Document for Cpif Mra, Llc as successor in interest to CPIF Lending, LLC v. Jtre 14 Vesey Llc

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                IAS Part __ of the Supreme Court of the State
                                                   of New York, held in and for the County of
                                                   New York, at the Courthouse thereof, 60
                                                   Centre Street, New York, New York on the __
                                                   of January, 2024.
PRESENT: HON. _______________________
                 JUSTICE

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
 -------------------------------- )
 CPIF MRA, LLC, as successor in interest to )
 CPIF LENDING, LLC,                         ) Index No. 656413/2023
                                            )
                          Plaintiff,        ) [PROPOSED] ORDER APPOINTING
                                            ) RECEIVER
                   vs                       )
                                            )
 JTRE 14 VESEY LLC,                         )
                                            )
                          Defendant.        )
 ---------------------------------

       Upon the filing of the Summons and Complaint,1 and all exhibits thereto, the Affidavit of

Robert Shields in Support of the Ex Parte Application of Plaintiff CPIF MRA, LLC, as successor

in interest to CPIF Lending, LLC (“Plaintiff”) to Appoint Receiver, sworn to on January 4, 2024,

the Affirmation of Michael J. Barrie in Support of Plaintiff’s Ex Parte Application to Appoint a

Receiver, dated January 4, 2024, Plaintiff’s Memorandum of Law in Support of its Application to

Appoint a Receiver, and all exhibits thereto (the “Application”), and the Court having considered

these filings and their exhibits, including the Notes, Loan Agreements, and Mortgages; and the

Court finding that, in the Mortgages, Defendant JTRE 14 Vesey LLC (“Borrower”) agreed to,

without notice, the appointment of a receiver over the real and personal property securing the loans

at issue in this case (the “Loans”), including the real property located at 14 Vesey Street, New



1
    Capitalized terms used herein but not otherwise defined have the meanings given to them in
    the Complaint.
York, New York 10007, and as more particularly described in the Mortgages, upon a default under

the Loans; and the Court having reviewed the Court file, and being otherwise fully advised in the

premises, it is hereby ORDERED that the Application be, and hereby is, GRANTED as provided

herein.

                                     FINDINGS OF FACT

          A.   On April 22, 2021 (the “Closing Date”), CPIF Lending, LLC (“Original Lender”)

agreed to provide a $18,050,000.00 loan (the “Acquisition Loan”) to the Borrower. Not less than

$18,050,000.00 has been advanced as part of the Acquisition Loan.

          B.   The Acquisition Loan is evidenced by, among other things, (i) that certain Loan

Agreement, dated as of the Closing Date (as amended, supplemented, or otherwise modified from

time to time, the “Acquisition Loan Agreement”), by and between Borrower and Plaintiff CPIF

MRA, LLC (as successor in interest to Original Lender, the “Plaintiff”); (ii) that certain

Consolidated Amended and Restated Promissory Note (Acquisition Loan), dated as of the Closing

Date, in the original principal amount of $18,050,000.00 (as amended, supplemented, or otherwise

modified from time to time, the “Acquisition Note”), issued by Borrower to Plaintiff; and (iii) that

certain Consolidated, Amended and Restated Mortgage, Assignment of Leases and Rents, Security

Agreement and Fixture Filing (Acquisition Loan), dated as of April 22, 2021, executed by

Borrower in favor of Plaintiff and which was recorded in the New York City Department of

Finance, Office of the City Register (the “Public Records”) on May 7, 2021, as Document Id.

2021000169358 (as amended or corrected, the “Acquisition Mortgage”).

          C.   On the Closing Date, Original Lender also agreed to provide a $7,950,000.00 loan

(the “Building Loan”) to Borrower. Not less than $7,950,000.00 has been advanced as part of the

Building Loan.




                                                 2
       D.      The Building Loan is evidenced by, among other things, (i) that certain Building

Loan Agreement, dated as of the Closing Date (as amended, supplemented, or otherwise modified

from time to time, the “Building Loan Agreement”), by and between Borrower and Plaintiff, as

successor in interest to Original Lender; (ii) that certain Promissory Note (Building Loan), dated

as of the Closing Date, in the original principal amount of $7,950,000.00 (as amended,

supplemented, or otherwise modified from time to time, the “Building Note”), issued by Borrower

to Plaintiff; and (iii) that certain Mortgage, Assignment of Leases and Rents, Security Agreement

and Fixture Filing (Building Loan), dated as of April 22, 2021, executed by Borrower in favor of

Plaintiff and which was recorded in the Public Records on May 26, 2021, as Document Id.

