Notice Content
STATE OF GEORGIA
COUNTY OF GILMER
NOTICE OF SALE UNDER POWER
WHEREAS, Highland Small Shop Partners, LLC, a Georgia limited liability company (“Borrowerâ€), and Roam Dirt, LLC, a Georgia limited liability company (“Fee Ownerâ€) did execute and deliver to Archon Financial, L.P., a Delaware limited partnership (“Original Lenderâ€), that certain Deed to Secure Debt (Fee and Leasehold), Assignment of Rents and Security Agreement (the “Security Deedâ€), made as of November 18, 2005, filed November 22, 2005 in Deed Book 1206, beginning at Page 248, with the Clerk of the Superior Court of Gilmer County, Georgia (the “Gilmer County Recordsâ€), as such Security Deed was granted, bargained, sold, assigned, transferred and set over by Original Lender to Wells Fargo Bank, N.A., as trustee for the registered holders of GS Mortgage Securities Corporation II, Commercial Mortgage Pass-Through Certificates, Series 2006-GG6 (“First Interim Holderâ€), pursuant to that certain Assignment of Deed to Secure Debt (Fee and Leasehold), Assignment of Rents and Security Agreement, made as of November 18, 2005, filed July 3, 2006 in Deed Book 1282, beginning at Page 200, in the Gilmer County Records, as such Security Deed was further granted, bargained, sold, conveyed, assigned, transferred and set over by First Interim Holder to Bank of America, N.A., as trustee for the registered holders of GS Mortgage Securities Corporation II, Commercial Mortgage Pass-Through Certificates, Series 2006-GG6 (“Second Interim Holderâ€), pursuant to that certain Assignment of Deed to Secure Debt (Fee and Leasehold), Assignment of Rents and Security Agreement and Assignment of Assignment of Leases and Rents, filed June 18, 2010 in Deed Book 1616, beginning at Page 113, in the Gilmer County Records, as such Security Deed was further granted, bargained, sold, conveyed, assigned, transferred and set over by Second Interim Holder to U.S. Bank National Association, as trustee, successor-in-interest to Bank of America, N.A., as trustee, successor to Wells Fargo Bank, N.A., as trustee, for the registered holders of GS Mortgage Securities Corporation II, Commercial Mortgage Pass-Through Certificates, Series 2006-GG6 (“Third Interim Holderâ€), pursuant to that certain Assignment of Deed to Secure Debt (Fee and Leasehold), Assignment of Rents and Security Agreement and Assignment of Assignment of Leases and Rents, filed December 31, 2015 in Deed Book 1952, beginning at Page 486, in the Gilmer County Records, and as such Security Deed was further granted, bargained, sold, conveyed, assigned, transferred and set over by Third Interim Holder to GSMSCII 2006-GG6 Ellijay Shops LLC, a Delaware limited liability company (“Holderâ€), pursuant to that certain Assignment of Deed to Secure Debt (Fee and Leasehold), Assignment of Rents and Security Agreement and Assignment of Assignment of Leases and Rents, filed March 3, 2016 in Deed Book 1961, beginning at Page 202, in the Gilmer County Record (said Security Deed as so assigned being hereinafter called the “Security Instrumentâ€); and
WHEREAS, under and pursuant to the Security Instrument, Borrower and Fee Owner thereby deeded, mortgaged, gave, granted, bargained, sold, alienated, enfeoffed, conveyed, confirmed, warranted, pledged, assigned, and hypothecated and by those presents did thereby irrevocably, unconditionally and absolutely deed, mortgage, give, grant, bargain, sell, alien, enfeoff, convey, confirm, warrant, pledge, assign and hypothecate unto Holder (as successor and assign of Original Lender) (A) the fee estate of Fee Owner in the real property described as follows (the “Premisesâ€):
ALL THAT TRACT OR PARCEL of land situate lying and being in Land Lots 135 and 154 of the 11th District, 2nd Section, Gilmer County, Georgia and being more particularly described as follows:
To find the TRUE POINT OF BEGINNING commence at a 1/4 inch rebar found at the Land Lot Corner common to Land Lots 134, 135, 154 and 155 said District, Section and County and run thence South 71 degrees 10 minutes 49 seconds West, 289.02 feet to a 1/2 inch rebar found and the TRUE POINT OF BEGINNING;
From said TRUE POINT OF BEGINNING as thus established run thence North 66 degrees 16 minutes 57 seconds West, 264.11 feet to a pk nail set on the Western right-of-way of Highland Circle (right-of-way varies); run thence along said right-of-way the following courses and distances: North 24 degrees 05 minutes 22 seconds East 149.81 feet to a point, North 25 degrees 02 minutes 44 seconds East 15.00 feet to a point and North 26 degrees 00 minutes 01 seconds East 154.63 feet to a pk nail set; thence leaving said right-of-way run South 63 degrees 59 minutes 58 seconds East 13.96 feet to a point; run thence along the arc of a 38.82 foot radius curve to the left an arc distance of 24.78 feet (said arc being subtended by a chord lying to the North having a bearing of South 82 degrees 09 minutes 56 seconds East and being 24.36 feet in length) to a point; run thence North 79 degrees 35 minutes 27 seconds East 17.36 feet to a point; run thence along the arc of a 75.00 foot radius curve to the right an arc distance of 47. 66 feet (said arc being subtended by a chord lying to the South having a bearing of South 81 degrees 54 minutes 43 seconds East and being 46.86 feet in length) to a point; run thence South 63 degrees 42 minutes 23 seconds East 159.72 feet to a pk nail set; run thence South 23 degrees 41 minutes 04 seconds West 176.37 feet to a point; run thence South 23 degrees 41 minutes 04 seconds West 164.24 feet to a 1/2 inch rebar found at the TRUE POINT OF BEGINNING;
