ENTRY OF CONFIRMATION OF SPECIAL MASTER SALE, DISTRIBUTION, AND DISCHARGE OF RECEIVER FROM CERTAIN OBLIGATIONS
SHARON L. OVINGTON, Magistrate Judge.
On this day, on the motion of GCCFC 2002-CI Dayton Hotel and Conference Center, LLC ("Lender" or "Plaintiff") and upon the Notice of Deposit of Foreclosure Sale/Notice of Sale Results by the Court-Appointed Special Master William B. Fecher ("Special Master") of the sale of a leasehold interest and certain personal property commonly known as the Hope Hotel and Richard C. Holbrooke Conference Center and located at Chidlaw Road & Spruce Way, Wright-Patterson AFB, Greene County, Ohio, Parcel Number A01000100070002308 (collectively, the "Property") and more particularly described on Exhibit A attached hereto owned by David A. Meyers, as Trustee of The Visicon Shareholders Trust, an Ohio Trust U/A/D November 11, 2002 and Amanda L. Meyers, as Trustee of The Visicon Shareholders Trust, an Ohio Trust U/A/D November 11, 2002 (collectively, the "Borrower"), conducted on April 14, 2014 at 9:00 a.m., pursuant to the former order of this Court, and on careful examination of the proceedings of the Special Master, the Court being satisfied that the same have been in all respects in conformity with the law and the orders of this Court, hereby ORDERS that said proceedings and sale be, and hereby is, approved and confirmed.
The Court finds that the Property was sold pursuant to Ohio Revised Code Section 2329.34 by the Special Master, and that a special reason existed as to why a county sheriff or the United States Marshal's Office could not conduct the sale.
The Court finds that Lender was the successful bidder at the sale, having credit bid the sum of $4,780,000.00 said amounts being at least two-thirds the appraised value of the Property.
The Court further finds that Lender holds a valid and enforceable first leasehold mortgage on the Property.
Accordingly, IT IS ORDERED that the Special Master convey the Property so sold by leasehold assignment ("Assignment") according to law to Plaintiff free and clear of any and all rights, claims, interests or liens of any party to this action, or any person claiming under or through them.
IT IS FURTHER ORDERED that:
1. Effective as of delivery of the Assignment ("Effective Date"), Strand Development Company, LLC, in its capacity as receiver herein ("Receiver") shall be: (i) automatically discharged without further order of this Court from any operational or possessory obligations with regard to the Property, including but not limited to, any obligation to maintain insurance on the Property, (ii) shall relinquish possession and control of the Property to the Plaintiff, and (iii) shall have no further duties, liabilities, obligations, or tasks (past, present, or future) relative to this receivership with the exception of filing its final report with this Court (the "Report");
2. The Receiver's Report shall be filed within forty-five (45) days of the date of this Order. A copy of the Report shall be served upon counsel for the parties in this matter. If no objections to the Report are served within twenty-one (21) days of receipt of the Report by the parties, the Report shall be deemed accepted and approved by the Court;
3. Upon the approval of the Report by this Court, the receiver's bond deposited by the Receiver of $20,000.00 shall be deemed discharged and relinquished by the Clerk of Courts;
4. Within one (1) business day of the date of the Effective Date, the Receiver shall turn over all books and records in its possession regarding the Property to the Plaintiff, along with physical possession of the Property, together with all keys or combinations to locks to open or gain access to the Property, all things of value and all service contracts and agreements, except that the Receiver shall not turn over to Plaintiff any cash or receivables retained by the Receiver to comply with the provisions of this Order, or any employee personnel records or other books and records necessary for the Receiver to pay the final bills and expenses for the Property or to prepare the Report; and
5. The Receiver shall use all cash on hand as of the Effective Date, plus all accounts receivables on the books of the Receiver as of the Effective Date to pay all of the bills, fees, and expenses of the receivership through the Effective Date. In the event that there is Excess Cash (as defined herein) after payment of all bills, fees, and expenses, and upon approval of the Receiver's Report by this Court, the Receiver shall turn over the Excess Cash to Lender. Excess Cash shall be defined herein as the amount by which the cash plus the accounts receivables exceed the amount of the final expenses. In the event that the amount of cash on hand as of the entry of this Order, plus all accounts receivables on the books of the Receiver as of the Effective Date are not sufficient to pay all the bills, fees, and expenses of the receivership through the Effective Date, Lender shall fund any shortfall.
