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NOTICE OF SALE UNDER POWER IN SECURITY DEED UNDER AND BY VIRTUE of the power of sale contained in that certain Restated and Amended Deed to Secure Debt, Security Agreement and Assignment of Leases and Rents from Washington Road Hotel, LLC, a Georgia limited liability company ("Borrower"), to Morgan Stanley Mortgage Capital Inc. ("Original Lender"), recorded December 7, 2004, in Deed Book 964, Page 1667, Augusta - Richmond County, Georgia records (the "Public Records"), as assigned by that certain Assignment of Restated and Amended Deed to Secure Debt, Security Agreement and Assignment of Leases and Rents and Assignment of Assignment of Leases and Rents from Original Lender to Bank of America, National Association, successor by merger to LaSalle Bank National Association, as trustee for Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-TOP17 ("First Intermediate Lender"), recorded June 2, 2005 in Deed Book 993, Page 1183, in the Public Records, that certain Assignment of Restated and Amended Deed to Secure Debt, Security Agreement and Assignment of Leases and Rents and Assignment of Assignment of Leases and Rents from Original Lender to First Intermediate Lender, recorded June 2, 2005 in Deed Book 993, Page 1188, in the Public Records, that certain Assignment of Restated and Amended Deed to Secure Debt, Security Agreement and Assignment of Leases and Rents and Assignment of Assignment of Leases and Rents from Original Lender to First Intermediate Lender, recorded June 2, 2005 in Deed Book 993, Page 1193, in the Public Records, that certain Assignment of Restated and Amended Deed to Secure Debt, Security Agreement and Assignment of Leases and Rents and Assignment of Assignment of Leases and Rents from Original Lender to First Intermediate Lender, recorded June 2, 2005 in Deed Book 993, Page 1198, in the Public Records, that certain Assignment of Deed to Secure Debt, Security Agreement and Assignment of Leases and Rents from First Intermediate Lender to U.S. Bank National Association, as Trustee, successor in interest to Bank of America, National Association, as Trustee, successor by merger to LaSalle Bank National Association, as trustee for Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-TOP17 ("Second Intermediate Lender"), recorded on March 4, 2015, in Deed Book 1474, Page 1910, in the Public Records, as modified by that certain Loan Modification Agreement dated as of May 1, 2015, but effective as of December 1, 2014, by and among the Borrower and the Second Intermediate Lender, recorded on May 14, 2015, in Deed Book 1484, Page 763, in the Public Records, as further assigned by that certain Assignment of Deed to Secure Debt, Security Agreement, Assignment of Leases and Rents and UCC Fixture Filing dated August 25, 2016 from Second Intermediate Lender to TOP17 - 3030 Washington RD LLC, a Delaware limited liability company ("Lender"), recorded on September 2, 2016, in Deed Book 1546, Page 432, in the Public Records (the "Security Deed"), and pursuant to the applicable provisions of the Uniform Commercial Code, as enacted in Georgia, including, without limitation, O.C.G.A 11-9-604, the undersigned will sell at public outcry, to the highest bidder for cash, before the courthouse door of Augusta-Richmond County, Georgia, within the legal hours of sale on the first Tuesday in December, 2016, the following described property being located in Augusta-Richmond County, Georgia (the "Secured Property"): ALL THAT CERTAIN PIECE, PARCEL, OR TRACT OF LAND SITUATE, LYING AND BEING IN AUGUSTA, RICHMOND COUNTY, STATE OF GEORGIA, AND BEING KNOWN AS TRACT NO. 1 AND EASEMENT TRACT NO. 2 ON PLAT ENTITLED "PLAT FOR J.H.M. ENTERPRISES, ASSOC." RECORDED IN THE CLERK OF SUPERIOR COURT OF RICHMOND COUNTY IN REEL 225, PAGES 2025 AND 2026, AND CONTAINING 5.00 ACRES (TRACT NO. 1) AND 1.17 ACRES (EASEMENT TRACT NO. 2), ACCORDING TO AN "ALTA/ACSM LAND TITLE SURVEY FOR JHM AUGUSTA ASSOCIATES, 3030 WASHINGTON ROAD, RICHMOND COUNTY, AUGUSTA GEORGIA, (HAMPTON INN)", DATED OCTOBER 27, 2004, BY SITE DESIGN, INC., WITH THE FOLLOWING METES AND BOUNDS, TO WIT: TRACT NO. 1: COMMENCING AT AN OLD "X" IN