Case Doc 901 Filed 03/19/14 Entered 03/19/14 12:41:47 Desc Main Document Page 1 of 78

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1 Document Page 1 of 78 Peggy Hunt (Utah State Bar No. 6060) Nathan S. Seim (Utah State Bar No ) DORSEY & WHITNEY LLP 136 South Main Street, Suite 1000 Salt Lake City, UT Telephone: (801) hunt.peggy@dorsey.com seim.nathan@dorsey.com Attorneys for D. Ray Strong, Liquidating Trustee of the Legacy Trust and Chapter 11 Trustee and Post-Confirmation Representative for Castle Arch Real Estate Investment Company, LLC and Substantively Consolidated Debtors IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF UTAH In re: CASTLE ARCH REAL ESTATE INVESTMENT COMPANY, LLC; CAOP MANAGERS, LLC; CASTLE ARCH KINGMAN, LLC; CASTLE ARCH SECURED DEVELOPMENT FUND, LLC; CASTLE ARCH SMYRNA, LLC; CASTLE ARCH STAR VALLEY, LLC; and CASTLE ARCH OPPORTUNITY PARTNERS I, LLC; CASTLE ARCH OPPORTUNITY PARTNERS II, LLC, Debtors. Case Nos , , , and (Substantively Consolidated) Case Nos and (Jointly Administered) (Chapter 11) The Honorable Joel T. Marker Affects All Debtors Affects Only the Substantively Consolidated Debtors Affects only Castle Arch Opportunity Partners I, LLC Affects only Castle Arch Opportunity Partners II, LLC TRUSTEE'S MOTION FOR AUTHORIZATION TO (1) SELL PROPERTY, INCLUDING AND RELATING TO REAL PROPERTY LOCATED IN RUTHERFORD COUNTY, TENNESSEE, OUT OF THE ORDINARY COURSE OF BUSINESS, FREE AND CLEAR OF LIENS, CLAIMS, ENCUMBRANCES AND INTERESTS, AND SUBJECT TO HIGHER AND BETTER OFFERS, PURSUANT TO 11 U.S.C. 363(b) AND (f) AND FEDERAL RULES OF BANKRUPTCY PROCEDURE 2002 AND 6004; AND (2) PAY COSTS OF SALE, INCLUDING COMMISSION TO REAL ESTATE BROKER

2 Document Page 2 of 78 Pursuant to 11 U.S.C. 363(b) and (f), as well as Rules 2002 and 6004 of the Federal Rules of Bankruptcy Procedure, D. Ray Strong (the "Trustee"), as the duly appointed Liquidating Trustee of the Consolidated Legacy Debtors Liquidating Trust (the "Legacy Trust") and the Chapter 11 Trustee and post-confirmation estate representative for the consolidated bankruptcy estates of Castle Arch Real Estate Investment Company, LLC ("CAREIC"), CAOP Managers, LLC, Castle Arch Kingman, LLC, Castle Arch Smyrna, LLC, Castle Arch Secured Development Fund, LLC and Castle Arch Star Valley, LLC (collectively, the "Legacy Debtors"), by and through his undersigned counsel, moves this Court for entry of an Order authorizing (1) the sale of certain property, including and related to real property located in Rutherford County, Tennessee, with such sale being made out of the ordinary course of business, free and clear of liens, claims, encumbrances and interests, and subject to higher and better offers, with valid interests, if any, attaching to the net sale proceeds of the sale; and (2) the Trustee's payment of the actual and necessary costs of sale from the gross sale proceeds, including the real estate commission as described below. This Motion is supported by the Declaration of D. Ray Strong (the "Strong Declaration"), the Declaration of Dell S. Nichols (the "Nichols Declaration") and the Declaration of Wayne G. Souza (the "Buyer's Declaration"), filed concurrently herewith. JURISDICTION AND VENUE 1. On October 17, 2011, CAREIC filed a petition for relief under Chapter 11 of the Bankruptcy Code, and on October 20, 2011, the other Legacy Debtors also filed petitions seeking relief under Chapter 11 of the Bankruptcy Code. 2. The Court has subject matter jurisdiction of this proceeding pursuant to 28 U.S.C. 157 and

3 Document Page 3 of On June 7, 2013, the Bankruptcy Court entered an Order Confirming Chapter 11 Trustee's First Amended Plan of Liquidation Dated February 25, 2013 as Modified [Docket No. 705] (the "Confirmation Order"), thus confirming the Second Amended Chapter 11 Trustee's Plan of Liquidation Dated February 25, 2013 [Docket No. 701] (the "Confirmed Plan"), pursuant to which the Court retains jurisdiction over this proceeding, which arises under the Bankruptcy Code and arises in and is related to the above-captioned bankruptcy cases. 4. Venue is proper in this Court pursuant to 28 U.S.C BACKGROUND Case Background and the Smyrna Property 5. On May 3, 2012, the Court entered an Order appointing the Trustee as the Chapter 11 bankruptcy Trustee for CAREIC [Docket No. 215], and in that capacity he managed each of the other Legacy Debtors. 6. On February 8, 2013, the Court entered an Order substantively consolidating the Legacy Debtors [Docket No. 590]. 7. On June 7, 2013, the Court entered the Confirmation Order which, among other things, (a) designated the Trustee as the post-confirmation estate representative for the Legacy Debtors; (b) approved the Liquidating Trust Agreement for the Legacy Trust; (c) appointed the Trustee as the Liquidating Trustee for the Legacy Trust; and (d) authorized the Trustee to administer the Legacy Debtors' post-confirmation estates pursuant to the Confirmed Plan. 8. Property of the Consolidated Legacy Estate, as that term is defined in the Confirmed Plan, includes certain real property located in Rutherford County, Tennessee, including interests related to such land, which is referred to in the Legacy Debtors' consolidated -3-

4 Document Page 4 of 78 case as the "Smyrna Property." Upon the Effective Date of the Confirmed Plan, the Smyrna Property, including all interests related thereto, were transferred to the Legacy Trust to be administered by the Trustee. 9. By this Motion, the Trustee seeks to sell the Smyrna Property, as described in the Real Estate Purchase and Sale Agreement attached hereto as Exhibit A (the "Purchase Agreement") to the Buyer (as defined below), or to the person making the highest and best offer. A full description of the Smyrna Property and related interests thereto being sold under the Purchase Agreement is set forth in Section 2 of the Purchase Agreement and is referred to in this Motion as the Property. The description of the transaction provided in this Motion is qualified by the more detailed provisions of the transaction as set forth in the Purchase Agreement, the terms of which shall control in the event of any conflict between the two. Marketing of the Property 10. On or about June 19, 2012, the Trustee caused to be filed his Application of D. Ray Strong, Chapter 11 Trustee of Castle Arch Real Estate Investment Company, LLC, for Entry of an Order Authorizing the Employment of Commerce Real Estate Solutions as Real Estate Broker [Docket No. 252] ("Employment Application"), and on July 26, 2012, the Court entered an Order approving the Employment Application and authorizing the Trustee's employment of Commerce Real Estate Solutions ("Commerce") as real estate broker to sell the Property pursuant to the terms of the Listing Agreement referenced therein [Docket No. 276]. 11. Commerce, principally through broker Dell S. Nichols ("Nichols"), has been marketing the Property for sale since the filing of the Employment Application in June In 1 Nichols Declaration

