HomeMy WebLinkAbout20181452.tiffCORDES
CORDES&COMPANY
April 27, 2O18.
Weld County Clerk and Recorder
Box 459
Greeley, CO 8O632
5299 DTC Blvd., Suite 600
Greenwood Village, CO 80111
T: 303.721.8755
CordesCo.com
Re: Pickett Dairy, LLC in Receivership, District Court of Weld County, State
of Colorado, Case Number 18CV3O374
To whom it may concern:
On April 24, 2O18, Cordes & Company, Inc. was appointed Receiver over
certain assets of Pickert Dairy, LLC in a case entitled Farmers Bank v. Pickert.
Diary, LLC, W. Bradley Pickert, Sr., W. Bradley Pickert, Jr. and Scott J. Pickert,
Case No. 2018CV30374 currently pending in the District Court, Weld County,
Colorado. A copy of the Order appointing the Receiver ("Receivership
Order") is enclosed for your reference.
Your company has been identified as a vendor of Pickert Dairy, LLC. If your
company has amounts due and owing from Pickert Dairy, LLC, we request that
you forward copies of all unpaid invoices and documents in support of
outstanding balances to the Receiver as follows:
Pickert Dairy, LLC Receivership Estate
c/o Cordes & Company
5299 DTC Boulevard, Suite 6OO
Greenwood Village, CO 80111
Farmers Bank holds a secured claim encumbering the assets of Pickert Dairy,
LLC. All amounts due and owing your company prior to the entry of the
Receivership Order on April 24, 2O18 are unsecured claims of the Pickert Dairy,
LLC Receivership Estate and will be paid only after payment of all secured
claims against the Pickert Dairy Receivership Estate.
Should you have questions concerning the Receivership Order or this notice,
please do not hesitate to contact me at 3O3 -796-11O4.
Sincerely,
Cordes & Company, Solely as Receiver for
Pickert Dairy, LLC Receivership Estate
Patrick M. Donovan
Managing Director
Enclosure
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District Court, Weld County, State of Colorado
901 9th Avenue
Greeley, CO 80631
Court Telephone: 970-475-2400
DATE FILED: April 24, 2018
CASE NUMBER: 2018CV30374
Plaintiff: FARMERS BANK,
v.
Defendants: PICKERT DAIRY, LLC, W. BRADLEY
PICKERT, SR., W. BRADLEY PICKERT, JR., and
SCOTT J. PICKERT.
A COURT USE ONLY A
Case Number: 18CV30374
Div. 5
ORDER GRANTING MOTION FOR EX PARTE
APPOINTMENT OF RECEIVER-CORDES & COMPANY, INC.
THIS MATTER having come before the Court on the Verified Complaint and Verified
Motion for Ex-Parte Appointment of a Receiver filed by FARMERS BANK ("Bank"), and the
Court having reviewed such filings,
HEREBY FINDS:
A. The allegations set forth in the Verified Complaint establish that the Collateral
includes certain assets of Pickert Dairy, LLC, including, but not limited to: Accounts and Other
Rights to Payment; Inventory; Equipment; General Intangibles; and Farm Products and Supplies
(collectively the "Collateral"). The allegations set forth in the Verified Complaint establish a right
to the appointment of a receiver to, among other things, take possession and control of the
Collateral, to utilize and operate the Collateral, sell the Collateral in the ordinary course of
liquidation or as an ongoing concern and for the other relief requested therein.
B. Lender is the holder of the First Loan and Second Loan, Commercial Security
Agreement, Agricultural Security Agreement, Deeds of Trust and together with all other
documents executed in connection therewith (collectively the "Loan Documents"), executed by
Pickert Dairy, LLC, and the Individual Defendants, as more fully described in the Verified
Complaint and Motion.
