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HomeMy WebLinkAbout973838THE STATE OF WYOMING COUNTY OF LINCOLN COLLATERAL TRANSFER OF NOTE (Security Agreement) NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. KNOW ALL MEN BY THESE PRESENTS THAT PHG ALPINE, LLC, a Georgia limited liability company, whose address is 5607 GLENRIDGE DR., SUITE 430, ATLANTA, GA 30342, hereinafter called "Debtor" (whether one or more), for a valuable and sufficient consideration paid, the receipt of which is hereby acknowledged, hereby TRANSFERS, ASSIGNS AND CONVEYS unto PATRIOT BANK, hereinafter called "Secured Party" (whether one or more), the promissory note (herein called COLLATERAL and in which Debtor grants to Secured Party a Security Interest) and all liens, rights, titles, equities and interests securing the same, including, but not limited to any and all guarantees, assignments of rents and leases, security agreements, and any other security instruments, and including all proceeds therefrom, described as follows, to -wit: THAT ONE CERTAIN PROMISSORY NOTE DATED JUNE 16, 2008, FROM ROCKY MOUNTAIN ROGUES, INC., a Wyoming limited liability company, IN THE PRINCIPAL AMOUNT OF TWO MILLION ONE HUNDRED THOUSAND AND NO /100 ($2,100,000.00) DOLLARS, AND BEING PAYABLE TO THE ORDER OF SOUTHWEST GUARANTY, LTD., a Texas limited partnership, WHICH SAID NOTE WAS SUBSEQUENTLY ASSIGNED TO PHG ALPINE, LLC, a Georgia limited liability company. SAID NOTE BEING ADDITIONALLY SECURED BY A MORTGAGE, DEED OF TRUST, SECURITY AGREEMENT AND ASSIGNMENT OF RENTS AND LEASES (the "Deed of Trust OF EVEN DATE THEREWITH DULY RECORDED IN THE REAL ESTATE RECORDS OF LINCOLN COUNTY, WYOMING, COVERING THE REAL PROPERTY DESCRIBED AS FOLLOWS: PART OF LOT 601C OF LAKEVIEW ESTATES INCORPORATED, TRACTS A -F, LINCOLN COUNTY, WYOMING, ON JANUARY 5, 1965, AS RECEIVING NO. 386448, AS PLAT NO. 157, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A POINT WHICH IS S29 °05' W, 772.00 FEET FROM THE NORTHWEST CORNER OF SE1 /4, SECTION 29, T37N, R118W OF THE 6TH PM, LINCOLN COUNTY, WYOMING AND RUNNING THENCE S63 °W, 205.00 FEET; THENCE N27 °W, 211.3 FEET TO RIGHT OF WAY OF U.S. HIGHWAY 89; THENCE NORTHWEST ALONG RIGHT OF WAY U.S. HIGHWAY 89 AROUND CURVE THEREOF TO A POINT WHICH IS N27 °W, 231.6 FEET FROM BEGINNING POINT; THENCE N27 °E, 231.6 FEET TO THE POINT OF BEGINNING The Deed ofTrust described above was recorded under Book No. 697, Page 618, and Receiving No. 939881, and which Deed of Trust was corrected by instrument dated JUNE 16, 2008, and recorded under Book No. 736, PAGE 1, and Receiving No. 950566, in order to correct the legal description of the underlying real property. This transfer is made to secure the payment of that one certain promissory note in the original principal sum of SIX HUNDRED THOUSAND AND NO /100 ($600,000.00) DOLLARS, dated SEPTEMBER (9'7 2013, executed by PHG ALPINE, LLC, a Georgia limited liability company, and payable to the order of Secured Party (the "Note this transfer is further made to secure all renewals, rearrangements, extensions and/or modifications of the Note; and all other sums of money which may be hereafter paid or advanced by or on behalf of Secured Party under the terms and provisions hereof, or under any other document executed in connection with the Note; any additional loans made by Secured Party to Debtor (it being contemplated that Secured Party may lend additional sums to Debtor from time to time, but shall not be obligated to do so, and Debtor hereby agreeing that any such additional loans shall be secured by this Collateral Transfer of Note); and any and all other indebtedness, obligations and liabilities of any kind of the Debtor, or any maker or guarantor of the Note, to Secured Party, now or hereafter existing, absolute or contingent, joint and /or several, secured or unsecured, due or not due, arising by operation oflaw or otherwise, or direct or indirect, including indebtedness, obligations and liabilities to Secured Party or the maker of the Note, or Debtor and /or said maker of the Note as a member of any partnership, syndicate, association or other group, and whether incurred by the Debtor as principal, surety, endorser, guarantor, accommodation party or otherwise, and whether originally contracted with Secured Party or acquired by Secured Party pursuant to a loan participation agreement or otherwise (all of which are hereinafter referred to as the "Indebtedness Upon full payment of the Indebtedness, this 1 RECEIVED 10/24/2013 at 12:03 PM RECEIVING 973838 BOOK: 822 PAGE: 713 JEANNE WAGNEF 011 1 IAlnn' Al •nl !KIT/ nl COL! RARRcr r %AN transfer shall be null and void and the COLLATERAL together with the liens securing the same, shall, at the expense of Debtor, be re- transferred, without warranty or recourse, to Debtor by Secured Party. In the event of default in (i) the payment of any