Foreclosures

NOTICE OF UCC PUBLIC AUCTION SALE

PLEASE TAKE NOTICE that on January 17, 2024 commencing at 10:00 a.m. Eastern Standard Time (the “Sale Date”), via audio/video teleconference the details of which will be provided to interested parties in advance of the Sale Date pursuant to the Terms of Public Sale (described below), based upon the occurrence of one or more Events of Default under certain documents (the “Loan Documents”) copies of which are available for inspection as hereinafter described, pursuant to such Loan Documents, and Article 9 of the Uniform Commercial Code as enacted in the State of New York, Motcomb Estates, Ltd. (“Secured Party”) shall dispose of, by public sale, the right, title, and interest of AVS Mezz LLC (“Pledgor”) in and to the following assets (collectively, the “Collateral”): all of Pledgor’s right, title and interest, whether now owned or hereafter acquired, whether direct or indirect, whether legal, beneficial or economic, whether fixed or contingent, whether arising under the Articles of Organization and the Operating Agreement of Pledged Entity and all amendments thereto (“Organizational Documents”), under federal, state, county, municipal and other governmental statutes, laws, rules, writs, orders, regulations, ordinances, judgments, decrees and injunctions of governmental authorities affecting Pledged Entity (“Legal Requirements”), or otherwise (i) as the sole member in and to Pledged Entity (including the membership interests of Pledgor in Pledged Entity, Pledgor’s interest in any other rights to participate in the equity of Pledged Entity, Pledgor’s share of the profits, losses and capital of Pledged Entity, all of Pledgor’s rights under the Organizational Documents and Legal Requirements to vote and give approvals, consents, decisions and directions and to exercise any other similar right in respect of the Collateral and/or the business and affairs of Pledged Entity and otherwise to participate in the operation and management of the Pledged Entity and all of Pledgor’s rights in, to and under the Organizational Documents, including any purchase option, right of first refusal, right of first offer and buy/sell right); (ii) in or to any other membership and other interest in and to Pledged Entity now owned or hereafter acquired by Pledgor as a result of exchange offers, direct investments, contributions or otherwise; (iii) in all profits, income, surplus, compensation, return of capital, distributions, and other disbursements and payments from Pledged Entity to Pledgor (including, without limitation, specific properties of Pledged Entity upon dissolution or otherwise); (iv) in all present and future claims, if any, of Pledgor against Pledged Entity under or arising out of the Organizational Documents for monies loaned or advanced, for services rendered or otherwise; (v) in all proceeds (including claims against third parties), products, offspring, rents, revenues, issues, profits, royalties, income, benefits, additions and accessions to or of any of the foregoing; (vi) in all replacements and substitutions of or for any of the foregoing; (vii) in all books and records (in whatever form or media, including without limitation computerized records, software and disks) relating to any of the foregoing; and (viii) in all documents, instruments, certificates, agreements or other evidence of any of the foregoing, whether or not in written form and whether heretofore or hereafter in existence or acquired; but excluding any obligation or liability of Pledgor with respect to Pledged Entity or any duty of Pledgor as a member of Pledged Entity.

The public sale shall be conducted by Mannion Auctions, LLC, by William Mannion, Auctioneer, NYC DCA License No. 796322, and/or Matthew D. Mannion, Auctioneer, NYC DCA License No. 1434494, or such other auctioneer licensed in the State of New York as is selected by Secured Party in its sole and absolute discretion.

Based upon information provided by Pledgor, Pledged Entity, and certain other persons and entities affiliated therewith, it is the understanding of Secured Party (but without any representation or warranty by Secured Party as to the accuracy or completeness of the following matters) that: (i) Pledgor own one hundred percent (100%) of the membership interests in Pledged Entity (the “Membership Interests”); (ii) Pledged Entity has good, marketable and insurable leasehold estate in and to each parcel of real property more particularly described In Schedule Loan of the Loan Agreement and located at 130 West 44th Street, New York, New York 10036 (Block 996, Lot 46), the Improvements (as defined in the Loan Agreement) thereon and all personal property owned by Pledged Entity and encumbered by the Security Instrument (as defined in the Loan Agreement), together with all rights pertaining to such property and Improvements (the “Premises”); and (iii) the Premises is encumbered by an Agreement of Consolidation and Modification of Leasehold Mortgage, dated December 20, 2019, made by Borrower to Plaintiff, in the total principal amount of $62,500,000.00.

The Collateral is offered “AS IS, WHERE IS”, with all faults, and Secured Party makes no guarantee, representation, or warranty (including, without limitation, any representation or warranty of merchantability or fitness), express or implied, of any kind or nature whatsoever.

Secured Party will be permitted to bid at the sale, and notwithstanding any requirement herein that the sale of the Collateral be for cash, Secured Party may credit bid all or any portion of the outstanding balance of the amounts due under the Loan Documents. Secured Party reserves the right, in its sole and absolute discretion, to (i) reject all bids and terminate the sale or adjourn the sale to such other date and time as Secured Party may deem proper, by announcement at the place and on the date of sale, and any subsequent adjournment thereof, without further publication, and (ii) impose any other commercially reasonable conditions upon the sale of the Collateral as Secured Party may deem proper in its sole and absolute discretion.

The Membership Interests are unregistered securities under the Securities Act of 1933 as amended. Because of this, each prospective bidder seeking to be a “Qualified Bidder” (as determined by Secured Party in its sole and absolute discretion) shall be required, among other things, to execute and deliver to Secured Party a “Bidding Certificate” certifying, among other things, that such bidder: (i) will acquire the Collateral for investment purposes, solely for its own account and not with a view to distribution or resale; (ii) is an accredited investor within the meaning of the applicable securities laws; (iii) has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of investment and has sufficient financial means to afford the risk of investment in the Collateral; and (iv) will not resell or otherwise hypothecate the Collateral without either a valid registration under applicable federal or state laws, including without limitation the Securities Act of 1933 as amended, or an available exemption therefrom.

The public sale of the Collateral shall be subject to the further terms and conditions set forth in the “Terms of Public Sale” (including without limitation terms and conditions with respect to the availability of additional information, bidding requirements, deposit amounts, bidding procedures, and the consummation of the public sale), which are available by contacting: Newmark, 125 Park Avenue, New York, New York 10017, Attn: Nick Scribani, email: Nick. Scribani@nmrk.com, tel: (212) 372-2113.