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KEVIN SINGER
SUPERIOR COURT RECEIVER/REFEREE
RECEIVERSHIP SPECIALISTS
795 Folsom Street, 1st Floor
San Francisco, California 94107
Telephone: (415) 848-2984
Fax: (415) 848-2301
E-mail: Kevin@ReceivershipSpecialists.com
Property Address:
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......_:...
cs-
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)
)
)
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v.
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CHEROKEE SThIBON VENTURE I, LLC; a )
Plaintiff,
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INC., an Iowa corporation, LUMIPHORE
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INC., a Delaware corporation, GERONOVA )
RESEARCH, Inc., a Nevada corporation,
)
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NANOASIS TECHNOLOGIES, INC., a
California corporation, CHEMORAGA, INC., )
a California corporation and DOES
inclusive,
Defendants.
1-50,
)
)
)
)
)
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CASE NO:
C12-00284
=:
Dept.:
ld,,
Wk
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TO:
RECORD:
31, at the
Receiver, Kevin Singer, will and does hereby move the Court to grant his NOTICE OF
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records and files in this action, and oral and documentary evidence
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DATED: September
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as
10, 2012
By:
Kevin Singer
Superior Court &
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INTRODUCTION
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company ("Plaintiff"),
collectively (''the Parties"), the Court granted an Order Appointing Receiver Ex Parte and
Temporary Restraining Order In Aid of Receiver ("Court Order") which was entered on July
("Defendant"),
attached hereto as "Exhibit 1." The appointed Superior Court Receiver, Kevin
12, 2012, by
Plaintiff's Counsel
15\ 2012.
This was an
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2.
The collateral for Plaintiff's Deed of Trust is a commercial and industrial building
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located at
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commonly referred to as Campus Bay. The Property has a long history of chemical
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oversight of the San Francisco Bay Regional Water Quality Control Board.
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"Exhibit 2," is information summarizing the environmental issues surrounding the Property.
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3.
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portion of it on terms acceptable to Plaintiff. Any lease contract entered into will require
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4.
On August
8,
2012
and August
9,
2012,
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Defendant's legal counsel over the ability of Defendant to collect past due rents from the
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tenants.
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Receiver, and came to an amicable resolution with the Receiver regarding the collection of past
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due rent, but there remains a disagreement in between the Receiver and Defendant's legal
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Defendant's legal counsel was properly representing her client, respectful to the
5.
Although the Receiver has the ability to write basic pleadings and file papers with
the Court, he is not an attorney. The Receiver is also not an expert in legal environmental
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disclosures that will need to be provided to tenants. The Receiver also seeks help from time to
time in interpreting the Court's Order and working with the Parties' legal counsels.
A receiver must not employ an attorney without the approval of the court. The
application for approval to employ an attorney must be in writing and must state:
(2) The name of the attorney whom the receiver proposes to employ; and
(3) That the attorney is not the attorney for, associated with, nor employed by an
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8a.)
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8e.)
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deems appropriate to effectuate the operation of the Property and to preserve and
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12)
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Receiver shall have the power to take any and all lawful actions necessary to
Receiver, or any party to this action, may from time to time, make application to
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The Receiver needs to retain legal counsel for the limited purpose of advising the
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Receivership Estate on the proper way to disclose environmental issues to new tenants to limit
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the liability of the Receivership Estate. The legal counsel retained by Receiver can also advise
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the Receivership Estate on interpretation of the Court Order when the Parties are in
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The Receiver would like to retain Mia Blackler ("Ms. Blackler") and Manuel
Fishman
("Mr.
\_/
and Mr. Fishman is an expert in commercial lease contra cts and environmental issues. Their
$440 for Ms. Blackler and $495 per hour for Mr. Fishman and they utilize the
$300
to
$350
WHEREFORE, The Receiver requests that the Court grant the following:
1. The Superior Court Receiver, Kevin Singer, is authorized to retain Mia Blackler and
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Manuel Fishman to advise him on any lease negotiations, disclosure issues related to the leas
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2. For such other relief as the Court may deem just and appropriate.
