ECP Commercial I LLC v. Boaz Shopping Center LLC et al

Filing 1

Agreed ORDER Appointing Receiver. $46.00; Receipt Number 073196. by Thomas Anderson, United States District Judge, Western District of Tennessee on 2/19/2016. (Attachments: # 1 Exhibit 1 Part 1, # 2 Exhibit 1 Part 2, # 3 Exhibit 1 Part 3, # 4 Exhibit 1 Part 4, # 5 Exhibit 1 Part 5, # 6 Exhibit 1 Part 6, # 7 Exhibit 2) (dbera, )

EXHIBIT 2
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

FILED
UNITED STATES DISTRICT COURT
DENVER, COLORADO
1:06 pm, Feb 24, 2016

JEFFREY P. COLWELL, CLERK

ECP COMMERCIAL I LLC,

16-MC-00038

Plaintiff,
V.

CASE NO.: l5-cv-O2247-STA-cc

BOAZ SHOPPING CENTER LLC, et a!.,
Defendants.

AGREED ORDER APPOINTING RECEIVER
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:

CERTIFIED TRUE COPY
ASM

Findin2s of Fact
A.

The proposed receivership is a receivership of the Mortgaged Properties (as

defined below).
B.

The proposed receiver, George E. Shoup, III, ("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.

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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 "Receivershi p 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

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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 or 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

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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 policies relating to the operation of the Mortgaged

Properties;
h.

all of the Shopping Center Defendants' permits, licenses, registrations and

certificates (including, without limitation, certificates of registration and re-registration
relating to any aircraft) that were issued by governmental authorities or are necessary for
the ownership or use of any of the Receivership Assets or the operation of any of the
business of the Shopping Center Defendants, and the Receiver shall be entitled to operate
and to all of the other benefits and privileges arising under all of such permits, licenses,
registrations and certificates;
i.

all of the Shopping Center Defendants' general intangibles, customer lists,

and rights under contracts relating to the operation and management of the Mortgaged
Properties;
j.

all causes of action, claims, rights in respect of pending or potential

litigation and arbitration proceedings, and judgments owned by or in favor of the

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Shopping Center Defendants relating to the operation and management of the Mortgaged
Properties;
k.

all patents, trademarks, copyrights and other intellectual property of

Defendants relating to the operation and management of the Mortgaged Properties;
1.

all of the Shopping Center Defendants' rent deposits, security deposits and

other refundable deposits of money or other property, as well as all of the Shopping
Center Defendants' rights to receive rent and storage fees and claims against others for
unpaid rent or storage fees;
m.

all tax refund claims of the Shopping Center Defendants, whether now in

existence or hereafter arising, relating to the operation and management of the Mortgaged
Properties; and
n.

all rents, income, monies, fees, revenues, proceeds, and profits now

existing or hereafter generated from the collection, sale or other disposition of any of the
Mortgaged Properties (collectively, the "Revenues").
4.

Except as otherwise expressly restricted in this Order, the Receiver shall have and

possess all powers, privileges and prerogatives ordinarily provided to receivers under law. In
addition, and without limiting the generality of the foregoing, but subject to paragraph 6 below,
the Receiver is hereby authorized and empowered to:
a.

take immediate possession of, hold and secure all Receivership Assets;

b.

manage, control, operate and maintain the Receivership Estate;

c.

receive, collect, sue for, settle or compromise all Accounts, Revenues and

other Receivership Assets;

S

d.

make such ordinary and necessary payments, distributions, and

disbursements as the Receiver deems advisable or proper for the marshaling, maintenance
or preservation of the Receivership Assets;
e.

negotiate with any creditors and contract counterparties of the Shopping

Center Defendants for the purpose of compromising or settling any claim, including,
without limitation, the surrender of assets to secured creditors;
f.

renew, cancel, terminate, or otherwise adjust any current or pending lease

agreements to which the Shopping Center Defendants are a party;
g.

