Notice Content
STATE OF GEORGIA
COUNTY OF GWINNETT
NOTICE OF SALE
UNDER POWER
WHEREAS, KRG-The Crescent, LLC, a Georgia limited liability company (Borrower), executed and delivered to JPMorgan Chase Bank, N.A., a banking association chartered under the law of the United States of America (Original Lender), that certain Deed to Secure Debt and Security Agreement (the Security Deed), made as of July 27, 2005, filed and recorded July 29, 2005, in Deed Book 43761, beginning at Page 236, with the Clerk of the Superior Court of Gwinnett County, Georgia (the Gwinnett County Records), as such Security Deed was granted, bargained, sold, conveyed, assigned, transferred and set over by Original Lender to Wells Fargo Bank, N.A., as trustee for the registered holders of the J.P. Morgan Chase Commercial Mortgage Securities Corp., Commercial Mortgage PassThrough Certificates, Series 2005-LDP4 (Holder), pursuant to that certain Assignment of Deed to Secure Debt and Security Agreement and Assignment of Assignment of Leases and Rents, filed and recorded January 24, 2006, in Deed Book 46083, beginning at Page 271, in the Gwinnett County Records, as affected by that certain Corrective Assignment of Deed to Secure Debt and Security Agreement and Assignment of Assignment of Leases and Rents, filed and recorded November 4, 2014, in Deed Book 53215, beginning at Page 328, in the Gwinnett County Records (said Security Deed, as so assigned, being hereinafter called the Security Instrument); and
WHEREAS, under and pursuant to the Security Instrument, Borrower did thereby irrevocably, unconditionally and absolutely mortgage, grant, bargain, sell, pledge, enfeoff, assign, warrant, transfer and convey to Holder, as successor and assign of Original Lender, (with power of sale), and did thereby grant a first priority security interest to Holder in, the following property, rights, interests and estates then owned, or thereafter acquired, by Borrower (collectively, the Property):
(a) Land. The real property situate in Gwinnett County, Georgia described as follows (collectively, the Land):
All of that certain lot, piece or parcel of land, with the buildings and improvements thereon, situate, lying and being described as follows:
All that tract or parcel of land lying and being in Land Lot 232, 6th District, Gwinnett County, Georgia, being more particularly described and depicted on that certain plat of survey prepared by Milton R. Lemon of Construction Engineering Associates, dated June 6, 1995, last revised July 21, 2005, and entitled ALTA/ACSM Land Title Survey for JPMorgan Chase Bank, N.A., J.P. Morgan Mortgage Capital, Inc., KRG-The Crescent, LLC, Crescent Triangle, LLC and Chicago Title Insurance Company and being more particularly described as follows:
TO FIND THE TRUE POINT OF BEGINNING commence at the intersection of the North margin, projected, of 100 foot right-of-way of Satellite Boulevard with the East margin, projected, of 120 foot right-of-way of Pleasant Hill Road running thence along the North right-of-way of Satellite Boulevard North 60deg.1321 East a distance of 79.83 feet to a point; thence 657.08 feet along the arc of a curve to the left, said curve having a radius of 904.92 feet, a chord bearing of North 39deg.2515 East and a chord distance of 642.74 feet to a point; thence 88.75 feet along the arc of a curve to the left, said arc having a radius of 904.92 feet, a chord bearing of North 15deg.4835 East and a chord distance of 88.71 feet to a point; thence North 13deg.0000 East a distance of 601.20 feet to a point; thence 89.04 feet along the arc of a curve to the right, said arc having a radius of 1091. 74 feet, a chord bearing of North 15deg.2012 East and a chord distance of 89.02 feet to a point; thence North 72deg.2055 West a distance of 5.00 feet to a point; said point being the TRUE POINT OF BEGINNING; from the True Point of Beginning as thus established and leaving the North right-of-way Satellite Boulevard run thence North 72deg.2055 West a distance of 195.00 feet to a rebar found; thence South 62deg.1548 West a distance of 35.37 feet to a rebar set; thence North 74deg.4355 West a distance of 22.80 feet to a rebar set; thence North 61deg.1034 West a distance of 68.48 feet to a rebar set; thence North 49deg.3721 West a distance of 26.25 feet to a point; thence North 43deg.4250 West a distance of 31.83 feet to a point; thence North 42deg.5346 West a distance of 38.61 feet to a point; thence North 24deg.1458 West a distance of 48.30 feet to a point; thence South 55deg.3218 West a distance of 26.08 feet to a rebar and the centerline of the original location of a creek; thence along said original creek location the following seven courses; thence North 4deg.3959 West a distance of 42.11 feet to a point; thence North 30deg.3609 East a distance of 29.88 feet to a point; thence North 10deg.0714 East a distance of 29.05 feet to a point; thence North 7deg.0604 West a distance of 82.62 feet to a point; thence North 13deg.1553 East a distance of 28.34 feet to a point; thence North 61deg.3032 East a distance of 10.80 feet to a