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Plaintiffs,
-against-
PSWNYCLLC,
Defendant.
STATEOFMARYLAND )
) ss.:
CITYOFBALTIMORE )
ANDREW J. HUNDERTMARK, being duly sworn deposes and says:
Senior Vice President. CWCAM fied this motion for preliminary injunction (i) in its capacity as
Special Servicer for Bank of America, N.A., as Trustee for the Registered Holders of Wachovia
Bank Commercial Mortgage Trust 2007-C30 (the "2007-C30 Trust"); and (ii) on behalf of Ban
of America, N.A., as Trustee for the Registered Holders of COBALT CMBS Commercial
Mortgage Trust 2007-C2, U.S. Bank National Association, as Trustee for the Registered Holders
of Wachovia Bank Commercial Mortgage Trust 2007-C31, U.S. Bank National Association, as
Trustee for the Registered Holders of ML-CFC Commercial Mortgage Trust 2007-5, and U.S.
Bank National Association, as Trustee for the Registered Holders of ML-CFC Commercial
Mortgage Trust 2007-6 (together with the 2007-C30 Trust, collectively, the "Plaintiffs" or the
"Trusts"), pursuant to the authority granted under that certain Amended and Restated Co-Lender
Agreement dated March 12,2007 (the "Co-Lender Agreement", a tre and correct copy of which
is attached hereto as Exhibit A). CWCAM is the Special Servicer of the loan and mortgage that
witness. This affidavit is based upon personal knowledge and the provisions of the relevant
documents. If called as a witness, I could and would testify to the matters set forth herein.
non-performng loans and the Asset Manager assigned to the Senior Loan (defined below).
Based on my responsibilties with CWCAM, I am fully familiar with the facts and circumstances
underlying this action. All of the documents attached to this Affidavit are business records of
CWCAM that were received and are maintained by CWCAM in the ordinary course of its
4. This action arses out of a present and actual controversy regarding Peter
Cooper Vilage and Stuyvesant Town ("the Property") in Manhattan and an Intercreditor
Agreement dated as of February 16, 2007 governing the rights of the paries with regard to
i Recent aricles from the press are also included as exhibits to the Affdavit.
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certain loans extended to facilitate the purchase of the Property by the Borrowers (defined
entity formed on July 30, 2010 to hold a junior mezzanine loan position that it recently acquired,
provided notice to the Senior Lenders, the Borrowers, the Junior Lenders, the Junior Borrowers,
CWCAM and others that it intended to sell the Junior 1-3 Borrowers' Equity Collateral at a
public sale to be held on August 25,2010. Since publishing such notices, PSW has made it clear
to CWCAM that it intends to submit a credit bid at the public sale and then force the Borrowers
into bankptcy. PSW has also made clear that it intends to take these steps without first curing
6. Upon information and belief, PSW's actions are contrary to the terms of
the Intercreditor Agreement. As such, I submit this affidavit in support of Plaintiffs' motion
(i) PSW, its attorneys, agents and any other person or entity acting on its
behalf or in concert with it, and their respective successors and assigns
from:
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outstanding indebtedness (in excess of $3,666,000,000.00) in
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(e) acquiring or sellng PCV ST MEZZ 3 LP's limited parnership
(ii) PSW, its attorneys, agents and any other person or entity acting on its
behalf or in concert with it, and their respective successors and assigns
outstanding.
(B) Such other and further relief as this Cour deems just.
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The Senior Loan
("Tishman") from Metropolitan Tower Life Insurance Company ("MetLife") of Peter Cooper
Vilage and Stuyvesant Town for $5,400,000,000.00 (the "Purchase"), PCV ST Owner LP, a
Delaware limited parnership ("PCV ST Owner") and ST Owner LP. ("ST Owner" and
collectively with PCV ST Owner, the "Borrowers"), both limited parnerships affilated with
Tishman, secured a loan in the amount of $3,000,000,000.00 plus interest at a specified rate (the
"Senior Loan") from Wachovia Bank, N.A. ("Wachovia") and Merrll Lynch Mortgage Lending,
8. Upon information and belief, in conjunction with the Senior Loan, the
Borrowers executed an Amended and Restated Loan and Security Agreement (the "Loan
Agreement", a tre and correct copy of which is attached hereto as Exhibit B) dated as of
9. Peter Cooper Vilage and Stuyvesant Town are the Borrowers' only assets.
10. Upon information and belief, on or about February 16, 2007, the
Borrowers, as joint and several obligors, duly executed, acknowledged and delivered the
following notes for the purpose of evidencing the indebtedness in the collective amount of
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Wachovia, and made payable to Wachovia, as obligee ("Note A-
1 ");
with Note A-I, Note A-2, Note A-3, Note A-4 and Note A-5, the
"Notes").