institute, defend, compromise or adjust such actions or proceedings in

state or federal courts now pending and hereafter instituted, as the Receiver in his
discretion may deem to be advisable for the protection and administration of the
Receivership Estate;
h.

institute actions, suits or other proceedings to obtain possession or custody

of or control over any Receivership Assets, to pursue causes of action held by the
Shopping Center Defendants, and to collect any amounts owed to the Shopping Center
Defendants, including, but not limited to, accounts receivable, whether any such suits or
proceedings are instituted in this Court or any other court or tribunal having competent
jurisdiction, to the extent that the Receiver determines that such actions will preserve or
maximize the value of the estate;
i.

execute any necessary documents to allow the Receiver to take possession

of and control of, and to draw checks on, any Deposit Accounts and to open bank
accounts or other depository accounts, in the name of the Receiver on behalf of the

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Receivership Estate, provided that the Receiver shall provide ECP with at least five (5)
business days prior notice before opening any new bank or other depository account;
j.

issue subpoenas as the Receiver deems necessary to determine any and all

parties asserting any rights to the Mortgaged Properties or the Receivership Estate,
without the necessity of compliance with any rule or provision of law that would impose
any limitations on the Receiver's ability to issue such subpoenas;
k.

prepare tax returns and related documents regarding the assets and

operation of the Receivership Estate;
1.

file such reports and documents with federal, state and local officials as

are required or are deemed by the Receiver to be necessary or appropriate in connection
with the operation of the Shopping Center Defendants' business;
m.

following at least five (5) business days' prior notice to the Shopping

Center Defendants, abandon any Receivership Assets that, in the exercise of the
Receiver's business judgment, are burdensome to the Receivership Estate;
n.

The Receiver is hereby authorized to employ Harris P. Quinn and

Prochaska Quinn & Ferraro, P. C. as his counsel and attorneys, engage other attorneys,
accountants, appraisers, brokers, auctioneers, environmental experts, and other
consultants and experts (collectively, the "Professionals"), on terms acceptable to ECP, to
assist the Receiver in the performance and discharge of her rights, powers, and duties
hereunder and pay such Professionals reasonable retainers and their fees and expenses as
such become due and payable; provided, however, that prior to any such payment by the
Receiver to a Professional, the Receiver shall provide copies of the Professional's

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invoices to ECP, who shall have a period of ten (10) business days after receipt of an
invoice within which to send a written objection to payment to the Receiver, and if an
objection is timely made by ECP, the fees and expenses that are subject to the objection
shall not be paid except upon the subsequent written consent of ECP or further order of
this Court;
o.

subject only to the requirements and limitations in this or future Orders of

this Court, sell, lease or otherwise dispose of any of the Receivership Assets in or outside
of the ordinary course of business, as a going concern or as part of an orderly liquidation,
or in such public auctions or private sales as the Receiver may deem appropriate; and
execute and deliver such bills of sale and other related documents in order to transfer all
of the Shopping Center Defendants' right, title, and interest in and to any of the
Receivership Estate to any purchaser thereof
p.

pay from the Revenues (to the extent agreed by ECP or otherwise ordered

by this Court) or Protective Advances (defined below) the expenses of the Receivership
Estate, including Professional Fees (defined below), and the costs of entering into any
new lease agreements deemed to increase the value of the Receivership Estate by the
Receiver, including, without limitation, expenses for rent, utilities (gas, electric and
water), supplies, wages and salaries, taxes (payroll, sales and personal property ad
valorem), tenant improvements, capital expenses and ordinary and necessary repairs and
maintenance to any of the Receivership Estate;
q.

approve all existing and prospective subcontractors, vendors, suppliers,

distributors, customers, licensors, licensees, landlords, tenants and subtenants of the

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Shopping Center Defendants, including, without limitation, by way of approving leases,
licenses, and other agreements and any amendments, renewals, extensions, modifications,
or waivers of any leases, licenses, or other agreements between the Shopping Center
Defendants and any existing or prospective subcontractors, vendors, suppliers,
distributors, customers, licensors, licensees, landlords, tenants and subtenants of the
Shopping Center Defendants, with any disputes related to such dealings to be subject to
the jurisdiction of the Court;
r.