5 Document Page 5 of 78 approximately November 2013, after entry of the Confirmation Order, Nichols left Commerce and formed his own firm, Dell Nichols Realty & Development, LLC ("Nichols Realty"). 2 In February of 2014, the Trustee, as the Trustee of the Legacy Trust, entered into a new Listing Agreement with Nichols Realty for the sale of the Property, which was retroactive to December 3, 2013, a copy of which is attached hereto as Exhibit B. 3 Pursuant to the Listing Agreement, the Trustee has agreed to pay Nichols Realty a standard commission of no more than 6% of the Property's gross sales price, which Nichols Realty will share with any agent representing a purchaser. 4 The terms of this Listing Agreement are materially similar to those of the Listing Agreement that was previously disclosed as part of the Employment Application, except that Nichols Realty, not Commerce, is now employed and will be paid a commission upon the sale of the Property. 5 The Trustee understands that the Legacy Trust has no further obligations to Commerce Since at least June 2012, Commerce, and then Nichols Realty, have continuously and actively marketed the Property for sale pursuant to industry standards, including by signage, website listings, marketing flyers, postcards, broker broadcasts, and targeted campaigns to buyers of investment land, residential development, home builders and developers in both the regional and national markets surrounding the Property Id. 2. Strong Declaration 4; Nichols Declaration 3. See Exhibit B. Strong Declaration 4; Nichols Declaration 3. Strong Declaration 4; Nichols Declaration 3. Nichols Declaration

6 Document Page 6 of 78 The Purchase Agreement 13. On February 26, 2014, the Trustee, on behalf of the Legacy Consolidated Estate and the Legacy Trust, on the one hand, and Walton Tennessee, LLC (the "Buyer"), on the other hand, entered into the Purchase Agreement attached hereto as Exhibit A While the Purchase Agreement must be reviewed to obtain full disclosure of all its material terms, the following is a summary of the terms most relevant to this Motion, with capitalized terms being defined in the Purchase Agreement: (a) (b) (c) (d) (e) The total purchase price for the Property is anticipated to be $2,299,427.50, which price was determined by multiplying the anticipated gross acreage of land (approximately acres) by $4, If the Buyer elects to obtain a new survey of the Property, and if such survey shows the Property's total acreage to be different than acres, then the Purchase Price will be adjusted upward or downward, as the case may be, based on a calculation of $4, per acre. 9 The Buyer will pay an Initial Deposit in the amount of $10, upon the Opening of Escrow. 10 Within three (3) business days after the expiration of the "Feasibility Period," Buyer will make an Additional Deposit in the amount of $50, The Deposit (i.e., the Initial Deposit and the Additional Deposit) will be applied to the Purchase Price, and the Purchase Price will be paid in cash at Closing. 12 From the Opening Period until sixty days after the Court enters an Order approving this Motion (such duration being called the "Feasibility Period"), the Buyer may conduct such studies and investigations of the Property as it deems desirable. Additionally, at any time prior to the termination of the Feasibility Period, including any extensions thereof allowed under the Purchase Agreement, Strong Declaration 5; Buyer s Declaration 3. Exhibit A (Purchase Agreement, p. 2 & 4). Id. Id. Id. -6-

7 Document Page 7 of 78 Buyer may, in its sole discretion, cancel the escrow and terminate the Purchase Agreement for any reason. 13 (f) (g) (h) (i) If the Buyer has not terminated the Purchase Agreement prior to the end of the Feasibility Period, the Deposit is non-refundable (provided that no higher and better offer is accepted by the Trustee), and Closing of the sale will occur no later than fourteen (14) business days after expiration of the Feasibility Period. 14 The sale is subject to approval by the Court, and provided that the Court approves the reimbursements and refunds set forth in 6.5 of the Purchase Agreement, the sale is subject to higher and better offers, to be determined by the Trustee in his sole discretion, up until Closing. 15 If the Trustee receives a higher and better offer and sells the Property to another party, then (i) the Deposits will be refunded to Buyer; and (ii) Buyer will be reimbursed for all external, third-party expenses incurred by Buyer up to, but not exceeding $75, The Property is being sold free and clear of liens, claims, encumbrances and interests, except to the extent specifically permitted by the Purchase Agreement. The sale is "AS IS," subject to the very limited representations and warranties set forth in the Purchase Agreement In his business judgment, the Trustee believes that the sale of the Property as set forth in the Purchase Agreement is fair, reasonable, and in the best interests of the Legacy Trust's beneficiaries Upon closing of the sale, whether to the Buyer or to a person who is deemed to have made a higher and better offer prior to Closing as set forth and authorized in the Purchase Agreement, the Trustee will file a Notice of Sale with the Court, informing the Court of the Closing and providing information typically required under Federal Rule of Bankruptcy See id., p. 2 & 5. Id., p. 2 & 4. Id., 6 7. Id., 6.5. Id., 5 7. Strong Declaration

8 Document Page 8 of 78 Procedure 6004(f). 19 In the event that a higher and better offer is received and accepted for the sale of the Property, approval of the sale to the Buyer herein will be deemed to be approval of the sale to the person submitting the higher and better offer, with the Notice of Sale providing an itemization of amounts obtained by the Legacy Trust, as well as all sums paid to the Buyer pursuant to 6.5 of the Purchase Agreement (discussed in further detail below). Interests in the Property 17. A preliminary title commitment has been obtained for the real property in question, a true and correct copy of which is attached hereto as Exhibit C (the "Preliminary Title Commitment"), and Buyer has also received a copy of the Preliminary Title Commitment The Trustee is providing notice of this Motion to all persons and entities listed on the Preliminary Title Commitment whose interests in the Property may be affected by any Order granting this Motion pursuant to 11 U.S.C. 363(b) and (f). 21 RELIEF REQUESTED 19. By this Motion, the Trustee seeks entry of an Order authorizing (a) the sale of the Property pursuant to the Purchase Agreement out of the ordinary course of business, free and clear of interests, and subject to higher and better offers, with valid liens, claims, encumbrances and interests in the Property, if any, attaching to the proceeds of the sale, after the deduction of the costs of sale, including Nichols Realty's commission, outstanding property taxes and assessments, and any costs that the Legacy Trust or the Legacy Debtors have incurred in relation to the Property and the sale thereof (the "Net Sale Proceeds"); (b) the payment to the Buyer of Id. 7. Id. 8. Id