Said property being more particularly shown as containing 2.039 acres on that certain ALTA Survey prepared for Highland Small Shops by Landtech Services, Inc. dated October 11, 2005, last revised November 2, 2005, bearing the seal and certification of Tony G. Kirby, Georgia Registered Land Surveyor No. 2988; said Survey being incorporated herein by this reference;
and (B) the right, title and interest of Borrower in and to the estate created pursuant to that certain Ground Lease, dated October 6, 2004, between Fee Owner as lessor, and Borrower, as lessee (the “Ground Leaseâ€), a memorandum of which was recorded in the Gilmer County Records in Deed Book 1090, beginning at Page 472, in the Premises and the buildings, structures, fixtures, additions, enlargements, extensions, modifications, repairs, replacements and improvements then or thereafter located or erected thereon (the “Improvementsâ€); and
TOGETHER WITH: all right, title, interest and estate of Borrower then owned, or thereafter acquired, in and to the following property, rights, interests and estates (the Premises, the Improvements, and the property, rights, interests and estates hereinafter described are collectively referred to herein as the “Propertyâ€):
(a) the Ground Lease and the leasehold estate created thereby;
(b) all modifications, extensions and renewals of the Ground Lease and all credits, deposits (including, without limitation, any deposit of cash or securities or any other property which may be held by Holder to secure Borrower's performance of its obligations under the Ground Lease), options, privileges and rights of Borrower as tenant under the Ground Lease, including, but not limited to, the right, if any, to renew or extend the Ground Lease for a succeeding term or terms;
(c) all the estate, right, title, claim or demand whatsoever of Borrower either in law or in equity, in possession or expectancy, of, in and to the Property or any part thereof;
(d) all easements, rights-of-way, strips and gores of land, streets, ways, alleys, passages, sewer rights, water, water courses, water rights and powers, air rights and development rights, all rights to as-extracted collateral produced from or allocated to the Premises including without limitation oil, gas, minerals, coal and other substances of any kind or character, and all estates, rights, titles, interests, privileges, liberties, tenements, hereditaments and appurtenances of any nature whatsoever, in any way belonging, relating or pertaining to the Premises and the Improvements under and by virtue of the Ground Lease or otherwise, and the reversion and reversions, remainder and remainders, and all land lying in the bed of any street, road, highway, alley or avenue, opened, vacated or proposed, in front of or adjoining the Premises, to the center line thereof and all the estates, rights, titles, interests, dower and rights of dower, curtsey and rights of curtsey, property, possession, claim and demand whatsoever, both at law and in equity, of Borrower of, in and to the Premises and the Improvements under and by virtue of the Ground Lease or otherwise, and every part and parcel thereof, with the appurtenances thereto;
(e) all machinery, furniture, furnishings, equipment, computer software and hardware, fixtures (including, without limitation, all heating, air conditioning, plumbing, lighting, communications and elevator fixtures) and other property of every kind and nature, whether tangible or intangible, (including software embedded therein), whatsoever owned by Borrower, or in which Borrower then had or shall thereafter have an interest, then or thereafter located upon the Premises and the Improvements, or appurtenant thereto, and usable in connection with the present or future operation and occupancy of the Premises and the Improvements and all building equipment, materials and supplies of any nature whatsoever owned by Borrower, or in which Borrower then had or shall thereafter have an interest, then or thereafter located upon the Premises and the Improvements, or appurtenant thereto, or usable in connection with the present or future operation, enjoyment and occupancy of the Premises and the Improvements (hereinafter all of the foregoing items in this subparagraph (e) collectively referred to as the “Equipmentâ€), including any leases of any of the Equipment, any deposits existing at any time in connection with any of the Equipment, and the proceeds of any sale or transfer of the foregoing, and the right, title and interest of Borrower in and to any of the Equipment that may be subject to any “security interests†as defined in the Uniform Commercial Code, as in effect from time to time in the State where the Premises are located (the “Uniform Commercial Codeâ€), superior in lien to the security interest and security title of the Security Instrument;
