other facts as shown in Plat Book 54, Page 44, Rockingham County Registry.

12.

Right of Way to Southern Power Company recorded in Book 185, Page 66, Rockingham County
Registry.
First American Title Insurance Company

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Commitment Number: NCS-708676-4-ATL

13.

Right of Way to Southern Power Company recorded in Book 185, Page 76, Rockingham County
Registry.

14.

Right of Way to Duke Power Company recorded in Book 349, Page 411, Rockingham County
Registry.

15.

Easement to International, Telephone Co. recorded in Book 240, Page 117, Rockingham County
Registry.

16.

Easement to Central Telephone Company recorded in Book 384, Page 287, Rockingham County
Registry.

17.

Right of Way to Southern Power Company recorded in Book 247, Page 61, Rockingham County
Registry.

18.

Right of Way Deed to Duke Power Company recorded in Book 418, Page 11, Rockingham County
Registry.

19.

Right of Way Deed to Duke Power Company recorded in Book 418, Page 277, Rockingham
County Registry.

20.

Rights of parties in possession as tenants only, under unrecorded leases(s) or rental
agreement(s).

21.

Encroachments, overlaps, boundary line disputes, deficiency in amount of area, rights,
easements, ditches, cartways, setbacks, rights of parties in possession, interests or claims which
would be revealed by a current and accurate survey and inspection of the Land.

First American Title Insurance Company

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Commitment Number: NCS-708676-4-ATL

CONDITIONS
1.

DEFINITIONS
(a) "Mortgage" means mortgage, deed of trust or other security instrument. (b) "Public Records"
means title records that give constructive notice of matters affecting your title according to the
state statutes where your Land is located.

2.

LATER DEFECTS
The Exceptions in Schedule B - Section II may be amended to show any defects, liens or
encumbrances that appear for the first time in the public records or are created or
attach between the Commitment Date and the date on which all of the Requirements (a) and (c)
of Schedule B - Section I are met. We shall have no liability to you because of this amendment.

3.

EXISTING DEFECTS
If any defects, liens or encumbrances existing at Commitment Date are not shown in Schedule B,
we may amend Schedule B to show them. If we do amend Schedule B to show these defects,
liens or encumbrances, we shall be liable to you according to Paragraph 4 below unless you knew
of this information and did not tell us about it in writing.

4.

LIMITATION OF OUR LIABILITY
Our only obligation is to issue to you the Policy referred to in this Commitment, when you have
met its Requirements. If we have any liability to you for any loss you incur because of an error in
this Commitment, our liability will be limited to your actual loss caused by your relying on this
Commitment when you acted in good faith to:
Comply with the Requirements shown in Schedule B - Section I
or
Eliminate with our written consent any Exceptions shown in Schedule B - Section II.
We shall not be liable for more than the Policy Amount shown in Schedule A of this Commitment
and our liability is subject to the terms of the Policy form to be issued to you.

5.

CLAIMS MUST BE BASED ON THIS COMMITMENT
Any claim, whether or not based on negligence, which you may have against us concerning the
title to the Land must be based on this Commitment and is subject to its terms.

First American Title Insurance Company

Commitment Number: NCS-708676-4-ATL

Privacy Information
We Are Committed to Safeguarding Customer Information
In order to better serve your needs now and in the future, we may ask you to provide us with certain information. We understand that you may be concerned about what we will do with such
information - particularly any personal or financial information. We agree that you have a right to know how we will utilize the personal information you provide to us. Therefore, together with our
subsidiaries we have adopted this Privacy Policy to govern the use and handling of your personal information.
Applicability
This Privacy Policy governs our use of the information that you provide to us. It does not govern the manner in which we may use information we have obtained from any other source, such as
information obtained from a public record or from another person or entity. First American has also adopted broader guidelines that govern our use of personal information regardless of its source.
First American calls these guidelines its Fair Information Values.
Types of Information
Depending upon which of our services you are utilizing, the types of nonpublic personal information that we may collect include:
Information we receive from you on applications, forms and in other communications to us, whether in writing, in person, by telephone or any other means;
Information about your transactions with us, our affiliated companies, or others; and
Information we receive from a consumer reporting agency.
Use of Information
We request information from you for our own legitimate business purposes and not for the benefit of any nonaffiliated party. Therefore, we will not release your information to nonaffiliated parties
except: (1) as necessary for us to provide the product or service you have requested of us; or (2) as permitted by law. We may, however, store such information indefinitely, including the period
after which any customer relationship has ceased. Such information may be used for any internal purpose, such as quality control efforts or customer analysis. We may also provide all of the types of
nonpublic personal information listed above to one or more of our affiliated companies. Such affiliated companies include financial service providers, such as title insurers, property and casualty
insurers, and trust and investment advisory companies, or companies involved in real estate services, such as appraisal companies, home warranty companies and escrow companies. Furthermore,
we may also provide all the information we collect, as described above, to companies that perform marketing services on our behalf, on behalf of our affiliated companies or to other financial
institutions with whom we or our affiliated companies have joint marketing agreements.

•
•
•

Former Customers
Even if you are no longer our customer, our Privacy Policy will continue to apply to you.
Confidentiality and Security
We will use our best efforts to ensure that no unauthorized parties have access to any of your information. We restrict access to nonpublic personal information about you to those individuals and
entities who need to know that information to provide products or services to you. We will use our best efforts to train and oversee our employees and agents to ensure that your information will be
handled responsibly and in accordance with this Privacy Policy and First American's Fair Information Values. We currently maintain physical, electronic, and procedural safeguards that comply with
federal regulations to guard your nonpublic personal information.
Information Obtained Through Our Web Site
First American Financial Corporation is sensitive to privacy issues on the Internet. We believe it is important you know how we treat the information about you we receive on the Internet.
In general, you can visit First American or its affiliates’ Web sites on the World Wide Web without telling us who you are or revealing any information about yourself. Our Web servers collect the
domain names, not the e-mail addresses, of visitors. This information is aggregated to measure the number of visits, average time spent on the site, pages viewed and similar information. First
American uses this information to measure the use of our site and to develop ideas to improve the content of our site.
There are times, however, when we may need information from you, such as your name and email address. When information is needed, we will use our best efforts to let you know at the time of
collection how we will use the personal information. Usually, the personal information we collect is used only by us to respond to your inquiry, process an order or allow you to access specific
account/profile information. If you choose to share any personal information with us, we will only use it in accordance with the policies outlined above.
Business Relationships
First American Financial Corporation's site and its affiliates' sites may contain links to other Web sites. While we try to link only to sites that share our high standards and respect for privacy, we are
not responsible for the content or the privacy practices employed by other sites.
Cookies
Some of First American's Web sites may make use of "cookie" technology to measure site activity and to customize information to your personal tastes. A cookie is an element of data that a Web site
can send to your browser, which may then store the cookie on your hard drive.
FirstAm.com uses stored cookies. The goal of this technology is to better serve you when visiting our site, save you time when you are here and to provide you with a more meaningful and
productive Web site experience.
-------------------------------------------------------------------------------Fair Information Values
Fairness We consider consumer expectations about their privacy in all our businesses. We only offer products and services that assure a favorable balance between consumer benefits and consumer
privacy.
Public Record We believe that an open public record creates significant value for society, enhances consumer choice and creates consumer opportunity. We actively support an open public record
and emphasize its importance and contribution to our economy.
Use We believe we should behave responsibly when we use information about a consumer in our business. We will obey the laws governing the collection, use and dissemination of data.
Accuracy We will take reasonable steps to help assure the accuracy of the data we collect, use and disseminate. Where possible, we will take reasonable steps to correct inaccurate information.
When, as with the public record, we cannot correct inaccurate information, we will take all reasonable steps to assist consumers in identifying the source of the erroneous data so that the consumer
can secure the required corrections.
Education We endeavor to educate the users of our products and services, our employees and others in our industry about the importance of consumer privacy. We will instruct our employees on
our fair information values and on the responsible collection and use of data. We will encourage others in our industry to collect and use information in a responsible manner.
Security We will maintain appropriate facilities and systems to protect against unauthorized access to and corruption of the data we maintain.

Form 50-PRIVACY (9/1/10)

Page 1 of 1

Privacy Information (2001-2010 First American Financial Corporation)

First American Title Insurance Company

First American Title Insurance Company
COMMITMENT INFORMATION SHEET
The Title Insurance Commitment is a legal contract between you and the Company. It is issued to show
the basis on which we will issue a Title Insurance Policy to you. The Policy will insure you against certain
risks to the land title, subject to the limitations shown in the Policy.
The Company will give you a sample of the Policy form, if you ask.
The Policy contains an arbitration clause. All arbitrable matters when the Amount of Insurance is
$2,000,000 or less shall be arbitrated at the option of either the Company or you as the exclusive remedy
of the parties. You may review a copy of the arbitration rules at http://www.alta.org/.
The Commitment is based on the land title as of the Commitment Date. Any changes in the land title or
the transaction may affect the Commitment and the Policy.
The Commitment is subject to its Requirements, Exceptions and Conditions.
THIS INFORMATION IS NOT PART OF THE TITLE INSURANCE COMMITMENT. YOU SHOULD READ THE
COMMITMENT VERY CAREFULLY.
If you have any questions about the Commitment, contact:
First American Title Insurance Company National Commercial Services
Six Concourse Parkway, Suite 2000
Atlanta, GA 30328
or
The office which issued this Commitment

TABLE OF CONTENTS
AGREEMENT TO ISSUE POLICY
SCHEDULE A
1.
2.
3.
4.

Commitment Date
Policies to be Issued, Amounts and Proposed Insureds
Interest in the Land and Owner
Description of the Land

SCHEDULE B-I -- REQUIREMENTS
SCHEDULE B-II -- EXCEPTIONS
CONDITIONS

EXHIBIT 49

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Commitment Number: NCS-708676-5-ATL

TITLE INSURANCE COMMITMENT
BY

First American Title Insurance Company
AGREEMENT TO ISSUE POLICY
We agree to issue a policy to you according to the terms of the Commitment. When we show the policy
amount and your name as the proposed insured in Schedule A, this Commitment becomes effective as of
the Commitment Date shown in Schedule A.
If the Requirements shown in this Commitment have not been met within six (6) months after the
Commitment Date, our obligation under this Commitment will end. Also, our obligation under this
Commitment will end when the Policy is issued and then our obligation to you will be under the Policy.
Our obligation under this Commitment is limited by the following:
The Provisions in Schedule A.
The Requirements in Schedule B-I.
The Exceptions in Schedule B-II.
The Conditions.
This Commitment is not valid without SCHEDULE A and Sections I and II of SCHEDULE B.

First American Title Insurance Company

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Commitment Number: NCS-708676-5-ATL

SCHEDULE A
1.

Commitment Date: January 07, 2015 at 8:00 am

2.