receive, open, read, and respond to all mail addressed to the Shopping

Center Defendants; provided that if the Receiver receives and reviews communications to
the Shopping Center Defendants that are marked confidential, attorney-client privileged
or similarly restricted, he shall maintain the confidentiality of such communications and
neither his receipt nor his review of any such communications shall be deemed a waiver
of any attorney-client privilege or similar protection that otherwise applies;
s.

provide a written statement each month (for the prior month) of cash

receipts and cash disbursements to the Shopping Center Defendants and ECP as well as
any other reports and budgets reasonably requested by ECP or required by the Court;
t.

request and receive from the Shopping Center Defendants' outside

accountants and auditors (collectively, the "Auditors") all records and information
relating to the Shopping Center Defendants' financial performance and condition in 2011,
2012, 2013 and 2014 for the purpose of, among other things, filing amended tax returns
for Defendants and seeking any tax refund to which the Shopping Center Defendants may
be entitled (and such Auditors are hereby authorized and directed to turn over all such

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records and information to the Receiver) and provide the Shopping Center Defendants
with copies of any amended returns;
u.

communicate and negotiate with any regulatory or other authority

regarding the operation of the Receivership Estate or the issuance or renewal of any
permits, licenses, certificates or registrations in connection therewith; and
v.

take such other action as may be approved by this Court following prior

notice to ECP and Defendants.
In addition to the powers and instructions set forth hereinabove, the Receiver shall have all of the
powers of a receiver that are authorized by law and all other powers necessary or proper to
preserve and manage the Receivership Estate, including, without limitation, the Mortgaged
Properties, and to perform obligations and exercise rights and remedies under existing
agreements between or among Defendants and any third parties.
5.

The Receiver is authorized to take any and all actions not specifically enumerated

herein which are necessary and proper to properly and adequately sell, lease, license, encumber,
collect, compromise, or otherwise dispose of or use the proceeds of all or any part of the
Mortgaged Properties. Notwithstanding anything to the contrary in this Order, the Receiver shall
not be authorized to sell, lease, license, encumber, collect, compromise or otherwise dispose of,
or use the proceeds of, any part of the Mortgaged Properties without (i) the prior express consent
of ECP, which consent may be given or withheld in ECP's sole and absolute discretion and may,
if so elected by ECP, be conditioned upon ECFs agreement as to the timing, method, manner
and terms of any sale, lease, encumbrance, compromise or other disposition of any Mortgaged
Properties, or (ii) an Order from this Court after notice to all creditors with an opportunity to be

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heard pursuant to applicable law; and the Receiver shall in all events promptly account for and
turn over to ECP, for application to the Obligations, all cash and non-cash proceeds received in
connection with any sale, lease, collection or other disposition of any Mortgaged Properties.
The Receiver shall, upon the entry of judgment in mortgage foreclosure, be authorized to expose
the Mortgaged Properties to public foreclosure sales pursuant to 28 U.S.C. § 2001, et seq., and
shall thereafter pass title to the Property to the successful bidder.
6.

Except with respect to lockboxes and other payment addresses in the control of

ECP to which account debtors of the Shopping Center Defendants make payments in respect of
Accounts, the Receiver is hereby authorized to notify the United States Postal Service to forward
any mail addressed to the Shopping Center Defendants who are owners of any Mortgaged
Property to any Post Office box or other mail depository. Further, the Receiver is authorized to
open and inspect all such mail (subject to the same limitations noted in Paragraph 4(r) above), to
determine the location or identity of assets or the existence and amount of claims.
7.