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1 1. Upon information and belief, on or about February 16, 2007, Borrowers,
as joint and several obligors and mortgagors, for the purpose of securing payment for the Senior
Loan, duly executed, acknowledged and delivered to Wachovia and Merrll, as co-obligees and
Fixture Filng (the "Amendment"), which amends certain provisions of that certain Mortgage,
Security Agreement, Assignment of Rents and Fixture Filng, dated as of November 17, 2006
(the "Mortgage", and as amended by the Amendment, the "Amended Mortgage"). Pursuant to
the Amended Mortgage, Borrowers granted a securty interest to Wachovia and Merrll in,
among other things, the real property located in the State of New York, City of New York,
Borough of Manhattan, Block 972, Lot 1 and Block 978, Lot 1 (the "Property"), more
paricularly described in the Amended Mortgage as the "Premises." These parcels are commonly
known as Peter Cooper Vilage and Stuyvesant Town. The Amendment and the Mortgage,
together with the Notes and all other documents and/or agreements evidencing the Senior Loan,
including the Intercreditor Agreement described below, are collectively referred to herein as the
12. The Amended Mortgage, inter alia, formed a single lien on both parcels of
Securitization Trusts
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b. Pursuant to an Allonge to Note A-2, Wachovia assigned all of its
assigned all of its right, title and interest in Note A-3 and Note A-4
Security Interest recorded in the Register on February 21, 2008 in CRF 2008000071799 (and
re-recorded, for the purpose of including Merrll as assignor, in the Register on June 27, 2008 in
CRF 2008000259160), Wachovia and Merrll transferred a 100% ownership interest in the
Amended Mortgage to Wells Fargo Ban, N.A., as trstee for the registered holders of the 2007-
C30 Trust. On or about July 6,2009, the Amended Mortgage was further assigned to successor
trstee, BofA, as trstee for the registered holders of the 2007 -C30 Trust pursuant to an
2009000386136.
15. CWCAM is the Special Servicer for the 2007-C30 Trust under that certain
Pooling and Servicing Agreement dated March 1, 2007 by and among Wachovia Commercial
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Mortgage Securities, Inc., as Depositor, Wachovia, as Master Servicer, CWCAM, as Special
Servicer, and Wells Fargo, as Trustee. As the Special Servicer, CWCAM is responsible for
16. On March 12, 2007, the Senior Lenders and other paries thereto entered
into the Co-Lender Agreement. Pursuant to Section 2(t) of the Co-Lender Agreement, CWCAM
has the exclusive right and obligation to administer, service and make all decisions and
determnations regarding the Senior Loan and to enforce the related Senior Loan Documents.
17. In order to secure additional financing, the direct and indirect parents of
the Borrowers (collectively, the "Junior Borrowers") pledged to the Junior Lenders (defined
below) their direct and indirect equity interests in the Borrowers and their respective general
parners in exchange for eleven junior mezzanine loans (the "Junior Loans"), with priority
running in sequential order from Junior 1 Loan (most senior) to Junior 11 Loan (most junior).
18. The borrowers for the Junior 1 Loan are PCV ST MEZZ 1 LP and ST
19. The borrowers for the Junior 2 Loan are PCV ST MEZZ 2 LP and ST
20. The borrowers for the Junior 3 Loan are PCV ST MEZZ 3 LP, ST MEZZ
21. Wachovia and Merrll were the original lenders on the Junior 1-3 Loans
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22. The Junior 1 -3 Loans were owned by AIB Debt Management Limited,
Life Insurance Company, Concord Real Estate CDO 2006-1 LTD, and Wachovia, (collectively,
23. Each of the Junior Loans were evidenced by separate Amended and
Restated Mezzanine Loan Agreements (the "Junior Loan Agreements", a true and correct copy of
the Junior 1 Loan Agreement is attached hereto as Exhibit C. The Junior 2-11 Loan Agreements
are in the substantially same form as the Junior 1 Loan Agreement), each dated as of February
16,2007.