C. The Loan Documents created a lien on and security interest in the Collateral which
was perfected by virtue of by filing a Colorado Secretary of State on November 1, 2001 at
Reception No. 2001F100089 (the "Financing Statement"). The Financing Statement was also
continued several times over the years by filing the necessary Continuation Statements with the
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Colorado Secretary of State. The most recent Continuance Statement was recorded on May 25,
2016 at Reception No. 20162047807.
D. The Loan Documents also granted an encumbrance against real property known by
street and number as 19504 County Road 5, Berthoud, Colorado 80513 ("Real Property"). The
legal description of the Real Property is attached hereto as Exhibit 1. The Real Property is owned
by W. Bradley Pickert, Sr. ("Sr. Pickert") and/or the W. Bradley and Everdina Pickert Loving
Trust dated June 1, 1990.1
E. Under the terms of the First and Second Deeds of Trust (as described in the Motion
and Verified Complaint) Sr. Pickert and Ms. Everdina Pickert pledged the Real Property and
assigned all rents as wells as granted a security interest in the rents and personal property related
to the Real Property to secure the Defendants' repayment of the loans. See Complaint, Exh. 3.
F. Similarly, the First and Second Deeds of Trust entitles the Bank to the appointment
of a receiver to take possession of all or any part of the Real Property, with the power to protect
and preserve the Real Property, to operate the Real Property preceding a foreclosure or sale, and
to collect all rents from the Real Property and to apply the proceeds after costs of the receiver to
the indebtedness. See Complaint, Exh. 3.
G. The Defendants are in default to Lender under the Loan Documents for, among
other things, failing to make all payments of principal and interest as required under the Loan
Documents.
H. Lender has a right to the appointment of a Receiver over the Collateral, as well as
all rents, issues, profits and income therefrom, and a Receiver is otherwise appropriate considering
all of the circumstances of this case to protect the Collateral and Real Property and Lender's
interest therein. Based on the standards set forth in C.R.C.P. Rule 66, C.R.S. §4-9-601, et seq.,
and case law thereunder, the Lender is entitled to entry of this Order.
I. Similarly, under the Deeds of Trust, and C.R.S. §38-38-601, et seq., the Lender is
entitled to the appointment of a receiver for the Real Property, ex parte and without notice to
preserve the Real Property, and the rents, issues and profits thereof.
J. The appointment of a receiver will not disserve the public interest and the equities
favor the appointment of a receiver and the appointment of a receiver will preserve the assets of
the estate.
K. Pursuant to applicable law, Lender is entitled to the appointment of a receiver for
the Collateral including without limitation all of the property described in the Loan Documents
The Bank asserts that under the St. Germain Act, 12 U.S.C. §1701j-3, such transfer does not defeat the
senior interests of the Bank.
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and UCC Financing Statements, all Accounts and Other Rights to Payment (whether or not
maintained with Lender); Inventory; Equipment; General Intangibles (including, but not limited
to, any and all interests in trademarks, service marks, patents, licenses, permits and copyrights
identified); and Farm Products and Supplies Accounts, (including, but not limited to, all cattle
wherever located and all feed, hay and silage), all as defined in the Loan Documents attached to
the Lender's Verified Complaint and Motion for Ex Parte Appointment of A Receiver.
Furthermore, Lender is entitled to all proceeds and products of the foregoing, including casualty
insurance thereon, and including without limitation the proceeds of the sale or transfer of all or
part of the Collateral whether such is legally assignable, now owned or hereafter acquired, as all
defined in the Loan Documents attached to the Verified Complaint and Motion for Ex Parte
Appointment of a Receiver.
L. Pursuant to applicable law, Lender is entitled to the appointment of a receiver for
the Real Property, including without limitation all of the property described in the Deeds of Trust,
together with all rents and proceeds of the foregoing, now owned or hereafter acquired, as all
defined in the Loan Documents attached to the Verified Complaint and Motion for Ex Parte
Appointment of a Receiver.