9 Document Page 9 of 78 the reimbursements and refunds provided for in 6.5 of the Purchase Agreement in the event that the Trustee, in an exercise of his business judgment, accepts a higher and better bid for the purchase of the Property prior to the closing of the sale to the Buyer (the "Section 6.5 Costs"); (c) the payment of actual and necessary costs of sale from the gross sale proceeds, including the real estate commission to Nichols Realty pursuant to the Listing Agreement and the Seller's share of closing costs as agreed to in the Purchase Agreement; and (d) waiver of the 14-day stay set forth in Federal Rule of Bankruptcy Procedure 6004(h) so as to allow for the immediate commencement of the Feasibility Period as defined in the Purchase Agreement. 20. In addition to authorizing the sale as set forth above, Section 7.2 of the Purchase Agreement expressly requires that the Court enter an Order finding that the sale is made upon proper notice, is a sale made pursuant to 11 U.S.C. 363(m), is not a sale avoidable under 11 U.S.C. 363(n), and providing that the Court will retain jurisdiction to enforce the Purchase Agreement in all respects. 21. For the reasons set forth below, the relief sought herein is appropriate, and the Motion should be granted. A. The Proposed Sale of the Property, Including the Section 6.5 Costs, Should be Authorized Under 11 U.S.C. 363(b) and (m) and the Sale Is Not a Sale to Which 11 U.S.C. 363(n) Applies U.S.C. 363(b)(1) provides: "The trustee, after notice and a hearing, may use, sell, lease, other than in the ordinary course of business, property of the estate[.]" 23. In order to approve a sale of assets outside the ordinary course of business, the Trustee must show that: -9-

10 Document Page 10 of 78 a. a sound business reason exists for the sale; b. there has been adequate and reasonable notice to interested parties, including full disclosure of the sale terms any relationship with the buyer; c. the sale price is fair and reasonable; and d. the proposed buyer is proceeding in good faith The Trustee has met all four parts of this test, and accordingly, he respectfully requests that the Court grant this Motion, thereby entering an Order authorizing the proposed free and clear sale of the Property as set forth in the Purchase Agreement, or to any person making a higher and better offer, and authorizing him to pay taxes and costs of sale from the gross sale proceeds, subject to 11 U.S.C. 363(b). As part of this determination, the Trustee also asks the Court to order that the Section 6.5 Costs are appropriate, and that the sale is made upon appropriate notice, is proper under 11 U.S.C. 363(m) and is not a sale to which 11 U.S.C. 363(n) applies. Sound Business Purpose 25. Courts show great deference to a trustee's decision-making. 23 Once a trustee articulates a valid business judgment for a sale, "a presumption of reasonableness attaches to a trustee's management decisions." In his business judgment, the Trustee believes that the sale of the Property under the Purchase Agreement is fair, reasonable and will maximize the value of the Property, See In re Medical Software Solutions, 286 B.R. 431, (Bankr. D. Utah 2002). See Summit Land Co. v. Allen (In re Summit Land Co.), 13 B.R. 310, 315 (Bankr. D. Utah 1981). In re Johns-Manville Corp., 60 B.R. 612, (Bankr. S.D.N.Y. 1986). -10-

11 Document Page 11 of 78 minimize the costs to the Legacy Trust, and produce a good-faith purchaser. The Trustee's opinion is based on several factors, including but not limited to the following: a. the length of time the Property has been marketed for sale; b. the advice of Nichols and those acting under his direction, who have extensive experience in selling real estate similar to the Property at issue; c. the extensive and arm's-length nature of the negotiations related to the purchase price of the Property that were engaged in by the parties; d. the cash nature of the sale and the Buyer's representations that it has the financial ability to pay the purchase price at Closing; and e. the ability of the Trustee under the Purchase Agreement to accept higher and better offers for the Property prior to the Closing. 25 Notice of the Proposed Sale Is Appropriate 27. Adequate and reasonable notice of this Motion and the proposed sale of the Property will be made to interested parties Concurrent with the filing of this Motion, the Trustee will serve a Notice of Hearing upon all creditors and parties-in-interest in the above-captioned bankruptcy case, which Notice will provide, among other things: (a) a description of the Property; (b) the material terms of the proposed sale; (c) that the Trustee will accept higher and better offers for the Property and contact information for expressing an interest in submitting a higher and better offer; (d) procedures for asserting an interest in the Property or objecting to the sale of the Property; and Strong Declaration 10. Id

12 Document Page 12 of 78 (e) the date and time of any hearing on this Motion, to the extent any party objects to this Motion and a hearing is required The Trustee will also post a copy of this Motion on his website, and Nichols Realty will provide notice of the proposed sale to any parties who previously have expressed an interest in the Property Such procedures are fair, reasonable and afford notice as required under 11 U.S.C. 363 and Federal Rules of Bankruptcy Procedure 2002 and Fair and Reasonable Price 31. For the reasons set forth in 26 above, the Trustee respectfully submits that the proposed sale price for the Property is fair and reasonable. 29 Good Faith Purchaser 32. The parties' negotiation of the Purchase Agreement has been at arms' length and in good faith. The parties agree that all acts culminating in the Closing of the Purchase Agreement will likewise be negotiated and conducted through arms' length transactions and in good faith Although the Bankruptcy Code does not define "good faith," the Tenth Circuit has determined in the context of 11 U.S.C. 363(m) that a "good faith" purchaser is "one that buys in good faith, and for value." 31 Actions that destroy a purchaser's good faith include "fraud, Id. 12. Strong Declaration 13; Nichols Declaration 5. Strong Declaration 14; see Nichols Declaration 6. Strong Declaration 15; Nichols Declaration 7; Buyer s Declaration 4. Tompkins v. Frey (In re Bel Air Assocs., Ltd.), 706 F.2d 301, 304 (10th Cir. 1983). -12-

13 Document Page 13 of 78 collusion between the purchaser and other bidders or trustee, or an attempt to take grossly unfair advantage of other bidders." Here, the good faith standard has been met because the Property is being purchased by the Buyer in good faith and for fair value as part of a transparent process that affords all parties in interest and potential purchasers the opportunity to make a higher and better offer prior to the Closing of the sale of the Property to the Buyer. There has been no fraud, collusion between the Buyer and the Trustee, 33 and to date, to the best of the Trustee's knowledge, there have been no other bidders for the purchase of the Property Specifically, the Property has been publicly marketed by Commerce and Nichols Realty pursuant to industry standards since June On approximately September 24, 2013, the Buyer initially offered to purchase the Property from the Trustee. 36 The initial offer, and in particular the price per acre, was substantially negotiated at arms' length and in good faith by the parties, resulting in a negotiated Letter of Intent, which was subsequently reduced to the present Purchase Agreement. 37 As a result of such negotiations, as well as other factors discussed in 26 above, the purchase price for the Property as set forth in the Purchase Agreement represents a fair and reasonable value for the Property. Finally, the material terms of the sale are being fully disclosed to the Court and parties in interest, and to the extent any party submits a higher and better offer for the Property prior to Closing, the Trustee is able to accept such offer Id. at 305 n.11 (citation omitted); see also In re Lotspeich, 328 B.R. 209 (10th Cir. BAP 2005). Strong Declaration 16; Nichols Declaration 8; Buyer s Declaration 5. Nichols Declaration 8. Id. 9. Id.; Buyer s Declaration 6. Strong Declaration 17; Nichols Declaration 9; Buyer s Declaration