DATED:
September
10, 2012
Respectfully submitted,
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By:
ks
Kevin Singer
Superior Co
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'.,__;
am
a Superior Court Referee and Referee and have acted in that capacity in over 143
specializes in Receivership and Referee appointments. If called upon to testify, I could and
would competently do so as to the matters hereinafter set forth based on firsthand knowledge.
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Through a stipulation amongst CERF SPVI, LLC, a Delaware limited liability company
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Parties"), the Court granted an Order Appointing Receiver Ex Parte and Temporary
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Restraining Order
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the Court Order, I was appointed Superior Court Receiver. The parties agreed that the property
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located at
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In Aid of Receiver ("Court Order") which was entered on July 12, 2012. In
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2. The Property serves as collateral for Plaintiff's Deed of Trust and is a commercial
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and industrial building commonly referred to as Campus Bay. The Property has a long history
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the oversight of the San Francisco Bay Regional Water Quality Control Board.
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of it on terms acceptable to Plaintiff. Any lease contract I have entered into will require
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4.
On August
legal counsel over the ability of Defendant to collect past due rents from the tenants at the
Property. Defendant's legal counsel was properly representing her client, respectful to me, and
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SUPERIOR COURT OF CALIFORNIA
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CERF
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Plaintiff,
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v.
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Defendants.
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#80494 vt sar
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The motion of Plaintiff CERF SPV I, LLC ("Plaintiff'), for an ex parte order appointlng a
receiver and for the issuance of a Preliminary Injunction came on for hearing in Department 60 of
this Court on July 12, 2012 at 1 :30 p.m.. Plaintiff appeared by and through its counsel, Dena M.
Cruz; defendant Cherokee Simeon Venture I, LLC (''CSV'') appeared by and through its counsel,
Larisa A. Meisenheimer.
Having read and considered the moving papers, pleadings, and evidence in this matter;
having heard argument of counsel; and being apprised of the premises; it appearing to the Court that:
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Agreement") and certain related documents, agreements and ins1nments, as lender, with
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CSV,
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certain real property located in Contra Costa County, CA, commonly known as Campus
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B. Plaintiff is the holder of a promissory note dated September 6, 2007, executed by CSV as
borrower (the ''Note").
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C. The Note is secured by a deed of 1rust of even date (the ''Deed of Trust'') executed by
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CSV in favor of CERF, which Note and Deed of Trust were assigned to Plaintiff on or
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D. TheDeed of Trust is a lien on the title to Campus Bay (the "Property''). A copy of the
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Deed of Trust, which contains a legal description of the Property is attached to the
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Elanjian Deel.
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Exhibit B.
E. TheDeed of Trust contains a provision whereby all the rents, issues, and profits of the
Property are assigned as additional security on the Note and;
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F. The 2007 Loan Agreement and the Deed of Trust contain certain provisions in which
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CSV consented to the appointment of a receiver for the Property in the event of default
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G. Plaintiff alleges in the Complaint filed in this action Defendant CSV has defaulted on
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its obligations mderthe 2007 Loan Agreement, Note and Deed of Trust (her einafter
collectively the 'Borrowing Agreements") in that CSV (i) failed to pay the outstanding
principal balance ofth.e loan, all accrued and unpaid interest thereon, and all other sums
owing to Plaintiff pursuant to the terms of the Borrowing Agreements which were due
and payable on or before September 6, 2010; (ii) failed to pay when due and payable
property taxes assessed against the Property; and, (iii) fiiiled to pay premiums for
H.
Without admitting to or agreeing with Plaintiff's allegations, CSV stipulated on July 11,
2012, to the appointment of a receive r and a preliminary injunction.
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The Court grants Plaintiff's motion for the appointment of a receiver and appoints Kevin
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1.
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of office. Purswmt to the terms of the Deed of Trust, the Receiver does not need to file an
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undertaldng or bon d.
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2.
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3.