CONCRETE LOCATED ON THE SOUTHERN RIGHT-OF-WAY OF WASHINGTON ROAD (STATE ROUTE 28) AND THE JOINT CORNER OF SAPNA INC., PROPERTY NOW OR FORMERLY, SAID "X" ALSO BEING LOCATED 578.9 FEET FROM THE WESTERN RIGHT-OF-WAY OF INTERSTATE 20; THENCE RUNNING ALONG SAID RIGHT-OF-WAY NORTH 78 DEGREES 33 MINUTES 17 SECONDS WEST, A DISTANCE OF 50.30 FEET TO A POINT AT THE JOINT CORNER OF EASEMENT TRACT NO. 2, SAID POINT BEING THE POINT OF BEGINNING; THENCE TURNING AND LEAVING SAID RIGHT-OF-WAY AND RUNNING ALONG THE LINE OF EASEMENT TRACT NO. 2 SOUTH 11 DEGREES 52 MINUTES 59 SECONDS WEST, A DISTANCE OF 352.64 FEET TO A POINT; THENCE TURNING AND RUNNING SOUTH 04 DEGREES 56 MINUTES 31 SECONDS WEST, A DISTANCE OF 425.42 FEET TO A POINT; THENCE TURNING AND RUNNING SOUTH 50 DEGREES 05 MINUTES 53 SECONDS WEST, A DISTANCE OF 52.20 FEET TO A POINT; THENCE TURNING AND RUNNING SOUTH 04 DEGREES 56 MINUTES 31 SECONDS WEST, A DISTANCE OF 109.81 FEET TO AN OLD 5/8-INCH REBAR IRON PIN LOCATED ON THE LINE OF JHM PERIMETER HOTEL LLC, PROPERTY NOW OR FORMERLY; THENCE TURNING AND RUNNING ALONG THE FINE OF JHM PERIMETER HOTEL LLC PROPERTY NORTH 85 DEGREES 33 MINUTES 27 SECONDS WEST, A DISTANCE OF 225.20 FEET TO AN OLD 5/8-INCH REBAR IRON PIN LOCATED ON THE LINE OF CHARLESTOWNE ASSOCIATES PROPERTY, NOW OR FORMERLY; THENCE TURNING AND RUNNING ALONG THE LINE OF CHARLESTOWNE ASSOCIATES PROPERTY AND THE LINE OF AUGUSTA HOTEL LIMITED PARTNERSHIP PROPERTY, NOW OR FORMERLY, NORTH 04 DEGREES 30 MINUTES 20 SECONDS EAST, A DISTANCE OF 659.44 FEET TO AN OLD 5/8-INCH REBAR IRON PIN AT THE JOINT CORNER OF HOTEL VENTURES OF AUGUSTA PROPERTY, NOW OR FORMERLY; THENCE TURNING AND RUNNING ALONG THE LINE OF HOTEL VENTURES OF AUGUSTA PROPERTY SOUTH 78 DEGREES 36 MINUTES 35 SECONDS EAST, A DISTANCE OF 120.05 FEET TO AN OLD 5/8-INCH REBAR IRON PIN; THENCE TURNING AND RUNNING NORTH 04 DEGREES 29 MINUTES 30 SECONDS EAST, A DISTANCE OF 300.12 FEET TO AN OLD 1/2-INCH REBAR IRON PIN LOCATED ON THE SOUTHERN RIGHT-OF-WAY OF WASHINGTON ROAD (STATE ROUTE 28); THENCE TURNING AND RUNNING, ALONG SAID RIGHT-OF-WAY SOUTH 78 DEGREES 33 MINUTES 17 SECONDS EAST, A DISTANCE OF 194.16 FEET TO THE POINT OF BEGINNING. TRACT NO. 2: TOGETHER WITH A PERPETUAL NON-EXCLUSIVE EASEMENT AS GRANTED IN REALTY REEL 368, PAGE 2090, RICHMOND COUNTY, GEORGIA RECORDS, FOR ACCESS ACROSS EASEMENT TRACT NO, 2, FOR INGRESS AND EGRESS TO AND FROM THE AFORESAID TRACT NO. 1, SAID PERPETUAL EASEMENT TO BE FOR THE BENEFIT OF, APPURTENANCE TO, AND RUN WITH THE TITLE TO THE AFORESAID TRACT NO. 1 PROPERTY. The Security Deed amended and restated in full (a) that certain Deed to Secure Debt, Security Agreement, and Fixture Financing Statement from JHM Augusta Associates, as assumed by Borrower, to Central Carolina Bank and Trust Company, recorded August 16, 2001, in Deed Book 744, Page 965 in the Public Records, as assigned to Original Lender pursuant to that certain Non-Recourse Assignment of Note, Mortgage and Loan Documents, from Central Carolina Bank and Trust Company and Central Carolina Bank to Original Lender, dated November 19, 2004, and recorded in Deed Book 964, Page 1663 in the Public Records, as re-recorded in Deed Book 965, Page 1866 in the Public Records; and (b) that certain Deed to Secure Debt, Security Agreement, and Fixture Financing Statement from JHM Augusta Associates, as assumed by Borrower, to Central Carolina Bank and Trust Company, recorded May 22, 2003, in Deed Book 858, Page 28 in the Public Records, as assigned to Original Lender pursuant to that certain Non-Recourse Assignment of Note, Mortgage and Loan Documents, from Central Carolina Bank and Trust Company and Central Carolina Bank to Original Lender, dated November 19, 2004, and recorded in Deed Book 964, Page 1663 in the Public Records, as re-recorded in Deed Book 965, Page 1866 in the Public Records. The Secured Property includes any reversion or remainder interest in the above-described real property and all heretofore or hereafter vacated alleys and streets abutting the real property, and all easements, rights, appurtenances, tenements, hereditaments, rents, royalties, mineral, oil and gas rights and profits, water, water rights, and water stock appurtenant