14 Document Page 14 of 78 provided that he complies with the terms of the Purchase Agreement. 38 Thus, the Trustee submits that the proposed sale is an arm's length transaction made to a good faith purchaser and requests that any order authorizing this sale so provide In negotiating the Purchase Agreement, the parties determined that there would be no "break up" fee in the event that, in an exercise of his business judgment, the Trustee sells the Property to a person submitting a higher and better offer prior to Closing. But, the Buyer has incurred, and prior to Closing will continue to incur, costs related to its purchase of the Property. 40 Furthermore, the Buyer's interest in the Property may generate other potential buyers' interest in the Property. 41 Accordingly, the Buyer required in Section 6.5 of the Purchase Agreement that in the event of a higher and better offer, the Legacy Trust forfeit the Deposit provided by the Buyer under the Purchase Agreement, and the Legacy Trust or a higher and better offeror reimburse the Buyer's external, third-party expenses up to, but not exceeding $75,000.00, referred to above as the "Section 6.5 Costs." 42 The Section 6.5 Costs, including the amount of the cap on the expense reimbursement, was a negotiated term of the Purchase Agreement, and was negotiated at arms' length and in good faith. 43 In the Trustee's business See Exhibit A (Purchase Agreement at 6). Strong Declaration 17. Buyer s Declaration 7. Id. See id. (keeping sale open for higher and better offers through Feasibility Period and Closing required expense reimbursement). Strong Declaration 18; Nichols Declaration 10; Buyer s Declaration

15 Document Page 15 of 78 judgment, the Section 6.5 Costs are fair and reasonable given the size of the transaction in question and the risks of the Buyer discussed above To the best of the Trustee's knowledge and belief, and based on the representations of the Buyer, there are no circumstances giving rise to claims under 11 U.S.C. 363(n) Accordingly, the Trustee requests that the Court enter an Order granting this Motion, with any Order (a) approving the sale under 11 U.S.C. 363(b) and (m); (b) approving the Section 6.5 Costs in the event that a higher and better offer is accepted; (c) finding that 11 U.S.C. 363(n) does not apply; (d) finding that notice of the Motion has been proper; and (e) authorizing the Trustee to pay taxes and costs of sale from the gross sale proceeds. B. The Sale of the Property Free and Clear of Liens, Claims, Encumbrances and Interests Pursuant to 11 U.S.C. 363(f) Is Warranted interests, if: U.S.C. 363(f) states that a trustee may sell estate property free and clear of (1) applicable non-bankruptcy law permits the sale of such property free and clear of such interest; (2) such entity consents; (3) such interest is a lien and the price at which such property is to be sold is greater than the aggregate value of all liens on such property; (4) such interest is in bona fide dispute; or Strong Declaration 19; see In re ASARCO, LLC, 650 F.3d 593, 597 (5th Cir. 2011) (affirming bankruptcy court s order allowing reimbursement of due diligence expenses in connection with the sale of a substantial asset of the debtor s estate); In re Korea Tech. Indus. Am., Inc., No , 2011 WL at *1 (Bankr. D. Utah Nov. 15, 2011) (approving a Stalking Horse Purchase Agreement ); Strong Declaration 20; Nichols Declaration 11; see Buyer s Declaration

16 Document Page 16 of 78 (5) such entity could be compelled, in a legal or equitable proceeding, to accept a money satisfaction of such interest. 40. Because Section 363(f) is in the disjunctive, the satisfaction of any one of the alternative requirements enumerated therein will warrant the Trustee's proposed sale of the Property free and clear of interests. 41. Pursuant to 5.3(d) of the Purchase Agreement, the Trustee is seeking to sell the Property free and clear of any financial liens, claims and encumbrances, security interests, mortgages, deeds of trust, judgment liens, accrued and unpaid taxes and assessments constituting a lien (or which may lead to the imposition of a lien) that is due and payable as of Closing, and any mechanics' or materialmen's liens that the Trustee has not bonded around pursuant to Tenn. Code Ann , et. seq (collectively defined in the Purchase Agreement as the "Unpermitted Encumbrances"). 42. As set forth in the Preliminary Title Commitment, there are taxes that will be paid from the sale proceeds of the Property at Closing. Other than those interests, the Trustee knows of no other valid Unpermitted Encumbrances on the Property. To the extent any such interests are asserted as being valid, such interests are adequately protected because they will attach to the Net Sale Proceeds Accordingly, the Trustee requests that the Court grant this Motion, including by authorizing the sale of the Property free and clear of the Unpermitted Encumbrances pursuant to 11 U.S.C. 363(f), with any interest that might be asserted in the Property attaching to the Net Sale Proceeds, subject to any claims and defenses that the Trustee, Legacy Trust or Legacy Debtors possess with respect thereto. 46 Strong Declaration

17 Document Page 17 of 78 C. The Trustee's Payment of Real Estate Commissions Is Appropriate 44. The Trustee believes that the employment of Commerce and then Nichols Realty to list and sell the Property was in the best interests of all parties in interest. Nichols Realty's services were an important and necessary component in obtaining the proposed terms for the sale of the Property Nichols Realty has informed the Trustee that it does not have any connection with the Buyer, the Trustee, the United States Trustee, the Debtors, their creditors, or any other party in interest or their respective professionals, which have not been previously disclosed to the Court Thus, the Trustee believes that the payment of sales commission to Nichols Realty pursuant to the terms of the Listing Agreement is appropriate and requests that any Order granting this Motion so provide. D. Waiver of the 14-Day Stay Is Appropriate 47. Under Section 7.2(f) of the Purchase Agreement, the Trustee is required to request a waiver of the 14-day stay set forth in Federal Rule of Bankruptcy Procedure 6004(h). The purpose for this waiver is to allow the Feasibility Period to commence immediately upon entry of the Order. 49 Accordingly, the Trustee submits that cause exists for the waiver of the 14-day stay and requests that any Order granting this Motion so provide Id. 22. Id. 23; Nichols Declaration 12. See Exhibit A (Purchase Agreement, at p. 2 (defining Feasibility Period) & 5). -17-

18 Document Page 18 of 78 CONCLUSION WHEREFORE, the Trustee respectfully requests that the Court enter an Order granting this Motion as set forth herein. DATED this 19th day of March, DORSEY & WHITNEY LLP /s/ Peggy Hunt Peggy Hunt Nathan S. Seim Attorneys for D. Ray Strong, Trustee -18-