IT IS FURTHER ORDERED that a writ of possession be issued to place the Plaintiff in possession of the Property. The Plaintiff is hereby subrogated to all the rights of the parties to this suit for the protection of its title to the Property.
IT IS FURTHER ORDERED that the Lender, as the holder of the first leasehold mortgage on the Property and having a judgment in rem against Borrower in excess of the credit bid amount, shall not pay the full purchase price to the Special Master on the basis that the credit bid is a reduction of the judgment in rem in favor of Lender.
IT IS FURTHER ORDERED that the Clerk of Courts shall cause release of the following instruments of record in the Office of the Recorder of Greene County, Ohio by filing of a certified copy of this Entry of Confirmation of Special Master Sale, Distribution, and Discharge of Receiver from Certain Obligations as they pertain to the Property:
1. Leasehold Mortgage from David A. Meyers and Amanda L. Meyers, as Trustees of Visicon Shareholders Trust, an Ohio Trust U/A/D November 11, 2002 to Greenwich Capital Financial Products, Inc., for $9,000,000.00, filed for record November 25, 2002 and recorded in OR Volume 1858, Page 927 of Greene County Records, covering premises described in Schedule A, together with any and all terms, conditions and restrictions contained therein, as assigned to LaSalle Bank National Association, as Trustee for the Registered Holders of Greenwich Capital Commercial Funding Corp., Commercial Mortgage Trust 2002-CI, Commercial Mortgage Pass-Through Certificates, Series 2002-CI, filed for record July 20, 2005 and recorded in OR Volume 2445, Page 832 of Greene County Records, as assigned to GCCFC 2002-CI Dayton Hotel & Conference Center, LLC by that certain Assignment dated February 17, 2010, filed for record February 25, 2010 and recorded in Volume 2994, Page 784 of Greene County Records;
2. Assignment of Leases and Rents from David A. Meyers and Amanda L. Meyers, as Trustees of Visicon Shareholders Trust, an Ohio Trust U/A/D November 11, 2002, filed for record November 26, 2002 and recorded in OR Volume 1858, Page 972 of Greene County Records; as assigned to LaSalle Bank National Association, as Trustee for the Registered Holders of Greenwich Capital Commercial Funding Corp., Commercial Mortgage Trust 2002-C1, Commercial Mortgage Pass-Through Certificates, Series 2002-C1, filed for record July 20, 2005 and recorded in OR Volume 2445, Page 832 of Greene County Records, as assigned to GCCFC 2002-C1 Dayton Hotel & Conference Center, LLC by that certain Assignment dated February 17, 2010, filed for record February 25, 2010 and recorded in Volume 2994, Page 784 of Greene County Records;
3. Financing Statement from Visicon Shareholders Trust, an Ohio Trust, U/A/D November 11, 2002, Debtor, and Greenwich Capital Financial Products, Inc., Secured Party, filed for record November 26, 2002 and recorded as Greene County Recorder's Document No. 2002-000225, as assigned to LaSalle Bank National Association, as Trustee for the Registered Holders of Greenwich Capital Commercial Funding Corp., Commercial Mortgage Trust 2002-C1, Commercial Mortgage Pass-Through Certificates, Series 2002-C1, filed for record July 20, 2005 of Greene County Records, continuation filed for record June 18, 2007, as Greene County Recorder's Document No. 2007-000130, as assigned to Bank of America, National Association, a national banking association and successor by merger to LaSalle Bank National Association, a national banking association, as Trustee for the registered holders of Greenwich Capital Commercial Funding Corp., Commercial Mortgage Trust 2002-C1, Commercial Mortgage Pass-Through Certificates, Series 2002-C1, filed for record March 1, 2010, as Greene County Recorder's Document No. 2010-000130, as assigned to GCCFC 2002-C1 Dayton Hotel & Conference Center, LLC for record March 1, 2010, continuation filed for record May 31, 2012 and recorded as Greene County Recorder's Document No. 2012-000078;
