HomeMy WebLinkAboutGRANT OF EASEMENT EDWARD J COLEMAN COMMERCIAL AND MILITARY SYSTEMS
Return to: Leonard O. Fletcher, Jr.
Fletcher, Harley & Fletcher, LLP
3529 Walton Way Ext.
Augusta, GA 30909
STATE OF GEORGIA
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GRANT OF EASEMENT
COUNTY OF RICHMOND
THIS GRANT OF A NON-EXCLUSIVE EASEMENT FOR INGRESS AND
EGRESS ("Easement") is made and entered into this CJ- day of July, 2009, by and between
EDWARD J. COLEMAN, III, in his capacity as Trustee for the Bankruptcy Estate of
COMMERCIAL AND MILITARY SYSTEMS COMPANY, INC., UNITED STATES
BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF GEORGIA, Case No.
04-13301-LWD, (COMMERCIAL AND MILITARY SYSTEMS COMPANY, INC. IS
ALSO KNOWN AS COMMERCIAL & MILITARY SYSTEMS COMPANY), as Grantor,
and SOUTHEASTERN EQUIPMENT COMPANY, INC., a Georgia corporation, and ANNE
K. SMITH, in her capacity as personal representative of the ESTATE OF JOHN S. SMITH,
as Grantee (collectively).
WHEREAS, COMMERCIAL AND MILITARY SYSTEMS COMPANY, INC., filed
for relief under Chapter 11 of the United States Bankruptcy Code on September 14, 2004, and the
case was converted to a case under Chapter 7 on July 20, 2005; and
WHEREAS, the said EDWARD J. COLEMAN, III has been appointed Trustee of the
Bankruptcy estate of the said COMMERCIAL AND MILITARY SYSTEMS COMPANY,
INC., by Order of the United States Bankruptcy Court for the Southern District of Georgia; and
WHEREAS, COMMERCIAL AND MILITARY SYSTEMS COMPANY, INC. is the
owner of that certain property consisting of approximately 90 acres more or less, including a tract
consisting of approximately 84.26 acres, located in Richmond County, Georgia, and being more
particularly described as TRACT A 84.26 ACRES in Exhibit "B" attached hereto and incorporated
herein by this reference ("TRACT A 84.26 acre tract"); and
WHEREAS, COMMERCIAL AND MILITARY SYSTEMS COMPANY, INC. is the
owner ofthat certain property consisting of approximately 15 acres located in Richmond County,
Georgia, and more particularly described in Exhibit "c" attached hereto and incorporated herein
by this reference ("the IS-acre tract"); and
WHEREAS, said United States Bankruptcy Court has approved, by Amended Order filed
July 7,2009, the conveyance of the 90-acre tract (partially consisting of the TRACT A 84.26 acre
tract), the IS-acre tract and the Grant of Easement herein described. A certified copy of the
Amended Order approving said conveyances and grant of easement is attached hereto as Exhibit
"A" and made a part hereof; and
WHEREAS, said Amended Order approves the conveyance of the 90-acre tract (which
includes TRACT A 84.26 acre tract) to the COUNTY BOARD OF EDUCATION OF
RICHMOND COUNTY, GEORGIA, a political subdivision of the State of Georgia, and to
AUGUST A, GEORGIA, a political subdivision of the State of Georgia; and
WHEREAS, the Amended Order approves the coatemporaneous conveyance of the
IS-acre tract to SOUTHEASTERN EQUIPMENT COMPANY, INC., a Georgia corporation,
and ANNE K. SMITH, in her capacity as personal representative of the EST ATE OF JOHN
S. SMITH; and
WHEREAS, the property described as the "IS-acre tract" requires access for ingress and
egress, which shall be non-exclusive, partially across the "TRACT A 84.26 acre" tract to be
conveyed to COUNTY BOARD OF EDUCATION OF RICHMOND COUNTY, GEORGIA,
a political subdivision of the State of Georgia, and to AUGUST A, GEORGIA, a political
subdivision of the State of Georgia; and
WHEREAS, the Amended Order approves the contemporaneous conveyance of a grant of
easement to SOUTHEASTERN EQUIPMENT COMPANY, INC., a Georgia corporation, and
ANNE K. SMITH, in her capacity as personal representative of the ESTATE OF JOHN S.