M. Cordes & Company, Inc. whose business address is 5299 DTC Boulevard, Suite
815, Greenwood Village, Colorado, 80111, is a suitable party to be appointed as receiver
(hereinafter referred to as the "Receiver") for the Collateral and Real Property.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED:
1. Cordes & Company, Inc. is appointed as Receiver for the Collateral and the Real
Property. The Receiver shall forthwith take physical possession of, manage,
operate and the Collateral and the Real Property for this Court in custodial legis.
The appointment of the Receiver shall not be deemed a "change in control" or
"change in ownership" of the Defendant under any contracts, franchise agreements,
licenses, permits, or other matters relating to the operations of the Defendant's
business or an assignment of any such contracts, agreements, licenses, and permits.
2. The Receiver shall manage, operate and protect the Collateral and the Real Property
subject to the supervision and exclusive control of this Court.
3. The Receiver shall have all of the powers and authority usually held by receivers
and reasonably necessary to accomplish the purposes herein stated
4. Before entering upon his/her duties, the receiver shall be sworn to perform them
faithfully, and shall execute, with one or more sureties, an undertaking with the
people of the state of Colorado in the amount of $10,000.00 to this division in the
District Court, Weld County, Colorado and shall forthwith file his Oath of Receiver
pursuant to C.R.C.P. 66(b).
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J
5. The Receiver is hereby directed and empowered to take or continue to take from
Defendant, its agents and employees, immediate possession of the Collateral and
the Real Property , and all things relating to the Collateral and the Real Property,
including without limitation rents, revenues, royalties, issues, income, payments
and profits, and any and all personal property used or associated therewith,
regardless of where such property is located, including, but not limited to, franchise
agreements, permits, licenses, rental payments, lease payments, insurance
payments, condemnation awards, operating accounts, merchant accounts, including
those accounts which may be in the names of third parties to the extent that they
contain payments or proceeds from credit card issuers made on behalf of the
customers, bank accounts, security deposits, records, files, reports, studies, options,
contracts, and similar relationships with third parties, leases, occupancy
agreements, rent rolls, agreements, permits, licenses, cheeks, drafts, notes,
documents, accounts receivable, fixtures, furniture, furnishings, software,
computers, appliances, supplies, construction materials, goods, equipment, and
other things and articles of any and all types and kinds used or associated with the
Collateral and the Real Property . The Receiver is further empowered to exclude
Defendants, their agents and employees from such possession. The Receiver shall
operate the Collateral and the Real Property at the level reasonably deemed
appropriate which may be at a limited service level or may include suspension of
operations, and collect the rents, revenues, income, profits and other benefits from
the operation and management of the Collateral and the Real Property, all of which
will be held and disbursed pursuant to this Order.
6. The Receiver is hereby appointed to take charge of and to manage, operate and
protect the Collateral and is hereby given the powers and authority usually held by
receivers and reasonably necessary to accomplish the purpose of this receivership,
including, but not limited to, the following powers, all of which may be exercised
without further order of this Court, except as expressly stated below:
a. to enter upon any real property where the Collateral and the Real Property
is located, take possession of and assume control of the Collateral and all
improvements thereto and all books, records and real and personal property
relating to the Collateral and the Real Property including without
limitation computers, computer records and software systems and similar
records and computer systems relating to information for the Collateral and
the Real Property .