24. The total amount of the Junior Loans was $1,400,000,000.00. The Junior
Agreements (the "Junior Pledge Agreements", a true and correct copy of the Junior 1 Pledge
Agreement is attached hereto as Exhibit D. The Junior 2-11 Pledge Agreements are in the
substantially same form as the Junior 1 Pledge Agreement) dated as of February 16, 2007, each
Junior Lender was granted a first priority security interest in the corresponding Junior
Borrower's ownership interest in the respective subsidiary Borrower or Junior Borrower and the
respective subsidiary Borrower's or Junior Borrower's general parner (the "Equity Collateral").
26. The Junior Lenders were not granted a securty interest of any kind in the
27. On February 16, 2007, Wachovia and Merrll, in their capacities as Senior
Lenders and Junior Lenders, entered into an Amended and Restated Intercreditor Agreement (the
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"Intercreditor Agreement", a tre and correct copy of which is attached hereto as Exhibit E)
28. Pursuant to Section 9 of the Intercreditor Agreement, the Junior Loans are
(a) Each Junior Lender hereby subordinates and makes junior the
Junior Loan held by such Junior Lender, the related Junior
Loan Documents and the liens and security interests created
thereby, and all rights, remedies, terms and covenants
contained therein to (i) the Senior Loan and the applicable
Senior Junior Loans, (ii) the liens and security interests created
by the Senior Loan Documents and the applicable Senior
Junior Loan Documents.
29. Consistent with their subordination, the Junior Lenders agreed to cure all
defaults under the Senior Loan as a condition to acquiring the Equity Collateral.
31. Because as is explained further below the Indebtedness under the Senior
Loan is in default, was accelerated on January 29,2010, and is now due in full, in order to satisfy
its obligation to cure all defaults under the Senior Loan under current circumstances, the
Qualified Transferee would have to, among other things, pay Plaintiffs at or before the time it
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acquires the Equity Collateral the total outstanding Indebtedness on the Senior Loan which is in
excess of $3,666,000,000.00.
Agreement.
33. Section l1(d)(ii) of the Intercreditor Agreement provides that the Junior
Lenders are prohibited from soliciting, directing or causing the Borrowers or any other entity
which Controls Borrowers to consent to, or acquiesce in, the institution of bankptcy or
afforded the opportunity to cure defaults under the Senior Loan. Specifically, in the event of a
monetary default of the Senior Loan, Junior Lenders are entitled to ten (10) business days after
are not an adequate remedy at law and contemplates the issuance of an injunction. It provides as
follows:
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Each pary to this Agreement acknowledges (and waives any
defense based on a claim) that monetary damages are not an
adequate remedy to redress a breach by the other hereunder and
that a breach by any pary hereunder would cause irreparable har
to any other pary to this Agreement. Accordingly, each pary to
this Agreement agrees that upon a breach of this Agreement by any
other pary, the remedies of injunction, declaratory judgment and
specific performance shall be available to such non-breaching
pary.
36. The Borrowers failed to pay the monthly installments required under the
Notes for the period from Januar 8,2010 through the date of this Complaint (the "Default").
37. Pursuant to Section 3.1 of the Notes, Section 6.01 of the Amended
Mortgage and Section 13.01 of the Senior Loan Agreement, the Default constitutes an Event of
Default under the Senior Loan Documents, which entitles the Plaintiffs to exercise their rights
under the Senior Loan Documents, including but not limited to, the right to foreclose upon the
Amended Mortgage.
38. By letter dated January 8, 2010, CWCAM notified the Borrowers of the
Default and demanded that the Borrowers make payment for all unpaid amounts then due and
owing (the "Default Notice", a tre and correct copy of which is attached hereto as Exhibit F).