SMITH, allowing access for ingress and egress, which shall be non-exclusive, to the IS-acre tract
by way of an easement across the TRACT A 84.26 acre tract, the location and manner set forth
herein; and
NOW THEREFORE, and in consideration of good and valuable consideration, in
hand paid at and before the sealing and delivery of these presents, the receipt and adequacy of
which is hereby acknowledged, the said Grantor does hereby grant unto said Grantee a
non-exclusive perpetual easement and right, running with the land, to allow ingress and egress
over, through and across that property more particularly delineated and described herein:
1. Location of Access, Ingress and Egress. Grantor does hereby grant unto Grantee a
non-exclusive perpetual easement and right of ingress and egress over the eastern portion
of that tract ofland described as TRACT A 84.26 acre tract. The non-exclusive permanent
easement is designated as a 25-FOOT ROAD RIGHT-OF-WAY EASEMENT whose
metes, bounds, descriptions and measurements are more particularly shown and referenced
to that chart labeled "Line Table" as points LI through L20, on a plat prepared by Barry A.
Toole, R.L.S., dated August 22,2007, last revised June 2, 2009, and recorded in the Office
of the Clerk of the Superior Court of Richmond County, Georgia, in Plat Book 5, Page 102.
Reference is hereby made to said plat for a more particular description as to the metes and
bounds, courses, distances, and location of said noncexclusive Easement.
2. Easement Maintenance. The Grantee shall be responsible for the reasonable
maintenance and repair of that non-exclusive easement hereinabove described, in such
manner as the Grantee, their successors and assigns, may deem necessary. However, in
the event Grantee fails to properly repair or maintain the easement area, then the Grantor,
its successors or assigns and subsequent owners shall have the right to perform such repairs
and/or maintenance thereto (but not alterations) as they may deem necessary in their
reasonable discretion to maintain the functionality of such easement. In the event either
party undertakes any repair or maintenance work so permitted hereunder, such repair and
maintenance work shall be performed and in good, workmanlike and expeditious manner,
and in compliance with all applicable laws, rules and regulations governing same and in a
manner so as to minimize any interference with the intended function of the subject
easement.
3. Indemnification. To the extent allowed by law, each party hereto will indemnify,
protect, defend and hold the other party hereto harmless from and against any and all
injuries, claims, damages, losses, liabilities and penalties (including, without limitation,
reasonable attorney fees actually incurred at all trial and appellate levels), whether or not
suit is brought, arising directly or indirectly from or out of, or in any way connected with
any loss, injury, claims or damage to any person or property to the extent caused by such
parties breach of this Agreement or use of the easement granted hereunder by such party or
such parties, tenants, employees, customers or other persons doing business with such
party, except to the extent such injuries, claims, damages, losses, liabilities and penalties
are caused by the gross negligence or willful misconduct of the indemnified party. The
County Board of Education of Richmond County, Georgia, and Augusta, Georgia, do not
waive any rights to sovereign immunity to claims made by third parties.
4. Public Dedication. This Agreement is not intended to, and shall not be construed
to, dedicate any of the properties encumbered by the easement hereunder, to the general
public.
5. Attorney Fees. In the event of any dispute between any of the parties hereto with
respect to this Agreement, the prevailing party in any litigation arising therefrom shall be
entitled to receive from the losing party, its reasonable attorney fees incurred in connection
therewith.
6. Exhibits. All exhibits to this Agreement are hereby made a part of this Agreement
and incorporated herein by reference to the same extent and with the same effect as if said
exhibits were written directly into the body of this Agreement.
7. Governing Law. This Agreement shall be governed by and construed ill
accordance with the laws of the State of Georgia.
8. Severability. If any term, covenant or condition of this Agreement or the
application thereof to any person or circumstance shall, to any extent, be illegal, invalid or
unenforceable, the remainder of this Agreement or the application of such term, covenant
or condition to any person or circumstance, other than that as to which it shall be invalid or
unenforceable, shall not be affected thereby, and each term, covenant and condition of this
Agreement shall be valid and enforceable to the full extent permitted by law.