b. to retain security personnel as necessary to secure the Collateral and the
Real Property;
c. to conduct a full inventory of all personal property comprising a part of the
Collateral and the Real Property, if necessary;
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d. to take possession of all bank accounts containing funds associated with the
Collateral and the Real Property, arising from the Collateral and the Real
Property and any proceeds of the Collateral and the Real Property, including
all merchant accounts, whether in the name of all or any of the Defendants
or in the names of third parties, to the extent that they contain payments or
proceeds from credit card issuers made on behalf of the customers and to
open, transfer and change all bank and trade accounts relating to the
Collateral and the Real Property, so that all such accounts are in the name
of the Receiver; and to make withdrawals from and issue checks upon such
accounts to fund the operations of the receivership;
e. to manage, operate, maintain and otherwise control the Collateral and the
Real Property as necessary to prevent diminution of the Collateral's and the
Real Property's value and the Plaintiffs interest therein including, but not
limited to, (I) collection of deposits, fees, rents, income, issues, profits,
royalties, payments and revenues of any kind or nature whatsoever relating
to or arising in connection with the Collateral and the Real Property now
due or which may hereafter become due and to immediately take whatever
steps are reasonably necessary to secure all such income, and (ii) to
negotiate, extend, terminate, modify, renegotiate, ratify or enter into leases,
franchise agreements, contracts or other agreements related to the repair,
maintenance, operation, rental occupancy, use or leasing of the Collateral
and the Real Property and to contract for tenant finish or other capital
improvements with respect to all or any portion of the Collateral and the
Real Property, and (iii) from the date of this order, the payment of taxes,
insurance, utility charges and other expenses and costs incurred in
managing and preserving the Collateral and the Real Property provided
however, that the Receiver shall obtain the prior written approval of the
Plaintiff for any such single cost or expense in excess of $10,000 which
approval shall be deemed granted as a matter of course, unless an objection
to such expense is given to the Receiver within five (5) business days after
the giving of written notice by the Receiver of the proposed expense to the
Plaintiff and its counsel;
f. upon approval of the Court to suspend operations related to the Collateral
and the Real Property;
g. to enforce, modify, renegotiate, or terminate, if appropriate, any existing
contracts relating to the Collateral and the Real Property and to enter into
new contracts;
h. to perform ordinary and necessary repairs and maintenance to ensure the
Collateral's and the Real Property's value is maintained, subject to the
limitations set forth in subparagraph 6.e. above;
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to make, enforce, modify, negotiate and enter into such reservations, leases,
rentals, occupancy, use and other contracts and agreements with regard to
the Collateral and the Real Property as the Receiver may reasonably deem
appropriate in connection with the discharge of the Receiver's duties and in
the case of any such leases, contracts or agreements which are not in the
best interests of the Collateral and the Real Property to rescind or terminate
the same; provided, however, except for future reservations, no such
contracts and agreements shall extend longer than 60 days beyond the
termination of the Receivership unless authorized by Plaintiff, which
authorization shall be deemed granted as a matter of course, unless an
objection to a specific agreement is given to the Receiver within ten (10)
business days after the giving of written notice by the Receiver of any
agreement for which approval is required to the Plaintiff and its counsel, if
any;
to open, transfer and change all bank and trade accounts relating to the
Collateral and the Real Property, including all merchant accounts, whether
in the name of Defendants or in the names of third parties, to the extent that
they contain payments or proceeds from credit card issuers made on behalf
of customers, so that all such accounts are in the name of the Receiver;
k. to obtain and renew all insurance policies that the Receiver deems necessary
for the protection of the Collateral and the Real Property and for the
protection of the interests of the Receiver and the parties to this action with
respect to the Collateral and the Real Property, but in no event shall the
Receiver maintain insurance for the Collateral in an amount less than that
required in the industry; and to notify any insurers of the Collateral and the
Real Property of the pendency of these proceedings and that, subject to the
prior rights of any person possessing a lien on the Collateral and the Real
Property, any proceeds paid under such policies shall be paid to the
Receiver;
1. upon approval by the Plaintiff, to issue Receiver's certificates for the
purpose of preserving and maintaining the Collateral and the Real Property,
payment of insurance and to meet working capital needs of the Collateral
and the Real Property in excess of income, without further approval of this
Court, in exchange for funds advanced by third parties or by the Plaintiff,
during the term of the receivership, which Receiver's certificates shall bear
interest and which Receiver's certificates shall be a lien and security interest
in favor of the party advancing such funds and a preference claim upon the
Collateral and the Real Property, and in the event funds shall be advanced
by the Plaintiff, shall be added to the outstanding indebtedness due under
the Loan Documents;
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m. to borrow from the Plaintiff, on such reasonable terms as may be mutually
acceptable to the Plaintiff and the Receiver, funds to meet working capital
needs of the operation and/or preservation of the Collateral and the Real
Property in excess of the income from the Collateral and the Real Property,
such funds to be advanced to be added to the outstanding indebtedness of
the Defendants or to be evidenced by one or more Receiver's certificates as
provided in subparagraph 6(1) above, as the Plaintiff and the Receiver may
mutually determine;
n. to apply for, transfer, obtain and renew, as necessary to prevent the loss of
or loss of use of all licenses, permits and entitlements required for the
operation of the Collateral and the Real Property or issued in connection
therewith;
o. with respect to any operation or activity that is now conducted with respect
to the Collateral and the Real Property or is customarily conducted by the
Defendants, and that may lawfully be conducted only under governmental
license or permit, to continue such operation or activity under the licenses
or permits issued to Defendants subject to compliance with the terms
thereof;
P.