Policy (or Policies) to be issued:
a. ALTA Owners Policy (06-17-06)

$0.00

Proposed Insured:
ECP Commercial I, LLC
b. ALTA Loan Policy (06-17-06)

$0.00

Proposed Insured:
Will Advise

3.

The Estate or Interest in the land described or referred to in the Commitment is:
Fee Simple

4.

Title to the estate or interest in the land is at the Effective Date vested in:
Mayodan Shopping Center, LLC

5.

The Land referred to in this Commitment is located in Rockingham County, North Carolina is
described as follows:
See Exhibit A attached hereto and made a part hereof:

First American Title Insurance Company

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Commitment Number: NCS-708676-5-ATL

EXHIBIT A (Continued)
File No.: NCS-708676-5-ATL
All of that certain lot or parcel of land situated in Mayo Township, Rockingham County, North Carolina,
and more particularly described as follows:
All of Lot 1 as shown on the plat of the IDK, LLC Subdivision recorded in Plat Book 60, Page 11,
Rockingham County Registry (the "Plat").
Together with, non-exclusive easements for ingress, egress, regress and utility purposes over portion of
Lots 2, 3, 4 and 5 as shown on the Plat for the benefit of said Lot 1 as follows:
1. A 30-foot access and utility easement designated as "1" on the Plat;
2. A 25-foot access and utility easement designated as "2" on the Plat;
3. A 30-foot access and utility easement designated as "3" on the Plat;

First American Title Insurance Company

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Commitment Number: NCS-708676-5-ATL

SCHEDULE B - SECTION I
REQUIREMENTS
File No.: NCS-708676-5-ATL
The following requirements must be met:
1.

Pay the agreed amounts for the interest in the Land and/or mortgage to be Insured.

2.

Pay us the premiums, fees and charges for the policy.

3.

Pay all taxes and/or assessments, levied and assessed against the land, which are due and
payable.

4.

You must tell us in writing the name of anyone not referred to in this commitment who will get
an interest in the Land or who will make a loan on the Land. We may then make additional
requirements or exceptions.

5.

Documents satisfactory to us creating the interest in the Land and/or the Mortgage to be insured
must be signed, delivered and recorded.

6.

For insurance regarding priority of conveyance by Seller to Proposed Insured Owner over
potential liens for labor, service or materials, including surveyors, architects, engineers and rental
equipment (herein “liens”) of Seller, or priority of Proposed Insured Lender’s Deed of Trust (once
recorded) over said liens of Seller and/or Construction Borrower, receipt of applicable NCLTA
form (or substantially similar form approved by Company counsel prior to closing), completed
and executed by all required parties in compliance with the applicable form’s instructions
regarding same, as follows:
NO RECENT (last 120 days) OR CONTEMPLATED CONSTRUCTION :
NCLTA FORM 1 (Owner Affidavit) from every seller (on sale) or borrower (on refinance) who has not contracted for recent or contemplated
improvements on the Land or for a construction loan.
NOTE: If a contract purchaser has contracted for or is contemplating improvements, see “CONSTRUCTION CONTEMPLATED OR IN
PROCESS” below.

RECENTLY COMPLETED IMPROVEMENTS:
Non-MLA project: NCLTA FORM 2 (Owner/Contractor Affidavit, Lien Waiver, and Indemnity) from every Owner and every Contractor.
MLA project:
(1) Receipt of proof satisfactory to the Company that prior to closing or prior to first contracting for construction (whichever occurs first),
a. A Lien Agent was designated on the LiensNC.com website, AND
b. The Appointment of Lien Agent was posted at the Land.
(2) NCLTA FORM 5 (Owner Affidavit) from every Owner; AND
(3) NCLTA FORM 6 (MLA Lien Waiver) from every PLC-MLA.
CONSTRUCTION CONTEMPLATED OR IN PROCESS:
Non-MLA project: NCLTA FORM 3 (Owner/Contractor Affidavit, Indemnity and Lien Subordination) (for lender coverage only) from every
Owner and every Contractor.
MLA project:
(1) Receipt of proof satisfactory to the Company that prior to closing or prior to first contracting for construction (whichever occurs first):
a. A Lien Agent was designated on the LiensNC.com website, AND
b. The Appointment of Lien Agent was posted at the Land;
(2) NCLTA FORM 5 (Owner Affidavit) from every Owner; AND;
(3) NCLTA FORM 6 (MLA Lien Waiver) or NCLTA FORM 7 (MLA Subordination of Liens) from every PLC-MLA.
NOTE: If a contract purchaser has contracted for or is contemplating improvements prior to closing, see “NO RECENT IMPROVEMENTS”
above regarding seller lien affidavits as well.
MLA Project – MLA NOT Appointed Prior to Contracting for Labor Services or Materials
First American Title Insurance Company

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Commitment Number: NCS-708676-5-ATL
In all cases in which an MLA was required but not (timely) appointed, prior approval and terms of coverage (if any) by Company underwriting
counsel is required.
Applicable Definitions
“Non-MLA Projects”: Improvements are (1) first contracted before April 1, 2013, (2) for a value less than $30,000 OR (3) solely for
improvements to owner’s existing residence. All other projects (other than public projects) are MLA projects.
“Owner” is holder of any interest in the Land, including leasehold owner or contract purchaser.
“Potential Lien Claimant” (or “PLC - MLA”) is any person (or entity) entitled to file a claim of lien on real property (herein “Liens”), for
providing labor, services, (including design professionals such as surveyors, architects, engineers and landscape engineers), materials or rental
equipment provided for improvements to the Land (herein “Improvements”), pursuant to Article 2 of Chapter 44A of the North Carolina
General Statutes AND who either has filed a Notice to Lien Agent, OR was identified in the original Appointment, OR is a Design Professional
OR is a PLC whose first furnishing was within 15 days prior to closing OR (for waivers) delivered a claim of lien upon funds on the Owner.
“Contractor” Any person or entity who has performed or furnished or has contracted to perform or furnish Labor, Services or Materials
pursuant to a contract, either express or implied, with the Owner of real property for the making of an Improvement thereon OR who has
delivered a claim of lien upon funds to the Owner.

The Company may require additional documentation review for construction loans or where construction has recently been
completed. In these situations, please notify the Company as quickly as possible for additional requirements.

7.

Receipt of satisfactory Broker's Lien Waiver, if applicable.

8.

Company to be provided with a list of endorsements, if any, to be issued in conjunction with this
policy.

9.

Company to be provided with the necessary information and/or documentation to complete
requested endorsements, if any.

10.

Cancellation or Release of Deed of Trust to Lawyers Title Insurance Corporation for the benefit
of Keybank National Association, recorded in Book 1294, Page 1984, as amended in Book 1381,
Page 2228, and as assigned in Book 1464, Page 1888; as affected by Assignment of Leases
recorded in Book 1294, Page 2015, as amended in Book 1381, Page 2240, as assigned in Book
1464, Page 1882, and as further assigned in Book 1464, Page 1910, Rockingham County
Registry.

11.

Cancellation or Release of Deed of Trust to Lawyers Title Insurance Corporation for the benefit
of Jeff H. Farmer, Jr., Collection Agent, recorded in Book 1294, Page 2028, Rockingham County
Registry.

12.

Termination or release of UCC Financing Statement showing Blue Naples Mayodan LLC as Debtor,
and Bank of North Carolina as Secured Party, recorded in Book 1417, Page 2538,
Rockingham County Registry.

First American Title Insurance Company

o
Commitment Number: NCS-708676-5-ATL

SCHEDULE B - SECTION II
EXCEPTIONS FROM COVERAGE
File No.: NCS-708676-5-ATL
Any policy we issue will have the following exceptions unless they are taken care of to our satisfaction.

1.

Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in
the public records or attaching subsequent to the effective date hereof but prior to the date the
proposed Insured acquires for value of record the estate or interest or mortgage thereon covered
by this Commitment.

2.

Taxes for the year 2015, which are a lien, not yet due and payable, and all subsequent years.

3.

Easement to Duke Power Company recorded in Book 903, Page 1745, Rockingham County
Registry.

4.

Easement to Duke Power Company recorded in Book 318, Page 560, Rockingham County
Registry.

5.

Terms and provisions of that certain unrecorded Lease executed by Jeanette O. Hudson to L.O.T.
2540, Inc., as evidenced by Memorandum of Commercial Lease recorded in Book 1475, Page
1761, Rockingham County Registry.

6.

Easements and any other facts as shown in Plat Book 60, Page 11, Rockingham County Registry.

7.

Terms, provisions, covenants, conditions, easements and restrictions as provided in Declaration
of Restrictive Covenants recorded in Book 1310, Page 1215, Rockingham County Registry, but
omitting any covenant, condition, easement, and/or restriction, if any, based upon race, color,
religion, sex, sexual orientation, familial status, marital status, source of income, disability,
handicap or national origin unless and only to the extent that the covenant, condition, easement
or restriction (a) is exempt under Title 42 of the United States Code or (b) related to a handicap,
but does not discriminate against handicapped persons.

8.

Terms and provisions, including easement rights and construction and maintenance obligations,
described in General Warranty Deed recorded in Deed Book 1294, Page 1979, Rockingham
County Registry.

9.

Rights of parties in possession as tenants only, under unrecorded leases(s) or rental
agreement(s).

10.

Encroachments, overlaps, boundary line disputes, deficiency in amount of area, rights,
easements, ditches, cartways, setbacks, rights of parties in possession, interests or claims which
would be revealed by a current and accurate survey and inspection of the Land.

First American Title Insurance Company

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Commitment Number: NCS-708676-5-ATL

CONDITIONS
1.

DEFINITIONS
(a) "Mortgage" means mortgage, deed of trust or other security instrument. (b) "Public Records"
means title records that give constructive notice of matters affecting your title according to the
state statutes where your Land is located.

2.

LATER DEFECTS
The Exceptions in Schedule B - Section II may be amended to show any defects, liens or
encumbrances that appear for the first time in the public records or are created or
attach between the Commitment Date and the date on which all of the Requirements (a) and (c)
of Schedule B - Section I are met. We shall have no liability to you because of this amendment.

3.

EXISTING DEFECTS
If any defects, liens or encumbrances existing at Commitment Date are not shown in Schedule B,
we may amend Schedule B to show them. If we do amend Schedule B to show these defects,
liens or encumbrances, we shall be liable to you according to Paragraph 4 below unless you knew
of this information and did not tell us about it in writing.

4.

LIMITATION OF OUR LIABILITY
Our only obligation is to issue to you the Policy referred to in this Commitment, when you have
met its Requirements. If we have any liability to you for any loss you incur because of an error in
this Commitment, our liability will be limited to your actual loss caused by your relying on this
Commitment when you acted in good faith to:
Comply with the Requirements shown in Schedule B - Section I
or
Eliminate with our written consent any Exceptions shown in Schedule B - Section II.
We shall not be liable for more than the Policy Amount shown in Schedule A of this Commitment
and our liability is subject to the terms of the Policy form to be issued to you.