4. Financing Statement from Visicon Shareholders Trust, an Ohio Trust, U/A/D November 11, 2002, Debtor, and Greenwich Capital Financial Products, Inc., Secured Party, filed for record November 26, 2002, as Greene County Recorder's Document No. 2002-000226, as assigned to LaSalle Bank National Association, as Trustee for the Registered Holders of Greenwich Capital Commercial Funding Corp., Commercial Mortgage Trust 2002-C1, Commercial Mortgage Pass-Through Certificates, Series 2002-C1, filed for record July 20, 2005 of Greene County Records, continuation, filed for record June 18, 2007, as Greene County Recorder's Document No. 2007-000120, as assigned to Bank of America, National Association, a national banking association and successor by merger to LaSalle Bank National Association, a national banking association, as Trustee for the registered holders of Greenwich Capital Commercial Funding Corp., Commercial Mortgage Trust 2002-C1, Commercial Mortgage Pass-Through Certificates, Series 2002-C1, filed for record March 1, 2010, as Greene County Recorder's Document No. 2010-000120, as assigned to GCCFC 2002-C1 Dayton Hotel & Conference Center, LLC for record March 1, 2010;
5. Financing Statement from Visicon Shareholders Trust, Debtor, to GCCFC 2002-C1 Dayton Hotel & Conference Center, LLC, Secured Party, filed for record March 18, 2010 as Greene County, Recorder's Document No. 2010-000029;
6. Certificate of Judgment 1997 CJ 0637 in favor of Ohio Department of Taxation vs Visicon Inc. and Hope Hotel, in the amount of $623,934.60;
7. Certificate of Judgment 2010 CJ 0508 in favor of Ohio Department of Taxation vs Visicon Inc., in the amount of $24,089.03;
8. Certificate of Judgment 2010 CJ 0509 in favor of Ohio Department of Taxation vs Visicon Inc., in the amount of $21,391.76; and
9. Certificate of Judgment 2010 CJ 0510 in favor of Ohio Department of Taxation vs Visicon Inc., in the amount of $20,741.89.
IT IS FURTHER ORDERED that Plaintiff shall cause release of the following instruments of record in the Ohio Secretary of State as they pertain to the Property:
1. UCC-1 Financing Statement filed with the Ohio Secretary of State on November 27, 2002 as financing statement number OH00057166168, as assigned to LaSalle Bank National Association, as Trustee for the Registered Holders of Greenwich Capital Commercial Funding Corp., Commercial Mortgage Trust 2002-C1, Commercial Mortgage Pass-Through Certificates, Series 2002-C1 as file number 20032060216, continuation filed on May 29, 2007 as file number 20071490604, as assigned to GCCFC 2002-C1 Dayton Hotel & Conference Center, LLC as file number 20100600229, continuation filed on May 30, 2012 as file number 20121510009;
2. UCC-1 Financing Statement filed with the Ohio Secretary of State on November 27, 2002 as financing statement number OH00057166380, as assigned to LaSalle Bank National Association, as Trustee for the Registered Holders of Greenwich Capital Commercial Funding Corp., Commercial Mortgage Trust 2002-C1, Commercial Mortgage Pass-Through Certificates, Series 2002-C1 as file number 20032060220, continuation filed on May 29, 2007 as file number 20071490728, as assigned to GCCFC 2002-C1 Dayton Hotel & Conference Center, LLC on February 25, 2010 as file number 20100600227, continuation filed on May 30, 2012 as file number 20121510008; and
3. UCC-1 Financing Statement filed with the Ohio Secretary of State on March 16, 2010 as file number OH00140849390 with secured party GCCFC 2002-C1 Dayton Hotel & Conference Center, LLC.
IT IS FURTHER ORDERED that Lender shall deposit a total of $8,544.00 with the Clerk of Courts to be distributed by the Clerk of Courts as follows:
1. To Michael A. Cahill, the Appraiser: $ 7.000.00
2. To the Greene County Recorder for the
Assignment recording fee: $ 44.00
3. To the Special Master for his fee: $ 1,500.00
Total: $ 8,544.00
IT IS FURTHER ORDERED that the Court affirms that all liens filed against the Property after the filing of this action are barred by the doctrine of lis pendens.