2021000195404 (as amended or corrected, the “Building Mortgage”).

       E.      On or about November 16, 2022, Plaintiff agreed to provide a $2,039,798.77 loan

(the “Extension Loan”) to Borrower. Not less than $2,039,798.77 has been advanced as part of

the Extension Loan.

       F.      The Extension Loan is evidenced by, among other things, (i) that certain Loan

Agreement, dated as of November 16, 2022 (as amended, supplemented, or otherwise modified

from time to time, the “Extension Loan Agreement,” and together with the Building Loan

Agreement and the Acquisition Loan Agreement, the “Loan Agreements”), by and between

Borrower and Plaintiff; (ii) that certain Promissory Note, dated as of November 16, 2022, in the

original principal amount of $2,039,798.77 (as amended, supplemented, or otherwise modified

from time to time, the “Extension Note,” and together with the Acquisition Note and the Building

Note, the “Notes”), issued by Borrower to Plaintiff; and (iii) that certain Mortgage, Assignment of

Leases and Rents, Security Agreement and Fixture Filing, dated as of November 16, 2022,

executed by Borrower in favor of Plaintiff and which was recorded in the Public Records on




                                                3
November 21, 2022, as Document Id. 2022000429170 (as amended or corrected, the “Extension

Mortgage,” and together with the Acquisition Mortgage and the Building Mortgage, the

“Mortgages”).

       G.       The Mortgages encumber the real property commonly known as 14 Vesey Street,

New York, New York 10007 (as more particularly described in Schedule A attached hereto, the

“Mortgaged Real Property”) and certain security interests in personal property owned by Borrower

located at or related to the Mortgaged Real Property (the “Mortgaged Personal Property,” and

together with the Mortgaged Real Property, the “Mortgaged Property”).

       H.       Original Lender assigned its interests in the Acquisition Loan and the documents,

rights, and obligations related thereto to Plaintiff pursuant to, among other things, that certain (i)

Allonge to Consolidated, Amended and Restated Promissory Note (Acquisition Loan) dated as of

May 19, 2021; (ii) that certain Assignment of Consolidated, Amended and Restated Mortgage,

Assignment of Leases and Rents, Security Agreement and Fixture Filing (Acquisition Loan), dated

as of May 19, 2021 and recorded in the Public Records on July 13, 2021, as Document Id.

2021000265097; and (iii) that certain General Assignment and Assumption, effective as of May

19, 2021, by and between Original Lender and Plaintiff.

       I.       Original Lender assigned its interests in the Building Loan and the documents,

rights, and obligations related thereto to Plaintiff pursuant to, among other things, that certain (i)

Allonge to Promissory Note (Building Loan) dated as of May 19, 2021; (ii) that certain Assignment

of Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Building

Loan), dated as of May 19, 2021 and recorded in the Public Records on July 13, 2021, as Document

Id. 2021000265099; and (iii) that certain General Assignment and Assumption, effective as of

May 19, 2021, by and between Original Lender and Plaintiff.




                                                  4
       J.      Plaintiff is the owner and holder of the rights and security interests created and

evidenced by the Mortgages, Loan Agreements, and other loan documents (collectively, the “Loan

Documents”). The Loan Documents are valid and enforceable obligations of Borrower and created

a valid security interest in the Mortgaged Property in favor of Plaintiff.

       K.      The Mortgages provide that Plaintiff is entitled to have a receiver appointed for the

Mortgaged Property upon an Event of Default:

       At any time following the occurrence of a default or an Event of Default, [Plaintiff]
       shall be entitled, upon petition by [Plaintiff], to the appointment of a receiver to
       take possession and control of the Property or to collect the Rents, without notice
       and without regard to the adequacy of the Property to secure the
       [Acquisition/Building/Extension Loan]. Such appointment may be made either
       before or after sale, without notice, without regard to the solvency or insolvency of
       the [Borrower] at the time of application for such receiver and without regard to the
       value of the [Mortgaged] Property or whether the same shall be then occupied as a
       homestead or not, and the [Plaintiff] hereunder or any other holder of the
       [Acquisition/Building/Extension] Note may be appointed as such receiver. Such
       receiver shall have power to collect the Rents (i) during the pendency of such
       foreclosure, (ii) in case of a sale and a deficiency, during the full statutory period
       of redemption, whether there be redemption or not, and (iii) during any further
       times when the [Borrower], but for the intervention of such receiver, would be
       entitled to collect such Rents. Such receiver also shall have all other powers and
       rights that may be necessary or are usual in such cases for the protection,
       possession, control, management and operation of the [Mortgaged] Property during
       said period, including, to the extent permitted by law, the right to lease all or any
       portion of the [Mortgaged] Property for a term that extends beyond the time of such
       receiver’s possession, without obtaining prior court approval of such lease, and the
       right to make repairs and to make improvements necessary or advisable in its or his
       opinion to preserve the Property, or to make and keep them rentable to the best
       advantage, and the [Plaintiff] may advance moneys to a receiver for such purposes.
       Any moneys so expended or advanced by the [Plaintiff] or by a receiver shall be
       added to and become a part of the [Acquisition/Building/Extension Loan] secured
       by this Mortgage.