5.

CLAIMS MUST BE BASED ON THIS COMMITMENT
Any claim, whether or not based on negligence, which you may have against us concerning the
title to the Land must be based on this Commitment and is subject to its terms.

First American Title Insurance Company

o
Commitment Number: NCS-708676-5-ATL

Privacy Information
We Are Committed to Safeguarding Customer Information
In order to better serve your needs now and in the future, we may ask you to provide us with certain information. We understand that you may be concerned about what we will do with such
information - particularly any personal or financial information. We agree that you have a right to know how we will utilize the personal information you provide to us. Therefore, together with our
subsidiaries we have adopted this Privacy Policy to govern the use and handling of your personal information.
Applicability
This Privacy Policy governs our use of the information that you provide to us. It does not govern the manner in which we may use information we have obtained from any other source, such as
information obtained from a public record or from another person or entity. First American has also adopted broader guidelines that govern our use of personal information regardless of its source.
First American calls these guidelines its Fair Information Values.
Types of Information
Depending upon which of our services you are utilizing, the types of nonpublic personal information that we may collect include:
Information we receive from you on applications, forms and in other communications to us, whether in writing, in person, by telephone or any other means;
Information about your transactions with us, our affiliated companies, or others; and
Information we receive from a consumer reporting agency.
Use of Information
We request information from you for our own legitimate business purposes and not for the benefit of any nonaffiliated party. Therefore, we will not release your information to nonaffiliated parties
except: (1) as necessary for us to provide the product or service you have requested of us; or (2) as permitted by law. We may, however, store such information indefinitely, including the period
after which any customer relationship has ceased. Such information may be used for any internal purpose, such as quality control efforts or customer analysis. We may also provide all of the types of
nonpublic personal information listed above to one or more of our affiliated companies. Such affiliated companies include financial service providers, such as title insurers, property and casualty
insurers, and trust and investment advisory companies, or companies involved in real estate services, such as appraisal companies, home warranty companies and escrow companies. Furthermore,
we may also provide all the information we collect, as described above, to companies that perform marketing services on our behalf, on behalf of our affiliated companies or to other financial
institutions with whom we or our affiliated companies have joint marketing agreements.

•
•
•

Former Customers
Even if you are no longer our customer, our Privacy Policy will continue to apply to you.
Confidentiality and Security
We will use our best efforts to ensure that no unauthorized parties have access to any of your information. We restrict access to nonpublic personal information about you to those individuals and
entities who need to know that information to provide products or services to you. We will use our best efforts to train and oversee our employees and agents to ensure that your information will be
handled responsibly and in accordance with this Privacy Policy and First American's Fair Information Values. We currently maintain physical, electronic, and procedural safeguards that comply with
federal regulations to guard your nonpublic personal information.
Information Obtained Through Our Web Site
First American Financial Corporation is sensitive to privacy issues on the Internet. We believe it is important you know how we treat the information about you we receive on the Internet.
In general, you can visit First American or its affiliates’ Web sites on the World Wide Web without telling us who you are or revealing any information about yourself. Our Web servers collect the
domain names, not the e-mail addresses, of visitors. This information is aggregated to measure the number of visits, average time spent on the site, pages viewed and similar information. First
American uses this information to measure the use of our site and to develop ideas to improve the content of our site.
There are times, however, when we may need information from you, such as your name and email address. When information is needed, we will use our best efforts to let you know at the time of
collection how we will use the personal information. Usually, the personal information we collect is used only by us to respond to your inquiry, process an order or allow you to access specific
account/profile information. If you choose to share any personal information with us, we will only use it in accordance with the policies outlined above.
Business Relationships
First American Financial Corporation's site and its affiliates' sites may contain links to other Web sites. While we try to link only to sites that share our high standards and respect for privacy, we are
not responsible for the content or the privacy practices employed by other sites.
Cookies
Some of First American's Web sites may make use of "cookie" technology to measure site activity and to customize information to your personal tastes. A cookie is an element of data that a Web site
can send to your browser, which may then store the cookie on your hard drive.
FirstAm.com uses stored cookies. The goal of this technology is to better serve you when visiting our site, save you time when you are here and to provide you with a more meaningful and
productive Web site experience.
-------------------------------------------------------------------------------Fair Information Values
Fairness We consider consumer expectations about their privacy in all our businesses. We only offer products and services that assure a favorable balance between consumer benefits and consumer
privacy.
Public Record We believe that an open public record creates significant value for society, enhances consumer choice and creates consumer opportunity. We actively support an open public record
and emphasize its importance and contribution to our economy.
Use We believe we should behave responsibly when we use information about a consumer in our business. We will obey the laws governing the collection, use and dissemination of data.
Accuracy We will take reasonable steps to help assure the accuracy of the data we collect, use and disseminate. Where possible, we will take reasonable steps to correct inaccurate information.
When, as with the public record, we cannot correct inaccurate information, we will take all reasonable steps to assist consumers in identifying the source of the erroneous data so that the consumer
can secure the required corrections.
Education We endeavor to educate the users of our products and services, our employees and others in our industry about the importance of consumer privacy. We will instruct our employees on
our fair information values and on the responsible collection and use of data. We will encourage others in our industry to collect and use information in a responsible manner.
Security We will maintain appropriate facilities and systems to protect against unauthorized access to and corruption of the data we maintain.

Form 50-PRIVACY (9/1/10)

Page 1 of 1

Privacy Information (2001-2010 First American Financial Corporation)

First American Title Insurance Company

mi
Commitment Number: NCS-708676-8-ATL

ALTA Commitment Form
COMMITMENT FOR TITLE INSURANCE
Issued by

First American Title Insurance Company
First American Title Insurance Company, a Nebraska corporation ("Company"), for a valuable
consideration, commits to issue its policy or policies of title insurance, as identified in Schedule A, in favor
of the Proposed Insured named in Schedule A, as owner or mortgagee of the estate or interest in the
land described or referred to in Schedule A, upon payment of the premiums and charges and compliance
with the Requirements; all subject to the provisions of Schedules A and B and to the Conditions of this
Commitment.
This Commitment shall be effective only when the identity of the Proposed Insured and the amount of
the policy or policies committed for have been inserted in Schedule A by the Company.
All liability and obligation under this Commitment shall cease and terminate six (6) months after the
Effective Date or when the policy or policies committed for shall issue, whichever first occurs, provided
that the failure to issue the policy or policies is not the fault of the Company.
The Company will provide a sample of the policy form upon request.
IN WITNESS WHEREOF, First American Title Insurance Company has caused its corporate name and seal
to be affixed by its duly authorized officers on the date shown in Schedule A.

EXHIBIT 50
First American Title Insurance Company

mi
Commitment Number: NCS-708676-8-ATL

COMMITMENT FOR TITLE INSURANCE FORM
SCHEDULE A
1.

Effective Date: January 06, 2015 at 5:00 p.m.
a. ALTA Owner's Policy (06-17-06)

$TBD

Proposed Insured:
ECP Commercial I, LLC, a Delaware limited liability company
b. ALTA Loan Policy (06-17-06)

$TBD

Proposed Insured:
A Lender To Be Determined
2.

The estate or interest in the Land described or referred to in this Commitment is:
Fee Simple

3.

Title to the estate or interest in the Land is at the Effective Date vested in:
Newton Shopping Center LLC, a Delaware limited liability company,
Pueblo West Shopping Center LLC, a Delaware limited liability company, and
Boaz Shopping Center LLC, a Delaware limited liability company, as their interest may appear
(subject to requirements)

4.

The Land referred to in this Commitment is described as follows:
See Exhibit "A" attached hereto and made a part hereof
For informational purposes only:

74 North Component Drive,
Pueblo West, Colorado

=

First American Title Insurance Company

mi
Commitment Number: NCS-708676-8-ATL
=

EXHIBIT A
Commitment No.: NCS-708676-8-ATL
The land referred to in Schedule A is situated in the County of Pueblo, State of Colorado and is described
as follows:
Parcel "A", Lot Line Vacation No. 2006-010 (formerly Lots 13 through 17, Block 2, Tract 240) according to
the plat thereof filed for record October 3, 2006, Reception No. 1696395 in the Office of the Pueblo
County Clerk and Recorder,
County of Pueblo,
State of Colorado.
For informational purposes only:

APN: 06-021-06-019

First American Title Insurance Company

mi
Commitment Number: NCS-708676-8-ATL

COMMITMENT FOR TITLE INSURANCE FORM
SCHEDULE B
SECTION ONE
REQUIREMENTS
The following requirements must be met:
1.

Pay the agreed amounts for the interest in the land and/or the mortgage to be insured.

2.

Pay us the premiums, fees and charges for the policy.

3.

Payment of all taxes and assessments now due and payable.

4.

Recordation of a Quit Claim Deed satisfactory to the Company, from Boaz Shopping Center LLC, a
Delaware limited liability company, to Pueblo West Shopping Center LLC, a Delaware limited
liability company.
NOTE: This requirement is necessary to divest any interest retained by Boaz Shopping Center
LLC, a Delaware limited liability company by reason of the merger documents attached to
Quitclaim Deed recorded February 7, 2013 at Reception No. 1933473.

5.

Recordation of a Warranty Deed satisfactory to the Company, from Newton Shopping Center LLC,
a Delaware limited liability company, and Pueblo West Shopping Center LLC, a Delaware limited
liability company, vesting fee simple title in and to ECP Commercial I, LLC, a Delaware limited
liability company.

6.

Recordation of a Deed of Trust satisfactory to the Company, from ECP Commercial I, LLC, a
Delaware limited liability company, to the Public Trustee of Pueblo County, for the benefit of the
proposed insured lender.

7.

Recordation of a Release of the Deed of Trust from Durant Shopping Center, LLC, a Delaware
limited liability company as to an undivided 43% interest, Zachary Shopping Center, LLC, a
Delaware limited liability company as to an undivided 7% interest and Newton Shopping Center,
LLC, a Delaware limited liability company as to an undivided 50% to the Public Trustee of
Pueblo County for the use of Jeff H. Farmer, Jr. to secure an indebtedness in the principal sum of
$85,000.00, and any other amounts and/or obligations secured thereby, dated May 12, 2006 and
recorded May 17, 2006 at Reception No. 1675899.
NOTE: Subordination Agreement in connection therewith recorded October 20, 2006 at
Reception No. 1698838.
NOTE: Confirmatory Subordination Agreement in connection therewith recorded August 25, 2009
at Reception No. 1816479.

First American Title Insurance Company

mi
Commitment Number: NCS-708676-8-ATL

8.