point; thence North 6deg.4016 East a distance of 65.32 feet to a rebar set; thence leaving the centerline of said creek location run North 24deg.1225 West a distance of 55.97 feet to a rebar found; thence North 42deg.4748 East a distance of 244.00 feet to a rebar found; thence North 01deg.3959 East a distance of 29.26 feet to a rebar found; thence 296.06 feet along the arc of a curve to the right, said curve having a radius of 352.02 feet, a chord bearing of South 69deg.1926 East, and a chord distance of 287.41 feet to a rebar found; thence South 9deg.0406 East a distance of 392.35 feet to a rebar set on the North right-of-way of Satellite Boulevard; thence southwesterly 247.76 feet along the arc of a curve to left, said curve having a radius of 1096.74 feet, a chord bearing of South 24deg.0924 West and a chord distance of 247.23 feet to a rebar found and the TRUE POINT OF BEGINNING;
Said tract contains 6.13 Acres (267,061 S.F.)
TOGETHER WITH those easement rights arising under that certain Access Easement from Gwinnett Prado, L.P., a Georgia limited partnership to Capital & Counties U.S.A., Inc., a Delaware corporation, dated July 31, 1995, filed for record September 5, 1995 at 8:00 a.m., recorded in Deed Book 11687, Page 220, Records of Gwinnett County, Georgia;
ALSO TOGETHER WITH those easement rights arising under that certain Declaration of Surface and Storm Water Drainage Easements by and between Partridge Greene, Inc., a Georgia corporation and Capcount America, Inc., a Georgia corporation, dated March 31, 1988, filed for record April 21, 1988 at 9:00 a.m., recorded in Deed Book 4854, Page 110, aforesaid Records; as amended by that certain First Amendment to Declaration of Surface and Storm water Drainage Easements by and between Gwinnett Prado, L.P., a Georgia limited partnership and Capital & Counties U.S.A., Inc., a Delaware corporation, dated July 31, 1995, filed for record September 5, 1995 at 8:00 a.m., recorded in Deed Book 11687, Page 211, aforesaid Records; and
ALSO TOGETHER WITH those easement rights arising under that certain Declaration of Reciprocal Easements by and between KRG-The Crescent, LLC, a Georgia limited liability company and Crescent Triangle, LLC, a Georgia limited liability company, dated July 27 , 2005, filed for record July 29, 2005, at 11:55 a.m. recorded in Deed Book 43761, Page 224, aforesaid Records;
TOGETHER WITH additional lands, estates and development rights thereafter acquired by Borrower for use in connection with the development, ownership or occupancy of such real property, and all additional lands and estates therein which may, from time to time, by supplemental deed to secure debt or otherwise be expressly made subject to the lien of the Security Instrument;
(b) Improvements. The buildings, structures, fixtures, additions, accessions, enlargements, extensions, modifications, repairs, replacements and improvements then or thereafter erected or located on the Land (the Improvements);
(c) Easements. All easements, rights-of-way or use, rights, strips and gores of land, streets, ways, alleys, passages, sewer rights, water, water courses, water rights and powers, air rights and development rights, and all estates, rights, titles, interests, privileges, liberties, servitudes, tenements, hereditaments and appurtenances of any nature whatsoever, in any way then or thereafter belonging, relating or pertaining to the Land and the Improvements and the reversion and reversions, remainder and remainders, and all land lying in the bed of any street, road or avenue, opened or proposed, in front of or adjoining the Land, to the center line thereof and all the estates, rights, titles, interests, dower and rights of dower, curtesy and rights of curtesy, property, possession, claim and demand whatsoever, both at law and in equity, of Borrower of, in and to the Land and the Improvements and every part and parcel thereof, with the appurtenances thereto;
(d) Fixtures and Personal Property. All machinery, equipment, goods, inventory, fixtures (including, but not limited to, all heating, air conditioning, plumbing, lighting, communications and elevator fixtures) and other property of every kind and nature whatsoever owned by Borrower, or in which Borrower then had or shall thereafter have an interest, then or thereafter located upon the Land and the Improvements, or appurtenant thereto, and usable in connection with the present or future use, maintenance, enjoyment, operation and occupancy of the Land and the Improvements and all building equipment, materials and supplies of any nature whatsoever owned by Borrower, or in which Borrower then had or shall thereafter have an interest, then or thereafter located upon the Land and the Improvements, or appurtenant thereto, or usable in connection with the present or future operation and occupancy of the Land and the Improvements, and the right, title and interest of Borrower in and to any of the Personal Property (as hereinafter defined) which may be subject to any security interests, as defined in the Uniform Commercial Code, as adopted and enacted by the state or states where any of the Property is located (the Uniform Commercial Code), superior in lien to the lien of the Security Instrument and all proceeds and products of the above;