(f) all awards or payments, including interest thereon, that may theretofore and thereafter be made with respect to the Premises, Improvements or the Equipment, whether from the exercise of the right of eminent domain or condemnation (including, without limitation, any transfer made in lieu of or in anticipation of the exercise of said rights), or for a change of grade, or for any other injury to or decrease in the value of the Premises, Improvements or the Equipment;
(g) all leases, subleases and other agreements or arrangements theretofore or thereafter entered into affecting the use, enjoyment or occupancy of, or the conduct of any activity upon or in, the Premises and the Improvements, including any extensions, renewals, modifications or amendments thereof (collectively, the “Leasesâ€) (the tenants, lessees, licensees, occupants or other users under the Leases are collectively hereinafter referred to as “tenantsâ€) and all rents, rent equivalents, moneys payable as damages or in lieu of rent or rent equivalents, royalties (including, without limitation, all oil and gas or other mineral royalties and bonuses), income, fees, receivables, receipts, revenues, deposits (including, without limitation, security, utility and other deposits), accounts, cash, issues, profits, charges for services rendered, and other payment and consideration of whatever form or nature received by or paid to or for the account of or benefit of Borrower or its agents or employees from any and all sources arising from or attributable to the Premises and the Improvements (the “Rentsâ€), together with all proceeds from the sale or other disposition of the Leases and the right to receive and apply the Rents to the payment of the Debt (as defined in the Security Instrument);
(h) all proceeds of and any unearned premiums on any insurance policies covering all or any portion of the Premises, Improvements or Equipment, including, without limitation, the right to receive and apply the proceeds of any insurance, judgments, or settlements made in lieu thereof, for damage to the Premises, Improvements or Equipment;
(i) all accounts, escrows, impounds, reserves, documents, instruments, chattel paper (whether tangible or electronic), claims, deposits and general intangibles, as the foregoing terms are defined in the Uniform Commercial Code, all promissory notes, and all franchises, trade names, trademarks, copyrights, symbols, service marks, books, records, recorded data of any kind or nature (regardless of the medium), plans, specifications, schematics, designs, drawings, permits, consents, licenses (including liquor licenses, to the extent assignable), license agreements, operating contracts, contract rights (including, without limitation, any contract with any architect or engineer or with any other provider of goods or services for or in connection with any construction, repair, or other work upon the Premises, Improvements or Equipment) and all management, franchise, service, supply and maintenance contracts and agreements, and any other agreements, permits or contracts of any nature whatsoever then or thereafter obtained or entered into by or on behalf of Borrower with respect to the operation or ownership of the Premises, Improvements or Equipment; and all approvals, actions, refunds, rebates or reductions of real estate taxes and assessments (and any other governmental impositions related to the Premises, Improvements or Equipment) resulting as a result of tax certiorari or any applications or proceeding for reduction; and all causes of action that then or thereafter relate to, are derived from or are used in connection with the Premises, Improvements or Equipment, or the use, operation, maintenance, occupancy or enjoyment thereof or the conduct of any business or activities thereon (hereinafter all of the items referred to in this subparagraph (i) collectively referred to as the “Intangiblesâ€);
(j) all letter of credit rights (whether or not the letter of credit is evidenced by a writing) Borrower then had or thereafter acquires relating to the Premises, Improvements, Equipment, Intangibles and other properties, rights, title and interests hereinabove described;
(k) all commercial tort claims Borrower then had or thereafter acquires relating to the Premises, Improvements, Equipment, Intangibles and other properties, rights, title and interests hereinabove described;
(l) any and all monies or funds then or thereafter deposited in or with respect to any impound, escrow or similar funds established pursuant to or held under any of the Loan Documents (as defined in the Security Instrument), including but not limited to the Tax and Insurance Impound and the Replacement Escrow Fund (as such terms are defined in the Security Instrument); and
(m) all accounts and proceeds (cash or non-cash), products, offspring, rents and profits from any of the foregoing, including, without limitation, those from the conversion (whether voluntary or involuntary), sale, exchange, transfer, collection, loss, damage, disposition, substitution or replacement of any of the foregoing.