CSV shall surrender possession of the Property to Receiver as of August 1, 2012 (the
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"Effective Date"), and shall deliver to Receiver all keys, all books and records related to the
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ownership and maintenance of the Property, checkbooks, ledgers, accomits payable and accounts
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receivable records, leases, rent rolls, insurance policies and certificates (except as specified in
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Paragraph 18), executory contracts, plans, specifications and drawings, and all other documents
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whatsoever related to the ownership and maintenance of the Property (collectively "Books and
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Records''). Receiver shall take possession and control of all Books and Records, except that
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Receiver may, in his discretion, choose to leave whatever portions of the Books and Records he
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decides appropriate in the possession of the. persons possessing the same, provided that Receiver
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shall have immediate access to these items. Receiver shall retain possession of the Property until the
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[PROPOSED] ORDER APPOlNTJNG RECEIVBREX PARTE AND TRO
#80494 vl saf
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earlier of further order of the Court or nonjudicial foreclosure of the Property by Plaintiff and/or its
assigns.
4.
personal property, assets, all rents due and hereinafter due, notes, receivables, actions and choses in
action; and,
action, or other evidence of indebtedness and, if need be, bring suit to recover the same in his own
name..
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may bein possession there6f, be and they are hereby directed to (i) attom to Receiver, and until the
As of the Effective Date, Receiver shall (i) receive and take charge of the Property and all
(ii) collect all outstanding accounts, receivables, leases, rents, actions and choses in
As of the Effective Date, the tenants in possession of the Property or such other persons as
(ii) to pay over to Receiver, or its duly designated agent, all rents of the
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Prop ez:ty now due and unpaid or hereafter to become due. CSV is hereby enjoined and restrained
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from collecting the rents of the Property as of the Effective Date; and that all tenants of the Property
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and other persons liable for the rents be and they hereby are enjoined and restrained from paying any
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rent for the Property to CSV, or its managing agent, its officers, directors, employees, agents, or
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attomeys.
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6.
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possession ofthe Property, CSV is restrained and enjoined until further order of this Court from
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disposing of silch rents, issues, profits, and revenues of the Property in any manner, other than by
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turning over such rents, issues, profits, and revenues to Receiver until further order of this Court;
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7.
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Plaintiff, for services performed as receiver for the Property pursuant to invoices
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Plaintiff describing in detail the services perfonned and the hours worked, to be paid as a priority
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from the rents and revenues of the Property, or otherwise paid by Lender; provided, however, in no
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event shall Receiver's hourly fee exceed$ 250.00 per hour and $150 per hour for Receiver's support
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staff;
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8.
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the following:
If CSV should receive any rents or revenues from the Property, on or after Receiver takes
Receiver shall be paid fees calculated on an hourly basis, at rates previously provided to
Submitted to
Receiver shall be authorized and empowered to, and when required by this Order must, do
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i-."!t'Gftke'opertjroh
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, iBffe'{F:ll\W,;;-Ifo. ---
manage and operate the Property shall include the power to assume or reject executory contracts,
including leases. Except as stated in Paragraph 18 ofthis Order. the power to possess, manage, and
operate shall also include the right to exclude from the Property anyone, including CSV and any
persons claiming under or through CSV, who are not in possession ofthe Property under valid lease
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or rental agreements or acting pursuant to an order or authority granted by the Department of Toxic
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operations or management of any busess operated wi1hin the Property, nor, is Recei ver required to
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assure that
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any required licenses and per.mi.ta applicable to any business currently conducted at or
(b)
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Rents and profits: Receiver shall have the right and power to take possession
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and control ofany rents, profits, or income whatsoever generated by the Property ("Rents") after the
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Effective Date, including any pre-paid Rents and profits, Rents and profits due and owing, and any
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Rents and profits which become due and owing thereafter on the Effective Date, whether held by
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CSV, its property managers, tenants, or any other third party. Receiver shall deposit all funds
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received in an FDIC insured deposit account ("Receivership Account,,). Receiver may receive and
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operations ofthe Property and collect and hold all Rents, profits and other revenues generated by the
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use and occupancy ofthe Property in the Receivership Account for which the authorized signatory
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shall be Receiver and, at Receiver's option, designated agents ofReceiver. Receiver shall pay the
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noimal, ordinary, and necessary operating expenses ofthe Property from the rents and other
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revenues collected from the Property, subject to the limitations set forth in paragraph numb ered 8G)
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below; otherwise, such costs shall be paid by Plaintiff following Receiver's delivery to Plaintiff of
#804!>4 vl 1sf
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[PROPOSED] ORDBR. APPOINTING RECEIVER EX PAR.TB ANDTRO
CERF SPYJ, LLC vs. Cherokee Simeon Venture 1, LLC.