to the Secured Property; The Secured Property also includes all of Borrower's estate, right, title and interest, now owned or hereafter acquired, in: (a) All additional lands, estates and development rights hereafter acquired by Borrower for use in connection with the Secured Property and the development of the Secured Property and all additional lands and estates therein which may, from time to time, by supplemental mortgage or otherwise be expressly made subject to the security title, security interest and lien of the Security Deed; (b) The buildings, structures, fixtures, additions, enlargements, extensions, modifications, repairs, replacements and improvements now or hereafter erected or located on the Secured Property (the "Improvements"); (c) All easements, rights-of-way or use, rights, strips and gores of land, streets, ways, alleys, passages, sewer rights, water, water courses, water rights and powers, air rights and development rights, and all estates, rights, titles, interests, privileges, liberties, servitudes, tenements, hereditaments and appurtenances of any nature whatsoever, in any way now or hereafter belonging, relating or pertaining to the Secured Property and the Improvements and the reversion and reversions, remainder and remainders, and all land lying in the bed of any street, road or avenue, opened or proposed, in front of or adjoining the Secured Property, to the center line thereof and all the estates, rights, titles, interests, dower and rights of dower, curtesy and rights of curtesy, property, possession, claim and demand whatsoever, both at law and in equity, of Borrower of, in and to the Secured Property and the Improvements and every part and parcel thereof, with the appurtenances thereto; (d) All machinery, equipment, fixtures (including, but not limited to, all heating, air conditioning, plumbing, lighting, communications, elevator fixtures, beds, bureaus, chiffoniers, chests, chairs, desks, lamps, mirrors, bookcases, tables, rugs, carpeting, drapes, draperies, curtains, shades, venetian blinds, screens, paintings, hangings, pictures, divans, couches, luggage carts, luggage racks, stools, sofas, chinaware, linens, pillows, blankets, glassware, foodcarts, cookware, dry cleaning facilities, dining room wagons, keys or other entry systems, bars, bar fixtures, liquor and other drink dispensers, icemakers, radios, television sets, intercom and paging equipment, potted plants, stoves, ranges, refrigerators, laundry machines, dishwashers, garbage disposals, washers and dryers and other customary hotel equipment) and other property of every kind and nature whatsoever owned by Borrower, or in which Borrower has or shall have an interest, now or hereafter located upon the Secured Property and the Improvements, or appurtenant thereto, and usable in connection with the present or future operation and occupancy of the Secured Property and the Improvements and all building equipment, materials and supplies of any nature whatsoever owned by Borrower, or in which Borrower has or shall have an interest, now or hereafter located upon the Secured Property and the Improvements, or appurtenant thereto, or usable in connection with the present or future operation and occupancy of the Secured Property and the Improvements (collectively, the "Personal Property"), and the right, title and interest of Borrower in and to any of the Personal Property which may be subject to any security interests, as defined in the Uniform Commercial Code, as adopted and enacted by the state or states where any of the Secured Property is located (the "Uniform Commercial Code"), and all proceeds and products of the above; (e) All leases, subleases and other agreements affecting the use, enjoyment or occupancy of the Secured Property and/or the Improvements heretofore or hereafter entered into and all extensions, amendments and modifications thereto (collectively, the "Leases"), whether before or after the filing by or against Borrower of any petition for relief under 11 U.S.C. 101 et seq., as the same may be amended from time to time (the "Bankruptcy Code") and all right, title and interest of Borrower, its successors and assigns therein