The Receiver shall be authorized to request and receive from ECP from time to

time advances of funds (collectively, "Protective Advances") that are necessary for the
Receiver's operation of the Shopping Center Defendants' business or the management,
maintenance, marketing, sale, safeguarding, insurance, operation, increasing the value or repair
of the Mortgaged Properties or other Receivership Assets, including, without limitation, payroll
and payroll taxes, premiums for insurance, tenant improvements and amounts needed to make
necessary and essential repairs to the Facilities, all of which Protective Advances by ECP shall
be deemed an Advance under (and as defined in) the Loan Agreement to protect and preserve the
Mortgaged Properties, shall form a part of the Obligations, and shall be secured by all and in the

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priority of the liens and security interests granted or conveyed by the Shopping Center
Defendants to or in favor of ECP. All Protective Advances may be made by ECP at such times
and in such amounts as ECP may elect in its sole and absolute discretion. If ECP elects to
discontinue making Protective Advances, ECP shall provide at least five (5) business days' prior
written notice of such election to the Receiver (a "Fundin g Termination Notice"), and, if such
notice is given, ECP shall fund one final Protective Advance to the Receiver in an amount
sufficient to permit the Receiver to pay budgeted expenses and accounts payable with regard to
the Receivership Assets which are incurred in the normal and ordinary course of business of the
Receivership Assets and which are incurred by the Receiver on or after the Receiver's taking
possession of the Receivership Assets, including accrued unpaid expenses, all unpaid wages,
salary, payroll and payroll taxes attributable to time actually worked (excluding any severance,
bonus or other extraordinary items), sales, use, and excise taxes and Professional Fees until the
Receiver is released from his fiduciary obligations by this Court, in each case to the extent
accrued through and including the date that ECP delivers such written notice of termination of
funding to the Receiver. The Receiver shall provide prompt written notice to ECP of any
payroll, payroll taxes, sales, use and excise taxes owed by the Receivership Estate that have not
been (prior to entry of this Order) or are not (after entry of this Order) paid as and when due. If
ECP elects to send a Funding Termination Notice, then ECP shall file such notice with the Court,
together with a motion seeking to terminate the receivership established pursuant to this Order;
and at the hearing on any such motion, the Court may consider and determine the extent (if any)
to which Protective Advances from ECP may be required to be made available to the Receiver in
order to permit the Receiver to pay (i) unpaid actual expenses that were approved and incurred

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by the Receiver after his appointment through the effective date of the Funding Termination
Notice which may be disputed by ECP and (ii) a reasonable estimate of fees and expenses of the
Receiver and his Professionals for services to be rendered after the effective date of the Funding
Termination Notice in connection with winding up the receivership.
8.

Receiver's compensation and the compensation owed to Development Specialists,

Inc., financial consultant to the Receiver, and any other professional retained by the Receiver
including but not limited to counsel, accountants, property managers and/or other retained
professionals (collectively "Professionals' Fees"), shall be paid monthly according to the hourly
fees and other terms and conditions as more fully set forth on Exhibit 2 attached to the Motion
and incorporated by reference ("Retention Letter"). Pursuant to the terms of the Retention Letter,
ECP shall be obligated to advance sums for the payment of Professional Fees, including the
holdbacks (upon Court approval) referred to in the Retention Letters.
9.

Professional Fees shall be paid first from income; if any; second, from any

proceeds from the disposition of Receivership Property; and third, from sums advanced by ECP.
10.

ECP shall be authorized, at any time or times, to enter upon the Facilities (or any

other location at which the Receiver maintains any of the Receivership Assets) for the purpose of
inspecting the Mortgaged Properties or any other Receivership Assets, including all Records,
Inventory or Equipment; conferring with officers, employees, or agents of the Receiver; and
reviewing and making copies of any and all of the Records and any other documents at any time
in the possession, custody or control of the Receiver. The Receiver shall periodically, at such
intervals as ECP and the Receiver shall mutually agree upon (but no less frequently than once
monthly), provide to ECP and the Shopping Center Defendants reports of the Receiver's

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operations, cash receipts, disbursements and maintenance of the Receivership Estate. In no event
shall ECP, by virtue of its exercising any right, power or privilege hereunder, be deemed to be in
possession or control of any of the Receivership Estate, or to have asserted any supervisory
control or decision-making authority with respect to the management, operation, protection or
maintenance of any Receivership Assets, and ECP shall not be deemed to have assumed any
obligation under the Shopping Center Defendants' agreements with any third parties and shall
not be liable for the use, maintenance, repair, or operation of any of the Receivership Estate. All
officers, attorneys and authorized representatives of the Shopping Center Defendants shall be
entitled to review, inspect and copy any of the Records during normal business hours and at their
own expense.
11.