Recordation of a Release of the Deed of Trust from Durant Shopping Center, LLC, a Delaware
limited liability company as to an undivided 43% interest, Zachary Shopping Center, LLC, a
Delaware limited liability company as to an undivided 7% interest and Newton Shopping Center,
LLC, a Delaware limited liability company as to an undivided 50% to the Public Trustee of
Pueblo County for the use of Jeff H. Farmer, Jr. to secure an indebtedness in the principal sum of
$210,000.00, and any other amounts and/or obligations secured thereby, dated June 28,
2006 and recorded July 11, 2006 at Reception No. 1683492.
NOTE: Subordination Agreement in connection therewith recorded October 20, 2006 at
Reception No. 1698837.
NOTE: Confirmatory Subordination Agreement in connection therewith recorded August 25, 2009
at Reception No. 1816480.

9.

Recordation of a Release of the Deed of Trust from Durant Shopping Center, LLC, a Delaware
limited liability company, Newton Shopping Center, LLC, a Delaware limited liability company, and
Zachary Shopping Center, LLC, a Delaware limited liability company to the Public Trustee of
Pueblo County for the use of KeyBank National Association to secure an indebtedness in the
principal sum of $2,250,000.00, and any other amounts and/or obligations secured thereby,
dated October 11, 2006 and recorded October 20, 2006 at Reception No. 1698835.
NOTE: Assignment of Leases and Rents in connection therewith recorded October 20, 2006 at
Reception No. 1698836, and First Amendment recorded August 25, 2009 at Reception No.
1816478, and Assignment recorded October 15, 2013 at Reception No. 1957992.
NOTE: First Amendment in connection therewith recorded August 25, 2009 at Reception No.
1816477.
NOTE: Assignment of Deed of Trust to ECP Commercial I LLC, a Delaware limited liability
company recorded October 15, 2013 at Reception No. 1957991.
NOTE: Assignment of Deed of Trust to Pacific Western Bank recorded December 18, 2014 at
Reception No. 1992620.

10.

Recordation of a Termination of the Financing Statement between Durant Shopping Center, LLC,
Newton Shopping Center, LLC, and Zachary Shopping Center, LLC, as debtor, and KeyBank
National Association, as secured party, recorded October 20, 2006 at Reception No. 1698839.
NOTE: Continuation of Financing Statement in connection therewith recorded April 18, 2011 at
Reception No. 1872845.

11.

Receipt by the Company of the following documentation for Pueblo West Shopping Center LLC, a
Delaware limited liability company:
Operating Agreement, and all amendments thereto, if any.
Certificate of Good Standing issued by the Delaware Secretary of State.

12.

Receipt by the Company of the following documentation for Newton Shopping Center LLC, a
Delaware limited liability company:
Operating Agreement, and all amendments thereto, if any.
Certificate of Good Standing issued by the Delaware Secretary of State.
First American Title Insurance Company

mi
Commitment Number: NCS-708676-8-ATL
13.

Receipt by the Company of the following documentation for ECP Commercial I, LLC, a Delaware
limited liability company:
Operating Agreement, and all amendments thereto, if any.
Certificate of Good Standing issued by the Delaware Secretary of State.

14.

Receipt by the Company of a satisfactory Final Affidavit and Indemnity, executed by Pueblo West
Shopping Center LLC, a Delaware limited liability company.

15.

Receipt by the Company of a satisfactory Final Affidavit and Indemnity, executed by Newton
Shopping Center LLC, a Delaware limited liability company.

16.

Receipt by the Company of a satisfactory Final Affidavit and Indemnity, executed by Boaz
Shopping Center LLC, a Delaware limited liability company.

17.

Receipt by the Company of a satisfactory Final Affidavit and Indemnity, executed by ECP
Commercial I, LLC, a Delaware limited liability company.

18.

Receipt by the Company of an ALTA/ACSM Land Title Survey, certified to First American Title
Insurance Company, and in form and content satisfactory to the Company. The Company
reserves the right to make further requirements and/or exceptions upon review of this survey.

First American Title Insurance Company

mi
Commitment Number: NCS-708676-8-ATL

COMMITMENT FOR TITLE INSURANCE FORM
SCHEDULE B
SECTION TWO
EXCEPTIONS
Schedule B of the policy or policies to be issued will contain exceptions to the following matters unless
the same are disposed of to the satisfaction of the Company:
1.

Any facts, rights, interests or claims which are not shown by the Public Records, but which could
be ascertained by an inspection of the Land or by making inquiry of persons in possession
thereof.

2.

Easements, or claims of easements, not shown by the Public Records.

3.

Discrepancies, conflicts in boundary lines, shortage in area, encroachments, and any facts which
a correct survey and inspection of the Land would disclose, and which are not shown by the
public records.

4.

Any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished,
imposed by law and not shown in the Public Records.

5.

Any and all unpaid taxes, assessments and unredeemed tax sales.

6.

Covenants, conditions, restrictions, provisions, easements and assessments as set forth in
Declaration of Reservations Tract 240, Pueblo West recorded December 18, 1969 in Book 1663 at
Page 835, but omitting any covenant or restriction based on race, color, religion, sex, handicap,
familial status, or national origin, and any and all amendments, assignments, or annexations
thereto.
NOTE: Assignment and Assumption of Declarant's Rights and Duties in connection therewith
recorded December 30, 1992 in Book 2632 at Page 840, August 12, 1996 in Book 2919 at Page
506, and May 29, 2009 at Reception No. 1807027.

7.

Easements, notes, covenants, restrictions and rights-of-way as shown on the plat of Pueblo West
Colorado Tract No. 240, recorded December 18, 1969 at Reception No. 385766.

8.

Terms, conditions, provisions, obligations and agreements as set forth in the Resolution No. P&D
06-94 recorded October 3, 2006 at Reception No. 1696393.

9.

Easements, notes, covenants, restrictions and rights-of-way as shown on the plat of Plat
Amendment No. 2006-001 Amendment to the Recorded Plat of Tract 240, Pueblo West,
Colorado, recorded October 3, 2006, at Reception No. 1696394.

10.

Easements, notes, covenants, restrictions and rights-of-way as shown on the plat of Lot Line
Vacation No. 2006-010, recorded October 3, 2006, at Reception No. 1696395.

First American Title Insurance Company

mi
Commitment Number: NCS-708676-8-ATL
11.

Lease by and between Pueblo West Shopping Center LLC, a Delaware limited liability company,
as lessor, and The CATO Corporation, a Delaware corporation, as lessee, as evidenced
by Memorandum of Lease recorded November 27, 2007 at Reception No. 1749866.

12.

Existing leases and tenancies.

=

First American Title Insurance Company

mi
Commitment Number: NCS-708676-8-ATL
=

EXHIBIT B
Statement of Charges

ALTA Extended Owner Policy

$ TBD

ALTA Extended Loan Policy

$ TBD

Tax Certification

$ TBD

=

First American Title Insurance Company

i
Commitment Number: NCS-708676-8-ATL
=

CONDITIONS
1.

The term mortgage, when used herein, shall include deed of trust, trust deed, or other security
instrument.

2.

If the proposed Insured has or acquired actual knowledge of any defect, lien, encumbrance,
adverse claim or other matter affecting the estate or interest or mortgage thereon covered by
this Commitment other than those shown in Schedule B hereof, and shall fail to disclose such
knowledge to the Company in writing, the Company shall be relieved from liability for any loss or
damage resulting from any act of reliance hereon to the extent the Company is prejudiced by
failure to so disclose such knowledge. If the proposed Insured shall disclose such knowledge to
the Company, or if the Company otherwise acquires actual knowledge of any such defect, lien,
encumbrance, adverse claim or other matter, the Company at its option may amend Schedule B
of this Commitment accordingly, but such amendment shall not relieve the Company from liability
previously incurred pursuant to paragraph 3 of these Conditions and Stipulations.

3.

Liability of the Company under this Commitment shall be only to the named proposed Insured
and such parties included under the definition of Insured in the form of policy or policies
committed for and only for actual loss incurred in reliance hereon in undertaking in good faith (a)
to comply with the requirements hereof, or (b) to eliminate exceptions shown in Schedule B, or
(c) to acquire or create the estate or interest or mortgage thereon covered by this Commitment.
In no event shall such liability exceed the amount stated in Schedule A for the policy or policies
committed for and such liability is subject to the insuring provisions and Conditions and
Stipulations and the Exclusions from Coverage of the form of policy or policies committed for in
favor of the proposed Insured which are hereby incorporated by reference and are made a part
of this Commitment except as expressly modified herein.

4.

This Commitment is a contract to issue one or more title insurance policies and is not an abstract
of title or a report of the condition of title. Any action or actions or rights of action that the
proposed Insured may have or may bring against the Company arising out of the status of the
title to the estate or interest or the status of the mortgage thereon covered by this Commitment
must be based on and are subject to the provisions of this Commitment.

5.

The policy to be issued contains an arbitration clause. All arbitrable matters when the Amount of
Insurance is $2,000,000 or less shall be arbitrated at the option of either the Company or the
Insured as the exclusive remedy of the parties. You may review a copy of the arbitration rules at
http://www.alta.org/.

First American Title Insurance Company

i
Commitment Number: NCS-708676-8-ATL

Privacy Information
We Are Committed to Safeguarding Customer Information
In order to better serve your needs now and in the future, we may ask you to provide us with certain information. We understand that you may be concerned about what we will do with such
information - particularly any personal or financial information. We agree that you have a right to know how we will utilize the personal information you provide to us. Therefore, together with our
subsidiaries we have adopted this Privacy Policy to govern the use and handling of your personal information.
Applicability
This Privacy Policy governs our use of the information that you provide to us. It does not govern the manner in which we may use information we have obtained from any other source, such as
information obtained from a public record or from another person or entity. First American has also adopted broader guidelines that govern our use of personal information regardless of its source.
First American calls these guidelines its Fair Information Values.
Types of Information
Depending upon which of our services you are utilizing, the types of nonpublic personal information that we may collect include:
Information we receive from you on applications, forms and in other communications to us, whether in writing, in person, by telephone or any other means;
Information about your transactions with us, our affiliated companies, or others; and
Information we receive from a consumer reporting agency.
Use of Information
We request information from you for our own legitimate business purposes and not for the benefit of any nonaffiliated party. Therefore, we will not release your information to nonaffiliated parties
except: (1) as necessary for us to provide the product or service you have requested of us; or (2) as permitted by law. We may, however, store such information indefinitely, including the period
after which any customer relationship has ceased. Such information may be used for any internal purpose, such as quality control efforts or customer analysis. We may also provide all of the types of
nonpublic personal information listed above to one or more of our affiliated companies. Such affiliated companies include financial service providers, such as title insurers, property and casualty
insurers, and trust and investment advisory companies, or companies involved in real estate services, such as appraisal companies, home warranty companies and escrow companies. Furthermore,
we may also provide all the information we collect, as described above, to companies that perform marketing services on our behalf, on behalf of our affiliated companies or to other financial
institutions with whom we or our affiliated companies have joint marketing agreements.