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63 Document Page 63 of 78 First American Title Insurance Company COMMITMENT INFORMATION SHEET The Title Insurance Commitment is a legal contract between you and the Company. It is issued to show the basis on which we will issue a Title Insurance Policy to you. The Policy will insure you against certain risks to the land title, subject to the limitations shown in the Policy. The Company will give you a sample of the Policy form, if you ask. The Policy contains an arbitration clause. All arbitrable matters when the Amount of Insurance is $2,000,000 or less shall be arbitrated at the option of either the Company or you as the exclusive remedy of the parties. You may review a copy of the arbitration rules at The Commitment is based on the land title as of the Commitment Date. Any changes in the land title or the transaction may affect the Commitment and the Policy. The Commitment is subject to its Requirements, Exceptions and Conditions. THIS INFORMATION IS NOT PART OF THE TITLE INSURANCE COMMITMENT. YOU SHOULD READ THE COMMITMENT VERY CAREFULLY. If you have any questions about the Commitment, contact: AGREEMENT TO ISSUE POLICY SCHEDULE A First American Title Insurance Company National Commercial Services 2425 E. Camelback Road, Suite 300 Phoenix, AZ or The office which issued this Commitment TABLE OF CONTENTS 1. Commitment Date 2. Policies to be Issued, Amounts and Proposed Insureds 3. Interest in the Land and Owner 4. Description of the Land SCHEDULE B-I -- REQUIREMENTS SCHEDULE B-II -- EXCEPTIONS CONDITIONS

64 Document Page 64 of 78 ALTA Plain Language Commitment (2006) Commitment Page 2 Commitment Number: NCS PHX1 AGREEMENT TO ISSUE POLICY TITLE INSURANCE COMMITMENT BY First American Title Insurance Company We agree to issue a policy to you according to the terms of the Commitment. When we show the policy amount and your name as the proposed insured in Schedule A, this Commitment becomes effective as of the Commitment Date shown in Schedule A. If the Requirements shown in this Commitment have not been met within six (6) months after the Commitment Date, our obligation under this Commitment will end. Also, our obligation under this Commitment will end when the Policy is issued and then our obligation to you will be under the Policy. Our obligation under this Commitment is limited by the following: The Provisions in Schedule A. The Requirements in Schedule B-I. The Exceptions in Schedule B-II. The Conditions. This Commitment is not valid without SCHEDULE A and Sections I and II of SCHEDULE B. First American Title Insurance Company

65 Document Page 65 of 78 ALTA Plain Language Commitment (2006) Commitment Page 3 Commitment Number: NCS PHX1 SCHEDULE A 1. Commitment Date: February 27, 2014 at 8:00 a.m. 2. Policy (or Policies) to be issued: a. ALTA Owners Policy ( ) $TBD Proposed Insured: Walton Tennessee b. ALTA Loan Policy ( ) $None Proposed Insured: None 3. Fee interest in the land described in this Commitment is owned, at the Commitment Date by Castle Arch Smyrna, LLC. 4. The Land referred to in this Commitment is described as follows: See Schedule A attached hereto and made a part hereof First American Title Insurance Company

66 Document Page 66 of 78 ALTA Plain Language Commitment (2006) Commitment Page 4 Commitment Number: NCS PHX1 File No.: NCS PHX1 SCHEDULE A (Continued) LAND IN RUTHERFORD COUNTY, TENNESSEE, DESCRIBED AS FOLLOWS: SIMPSON FARM WEST BEING A CERTAIN TRACT OF LAND LOCATED IN THE FOURTH CIVIL DISTRICT OF RUTHERFORD COUNTY, TENNESSEE. BEING BOUNDED ON THE NORTH BY JEFFREY L. ADCOCK OF RECORD IN RECORD BOOK 562, PAGE 602, LARRY D. & DONNA P. WILSON OF RECORD IN RECORD BOOK 525, PAGE 2136, HOWARD G. BRONS, JR. AND SHEILA M. BRONS OF RECORD IN RECORD BOOK 683, PAGE 2530, AND BY ROY A. JOHNSON AND KARYN JOHNSON TRUSTEE OF RECORD IN RECORD BOOK 444, PAGE 297, ON THE EAST BY CHRISTOPHER COOLEY AND BETTY COOLEY OF RECORD IN RECORD BOOK 689, PAGE 3663, DAVID L. LAWSON OF RECORD IN RECORD BOOK 506, PAGE 359, BANK OF NEW YORK TRUSTEE OF RECORD IN RECORD BOOK 699, PAGE 1463, W. H. EASON JR., ETAL KERRY H. VAUGHAN OF RECORD IN RECORD BOOK 737, PAGE 1354, GEORGE R. WALLS OF RECORD IN RECORD BOOK 162, PAGE 566, STONEWOOD SUBDIVISION, SECTION FOUR (NOT OF RECORD THIS DATE), AMMON SHREIBMAN, TRUSTEE OF RECORD IN RECORD BOOK 678, PAGE 1227, AND BY AUBREY D. SMOTHERMAN AND ANNIE HALE SMOTHERMAN OF RECORD IN RECORD BOOK 402, PAGE 1993, ON THE SOUTH BY INDEPENDENT HILL ROAD (RIGHT-OF-WAY VARIES) AND BY SCOTT BURNETT OF RECORD IN DEED BOOK 627, PAGE 284, ON THE WEST BY LOYD E. RICHARDSON, JR. AND CONNIE RICHARDSON OF RECORD IN RECORD BOOK 277, PAGE 1349, RANDALL RICHARDSON AND DONNA J. RICHARDSON OF RECORD IN RECORD BOOK 498, PAGE 560, FRANCES E. LEE AND MELVIN LOUIS LEE OF RECORD IN WILL BOOK 21, PAGE 633, CHRIS B. HORTON AND HALLIE B. HORTON OF RECORD IN DEED BOOK 28, PAGE 1373, CATHERINE B. SHANNON OF RECORD IN RECORD BOOK 29, PAGE 2732, AND BY CHARLES MASON LEE OF RECORD IN WILL BOOK 18, PAGE 314, ALL OF RECORD IN THE REGISTER'S OFFICE OF RUTHERFORD COUNTY, TENNESSEE, AND BEING MORE PARTICULARLY DESCRIBED BY A METES AND BOUNDS DESCRIPTION; BASED ON A SURVEY PREPARED BY RAGAN SMITH ASSOCIATES, 315 WOODLAND STREET, NASHVILLE, TN, TELEPHONE , KEVIN L. BIRDWELL, RLS#1979, AND PROCEEDING AS FOLLOWS: BEGINNING AT A POINT IN THE NORTHERLY RIGHT-OF-WAY (R.O.W) OF SAID INDEPENDENT HILL ROAD AND BEING A SOUTHEASTERLY CORNER OF THE SUBJECT TRACT; THENCE, WITH THE NORTHERLY (R.O.W.) OF SAID INDEPENDENT HILL ROAD FOR THE NEXT SIX CALLS: 1. NORTH 50 DEGREES 28 MINUTES 06 SECONDS WEST, FEET TO AN IRON ROD (NEW); 2. ALONG A CURVE TO THE LEFT WITH AN INTERIOR ANGLE OF 9 DEGREES 15 MINUTES 06 SECONDS, A RADIUS OF FEET, AN ARC LENGTH OF FEET, AND A CHORD BEARING AND DISTANCE OF NORTH 55 DEGREES 05 MINUTES 39 SECONDS WEST, FEET, TO AN IRON ROD (NEW); 3. NORTH 59 DEGREES 43 MINUTES 12 SECONDS WEST, FEET TO AN IRON ROD (NEW); 4. ALONG A CURVE TO THE RIGHT WITH AN INTERIOR ANGLE OF 12 DEGREES 21 MINUTES 04 SECONDS, A RADIUS OF FEET, AN ARC LENGTH OF FEET, AND A CHORD BEARING AND DISTANCE OF NORTH 53 DEGREES 32 MINUTES 40 SECONDS WEST, FEET, TO AN IRON ROD (NEW); THENCE, 5. NORTH 47 DEGREES 22 MINUTES 08 SECONDS WEST, FEET TO AN IRON ROD (NEW); First American Title Insurance Company