q.
to enter into contracts for those services necessary to aid the Receiver in the
administration of the Receivership, including the retention of attorneys and
accountants and other professionals, with all reasonable expenses incurred
in connection therewith deemed to be expenses of the Receivership;
to institute such legal actions as the Receiver deems necessary to: (I) collect
accounts and debts, and enforce reservations and other agreements relating
to the Collateral and the Real Property, (ii) recover possession of the
Collateral and the Real Property and deposits from persons who may now
or in the future be wrongfully occupying or possessing the Collateral and
the Real Property or any part thereof, and (iii) enforce all rights of action
and claims for recovery arising out of or related to the Collateral and the
Real Property or its operations, including without limitation seeking
substitution as the real party in interest in pending causes of action; to settle
mechanic's liens, subject to Court approval; and to investigate and, if the
Receiver deems appropriate, protest property taxes for all or parts of the
Collateral and the Real Property, and, where available, file for abatement of
previously paid property taxes;
r. to change any or all locks at the Defendants' place(s) of business;
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s. to ratify, confirm, renegotiate, modify, and hold all lease agreements,
franchise agreements, rental agreements, contracts, and other agreements
relating to the operation, management of the Defendants' business,
including, without limitation, any settlement agreements entered into with
respect to former or existing agreements, contracts, and other agreements
and to deal as appropriate with and hire or terminate future managers, rental
agents, or professionals dealing with the Collateral and the Real Property;
t. to hire such brokers or other professionals for the Collateral and the Real
Property as the Receiver deems appropriate to assist with listing and
marketing the Collateral and the Real Property;
u. to generally do such other lawful acts as the Receiver reasonably deems
necessary for the effective operation and management of the Collateral and
the Real Property and to perform such other functions and duties as may
from time to time be required and authorized by this Court, by the laws of
the State of Colorado or by the laws of the United States of America;
v. with prior approval by the Plaintiff sell, assign or otherwise dispose of all
or any portion of the Collateral and the Real Property;
w. to authorize and file any avoidance, recovery and other actions against any
and all parties, including, but not limited to, third parties, principals,
insiders, officers and directors of the Defendants, and subsequent
transferees, to avoid and recover any unlawful distributions and/or transfers
of assets, and/or to recover on any claims at law or in equity, furthermore,
such recoveries shall be free and clear of any liens of any secured creditors
of the Defendants;
x. to cancel and/or void any issuance of the Pickert Dairy, LLC's membership
units stock to insiders of Pickert Dairy, LLC, and to sell Pickert Dairy,
LLC's corporate shell and any and all tax attributes held by Pickert Dairy,
LLC, including, but not limited to, net operating losses, to any appropriate
third parties;
y
to authorize and file a voluntary petition for bankruptcy for Pickert Dairy,
LLC, and to retain counsel and any other professionals necessary to assist
the Receiver with any bankruptcy case; and,
z. to take any further actions that are customarily performed by or attributed
to a receiver in similar circumstances.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED
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1. The Receiver is hereby authorized to apply the rents, revenues, income, issues and
profits collected by the Receiver in connection with the management and operation
of the Collateral and the Real Property: first, to the Receiver's compensation as
identified above; second, to the other costs and expenses of the receivership,
including any management fees, attorney fees and other out -of pocket expenses
incurred by the Receiver in connection with the receivership; third, to the costs of
operating, maintaining and repairing the Collateral and the Real Property; fourth,
to payment of expenses of the Collateral and the Real Property, including but not
limited to payment of real and personal property taxes, insurance, water and
sanitation bills, utilities and other operating expenses; fifth, to repay all sums
borrowed by the Receiver as evidenced by Receiver's Certificates; sixth, whenever
sufficient funds are available for such purpose, the Receiver shall make principal
and interest payments toward any loans which are secured by a lien on the
Collateral and the Real Property, in the order of their priority, and seventh to a fund
to be held by the Receiver in an interest -bearing account, pending further order of
this Court.