•
•
•

Former Customers
Even if you are no longer our customer, our Privacy Policy will continue to apply to you.
Confidentiality and Security
We will use our best efforts to ensure that no unauthorized parties have access to any of your information. We restrict access to nonpublic personal information about you to those individuals and
entities who need to know that information to provide products or services to you. We will use our best efforts to train and oversee our employees and agents to ensure that your information will be
handled responsibly and in accordance with this Privacy Policy and First American's Fair Information Values. We currently maintain physical, electronic, and procedural safeguards that comply with
federal regulations to guard your nonpublic personal information.
Information Obtained Through Our Web Site
First American Financial Corporation is sensitive to privacy issues on the Internet. We believe it is important you know how we treat the information about you we receive on the Internet.
In general, you can visit First American or its affiliates’ Web sites on the World Wide Web without telling us who you are or revealing any information about yourself. Our Web servers collect the
domain names, not the e-mail addresses, of visitors. This information is aggregated to measure the number of visits, average time spent on the site, pages viewed and similar information. First
American uses this information to measure the use of our site and to develop ideas to improve the content of our site.
There are times, however, when we may need information from you, such as your name and email address. When information is needed, we will use our best efforts to let you know at the time of
collection how we will use the personal information. Usually, the personal information we collect is used only by us to respond to your inquiry, process an order or allow you to access specific
account/profile information. If you choose to share any personal information with us, we will only use it in accordance with the policies outlined above.
Business Relationships
First American Financial Corporation's site and its affiliates' sites may contain links to other Web sites. While we try to link only to sites that share our high standards and respect for privacy, we are
not responsible for the content or the privacy practices employed by other sites.
Cookies
Some of First American's Web sites may make use of "cookie" technology to measure site activity and to customize information to your personal tastes. A cookie is an element of data that a Web site
can send to your browser, which may then store the cookie on your hard drive.
FirstAm.com uses stored cookies. The goal of this technology is to better serve you when visiting our site, save you time when you are here and to provide you with a more meaningful and
productive Web site experience.
-------------------------------------------------------------------------------Fair Information Values
Fairness We consider consumer expectations about their privacy in all our businesses. We only offer products and services that assure a favorable balance between consumer benefits and consumer
privacy.
Public Record We believe that an open public record creates significant value for society, enhances consumer choice and creates consumer opportunity. We actively support an open public record
and emphasize its importance and contribution to our economy.
Use We believe we should behave responsibly when we use information about a consumer in our business. We will obey the laws governing the collection, use and dissemination of data.
Accuracy We will take reasonable steps to help assure the accuracy of the data we collect, use and disseminate. Where possible, we will take reasonable steps to correct inaccurate information.
When, as with the public record, we cannot correct inaccurate information, we will take all reasonable steps to assist consumers in identifying the source of the erroneous data so that the consumer
can secure the required corrections.
Education We endeavor to educate the users of our products and services, our employees and others in our industry about the importance of consumer privacy. We will instruct our employees on
our fair information values and on the responsible collection and use of data. We will encourage others in our industry to collect and use information in a responsible manner.
Security We will maintain appropriate facilities and systems to protect against unauthorized access to and corruption of the data we maintain.

Form 50-PRIVACY (9/1/10)

Page 1 of 1

Privacy Information (2001-2010 First American Financial Corporation)

First American Title Insurance Company

i
Commitment Number: NCS-708676-8-ATL

DISCLOSURE STATEMENT
Pursuant to C.R.S 30-10-406(3)(a) all documents received for recording or filing in the Clerk and
Recorder's office shall contain a top margin of at least one inch and a left, right and bottom margin of at
least one-half of an inch. The Clerk and Recorder will refuse to record or file any document that does not
conform to the requirements of this section.
NOTE: If this transaction includes a sale of the property and the price exceeds $100,000.00, the seller
must comply with the disclosure/withholding provisions of C.R.S. 39-22-604.5 (Non-residential
withholding).
NOTE: Colorado Division of Insurance Regulations 3-5-1, requires that "Every title entity shall be
responsible for all matters which appear of record prior to the time of recording whenever the title entity
conducts the closing and is responsible for recording or filing of legal documents resulting from the
transaction which was closed." Provided that First American Title Insurance Company conducts the
closing of the insured transaction and is responsible for recording the legal documents from the
transaction.
Pursuant to C.R.S. 10-11-122, the company will not issue its policy or policies of title insurance
contemplated by this commitment until it has been provided a Certificate of Taxes due or other
equivalent documentation from the County Treasurer or the County Treasurer's authorized agent; or until
the Proposed Insured has notified or instructed the company in writing to the contrary.
The subject property may be located in a special taxing district. A Certificate of Taxes due listing each
taxing jurisdiction shall be obtained from the County Treasurer or the County Treasurer's authorized
agent. Information regarding special districts and the boundaries of such districts may be obtained from
the Board of County Commissioners, the County Clerk and Recorder, or the County Assessor.
____________________________________________________________________________________
NOTE: Pursuant to CRS 10-11-123, notice is hereby given:
This notice applies to owner's policy commitments containing a mineral severance instrument exception,
or exceptions, in Schedule B, Section 2.
A.

B.

That there is recorded evidence that a mineral estate has been severed, leased, or
otherwise conveyed from the surface estate and that there is a substantial likelihood that
a third party holds some or all interest in oil, gas, other minerals, or geothermal energy
in the property; and
That such mineral estate may include the right to enter and use the property without the
surface owner's permission.

NOTE: Pursuant to Colorado Division of Insurance Regulations 3-5-1, Affirmative mechanic's lien
protection for the Owner may be available (typically by deletion of Exception no. 4 of Schedule B, Section
2 of the Commitment from the Owner's Policy to be issued) upon compliance with the following
conditions:
A.
B.
C.
D.

The land described in Schedule A of this commitment must be a single family residence
which includes a condominium or townhouse unit.
No labor or materials have been furnished by mechanics or material-men for purposes of
construction on the land described in Schedule A of this Commitment within the past 6
months.
The Company must receive an appropriate affidavit indemnifying the Company against
un-filed mechanic's and material-men's liens.
The Company must receive payment of the appropriate premium.

First American Title Insurance Company

i
Commitment Number: NCS-708676-8-ATL
E.

If there has been construction, improvements or major repairs undertaken on the
property to be purchased within six months prior to the Date of the Commitment, the
requirements to obtain coverage for unrecorded liens will include: disclosure of certain
construction information; financial information as to the seller, the builder and or the
contractor; payment of the appropriate premium, fully executed Indemnity Agreements
satisfactory to the company, and, any additional requirements as may be necessary after
an examination of the aforesaid information by the Company.

No coverage will be given under any circumstances for labor or material for which the insured has
contracted for or agreed to pay.
NOTE: Pursuant to C.R.S, 38-35-125(2) no person or entity that provides closing and settlement services
for a real estate transaction shall disburse funds as a part of such services until those funds have been
received and are available for immediate withdrawal as a matter of right.
NOTE: C.R.S. 39-14-102 requires that a real property transfer declaration accompany any conveyance
document presented for recordation in the State of Colorado. Said declaration shall be completed and
signed by either the grantor or grantee.
Nothing herein contained will be deemed to obligate the company to provide any of the coverages
referred to herein unless the above conditions are fully satisfied.
NOTE: Pursuant to CRS 10-1-128(6)(a), It is unlawful to knowingly provide false,
incomplete, or misleading facts or information to an insurance company for the purpose of
defrauding or attempting to defraud the company. Penalties may include imprisonment,
fines, denial of insurance and civil damages. Any insurance company or agent of an
insurance company who knowingly provides false, incomplete, or misleading facts or
information to a policyholder or claimant for the purpose of defrauding or attempting to
defraud the policyholder or claimant with regard to a settlement or award payable from
insurance proceeds shall be reported to the Colorado division of insurance within the
department of regulatory agencies.

First American Title Insurance Company

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ECP COMMERCIAL I LLC,
Plaintiff,
v.
BOAZ SHOPPING CENTER LLC, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

CASE NO.: 15-cv-02247-STA-cgc

AGREED ORDER APPOINTING RECEIVER

THIS MATTER is before the Court on the Amended Complaint for Foreclosure,
Appointment of a Receiver, and Injunctive Relief (the "Complaint") and accompanying
Second Amended
Relief

Motion

for

Appointment

of

a

Receiver

and

Related

Injunctive

and Memorandum of Law in Support (the "Motion") filed by the plaintiff, ECP

Commercial I LLC (“ECP”). It appears that due and sufficient notice of the Complaint and
Motion have been given to all Defendants. Having read and considered the Complaint and the
Motion, the arguments and statements of counsel having been presented and considered, and it
appearing that venue and jurisdiction are proper in this Court and the relief requested is necessary
to prevent irreparable harm and injury to ECP's rights and the Mortgaged Properties (defined
below), and the rents and profits therefrom, as to which ECP has no adequate remedy at law,
the Court hereby makes the
following findings of fact and conclusions of law:

EXHIBIT 51

Findings of Fact

A.

The proposed receivership is a receivership of the Mortgaged Properties (as

defined below).
B.

The proposed receiver, George E. Shoup, III, (“Shoup”) an employee of

Development Specialists, Inc. (“DSI”), is experienced in the arenas of distressed property,
business management and sales. Both Shoup and DSI, who Shoup intends to retain as a financial
consultant in this matter, have no interests or connections with any Defendant.
Conclusions of Law

(i)

The Court has jurisdiction over this matter and venue is proper, pursuant to 28

U.S.C. § 1332 and 28 U.S.C. § 1391.

(ii)

ECP has no adequate remedy at law to prevent potential irreparable harm and

injury to its rights under the Loan Documents and with respect to the Mortgaged Properties (as
defined in the Motion), and therefore, ECP is entitled to the relief requested in the Complaint and
the Motion as hereinafter provided.
(iii)

Adequate notice of the Motion and the relief requested by ECP has been given to

all Defendants.

-2–

IT IS ACCORDINGLY HEREBY ORDERED, ADJUDGED, AND DECREED as
follows:
1.

The Motion is hereby GRANTED, as provided herein.

2.