and thereunder, including, without limitation, any guaranties of the lessees' obligations thereunder, cash or securities deposited thereunder to secure the performance by the lessees of their obligations thereunder and all rents, additional rents, revenues, issues and profits (including all oil and gas or other mineral royalties and bonuses) from the Secured Property and the Improvements, including, without limitation, all revenues and credit card receipts collected from guest rooms, restaurants, bars, meeting rooms, banquet rooms and recreational facilities, all receivables, customer obligations, installment payment obligations and other obligations now existing or hereafter arising or created out of the sale, lease, sublease, license, concession or other grant of the right of the use and occupancy of property or rendering of services by Borrower or any operator or manager of the hotel or the commercial space located in the Improvements or acquired from others (including, without limitation, from the rental of any office space, retail space, guest rooms or other space, halls, stores, and offices, and deposits securing reservations of such space), license, lease, sublease and concession fees and rentals, health club membership fees, food and beverage wholesale and retail sales, service charges and vending machine sales, whether paid or accruing before or after the filing by or against Borrower of any petition for relief under the Bankruptcy Code (the "Rents") and all proceeds from the sale or other disposition of the Leases and the right to receive and apply the Rents; (f) All proceeds of and any unearned premiums on any insurance policies covering the Secured Property, including, without limitation, the right to receive and apply the proceeds of any insurance, judgments, or settlements made in lieu thereof, for damage to the Secured Property; (g) All awards or payments, including interest thereon, which may heretofore and hereafter be made with respect to the Secured Property, whether from the exercise of the right of eminent domain (including but not limited to any transfer made in lieu of or in anticipation of the exercise of the right), or for a change of grade, or for any other injury to or decrease in the value of the Secured Property; (h) All refunds, rebates or credits in connection with a reduction in real estate taxes and assessments charged against the Secured Property as a result of tax certiorari or any applications or proceedings for reduction; (i) All proceeds of the conversion, voluntary or involuntary, of any of the foregoing including, without limitation, proceeds of insurance and condemnation awards, into cash or liquidation claims; (j) The right, in the name and on behalf of Borrower, to appear in and defend any action or proceeding brought with respect to the Secured Property; (k) All agreements, contracts, certificates, instruments, franchises, permits, licenses, plans, specifications and other documents, now or hereafter entered into, and all rights therein and thereto, respecting or pertaining to the use, occupation, construction, management or operation of the Secured Property and any part thereof and any Improvements or respecting any business or activity conducted on the Secured Property and any part thereof and all right, title and interest of Borrower therein and thereunder, including, without limitation, the right to receive and collect any sums payable to Borrower thereunder; (l) All trade names, trademarks, servicemarks, logos, copyrights, goodwill, books and records and all other general intangibles relating to or used in connection with the operation of the Secured Property; (m) All reserves, escrows and deposit funds maintained by Borrower with respect to the Secured Property including, without limitation, any lockbox account and cash management account and all securities, investments, property and financial assets held therein from time to time and all proceeds, products, distributions, dividends or substitutions thereon and thereof; and (n) Any and all other rights of Borrower in and to the items set forth in Subsections (a) through (m) above. To the best of the knowledge of Lender, the