IT IS FURTHER ORDERED that the proceeds of sale for the Property are insufficient after payment of the costs of this action to satisfy the judgment in rem of Plaintiff as the first lien holder; accordingly, the Court makes no further findings with respect to priority amongst other parties to this action.
IT IS FURTHER ORDERED that multiple claims for relief were sought by Plaintiff in its Complaint, and that with regard to the judgment and findings described in this Entry of Confirmation of Special Master Sale, Distribution, and Discharge of Receiver from Certain Obligations there is no just reason for delay and that this is a final appealable order. Adjudication with respect to any remaining claims for relief sought by Plaintiff shall proceed in accordance with the Federal Rules of Civil Procedure or as otherwise ordered by this Court.
IT IS SO ORDERED.
EXHIBIT A
1. A certain interest in a ground lease vested in David A. Meyers, Trustee and Amanda L. Meyers, Trustee of the Visicon Shareholders Trust, an Ohio Trust, U/A/D November 11, 2002 (collectively, "Debtor") by Lease from the Secretary of the Air Force to H.A.I., Incorporated and Vantage Group, Inc., dated December 29, 1988, and recorded on March 15, 1989, in Volume 435, Page 366; as assigned pursuant to the Assignment and Assumption of Ground Lease between H.A.I., Inc., and Ohio corporation, and Vantage Group, Inc. (n/k/a Valley Group, Inc.), an Ohio corporation, collectively as Assignors, and Visicon, Inc., an Ohio corporation, as Assignee, dated September 30, 1991, and recorded October 17, 1991 in Volume 566, Page 350; as assigned to Debtor by Assignment and Assumption of Ground Lease, dated November 11, 2002 and recorded on November 26, 2002 in OR Volume 1858, Page 891 of the Greene County records on the land described as follows:
SITUATE IN THE STATE OF OHIO, COUNTY OF GREENE, TOWNSHIP OF BATH AND BEING PART OF SECTION 31, TOWN 3, RANGE 8 M.R.S., ALSO BEING PART OF THE GOVERNMENT RESERVATION OF WRIGHT-PATTERSON AIR FORCE BASE BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A STAKE SET AT A POINT 50.00 FEET EAST OF THE CENTERLINE OF CHIDLAW ROAD AND 46.00 FEET SOUTH OF THE CENTERLINE OF SPRUCE WAY;
THENCE SOUTH 65°22'55" EAST, ALONG THE SOUTH LINE OF SAID SPRUCE WAY, A DISTANCE OF 276.28 FEET TO A STAKE SET A POINT OF CURVATURE;
THENCE ON A CURVE TO THE RIGHT, ALONG THE SOUTH LINE OF SAID SPRUCE WAY, HAVING A RADIUS OF 529.00 FEET, A CENTRAL ANGLE OF 33°30'36", FOR AN ARC DISTANCE OF 309.39 FEET TO A STAKE SET;
THENCE TO STAKE SET BY THE FOLLOWING COURSES;
SOUTH 59°07'41" WEST A DISTANCE OF 139.01 FEET;
SOUTH 23°44'59"; EAST A DISTANCE OF 468.88 FEET;
SOUTH 62°49'51" WEST A DISTANCE OF 305.00 FEET;
NORTH 63°42'24" WEST A DISTANCE OF 514.12 FEET TO A STAKE SET 213.89 FEET EAST OF THE CENTERLINE OF CHIDLAW ROAD;
THENCE NORTH 0°50'12" WEST, A DISTANCE OF 63.26 FEET TO A STAKE SET AT A POINT OF CURVATURE;
THENCE ON A CURVE TO THE RIGHT, HAVING A RADIUS OF 1300.00 FEET, A CENTRAL ANGLE OF 26°25'08", FOR AN ARC DISTANCE OF 599.42 FEET TO A STAKE SET AT A DISTANCE OF 50.00 FEET FROM THE CENTERLINE OF CHIDLAW ROAD;
THENCE NORTH 25°34'56"; EAST, ALONG THE EAST LINE OF CHIDLAW ROAD, A DISTANCE OF 92.00 FEET TO THE PLACE OF BEGINNING, CONTAINING 10.272 ACRES;
TOGETHER WITH RIGHTS OF INGRESS AND EGRESS AND THE RIGHT, IN COMMON WITH OTHERS, TO THE USE OF ALL SUPPORTING FACILITIES, ROADWAYS AND/OR RAILROAD TRACKS SERVING THE LEASED PREMISES AS SET FORTH AND DESCRIBED IN THE LEASE FROM THE SECRETARY OF THE AIR FORCE TO H.A.I., INCORPORATED AND VANTAGE GROUP, INC., DATED DECEMBER 29, 1988, AND RECORDED MARCH 15, 1989, IN VOLUME 435, PAGE 366 OF THE GREENE COUNTY, OHIO RECORDS.
