10.1 Lien. If any Owner shall fail or refuse to make any payment of any indebtedness incurred by such Owner to Declarant or to the Association as set out in this Declaration, when due, the amount thereof together with interest thereon at the lesser of the rate of ten percent (10%) per annum or the maximum interest rate then permitted under the laws of the State of Tennessee (the "Lien Indebtedness"), after such indebtedness becomes due and payable, shall constitute a lien on the Lot of such defaulting Owner, such Lien being granted, conveyed and created hereby.
10.2 Enforcement of Lien. FOR AND IN CONSIDERATION of the privileges, protections, mutual enjoyment and use of the Common Area and the premises contained herein, and for other good and valuable consideration, and One Dollar paid in cash, the receipt and adequacy of which are hereby acknowledged, and any assumption of the obligations by transferees as required hereunder, and to secure the payment of Lien Indebtedness, principal, interest and attorney fees, a lien is expressly retained by the Declarant on each and every Lot for the benefit of all other Lot Owners, the Association, the Declarant, their successors and assigns.
Further, for the purposes of securing the payment of the Lien Indebtedness and rendering unnecessary court proceedings for the enforcement of said lien in the event of the non-payment of the Lien Indebtedness as they become due, the Owners, their heirs, administrators and assigns ("Trustors"), hereby transfer and convey and by becoming an Owner subject to this Declaration do thereby transfer and convey unto Robert Jones and Robert Pinstein, both residents of Shelby County, Tennessee, as Trustees ("Trustees"), their successors and assigns, all Lots and each and every Lot with the appurtenances, estate, title and interest thereto for the following uses and trusts:
Upon failure of a Trustor to make timely payment of the Lien Indebtedness, then the Trustee, or his successor in trust, is hereby authorized and empowered, upon giving twenty (20) days' notice by three publications in any newspaper published daily or weekly in Shelby County, Tennessee, to enforce the lien and sell the Lot at any door of the Courthouse in said county to the highest bidder for cash at public outcry, free from the equity of redemption, statutory right of redemption, homestead, dower and all other exemptions of every kind, which are hereby expressly waived, and the Trustee, or his successor in trust, is authorized and empowered to execute and deliver a valid deed to the purchaser of such Lot. The Trustor may bid at any sale under this trust conveyance. The Trustee may, at any time after default in the payment of the Lien Indebtedness, enter and take possession of the Lot and shall only be liable to account for the net rents actually received by him, if any. It is further agreed that, in the event the Trustee fails, before selling the Lot, as herein provided, to enter and take possession thereof, the purchaser of the Lot shall nonetheless be entitled to immediate possession thereof upon delivery to him by the Trustee of a deed for said Lot. In the case of sale hereunder, the proceeds will be applied by the Trustee in the following order:
(1) To the payment of all costs, charges and expenses of executing this trust and conveyance and enforcing said lien as herein provided, including, but not limited to, reasonable attorney's fees for advice in the premises, or for instituting or defending any litigation which may arise on account of this conveyance, or the enforcement of said lien.
(2) To the payment of all real property taxes which may be unpaid.
(3) To the payment of all liens and Mortgages senior to the lien established herein.
(4) To the payment of all unpaid Lien Indebtedness and any and all sums expended in the protection of the Lot and the Improvements thereon.
(5) The residue, if any, will be paid to the foreclosed Trustor, representatives or assigns. In the case of death, absence, resignation, inability or refusal to act of a Trustee at any time when action under the foregoing power and trusts may be required or for any other reason, the Declarant or his successors or assigns is hereby authorized and empowered to name and appoint a successor to execute this trust by an instrument in writing to be recorded in the Register's Office of Shelby County, Tennessee, and the title herein conveyed to the above named Trustees shall be vested in either of them and such successor. The word "Trustor" when used herein shall apply to parties both singular and plural, as the context may require.
10.3 Lien Subordinate to Mortgage. All liens herein established, including but not limited to, the lien for Lien Indebtedness payable by an Owner, shall be subordinate to the lien of a recorded first Mortgage on the interest of such Owner. This Article 10.3 shall not be amended, changed, modified or rescinded without the prior written consent of all beneficiaries who are at the time owners of first Mortgages.
10.4 Multiple Trustees. Either of the Trustees herein named shall have the full power to act when action hereunder is required and the term "Trustee" shall be construed to mean "Trustees". In the event that the substitution of a Trustee shall become necessary or advisable for any reason, the substitution of one trustee in the place of the two named herein shall be sufficient.
10.5 Notice. Nothing herein contained shall be construed to require any Trustee or beneficiary of the trust to enforce the lien herein established either by sale or otherwise. In addition to all other remedies available to the Trustees, Declarant or the Association, any one of them may file a written notice of the lien created hereunder in the Register's Office of Shelby County, Tennessee after failure of any Lot Owner to make a timely payment required by this Declaration and/or the Association. Such filing shall provide constructive notice of the existence of the lien and shall establish thereby a priority over those liens filed after the filing date of this Declaration when so permitted by applicable law, except as otherwise stated in Section 10.3 hereof. Any notice of lien so filed shall be effective if it substantially states the following: a) that a lien exists in favor of the claimant, b) the amount of the lien, c) the legal description of the real property subjected to the lien and d) the record owner of such property.