(e) Leases and Rents. All leases and other agreements affecting the use, enjoyment or occupancy of the Land and the Improvements theretofore or thereafter entered into, 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) (individually, a Lease; collectively, the Leases) and all right, title and interest of Borrower, its successors and assigns therein and thereunder, including, without limitation, cash or securities deposited thereunder to secure the performance by the lessees of their obligations thereunder and all rents (including all tenant security and other deposits), additional rents, revenues, issues and profits (including all oil and gas or other mineral royalties and bonuses) from the Land and the Improvements whether paid or accruing before or after the filing by or against Borrower of any petition for relief under the Bankruptcy Code (collectively the Rents) and all proceeds from the sale or other disposition of the Leases and the right to receive and apply the Rents to the payment of the Debt (as defined in the Security Instrument);
(f) Condemnation Awards. Except for any awards or payments with respect to any condemnation action ongoing as of the date of the Security Deed, all awards or payments, including interest thereon, which may theretofore and thereafter be made with respect to the Property, whether from the exercise of the right of eminent domain (including but not limited to any transfer made in lieu of or in anticipation of the exercise of the right), or for a change of grade, or for any other injury to or decrease in the value of the Property;
(g) Insurance Proceeds. All proceeds of and any unearned premiums on any insurance policies covering the Property, including, without limitation, the right to receive and apply the proceeds of any insurance, judgments, or settlements made in lieu thereof, for damage to the Property;
(h) Tax Certiorari. All refunds, rebates or credits in connection with a reduction in real estate taxes and assessments charged against the Property as a result of tax certiorari or any applications or proceedings for reduction;
(i) Conversion. All proceeds of the conversion, voluntary or involuntary, of any of the foregoing including, without limitation, proceeds of insurance and condemnation awards, into cash or liquidation claims;
(j) Rights. The right, in the name and on behalf of Borrower, to appear in and defend any action or proceeding brought with respect to the Property and to commence any action or proceeding to protect the interest of Holder in the Property;
(k) Agreements. All agreements, contracts (including purchase, sale, option, right of first refusal and other contracts pertaining to the Property), certificates, instruments, franchises, permits, licenses, approvals, consents, plans, specifications and other documents, then or thereafter entered into, and all rights therein and thereto, respecting or pertaining to the use, occupation, construction, management or operation of the Property (including any Improvements or respecting any business or activity conducted on the Land and any part thereof) and all right, title and interest of Borrower therein and thereunder, including, without limitation, the right, upon the happening of any default thereunder, to receive and collect any sums payable to Borrower thereunder;
(l) Trademarks. All tradenames, trademarks, servicemarks, logos, copyrights, goodwill, books and records and all other general intangibles relating to or used in connection with the operation of the Property;
(m) Accounts. All accounts, accounts receivable, escrows (including, without limitation, all escrows, deposits, reserves and impounds established pursuant to that certain Escrow Agreement for Reserves and Impounds, made as of July 27, 2005, between Borrower and Original Lender; hereinafter, the Escrow Agreement), documents, instruments, chattel paper, deposit accounts, investment property, claims, reserves (including deposits) representations, warranties and general intangibles, as one or more of the foregoing terms may be defined in the Uniform Commercial Code, and all contract rights, franchises, books, records, plans, specifications, permits, licenses (to the extent assignable), approvals, actions, choses, commercial tort claims, suits, proofs of claim in bankruptcy and causes of action which then or thereafter relate to, are derived from or are used in connection with the Property, or the use, operation, maintenance, occupancy or enjoyment thereof or the conduct of any business or activities thereon (hereinafter collectively called the Intangibles); and
(n) Other Rights. Any and all other rights of Borrower in and to the Property and any accessions, renewals, replacements and substitutions of all or any portion of the Property and all proceeds derived from the sale, transfer, assignment or financing of the Property or any portion thereof.