2. That, on a monthly basis, to pay itself as compensation for its services as Receiver
as provided in the fee schedule attached to Mr. Donovan's Affidavit, which was
attached to the Motion, and to reimburse itself for customary expenses incurred.
When the Receiver files each quarterly accounting to the Court as set forth below,
the Receiver shall report the payment of his compensation earned during that
quarter.
3. In the event of an objection to any Receiver's proposed action under subparagraph
6(e) or 6(h) above, then the Court shall promptly hold a hearing on such objection
upon at least three (3) days' prior written notice to all objecting parties. Any
agreement entered into pursuant to any such subparagraph, with Court approval as
necessary, which extends beyond the termination of this Receivership shall be
binding upon the Defendants, the Plaintiff, all subsequent owners of the Collateral
and the Real Property, any purchaser of the Collateral and the Real Property at any
public sale, and any person who redeems the Collateral and the Real Property after
public sale.
4. Notwithstanding anything to the contrary contained in this Order, the Receiver shall
not take any action with regard to ownership, operation, control, storage,
generation, or disposal of (a) any substance deemed a "hazardous substance,"
"pollutant," "contaminant," or similar substance under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. §§ 9601-9675, the Conservation and Recovery Act of 1976, the Solid Waste
Amendments of 1984, the Superfund Amendments and Reauthorization Act of
1986, and any other amendments; or (b) any other chemical, toxant, pollutant or
substance defined as hazardous or dangerous to human health under any other
federal, state or local law, regulation, rule or ordinance, including, without
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limitation thereto, petroleum, crude oil, or any fraction thereof (all collectively
referred to herein as "Hazardous Substances"), without first applying for and
obtaining an Order of this Court specifically setting forth the action or actions
proposed to be taken by Receiver. Without first applying for and obtaining such
an Order of this Court, Receiver shall have no ownership, control, authority or
power (neither shall Receiver have any obligation to exercise ownership, control,
authority or power) over the operation, storage, generation or disposal of any
Hazardous Substances. All decisions relating to the ownership, operation, control,
storage, generation and disposal of any Hazardous Substances shall be resolved by
this Court; and
5. That commencing with the first full month after his appointment, the Receiver shall:
a. provide on a quarterly basis to the parties to this action information relating
to the management and operation of the Collateral and the Real Property
including financials; and
b. within twenty (20) days after the end of each third full month file with this
Court a report concerning the Receivership activity of the Collateral and the
Real Property and an accounting to the Court for the preceding quarter, and
shall serve same on counsel for Plaintiff, Defendant and all other persons
who enter an appearance in this action. Financial information may be filed
directly with the parties.
