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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:

4655-4677 Meade Street

Richmond, CA 94804

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:tlO
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SUPERIOR'COURT OF THE STATE OF CALIFORNIA

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COUNTY OF CONTRA COSTA

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cs-

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CERF SPVI, LLC, a Delaware limited liability)

company,

)
)
)
)
v.
)
CHEROKEE SThIBON VENTURE I, LLC; a )
Plaintiff,

Delaware limited liability company,

PIONEER HI-BRED INTERNATIONAL,

)
INC., an Iowa corporation, LUMIPHORE
)
INC., a Delaware corporation, GERONOVA )
RESEARCH, Inc., a Nevada corporation,
)
)
NANOASIS TECHNOLOGIES, INC., a
California corporation, CHEMORAGA, INC., )
a California corporation and DOES
inclusive,
Defendants.

1-50,

)
)
)
)
)

--------

CASE NO:

C12-00284

NOTICE OF MOTION AND MOTION FOR

ORDER AUTHORIZING RECEIVER TO
RETAIN LEGAL COUNSEL;
MEMORANDUM OF POINTS AND
AUTHORITIES AND DECLARATION OF
KEVIN SINGER IN SUPPORT THEREOF.

=:
Dept.:

ld,,
Wk

31

Judge: Hon. Laurel S. Brady

Martinez Superior Court

725 Court Street

Martinez, CA 94553

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Page l

RECEIVER'S MOTION TO RETAIN LEGAL COUNSEL

TO:

RECORD:

THE PLANTIFFS, DEFENDANT AND THEIR RESPECTIVE ATTORNEYS OF

PLEASE TAKE NOTICE THAT on

2012 at the hour of

or as soon thereafter as the matter can be heard in Department

31, at the

Martinez Superior Courthouse at 725 Court Street, Martinez, CA

Receiver, Kevin Singer, will and does hereby move the Court to grant his NOTICE OF

MOTION AND MOTION FOR ORDER AUTHORIZING RECEIVER TO RETAIN LEGAL

COUNSEL; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION

OF KEVIN SINGER IN SUPPORT THEREOF.

94553, Superior Court

This Motion is based on this Notice of

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Motion, Memorandum of Points and Authorities, Declaration of Kevin Singer, pleadings,

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records and files in this action, and oral and documentary evidence

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hearing on this Motion.

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DATED: September

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as

may be presented at the

10, 2012
By:
Kevin Singer
Superior Court &

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Page 2

RECEIVER'S .MOTION TO RETAIN LEGAL COUNSEL

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INTRODUCTION

1.

Through a stipulation amongst CERF SPVI, LLC, a Delaware limited liability

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

12, 2012 and

Singer's ("Receiver") Oath was filed on approximately July

and management of the Property was transitioned to him on August

agreed upon transition date by the Parties.

and CHEROKE SIMEON VENTURE I, LLC

("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

46554677 Meade Street, Richmond, CA 94894 (the "Property"). The Property is

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commonly referred to as Campus Bay. The Property has a long history of chemical

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manufactures using the site. In

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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.

1997, an environmental cleanup was initiated under the

Attached as

One of Receiver's primary duties is to lease or release the Property or any

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portion of it on terms acceptable to Plaintiff. Any lease contract entered into will require

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disclosers regarding the environmental issues.

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4.

On August

8,

2012

and August

9,

2012,

the Receiver had a disagreement with

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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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counsel the interpretation of the Court Order.

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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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Page 3

RECEIVER'S MOTION TO RETAIN LEGAL COUNSEL

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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.

POINTS AND AUTHORITIES IN SUPPORT OF RECEIVER RETAINING COUNSEL

California Rules of Court 3.1180. Employment of attorney

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:

(1) The necessity for the employment;

(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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attorney for any party.

The Court Order instructs the Receiver as follows (See "Exhibit 1"):

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8a.)

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preserve, protect, maintain, and operate the Property ..........;

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8e.)