       Mortgages § 8.1.

       L.      Gregg Williams of Trident Pacific Real Estate Group, Inc., although not on the

appointment list of eligible fiduciaries promulgated by the New York State Unified Court System,

is regularly selected to serve as a receiver in mortgage proceedings and has been appointed to serve



                                                  5
in such capacity in other proceedings in the Courts of the State of New York, including the

Supreme Court of the County of New York. The plaintiff has requested that Mr. Williams be

appointed as receiver for the Mortgaged Property.

       M.      Appointment of a receiver without notice under CPLR § 6401(a), Real Property

Law (“RPL”) § 254(10), and applicable common law is appropriate, because, as set forth more

fully in the Application, (i) Borrower consented in writing to the appointment of a receiver without

notice and (ii) a real and substantial risk exists that Borrower lacks the financial wherewithal,

willingness, or incentive to fund and maintain the Mortgaged Property absent the appointment of

a receiver. Delay in appointment of a receiver poses a material risk to the value of the Mortgaged

Property, including by risking the Mortgaged Property becoming (or remaining) uninsured,

insufficiently insured, or subject to tax liens or proceedings, which could result in permanent

casualty losses or lead to a public safety crisis at the Mortgaged Property that could permanently

harm its revenue-generating potential.

       N.      Plaintiff, having brought an action for Borrower’s breach of the Mortgage and

otherwise diligently pursuing enforcement of its rights under the Loan Documents, and the

Mortgaged Property being real property located in the County of New York, is entitled to the relief

requested in the Application, as set forth more fully herein.

ACCORDINGLY, IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:

       1.      Gregg Williams of Trident Pacific Real Estate Group, Inc., with an address of 41

Madison Ave., 31st Floor, New York, NY 10010, telephone 949-244-1918 and email of

gw@tridentpacificreg.com, be and hereby is appointed as receiver (the “Receiver”) for the

Mortgaged Property with the usual powers and directions as temporary receiver (except as




                                                 6
modified herein), for the benefit of Plaintiff of all the rents and profits now due and unpaid or to

become due during the pendency of this action and issuing out of the Mortgaged Property.

       2.      Before entering upon his duties, Receiver shall be sworn faithfully and fairly to

discharge the trust committed to him and will file an oath with the County Clerk.

       3.      The Receiver shall not be required to post a bond with the Court.

       4.      Except as specifically limited in this Order, the Receiver is hereby given all usual,

customary, necessary, and incidental authority, duties, and powers of a receiver for the purpose of

executing and implementing the authority granted to him in this Order necessary and incidental to

effect the protection, management, and maintenance of the Mortgaged Property and the business

conducted thereon. Receiver is authorized to take any reasonable actions that Receiver deems

necessary or appropriate to take possession of, exercise full control over, to prevent waste and to

otherwise preserve, manage, maintain, secure and safeguard the Mortgaged Property in accordance

with the terms of this Order.

       5.      The Receiver is directed and authorized to demand, collect, and receive from the

tenants of the Mortgaged Property or others liable therefore, all the rents thereof now due and

unpaid, and hereafter to become due, and the Receiver is authorized to institute and carry on all

legal proceedings necessary or useful for the protection of the Mortgaged Property and its value,

for the collection of rents now due or hereafter to become due, and for the removal of any tenant

or tenants or other persons therefrom.

       6.      The owner of the Mortgaged Property and any other person or entity in possession

thereof turn over to the Receiver all rents collected from the Mortgaged Property from and after

the date of this Order.




                                                 7
        7.     The Borrower and any other person or entity in possession of same shall turn over

to Receiver all rent lists, orders, unexpired and expired leases, agreements, contracts,

correspondence, notices, registration statements, and all other reasonably requested documents

relating to the Mortgaged Property, the leasing of same, and the renovation and maintenance of

same.