The Shopping Center Defendants and each of their officers, directors, agents,

attorneys and employees, all other persons acting at the direction of Defendants, and each other
person or entity receiving notice of this Order by service or otherwise (but specifically excluding
ECP), are hereby ordered immediately to (i) turn over to the Receiver the Records; (ii) pay over
to the Receiver all cash and all funds and deposits in any Deposit Accounts or investments of the
Shopping Center Defendants, except for funds required to pay checks for expenses of the
Shopping Center Defendants that have been issued on or before the date of entry of this Order
but have not yet been presented for payment; and (iii) cooperate with the Receiver in identif'ing
and locating Receivership Assets, transitioning the operations of any Receivership Assets to the
Receiver, and identifying and investigating any causes of action of the Shopping Center
Defendants. Notwithstanding the foregoing, all proceeds of the Mortgaged Properties shall be

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remitted by the Receiver (or any other person or entity in possession thereof) to ECP for
application first to Professional Fees and then to the Obligations.
12.

The Shopping Center Defendants shall fully cooperate with Receiver in adding

Receiver and Plaintiff as additional insureds and ECP and Receiver as the loss payee on all
insurance policies relating to the management of the Receivership Assets including, but not
limited to, fire, extended coverage, vehicle coverage, property damage, liability, fidelity, errors
and omissions, and workers' compensation, and modifying the policies if deemed appropriate by
Receiver, but subject to approval by ECP. As to property damage only, but not for to liability to
third parties, the rights of ECP as loss payee with respect to proceeds of insurance upon the
Mortgaged Properties shall at all times be superior to Receiver until the Shopping Center
Defendants' obligations to ECP are repaid in full. The Shopping Center Defendants shall
provide the Receiver with a complete and accurate copy of all existing insurance policies related
to the Receivership Property or, if coverage has lapsed, a complete set of the most recent policies
and papers related to the most recent insurance coverage maintained for the Receivership
Property. The Shopping Center Defendants and their members, managers, officers, independent
contractors, employees and agents are prohibited from canceling, modifying, reducing, or
otherwise changing any and all insurance coverage in existence with respect to the Receivership
Property, provided, further that the Shopping Center Defendants shall not be obligated to fund
any premium payment on any insurance policy subsequent to the entry of this Order.
13.

Within thirty (30) days of the date of this Order, the Receiver shall prepare for

review and approval an initial thirteen (13) week cash flow budget (the "Initial Budget"). For
each period covered by the Initial Budget and any subsequent updated Budget, the aggregate

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actual disbursements by Receiver during such period of determination shall be no greater than
110% of the aggregate amount of projected disbursements for such period as set forth in the
Initial Budget or any subsequent Budget. Receiver shall provide to ECP no later than the 15th of
each month, unless otherwise requested by ECP, a line-by-line variance report for the
immediately preceding month as well as on a cumulative basis from the date of entry of this
Order to the report date (each a "Variance Report") showing the actual amounts attributable to
each line item in the Budget. Concurrent with delivery of the Variance Report, Receiver shall
provide to ECP an update of the most recent Budget prepared in substantially the same form as
the initial Budget, (the "Rolling Budget"), which Rolling Budget shall be satisfactory in form
and substance to ECP. The Initial Budget and each subsequent Rolling Budget may be amended
from time to time without further notice to any parties in interest in this matter or further order of
this Court upon the prior written agreement of ECP, and the amended budget shall become the
Budget or applicable Rolling Budget under the terms of this Agreed Order.
14.

