This instrument prepared by
and return to:
W. Emmett Marston, Esq.
Martin, Tate, Morrow & Marston, P.C.
22 North Front, Suite 1100
Memphis, Tennessee 38103-1182
TRUSTEE'S DEED
WHEREAS, under date as of November 1, 1988, TENNESSEE ASSOCIATES-II
(Cunningham Place) a Ohio general partnership, ("Grantor") executed a certain
Deed of Trust to W. Emmett Marston, Trustee, as the same appears of record in TD
Book 416, Page 1481, in the Register's Office of Montgomery County, Tennessee,
("Deed of Trust"), which Deed of Trust was assumed by Brunner Companies Income
Properties, L.P, II pursuant to that certain Assumption Agreement dated December
21, 1988 and recorded in TD Book 418, Page 1169 in said Register's Office, with
the Deed of Trust modified by Modification Agreement dated June 5, 1989 and
recorded at TD Book 425, Page 838; further modified by that certain Second
Modification Agreement recorded at TD Book 434, Page 695 and further modified by
that certain Third Modification and Extension Agreement recorded at TD Book 554,
Page 599, all recorded in said Register's Office,("Deed of Trust"); and AETNA
LIFE INSURANCE COMPANY, owner of the debt secured; and
WHEREAS, default was made in the payment of the debt and obligations
secured by said Deed of Trust, and the undersigned, as Trustee, was requested by
AEtna Life Insurance Company as the owner and holder of the debt secured by said
Deed of Trust to advertise and sell the property conveyed by said Deed of Trust
in compliance with the provisions thereof; and
WHEREAS, the undersigned as Trustee, did, in compliance with the
provisions of said Deed of Trust, advertise for sale the said property, the
advertisement for sale having been published in Leaf Chronicle, a newspaper
published in Clarksville, Montgomery County, Tennessee, in the issues of
December 4, December 11, and December 18, 1995, of said newspaper, said sale
having been advertised for Tuesday, December 26, 1995, commencing at 10:30 a.m.,
at the east door of the courthouse in Clarksville, Tennessee, at which time and
place the same was offered for sale and sold; and
WHEREAS, the highest and best bid of said property was then and there made
by Cunningham II, L.P.* to-wit: a bid of Five Million Twenty-Five Thousand
Fifty Dollars ($5,025,050) for said property, which bid was then and there
accepted by the undersigned as Trustee.
NOW, THEREFORE, for the consideration named, and for and in consideration
of the compliance with the terms of said bid, the undersigned Trustee has
bargained and sold, and does hereby bargain, sell, and convey unto said
CUNNINGHAM II, L.P.*, the property advertised and sold as hereinabove recited,
situated, lying, and being in the City of Clarksville, County of Montgomery,
State of Tennessee, and more particularly described as follows:
*a South Carolina limited partnership
TRACT I: (Shopping Center Parcel)
A tract of land in the Third Civil District of Montgomery County,
Tennessee being Lot No. 1 on the plat of Cunningham Place Shopping Center
as of record in Book 12, Page 187, R.O.M.C., Tennessee that is more fully
described as follows:
Beginning at an existing iron pin in the northerly right-of-way line of
Cunningham Lane, said pin also being the southwest corner of the herein
described tract and the southeast corner of John T. Cunningham, III, et al
tract as of record in Deed Book 332, Page 27, R.O.M.C., Tennessee and
proceeding as follows:
1. Leaving the northerly right-of-way line of Cunningham Lane and with
the easterly line of the John T. Cunningham, III, et al tract N 42
degrees 16' 09" W, 1070.01 feet to an existing concrete monument;
thence,
2. With the southerly line of the Cunningham tract N 73 degrees 52'
29"E, 985.59 feet to an existing concrete monument in the westerly
right-of-way line of U.S. Highway 41-A and State Route 12; thence,
3. With the westerly right-of-way line of U.S. Highway 41-A and State
Route 12 S 24 degrees 16' 09" E, 132.70 feet to an iron pin set;
thence,
4. Leaving said right-of-way line S 65 degrees 43' 51" W, 187.71 feet
to an iron pin set; thence,
5. S 24 degrees 16' 09" E, 360.00 feet to an iron pin set; thence,
6. N 65 degrees 43' 51" E, 187.71 feet to an iron pin set in the
westerly right-of-way line of U.S. Highway 41-A and State Route 12;
thence,
7. With said right-of-way line S 24 degrees 16' 09" E, 469 feet to an
iron pin set; thence,
8. Leaving said right-of-way line S 65 degrees 43' 51" W, 395.00 feet
to an iron pin set; thence,
9. S 24 degrees 16' 09" E, 181.48 feet to an iron pin set on the
northerly right-of-way line of Cunningham Lane; thence,
10. With said right-of-way line S 85 degrees 51' 22" W, 618.42 feet to
the point of beginning, and containing 982,422 square feet, more or
less, or 22.55 acres, more or less.