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property managers, accountants, and other persons and professionals as Receiver

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deems appropriate to effectuate the operation of the Property and to preserve and

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protect the Property;

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12)

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this Court for further orders instructing Receiver.

Receiver shall have the power to take any and all lawful actions necessary to

Receiver is authorized to employ and compensate professionals, including

Receiver, or any party to this action, may from time to time, make application to

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THE RECEIVER'S REQUEST TO RETAIN LEGAL COUNSEL

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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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disagreement as to its interpretation.

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The Receiver would like to retain Mia Blackler ("Ms. Blackler") and Manuel
Fishman

("Mr.

Fishman") of Buchalter Nemer. Ms. Blackler is an expert in receivership law

Page 4

RECEIVER'S MOTION TO RETAIN LEGAL COUNSEL

\_/

and Mr. Fishman is an expert in commercial lease contra cts and environmental issues. Their

billing rates are

assistance of associates whose billing rates are

3," are their bios.

$440 for Ms. Blackler and $495 per hour for Mr. Fishman and they utilize the
$300

to

$350

per hour. Attached as "Exhibit

WHEREFORE, The Receiver requests that the Court grant the following:

1. The Superior Court Receiver, Kevin Singer, is authorized to retain Mia Blackler and

. e
Manuel Fishman to advise him on any lease negotiations, disclosure issues related to the leas

negotiations and/or contracts, and guidance on interpretation of the Court Order.

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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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Page 5

RECEIVER'S MOTION TO RETAIN LEGAL COUNSEL

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'.,__;

DECLARATION OF KEVIN SINGER

I, KEVIN SINGER declare and state as follows:

am

a Superior Court Referee and Referee and have acted in that capacity in over 143

cases over the last eleven years.

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.

I am the President of Receivership Specialists, which

I submit this Declaration in support of the accompanying NOTICE OF MOTION AND

MOTION FOR ORDER AUTHORIZING RECEIVER TO RETAIN LEGAL COUNSEL;

MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF KEVIN

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SINGER IN SUPPORT THEREOF;

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Through a stipulation amongst CERF SPVI, LLC, a Delaware limited liability company

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("Plaintiff'), and CHEROKE SIMEON VENTURE I, LLC ("Defendant"), collectively (''the

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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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transitioned to my control on August 1,

In Aid of Receiver ("Court Order") which was entered on July 12, 2012. In

4655-4677 Meade Street, Richmond, CA 94894 (the "Property") was to be

2012.

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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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of chemical manufactures using the site.

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the oversight of the San Francisco Bay Regional Water Quality Control Board.

In 1997, an environmental cleanup was initiated under

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3. One of my primary responsibilities is to lease or release the Property or any portion

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of it on terms acceptable to Plaintiff. Any lease contract I have entered into will require

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disclosers regarding the environmental issues.

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4.

On August

8, 2012 and August 9, 2012, I had a disagreement with Defendant's

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
Page 6

RECEIVER'S MOTION TO RETAIN LEGAL COUNSEL

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Dena M. Cruz (CA State Bar No. 121508)

Richard Mooney (CA State Bar No. 176486)
Leena Rege (CA.State Bar No. 236827)
DRY.AN CAvE, LLP
560 Mission Street, 25th Floor
San Francisco, CA. 94105
Telephone: (415)268;,2000.
Facsimile: (415) 2681999

71111
.1 .

:P: l 2 o_,

""

.,. _

..

\: Sb

Attomeys for Plaintiff

CERF SPVI, LLC

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SUPERIOR COURT OF CALIFORNIA

COUNTY OF CONTRA COSTA

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SPVI, LLC a Delaware limited liability

company

CERF

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CASE NO.: CIV C12-00284

1.

Plaintiff,

2.

v.

CHEROKEE SIMEON VENTURE I, LLC; a

Delaware limited liability company, PIONEER
ID-BRED INTERNATIONAL, INC., an Iowa

corporation, LUMIPHORE INC., a Delaware

corporation, OERONOVA RESEARCH, Inc., a
Nevada corporation, NANOASIS
TECHNOLOGIBS, INC., a California
corporation, CHBMORAGA, INC., a California
corporation and DOES 1-50, inclusive,

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Defendants.