2. All buildings, improvements and tenements now or hereafter erected on the property, and all heretofore or hereafter vacated alleys and streets abutting the property, and all easements, rights, appurtenances, rents, royalties, mineral, oil and gas rights and profits, water, water rights, and water stock appurtenant to the property, and all fixtures, machinery, equipment, engines, boilers, incinerators, building materials, appliances and goods of every nature whatsoever now or hereafter located in, or on, or used, or intended to be used in connection with the property, including, but not limited to, those for the purposes of supplying or distributing heating, cooling, electricity, gas, water, air and light; and all elevators, and related machinery and equipment, fire prevention and extinguishing apparatus, security and access control apparatus, plumbing, bath tubs, water heaters, water closets, sinks, ranges, stoves, refrigerators, dishwashers, disposals, washers, dryers, awnings, storm windows, storm doors, screens, blinds, shades, curtains and curtain rods, mirrors, cabinets, paneling, rugs, attached floor coverings, personal property (including beds, bureaus, chiffonniers, chests, chairs, desks, lamps, mirrors, bookcases, tables, rugs, carpeting, drapes, draperies, curtains, shades, venetian blinds, screens, paintings, hangings, pictures, divans, couches, luggage carts, luggage racks, stools, sofas, chinaware, flatware, tableware, towels, sheets, linens, pillows, blankets, glassware, foodcarts, cookware, dry cleaning facilities, dining room wagons, keys, or other entry systems, bars, bar fixtures, liquor and alcoholic beverages, liquor and beverage dispensers (to the extent permitted under applicable law and regulations), icemakers, radios, television sets, intercom and paging equipment, electric and electronic equipment, dictating equipment, private telephone systems, telephones, medical equipment, potted plants, heating, lighting and plumbing fixtures, fire prevention and extinguishing apparatus, fittings, plants, apparatus, microwaves, coffee makers, laundry machines, motors, boilers, incinerators, switchboards, conduits, compressors, vacuum cleaning systems, floor cleaning, waxing and polishing equipment, call systems, brackets, electrical signs, bulbs, bells, ash and fuel, conveyors, cabinets, lockers, shelving, spotlighting equipment, dishwashers, garbage disposals, washers and dryers, other furnishings, and other customary hotel equipment), furniture, pictures, antennas, trees and plants, tax refunds, trade names, licenses, permits, Debtor's rights to insurance proceeds, unearned insurance premiums and choses in action; all of which, including any and all renewals, replacements and additions thereto and substitutions therefor, shall be deemed to be and remain a part of the real property covered by this instrument; and all of the foregoing, together with said real property as herein referred to as the "Property;"
3. All right, title and interest in, and under any and all leases now or hereinafter in existence (as amended or supplemented from time to time) and covering space in or applicable to the Property (hereinafter referred to collectively as the "Leases" and singularly as a "Lease"), together with all rents, earnings, income, profits, deposits, reserves, benefits and advantages arising from the Property and from said Leases and all other sums due or to become due under and pursuant thereto, including the immediate and continuing right to collect all fees, charges, accounts or other charges for the use or occupancy of rooms and other public facilities in or on the Property, including all rents, income, security deposits, tax, insurance facilities in or on the Property, including all rents, income, security deposits, tax, insurance and replacement reserve deposits, charges, receipts, royalties, profits, issues, service reimbursements, fees, accounts receivables, revenues and prepayments of any of the same (including termination, cancellation, option and similar payments), from or related to the Property from time to time accruing under the Leases and/or the operation of the Property, including, all revenues and credit card receipts collected from guest rooms and suites, restaurants, bars, cocktail lounges, meeting rooms, banquet rooms and recreational facilities, and any other operations of the hotel constructed on the Property, all receivables, customer obligations, installment payment obligations and other obligations now existing or hereafter arising or created out of the sale, lease, sublease, license, concession or other grant of the right of the use and occupancy of the property or rendering of services by Debtor or any