The Receiver may, in his discretion and for the purpose of maintaining going-

concern value of any Receivership Assets, permit officers or employees of Defendants or Spectra
Properties, Inc. to collect, sell, possess, manage, protect, market and otherwise deal with some or
all of the Receivership Assets on such terms, and subject to such limitations and conditions, as
the Receiver deems appropriate, but in all events subject to the prior written consent of ECP and
the other provisions of this Order requiring a turnover to ECP, for application to the Obligations,
of proceeds of the Mortgaged Properties.
15.

During the pendency of this Receivership, absent express permission of this

Court, all actions by any creditors, lessors, landlords, taxing authorities and other persons and

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entities seeking money damages, dispossession of Receivership Assets or other relief from
Defendants or the Receivership Estate and all others acting on behalf of any such creditors and
other persons, including sheriffs, marshals, and all officers and deputies, and their respective
attorneys, servants, agents and employees, are, until further order of this Court, hereby stayed.
Further, except for ECP, all persons and entities who have or receive notice of this Order,
including (i) the Shopping Center Defendants (and all officers, directors, employees and agents
of the Shopping Center Defendants), (ii) all creditors of the Shopping Center Defendants, and
(iii) all persons or entities acting at the direction or on behalf of any of the persons described in
clauses (i) or (ii), including, without limitation, sheriffs, marshals, and all officers and deputies,
and their respective attorneys, servants, agents and employees, are hereby RESTRAINED AND
ENJOINED from (a) destroying, concealing, using, collecting, taking possession of,
transferring, asserting dominion or control over, repossessing, seizing, attaching, garnishing,
executing upon, seeking to impose a judicial lien upon any Receivership Assets, (b) otherwise
interfering with the possession, custody, control, use, or management by the Receiver of any
Receivership Assets or with the Receiver's exercise of powers or discharge of duties under this
Order, (c) altering any Records, (d) cancelling, terminating or limiting any insurance coverage,
permits, registrations, certificates, licenses or contracts of the Shopping Center Defendants, or (e)
filing or prosecuting any actions or proceedings that involve the Receiver or that affect any
Receivership Assets, except to the extent authorized by the Receiver or to the extent that any
party to such action or proceeding may be required to answer or reply to any pending complaint,
motion or other pleading in order to avoid default.

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16.

The Receiver is authorized to file, record or register this Order with appropriate

government offices and courts and to serve this Order on any person or entity whom the Receiver
reasonably believes to be in custody or control of funds or other assets properly belonging to the
Receivership Estate.
17.

If the Receiver determines that the aggregate amount of Revenues and Protective

Advances available to the Receiver are insufficient to pay the reasonable and necessary expenses
of maintaining, preserving, and operating the Facilities in compliance with applicable law, then
the Receiver may, on not less than ten (10) business days' written notice to ECP and Defendants,
file with the Court a resignation and termination of the Receiver's further responsibilities to serve
as receiver hereunder, whereupon, subject to a surrender of all of the Mortgaged Properties to
ECP and the filing of a final report regarding the receivership with the Court, the Receiver shall
be discharged. In connection with any such surrender of the Mortgaged Properties to ECP, the
Receiver, for himself, on behalf of the Receivership Estate and on behalf of Defendants, shall be
deemed to have waived any notices otherwise required to be given by ECP in connection with
any sale or other disposition of any of the Mortgaged Properties, including, without limitation,
any notices otherwise required under the Uniform Commercial Code.
18.

The Receiver is authorized to communicate with all persons as he deems

appropriate to inform them of the status of this matter and the Receivership Estate. In connection
with any final report, accounting and discharge of the Receiver, the Receiver shall seek and
obtain final approval from the Court of the professional fees and expenses of the Receiver, his
firm and his counsel.

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19.

Upon the request of the Receiver, the United States Marshal's Office, in any

judicial district, is hereby authorized to assist the Receiver in carrying out his duties to take
possession, custody or control of, or identify the location of, any assets, records or other
materials belonging to the Receivership Estate.
20.