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[PldJl"tJili!D] ORDER APPOINTING

RECEIVER EX PARTE
(PD] TEMPORARY
TRAINING ORDER IN AID OF
RECEIVER

(Ex Parte Application, Stipulation to Entry of

Order Appointing a Receiver and Preliminary
Injunction, Declaration of Edward Elanjian,
Declaration of Kevin Singer, Declaration of
Dena M. Cruz, and Oath of Receiver filed
concurrently herewith)
Date: July 12, 2012
Time: 1 :30 p.m.
Dept.: 60

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#80494 vt sar

[PROPOSBPJ ORDER Al':POIN'l'ING RBCBIVBREX PARTE AND TRO

CERF SPVI, LLC va. Cherokee Simeon Venture I, LLC.
Contra Costa SUperior Case No. Cl2-00284

;;:

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:

A. On or about September 6, 2007, Continental Environmental Redevelopment Financial,

LLC (''CERF'') entered into a Loan and Security Agreement (the "2007 Loan

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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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Bay ("Campus Bay'').

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borrower, to fund, amongst other things, a portion of the cost to remediate

B. Plaintiff is the holder of a promissory note dated September 6, 2007, executed by CSV as
borrower (the ''Note").

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as

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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about September 6, 2007. A copy of the Deed of Trust is attached to theDeclaration of

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EdwardElanjian (''ElanjianDecl.") as ExhibitB.

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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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as

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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under the Borrowing Agreements; and,

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1

[PROPOSED] ORDER. AP:POINTING RECEIVER BX PARTE AND TRO

#80494 vl saf

CERF SPVI, LLC vs. Cherokee Simeon Venture I, LLC.

Contra Costa Superior Case No. Cl2-00284

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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

insurance required mder the terms of the Borrowing Agreements;

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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TIIEREFORE, IT IS HEREBY ORDERED 1HAT:

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ORDER APPOINTING RECEIVER

The Court grants Plaintiff's motion for the appointment of a receiver and appoints Kevin

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1.

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Singer as receiv er (the "Receiver''}, such appointment to be effective on the

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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.

Receiver is appointed by this Court to take possession of the Property.

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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

filing of Receiver s oath

2
[PROPOSED] ORDER APPOlNTJNG RECEIVBREX PARTE AND TRO
#80494 vl saf

CERF SP'YI, LLC vs. Cherokee Simeon Venture I, UC.

Contra Costa Superior Case No. C12-00284

'

::

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..

5.

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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further order of the Court;

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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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3

[PROPOSED] ORDER APPOINTING RECEIVER EX PAR'IE AND TRO

#80494Yl Hf

CERF SPVI, LLC vs. Cherokee Simeon Venture I, LLC.

Contra Costa Superior Case No. Cl2-00284

i-."!t'Gftke'opertjroh

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, iBffe'{F:ll\W,;;-Ifo. ---

The power to possess,

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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Substances Control ("DTSC'') or other government agency.

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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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within the Property conform to Califomia state law.

any required licenses and per.mi.ta applicable to any business currently conducted at or

(b)

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Receiver shall not be responsible for the

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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endorse checks constituting income from the Property.

(c)

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Management of the Property's Revenues: Receiver shall man.age the daily

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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

4
[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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tenns of this Order.

(d)

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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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provided that the Receivership Estate's funds and required insurance

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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

date of this Order.

:iiiillia:eampell$ate

(e)

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are

;Jl-l!i<:-Mt,

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- ,;4;),

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s

t/80494 vl saf

[PROPOSED] ORDBRAPPOINTIN"G RBCBIVBREX PARTE AND TRO

CERF SPVI, LLC. vs. Cherokee Simeon Venture!, LLC.
Contra Costa Superior Case No. Cl2-00284

shall file in this action a detailed inventory of all property

undertaking and Oa1h are filed, Receiver

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

of the ootivities of Receiver and any property manager, a schedule of

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.)