WHEREAS, the Security Instrument secures, in part, that certain loan (the “Loanâ€) as evidenced by that certain Deed to Secure Debt Note (the “Noteâ€), dated November 18, 2005, in the original principal amount of $1,400,000.00, executed by Borrower and payable to the order of Original Lender, as later endorsed and assigned to Holder; and
WHEREAS, defaults and Events of Default (as defined in the Security Instrument) have occurred and are continuing under the Note and the Security Instrument, specifically including, without limitation, the failure of Borrower to make the payment due under the Note of all remaining principal, interest and other Debt on the maturity date thereof; and
WHEREAS, by reason of such defaults and Events of Default, the Debt is and remains delinquent, due and payable in the entirety and the Security Instrument has become, is, and is hereby subject to foreclosure as provided by law, the Note, and the Security Instrument; and
WHEREAS, prior to the consummation of the exercise of the power of sale contained in the Security Instrument and the consummation of the foreclosure sale of all or any portion of the Property, the Tax and Insurance Impound, the Replacement Escrow Fund, the Rollover Escrow Fund and the Cancelled Lease Escrow Fund (each as defined in the Security Instrument), if any, and any and all other funds, cash, letters of credit and other sums held by Holder in any escrow, in reserve or in other accounts established under the Note, the Security Instrument or any other Loan Document, if any, for payment of taxes, insurance, capital improvements, replacements, tenant improvements, leasing commissions or otherwise (collectively, the “Fundsâ€) have been or shall have been applied by Holder toward payment of the Debt in accordance with and to the extent provided for in the Note, the Security Instrument or any other Loan Document.
NOW, THEREFORE, under and pursuant to the power of sale contained in the Security Instrument and according to the terms of the Security Instrument and the laws in such cases made and provided, Holder will expose the Property (less and except the Funds) for sale, at public sale to the highest bidder, for cash on that certain first Tuesday in May 2016, being May 3, 2016, during the legal hours for sale, before the courthouse door in Gilmer County, Georgia. The Property (less and except the Funds) will be sold subject to the following:
1. All outstanding taxes and assessments, and any additional taxes which result from a reassessment of the Property;
2. Rights and obligations of tenants in possession, as tenants only, pursuant to written but unrecorded rental or lease agreements without rights or options to purchase the Property;
3. Easements With Covenants and Restrictions Affecting Land (“ECRâ€) between H. Lee Scott, Jr. as Trustee of Wal-Mart Real Estate Business Trust, a Delaware business trust, and Cartecay Properties, LLC, a Georgia limited liability company, and Ellijay Partners, LLC, a Georgia limited liability company, dated May 2, 2002, filed May 3, 2002, recorded in Deed Book 856, Page 494, Gilmer County Records; as amended by Amended and Restated Easements With Covenants and Restrictions Affecting Land (“ECRâ€) between H. Lee Scott, Jr. as Trustee of Wal-Mart Real Estate Business Trust, a Delaware business trust, and Cartecay Properties, LLC, a Georgia limited liability company, and Ellijay Partners, LLC, a Georgia limited liability company, Lowe's Home Centers, Inc., a North Carolina corporation, dated September 12, 2003, filed September 16, 2003, recorded in Deed Book 991, Page 142, Gilmer County Records;
4. Right of Way Deed in favor of Department of Transportation, filed April 8, 1981, recorded in Deed Book 102, Page 418, Gilmer County Records;
5. Right of Way Easement in favor of Amicalola Electric Membership Corporation, filed August 14, 1978, recorded in Deed Book 83, Page 155, Gilmer County Records;
6. Easement in favor of Georgia Power Company, filed February 15, 2000, recorded in Deed Book 697, Page 477, Gilmer County Records;
7. Easement in favor of Georgia Power Company, filed February 15, 2000, recorded in Deed Book 697, Page 491, Gilmer County Records;
8. Conveyance Access Rights between Department of Transportation and Cartecay Properties, L.L.C., filed November 13, 2001, recorded in Deed Book 815, Page 211, Gilmer County Records;
9. Dedication of Streets between Ellijay Partners, L.L.C. and City of East Ellijay as recorded in Warranty Deed recorded in Deed Book 909, Page 138, Gilmer County Records;
10. Underground Easement from Ellijay Partners, LLC to Georgia Power Company, filed January 2, 2003, recorded in Deed Book 917, Page 302, Gilmer County Records;