George E. Shoup, III be, and hereby is, appointed, with bond in the amount of

$10,000, to serve as receiver (in that office and capacity, the "Receiver") for the Mortgaged
Properties and for all of the Receivership Assets (as defined below), all of which will form a part
of the estate that is in receivership (the "Receivership Estate"), such appointment to become

effective upon the filing of an Oath of Receiver with this Court (the “Effective Date”). As used

herein, the term "Receivership Assets" shall be construed broadly to include the Mortgaged

Properties, whether real or personal, tangible or intangible and wherever located, including,
without limitation, all rents and profits of the Mortgaged Properties and all of the types and items
of property described in paragraph 3 below. Except as otherwise provided herein with respect to
actions that may be taken by ECP, the Receiver shall be exclusively authorized to manage the
Receivership Estate and to possess, manage and safeguard the Mortgaged Properties and no other
person or entity claiming to have an interest in the Receivership Assets, shall have any authority
or control over or with respect to the Receivership Estate or any of the Receivership Assets.
3.

Subject only to the rights and liens of ECP, the Receiver shall have all powers and

rights to administer and manage the Receivership Estate and to assume custody and control over
certain Receivership Assets, including, but not limited to, the following property, whether or not
such property constitutes Mortgaged Properties:
a.

all of Defendants’ interests as landlord under any lease of premises or any

other place at which any Receivership Assets are located (but neither the Receiver nor the

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Receivership Estate shall be deemed to have assumed any of the obligations under any
lease with any other person, but the use and occupancy of any such premises shall be
conditioned upon the Receiver receiving rent accruing hereafter in respect of any
premises that are used for purposes beneficial to the Receivership Estate) and
Defendants’ interest in any leasehold improvements on any leased premises (all such
business premises and improvements being collectively referred to as the "Facilities");
b.

all items of machinery or equipment owned by Defendants, wherever

located, or used by Defendants and located in, on or about the Facilities, including,
without limitation, all computer equipment, office equipment and supplies (collectively,
the "Equipment");

c.

all accounts receivable, promissory notes, payment intangibles, chattel

paper, instruments and other rights of Defendants to the payment of money in connection
with the operation and management of the Mortgaged Properties (collectively, the
"Accounts");
d.

all deposit accounts of Defendants relating to the operation and

management of the Mortgaged Properties (collectively, the "Deposit Accounts"),

including, without limitation, all checking accounts, savings accounts, payroll accounts,
payroll tax accounts, petty cash accounts, and escrow accounts;
e.

all business records of Defendants relating to the operation and

management of the Mortgaged Properties, in whatever form or media maintained
(collectively, the "Records"), including, but not limited to, all documents evidencing
ownership of any Receivership Assets (including bills of sale and certificates of title),

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books of accounts, financial statements, balance sheets, ledgers, expense statements, logs,
maintenance and servicing records, journals, reports, and other documents relating to the
past or future use, operation or maintenance of any Receivership Assets;
f.

all of Defendants’ investment property relating to the operation and

management of the Mortgaged Properties, including, without limitation, stocks, bonds,
and other securities;
g.

all insurance policies relating to the operation of the Mortgaged

Properties;

h.

all of Defendants’ permits, licenses, registrations and certificates

(including, without limitation, certificates of registration and re-registration relating to
any aircraft) that were issued by governmental authorities or are necessary for the
ownership or use of any of the Receivership Assets or the operation of any of the
business of Defendants, and the Receiver shall be entitled to operate and to all of the
other benefits and privileges arising under all of such permits, licenses, registrations and
certificates;
i.

all of Defendants’ general intangibles, customer lists, and rights under

contracts relating to the operation and management of the Mortgaged Properties;
j.

all causes of action, claims, rights in respect of pending or potential

litigation and arbitration proceedings, and judgments owned by or in favor of Defendants
relating to the operation and management of the Mortgaged Properties;
k.

all patents, trademarks, copyrights and other intellectual property of

Defendants relating to the operation and management of the Mortgaged Properties;

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l.

all of Defendants’ rent deposits, security deposits and other refundable

deposits of money or other property, as well as all of Defendants’ rights to receive rent
and storage fees and claims against others for unpaid rent or storage fees;
m.

all tax refund claims of Defendants, whether now in existence or hereafter

arising, relating to the operation and management of the Mortgaged Properties; and
n.

all rents, income, monies, fees, revenues, proceeds, and profits now

existing or hereafter generated from the collection, sale or other disposition of any of the
Mortgaged Properties (collectively, the "Revenues").
4.

Except as otherwise expressly restricted in this Order, the Receiver shall have and

possess all powers, privileges and prerogatives ordinarily provided to receivers under law. In
addition, and without limiting the generality of the foregoing, but subject to paragraph 6 below,
the Receiver is hereby authorized and empowered to:
a.

take immediate possession of, hold and secure all Receivership Assets;

b.

manage, control, operate and maintain the Receivership Estate;

c.

receive, collect, sue for, settle or compromise all Accounts, Revenues and

other Receivership Assets;
d.

make such ordinary and necessary payments, distributions, and

disbursements as the Receiver deems advisable or proper for the marshaling, maintenance
or preservation of the Receivership Assets;
e.

negotiate with any creditors and contract counterparties of Defendants for

the purpose of compromising or settling any claim, including, without limitation, the
surrender of assets to secured creditors;

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f.

renew, cancel, terminate, or otherwise adjust any current or pending lease

agreements to which Defendants is a party;
g.

institute, defend, compromise or adjust such actions or proceedings in

state or federal courts now pending and hereafter instituted, as the Receiver in his
discretion may deem to be advisable for the protection and administration of the
Receivership Estate;
h.

institute actions, suits or other proceedings to obtain possession or custody

of or control over any Receivership Assets, to pursue causes of action held by
Defendants, and to collect any amounts owed to Defendants, including, but not limited to,
accounts receivable, whether any such suits or proceedings are instituted in this Court or
any other court or tribunal having competent jurisdiction, to the extent that the Receiver
determines that such actions will preserve or maximize the value of the estate;
i.

execute any necessary documents to allow the Receiver to take possession

of and control of, and to draw checks on, any Deposit Accounts and to open bank
accounts or other depository accounts, in the name of the Receiver on behalf of the
Receivership Estate, provided that the Receiver shall provide ECP with at least five (5)
business days prior notice before opening any new bank or other depository account;
j.

issue subpoenas as the Receiver deems necessary to determine any and all

parties asserting any rights to the Mortgaged Properties or the Receivership Estate,
without the necessity of compliance with any rule or provision of law that would impose
any limitations on the Receiver’s ability to issue such subpoenas;

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k.

prepare tax returns and related documents regarding the assets and

operation of the Receivership Estate;
l.

file such reports and documents with federal, state and local officials as

are required or are deemed by the Receiver to be necessary or appropriate in connection
with the operation of Defendants’ business;
m.

following at least five (5) business days' prior notice to Defendants,

abandon any Receivership Assets that, in the exercise of the Receiver's business
judgment, are burdensome to the Receivership Estate;
n.

The Receiver is hereby authorized to employ Harris P. Quinn and

Prochaska Quinn & Ferraro, P. C. as his counsel and attorneys, engage other attorneys,
accountants, appraisers, brokers, auctioneers, environmental experts, and other
consultants and experts (collectively, the "Professionals"), on terms acceptable to ECP, to
assist the Receiver in the performance and discharge of her rights, powers, and duties
hereunder and pay such Professionals reasonable retainers and their fees and expenses as
such become due and payable; provided, however, that prior to any such payment by the

Receiver to a Professional, the Receiver shall provide copies of the Professional's
invoices to ECP, who shall have a period of ten (10) business days after receipt of an
invoice within which to send a written objection to payment to the Receiver, and if an
objection is timely made by ECP, the fees and expenses that are subject to the objection
shall not be paid except upon the subsequent written consent of ECP or further order of
this Court;

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o.

subject only to the requirements and limitations in this or future Orders of

this Court, sell, lease or otherwise dispose of any of the Receivership Assets in or outside
of the ordinary course of business, as a going concern or as part of an orderly liquidation,
or in such public auctions or private sales as the Receiver may deem appropriate; and
execute and deliver such bills of sale and other related documents in order to transfer all
of Defendants’ right, title, and interest in and to any of the Receivership Estate to any
purchaser thereof;
p.

pay from the Revenues (to the extent agreed by ECP or otherwise ordered

by this Court) or Protective Advances (defined below) the expenses of the Receivership
Estate, including Professional Fees (defined below), and the costs of entering into any
new lease agreements deemed to increase the value of the Receivership Estate by the
Receiver, including, without limitation, expenses for rent, utilities (gas, electric and
water), supplies, wages and salaries, taxes (payroll, sales and personal property ad
valorem), tenant improvements, capital expenses and ordinary and necessary repairs and
maintenance to any of the Receivership Estate;
q.

approve all existing and prospective subcontractors, vendors, suppliers,

distributors, customers, licensors, licensees, landlords, tenants and subtenants of
Defendants, including, without limitation, by way of approving leases, licenses, and other
agreements and any amendments, renewals, extensions, modifications, or waivers of any
leases, licenses, or other agreements between Defendants and any existing or prospective
subcontractors, vendors, suppliers, distributors, customers, licensors, licensees, landlords,

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tenants and subtenants of Defendants, with any disputes related to such dealings to be
subject to the jurisdiction of the Court;
r.

receive, open, read, and respond to all mail addressed to Defendants;

provided that if the Receiver receives and reviews communications to Defendants that are
marked confidential, attorney-client privileged or similarly restricted, he shall maintain
the confidentiality of such communications and neither his receipt nor his review of any
such communications shall be deemed a waiver of any attorney-client privilege or similar
protection that otherwise applies;
s.

provide a written statement each month (for the prior month) of cash

receipts and cash disbursements to Defendants and ECP as well as any other reports and
budgets reasonably requested by ECP or required by the Court;
t.

request and receive from Defendants’ outside accountants and auditors

(collectively, the "Auditors") all records and information relating to Defendants’ financial

performance and condition in 2011, 2012, 2013 and 2014 for the purpose of, among other
things, filing amended tax returns for Defendants and seeking any tax refund to which
Defendants may be entitled (and such Auditors are hereby authorized and directed to turn
over all such records and information to the Receiver) and provide Defendants with
copies of any amended returns;
u.

communicate and negotiate with any regulatory or other authority

regarding the operation of the Receivership Estate or the issuance or renewal of any
permits, licenses, certificates or registrations in connection therewith; and
v.

take such other action as may be approved by this Court following prior

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notice to ECP and Defendants.

In addition to the powers and instructions set forth hereinabove, the Receiver shall have all of the
powers of a receiver that are authorized by law and all other powers necessary or proper to
preserve and manage the Receivership Estate, including, without limitation, the Mortgaged
Properties, and to perform obligations and exercise rights and remedies under existing
agreements between or among Defendants and any third parties.
5.

