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MSCI 2006-IQ11 Logan Boulevard Limited Partnership v. Greater Lewistown Shopping Plaza, L.P.

United States District Court, M.D. Pennsylvania

February 6, 2017

MSCI2006-IQ11 LOGAN BOULEVARD LIMITED PARTNERSHIP, a Delaware limited partnership, Plaintiff,
v.
GREATER LEWISTOWN SHOPPING PLAZA, L.P., a Pennsylvania limited partnership, Defendant.

          ORDER FOR APPOINTMENT OF RECEIVER

          MATTHEW W. BRANN, U.S.D.J.

         AND NOW, this 6th day of February, 2017, upon consideration of the renewed motion for appointment of receiver of plaintiff, MSCI IQ11 Logan Boulevard Limited Partnership, a Delaware limited partnership ("Plaintiff'), the Revised Affidavit of Aaron P. Guillotte and Plaintiffs supporting memorandum, it is ORDERED that Plaintiffs motion be and hereby is GRANTED as follows:

         1. APPOINTMENT OF THE RECEIVER

         (a) Metro Commercial is hereby appointed for the benefit and protection of the rights and interests of Plaintiff as the receiver (the "Receiver") for all real and personal, tangible and intangible property (including, without limitation, all structures, leases, fixtures and moveable personal property) owned by Borrower and located at 306 South Logan Boulevard, Lewistown, Pennsylvania 17044, including but not limited to all of the "Mortgaged Property" as defined in the Open-End Mortgage, Assignment of Leases and Rents and Security Agreement effective as of March 28, 2006 (the "Mortgage"), from Borrower to IXIS Real Estate Capital Inc., duly recorded and ultimately assigned to Plaintiff (the "Property").

         (b) Appointment of the Receiver is expressly authorized by Sections 2(a) and 10(a)(vii) of the Mortgage and is otherwise warranted by the exigencies of the circumstances.

         (c) The Receiver's qualifications and fee schedule for this engagement are attached hereto as Exhibit A, All payments to the Receiver shall be added to the total indebtedness owed by Borrower to Plaintiff.

         (d) The Receiver shall serve without bond.

         2. TERM OF THE RECEIVER

         (a) The Receiver shall serve as the receiver for the Property for a period which shall commence on the date of this Order and shall continue, notwithstanding the entry of judgment in favor of Plaintiff (whether by consent or otherwise), subject to the terms of Section 2(b) below, until the earliest to occur of: (i) the termination of such appointment by a subsequent Order of Court or by the delivery by Plaintiff of a Termination Notice as hereinafter defined and provided; (ii) the sale of the Property to a third party; (iii) Plaintiffs (or its nominee's, designee's or assignee's) acquisition of fee simple title to the Property through the delivery to Plaintiff (or its nominee, designee or assignee) of a sheriffs deed to the Property or by deed in lieu of foreclosure; or (iv) full payment of all of sums due and owing under the Loan Documents (as defined in the Mortgage).

         (b) Notwithstanding the terms of Section 2(a) above, at Plaintiffs request following the occurrence of the events described in clauses (ii) or (iii) of Section 2(a) above, the Receiver shall continue the receivership for such reasonable period of time as may be necessary to wind up the receivership and transfer possession and control of the Property to the new owner thereof. In connection therewith, the Receiver shall deliver to Plaintiff and/or the new owner of the Property all documents pertaining to the Property in the Receiver's possession, including without limitation all books and records (including invoices), permits, plans, leases, licenses and contracts, and perform such other duties as may be reasonably necessary to cause an orderly transition of possession, control, and management of the Property to the new ownership. Within 30 days after the termination of the receivership, the Receiver shall render a full accounting to Plaintiff and shall promptly provide a copy of such accounting to Borrower. In such event, the receivership established hereby shall automatically terminate upon written notice from the Receiver to the Plaintiff and this Court indicating that the Receiver has completed its duties under this Section 2(b).

         (c) The receivership authorized and created hereby may be terminated at any time by Plaintiff by filing with the Court and serving upon the Receiver and Borrower a Notice to Terminate Appointment of the Receiver (a "Termination Notice").

         3. POWERS AND DUTIES OF THE RECEIVER

         The Receiver shall have all necessary powers to operate and manage the Property, all in accordance with the terms hereof, including, without limitation, the following powers:

         (a) To enter upon and take immediate possession of the Property and the rents, income, revenues, proceeds and profits derived therefrom (collectively, the "Rents") and all personally owned by Borrower that relates in any manner to the management or operation of the Property, including without limitation all books, records, bank accounts, reserve accounts, cash on hand, keys, and combinations for locks or other access information in the possession of or reasonably available to the Borrower or its property manager, to open all mail and other correspondence received in connection with the Property whether addressed to Borrower or its property manager or otherwise, and to access and use all office equipment used by Borrower or its property manager at the Property, including all computer equipment, software programs and passwords;

         (b) To take all actions necessary to preserve, maintain, operate and manage the Property;

         (c) To employ such counsel and, with the consent of Plaintiff, such accountants or other professionals, contractors and support personnel and other persons as may be necessary in order to carry out its duties as the Receiver and to preserve, maintain and operate the Property, and to compensate such persons at competitive rates, without further Order of this Court, at their respective hourly rates, plus reimbursement of all reasonable and necessary out-of-pocket expenses;

         (d) To commence, prosecute or defend such actions at law or in equity (in its own name or in the name of Borrower) that the Receiver deems necessary to fulfill its ...


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