WHEREAS, the Security Instrument secures, in part, that certain loan (the Loan) to Borrower made by Original Lender, as evidenced by that certain Fixed Rate Note (the Note), dated July 27, 2005, in the original principal amount of $8,800,000.00, executed by Borrower and payable to the order of Original Lender, as such Note was endorsed and assigned to Holder; and
WHEREAS, defaults and Events of Default (as described 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 pay the regularly scheduled installments of principal, interest and other amounts due under the Note and the other Loan Documents (as defined in the Security Instrument) on the dates on which such installments were due; and
WHEREAS, by reason of such defaults and Events of Default, the Debt (as defined in the Security Instrument) has been, and is hereby, accelerated and declared immediately due and payable, and the Security Instrument has become, is, and is hereby subject to foreclosure as provided by law, the Note and the Security Instrument; and
WHEREAS, also by reason of the occurrence and continuation of such defaults and Events of Default, a Verified Complaint and Petition for Appointment of a Receiver (the Complaint) was filed in the Superior Court of Fulton County, State of Georgia, Civil Action File No. 2015CV256855, and on February 24, 2015 said Court issued its Consent Order Appointing Receiver (the Consent Order) appointing NAI Brannen/Goddard, LLC (the Receiver) as the receiver of certain of Borrowers assets including, without limitation, the Property, which Consent Order: (a) permits the Holder to exercise any rights or remedies it may have, whether arising under the Loan Documents, at law or in equity, including without limitation, Holders right to foreclose on the Property pursuant to the power of sale contained in the Security Instrument; and (b) requires the Receiver to pay over to the Holder all rents, revenues, income, profits and other benefits of and generated by the Property in accordance with the Consent Order (collectively, the Receivers Funds); and
WHEREAS, prior to the consummation of the exercise of the power of sale contained in the Security Instrument and the consummation of the foreclosure sale of the Property, any and all Funds (as defined in the Escrow Agreement), and any other funds, cash, letters of credit and other sums, if any, held by Holder for or on behalf of Borrower, in escrow, in reserve or in other accounts established under the Note, the Security Instrument and/or any other Loan Documents, for payment of taxes, assessments and other similar charges levied against the Property, insurance, capital improvements, replacements, tenant improvements, leasing commissions or otherwise (collectively, the Funds) have been or shall be applied by Holder toward payment of the Debt, to the extent provided in the Loan Documents.
