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ECP Commercial I LLC v. Boaz Shopping Center LLC

United States District Court, D. Colorado

February 19, 2016

ECP COMMERCIAL I LLC, Plaintiff,
v.
BOAZ SHOPPING CENTER LLC, et al., Defendants.

BR4DLEY ARANT BOULT CUMMINGS LLP By Austin L. McMullen LEITESS FRIEDBERG PC Jeremy S. Friedberg OF COUNSEL Counsel for Plaintiff

GLANKLER BROWN, PLLC By Michael P. Coury Counsel for Defendants

AGREED ORDER APPOINTING RECEIVER

S. THOMAS ANDERSON UNITED STATES DISTRICT JUDGE

THIS MATTER is before the Court on the Second Amended Complaint for Foreclosure, Appointment of a Receiver, and Injunctive Relief (the "Complaint") and accompanying Motion to Reappoint Receiver (the "Motion") filed by the plaintiff, ECP Commercial I LLC ("ECP"). It appears that due and sufficient notice of the Complaint and Motion have been given to all Defendants. Having read and considered the Complaint and the Motion, the arguments and statements of counsel having been presented and considered, and it appearing that venue and jurisdiction are proper in this Court and the relief requested is necessary to prevent irreparable harm and injury to ECP's rights and the Mortgaged Properties (defined below), and the rents and profits therefrom, as to which ECP has no adequate remedy at law, the Court hereby makes the following findings of fact and conclusions of law:

Findings of Fact

A. The proposed receivership is a receivership of the Mortgaged Properties (as defined below).

B. The proposed receiver, George E. Shoup, HI, ("Shoup") an employee of Development Specialists, Inc. ("DSI"), is experienced in the arenas of distressed property, business management and sales. Both Shoup and DSI, who Shoup intends to retain as a financial consultant in this matter, have no interests or connections with any Defendant.

Conclusions of Law

(i) The Court has jurisdiction over this matter and venue is proper, pursuant to 28 U.S.C. § 1332 and 28 U.S.C. § 1391.

(ii) ECP has no adequate remedy at law to prevent potential irreparable harm and injury to its rights under the Loan Documents and with respect to the Mortgaged Properties (as defined in the Motion), and therefore, ECP is entitled to the relief requested in the Complaint and the Motion as hereinafter provided.

(iii) Adequate notice of the Motion and the relief requested by ECP has been given to all Defendants.

IT IS ACCORDINGLY HEREBY ORDERED, ADJUDGED, AND DECREED as follows:

1. The Motion is hereby GRANTED, as provided herein.

2. George E. Shoup, III be, and hereby is, appointed, with bond in the amount of $10, 000, to serve as receiver (in that office and capacity, the "Receiver") for the Mortgaged Properties and for all of the Receivership Assets (as defined below), all of which will form a part of the estate that is in receivership (the "Receivership Estate"), such appointment to become effective upon the filing of an Oath of Receiver with this Court (the "Effective Date"). As used herein, the term "Receivership Assets" shall be construed broadly to include the Mortgaged Properties, whether real or personal, tangible or intangible and wherever located, including, without limitation, all rents and profits of the Mortgaged Properties and all of the types and items of property described in paragraph 3 below. Except as otherwise provided herein with respect to actions that may be taken by ECP, the Receiver shall be exclusively authorized to manage the Receivership Estate and to possess, manage and safeguard the Mortgaged Properties and no other person or entity claiming to have an interest in the Receivership Assets, shall have any authority or control over or with respect to the Receivership Estate or any of the Receivership Assets.

3. Subject only to the rights and liens of ECP, the Receiver shall have all powers and rights to administer and manage the Receivership Estate and to assume custody and control over certain Receivership Assets, including, but not limited to, the following property, whether or not such property constitutes Mortgaged Properties:

a. all of the Shopping Center Defendants' interests as landlord under any lease of premises or any other place at which any Receivership Assets are located (but neither the Receiver nor the Receivership Estate shall be deemed to have assumed any of the obligations under any lease with any other person, but the use and occupancy of any such premises shall be conditioned upon the Receiver receiving rent accruing hereafter in respect of any premises that are used for purposes beneficial to the Receivership Estate) and the Shopping Center Defendants' interest in any leasehold improvements on any leased premises (all such business premises and improvements being collectively referred to as the "Facilities");
b. all items of machinery or equipment owned by the Shopping Center Defendants, wherever located, or used by the Shopping Center Defendants and located in, on of about the Facilities, including, without limitation, all computer equipment, office equipment and supplies (collectively, the "Equipment");
c. all accounts receivable, promissory notes, payment intangibles, chattel paper, instruments and other rights of the Shopping Center Defendants to the payment of money in connection with the operation and management of the Mortgaged Properties (collectively, the "Accounts"");
d. all deposit accounts of the Shopping Center Defendants relating to the operation and management of the Mortgaged Properties (collectively, the "Deposit Accounts"), including, without limitation, all checking accounts, savings accounts, payroll accounts, payroll tax accounts, petty cash accounts, and escrow accounts;
e. all business records of the Shopping Center Defendants relating to the operation and management of the Mortgaged Properties, in whatever form or media maintained (collectively, the "Records"), including, but not limited to, all documents evidencing ownership of any Receivership Assets (including bills of sale and certificates of title), books of accounts, financial statements, balance sheets, ledgers, expense statements, logs, maintenance and servicing records, journals, reports, and other documents relating to the past or future use, operation or maintenance of any Receivership Assets;
f. all of the Shopping Center Defendants' investment property relating to the operation and management of the Mortgaged Properties, including, without limitation, stocks, bonds, and other securities; g. all insurance ...

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