39. By letter dated January 29,2010, CWCAM notified the Borrowers and the
Junior Lenders that the unpaid debt outstanding under the Notes was accelerated, immediately
due and payable because the Borrowers had failed to cure the January 8, 2010 default (the
"Senior Loan Acceleration Letter", a tre and correct copy of which is attached hereto as Exhibit
G).
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40. As a result of the Default and the Acceleration, the full outstanding
principal balance of the Senior Loan, all accrued and unpaid interest thereon and all other sums
owing under the Senior Loan Documents are currently due and payable.
41. On February 16, 2010, CWCAM, on behalf of the Trustees for the Trusts,
filed a mortgage foreclosure action against the Borrowers and certain lienholders in the United
Stated Distrct Court for the Southern Distrct of New York (the "Foreclosure Action").
CWCAM filed an Amended Complaint on February 18, 2010. On June 21, 2010, the Distrct
Court entered a Judgment of Foreclosure and Sale of the Property, and an order directing the
foreclosure of the Property in favor of the Senior Lenders. A true and correct copy of the
42. The amount due and owing to the Plaintiffs under the Notes, the Amended
"Indebtedness").
had declared a Default, and pursuant to Section 12(a) of the paries' Intercreditor Agreement,
afforded the Junior Lenders the opportunity to cure the default (the "January 8, 2010 Notice", a
44. None of the Junior Lenders exercised their rights to cure the default.
Lenders that Junior 1-3 Borrowers' failure to make the required payment of interest due on
January 8, 2010 constituted an Event of Default pursuant to its Junior note and loan agreement
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and that, if the default was not cured within the required cure period, the Junior 1-3 Lenders
intended to pursue their rights and remedies under their loan agreement, including the
commencement of "an Equity Collateral Enforcement Action ((as defined in the Intercreditor
Agreement)) through a non-judicial foreclosure sale of the Equity Collateral securing the
Mezzanine (1-3) Loans under the Uniform Commercial Code" (the "Junior 1-3 Loan Default
Notice", a true and correct copy of which is attached hereto as Exhibit J).
Property Transition
46. For the past nine (9) months, the Senior Lenders have worked with the
Borrowers to transition management of the Property that impacts roughly 25,000 tenants, 11,000
aparments and 550 employees. Such work has entailed going through, on a weekly basis, a
twenty-three single spaced checklist regarding the migration of the Property to ensure that such
47. Upon information and belief, on or around July 30,2010, Winthrop Realty
Trust and Pershing Square Capital Management, L.P. (together the "Hedge Fund Parners")
Wachovia, notified, among others, the Senior Lenders, that it "transferred its respective rights,
title and interest in the Mezzanine 1 Loan, Mezzanine 2 Loan, and Mezzanine 3 Loan to PSW . .
.." In that notice, Wells Fargo certified that PSW is a Qualified Transferee as that term is
defined in the Intercreditor Agreement. A tre and correct copy of the Wells Fargo Notice dated
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49. Also, on August 6, 2010, each of the six (6) Initial Junior 1-3 Holders
notified, among others, the Senior Lenders, through six (6) separate "Notice(s) Under Section
5(a) of the Intercreditor Agreement" that they had assigned their respective Paricipation Interest,
as that term is defined in the Initial Junior 1-3 Holders' "Notice(s) Under Section 5(a) of the
Intercreditor Agreement", to PSW. True and correct copies of the Initial Junior 1-3 Holders
others, the Senior Lenders, that it "agree(d) to bound by the terms of Intercreditor Agreement,"
and it "rema(d)e for the benefit of the Senior Lender and the Junior Lenders, each of the
representations in the Intercreditor Agreement which are applicable to the Mezzanine 1 Loan,
Mezzanine 2 Loan and Mezzanine 3 Loan . . ." A tre and correct copy of PSW's
52. By facsimile dated Saturday, August 7, 2010, PSW provided notice to,
among others, the Senior Lenders, that PSW intended to sell the Junior 1 Borrowers' Equity
Collateral at a public sale to be held August 25, 2010 at 1:00 P.M. (the "Junior 1 Equity
Collateral Sale Notice", a tre and correct copy is attached hereto as Exhibit N).