Recorded in Official Plat book 12, Plat 187, page 187 R.O.M.C., Tennessee.
TRACT II: (Storage Pond Parcel)
Beginning at an existing concrete highway monument in the southwesterly
right-of-way line of U.S. Highway 41-A and State Route 12, said monument
being the northerly terminus of the westerly return curve on U.S. Highway
41-A and Cunningham Lane; thence,
1. With said return S 06 degrees 56' 06" W, a distance of 85.79 feet
to an existing iron pin; thence,
2. S 46 degrees 50' 56" W, 92.73 feet to an existing concrete highway
monument in the northerly right-of-way line of Cunningham Lane;
thence,
3. With said right-of-way line S 85 degrees 51' 22" W, 120.47 feet to
a point; thence,
4. Leaving said right-of-way N 04 degrees 08' 38" W, a distance of
102.60 feet to a point; thence,
5. N 65 degrees 43' 15" E, a distance of 210 feet to a point in the
westerly right-of-way line of U.S. Highway 41-A; thence,
6. With said right-of-way S 24 degrees 16' 09" E, a distance of 34.40
feet to the point of beginning and containing 25,470 square feet,
more or less, or 0.58 acre, more or less.
Recorded in Official Plat Book 12, Plat 187, page 187 R.O.M.C., Tennessee
Being a part of the same property conveyed to Tennessee & Associates-II
(Cunningham Place), by deed from CCC, Ltd., a Tennessee Limited
Partnership, of record in Official Record Book Volume 372, page 1283, and
all the same property conveyed to Tennessee & Associates-II (Cunningham
Place) by deed from CCC, Ltd., a Tennessee Limited Partnership, of record
in Official Record Book Volume Book 380, page 162, Register's Office for
Montgomery County, Tennessee
Together with the following:
In conjunction and simultaneously with this Trustee's Sale, AEtna Life
Insurance Company as secured party, has foreclosed the security interest granted
by Tennessee & Associates-II (Cunningham Place) ("Debtor") to AEtna Life
Insurance Company ("Secured Party") in the collateral ("Collateral") described
in the Deed of Trust and in the Uniform Commercial Code financing statements
filed at Instrument No. 604408 in the office of the Tennessee Secretary of
State, at File No. 88-5289 recorded in the personal property records of said
Register's Office and at TD Book 416, Page 1705, recorded in the real property
records of said Register's Office; and by Brunner Companies Income Properties,
L.P., II as debtor to AEtna Life Insurance Company as secured party in the
Collateral described in Uniform Commercial Code financing statements filed at
Instrument No. 615430 in the office of the Tennessee Secretary of State, at File
No. 89-499 recorded in the personal property records of said Register's Office
and at TD Book 418, Page 1244, being recorded in the real property records in
said Register's Office and said Collateral is more particularly described as
follows:
All right, title and interest of the Debtor in and to all tangible
personal property owned by the Debtor and now or at any time hereafter
located on or at the real property as described in the Deed of Trust and
as hereinafter described and in the above financing statements (the
"Property") or used in connection therewith, including, but not limited
to: all goods, machinery, tools, insurance proceeds and refunds of
insurance premiums, equipment (including fire sprinklers and alarm
systems, office air conditioning, heating, refrigerating, electronic
monitoring, entertainment, recreational, window or structural cleaning
rigs, maintenance, exclusion of vermin or insects, removal of dust, refuse
or garbage and all other equipment of every kind), lobby and all other
indoor and outdoor furniture (including tables, chairs, planters, desks,
sofas, shelves, lockers and cabinets), wall beds, wall safes, furnishings,
appliances (including ice boxes, refrigerators, fans, heaters, stoves,
water heaters and incinerators), inventory, rugs, carpets and other floor
coverings, draperies and drapery rods and brackets, awnings, window
shades, venetian blinds, curtains, lamps, chandeliers and other lighting
fixtures and office maintenance and other supplies; and any proceeds
(including insurance proceeds) of the foregoing, any additions and
accessions thereto, and any replacement or renewals of all of the
foregoing;
TOGETHER WITH all proceeds arising from or by virtue of the sale,