. 1 o

Authorized Disbursements and Actions. Receiver shall be authorized, in the

exercise of Receiver's business judgment, to do, without limitation, the following:

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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)

Lease or r&-lease the Property or any portion of it on terms acceptable

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(iii)

Evict tenants;

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(iv)

As set forth in paragraph 8(c) above, pay Operating Expenses related

(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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Receiver to perform his duties;

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Receiver's Initial Accounting: Within 30 days after the date Receiver's

(f)

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(vi)

Retain, in Receiver's discretion, a working capital fund in an amount

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sufficient for payment of Receivership expenses;

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(vii)

Investigate and evaluate the financial condition and history of the

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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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herein without Plaintiff's consent or further order of this Comt;

(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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[PROPOSED] ORDER APPOINTING R,BCBIVBREXPARTE AND TRO

CERFSP"YI, UC vs. Cherokee Simeon Venture[, UC.

#80494 vl saf

Contra Costa Superior Case No. Cl2M00284

"'
.

.. ,
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20, 2011 Revised Draft Feasibility Stady and Remedial Action Plan for Lots 1,2, and 3,

the JUly

Campus Bay, Richmond, California ("Draft FSRAP'') or any revision or

(ix)

Subjeotto the terms of this Order,

amendment to same;

pay any necessary maintenance

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,

subject to.the final review of this Court;

(x)

Upon request of Pl Receiver shall tum over to Plaintiff, to be

lease proceeds net of (i) Receiver fees and expenses, (ii)

applied toward the indebtedness, any

Operating Expenses, and (iii) Receiver's working capital fund;

(xi)

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Upon Plaintiff's consent, provide for the payment of all

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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CSV of the need, if any, for any emergency capital improvements;

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(xii)

Contest or protest taxes or assessments with respect to the Property;

{)

Use any federal taxpayer identification numbers relating to the

and,

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Property for any lawful purpose.

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(i)

General Receivership Powers. In addition to all of the powers set forth above,

hereby vested with all of the

21

and subject to any limitations contained in this Order, Receiver is

22

general powers of receivers in cases of this kind, subject to the direction of this Court.

(j)

23
24

Limitations on Receiver's Authority: Except as provided for above, the

Receiver shall not, absent the consent of Plaintiffor further order of this Court:

25

(i)

Obtain loans, secured or unsecured, on behalf of the Receivership

26

Estate o r encumber the Receivership Estate. Notwithstanding this restriction

27

particularly set forth in paragraph 13 below, Receiver may request loans from Plaintiff at Plaintiff's

28

option and/or election to make any of the repairs and perform any maintenance determined by
7

#80494 vl saf

on

loans, and as more

[PROPOSBDJ ORDER APPOINTING RBCBIVBR.BX PARTE AND TRO

CERF SPT'l, LLC vs. Cheroke.e Stmeon Venture I, LLC.
Contra Costa Superior case No. Cl200284

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)

5
6

Court, execute any documents that (i) result in a subdivision of the Property, or (ii) that result in a lot

line adjus1m.ent of any portion of the Property;

(iii)

8
9

Without the written consent of CSV and Plaintiff, or order of this

Without the written consent of CSV and Plaintiff, or order of this

Court, sell any portion of the Property.

Receiver shall have no responsibility for filing future federal and state income tax retums

1O

9.

11

(''Tax Retum'') or for dissolution of CSV. The responsibility for such filings lie exclusively with

12

csv.

13

10.

14

Estate upon ten (10) days notice to the parties. If no written specific objection is provided to

15

Receiver on all fees and expenses submitted; Receiver may pay its invoice and professional fees and

16

expenses owed from available Receivership Estate funds.

17

day period, Receiver must respond within a reasonable time to the parties with an acceptable

18

explanation. If an agreement cannot be reached, a noticed motion on shortened time will be filed

19

with the Court for approval of the fees and expenses in dispute.

20

11.

