NOTICE OF MOTION FOR AN ORDER APPROVING SALE AGREEMENT FOR CERTAIN PROPERTY OF HAMMOND INDUSTRIAL OUTLOTS, LLC

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Alicia Watson
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1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK SECURITIES AND EXCHANGE COMMISSION, - against - Plaintiff, STEVEN BYERS, JOSEPH SHERESHEVSKY, WEXTRUST CAPITAL, LLC, WEXTRUST EQUITY PARTNERS, LLC, WEXTRUST DEVELOPMENT GROUP, LLC, WEXTRUST SECURITIES, LLC, and AXELA HOSPITALITY, LLC, No. 08 Civ (DC) ECF Case Defendants, - and - ELKA SHERESHEVSKY, Relief Defendant. NOTICE OF MOTION FOR AN ORDER APPROVING SALE AGREEMENT FOR CERTAIN PROPERTY OF HAMMOND INDUSTRIAL OUTLOTS, LLC TO: THE COURT, ALL COUNSEL OF RECORD, AND ALL KNOWN INVESTORS IN HAMMOND INDUSTRIAL INVESTORS, LLC PLEASE TAKE NOTICE that Timothy J. Coleman (the Receiver ), Receiver to Wextrust Capital, LLC; Wextrust Equity Partners, LLC; Wextrust Development Group, LLC; Wextrust Securities, LLC; and Axela Hospitality, Inc. (collectively, the Wextrust Entities ), will move this Court before the Honorable Denny Chin at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, Courtroom 11A, New York, New York, for an order approving the sale agreement (the Hammond Sale Agreement ) for certain property of

2 Hammond Industrial Outlots, LLC ( Hammond Outlots ). This motion is supported by the Memorandum of Law in Support, the declarations of Mark S. Radke, Mitchell P. Kahn, Michael L. Gorney and the exhibits thereto, and all pleadings and exhibits filed in this matter. PLEASE TAKE FURTHER NOTICE that the Hammond Sale Agreement provides for the sale of approximately 6.3 acres of property located in Hammond, Louisiana, designated as Lot 1-A-2-B, located in Sec. 20, T6S, R8E, Tangipahoa Parish, Louisiana, together with all buildings and improvements located thereon by Hammond Outlots. Hammond Outlots is owned and controlled by one of the Wextrust Entities. The sole member of Hammond Outlots is Hammond Industrial Holdings, LLC, which, as further described in the Memorandum of Law in Support, is indirectly owned by third-party investors and Wextrust Equity Partners, LLC, one of the Wextrust Entities. Hammond Industrial Holdings is controlled by Hammond Industrial Managers, LLC, which is wholly owned by Wextrust Equity Partners, LLC. PLEASE TAKE FURTHER NOTICE that the Hammond Sale Agreement, a true and correct copy of which is attached as Exhibit D to the Declaration of Mark S. Radke ( Radke Decl. ), filed concurrently herewith, is also available for inspection and copying during regular business hours at the Office of the Clerk of the District Court, by written request to the District Court Clerk s Offices, or by using the PACER filing system utilized by the District Court at < Further, a copy of the Hammond Sale Agreement, and all other papers related to this motion, will be posted on the Receiver s website at < Finally, a copy of this notice and all papers related to this motion will be distributed to all known investors in Hammond Industrial Investors, LLC by either electronic or first class mail. 2

3 PLEASE TAKE FURTHER NOTICE that a hearing on approval of the Hammond Sale Agreement will be scheduled for a date and time to be determined by the Court, including in the event that there are timely filed objections to the relief sought in the Hammond Sale Agreement. To the extent that there are no timely objections, the Court may enter an order approving the Hammond Sale Agreement without holding a hearing. PLEASE TAKE FURTHER NOTICE that, responses or objections, if any, to the Hammond Sale Agreement must (i) be in writing; (ii) state the name and address of the responding party and the amount and nature of the claim or interest of such party; (iii) state with particularity the legal and factual bases of any response or objection; and (iv) be served together with proof of service, with a hard copy to Chambers, so as to be actually received not later than 4:00 p.m. (prevailing Eastern time) on December 8, 2008 (the Objection Deadline ) and such service shall be completed by the Objection Deadline by or facsimile service on the following individuals: (i) Dewey & LeBoeuf, LLP, Martin J. Bienenstock, Esq. (MBienenstock@dl.com or (f)); (ii) Dewey & LeBoeuf, LLP, Mark S. Radke, Esq. (MRadke@dl.com or (f)); (iii) the Securities and Exchange Commission, Andrew Calamari, Esq. (calamaria@sec.gov or (f)); and (iv) the Securities and Exchange Commission, Steven Rawlings, Esq. (rawlingss@sec.gov or (f)). 3