NOW, THEREFORE, under and pursuant to the power of sale contained in the Security Instrument and according to the terms of the Security Instrument and the laws in such cases made and provided, Holder will expose the Property (less and except the Funds and the Receivers Funds) for sale, at public sale to the highest bidder, for cash on that certain first Tuesday in June, 2015, being June 2, 2015, during the legal hours for sale, before the courthouse door in Gwinnett County, Georgia. The Property (less and except the Funds and the Receivers 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 under unrecorded Leases, if any, as tenants only, with no option to purchase or right of first refusal;
3. Riparian rights incident to the Property;
4. Easement from Capcount America, Inc. to Georgia Power Company, dated October 10, 1984, filed and recorded October 17, 1984 in Deed Book 2896, Page 250, Gwinnett County Records;
5. Right of Way Easement from Partridge Greene, Inc. to Gwinnett Plantation, Ltd., dated January 7, 1985, filed and recorded January 11, 1985 in Deed Book 2954, Page 387, Gwinnett County Records;
6. Right-of-Way Easement from Partridge Greene, Inc. to Jackson Electric Membership Corporation, dated March, 1988, filed for record April 12, 1988 in Deed Book 4841, Page 39, Gwinnett County Records;
7. Restrictions as contained in that certain General Warranty Deed from Partridge Greene, Inc. to Capcount America, Inc., dated March 31, 1988, filed and recorded April 21, 1988 in Deed Book 4854, Page 96, Gwinnett County Records;
8. Declaration of Surface and Storm Water Drainage Easements by and between Partridge Greene, Inc. and Capcount America, Inc., dated March 31, 1988, filed and recorded April 21, 1988 in Deed Book 4854, Page 110, Gwinnett County Records; as amended by that certain First Amendment to Declaration of Surface and Storm Water Drainage Easements by and between Gwinnett Prado, L.P. and Capital & Counties U.S.A., Inc., dated July 31, 1995, filed and recorded September 5, 1995 in Deed Book 11687, Page 211, Gwinnett County Records;
9. Terms, conditions and obligations as contained in that certain Access Easement from Gwinnett Prado, L.P. to Capital & Counties, U.S.A., Inc., dated July 31, 1995, filed and recorded September 5, 1995 in Deed Book 11687, Page 220, Gwinnett County Records;
10. Construction easement as contained in that certain Order & Judgment as entered in that certain CondemnationGwinnett County, Georgia vs. 2,131.58 square feet of required right of way; 4,003.85 square feet of temporary construction easement; The Realty Associates Fund III, L.P., Fleet National Bank, and SunTrust Bank, being Civil Action File No. 04-A03295-2, dated March 25, 2004, filed and recorded March 25, 2004; Gwinnett County Records;
11. Declaration of Reciprocal Easements by and between KRG-The Crescent, LLC and Crescent Triangle, LLC, dated as of July 27, 2005, filed and recorded July 29, 2005 in Deed Book 43761, Page 224, Gwinnett County Records;
12. Those matters as disclosed by that certain survey entitled ALTA/ACSM Land Title Survey for: JP Morgan Chase Bank, N.A., a banking association, chartered under the laws of the United States of America, and its successors and assigns as their interest may appear, J.P. Morgan Mortgage Capital Inc., KRG-The Cresent [sic], LLC, a Georgia limited liability company, Cresent [sic] Triangle, LLC and Chicago Title Insurance Company, prepared by Construction Engineering Associates, bearing the seal and certification of Milton Robert Lemon, Georgia Registered Land Surveyor No. 1439, dated June 6, 1995, last revised July 21, 2005, as follows:
(a) Storm sewer lines crossing the southerly, southwesterly, westerly and northerly boundary lines of the Property;
(b) Sanitary sewer line crossing the northeasterly boundary line of the Property; and
(c) Fifty (50) foot setback line along the Right-of-Way of Satellite Boulevard;
13. All valid zoning ordinances; and
14. All other, if any, easements, limitations, reservations, covenants, restrictions, deeds to secure debt, liens and other encumbrances and matters of public records to which the Security Instrument is junior and subordinate in terms of priority under the laws of the State of Georgia.
The Debt remaining in default and the aforesaid defaults and Events of Default continuing, the sale of the Property (less and except the Funds and the Receivers 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 and the Receivers 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 Land.
To the best of Holders knowledge and belief, the Property (less and except the Funds and the Receivers Funds) is presently owned by Borrower, subject to the aforesaid interests of Holder, the Consent Order, and the matters set forth herein, and Borrower is the party in possession of the Property (less and except the Funds and the Receivers 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 and the Receivers Funds) or any part of the Property (less and except the Funds and the Receivers Funds) in such manner and order as Holder may elect and may sell that portion of the Property (less and except the Funds and the Receivers 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 and the Receivers 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 undersigneds 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.
WELLS FARGO BANK, N.A., AS TRUSTEE FOR THE REGISTERED HOLDERS OF THE J.P. MORGAN CHASE COMMERCIAL MORTGAGE SECURITIES CORP., COMMERCIAL MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2005-LDP4, as agent and attorney-in-fact for KRG-THE CRESCENT, LLC, a Georgia limited liability company
By: C-III Asset Management LLC, a Delaware limited liability company, in its capacity as Special Servicer to Holder pursuant to that certain Pooling and Servicing Agreement dated as of September 1, 2005
By: its attorney-at-law:
/S. Bob Stupar/
S. Bob Stupar, Esq.
Kilpatrick Townsend & Stockton LLP
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309-4530
404-815-6500
950-253471, 5/7,14,21,28
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