21

Receiver has no control, shall be obligations of CSV and may not be refunded by Receiver without

22

an

23

have paid or may pay to Receiver, if otherwise refundable under the terms of their leases or

24

agreements with Receiver1 shall be refundable by Receiver in accordance with the leases or

25

agreements.

26

12.

27

Receiver's fees and expenses will be paid monthly from available funds of the Receivership

If an

objection is received within the ten

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

.1.:: .:,,,,,,:,-:.,., ,,_.-'..

'.

miime!fi!:p]ftiontotbisealtti

f0f'OM.ets"'llel.Vtfff0'1f:

28
8

[PROPOSED] ORDER APPOINTING RECEIVER EX PARTBANDTRO

#804'4 vl aaf

CERF SPVJ, LLC vs. Cherokee Simeon Venture I, UC.

Contra Costa Superior Case No. C12-00284

'0

Receiver is authorized to borrow from Plaintiff such funds as are necessary to perform bis

13.

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

4.

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

to Plaintiff certificates of indebtedness ("Receiver's Certificates"), as evidence of receivership

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

10

shall be numbered in sequential order for redemption purposes. All indebtedness represented by a

11

Receiver's Certi.fi.cate(s) shall be and constitute a lien and charge upon all assets of the Receivership

12

Estate, and with. respect to such assets and estate.

13

14.

14

Receiver is transferred by reason of a judicial foreclosure sale or nonjudicial trustee's sale conducted

15

pursuant to the tenns of the Deed of Trust sued upon in this action, Receiver shall immediately "turn

16

over possession and control of the applicable property, together with the Books and Records, and all

17

personal property associated therewith to the new owner upon presentation to Receiver of a certified

18

copy of the deed evidencing such transfer, or upon Order of this Court made upon an ex parte

19

application, which may be presented without Receiver's or counsel's personal appearance.

20

15.

21

aotions described in paragraph 18.

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

22

PRELIMlNARY INJUNCTION
IT IS FURTHER ORDERED that CSV, along with any of its trustees, property managers,

23

16.

24

co-trustees, partners, employees, agents,' representatives, contractors and any other person or entity

25

under their control \'Related Parties") are hereby enjoined and restrained from:

26

(a)

Committing or permitting waste of the Property;

27

(b)

Removing. transferring or otherwise disposing of the Property or any of its

28

:fixtures

and/or incorporated materials;

9

[PROPOSED] ORDER APPOINTING RBCBIVBR BX PAR.TB AND TRO

i#80494vl sat'

CERF SPY.I, LLC w. Cherokee Stmeon Venture I, LLC.

Contta Costa Superior Case No. Cl2-00284

i:

.''

(c)

Demandmg, collectin& diverting or receiving any Rents of the Property;

(d)

Transferring, moving, selling, leasing or otherwise disposing of any of the

personal property and/or improvements located in or around the Property; and,

In any way interfering with the discharge of the Receiver's duties.

(e)

In addition, CSV and Related Parties shall be obligated to do, and shall be restrained from

17.

doing, the following:

Turnover of Books. and Records: Prior to the Effective Date, CSV shall tum

(f)

7
8

over complete copies of the Books and Records,

originals of the Books and Records to Receiver if so requested by the Receiver. CSV shall assist

as

defined herein, to Receiver. CSV shall deliver

10

Receiver in obtaining complete copies of the same in the event the Books and Records are held by

11

persons or entities other than CSV. CSV shall promptly, upon request by Receiver, furnish to

12

Receiver copies of such other financial infonnation or backup documentation relating to those Books

13

and Records.

(g)

14

Turnover of Insurance Information: CSV shall promptly provide Receiver

15

with the property insurance policies and policy information for the Property. CSV shall make

16

certain that Receiver is named as an additional insured on all applicable policies for the period that

17

Receiver shall be in possession of the Property, except for the Pollution Legal Liability Select Clean-

18

Up Cost Cap Insurance, Policy No. 195 8035 ("PLL Policy") issued by American Intematlonal

19

Specialty Lines Insurance Company, on which the Receiver shall not be named as an additional

20

insured ..