67 Document Page 67 of 78 ALTA Plain Language Commitment (2006) Commitment Page 5 Commitment Number: NCS PHX1 6. ALONG A CURVE TO THE LEFT WITH AN INTERIOR ANGLE OF 00 DEGREES 38 MINUTES 27 SECONDS, A RADIUS OF FEET, AN ARC LENGTH OF FEET, AND A CHORD BEARING AND DISTANCE OF NORTH 47 DEGREES 41 MINUTES 22 SECONDS WEST, FEET, TO AN IRON ROD (NEW); THENCE, LEAVING SAID NORTHERLY (R.O.W.) AND WITH THE CENTERLINE OF THE OLD ABANDONED INDEPENDENT HILL ROAD AND THE NORTHERLY LINE OF SAID BURNETT PROPERTY FOR THE NEXT FOUR CALLS: 1. NORTH 04 DEGREES 58 MINUTES 34 SECONDS EAST FEET TO AN IRON ROD (NEW); 2. NORTH 47 DEGREES 03 MINUTES 14 SECONDS WEST FEET TO AN IRON ROD (NEW); 3. NORTH 52 DEGREES 02 MINUTES 18 SECONDS WEST FEET TO AN IRON ROD (NEW); 4. NORTH 49 DEGREES 07 MINUTES 22 SECONDS WEST FEET TO AN IRON ROD (NEW); SAID IRON ROD BEING THE SOUTHWEST CORNER OF THE SUBJECT TRACT AND THE SOUTHEAST CORNER OF SAID LOYD AND CONNIE RICHARDSON PROPERTY; THENCE, WITH THE EASTERLY LINE OF SAID RICHARDSON PROPERTY, NORTH 43 DEGREES 44 MINUTES 49 SECONDS EAST FEET TO AN IRON ROD (OLD) STAMPED HUDDLESTON STEELE; THENCE, NORTH 06 DEGREES 49 MINUTES 01 SECONDS EAST FEET TO AN IRON ROD (OLD) STAMPED HUDDLESTON STEELE, SAID IRON ROD BEING THE NORTHEAST CORNER OF SAID LOYD AND CONNIE RICHARDSON PROPERTY, AND THE SOUTHEAST CORNER OF SAID RANDALL AND DONNA RICHARDSON PROPERTY; THENCE, WITH THE WESTERLY LINE OF SAID RANDALL AND DONNA RICHARDSON FOR THE NEXT 3 CALLS: 1. NORTH 05 DEGREES 51 MINUTES 45 SECONDS EAST FEET TO AN IRON ROD (OLD) STAMPED HUDDLESTON STEELE; 2. NORTH 05 DEGREES 51 MINUTES 27 SECONDS EAST FEET TO AN IRON ROD (OLD) STAMPED HUDDLESTON STEELE; 3. NORTH 01 DEGREES 53 MINUTES 53 SECONDS EAST FEET TO AN IRON ROD (OLD) STAMPED HUDDLESTON STEELE, SAID IRON ROD BEING THE NORTHEAST CORNER OF SAID RANDALL AND DONNA RICHARDSON'S PROPERTY; THENCE, WITH THE SOUTHERLY LINE OF SAID FRANCES E. LEE AND MELVIN LOUIS LEE PROPERTY, SOUTH 83 DEGREES 47 MINUTES 49 SECONDS EAST FEET TO AN IRON ROD (OLD) STAMPED HUDDLESTON STEELE, SAID IRON ROD BEING THE SOUTHEAST CORNER OF SAID LEE PROPERTY; THENCE, WITH THE EASTERLY LINE OF SAID LEE PROPERTY, NORTH 05 DEGREES 47 MINUTES 10 SECONDS EAST FEET TO AN IRON ROD (OLD) STAMPED HUDDLESTON STEELE, SAID IRON ROD BEING THE NORTHEASTERLY CORNER OF SAID LEE PROPERTY AND A POINT IN THE SOUTHERLY LINE OF SAID HORTON PROPERTY; THENCE, WITH THE BOUNDARY LINE OF SAID HORTON PROPERTY FOR THE NEXT FOUR CALLS: 1. SOUTH 84 DEGREES 16 MINUTES 25 SECONDS EAST FEET TO AN IRON ROD (OLD) STAMPED HUDDLESTON STEELE, SAID IRON ROD BEING A SOUTHEAST CORNER OF SAID HORTON PROPERTY; 2. NORTH 05 DEGREES 45 MINUTES 11 SECONDS EAST FEET TO AN IRON ROD (OLD) STAMPED HUDDLESTON STEELE; First American Title Insurance Company