53. Specifically, the Junior 1 Equity Collateral Sale Notice states that PSW
intends to sell all of its right, title and interest in the following:
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All of ST MEZZ 1 LP's right, title and interest in 100% of the
limited parnership interest in ST OWNER LP, a Delaware limited
parnership;
notice to, among others, the Senior Lenders, that PSW intended to sell the Junior 2 Borrowers'
Equity Collateral at a public sale to be held August 25,2010 at 12:00 P.M. (the "Junior 2 Equity
Collateral Sale Notice", a tre and correct copy of which is attached hereto as Exhibit 0).
55. Specifically, the Junior 2 Equity Collateral Sale Notice states that PSW
intends to sell all of its right, title and interest in the following:
2 Upon information and belief, PCV ST Owner OP LLC is the general parner of the Borrower PCV ST Owner LP,
which is the owner of Peter Cooper Vilage.
3 Upon information and belief, ST Owner OP LLC is the general parner of the Borrower ST Owner LP, which is
the owner of Stuyvesant Town.
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Certain rights and property relating and appurtenant thereto . . . .
56. By facsimile dated Saturday, August 7, 2010, PSW provided notice to,
among others, the Senior Lenders, that PSW intended to sell the Junior 3 Borrowers' Equity
Collateral at a public sale to be held on August 25, 2010 at 11:00 AM. (the "Junior 3 Equity
Collateral Sale Notice", a tre and correct copy of which is attached hereto as Exhibit P).
57. Specifically, the Junior 3 Equity Collateral Sale Notice states that PSW
intends to sell all of its right, title and interest in the following:
58. On Sunday, August 8, 2010, the New York Times published a Notice for
the Public Sale of Collateral related to the Junior 1 Loan, a Notice for the Public Sale of
Collateral related to the Junior 2 Loan, and a Notice for the Public Sale of Collateral related to
the Junior 3 Loan (collectively, the "New York Times Notices", tre and correct copies of which
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Defendants' Imminent Breach of the Intercreditor Agreement
59. Myrad press reports, including reports based upon interviews with the
principals of PSW's joint venture parners, have consistently indicted that PSW intends to
acquire the Equity Collateral that wil be auctioned on August 25, 2010 through a credit bid,
without paying off the Senior Loan, and place the Borrowers into bankptcy to discharge the
obligation. True and correct copies of relevant press reports are attached hereto as Exhibit R.
60. By letter dated, August 10, 2010, CWCAM asked PSW, among other
things, to confirm that the requirements of Section 6(d) of the Intercreditor Agreement wil be
A true and correct copy of CWCAM's August 10, 2010 letter is attached hereto as Exhibit S.
position, and despite the unambiguous requirements of Section 6( d), PSW stated:
A true and accurate copy of PSW's August 11,2010 letter is attached hereto as Exhibit T.
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62. As evidenced by the Junior 1 Equity Collateral Sale Notice, the Junior 2
Equity Collateral Sale Notice, the Junior 3 Equity Collateral Sale Notice and the New York
Times Notices, PSW wil, or wil attempt to, immnently acquire or sell the Junior 1-3
Borrowers' Equity CollateraL.
63. The currently outstanding principal amount of the Senior Loan which is in
excess of $3,666,000,000.00. Upon information and belief, the current value of Stuyvesant
Town and Peter Cooper Vilage is substantially less than the currently outstanding amount of the
Senior Loan alone. Under these circumstances, upon information and belief, PSW wil be unable
or otherwise unwiling to pay the total outstanding Indebtedness with respect to the Senior Loan
64. Accordingly, upon information and belief, PSW wil, or wil attempt to,
acquire or sell the Junior 1-3 Borrowers' Equity Collateral without first paying all the total
outstanding Indebtedness under the Senior Loan in violation of Section 6( d) of the Intercreditor
Agreement.
65. Upon information and belief, PSW has retained bankptcy counsel for a
66. PSW's actions and statements to the media and counsel for the Senior
Lenders indicate that it is not prohibited by the Intercreditor Agreement from placing the
67. PSW wil, or wil attempt to, solicit, direct or cause Borrowers to
commence, consent to or acquiesce in the institution of a bankptcy proceeding while the Senior
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Dated: August 17, 2010
~(1zil~
otar Public
Lauren Cochran
Notary Public
Howard County
Maryland
~y Comm. Exp. 12-2-2013