Secured Property is in the possession of the Borrower or other persons in possession by, through or under Borrower, or a receiver for the Secured Property appointed by the superior court. The undersigned may sell that portion of the Secured Property as may, under the laws of the State of Georgia, constitute an estate or interest in real estate (the "Real Property") separately from that portion of the Secured Property as constitutes under the laws of the State of Georgia personalty and not an interest in real estate (the "Foreclosure Personal Property"), in which case separate bids will be taken therefor, or collectively in a single sale and lot, in which case a single bid will be taken therefor. Unless otherwise set forth in an announcement by the undersigned made at the commencement of the public sale, the Real Property and Foreclosure Personal Property shall be sold collectively in a single sale and lot, in which case a single bid will be taken therefor. The Real Property will be sold on an "AS IS, WHERE IS" basis without recourse against Lender and without representation or warranty of any kind or nature whatsoever with respect thereto. The Real Property will be sold subject to (1) all unpaid taxes and assessments and sanitary charges which are liens against the Real Property and which are prior in right to the Security Deed, including taxes that are liens, but not yet due or payable, any additional taxes, interest and/or penalties which may be assessed for prior tax years by virtue of adjustment, re-appraisal, re-assessment, appeal or other amendment to the tax records of the city or county of the Real Property; (2) all matters affecting the Real Property as shown on that certain survey prepared by T. Andrew Sherard, Georgia Registered Land Surveyor No. 2832, of Site Design, Inc., field work completed on May 31, 2016; (3) all valid zoning ordinances; and (4) any and all other easements, limitations, restrictions, reservations, covenants and encumbrances of record to which the Security Deed is junior and subordinate in terms of priority under the laws of the State of Georgia. The Foreclosure Personal Property will be sold on an "AS IS, WHERE IS" basis without recourse against Lender and without representation or warranty of any kind or nature whatsoever with respect thereto. The Foreclosure Personal Property will be sold subject to all unpaid taxes and assessments, if any, which are liens against the Foreclosure Personal Property and which are prior in right to the Security Deed. The Security Deed was originally given to secure (1) the payment of the indebtedness evidenced by that certain Promissory Note dated November 19, 2004, made by Borrower to the order of Original Lender (the "Note") in the original principal amount of $7,100,000.00 (the "Indebtedness") and (2) the performance of all of Borrower's covenants and obligations under any and all other documents evidencing or securing the Indebtedness (said documents, together with the Note and the Security Deed, are herein collectively referred to as the "Loan Documents"). The Indebtedness has been and is hereby declared due and immediately payable because of default by Borrower in payment of the Indebtedness in accordance with the terms of the Loan Documents. The proceeds of the sale of the Secured Property shall be applied in accordance with the Security Deed to (i) the payment of the costs and expenses of this sale, including the expenses of protecting the Secured Property and attorneys' fees (notice of intent to collect attorneys' fees having been given pursuant to O.C.G.A. 13-1-11), (ii) payment of the Indebtedness and any other amounts secured by the Security Deed, and (iii) the surplus, if any, to the person or persons legally entitled thereto. TOP17 - 3030 Washington RD LLC, a Delaware limited liability company, as attorney-in-fact for Washington Road Hotel, LLC, a Georgia limited liability company William G. Rothschild, Esq. Sutherland Asbill & Brennan LLP 999 Peachtree Street, N.E., Suite 2300 Atlanta, Georgia 30309 william.rothschild@sutherland.com (404) 853-8000 NOV 10, 17, 24, 2016 DEC 1, 2016 AD#17019328
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