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Capital Finance, LLC v. 22 Maple Street, LLC

United States District Court, D. Massachusetts

March 21, 2018

CAPITAL FINANCE, LLC and CAPITAL FUNDING, LLC
v.
22 MAPLE STREET, LLC 25 ORIOL DRIVE, LLC 59 COOLIDGE ROAD, LLC 20 KINMONTH ROAD, LLC WABAN HEALTH CENTER, LLC MERRIMACK VALLEY HEALTH CENTER, LLC WATERTOWN HEALTH CENTER, LLC and WORCESTER HEALTH CENTER, LLC

          ORDER APPOINTING RECEIVER

          Rya W. Zobel Senior United States District Judge.

         This matter came before the court on the Motion (the “Motion”) of Capital Finance, LLC (the “AR Loan Agent”) and Capital Funding, LLC (the “Mortgage Loan Agent” and together with the AR Loan Agent, the “Agents”) for Appointment of Receiver of 22 Maple Street, LLC; 25 Oriol Drive, LLC; 59 Coolidge Road, LLC; 20 Kinmonth Road, LLC (collectively, the “Owner Defendants” and, individually, an “Owner Defendant”); Waban Health Center, LLC; Merrimack Valley Health Center, LLC; Watertown Health Center, LLC and Worcester Health Center, LLC (collectively, the “Operator Defendants” and, individually, an “Operator Defendant”).[1] On March 9, 2018, the court entered a Memorandum of Decision (Docket # 35) (the “Receiver Decision”) finding the appointment of a receiver of the Operator Defendants necessary.

         Accordingly, it is ORDERED that:

         1. KCP Advisory Group LLC, 2400 District Avenue, Suite 215, Burlington, MA 01803, by and through Jacen Dinoff, its Principal and Co-Founder, is hereby appointed receiver (“Receiver”) of each of the Operator Defendants and all of Operator Defendants' assets (the “Receivership Assets”), with all of the powers and obligations set forth herein. The Receivership Assets do not include property of the Owner Defendants' bankruptcy estates in their respective bankruptcy cases pending in the United States Bankruptcy Court for the Eastern District of New York.

         2. The Receiver shall take immediate possession and full control of all of the Receivership Assets and shall take such other actions as the Receiver deems reasonable and appropriate to effect this Order, to prevent waste, and to preserve, manage, secure, and safeguard the Receivership Assets in accordance with the powers granted herein.

         3. Subject to the Budget (defined below), the Receiver shall have and may exercise the following powers, and such additional powers that are provided by law and that the court may from time to time direct or confer:

a. take and maintain possession of all documents, books, records, papers, and deposit accounts relating to the Receivership Assets;
b. exclude the Operator Defendants, the Guarantors[2] and their respective agents, servants, and employees wholly from the Receivership Assets, except as necessary for the Operator Defendants to carry out their duties with respect to the Nursing Facilities' licenses;
c. execute and deliver, in the name of the Operator Defendants or in the Receiver's own name, such documents and instruments as are necessary or appropriate to consummate transactions authorized hereunder;
d. manage, operate, preserve and maintain the Receivership Assets as a prudent person would, including, without limitation, the power to enter into, terminate or negotiate contracts and make repairs or alterations to the Receivership Assets that the Receiver in its business judgment reasonably believes necessary for the management, operation, preservation and maintenance of the Receivership Assets;
e. enter into leases, whether of real or personal property, or tenancy agreements, under such terms and conditions as the Receiver may deem appropriate or desirable to preserve the Receivership Assets;
f. employ such contractors, subcontractors, materialmen, architects, engineers, consultants, managers, brokers, marketing agents, or other employees, agents, independent contractors, or professionals as the Receiver may in its discretion deem appropriate or desirable to implement and effectuate the rights and powers herein granted;
g. engage attorneys or other professionals, as appropriate, in order to advise and assist the Receiver in carrying out its duties and appearing in court or other proceedings on its behalf;
h. collect the rents, accounts receivable, insurance claim proceeds, real estate tax refunds, utility deposits, security deposits, proceeds, earnest money deposits and profits from the Receivership Assets, if any, from any time period whether historical, current or prospective, and receive any such assets presently in the possession of the Operator Defendants and/or their agents;
i. repossess personal property, as provided by law, for breaches of the conditions of their leases or other agreements;
j. sue for unpaid receivables, income, or proceeds in the name of the Operator Defendants;
k. subject to the Agents' prior written consent, compromise or give acquittance for receivables, income, or proceeds that may become due; l. deal with issues and other matters with vendors, municipalities, and other governmental entities, as necessary;
m. open any mail intended for and/or directed to the Operator Defendants;
n. hire, fire, select, and retain employees of the Operator Defendants as the Receiver deems reasonable or necessary to preserve and maintain the value of the Receivership Assets, including as necessary or desirable to provide appropriate quality patient care;
o. upon prior written consent of the Agents, retain Next Step Healthcare, LLC as manager of the Nursing Facilities or hire a qualified replacement ...

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