c. Defendants, and all persons in active concert and participation with them,
including employees, agents, managers, accountants and banks, be and the
same hereby are, ordered:
d. to deliver immediately over to the Receiver or its agents all Collateral and
the Real Property described above, including without limitation, any and all
franchise agreements, lease agreements, permits, licenses, rental payments,
lease payments, keys to the Collateral and the Real Property, accounts
receivable, security deposits, trust accounts, bank accounts, all merchant
accounts, whether in the name of the Defendants or in the names of third
parties, to the extent that they contain payments or proceeds from credit card
issuers made on behalf of the customers, personal need accounts, personnel
files, operations manuals, subscriber lists, billing information, financial
records, payroll records, records, contracts for outside services and
consultants, certificates and licenses, contracts, leases, rent rolls, fixtures,
inventory, supplies, furniture and equipment used or associated therewith,
and all other things of value relating to the Collateral and the Real Property
(including without limitation such records and other papers in its possession
or under its control as may be pertinent to the status of the Collateral and
—10-
the Real Property and the Receiver's operation and management thereof),
properly endorsed to the Receiver when necessary;
e. to continue to deliver immediately to the Receiver all collections on
accounts receivable and credit card receivables, security deposits, lease
payments, rental payments, other collections, books, rent rolls and other
records relating to the operation, maintenance and management of the
Collateral and the Real Property and to permit the Receiver to carry out his
duties hereunder without interference; and
f. when necessary or when requested, to explain the operation, maintenance
and management of the Collateral and the Real Property to the Receiver or
his agents.
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6. That except as may be expressly authorized by this Court hereafter upon notice and
a hearing, Defendants, their agents, employees, representatives or anyone claiming
under such are enjoined from:
a. Other than under the supervision of the Receiver, collecting any rents,
revenues, accounts, issues and profits from the Collateral and the Real
Property or withdrawing funds from any bank or other depository account
relating to the Collateral and the Real Property;
b. Terminating or causing to be terminated any license, permit, lease, contract
or agreement relating to the Collateral and the Real Property or the
operation of the Collateral and the Real Property; or
c. Otherwise interfering with the operation of the Collateral and the Real
Property, or the Receiver's discharge of his duties hereunder.
7. That Sheriff's assistance to enforce the terms of this Order in the form of peace-
keeping duties is hereby authorized.
8. That the Receiver shall forthwith file an oath of Receiver.
9. That Plaintiff or Receiver may from time to time request that the Court enter
additional orders to supplement, clarify or amend this order.
10. In the event there are insufficient funds to repay any receivership expenses as
contemplated, above, the Receiver shall have a lien encumbering the Collateral and
the Real Property having a priority immediately senior to that of any Deed of Trust,
Financing Statement, properly perfected lien and/or encumbrance, and (equal —if the
lien of Receiver's Certificates have a lien senior to the encumbrance) to those of
any Receiver's Certificates issued pursuant to paragraph four above. The Receiver
is hereby authorized to execute and record in the Colorado Secretary of State's
Office and/or the Clerk and Recorder's Office for any county in which the real
property is located Certificates of Lien putting third -parties on notice of such liens.
Any such lien may be released of record by a Certificate of Release of Lien
executed by the Receiver and recorded in the county where such Certificate of Lien
was previously recorded. The Receiver shall be entitled to repayment of all costs
and expenses associated with enforcing such lien and such amount shall be secured
by such lien.
11. In the event that a bankruptcy case is filed by the Defendants during the pendency
of this Receivership, Plaintiff must give notice of same to this Court, to all parties,
and to the Receiver, within 24 hours of Plaintiff's receipt of notice of the
bankruptcy filing. Upon receipt of notice that a bankruptcy has been filed which
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includes as part of the bankruptcy estate any Property which is the subject of this
Order, the Receiver shall do the following:
a. The Receiver shall immediately contact the Plaintiff and determine whether
the Plaintiff intend to move in the Bankruptcy Court for an order for relief
from the Receiver's obligation to turn over the property (11 U.S.C. § 543).
b. If the Plaintiff indicates no intention to make such a motion, then the
Receiver shall immediately turn over the property of the applicable
Defendants to either the trustee in bankruptcy, if one has been appointed, or
if not, then to the debtor in possession, and otherwise comply with 11 U.S.C.