        8.     All tenants or other persons in possession of any part of the Mortgaged Property

shall attorn to the Receiver and pay over to the Receiver all rents and fees due or to become due.

All persons now or hereafter holding or owing rents, issues, profits or any other amount arising

with respect to the Mortgaged Property are hereby Ordered to pay the same to the Receiver. The

receipt by the Receiver of such amounts shall operate as a discharge to the payor to the extent of

the amount paid, and all such collections and all rights to payment received by Receiver will be

subject to the Mortgages and Loan Documents held by Plaintiff.

        9.     The defendants and their agents, officers, employees and contractors are hereby

directed to deliver to the Receiver all rent lists, shareholder lists, unexpired and expired leases,

proprietary leases, agreements, contracts, recognition agreements, corporate by-laws or similar

documents, correspondence, notices of registration statements, escrows, lists of all current rent or

other monies, arrears, relating to the Mortgaged Property, and all other reasonably requested

documents relating to the Mortgaged Property, the leasing of same, and the renovation and

maintenance of same. Defendants shall timely respond to and comply with all reasonable requests

made by the Receiver.

        10.    The Receiver shall deposit all monies received by him as Receiver in a segregated

bank account, and no withdrawals shall be made therefrom except to pay the reasonable and

necessary expenses to maintain and protect the Mortgaged Property (but subject to the Budget




                                                 8
provisions of this Order), as otherwise authorized by this Order, or by further order of the Court;

and the Receiver shall furnish counsel of record with monthly statements of the receipts and

expenditures of the receivership.

        11.     The Receiver shall: (a) take possession of, and receive from all depositories, banks,

brokerages and otherwise, any money on deposit in such institutions associated with, belonging

to, arising from or holding any funds related to the operation of the Mortgaged Property, whether

such funds be in accounts titled in the name of Borrower or not and (b) open, maintain or close

any such accounts, manage all other bank products related to the Mortgaged Property and receive

and endorse checks pertaining to the Mortgaged Property either in the Receiver's name or in

Borrower's name. Receiver may add his agents or employees as additional signatories to any bank

accounts, money market accounts, certificates of deposit or any other financial instruments or

accounts that the Receiver controls and such banks will honor such instructions as if the Receiver

was the Borrower.

        12.     The Receiver shall maintain an appropriate and commercially reasonable system of

financial accounts and cash management with respect to the operation of the Mortgaged Property

and shall itemize receipts and expenditures in a current and business-like manner.

        13.     Pursuant to the provisions of the General Obligations Law section 7-105, anybody

holding any deposits or advances of rental as security under any lease or license agreement

affecting space in the premises affected by this action shall turn same over to Receiver within five

(5) days after the Receiver shall have qualified; and thereupon the Receiver shall hold such security

subject to such disposition thereof as shall be provided in an Order of this Court to be made and

entered in this action.




                                                  9
       14.     The Receiver shall promptly obtain and maintain adequate insurance for the

Mortgaged Property in such amounts as the Receiver deems necessary and reasonable. Plaintiff,

Borrower, Property Manager, and the Receiver are to be named as insureds or additional insureds

on all such insurance policies. The Receiver shall have the power to cancel existing insurance

policies, with the return of any unearned premium proceeds to be returned to Receiver and subject

to the Mortgage.

       15.     The Borrower shall immediately name the Receiver and Property Manager as

additional insureds on the insurance policy(ies) for the period that the Receiver is in possession of

the Mortgaged Property.      Until the Receiver has procured adequate replacement coverage

Borrower, and any and all persons acting by, through, or on behalf of Borrower, are prohibited

from cancelling, reducing or modifying any and all insurance coverage currently in existence

relating to the Mortgaged Property.

       16.     The Receiver shall procure or maintain utility services for the Mortgaged Property,

pay and/or take control of any utility deposits, and shall promptly establish all necessary utility

accounts for the Mortgaged Property in the name of Borrower. The Receiver may use Borrower’s

tax identification number for any new utilities provided to the Mortgaged Property.

       17.     The Receiver shall have the power to issue demands in the name of the receivership

upon the United States Postal Service, or any other public or private entity, to gain exclusive

possession and control of such postal boxes as may have been used by Borrower or its agents for

the receipt of rent, income and other mail related to the Mortgaged Property and Receiver may

open all mail and correspondence addressed to Borrower or its agents, employees or other

representatives so obtained or received at the Mortgaged Property.