operator or manager of the hotel or the commercial space located in the improvements or acquired from others (including from the rental of any office space, retail space, parking, guest rooms or other space, halls, stores, and offices, and deposits securing reservations of such space), license, lease, sublease and concession fees and rentals, health club facilities, health club membership fees, food and beverage wholesale and retail sales, other department revenues, service charges (including late charges, termination, cancellation, option and similar payments), vending machine sales, other payments, profits and proceeds and together with any and all guarantees of or under any of said Leases, and together with all rights, powers, privileges, options and other benefits of debtor as lessor under the Leases, including, without limitation, the immediate and continuing right to receive and collect all rents, income, revenues, issues, profits, condemnation awards, insurance proceeds, moneys and security payable or receivable under the Leases or pursuant to any of the provisions thereof, whether as rent or otherwise, the right to accept or reject any offer made by any tenant pursuant to its Lease to purchase the Property and any other property subject to the Lease as therein provided and to perform all other necessary or appropriate acts with respect to such Leases as agent and attorney-in-fact for Debtor, and the right to make all waivers and agreements, to give and receive all notices, consents and releases, to take such action upon the happening of a default under any Lease, including the commencement, conduct and consummation of proceedings at law or in equity as shall be permitted under any provision of any Lease or by any law, and to do any and all other things whatsoever which Debtor is or may become entitled to do under any such Lease together with all accounts receivable, contract rights, franchises, interests, estates or other claims, both at law and in equity, relating to the Property, to the extent not included in rent earnings and income under any of the Leases;
4. All right, title and interest in, to and under any and all reserve, deposit or escrow accounts (the "Accounts") made pursuant to any loan document made between Debtor and Plaintiff with respect to the Property, together with all income, profits, benefits and advantages arising therefrom, and together with all rights, powers, privileges, options and other benefits of Debtor under the Accounts, and together with the right to do any and all other things whatsoever which Debtor is or may become entitled to do under the Accounts;
5. All agreements, contracts, certificates, guaranties, warranties, instruments, franchises, permits, plans, specifications and other documents, now or hereafter entered into, and all rights therein and thereto, pertaining to the use, occupancy construction, management or operation of the Property and any part thereof and any improvements or respecting any business or activity conducted on the Property and any part thereof and all right, title and interest of Debtor therein, including the right to receive and collect any sums payable to debtor thereunder and ail deposits or other security or advance payments made by Debtor with respect to any of the services related to the Property or the operation thereof;
6. All franchise agreements, reservation agreements, license agreements, licenses (including liquor, and alcoholic beverage licenses, but only to the extent permitted under applicable law and regulations), trademarks, tradenames, assumed names, telephone numbers and listing rights, and all other rights and interests in and to the names and marks used by Debtor in connection with the Property, including all of Debtor's rights in the name "Hope Hotel," and all books and records, accounting systems and all other general intangibles relating to the operation of the Property;
7. All servicemarks, logos, copyrights, goodwill, books and records and all other general intangibles relating to or used in connection with the operation of the Property;
8. All trademarks, tradenames, trade styles, assumed names, telephone numbers and listing rights, and all other rights and interests in and to the names and marks used by Debtor in connection with the Property, and all books and records, accounting systems and all other general intangibles relating to the operation of the Property; and
9. Any and all proceeds resulting or arising from any of the foregoing (the Property, the Leases, the Accounts, and all other property, whether real, personal, tangible, or intangible, described above, and all proceeds thereof, may be referred to collectively as the "Collateral").