installment, principal or interest, of the Note hereby secured, in accordance with the terms thereof, (ii) any term and /or condition of the Note hereby secured, (iii) any term and /or condition of this agreement, or any document executed in connection with the Note, (iv) any term and /or condition of any promissory note which comprises the COLLATERAL, or (v) any term and /or condition of any document executed in connection with any promissory note which comprises the COLLATERAL, Secured Party may elect, Debtor hereby expressly waiving notice, demand and presentment, to declare the entire indebtedness hereby secured immediately due and payable. In the event of default in the payment of said indebtedness when due or declared due, Secured Party shall have the right to sell the COLLATERAL at Public Sale to the highest bidder for cash at the Courthouse door of the County of Secured Party's address hereinabove stated, after having given notice of the time, place and terms of such Public Sale by posting written or printed notice of said sale at the Courthouse door of said County at least ten days before the day of sale and after sending reasonable notice to Debtor and to such other person or persons legally entitled thereto under the Uniform Commercial Code of Texas, of the time and place of the Public Sale and Secured Party shall transfer to the Purchaser at such sale said COLLATERAL, together with all liens, rights, titles, equities and interests in and to the above described property securing the payment thereof, and the recitals in such transfer shall be prima facie evidence of the truth of the matters therein stated and all prerequisites to such sale required hereunder and under the laws of this State shall be presumed to have been performed. The proceeds of the sale shall be applied, first to the reasonable expenses of the sale, second toward the payment of the principal and interest due and unpaid upon the Note hereby secured, and then to attorney's fees due in connection with the sale, rendering the balance, if any, and surplus, if any, to the person or persons legally entitled thereto under the Uniform Commercial Code of Texas, and if there be any deficiency, Debtor shall be liable therefor. Secured Party shall have the right to purchase at such Public Sale, being the highest bidder therefor. Alternatively, Secured Party shall have the right to all of its remedies afforded by the laws and regulations of the State of Wyoming. Secured Party, in addition to the rights and remedies provided for in the preceding paragraph, shall have all the rights and remedies of a Secured Party under the Uniform Commercial Code of Texas or Wyoming and Secured Party shall be entitled to avail himself of all such other rights and remedies as may now or hereafter exist at law or in equity for the collection of said indebtedness and the foreclosure of the Security Interest created hereby and the resort to any remedy provided hereunder or provided by the Uniform Commercial Code of Texas, or by any other law of Texas or Wyoming, shall not prevent the concurrent employment of any other appropriate remedy or remedies. The requirement of reasonable notice to Debtor of the time and place of any Public Sale of the COLLATERAL, or of the time after which any Private Sale or any other intended disposition thereof is to be made, shall be met if such notice is mailed, postage prepaid, to Debtor at the address of Debtor designated at the beginning of this instrument, at least five days before the date of any Public Sale or at ieast five days before the time after which any Private Sale or other disposition is to be made. Secured Party may remedy any default, without waiving same, or may waive any default without waiving any prior or subsequent default. The Security Interest herein created shall not be affected by or affect any other security taken for the indebtedness hereby secured, or any part thereof, and any extensions may be made ofthe indebtedness without affecting the priority of this Security Interest or the validity thereof with reference to any third party, and the holder of said indebtedness shall not be limited by any election or remedies if it chooses to foreclose this Security Interest by suit. The right to sell under the terms hereof shall also exist cumulative with said suit and one method shall not bar the other, but both may be exercised at the same or different times, nor shall one be a defense to the other. Debtor authorizes Secured Party, at Secured Party's option, to collect and receipt for any and all sums becoming due upon the COLLATERAL, such sums to be held by Secured Party without liability for interest thereon and applied toward the payment ofthe Note hereby secured as and when the same becomes payable, and Secured Party shall have the full control of the COLLATERAL and the liens securing the same until the Note