                                                 10
       18.     Court approval shall not be required for the Receiver to make repairs to the

Mortgaged Property, including, without limitation, any repairs requested or mandated by the city

of New York or any other municipality or building division or official in connection therewith.

       19.     Within a reasonable time after his appointment, Receiver will prepare and submit

to Plaintiff a proposed operating budget covering the next thirteen weeks (or such different time

period as agreed to by Plaintiff and Receiver) for the leasing, promotion, operation, repair,

improvement, renovations and maintenance of the Mortgaged Property. Plaintiff may approve the

proposed budget and any revisions or extensions of the proposed budget submitted by Receiver in

Plaintiff’s absolute and sole discretion, except that any Management Fee and Receiver Fee

consistent with the proposals attached to the Application will be deemed approved automatically.

Upon Plaintiff’s approval, such proposed budget will be deemed the “Budget” for purposes of this

Order. After the thirtieth (30th) day following the date of this Order, absent exigent circumstances

or a good faith determination by Receiver that failure to make a payment would be in violation of

this Order, Receiver will not incur or pay any liabilities that are not included in the Budget.

       20.     Without further order of Court, the Receiver shall not incur any obligation, make

borrowings secured by the Mortgaged Property or undertake any transaction, other than (i)

unsecured obligations in the ordinary course of business; (ii) borrowings with Plaintiff authorized

by this Order; and (iii) obligations approved by Plaintiff and reasonably necessary or useful in

maintaining the Mortgaged Property, fulfilling the duties of the Receiver, and securing or

preserving the Mortgaged Property; provided that absent exigent circumstances (in which case

Receiver will work to obtain Plaintiff’s consent as soon as practicable), Receiver will obtain prior

written consent of Plaintiff prior to incurring any liability in excess of $10,000.




                                                 11
       21.     The Receiver shall be entitled to recover his fees in the amount of $3,000 per month

(collectively, the “Receiver’s Fee”), plus reimbursement of reasonable out-of-pocket expenses, all

as more fully set forth in the Trident Proposal (as defined in the Application) as and when the same

become due and payable, from the proceeds of the Mortgaged Property.

       22.     The Receiver may hire, employ, retain and terminate consultants, brokers,

professionals, independent contractors and any other personnel or employees, including employees

of Borrower as is necessary or appropriate for the maintenance and operation of the Mortgaged

Property. Without limiting the generality of the foregoing, the Receiver is hereby authorized to

engage SVN Elevate, or its affiliate (together, along with any successor approved by Plaintiff in

its reasonable discretion, “Property Manager”) as manager of the Mortgaged Property and to pay,

from the proceeds of the Mortgaged Property, the Property Manager a management fee of $2,500

per month, along with all reasonable, necessary out-of-pocket costs (together, the “Management

Fee”). Receiver and Property Manager may enter into a standard Management Agreement that

incorporates such fees, and is consistent with the terms of the Application and this Order.

       23.     The Receiver is furthermore hereby authorized to retain Armstrong Teasdale LLP

by Jeffrey A. Wurst, Esq. (Fiduciary ID 451370), as legal counsel to represent him and assist him

with the performance of his duties as set forth herein. All reasonable expenses incurred in

connection with the hiring and retention of such personnel and counsel shall be paid for by

proceeds from the Mortgaged Property or from advances made by the Plaintiff (together, the

“Counsel Fee,” and together with the Receiver’s Fee and the Management Fee, the “Fees”).

       24.     Subject to the limitations set forth herein pertaining to the Budget, the Receiver

may pay, on a monthly basis, from proceeds of the Mortgaged Property or funds advanced by

Plaintiff: (a) the Fees; (b) the reasonable costs and expenses incurred by the Receiver or his




                                                12
consultants, agents, employees, legal counsel and professionals on behalf of the Mortgaged

Property; and (c) the reasonable operating expenses of the Mortgaged Property, including, but not

limited to, insurance premiums and taxes.

       25.     The Receiver shall execute and perform all acts and prepare all documents, either

in the name of Borrower, the receivership estate, or the Receiver, which are necessary or incidental

to operating, preserving, protecting, managing and controlling the Mortgaged Property.

       26.     To the extent that the proceeds from the Mortgaged Property collected by the

Receiver are insufficient to pay the Fees and/or are insufficient to permit the Receiver to perform

his duties hereunder, the Receiver may request that Plaintiff advance funds necessary to pay such

expenses. In the event that Plaintiff, in its sole and absolute discretion, does advance funds to the

Receiver, such funds will be secured by the Mortgages and the other Loan Documents and will be

treated in all respects as provided by the Loan Agreements and the other Loan Documents,

accruing interest at the Default Rate, and amounts advanced under this Order will have the same

priority, validity, and enforceability as the amounts advanced under the Loan Agreements and

Mortgages prior to the institution of this action. In the event that Plaintiff, in its sole discretion,

does not advance funds to the Receiver, the Receiver is not obligated to pay such costs and

expenses.