21

18.

22

selling, leasing or otherwise disposing of any of the personal property, fixtures and/or improvements

23

located in and around the properties. In addition, CSV and Related Parties are enjoined and

24

restrained from creating any dangerous conditions on the Property and from interfering with the

25

necessary activities of Receiver.

CSV and Related Parties shall be enjoined and restrained from transfening, appropriating,

26

Notwithstanding the foregoing, CSV and/or Zeneca, Inc., shall have the right upon

27

reasonable written notice to Receiver and Plaintiff, to enter upon the Property to ex.amine, test and

28

inspect the environmental condition of the Property and to perform any and all acts related to the
10

[PROPOSED] 0'.IIDBR. APPOINTING RECBIVBR.EXPARTEAND TRO

#180494 vi sat

CERF SP"Pl, LLC vs. Cherokee Simeon Venture I, LLC.

Contra Costa Superior Case No. Cl2..00284

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

3, Campus Bay, Richmond, California" ("FSRAP"), or related to other remediation activities

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

10

Order, Receiver,, in its sole discretio may, as set forth in paragraph 8(d) above, elect to acquire the

11

insurance and

allow investigation and/or remediation to occur.

12

19.

CSV and Related Parties shall be restrained and enjoined from transferring or

13

assigning, or encumbering atiy interest in the Property without further order of this Court. In

14

addition, CSV and Related Parties shall be restrained and enjoined from committing or pennitting

15

any waste on the Property or any part thereof: or suffedng or committing or permitting any act on

16

the Property or any part thereof in violation of law or removing or transferring or otherwise

17

disposing of any of the equipmeJrt or fixtures presently on the Receivership Estate or any part

18

thereof; until :further Otder of this Court.

19

20.

20

Procedure section 529.

Plaintiff is not required to file a preUminary injunction bond specified in California Civil

PROVISIONS UPON FORECLOSURE OR TERMINATION OF RECEIVERSHIP

21

IT IS FURTHER ORDERED that:

22

In the event that any or all of the Property is sold in a non-judicial or judicial foreclosure

23

21.

24

proceeding, and the receivership remains in effect. funds previously paid to and held by Receiver

25

.shall continue to be held by Receiver until Receivers final account and report (the "Final Report") is

26

approved by the Court. After Court approval of the Final Report and payment of all Court approved

27

Receivership Estate expenses, Plaintiff shall receive net proceeds in accordance with the operative

28

loan documents attached to and referenced in the Verified Complaint in this matter.

11

[PROPOSED] ORDER APPOINTING RECEIVER EX PARTE AND TR.O

#80494 vl saf

CERF SPY!, LLC vs. Cherokee Simeon Venture I, LLC.

Contra Costa Superior Cue No. Cl2-00284

;;

,.
.

.1

22.

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

10

upon termination of the receivership.

11

23.

12

documents and any obligations incurre d by or to Receiver, Plaintiff and Receiver shall cooperate to

13

promptly prepare and obtain Court approval of a Final Report and an order discharging Receiver and

14

exonerating its bond.

15

24.

16

foreclosure sale, whether judicial or non-judicial, relating to the Note or Deed of Trust and all debt

17

under the Note is fully paid; (ii) Plaintiff consents to the termination of the Receivership; and (ill)

18

the Court issues an order approving the Receiver's Final Report, discharging the Receiver and

19

exonerating its bond, thereby, terminating the Receivership.

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

20
21

IT IS SO ORDERED.

22
23

JUDITH A. SANDERS
DATED:

JUL 1 2 201Z
Judge of the Superior Court

24

'fro T@

25
26
27
28
12

[PROPOSED] ORDER APPOINTING RBCEIVBRBXPARTE AND TR.O

1#80494 vl aaf

CERF SPT'I, LLC vs. Cherokee Simeon Venture I, LLC.

Contra Costa Superior Case No. C12-00284