4 Dated: New York, NY December 2, 2008 s/ Leo V. Gagion Leo V. Gagion Mark S. Radke, pro hac vice Dewey & LeBoeuf LLP 125 West 55th Street New York, New York Tel: (212) Fax: (212) Counsel to Timothy J. Coleman, Receiver for the Wextrust Entities and Affiliates 4

5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK SECURITIES AND EXCHANGE COMMISSION, Plaintiff, - against - STEVEN BYERS, JOSEPH SHERESHEVSKY, WEXTRUST CAPITAL, LLC, WEXTRUST EQUITY PARTNERS, LLC, WEXTRUST DEVELOPMENT GROUP, LLC, WEXTRUST SECURITIES, LLC, and AXELA HOSPITALITY, LLC, No. 08 Civ (DC) ECF Case Defendants, - and - ELKA SHERESHEVSKY, Relief Defendant. [PROPOSED] ORDER APPROVING SALE AGREEMENT FOR CERTAIN PROPERTY OF HAMMOND INDUSTRIAL OUTLOTS, LLC On the motion of Timothy J. Coleman, duly appointed Receiver herein (the Receiver ), for an Order Approving Sale Agreement for Certain Property of Hammond Industrial Outlots, LLC, the Court has reviewed and considered (1) the Memorandum of Law in Support of Motion of Receiver for an Order Approving Sale Agreement for Certain Property of Hammond Industrial Outlots, LLC; (2) the Declaration of Mark S. Radke in Support; (3) the Declaration of Mitchell P. Kahn in Support; (4) the Declaration of Michael L. Gorney in Support; and (5) this Court s prior orders. CH /2/ :32am

6 Based on consideration of the foregoing, the Court finds that a proper showing has been made for the relief granted herein because the Receiver, in the exercise of his discretion, has determined that the Hammond Sale Agreement 1 presents a reasonable price for the Lot 1-A-2-B located in Sec. 20, T6S, R8E, Tangipahoa Parish, Louisiana (the Hammond Outlots Property ). The Court has jurisdiction over the subject matter of this motion and good and sufficient notice of this motion has been provided to all parties entitled thereto pursuant to the Court s prior orders. NOW THEREFORE IT IS HEREBY ORDERED that the Receiver s motion is granted in all respects and objections, if any, are overruled to the extent such objections have not been previously withdrawn, waived, or settled. IT IS FURTHER ORDERED that, pursuant to the Receivership Order, the Receiver, acting on behalf of Hammond Industrial Outlots, LLC has authority to sell the Hammond Outlots Property and convey good and merchantable title to the same. IT IS FURTHER ORDERED that the sale of the Hammond Outlots Property is hereby approved, free and clear of all claims, liens, and encumbrances thereon and interests therein except as otherwise set forth in the Hammond Sale Agreement and any attachments thereto. IT IS FURTHER ORDERED that the Receiver is hereby authorized to take any action and execute any documents he may deem appropriate and/or necessary in closing the sale and transferring merchantable title to the Hammond Outlots Property to Picou Brothers. 1 Capitalized terms not expressly defined herein shall have the meanings ascribed to them in the Memorandum of Law in Support of Motion of Receiver for an Order Approving Sale Agreement for Certain Property of Hammond Industrial Outlots, LLC. CH /2/ :32am

7 IT IS FURTHER ORDERED that this Court shall retain exclusive jurisdiction to enforce the terms and conditions of the Hammond Sale Agreement, including any releases or indemnities granted therein. IT IS FURTHER ORDERED that the terms of the Order shall be binding upon the Receiver, Hammond Industrial Holdings, LLC, Hammond Industrial Investors, LLC, Hammond Industrial Outlots, LLC, the Defendants in the above-captioned matter, any holder of a claim against or interest in the receivership estate, any investor in Hammond Industrial Investors, LLC, Hammond Industrial Ventures, LLC, or Hammond Industrial Managers, Picou Brothers, and any other person receiving notice of the Motion and any affiliates, successors, or assigns of any of the foregoing. IT IS FURTHER ORDERED that, notwithstanding any motion for reconsideration or time for appeal, the terms of this Order shall be immediately enforceable and the parties to the Hammond Sale Agreement may close the Hammond Outlots Property sale transaction at any time after entry of this Order. SO ORDERED Dated: New York, New York Hon. Denny Chin United States District Judge CH /2/ :32am

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. August Term, Docket No cv (l), cv (CON)

09-0234-cv (l), 09-0284-cv(con) SEC v. Byers UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2009 (Argued: November 16, 2009 Decided: June 15, 2010) Docket No. 09-0234-cv (l), 09-0284-cv