lease or other disposition of any of the real or personal property
described herein; all proceeds (including premium refunds) payable or to
be payable under each policy of insurance relating to the improvements now
or hereafter constructed on the Property (the "Improvements"); to the
extent permitted by law, all proceeds arising from the taking of all or a
part of the real property or any rights appurtenant thereto, including
without limitation any awards for severance damages and any awards
resulting from a change of grade of streets, curb cuts or other rights of
access, for any public or quasi-public use under any law, or by the right
of eminent domain, or by private or other purchase in lieu thereof; and
all other interest of every kind and character which the Debtor now has or
at any time hereafter acquires, in and to the real and personal property
described herein, and all property which is used or useful in connection
therewith, including rights or ingress and egress and all reversionary
rights or interest of the Debtor with respect to such property; and any
proceeds thereof (including insurance proceeds), any accessions and
additions thereto, and replacements or renewals of all of the foregoing;
TOGETHER WITH all the estate, interest, right, title, other claim or
demand, including claims or demands with respect to the proceeds
(including premiums refunds) of insurance in effect with respect thereto
which the Debtor now has or may hereafter acquire in the Property and
Improvements, and any and all awards made for the taking by eminent
domain, or by any proceeding or purchase in lieu thereof, of the whole or
any part of the estate, property and interest conveyed to the Secured
Party or for the benefit of the Second Party pursuant to a Deed of Trust
or Mortgage;
TOGETHER WITH, all (to the full extent legally assignable) licenses,
permits and authorizations (issued in the name of the Debtor) necessary
for the operation of the Property and Improvements as a shopping center;
TOGETHER WITH all rents, issues and profits assigned to the Secured
Party pursuant to that certain Assignment of Rents and Leases from the
Debtor to the Secured Party.
TOGETHER WITH all other property, rights, privileges, and
benefits conveyed by said Deed of Trust.
TO HAVE AND TO HOLD unto the said CUNNINGHAM II, L.P., its successors and
assigns, in fee simple forever.
All equities of redemption, statutory rights of redemption, homestead,
dower, and all other rights and exemptions of every kind are expressly waived in
said Deed of Trust, and the title is believed to be good, but the undersigned
will sell and convey only as Trustee.
The undersigned Trustee believes the title hereby conveyed to be good, but
warrants same against the lawful claims of all persons claim by, through, and
under a conveyance from the undersigned as Trustee, under the provisions of the
above described Deed of Trust, but not further or otherwise.
WITNESS the signature of the undersigned Trustee, this the 26th day of
December, 1995.
/s/ W. Emmett Marston
W. EMMETT MARSTON
Trustee
STATE OF TENNESSEE
COUNTY OF SHELBY
Personally appeared before me, a Notary Public in and for said state and
county, duly commissioned and qualified, W. Emmett Marston, Trustee, the within
named bargainor, with whom I am personally acquainted (or proved to me on the
basis of satisfactory evidence), and who acknowledged that he executed the
within instrument for the purposes therein contained.
WITNESS my hand and official seal at office this 26th day of December,
1995.
/s/ Carol J. Sides
Notary Public
March 25, 1998
Expiration Date
* * * * * * * * * * * * * * * * * * *
RECORDING DATA ONLY
Property Address:
I hereby swear or affirm that to the
best of my knowledge, information,
Agency Responsible for Payment of and belief, the actual consideration
Taxes and Mail Bills to: for this property transfer or value
of the property transferred,
whichever is greater, is
$5,025,050.00, which amount is equal
to or greater than the amount which
the property transferred would
command at a fair and voluntary sale.
TAX PARCEL NO. 43.-1.09 /s/ F. Evans Harvill
AFFIANT
Subscribed and sworn to before this
26 day of December, 1995.
/s/ Nancy Moore
NOTARY PUBLIC
My Commission Expires:
1/21/98