Contra Costa Superior Case No. Cl2-00284
invoices describing such expenses in detail. All Rents, profits and revenue generated by the use and
occupancy ofthe Property shall be applied first to the payment of Operating Expenses.
Expenses shall include, without limitation, insurance, maintenance and repairs, utilities, payroll,
administration, refunds of security deposits, real property taxes, and assessments. Operating
Expenses shall not include, and Receiver shall not pay without further order of this Court or
Plaintiff's written consent: (i) any alle ged obligations owed to CSV, its agents, assigns, or to any
entity, person, partnership or cotporation owned, in whole or in part, by, related to, or otherwise
affiliated with CSV, or (ii) any obligations or payments owed, or claimed to be owed, to any junior
lien holder. All Rents, profits and revenue generated by the use and occupancy of the Property shall
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then be applied to other fees, costs or expenses associated with the Property, as permitted by the
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Operating
Protection of the Prqpert;y and Insurance: Receiver shall have the power to,
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and is ordered to, protect the Receivership Estate. "Receivership Estate" shall mean the Property,
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Rents and profits, and other income derived from the Property and assets from any destruction, or
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waste.
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there ls sufficient insurance coverage to protect Plaintiff's security interest in the Property. If
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necessary,
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maintain existing insurance policies (except the PLL Insurance Policy referenced in Paragraph 17(b)
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below) and pay any premiums due from available funds of the Receivership Estate. Receiver shall
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not be persomtlly liable for any insurance claims arising before or after the appointment of a receiver
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and procuremcmt of sufficient insurance. If insurance is not currently in place and cannot be
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obtained by Receiver, the Court shall be notified within 30 days from the
Receiver shall determine upon taking possession ofthe Receivership Estate whether or not
Receiver shall attempt to procure sufficient insurance coverage as soon as practicable,
available.
Receiver may
:iiiillia:eampell$ate
(e)
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are
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- ,;4;),
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of the Receivership Estate. Receiver shall also file a supplemental inventory thereof; if necessary.
Periodic Accounting: Receiver shall provide periodic statements of account
(g)
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that include a
summary
receipts and disbursements, a summary of Receiver and its professional's interim fees and expenses,
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and other such information as the Court may direct. Receiver sba11 file said accounting with. the
Court and shall serve upon Plaintiff's counsel and CSV' s counsel a copy of said accounting.
Receiver shall file a final report within 3 0 days after the termination of the receivership.
(b.)
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(i)
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Collect past due Rents and profits from tenants or former tenants of the
Property, and collect Rents and profits while this Order is in effect;
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(ii)
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(iii)
Evict tenants;
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(iv)
(v)
Incm and pay such other expenses as are reasonably necessary for
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to P1aintiff;
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to the Property.
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(f)
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(vi)
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(vii)
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Property in order to determine their value and expenses, provided that such investigation does not
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substantially increase the costs of the receivership over the compensation provided to Receiver
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(viii)
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Investigate and evaluate the Property for the presence of any readily
apparent dangerous conditions, hazardous waste, substances or chemicals that is not the subject of
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20, 2011 Revised Draft Feasibility Stady and Remedial Action Plan for Lots 1,2, and 3,
the JUly
(ix)
amendment to same;
required for health and safety reasons, property management fees, including :reimbursement for costs
on a monthly basis from the assets now held, or which may be received by, t1re Receivership Estate,
(x)
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capital
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improvements to the Property required to bring the Property to good condition and allow the lease of
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the Property or any portion of the Property. ReCeiver shall first make any emergency capital
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improvements or repairs which are necessary, in Receiver's business judgment, to protect persons
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and the Property from serious bodily harm or damage. Receiver shall promptly notify Plaintiff and
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(xii)
{)
and,
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(i)
General Receivership Powers. In addition to all of the powers set forth above,
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general powers of receivers in cases of this kind, subject to the direction of this Court.