9. Captions. The titles, captions and headings of the various sections of this
Agreement are for convenience only and shall not be considered in construing the intent of
the parties or otherwise in interpreting the meaning of this Agreement.
10. Successors and Assigns. The easements herein granted shall run with the land.
This Agreement shall inure to the benefit of and be binding upon the parties hereto, their
heirs, executors, administrators, successors and assigns and each person acquiring
ownership, possession or any other right, title or interest in or to any or all of the Properties
either voluntarily or by operation of law.
11. Time of the Essence. Time is of the essence of each and every provision of this
Agreement.
TO HAVE AND TO HOLD the said Easement unto the said Grantee, its successors and
assigns, in perpetuity.
COUNTY BOARD OF EDUCATION OF RICHMOND COUNTY, GEORGIA, as
Purchaser of TRACT A 84.26 acre tract, encumbered by the easement, joins in this conveyance for
the sole purpose of acknowledging and consenting to the grant of the herein described Easement.
AUGUST A, GEORGIA, as Purchaser of TRACT A 84.26 acre tract, encumbered by the
easement, joins in this conveyance for the sole purpose of acknowledging and consenting to the
grant of the herein described Easement.
IN WITNESS WHEREOF, the said Grantor has hereunto set his hand and seal, the day,
month and year above written; and those entities joining herein hereunto set the hand and seal of
said entities by and through their proper officers.
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{ADDrrf{JNI~L'SIGNATURES ON FOLLOWING PAGE}
SIGNED, SEALED AND DELIVERED
in Richmond County, Georgia
in the presence of:
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Witness -
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otary Public
State of Georgia
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. COLEMAN, III, AS
TRUS E for the Bankruptcy
Es e of COMMERCIAL AND MILITARY
SYSTEMS COMPANY, INC., UNITED
STATES BANKRUPTCY COURT FOR
THE SOUTHERN DISTRICT OF
GEORGIA, CASE NO. 04-13301-LWD
SIGNED, SEALED AND DELIVERED
in Richmond County, Georgia
in the presence of:
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COUNTY BOARD OF EDUCATION
OF RICHMOND COUNTY, GEORGIA
BY:~?~
~RION BARNES, AS PRESIDENT
ATTEST: .LJ~~
DR. DANA T. BEDDEN, AS
SECRETARY
AUGUSTA, GEORGIA
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) DAVID S. CO~~NHA VER, AS
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S CLERK OF
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EXHIBIT-1L.
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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA . "!",J ;; 1] -7 PH 3: 08
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AUGUST A DIVISION
INRE:
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CHAPTER 7 CASE
NO.04-13301-LWD
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SAHL!FL L 1( A y, eLE RK
COMMERCIAL AND MILITARY
SYSTEMS COMPANY, INC.,
Debtor.
AMENDED ORDER ON TRUSTEE'S APPLICATION TO SELL
PROPERTY OF THE ESTATE FREE AND CLEAR OF LIENS. APPLICATION TO
DISBURSE FUNDS TO SECURED CREDITORS AT OR BEFORE CLOSING. AND
APPLICATION TO COMPROMISE CONTROVERSY
TRUSTEE'S APPLICATION TO SELL PROPERTY OF THE ESTATE FREE AND
CLEAR OF LIENS, APPLICATION TO DISBURSE FUNDS TO SECURED CREDITORS AT
OR BEFORE CLOSING, AND APPLICATION TO COMPROMISE CONTROVERSY, having
been read and considered, and it appearing that the sale of the subject property on the terms set
forth in the Application is in the best interest of the bankruptcy estate; And,
This Court having found that (i) the Property sold to Purchaser pursuant to the Purchase
and Sale Agreement, attached to Trustee's Application as Exhibit A, shall be transferred to
Purchaser free and clear of all liens and encumbrances (other than liens created by Purchaser and
Permitted Exceptions, if any) and claims; (ii) the Purchaser has acted in "good faith" within the
meaning of Section 363(m) of the Bankruptcy Code; (iii) said Purchase and Sale Agreement was
negotiated, proposed and entered into by the Purchaser and Trustee without collusion, in good
faith and from arm's length bargaining positions; (iv) the Bankruptcy Court shall retain