Notwithstanding anything to the contrary in this Order, ECP is hereby authorized

(but not required) to take all actions it deems necessary or appropriate to realize upon any of the
Mortgaged Properties, including, without limitation, collection of any Accounts, foreclosure of
its liens upon any or all of the Mortgaged Properties or exercise any power of sale granted in any
of the Loan Documents, and apply the proceeds thereof to the payment of the Obligations.
Except as otherwise expressly agreed by ECP, the Receiver shall turn over all proceeds of the
Mortgaged Properties to ECP for application to the Obligations. Upon any foreclosure by ECP,
the Receiver shall cooperate with ECP and the party purchasing any of the Mortgaged Properties
at foreclosure by relinquishing possession of such Mortgaged Properties and taking any other
actions that may be necessary or desirable in connection with a foreclosure by ECP.
21.

The Clerk of the Court is authorized and directed to make certified copies of this

Order, at the Receiver's request, for use by the Receiver.
22.

The Receiver, while lawfully acting as such (including his employees, agents, and

professionals that he may retain to assist him with the performance of his duties, and others
engaged in connection herewith), is deemed an agent of the Court and is entitled to and shall
have immunity to the fullest extent of the law, from and against any and all causes of action, suit,
proceedings, claims, demands, suits, losses, damages and liability, including costs and a
reasonable receiver and attorney's fees ("Claims"), in any manner arising from, in connection

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with or relating to any of the Assets and/or in the course of his acting in such court appointed
capacity. The Receiver is entitled to rely on all outstanding rules of law and Court orders and
shall not be liable to anyone for his own good faith compliance with any order, rule, law,
judgment or decree. In no event shall the Receiver be liable for his good faith compliance with
the terms and provision of this Order, nor shall he be liable to anyone for any action taken
omitted by it except upon a finding by this Court that he acted or failed to act as a result of
misfeasance, bad faith, gross negligence or in reckless disregard of his duties. Further, so long as
the Receiver acts as authorized herein, the Receiver, and his employees, agents, retained
professionals, and others engaged in connection herewith, shall be indemnified and held
harmless by the Receivership estate from any and all right, claim, or causes of action brought
against the Receiver, and his employees, agents, retained professionals, and others engaged in
connection herewith, including the costs and expenses of defense of such claims or actions. The
Receiver shall not be liable for the obligations of the Shopping Center Defendants to third parties
(whether or not such persons or entities are a party to this litigation) to include, without
limitation, tax liability (payroll taxes, income taxes, or back taxes of any kind); worker's
compensation and unemployment compensation premiums or other obligations; wages, benefits,
and other compensation due to employees, officers, directors, or agents; and contract
indebtedness to third parties arising prior to his appointment and qualification as the Receiver.
23. The Shopping Center Defendants, ECP and any other person asserting a lien upon
any assets in the Receivership Estate, may request, by written motion filed with the Court and
with at least five (5) business days' notice to ECP and Defendants, a status conference or any
other appropriate relief as to the results of the Receiver's management and liquidation of the

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28.

There being no just reason for delay, the Court finds this is a final, appealable

order.
IT IS SO ORDERED.
sI S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: February 19, 2016

AGREED TO BY:
BR4DLEY ARANT BOULT
CUMMINGS LLP

GLANKLER BROWN, PLLC

By: Is! Austin L. McMullen
Austin L. McMullen
Roundabout Plaza
1600 Division Street, Ste. 700
Nashville, TN 37203
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

By: Is! Michael P. Coury
Michael P. Coury
6000 Poplar Avenue
Suite 400
Memphis, TN 38119
Telephone: [phone]
Facsimile: [phone]
Email: mcouryglankler.com

LEITESS FRIEDBERG PC

Counsel for Defendants

Jeremy S. Friedberg
10451 Mill Run Circle, Suite 1000
Baltimore, Maryland 21117
Telephone: [phone]
Facsimile: [phone]
Email: iererny.friedberg(lf-pc.com
OF COUNSEL
Counsel for Plaint

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