11. Right of Way Easement from Kelly Martin-Cartecay Properties, LLC to Amicalola Electric Membership Corporation, filed June 19, 2003, recorded in Deed Book 964, Page 230, Gilmer County Records;
12. Easements, Covenants and Restrictions Agreement between Lowe's Home Centers, Inc., Cartecay Properties, LLC, and Ellijay Partners, LLC, filed September 16, 2003, recorded in Deed Book 991, Page 174, Gilmer County Records;
13. Restrictive Covenant Agreement between Lowe's Home Centers, Inc., and Cartecay Properties, LLC, filed September 16, 2003, recorded in Deed Book 991, Page 207, Gilmer County Records;
14. Access Easement Agreement by and among Cartecay Properties, LLC and H. Lee Scott, Jr., as Trustee of Wal-Mart Real Estate Business Trust, dated May 2, 2002, filed May 3, 2002, recorded in Deed Book 856, Page 484, Gilmer County Records;
15. Memorandum of Lease between Roam Dirt, LLC and Highland Small Shop Partners, LLC, dated October 6, 2004, filed October 12, 2004, and recorded in Deed Book 1090, Page 472, Gilmer County Records;
16. The following matters depicted on that certain ALTA Survey for Highland Small Shops, prepared by Landtech Services, Inc., bearing the seal of Tony G. Kirby, GRLS No. 2988, and dated November 2, 2005:
a. 30-foot access easements along the northeast and southwest boundaries of the Property (same as Plat Book 42, page 51, Gilmer County Records);
b. drainage easement located in the southwest corner of the Property (same as Plat Book 42, page 51, Gilmer County Records);
17. All valid zoning ordinances; and
18. All other, if any, easements, limitations, reservations, covenants, restrictions, deeds to secure debt, liens and other encumbrances and matters of public records to which the Security Instrument is junior and subordinate in terms of priority under the laws of the State of Georgia.
The Debt remaining in default and the Events of Default continuing, the sale of the Property (less and except the Funds) under and pursuant to the power of sale contained in the Security Instrument will be made for the purpose of applying the proceeds thereof, as provided for in the Security Instrument and pursuant to applicable law.
The Property (less and except the Funds) will be sold on an “as is, where is†basis without recourse against Holder and without representation or warranty of any kind or nature whatsoever with respect thereto, with no assurance afforded as to the exact acreage of the Premises.
To the best of Holder's knowledge and belief, the Property (less and except the Funds) is presently owned by Fee Owner, subject to the aforesaid interests of Holder, and the matters set forth herein, and Borrower is the party in possession of the Property (less and except the Funds), subject to the aforesaid interests.
The notice to Borrower, pursuant to O.C.G.A. §44-14-162.2, has been provided by Holder to Borrower in accordance with said O.C.G.A. §44-14-162.2.
The undersigned may sell the Property (less and except the Funds) or any part of the Property (less and except the Funds) in such manner and order as Holder may elect and may sell that portion of the Property (less and except the Funds), which, under the laws of the State of Georgia, constitutes an estate or interest in real estate separately from that portion of the Property (less and except the Funds), which, under the laws of the State of Georgia, constitutes personalty and not an interest in the real estate, in which case separate bids will be taken therefor, or collectively in a single sale or lot, in which case a single bid will be taken therefor. Notice of the undersigned's intent shall be given by announcement made at the commencement of the public sale.
The recitals set forth hereinabove are hereby incorporated in and made a part of this Notice of Sale Under Power.
GSMSCII 2006-GG6 ELLIJAY SHOPS LLC, a Delaware limited liability company, as agent and attorney-in-fact for HIGHLAND SMALL SHOP PARTNERS, LLC, a Georgia limited liability company, and ROAM DIRT, LLC, a Georgia limited liability company
By: U.S. Bank National Association, as trustee, successor-in-interest to Bank of America, N.A., as trustee, successor to Wells Fargo Bank, N.A., as trustee, for the registered holders of GS Mortgage Securities Corporation II, Commercial Mortgage Pass-Through Certificates, Series 2006-GG6, its Member
By: Torchlight Loan Services, LLC, solely in its capacity as Special Servicer for Member and not personally
By: its attorney-at-law:
/Edwin H. Garrison/
Edwin H. Garrison, Esq.
Kilpatrick Townsend & Stockton LLP
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309-4530
404-815-6500
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