The Receiver is authorized to take any and all actions not specifically enumerated

herein which are necessary and proper to properly and adequately sell, lease, license, encumber,
collect, compromise, or otherwise dispose of or use the proceeds of all or any part of the
Mortgaged Properties. Notwithstanding anything to the contrary in this Order, the Receiver shall
not be authorized to sell, lease, license, encumber, collect, compromise or otherwise dispose of,
or use the proceeds of, any part of the Mortgaged Properties without (i) the prior express consent
of ECP, which consent may be given or withheld in ECP's sole and absolute discretion and may,
if so elected by ECP, be conditioned upon ECP's agreement as to the timing, method, manner
and terms of any sale, lease, encumbrance, compromise or other disposition of any Mortgaged
Properties, or (ii) an Order from this Court after notice to all creditors with an opportunity to be
heard pursuant to applicable law; and the Receiver shall in all events promptly account for and
turn over to ECP, for application to the Obligations, all cash and non-cash proceeds received in
connection with any sale, lease, collection or other disposition of any Mortgaged Properties. .
The Receiver shall, upon the entry of judgment in mortgage foreclosure, be authorized to expose
the Mortgaged Properties to public foreclosure sales pursuant to 28 U.S.C. § 2001, et seq., and
shall thereafter pass title to the Property to the successful bidder.

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6.

Except with respect to lockboxes and other payment addresses in the control of

ECP to which account debtors of Defendants make payments in respect of Accounts, the
Receiver is hereby authorized to notify the United States Postal Service to forward any mail
addressed to Defendants who are owners of any Mortgaged Property to any Post Office box or
other mail depository. Further, the Receiver is authorized to open and inspect all such mail
(subject to the same limitations noted in Paragraph 4(r) above), to determine the location or
identity of assets or the existence and amount of claims.
7.

The Receiver shall be authorized to request and receive from ECP from time to

time advances of funds (collectively, "Protective Advances") that are necessary for the
Receiver's operation of Defendants’ business or the management, maintenance, marketing, sale,
safeguarding, insurance, operation, increasing the value or repair of the Mortgaged Properties or
other Receivership Assets, including, without limitation, payroll and payroll taxes, premiums for
insurance, tenant improvements and amounts needed to make necessary and essential repairs to
the Facilities, all of which Protective Advances by ECP shall be deemed an Advance under (and
as defined in) the Loan Agreement to protect and preserve the Mortgaged Properties, shall form a
part of the Obligations, and shall be secured by all and in the priority of the liens and security
interests granted or conveyed by Defendants to or in favor of ECP. All Protective Advances may
be made by ECP at such times and in such amounts as ECP may elect in its sole and absolute
discretion. If ECP elects to discontinue making Protective Advances, ECP shall provide at least
five (5) business days' prior written notice of such election to the Receiver (a "Funding

Termination Notice"), and, if such notice is given, ECP shall fund one final Protective Advance
to the Receiver in an amount sufficient to permit the Receiver to pay budgeted expenses and

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accounts payable with regard to the Receivership Assets which are incurred in the normal and
ordinary course of business of the Receivership Assets and which are incurred by the Receiver
on or after the Receiver’s taking possession of the Receivership Assets, including accrued unpaid
expenses, all unpaid wages, salary, payroll and payroll taxes attributable to time actually worked
(excluding any severance, bonus or other extraordinary items), sales, use, and excise taxes and
Professional Fees until the Receiver is released from his fiduciary obligations by this Court, in
each case to the extent accrued through and including the date that ECP delivers such written
notice of termination of funding to the Receiver. The Receiver shall provide prompt written
notice to ECP of any payroll, payroll taxes, sales, use and excise taxes owed by the Receivership
Estate that have not been (prior to entry of this Order) or are not (after entry of this Order) paid
as and when due. If ECP elects to send a Funding Termination Notice, then ECP shall file such
notice with the Court, together with a motion seeking to terminate the receivership established
pursuant to this Order; and at the hearing on any such motion, the Court may consider and
determine the extent (if any) to which Protective Advances from ECP may be required to be
made available to the Receiver in order to permit the Receiver to pay (i) unpaid actual expenses
that were approved and incurred by the Receiver after his appointment through the effective date
of the Funding Termination Notice which may be disputed by ECP and (ii) a reasonable estimate
of fees and expenses of the Receiver and his Professionals for services to be rendered after the
effective date of the Funding Termination Notice in connection with winding up the receivership.
8.

Receiver’s compensation and the compensation owed to Development Specialists,

Inc., financial consultant to the Receiver, and any other professional retained by the Receiver
including but not limited to counsel, accountants, property managers and/or other retained

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professionals (collectively “Professionals’ Fees”), shall be paid monthly according to the hourly
fees and other terms and conditions as more fully set forth on Exhibit 2 attached to the Motion
and incorporated by reference (“Retention Letter”). Pursuant to the terms of the Retention Letter,
ECP shall be obligated to advance sums for the payment of Professional Fees, including the
holdbacks (upon Court approval) referred to in the Retention Letters.
9.

Professional Fees shall be paid first from income; if any; second, from any

proceeds from the disposition of Receivership Property; and third, from sums advanced by ECP.
10.

ECP shall be authorized, at any time or times, to enter upon the Facilities (or any

other location at which the Receiver maintains any of the Receivership Assets) for the purpose of
inspecting the Mortgaged Properties or any other Receivership Assets, including all Records,
Inventory or Equipment; conferring with officers, employees, or agents of the Receiver; and
reviewing and making copies of any and all of the Records and any other documents at any time
in the possession, custody or control of the Receiver. The Receiver shall periodically, at such
intervals as ECP and the Receiver shall mutually agree upon (but no less frequently than once
monthly), provide to ECP and Defendants reports of the Receiver's operations, cash receipts,
disbursements and maintenance of the Receivership Estate. In no event shall ECP, by virtue of
its exercising any right, power or privilege hereunder, be deemed to be in possession or control
of any of the Receivership Estate, or to have asserted any supervisory control or decision-making
authority with respect to the management, operation, protection or maintenance of any
Receivership Assets, and ECP shall not be deemed to have assumed any obligation under
Defendants’ agreements with any third parties and shall not be liable for the use, maintenance,
repair, or operation of any of the Receivership Estate. All officers, attorneys and authorized

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representatives of Defendants shall be entitled to review, inspect and copy any of the Records
during normal business hours and at their own expense.
11.

Defendants and each of their officers, directors, agents, attorneys and employees,

all other persons acting at the direction of Defendants, and each other person or entity receiving
notice of this Order by service or otherwise (but specifically excluding ECP), are hereby ordered
immediately to (i) turn over to the Receiver the Records; (ii) pay over to the Receiver all cash
and all funds and deposits in any Deposit Accounts or investments of Defendants, except for
funds required to pay checks for expenses of Defendants that have been issued on or before the
date of entry of this Order but have not yet been presented for payment; and (iii) cooperate with
the Receiver in identifying and locating Receivership Assets, transitioning the operations of any
Receivership Assets to the Receiver, and identifying and investigating any causes of action of
Defendants. Notwithstanding the foregoing, all proceeds of the Mortgaged Properties shall be
remitted by the Receiver (or any other person or entity in possession thereof) to ECP for
application first to Professional Fees and then to the Obligations.
12.

Defendants shall fully cooperate with Receiver in adding Receiver and Plaintiff as

additional insureds and ECP and Receiver as the loss payee on all insurance policies relating to
the management of the Receivership Assets including, but not limited to, fire, extended
coverage, vehicle coverage, property damage, liability, fidelity, errors and omissions, and
workers’ compensation, and modifying the policies if deemed appropriate by Receiver, but
subject to approval by ECP. As to property damage only, but not for to liability to third parties,
the rights of ECP as loss payee with respect to proceeds of insurance upon the Mortgaged
Properties shall at all times be superior to Receiver until Defendants’ obligations to ECP are

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repaid in full. Defendants shall provide the Receiver with a complete and accurate copy of all
existing insurance policies related to the Receivership Property or, if coverage has lapsed, a
complete set of the most recent policies and papers related to the most recent insurance coverage
maintained for the Receivership Property. Defendants and their members, managers, officers,
independent contractors, employees and agents are prohibited from canceling, modifying,
reducing, or otherwise changing any and all insurance coverage in existence with respect to the
Receivership Property, provided, further that the Defendants shall not be obligated to fund any
premium payment on any insurance policy subsequent to the entry of this Order.
13.

Within thirty (30) days of the date of this Order, the Receiver shall prepare for

review and approval an initial thirteen (13) week cash flow budget (the “Initial Budget”). For
each period covered by the Initial Budget and any subsequent updated Budget, the aggregate
actual disbursements by Receiver during such period of determination shall be no greater than
110% of the aggregate amount of projected disbursements for such period as set forth in the
Initial Budget or any subsequent Budget. Receiver shall provide to ECP no later than the 15th of
each month, unless otherwise requested by ECP, a line-by-line variance report for the
immediately preceding month as well as on a cumulative basis from the date of entry of this
Order to the report date (each a “Variance Report”) showing the actual amounts attributable to

each line item in the Budget. Concurrent with delivery of the Variance Report, Receiver shall
provide to ECP an update of the most recent Budget prepared in substantially the same form as
the initial Budget, (the “Rolling Budget”), which Rolling Budget shall be satisfactory in form
and substance to ECP. The Initial Budget and each subsequent Rolling Budget may be amended
from time to time without further notice to any parties in interest in this matter or further order of

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this Court upon the prior written agreement of ECP, and the amended budget shall become the

Budget or applicable Rolling Budget under the terms of this Agreed Order.

14.

The Receiver may, in his discretion and for the purpose of maintaining going-

concern value of any Receivership Assets, permit officers or employees of Defendants or Spectra
Properties, Inc. to collect, sell, possess, manage, protect, market and otherwise deal with some or
all of the Receivership Assets on such terms, and subject to such limitations and conditions, as
the Receiver deems appropriate, but in all events subject to the prior written consent of ECP and
the other provisions of this Order requiring a turnover to ECP, for application to the Obligations,
of proceeds of the Mortgaged Properties.
15.

During the pendency of this Receivership, absent express permission of this

Court, all actions by any creditors, lessors, landlords, taxing authorities and other persons and
entities seeking money damages, dispossession of Receivership Assets or other relief from
Defendants or the Receivership Estate and all others acting on behalf of any such creditors and
other persons, including sheriffs, marshals, and all officers and deputies, and their respective
attorneys, servants, agents and employees, are, until further order of this Court, hereby stayed.
Further, except for ECP, all persons and entities who have or receive notice of this Order,
including (i) Defendants (and all officers, directors, employees and agents of Defendants), (ii) all
creditors of Defendants, and (iii) all persons or entities acting at the direction or on behalf of any
of the persons described in clauses (i) or (ii), including, without limitation, sheriffs, marshals,
and all officers and deputies, and their respective attorneys, servants, agents and employees, are
hereby RESTRAINED AND ENJOINED from (a) destroying, concealing, using, collecting,
taking possession of, transferring, asserting dominion or control over, repossessing, seizing,

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attaching, garnishing, executing upon, seeking to impose a judicial lien upon any Receivership
Assets, (b) otherwise interfering with the possession, custody, control, use, or management by
the Receiver of any Receivership Assets or with the Receiver's exercise of powers or discharge
of duties under this Order, (c) altering any Records, (d) cancelling, terminating or limiting any
insurance coverage, permits, registrations, certificates, licenses or contracts of Defendants, or (e)
filing or prosecuting any actions or proceedings that involve the Receiver or that affect any
Receivership Assets, except to the extent authorized by the Receiver or to the extent that any
party to such action or proceeding may be required to answer or reply to any pending complaint,
motion or other pleading in order to avoid default.
16.