hereby secured is fully paid and shall have the further right to release the lien or liens securing the COLLATERAL upon the full and final payment thereof to Secured Party, but Secured Party is under no obligation to make or enforce the collection of the COLLATERAL and the failure of Secured Party from any cause to make or enforce the collection thereof shall not in any way prejudice the right of Secured Party to thereafter make or enforce collection thereof or in any way affect the indebtedness to Secured Party hereby secured. Debtor covenants and agrees that, without the Secured Party's prior written consent, it shall not (i) accelerate or commence any foreclosure proceedings in connection with or against, any note which comprises the COLLATERAL; (ii) accept any prepayment of any principal on any note which comprises the COLLATERAL; (iii) release any lien and /or security interest on any property which secures any note which comprises the COLLATERAL; or (iv) amend, or modify any note (or any document executed in connection therewith). However, it shall be deemed that Secured Party has consented to the acts set forth in this paragraph, should Secured Party not object to Debtor's written notification to Secured Party of the Debtor's intention to proceed with such acts within five (5) days after Debtor's said written notification to Secured Party. 2 01J4 1 0 r.) Furthermore, Debtor covenants and agrees that Debtor shall execute one or more deeds of trust (i) covering the property described herein in favor of Secured Party prior to any foreclosure proceedings involving said property and (ii) provide a Mortgagee's title policy in favor of the Secured Party, covering said property. In connection therewith, Debtor covenants and agrees that said deed(s) of trust and Mortgagee's title policy shall respectively create and insure a first and prior lien on said property, and shall be at the sole cost and expense of the Debtor. The pronouns used in this agreement are in the masculine gender but shall be construed as feminine or neuter as occasion may require. "Secured Party" and "Debtor" as used in this agreement include, shall bind and shall inure to the benefit of the respective heirs, executors or administrators, successors, representatives, receivers, trustee and assigns of such parties. If there be more than one Debtor, their obligations shall be joint and several. The law governing this secured transaction shall be the Uniform Commercial Code as adopted in Texas and other applicable laws of the State of Texas. All terms used herein which are defined in the Uniform Commercial Code of Texas shall have the same meaning herein as in said Code. WAIVER OF JURY TRIAL. DEBTOR(S), SECURED PARTY, AND EACH AND EVERY GUARANTOR (IF ANY) HEREBY WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY WITH REGARDS TO ANY "DISPUTE" AND ANY ACTION ON SUCH "DISPUTE THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY DEBTOR(S), SECURED PARTY, AND EACH AND EVERY GUARANTOR (IF ANY), AND DEBTOR(S), SECURED PARTY, AND EACH AND EVERY GUARANTOR (IF ANY) HEREBY REPRESENT THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY PERSON OR ENTITY TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT. DEBTOR(S), SECURED PARTY, AND EACH AND EVERY GUARANTOR (IF ANY) ARE EACH HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION HEREOF IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER OF JURY TRIAL. DEBTOR(S) AND EACH AND EVERY GUARANTOR, IF ANY, FURTHER REPRESENT AND WARRANT THAT (1) THEY HAVE EACH BEEN REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, OR (2) EACH HAVE HAD THE OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND (3) EACH HAVE HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. FOR PURPOSES OF THIS SECTION, "DISPUTE" MEANS ANY CONTROVERSY, CLAIM OR DISPUTE BETWEEN OR AMONG DEBTOR(S) AND /OR ANY GUARANTOR(S), AND SECURED PARTY, INCLUDING ANY SUCH CONTROVERSY, CLAIM OR DISPUTE ARISING OUT OF OR RELATING TO (A) THIS AGREEMENT, (B) ANY OTHER LOAN DOCUMENT, (C) ANY RELATED AGREEMENTS OR INSTRUMENTS, OR (D) THE TRANSACTION CONTEMPLATED HEREIN OR THEREIN (INCLUDING ANY CLAIM BASED ON OR ARISING. FROM AN ALLEGED PERSONAL INJURY OR BUSINESS TORT). EXECUTED this BY ITS SOLE MANAGER: JATIN IyESAI,MANA TR day of SEPTEMBER, 2013. PHG ALPINE, LLC, a Georgia limited liability company PEACHTREE HOTEL GROUP II, LLC, a Georgia limited liability company THE STATE OF GEORGIA COUNTY OF LI n TOT a b b This instrument was acknowledged before me on thec27 day of 5 C A.D., 2013, by JATIN DESAI, MANAGER of PEACHTREE HOTEL GROUP II, LLC, a G tie limited liability company, acting in its capacity as sole Manager of PHG ALPINE, LLC, a Georgia limited liability company. After recording Please return to: Patriot Bank 7500 San Felipe Ste. 220 Houston, TX 77063 3 NOTARY PUBLIC, STATE OF GEORGIA +uuu ►nn,,, Ja :at MAR N 20 2017 0