(j)
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Receiver shall not, absent the consent of Plaintiffor further order of this Court:
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(i)
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particularly set forth in paragraph 13 below, Receiver may request loans from Plaintiff at Plaintiff's
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option and/or election to make any of the repairs and perform any maintenance determined by
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Receiver in his business judgment to be necessary to keep the Property in good condition, and any
emergency capital improvements or repairs as allowed above. Any and all loans Receiver obtains
from Pl pursuant to this paragraph, shall be: (i) deemed obligatory advances on the
indebtedness; (ii) added to the balance due; and (iii) secured by the operative Deed of Trust.
(ii)
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Court, execute any documents that (i) result in a subdivision of the Property, or (ii) that result in a lot
(iii)
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(''Tax Retum'') or for dissolution of CSV. The responsibility for such filings lie exclusively with
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csv.
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10.
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Estate upon ten (10) days notice to the parties. If no written specific objection is provided to
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Receiver on all fees and expenses submitted; Receiver may pay its invoice and professional fees and
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day period, Receiver must respond within a reasonable time to the parties with an acceptable
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explanation. If an agreement cannot be reached, a noticed motion on shortened time will be filed
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with the Court for approval of the fees and expenses in dispute.
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11.
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Receiver has no control, shall be obligations of CSV and may not be refunded by Receiver without
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an
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have paid or may pay to Receiver, if otherwise refundable under the terms of their leases or
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agreements with Receiver1 shall be refundable by Receiver in accordance with the leases or
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agreements.
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12.
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Receiver's fees and expenses will be paid monthly from available funds of the Receivership
If an
Any security or other deposits which tenants have paid to CSV, or its agents, over which
order of this Court or approval of Plaintiff. Any other security or other deposits which tenants
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miime!fi!:p]ftiontotbisealtti
f0f'OM.ets"'llel.Vtfff0'1f:
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Receiver is authorized to borrow from Plaintiff such funds as are necessary to perform bis
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duties as set forth in tbis Order. No obligation on the part of Plaintiffto advance or loan funds to the
Receiver shall arise prior to the Receiver's preparation of a budget for management and operation of
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the Property, and the approval of said budget by Plaintiff. In any event, Plaintiff shall have no
obligation to advance or loan funds to the Receivership Estate except in its sole and absolute
discretion. In consideration for any such advance or loan, Receiver is authorized to and sh.all issue
indebtedness for any such advances made by Plaintiff pursuant to this Order. All Receiver's
Certificates shall be executed and delivered to Plaintiff by Receiver as a condition to funding, and
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shall be numbered in sequential order for redemption purposes. All indebtedness represented by a
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Receiver's Certi.fi.cate(s) shall be and constitute a lien and charge upon all assets of the Receivership
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14.
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Receiver is transferred by reason of a judicial foreclosure sale or nonjudicial trustee's sale conducted
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pursuant to the tenns of the Deed of Trust sued upon in this action, Receiver shall immediately "turn
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over possession and control of the applicable property, together with the Books and Records, and all
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personal property associated therewith to the new owner upon presentation to Receiver of a certified
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copy of the deed evidencing such transfer, or upon Order of this Court made upon an ex parte
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15.
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In the event that the title to a specific prQPerty and the personal property hereby entrusted to
Plaintiff and Receiver shall cooperate with CSV and Zen.eca, Inc., to effectuate the remedial
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PRELIMlNARY INJUNCTION
IT IS FURTHER ORDERED that CSV, along with any of its trustees, property managers,
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16.
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co-trustees, partners, employees, agents,' representatives, contractors and any other person or entity
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under their control \'Related Parties") are hereby enjoined and restrained from:
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(a)
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(b)
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:fixtures
i:
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(c)
(d)
(e)
In addition, CSV and Related Parties shall be obligated to do, and shall be restrained from
17.
(f)
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originals of the Books and Records to Receiver if so requested by the Receiver. CSV shall assist
as
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Receiver in obtaining complete copies of the same in the event the Books and Records are held by
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persons or entities other than CSV. CSV shall promptly, upon request by Receiver, furnish to
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Receiver copies of such other financial infonnation or backup documentation relating to those Books
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and Records.