       27.     The Borrower and all those claiming through or under it be and hereby are enjoined

and restrained from: (a) collecting or disposing of the rents, profits, income, revenues, issues,

license fees, reimbursements and other charges resulting from use of or services provided at the

Mortgaged Property or the rendition of services therefor, whether received by them prior or

subsequent to the appointment of the Receiver; (b) disposing of the Mortgaged Property; (c)

interfering in any manner with the Mortgaged Property or its possession, use or operation by the




                                                  13
Receiver, or with the supply of any and all utilities or other services to the Mortgaged Property;

(d) transferring, removing or changing entries in the books and records of or pertaining to the

Mortgaged Property; or (e) transferring, removing or in any way disturbing any of the tenants,

subtenants, occupants, licensees or employees at the Mortgaged Property.

       28.     All persons now or hereafter in possession of the Mortgaged Property, or any part

thereof, and not holding such possession under valid, existing leases or tenancies, shall

immediately surrender possession to the Receiver.

       29.     Neither Plaintiff nor the Receiver shall be liable for any obligation of Borrower or

Guarantor relating to the Mortgaged Property that arose prior to the date of this Order, including,

without limitation, any contingent or unliquidated obligations or any security deposits or other

deposits that tenants have paid to Borrower or its agents, nor shall Plaintiff or the Receiver be

obligated to advance any funds to pay any expense for maintenance or other liability of the

Mortgaged Property.

       30.     The Receiver and Plaintiff shall not be personally liable for any pre-receivership

expenses or any actions taken by Borrower, Guarantor, their agents, employees and any

management companies engaged by them before, during or after the receivership.

       31.     Notwithstanding any other provision hereof, the Receiver shall be under no

obligation to complete or file tax returns on behalf of Borrower for income or other taxes arising

before the date of this Order or pay any amounts due. For the duration of his appointment, the

Receiver shall comply with all applicable laws relating to tax reporting requirements.

       32.     The Receiver will comply with all lawful requirements of any municipal

department or other authority of the municipality in which the Mortgaged Property is situated.




                                                14
        33.    Each month, the Receiver shall file a report (the "Receiver Report") with this Court

accounting for all sums received and expenditures made (including payment of the Fees) during

the prior calendar month in connection with the receivership and the Mortgaged Property. The

first such report shall be filed within forty-five (45) days following the entry of this Order.

        34.    The Receiver shall be relieved of his powers and obligations upon entry of an order

of this Court following: (a) a default by the Receiver under any of his obligations hereunder; (b)

the sale of the equity interests of Borrower pursuant to N.Y. UCC § 9-610 (the “Planned UCC

Auction”); (c) the date that Plaintiff stops pursuing the Planned UCC Auction diligently and in

good faith; (d) the written request of Plaintiff; or (e) the written request of the Receiver. Upon the

Receiver being relieved of his powers and obligations, the Court may enter an order ex parte

appointing a replacement receiver nominated by Plaintiff subject to the Court's right to confirm

the qualifications of such nominee and subject to such order containing substantially the same

terms and conditions of this Order. Except as otherwise provided in this Order, the Receiver shall

have the right to resign his position at any time upon thirty (30) days prior written notice to

Plaintiff.

        35.    The failure of Borrower, Guarantor, or their agents, employees and any

management companies engaged by them to abide by any term or condition of this Order, the

Receiver may petition this Court for further action to compel and enforce this Order.

        36.    This Court shall retain jurisdiction over this action for any proceedings necessary

to enforce compliance with this Order.

        37.    The Receiver shall comply with Section 35a of the Judiciary Law, Sections 6401-

6404 of the CPLR, and Rule 36 of the Chief Judge.




                                                 15
       38.     Within five (5) days of the entry of this Order, Plaintiff shall serve a copy of this

Order, together with a copy of the Application and all documents filed in support thereof, upon the

Defendant via NYSCEF if it has appeared, or via FedEx or overnight courier at its last known

address if it has not appeared, and upon the Receiver via FedEx or overnight courier, and such

service shall be deemed good and sufficient service of this Order.



                                             Entered:        __________________________
                                                             J.S.C.




                                                16