68 Document Page 68 of 78 ALTA Plain Language Commitment (2006) Commitment Page 6 Commitment Number: NCS PHX1 3. NORTH 81 DEGREES 04 MINUTES 53 SECONDS WEST FEET TO AN IRON ROD STAMPED RLS #1441; 4. NORTH 08 DEGREES 50 MINUTES 37 SECONDS EAST FEET TO AN IRON ROD STAMPED RLS #1441, SAID IRON ROD BEING THE SOUTHEAST CORNER OF SAID SHANNON PROPERTY; THENCE, WITH THE EASTERLY LINE OF SAID SHANNON PROPERTY, NORTH 08 DEGREES 31 MINUTES 25 SECONDS EAST FEET TO AN IRON ROD STAMPED RLS #1441; THENCE, NORTH 08 DEGREES 40 MINUTES 32 SECONDS EAST FEET TO AN IRON ROD STAMPED RLS #1441, SAID IRON ROD BEING THE NORTHEASTERLY CORNER OF SAID SHANNON PROPERTY AND A EASTERLY CORNER OF SAID HORTON PROPERTY; THENCE, WITH THE HORTON PROPERTY LINE FOR THE NEXT FIVE CALLS: 1. NORTH 09 DEGREES 14 MINUTES 08 SECONDS EAST FEET TO AN IRON ROD (OLD) STAMPED RLS #1441; 2. NORTH 08 DEGREES 11 MINUTES 38 SECONDS EAST FEET TO AN IRON ROD (OLD) STAMPED RLS #1441; 3. NORTH 81 DEGREES 18 MINUTES 22 SECONDS WEST FEET TO A 3/8" IRON PIPE; 4. NORTH 81 DEGREES 32 MINUTES 11 SECONDS WEST FEET TO AN IRON ROD (OLD) STAMPED RLS #1441; 5. NORTH 73 DEGREES 24 MINUTES 54 SECONDS WEST FEET TO AN IRON ROD (OLD) STAMPED RLS #669, SAID IRON ROD BEING A NORTHWESTERLY CORNER OF SAID HORTON PROPERTY AND A NORTHEASTERLY CORNER OF SAID CUTLIP PROPERTY, AND THE SOUTHEASTERLY CORNER OF SAID CHARLES MASON LEE PROPERTY; THENCE, WITH THE EASTERLY LINE OF SAID LEE PROPERTY, NORTH 08 DEGREES 28 MINUTES 42 SECONDS EAST FEET TO A ½" IRON ROD (OLD); THENCE, NORTH 09 DEGREES 10 MINUTES 51 SECONDS EAST FEET TO A ½" IRON ROD (OLD), SAID IRON ROD BEING THE SOUTHWESTERLY CORNER OF SAID ADCOCK PROPERTY, AND THE NORTHWESTERLY CORNER OF THE SUBJECT TRACT; THENCE, WITH THE SOUTHERLY LINE OF SAID ADCOCK PROPERTY FOR THE NEXT FOUR CALLS: 1. SOUTH 69 DEGREES 25 MINUTES 50 SECONDS EAST FEET TO A ½" IRON ROD (OLD); 2. SOUTH 69 DEGREES 24 MINUTES 39 SECONDS EAST FEET TO AN IRON ROD STAMPED RLS #1529; 3. SOUTH 69 DEGREES 27 MINUTES 57 SECONDS EAST FEET TO A ½" IRON ROD (OLD); 4. SOUTH 81 DEGREES 38 MINUTES 45 SECONDS EAST FEET TO A ½" BENT IRON ROD (OLD), SAID IRON ROD BEING THE SOUTHEAST CORNER OF SAID ADCOCK PROPERTY AND THE SOUTHWEST CORNER OF SAID WILSON PROPERTY; THENCE, WITH THE SOUTHERLY LINE OF SAID WILSON PROPERTY SOUTH 82 DEGREES 27 MINUTES 03 SECONDS EAST FEET TO AN IRON ROD (OLD) STAMPED RLS #669, SAID IRON ROD BEING THE SOUTHEASTERLY CORNER OF A RIGHT-OF-WAY EASEMENT OF RECORD IN RECORD BOOK 375, PAGE 23; THENCE, SOUTH 82 DEGREES 21 MINUTES 16 SECONDS EAST FEET TO A 5/8" IRON ROD (OLD), SAID First American Title Insurance Company

69 Document Page 69 of 78 ALTA Plain Language Commitment (2006) Commitment Page 7 Commitment Number: NCS PHX1 IRON ROD BEING THE SOUTHEAST CORNER OF SAID WILSON PROPERTY AND THE SOUTHWEST CORNER OF SAID BRONS PROPERTY; THENCE, WITH THE SOUTHERLY LINE OF SAID BRONS PROPERTY FOR THE NEXT THREE CALLS: 1. SOUTH 80 DEGREES 11 MINUTES 32 SECONDS EAST FEET TO A ½" IRON ROD (OLD); 2. SOUTH 85 DEGREES 01 MINUTES 57 SECONDS EAST FEET TO A 3/8" IRON PIPE; 3. SOUTH 84 DEGREES 20 MINUTES 34 SECONDS EAST FEET TO A ½" IRON ROD (OLD), SAID IRON ROD BEING THE SOUTHEAST CORNER OF SAID BRONS PROPERTY, AND THE SOUTHWEST CORNER OF SAID JOHNSON PROPERTY; THENCE, WITH THE SOUTHERLY LINE OF SAID JOHNSON PROPERTY, SOUTH 84 DEGREES 42 MINUTES 08 SECONDS EAST FEET TO A ½" IRON ROD (OLD), SAID IRON ROD BEING THE SOUTHEAST CORNER OF SAID BRONS PROPERTY AND LYING IN THE WESTERLY LINE OF SAID COOLEY PROPERTY; THENCE, WITH THE WESTERLY LINE OF SAID COOLEY PROPERTY, SOUTH 58 DEGREES 47 MINUTES 54 SECONDS EAST FEET TO A 3/8" IRON PIPE; THENCE, SOUTH 07 DEGREES 10 MINUTES 12 SECONDS WEST FEET TO AN IRON ROD (OLD) STAMPED RLS #1551, SAID IRON ROD BEING THE SOUTHWESTERLY CORNER OF SAID COOLEY PROPERTY AND THE NORTHWESTERLY CORNER OF SAID LAWSON PROPERTY; THENCE, WITH THE WESTERLY LINE OF SAID LAWSON PROPERTY, SOUTH 05 DEGREES 44 MINUTES 38 SECONDS WEST FEET TO AN IRON ROD (OLD) STAMPED RLS #1551, SAID IRON ROD BEING THE SOUTHWESTERLY CORNER OF SAID LAWSON PROPERTY; THENCE, WITH THE SOUTHERLY LINE OF SAID LAWSON PROPERTY, SOUTH 81 DEGREES 21 MINUTES 18 SECONDS EAST FEET TO AN IRON ROD (OLD) STAMPED DOYLE-ELKINS SAID IRON ROD BEING THE NORTHWESTERLY CORNER OF SAID BANK OF NEW YORK PROPERTY; THENCE, WITH THE WESTERLY LINE OF SAID BANK OF NEW YORK PROPERTY, SOUTH 08 DEGREES 39 MINUTES 01 SECONDS WEST FEET TO A ½" IRON ROD (OLD), SAID IRON ROD BEING THE SOUTHWEST CORNER OF SAID BANK PROPERTY AND NORTHWEST CORNER OF SAID VAUGHAN PROPERTY; THENCE, WITH THE WESTERLY LINE OF SAID VAUGHAN PROPERTY, SOUTH 09 DEGREES 37 MINUTES 26 SECONDS WEST FEET TO A ½" IRON ROD (OLD), SAID IRON ROD BEING THE SOUTHWESTERLY CORNER OF SAID VAUGHAN PROPERTY AND THE NORTHWEST CORNER OF SAID WALLS PROPERTY; THENCE, WITH THE WESTERLY LINE OF SAID WALLS PROPERTY, SOUTH 07 DEGREES 40 MINUTES 55 SECONDS WEST FEET TO AN IRON ROD (OLD) STAMPED HUDDLESTON-STEELE; THENCE, SOUTH 09 DEGREES 05 MINUTES 29 SECONDS WEST FEET TO AN IRON ROD (OLD) STAMPED HUDDLESTON-STEELE; THENCE, SOUTH 08 DEGREES 50 MINUTES 58 SECONDS WEST FEET SAID IRON ROD BEING THE SOUTHWEST CORNER OF SAID WALLS PROPERTY AND THE NORTHWEST CORNER OF SAID STONEWOOD SUBDIVISION; THENCE, WITH THE WESTERLY LINE OF SAID STONEWOOD SUBDIVISION, SOUTH 10 DEGREES 39 MINUTES 43 SECONDS WEST FEET TO AN IRON ROD (NEW), SAID IRON ROD BEING THE SOUTHWEST CORNER OF SAID STONEWOOD SUBDIVISION, AND THE NORTHWEST CORNER OF SAID SHREIBMAN PROPERTY; THENCE, First American Title Insurance Company