(g)
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with the property insurance policies and policy information for the Property. CSV shall make
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certain that Receiver is named as an additional insured on all applicable policies for the period that
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Receiver shall be in possession of the Property, except for the Pollution Legal Liability Select Clean-
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Up Cost Cap Insurance, Policy No. 195 8035 ("PLL Policy") issued by American Intematlonal
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Specialty Lines Insurance Company, on which the Receiver shall not be named as an additional
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insured ..
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18.
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selling, leasing or otherwise disposing of any of the personal property, fixtures and/or improvements
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located in and around the properties. In addition, CSV and Related Parties are enjoined and
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restrained from creating any dangerous conditions on the Property and from interfering with the
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CSV and Related Parties shall be enjoined and restrained from transfening, appropriating,
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Notwithstanding the foregoing, CSV and/or Zeneca, Inc., shall have the right upon
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reasonable written notice to Receiver and Plaintiff, to enter upon the Property to ex.amine, test and
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inspect the environmental condition of the Property and to perform any and all acts related to the
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Environmental Indemnity Agreement executed by CSV in favor of CERF, dated September 6, 2007
(''BIA"), related to any agreement or mandate from any governmental entity or official, including but
not limited to, implementing any remedies set forth in a Final Remedial Action Plan for Lots 1,2 and
approved by or required by any governmental official or entity. As between CSV and the Plaint:ttI:
all terms and provisions contained in the EIA shall remain in place, including CSV's responsibility
for any damages to the Property as a result any investigatio testing or remedial WQrk it performs on
the Property.
In the
event CSV is unable to provide Receiver with evidence of insurance required by this
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Order, Receiver,, in its sole discretio may, as set forth in paragraph 8(d) above, elect to acquire the
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insurance and
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19.
CSV and Related Parties shall be restrained and enjoined from transferring or
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assigning, or encumbering atiy interest in the Property without further order of this Court. In
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addition, CSV and Related Parties shall be restrained and enjoined from committing or pennitting
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any waste on the Property or any part thereof: or suffedng or committing or permitting any act on
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the Property or any part thereof in violation of law or removing or transferring or otherwise
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disposing of any of the equipmeJrt or fixtures presently on the Receivership Estate or any part
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20.
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Plaintiff is not required to file a preUminary injunction bond specified in California Civil
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In the event that any or all of the Property is sold in a non-judicial or judicial foreclosure
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proceeding, and the receivership remains in effect. funds previously paid to and held by Receiver
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.shall continue to be held by Receiver until Receivers final account and report (the "Final Report") is
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approved by the Court. After Court approval of the Final Report and payment of all Court approved
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Receivership Estate expenses, Plaintiff shall receive net proceeds in accordance with the operative
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loan documents attached to and referenced in the Verified Complaint in this matter.
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In the event that the obligations owing to Plamtiff m:e not fully satisfied by the proceeds of
such sale, or in the event that this action is dismissed or the receivership is terminated for any reason
whatsoever. Receiver, upon Court approval ofR.eceiver's Final Report and payment of all Receivership
Estate expenses, shall be authorized to release, within two (2) business days ofReceiver's receipt of a
'Written request by Plaintiff, all net funds under Receiver's control to Plaintiff to be applied toward any
obligations CSV may owe pursuant to the loan documents set forth in tb.e Complaint. In the event that
this receivership is terminated and.no foreclosure sale of the Properties has occurred or the loan has
been fully satisfied by the proceeds of a judicial or non-judicial foreclosure sale of the Property or
otherwise, all funds under Receiver's control shall be disbursed pursuant to the Court's instructions
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23.
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documents and any obligations incurre d by or to Receiver, Plaintiff and Receiver shall cooperate to
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promptly prepare and obtain Court approval of a Final Report and an order discharging Receiver and
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24.
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foreclosure sale, whether judicial or non-judicial, relating to the Note or Deed of Trust and all debt
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under the Note is fully paid; (ii) Plaintiff consents to the termination of the Receivership; and (ill)
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the Court issues an order approving the Receiver's Final Report, discharging the Receiver and
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Promptly upon the satisfaction of the entire indebtedness to Plaintiff pursuant to the loan
Receiver shall remain an agent of this Court until: (i) the Property and all security is sold at a
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IT IS SO ORDERED.
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JUDITH A. SANDERS
DATED:
JUL 1 2 201Z
Judge of the Superior Court
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'fro T@
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