FILED: NEW YORK COUNTY CLERK 03/23/2022 06:32 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 850073/2022
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`RECEIVED NYSCEF: 03/25/2022
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`Index No.
`Date Filed:
`
`Plaintiff designates New York County
`as the place of trial. The basis of the
`venue is the location of the real
`property subject to lien of mortgage.
`
`SUMMONS
`
`Plaintiffs place of business is
`10851 Mastin Street, Suite 300
`Overland Park, KS 66210
`
`--------------------------------------x
`WILMINGTON TRUST, NATIONAL
`ASSOCIATION, AS TRUSTEE FOR THE BENEFIT:
`OF THE REGISTERED HOLDERS OF
`COMMERCIAL MORTGAGE PASS-THROUGH
`CERTIFICATES SERIES 2018-C6, WELLS FARGO:
`COMMERCIAL MORTGAGE TRUST 2018-C47,
`COMMERCIAL MORTGAGE PASS-THROUGH
`CERTIFICATES, SERIES 2018-C47 AND CSAIL
`2018-Cl4 COMMERCIAL MORTGAGE TRUST,
`COMMERCIAL MORTGAGE PASS-THROUGH
`CERTIFICATES, SERIES 2018-Cl4
`
`Plaintiff,
`
`vs.
`
`GOLDEN SEAHORSE LLC, JUBAO XIE, MCSAM :
`DOWNTOWN LLC, AMAZON RESTAURANT &
`BAR INC., BUREAU OF HIGHWAY
`OPERATIONS, NYC ENVIRONMENTAL
`CONTROL BOARD and "JOHN DOE" NOS. 1-25,
`
`Defendants.
`
`The Names of the "John Doe" Defendants Being
`Fictitious and Unknown to Plaintiff, the Persons and
`Entities Intended Being Those Who Have Possessory
`Liens or Other Interests in, the Premises Herein
`Described.
`--------------------------------------x
`
`YOU ARE HEREBY SUMMONED to answer the Verified Complaint in this action and to
`
`serve a copy of your Answer, or, if the Verified Complaint is not served with this Summons, to serve a
`
`Notice of Appearance, on the plaintiffs attorneys within twenty (20) days after the service of this
`
`Summons, exclusive of the day of service ( or within thirty (30) days after the service is complete if this
`
`Summons is not personally delivered to you within the State of New York). In case of failure to appear
`
`156156680.2
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`FILED: NEW YORK COUNTY CLERK 03/23/2022 06:32 PM
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`INDEX NO. 850073/2022
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`RECEIVED NYSCEF: 03/25/2022
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`or answer, judgment will be taken against you by default for the relief demanded in the Verified
`
`Complaint.
`
`Dated: New York, New York
`March 23, 2022
`
`TO:
`
`GOLDEN SEAHORSE LLC
`103 Washington Street
`New York, New York 10006
`Attention: Ziyi Xie
`
`Jubao Xie
`140 Everit A venue
`Hewlett, New York 11557
`
`DeHeng Chen LLC
`The Woolworth Building
`233 Broadway, Suite 2200
`New York, NY 10279
`Attention: Xiaomin Chen
`Email: xchen@dcclaw.com
`
`Ladder Capital Finance LLC
`345 Park A venue, 8th Floor
`New York, New York 10154
`Attention: Mark Ableman
`
`Ladder Capital Finance LLC
`345 Park A venue, 8th Floor
`New York, New York 10154
`Attention: Kelly Porcella
`
`Kelley Drye & Warren LLP
`One Jefferson Road
`
`156156680.2
`
`PERKINS COIE LLP
`
`By: Isl Gary F. Eisenberg
`Gary F. Eisenberg, Esq.
`
`1155 Avenue of the Americas, 22nd Floor
`New York, NY 10036
`212.262.6900
`Attorneys for Plaintiff
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`FILED: NEW YORK COUNTY CLERK 03/23/2022 06:32 PM
`NYSCEF DOC. NO. 1
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`INDEX NO. 850073/2022
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`RECEIVED NYSCEF: 03/25/2022
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`Parsippany,
`Attention:
`
`New Jersey
`07054
`Stephen
`G. Hauck,
`
`Esq.
`
`Fargo
`Wells
`Commercial
`MAC
`
`South
`
`Charlotte,
`Attention:
`
`National
`Bank
`Mortgage
`
`Servicing
`
`Association
`
`Tryon
`North
`Asset
`
`Floor
`14th
`28202
`
`Street,
`Carolina
`Management
`
`McSam Downtown
`420 Great
`Neck
`Road,
`NY 10021
`Great
`
`Neck,
`
`LLC
`
`& Bar
`Amazon
`Restaurant
`103 Washington
`Street
`New York
`New York,
`
`10006
`
`of Highway
`Bureau
`295
`Lafayette
`Street,
`
`Operations
`New York,
`
`NY 10013
`
`NYC Environmental
`Control
`#10, Ñew York,
`66 John
`Street
`
`Board
`NY 10038
`
`156156680.2
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`FILED: NEW YORK COUNTY CLERK 03/23/2022 06:32 PM
`NYSCEF DOC. NO. 1
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`INDEX NO. 850073/2022
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`RECEIVED NYSCEF: 03/25/2022
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`Index No.
