Securities and Exchange Commission v. Path America, LLC et al

Filing 618

ORDER granting Receiver Michael A. Grassmueck's unopposed 610 Motion for Order Approving a Second Amendment to the Purchase and Sale Agreement for the sale of the Shoreline Property. Signed by Judge James L. Robart. (PM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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SECURITIES AND EXCHANGE
COMMISSION,

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Plaintiff,
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v.
PATH AMERICA, LLC, et al.,

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Defendants.

CASE NO. C15-1350JLR
ORDER GRANTING
UNOPPOSED MOTION FOR AN
ORDER APPROVING A
SECOND AMENDMENT TO THE
PURCHASE AND SALE
AGREEMENT FOR THE SALE
OF THE SHORELINE
PROPERTY

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Before the court is the Receiver Michael A. Grassmueck’s motion for an order
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approving a Second Amendment to the Purchase and Sale Agreement for the sale of the
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Shoreline Property. (Mot. (Dkt. # 610).) The motion is noted for the court’s
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consideration on February 16, 2018. (See id. at title page.) No party has filed an
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opposition to the motion. (See generally Dkt.) The court has reviewed the motion, the
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relevant portions of the record, and the applicable law. Being fully advised, the court
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GRANTS the motion and ORDERS as follows:
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ORDER - 1

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1. The sale of the commercial property located at 15560 Westminster Way North,

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Shoreline, Washington 98133 (the “Shoreline Property”), more specifically described in

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the Purchase and Sale Agreement and Joint Escrow Instructions as amended by the First

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Amendment to Purchase and Sale Agreement and Joint Escrow Instructions and Second

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Amendment to Purchase and Sale Agreement and Joint Escrow Instructions (collectively,

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the “Purchase and Sale Agreement”), attached as Exhibits A and B to the Receiver’s

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Declaration (see Grassmueck Decl. (Dkt # 610-1) ¶¶ 4, 6, Exs. A-B), is CONFIRMED

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and APPROVED;

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2. The purchase and sale of the Shoreline Property to Maple Multi-Family Land

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TX, LP (“Buyer”) shall be on an “As-Is, Where-Is” basis, as set forth in the Purchase and

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Sale Agreement;

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3. The court further finds as follows:

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a. The negotiation, execution, delivery, and consummation of the Purchase and

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Sale Agreement was conducted in a manner appropriate under applicable law;
b. The Receiver has provided adequate and sufficient notice for the Stipulated
Motion;
c. The consummation of the sale of the Shoreline Property is in the best interests
of the estate of the Receivership Entities;
d. Buyer has acted in good faith, the purchase and sale is undertaken by Buyer and

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the Receiver at arm's length, without collusion and in good faith, and Buyer is entitled to

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appropriate protections on account thereof;

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ORDER - 2

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4. The purchase price of $11,500,000 for the Shoreline Property is CONFIRMED
and APPROVED;
5. The Receiver is authorized, empowered and directed to immediately pay, upon

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closing of the sale, a commission of 1% of the final purchase price to broker Berkadia

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Real Estate Advisors;

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6. If applicable, the Receiver is authorized, empowered and directed to pay the

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“Buyer’s Costs” as defined in the Purchase and Sale Agreement within ten (10) business

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days following closing to a third-party or delivery of Buyer’s Termination Notice as

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defined in the Purchase and Sale Agreement;

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7. The sale of the Shoreline Property to Buyer (i) is legal, valid and effectively

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transfers the Shoreline Property; (ii) will vest Buyer with all right, title and interest to the

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Shoreline Property free and clear of all “Removable Liens,” other than “Permitted

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Exceptions,” as those terms are defined in the Purchase and Sale Agreement; and (iii)

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constitutes a transfer for reasonably equivalent value and fair consideration under the

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laws of Washington state;

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8. Upon and after the closing of the purchase and sale contemplated herein, claims

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arising out of any security interests or other liens, if any, against the Shoreline Property

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shall attach to the net proceeds of the purchase and sale in the same amount and priority

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as such security interests and other liens had against the Shoreline Property prior to the

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purchase and sale, and the rights of creditors against third parties, such as claims against

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guarantors of any debt owed by a Receivership Entity shall not be affected by this

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purchase and sale;

ORDER - 3

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9. All persons holding or asserting a claim, of any nature, against a Receivership

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Entity, shall be barred from taking any actions against Buyer (as they existed

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immediately prior to closing of the purchase and sale) or the Shoreline Property to

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recover such claim;

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10. Upon and after the closing of the purchase and sale contemplated herein,

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Buyer shall not be deemed to be (i) a successor to any Receivership Entity; (ii) a

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continuation of any Receivership Entity; or (iii) to have assumed any liability with

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respect to any claim, known or unknown, against any Receivership Entity or the estate of

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the Receivership Entities, except those expressly assumed in the Purchase and Sale

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Agreement;

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11. The provisions of this order are non-severable and mutually dependent;

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12. The Receiver is immediately authorized, empowered and directed to

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complete, consummate, and close the sale transaction, including executing any and all

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documents as may be necessary and appropriate to do so;

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13. The Receiver is further authorized, empowered and directed to execute and

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acknowledge the deed in the form attached in the Purchase and Sale Agreement as

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Exhibit D;

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14. The Receiver is further authorized, empowered and directed to transfer title

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and possession of the Shoreline Property to Buyer and turnover possession of the

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Shoreline Property to Buyer upon closing;

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15. The Receiver may amend or otherwise modify the Purchase and Sale
Agreement if Buyer or its designee consents in writing;

ORDER - 4

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16. The terms of this order shall be controlling but for subsequent immaterial
amendments or modifications to the Purchase and Sale Agreement;

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17. This order shall be recorded; and

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18. This court retains exclusive jurisdiction to interpret and enforce the provisions

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of the Purchase and Sale Agreement and this order, in all respects.

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IT IS SO ORDERED.

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Dated this 21st day of February, 2018.

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A

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JAMES L. ROBART
United States District Judge

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ORDER - 5