The Receiver is authorized to file, record or register this Order with appropriate

government offices and courts and to serve this Order on any person or entity whom the Receiver
reasonably believes to be in custody or control of funds or other assets properly belonging to the
Receivership Estate.
17.

If the Receiver determines that the aggregate amount of Revenues and Protective

Advances available to the Receiver are insufficient to pay the reasonable and necessary expenses
of maintaining, preserving, and operating the Facilities in compliance with applicable law, then
the Receiver may, on not less than ten (10) business days’ written notice to ECP and Defendants,
file with the Court a resignation and termination of the Receiver's further responsibilities to serve
as receiver hereunder, whereupon, subject to a surrender of all of the Mortgaged Properties to
ECP and the filing of a final report regarding the receivership with the Court, the Receiver shall
be discharged. In connection with any such surrender of the Mortgaged Properties to ECP, the
Receiver, for himself, on behalf of the Receivership Estate and on behalf of Defendants, shall be

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deemed to have waived any notices otherwise required to be given by ECP in connection with
any sale or other disposition of any of the Mortgaged Properties, including, without limitation,
any notices otherwise required under the Uniform Commercial Code.
18.

The Receiver is authorized to communicate with all persons as he deems

appropriate to inform them of the status of this matter and the Receivership Estate. In connection
with any final report, accounting and discharge of the Receiver, the Receiver shall seek and
obtain final approval from the Court of the professional fees and expenses of the Receiver, his
firm and his counsel.
19.

Upon the request of the Receiver, the United States Marshal’s Office, in any

judicial district, is hereby authorized to assist the Receiver in carrying out his duties to take
possession, custody or control of, or identify the location of, any assets, records or other
materials belonging to the Receivership Estate.
20.

Notwithstanding anything to the contrary in this Order, ECP is hereby authorized

(but not required) to take all actions it deems necessary or appropriate to realize upon any of the
Mortgaged Properties, including, without limitation, collection of any Accounts, foreclosure of
its liens upon any or all of the Mortgaged Properties or exercise any power of sale granted in any
of the Loan Documents, and apply the proceeds thereof to the payment of the Obligations.
Except as otherwise expressly agreed by ECP, the Receiver shall turn over all proceeds of the
Mortgaged Properties to ECP for application to the Obligations. Upon any foreclosure by ECP,
the Receiver shall cooperate with ECP and the party purchasing any of the Mortgaged Properties
at foreclosure by relinquishing possession of such Mortgaged Properties and taking any other
actions that may be necessary or desirable in connection with a foreclosure by ECP.

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21.

The Clerk of the Court is authorized and directed to make certified copies of this

Order, at the Receiver's request, for use by the Receiver.

22.

The Receiver, while lawfully acting as such (including his employees, agents, and

professionals that he may retain to assist him with the performance of his duties, and others
engaged in connection herewith), is deemed an agent of the Court and is entitled to and shall
have immunity to the fullest extent of the law, from and against any and all causes of action, suit,
proceedings, claims, demands, suits, losses, damages and liability, including costs and a
reasonable receiver and attorney's fees ("Claims"), in any manner arising from, in connection
with or relating to any of the Assets and/or in the course of his acting in such court appointed
capacity. The Receiver is entitled to rely on all outstanding rules of law and Court orders and
shall not be liable to anyone for his own good faith compliance with any order, rule, law,
judgment or decree. In no event shall the Receiver be liable for his good faith compliance with
the terms and provision of this Order, nor shall he be liable to anyone for any action taken
omitted by it except upon a finding by this Court that he acted or failed to act as a result of
misfeasance, bad faith, gross negligence or in reckless disregard of his duties. Further, so long as
the Receiver acts as authorized herein, the Receiver, and his employees, agents, retained
professionals, and others engaged in connection herewith, shall be indemnified and held
harmless by the Receivership estate from any and all right, claim, or causes of action brought
against the Receiver, and his employees, agents, retained professionals, and others engaged in
connection herewith, including the costs and expenses of defense of such claims or actions. The
Receiver shall not be liable for the obligations of Defendants to third parties (whether or not such
persons or entities are a party to this litigation) to include, without limitation, tax liability

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(payroll taxes, income taxes, or back taxes of any kind); worker’s compensation and
unemployment compensation premiums or other obligations; wages, benefits, and other
compensation due to employees, officers, directors, or agents; and contract indebtedness to third
parties arising prior to his appointment and qualification as the Receiver.
23.

Defendants, ECP and any other person asserting a lien upon any assets in the

Receivership Estate, may request, by written motion filed with the Court and with at least five
(5) business days' notice to ECP and Defendants, a status conference or any other appropriate
relief as to the results of the Receiver's management and liquidation of the Receivership Estate,
the necessity or appropriateness of continuing the receivership, or whether any of the terms and
conditions of this Order should be amended or modified in any way.
24.

The Receiver shall be authorized to apply to this Court, with notice to ECP and

Defendants, for issuance of such other orders as may be necessary and appropriate in order to
carry out the mandate of this Court.
25.

This Court shall retain jurisdiction of this matter for all purposes, including,

without limitation, for the purpose of amending, interpreting and enforcing any of the provisions
of this Order.
26.

This Order is without prejudice to ECP’s continued enforcement of the

foreclosure actions and execution on any order of possession in coordination with the Receiver
or otherwise, by whatever means considered necessary to Plaintiff.
27.

This Order shall be effective upon the oath of the Receiver and for all purposes.

28.

There being no just reason for delay, the Court finds this is a final, appealable

order.

- 21 –

JUDGE, UNITED STATES DISTRICT COURT

AGREED TO BY:

BRADLEY ARANT BOULT
CUMMINGS LLP

GLANKLER BROWN, PLLC

By:

/s/ Austin L. McMullen
Austin L. McMullen
Roundabout Plaza
1600 Division Street, Ste. 700
Nashville, TN 37203
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

By:

LEITESS FRIEDBERG PC

Counsel for Defendants

/s/ Jeremy S. Friedberg
Jeremy S. Friedberg, Pro Hac Vice
10451 Mill Run Circle, Suite 1000
Baltimore, Maryland 21117
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

Counsel for Plaintiff

/s/ Michael P. Coury
Michael P. Coury
6000 Poplar Avenue
Suite 400
Memphis, TN 38119
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

- 22 –

AO 440 (Rev. 12/09) Summons in a Civil Action

UNITED STATES DISTRICT COURT
for the

Western District of Tennessee
__________ District of __________
ECP COMMERCIAL I LLC
Plaintiff

v.
BOAZ SHOPPING CENTER, LLC., ET AL.,
Defendant

)
)
)
)
)
)
)

Civil Action No. 15-cv-02247-STA-cgc

SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address)

Jeff H. Farmer, III as Collection Agent
5851 Ridge Bend Road
Memphis, Tennessee 38120-9412

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are: Austin L. McMullen, Esquire
BRADLEY ARANT BOULT CUMMINGS LLP
Roundabout Plaza
1600 Division Street, Ste. 700
Nashville, TN 37203

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.

CLERK OF COURT

Date:
Signature of Clerk or Deputy Clerk

AO 440 (Rev. 12/09) Summons in a Civil Action

UNITED STATES DISTRICT COURT
for the

Western District of Tennessee
__________ District of __________
ECP COMMERCIAL I LLC
Plaintiff

v.
BOAZ SHOPPING CENTER, LLC., ET AL.,
Defendant

)
)
)
)
)
)
)

Civil Action No. 15-cv-02247-STA-cgc

SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address)

Jeff H. Farmer, III as Collection Agent
5851 Ridge Bend Road
Memphis, Tennessee 38120-9412

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are: Austin L. McMullen, Esquire
BRADLEY ARANT BOULT CUMMINGS LLP
Roundabout Plaza
1600 Division Street, Ste. 700
Nashville, TN 37203

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.

CLERK OF COURT

Date:
Signature of Clerk or Deputy Clerk

AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)

Civil Action No. 15-cv-02247-STA-cgc
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)
was received by me on (date)

.

’ I personally served the summons on the individual at (place)
on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual)

, who is

designated by law to accept service of process on behalf of (name of organization)
on (date)

; or

’ I returned the summons unexecuted because

; or

’ Other (specify):
.

My fees are $

for travel and $

for services, for a total of $

0.00

I declare under penalty of perjury that this information is true.

Date:
Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:

Print

Save As...

Reset

.

AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)

Civil Action No. 15-cv-02247-STA-cgc
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)
was received by me on (date)

.

’ I personally served the summons on the individual at (place)
on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual)

, who is

designated by law to accept service of process on behalf of (name of organization)
on (date)

; or

’ I returned the summons unexecuted because

; or

’ Other (specify):
.

My fees are $

for travel and $

for services, for a total of $

0.00

I declare under penalty of perjury that this information is true.

Date:
Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:

Print

Save As...

Reset

.

AO 440 (Rev. 12/09) Summons in a Civil Action

UNITED STATES DISTRICT COURT
for the

Western District of Tennessee
__________ District of __________
ECP COMMERCIAL I LLC
Plaintiff

v.
BOAZ SHOPPING CENTER, LLC., ET AL.,
Defendant

)
)
)
)
)
)
)

Civil Action No. 15-cv-02247-STA-cgc

SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address)

Jeff H. Farmer, III as Collection Agent
5851 Ridge Bend Road
Memphis, Tennessee 38120-9412

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are: Austin L. McMullen, Esquire
BRADLEY ARANT BOULT CUMMINGS LLP
Roundabout Plaza
1600 Division Street, Ste. 700
Nashville, TN 37203

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.

CLERK OF COURT

Date:
Signature of Clerk or Deputy Clerk

AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)

Civil Action No. 15-cv-02247-STA-cgc
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)
was received by me on (date)

.

’ I personally served the summons on the individual at (place)
on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual)

, who is

designated by law to accept service of process on behalf of (name of organization)
on (date)

; or

’ I returned the summons unexecuted because

; or

’ Other (specify):
.

My fees are $

for travel and $

for services, for a total of $

0.00

I declare under penalty of perjury that this information is true.

Date:
Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:

Print

Save As...

Reset

.