jurisdiction to resolve any controversy or claim arising out of or relating to said Contract, or the
breach thereof, and (v) said Purchase and Sale Agreement, and the transactions contemplated
Deputy Clerk, Unlttd S ~ Court
'~.'\l1thern Djgfrid nf ~
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avoidance by Seller or any chapter 7 or chapter 11 trustee or other representative of Seller; it is
hereby
ORDERED that Trustee's Application to sell the subject property consisting of
approximately 90 acres located off of Mike Padgett Highway in Augusta, Georgia for a purchase
price of$3,300,000.00, cash at closing, and disbursement of the closing costs outlined in the
Application are hereby APPROVED, and the Trustee is authorized to sell such property to either
or both of the named purchasers in the PURCHASE AND SALE AGREEMENT; all valid liens
shall attach to the net proceeds in the same manner and to the same extent as they attached to the
property; it is further
ORDERED that TRUSTEE'S APPLICATION TO DISBURSE FUNDS TO SECURED
CREDITORS AT OR BEFORE CLOSING is hereby APPROVED and the Trustee shall:
1. immediately pay first Regions Bank the amount of$546,544.30, its payoff through
July 15,2009, from estate funds presently on hand;
2. immediately pay the Small Business Administration from estate funds presently on
hand the amount of $298,976.89, to be credited fIrst against interest and the
balance of such payment to be applied against principal as hereinafter provided.
The payoff of SBA as of June 25,2009 is $846,817.93 of which $701,308.65 is
principal. The SBAhas a lien on the 24.7 acre tract located on Windsor Spring
Road and has agreed to defer the sum of $30,000, and any accrued interest
computed at an annual rate of7.368%, from the date of this Order, until the
closing of the property located on Windsor Spring Road. The payment of
$298,976.89 shall be applied to outstanding i1;1terest of$145,509.28, with the
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balance of $183,467.61 to be applied to principal, thereby reducing the principal to
$517,841.04, which amount shall satisfy SBA's secured interest against said
property on Mike Padgett Highway if paid on or before July 20, 2009. Said payoff
of$517,841.04 as of July 20, 2009 includes a deferral of $30,000 as noted herein.
Should the closing not occur by July 20, 2009, the outstanding principal will be
$547,841.04 with per diem interest, calculated at the appropriate rate from the date
of this Order and thereafter, shall be paid at closing on the sale of the 90 acre tract;
3. then pay, at closing but not before, to Sudimat, S.A. $2,196,542.47, its payoff
through July 20,2009. This amount includes a discount of $30,000. Should the
closing on the Mike Padgett Highway property not occur by July 20,2009, the sum
of $30,000 shall be added to the above payoff amount and per diem interest of
$394.52 shall be calculated from June 30, 2009 and thereafter; however,
the Trustee may withhold estate funds presently on hand in an amount up to $200,000.00, even if
withholding such funds will result in Sudimat, S.A. not being paid in full at closing; it is further
ORDERED that nothing in this Order will prohibit the secured creditors from voluntarily
reducing their respective payoffs by waiving interest, penalties, attorneys fees or other lawful
charges; it is hereby further
ORDERED that the TRUSTEE'S APPLICATION TO COMPROMISE
CONTROVERSY is APPROVED, and the Trustee is authorized to compromise the secured
claims of SECO and Smith (Claims 24 and 25, as amended) by conveying that IS-acre tract of
land and non-exclusive easement as described .on the survey by Toole Surveying Company, Inc.
dated October 13,2006 (and revised March 31,2009), such conveyance to be made
contemporaneously with the Trustee's closing on the sale of the 90-acre tract as described in this
Application; And,
It is Further ORDERED that this Court retains jurisdiction to resolve any controversy or
claim arising out of or relating to said Purchase and Sale Agreement, or the breach thereof, and
said Purchase and Sale Agreement, and the transactions contemplated hereby may be specifically
enforced against and binding upon, and not subject to rejection or avoidance by Trustee or any
. chapter 7 or chapter 11 trustee or other representative of Trustee.