§ 543.
c. If the Plaintiff expresses an intention to immediately seek relief from the
Receiver's obligation to turn over the Collateral and the Real Property, then
the Receiver is authorized to remain in possession and preserve the
Collateral and the Real Property pending the outcome of such motion. (11
U.S.C. § 543(a).) The Receiver's authority to preserve the Collateral and
the Real Property is limited as follows: The Receiver may continue to
collect the Collateral and the Real Property and the proceeds thereof. The
Receiver may make disbursement, but only those, which are necessary to
preserve and protect the Collateral and the Real Property. The Receiver
shall not execute any new leases or other long —term contracts. The Receiver
shall do nothing that would affect a material change in circumstances of the
Collateral and the Real Property.
d. Notwithstanding the above, if the Plaintiff fails to file a motion within 10
court days after their receipt of notice of the bankruptcy filing, then the
Receiver shall immediately turn over the property of the Defendants either
to the trustee in bankruptcy if one has been appointed or, if not, to the debtor
in the possession, and otherwise comply with 11 U.S.C. § 543.
e. The Receiver is authorized to retain legal counsel to assist the Receiver with
the bankruptcy proceedings.
12. In the event the Plaintiff assigns its interests in the Commercial Security Agreement
and/or Deeds of Trust, and its entitlement to the Collateral, the Real Property or its
proceeds to a third party, then such third party shall be the successor and assign of
the Plaintiff in connection with all obligations imposed upon, and all rights of, the
Plaintiff pursuant to the Order. The Receiver shall continue in possession of the
Collateral and the Real Property and the Receivership Estate until discharged by
the Court. The Receiver shall endeavor to wind up the Receivership expeditiously
in cooperation with the Plaintiff or otherwise at the direction of the Court. If no
objections to the final report and motion for discharge have been delivered to the
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Court, the Receiver, and other parties having entered their appearance in this
proceeding, by first class mail to such address as is reflected in the Court records
within fifteen (15) days after the fmal report and motion for discharge are filed with
the Court, the fmal report will be accepted by the Court, and the Court will enter an
order terminating the Receivership and discharging the Receiver. The Receiver's
bond shall be dismissed following the approval of the fmal report and entry of the
discharge order.
13. That the Receiver shall continue in possession of the Collateral and the Real
Property during any period of redemption and thereafter, until discharged by the
Court.
14. That any notice required hereunder shall be deemed served on the date it is received
via overnight mail to counsel of record for any party, or directly to any party not
represented by counsel, and any computation of time for purposes of this Order
shall be governed by the provisions of Colorado Rules of Civil Procedure, Rule 6.
15. Court approval of any motion or requests for authorization filed by the Receiver,
shall be given as a matter of course, unless any party objects to the request for Court
approval within ten (10) business days after the service by the Receiver of written
notice of such request upon anyone entering an appearance in this action or who is
known to have an interest in the Collateral and the Real Property affected by the
Receiver's motion or request for authorization. Service of motions by facsimile
and electronic transmission is acceptable.
16. The Receiver serves herein, and discharges all his duties under this Order, as an
officer of this Court, solely in a representative capacity, and not in an individual
capacity, and does not, in being appointed as Receiver or by acting as Receiver
hereunder, thereby become personally liable to any person or governmental entity
under any law, statute, rule, regulation, or other doctrine of law or equity. All
persons dealing with the Receiver shall look only to the Receivership Property, and
not the Receiver or its officers, directors, employees, or agents, for the satisfaction
of all claims against and obligations and liabilities of the Receiver, the Business,
and the Receivership Property.
17. That the Plaintiff shall give notice of the appointment of the Receiver in compliance
with Colorado Civil Rules of Procedure, Rule 66.
18. That the Receiver shall forthwith provide a copy of the summons, complaint, and
this order to Defendants without delay, as provided in C.R.C.P. 4. The receiver
shall additionally provide written notice of the action to any persons in possession
of the property or otherwise affected by the order.
DATED this 24th day of April, 2018.
BY THE COURT:
Marcelo A. Kopcow
District Court Judge
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