70 Document Page 70 of 78 ALTA Plain Language Commitment (2006) Commitment Page 8 Commitment Number: NCS PHX1 WITH THE WESTERLY LINE OF SAID SHREIBMAN PROPERTY FOR THE NEXT SIX CALLS: 1. SOUTH 10 DEGREES 13 MINUTES 39 SECONDS WEST FEET TO AN IRON ROD (NEW); 2. SOUTH 10 DEGREES 08 MINUTES 31 SECONDS WEST FEET TO AN IRON ROD (NEW); 3. SOUTH 09 DEGREES 52 MINUTES 22 SECONDS WEST FEET TO AN IRON ROD (NEW); 4. SOUTH 09 DEGREES 53 MINUTES 22 SECONDS WEST FEET TO AN IRON ROD (NEW); 5. SOUTH 09 DEGREES 03 MINUTES 58 SECONDS WEST FEET TO AN IRON ROD (NEW); 6. SOUTH 09 DEGREES 04 MINUTES 11 SECONDS WEST FEET TO AN IRON ROD (NEW); THENCE, LEAVING SAID SHREIBMAN PROPERTY AND ALONG THE SMOTHERMAN PROPERTY FOR THE NEXT TEN CALLS: 1. NORTH 83 DEGREES 11 MINUTES 39 SECONDS WEST FEET TO AN IRON ROD (OLD) STAMPED HUDDLESTON-STEELE; 2. NORTH 49 DEGREES 47 MINUTES 40 SECONDS WEST FEET TO AN IRON ROD (OLD) STAMPED HUDDLESTON-STEELE; 3. NORTH 46 DEGREES 20 MINUTES 56 SECONDS WEST FEET TO AN IRON ROD (OLD) STAMPED HUDDLESTON-STEELE; 4. NORTH 07 DEGREES 01 MINUTES 52 SECONDS EAST FEET TO AN IRON ROD (OLD) STAMPED HUDDLESTON-STEELE; 5. NORTH 09 DEGREES 11 MINUTES 57 SECONDS EAST FEET TO AN IRON ROD (OLD) STAMPED HUDDLESTON-STEELE; 6. NORTH 07 DEGREES 00 MINUTES 34 SECONDS EAST FEET TO AN IRON ROD (OLD) STAMPED HUDDLESTON-STEELE; 7. NORTH 80 DEGREES 05 MINUTES 27 SECONDS WEST FEET TO AN IRON ROD (OLD) STAMPED HUDDLESTON-STEELE; 8. SOUTH 06 DEGREES 44 MINUTES 08 SECONDS WEST FEET TO AN IRON ROD (OLD) STAMPED HUDDLESTON-STEELE; 9. SOUTH 06 DEGREES 20 MINUTES 25 SECONDS WEST FEET TO AN IRON ROD (OLD) STAMPED HUDDLESTON-STEELE; 10. SOUTH 09 DEGREES 11 MINUTES 17 SECONDS WEST FEET TO THE POINT OF BEGINNING, AND CONTAINS AN AREA OF 21,086,889 SQUARE FEET, OR ACRES MORE OR LESS AS CALCULATED BY THE ABOVE COURSES AND DISTANCES. BEING THE SAME PROPERTY CONVEYED TO CASTLE ARCH SMYRNA, LLC BY DEED OF RECORD IN RECORD BOOK 775, PAGE 1105 AND BY QUITCLAIM DEED OF RECORD IN RECORD BOOK 775, PAGE 1109, REGISTER'S OFFICE FOR RUTHERFORD COUNTY, TENNESSEE. First American Title Insurance Company

71 Document Page 71 of 78 ALTA Plain Language Commitment (2006) Commitment Page 9 Commitment Number: NCS PHX1 File No.: NCS PHX1 SCHEDULE B - SECTION I REQUIREMENTS The following requirements must be met: 1. Pay the agreed amounts for the interest in the Land and/or mortgage to be Insured. 2. Pay us the premiums, fees and charges for the policy. 3. Pay all taxes and/or assessments, levied and assessed against the land, which are due and payable. 4. You must tell us in writing the name of anyone not referred to in this commitment who will get an interest in the Land or who will make a loan on the Land. We may then make additional requirements or exceptions. 5. Documents satisfactory to us creating the interest in the Land and/or the Mortgage to be insured must be signed, delivered and recorded. a. Record a Deed from Castle Arch Smyrna, LLC to Walton Tennessee. 6. Provide the Company with evidence of compliance with Order Appointing a Receiver, as well as any other Order of the Court in the case styled The Hunt Law Corporation, P.C., a dba of David S. Hunt, P.C. v. Castle Arch Real Estate Investment Company, L.L.C., in the Second Judicial District Court, Davis County, Utah, Civil No , a copy of said Order being of record in Record Book 1082, Page 1860, Register's Office for Rutherford County, Tennessee. 7. Payment in full of all past due or currently due taxes and assessments. (Map & Parcel No : 2013 Rutherford County Taxes are DUE in the amount of $13,664.00, becoming Delinquent March 1, 2014; 2012 Rutherford County Taxes are DELNIQUENT in the amount of $15,495.00, plus penalty & interest; 2011 Rutherford County Taxes are DELINQUENT in the amount of $17,858.00, plus penalty & interest, and any fees; 2010 Rutherford County Taxes are DELINQUENT in the amount of $20,222.00, plus penalty & interest, and any fees.) 8. Submit to the Company documentary evidence issued by the appropriate office in its state of domicile that Castle Arch Smyrna, LLC is a duly registered legal entity in good standing. 9. Submit to First American Title Insurance Company, a certified copy of the Operating Agreement and all amendments thereto, if any, of Castle Arch Smyrna, LLC, Seller. This commitment is subject to further requirements as the Company may deem necessary, including satisfactory evidence that all requirements regarding conveying or mortgaging property have complied with the Articles of Organization as contained therein. First American Title Insurance Company