This Order is entered this 11? day of July, 2009, nunc pro tunc as of the 25th day of
June, 2009.
Honorable Lamar i , Jr., Judge
United States Bankruptcy Court
Southern District of Georgia
Edwar . Coleman, ill, Trustee
Geo a Bar No. 177475
Counsel:
SURRETT & COLEMAN, P.A.
Post Office Box 1497
Augusta, Georgia 30903-1497
Telephone: (706) 722-3301
Facsimile: (706) 722-3318
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Consented to by:
Mark L. Wilhelmi
Attorney for Regions Bank
State Bar No. 759049
3527 Wheeler Road
Augusta, Georgia 30909
(706) 868-9646
Consented to by:
~;/~4~-/'-
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Edmund A. Booth, Jr.
Attorney for u.s. Small Business Administration
State Bar No. 068000
United State Attorney
P.O. Box 2017
Augusta, Georgia 30903
(706) 724-0517
ORDER ON TRUSTEE'S APPLICATION TO SELL
PROPERTY OF THE ESTATE FREE AND CLEAR OF LIENS, APPLICATION TO DISBURSE FUNDS TO
SECURED CREDITORS AT OR BEFORE CLOSING, AND APPLICATION TO COMPROMISE
CONTROVERSY 04-1330 1-L WD
ORDER ON TRUSTEE'S APPLICA nON TO SELL
PROPERTY OF THE ESTATE FREE AND CLEAR OF LIENS, APPLICATION TO DISBURSE FUNDS TO
SECURED CREDITORS AT OR BEFORE CLOSING, AND APPLICATION TO COMPROMISE
CONTROVERSY 04-1330I-LWD
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;;;!l~
Frank W. Allen
Attorney for Southeastern Equipment Company, Inc.
and Anne K. Smith, in her capacity as personal
representative of the Estate of John Smith
State Bar No. 010100
237 Davis Road
Augusta, Georgia 30907
EXHIBIT "B"
LEGAL DESCRIPTION OF PROPERTY
ALL THOSE LOTS, TRACTS OR PARCELS OF LAND, with improvements
thereon, situate, lying and being in Richmond County, Georgia, being shown and
designated as "TRACT A, 84.26 ACRES" and "TRACT B, 5.92 ACRES" on a
plat prepared by Barry A. Toole, R.L.S., dated August 22, 2007, last revised on
June 2, 2009, and being recorded in the Office of the Clerk of the Superior Court
of Richmond County, Georgia, in Plat Book 5, Page 102. Reference is hereby
made to said plat for a more complete and accurate description as to metes,
bounds, distances and location of said property.
Said property is a portion of the property conveyed to Commercial & Military
Systems Company by deed of Cummins Military Systems Company dated March
26, 1997, and recorded in aforesaid Clerk's Office in Realty Reel 553, page 1185.
Portions of MPN: Tax Map 111, parcels 10.1,29,30,31,32,33 & 34. Tax Map
123, parcels 10 and 10.1.
EXHIBIT "C"
LEGAL DESCRIPTION OF PROPERTY
ALL THOSE LOT, TRACT OR PARCEL OF LAND, with improvements
thereon, situate, lying and being in Richmond County, Georgia, containing 15
acres and being shown and designated as "TRACT A" on a plat prepared for
SOUTHEAST EQUPMENT COMPANY by Barry A. Toole, R.L.S., dated
October 13, 2006, and revised on March 31, 2009, and recorded in the Office of
the Clerk of the Superior Court of Richmond County, Georgia, in Plat Book 5,
Page 105, a copy of which is attached hereto. Reference is hereby made to said
plat for a more complete and accurate description as to metes, bounds, distances
and location of said property.
Said property is also shown as the tract labeled with TM #123-0-010-01-0, and
adjacent to the southern portion of that tract labeled as Tract "A" 84.26 acres on a
plat prepared by Barry A. Toole, R.L.S., dated August 22, 2007, and last revised
on June 2, 2009, and recorded in the Office of the Clerk of the Superior Court of
Richmond County, Georgia, in Plat Book 5, Page 102.
TMP Ref: 123-0-010-01-0