`
`VERIFIED COMPLAINT
`
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
`WILMINGTON TRUST, NATIONAL
`ASSOCIATION, AS TRUSTEE FOR THE BENEFIT:
`OF THE REGISTERED HOLDERS OF
`COMMERCIAL MORTGAGE PASS-THROUGH
`CERTIFICATES SERIES 2018-C6, WELLS FARGO:
`COMMERCIAL MORTGAGE TRUST 2018-C47,
`, COMMERCIAL MORTGAGE PASS-THROUGH
`CERTIFICATES, SERIES 2018-C47 AND CSAIL
`2018-C14 COMMERCIAL MORTGAGE TRUST,
`COMMERCIAL MORTGAGE PASS-THROUGH
`CERTIFICATES, SERIES 2018-Cl4
`
`Plaintiff,
`
`vs.
`
`GOLDEN SEAHORSE LLC, JlJBAO XIE, MCSAM :
`DOWNTOWN LLC, AMAZON RESTAURANT &
`BAR, BUREAU OF HIGHWAY OPERA TIO NS,
`NYC ENVIRONMENTAL CONTROL BOARD
`and "JOHN DOE" NOS, 1-25,
`
`Defendants.
`
`The Names of the "John Doe" Defendants Being
`Fictitious and Unknown to Plaintiff, the Persons and
`Entities Intended Being Those Who Have Possessory
`Liens or Other Interests in, the Premises Herein
`Described.
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
`
`Wilmington Trust, National Association, as Trustee for the benefit of the registered holders of
`
`Commercial Mortgage Pass-Through Certificates Series 2018-C6, and as lead securitization trustee for
`
`the benefit of registered holders of Wells Fargo Commercial Mortgage Trust 2018-C47, Commercial
`
`Mortgage Pass-Through Certificates, Series 2018-C4 7 and CS AIL 2018-C 14 Commercial Mortgage
`
`Trust, Commercial Mortgage Pass-Through Certificates, Series 2018-C14 (in its capacity as lead
`
`securitization trustee for each of the foregoing securitization trusts, "Plaintiff') by and through its
`
`156156680.2
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`FILED: NEW YORK COUNTY CLERK 03/23/2022 06:32 PM
`NYSCEF DOC. NO. 1
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`INDEX NO. 850073/2022
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`RECEIVED NYSCEF: 03/25/2022
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`attorneys, Perkins Coie LLP, for its Verified Complaint (the "Complaint") against the defendants,
`
`respectfully alleges as follows:
`
`THE PARTIES
`
`1.
`
`Plaintiff is, and at all relevant times hereinafter mentioned was, a national association,
`
`having an office at c/o Midland Loan Services, I 0851 Mastin Street, Suite 300, Overland Park, KS
`
`66210.
`
`2.
`
`Plaintiff brings this action as the lawful holder and owner of the mortgage and security
`
`interest being foreclosed herein.
`
`3.
`
`Upon information and belief, defendant Golden Seahorse LLC ("Borrower") is, and at all
`
`relevant times hereinafter mentioned was, a limited liability company formed and existing under and by
`
`virtue of the laws of the State of Delaware, having a principal place of business at 103 Washington
`
`Street, New York, New York 10006.
`
`4.
`
`Upon information and belief, defendant Jubao Xie, an individual having an address at
`
`140 Everit Avenue, Hewlett, New York 11557 (the "Guarantor") is made a party defendant by reason of
`
`each having executed and delivered to Ladder Capital Finance LLC, New York Branch, a Delaware
`
`limited liability company, having an address at 345 Park Avenue, 8th Floor, New York, New York
`
`10154 ("Original Lender"), a written guaranty and indemnity (described more particularly below) in
`
`connection with the loan, note and mortgage at issue in this action and for the purpose of adjudicating
`
`any deficiency under the subject mortgage for which Guarantor may be liable.
`
`5.
`
`Upon information and belief, Borrower is, and at all relevant times hereinafter mentioned
`
`was, the owner of certain real property located at: 99 and 103 Washington Street, New York, New York
`
`10006, County of New York, State of New York, as more specifically described in Schedule "A"
`
`annexed hereto, together with the buildings, improvements, fixtures, machinery, equipment, personalty
`
`156156680.2
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`INDEX NO. 850073/2022
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`RECEIVED NYSCEF: 03/25/2022
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`and other rights or interests of any kind or nature owned or held by them, all as more specifically
`
`described in Schedule "A" annexed hereto (collectively, the "Mortgaged Property").
`
`6.
`
`Upon information and belief, the Mortgaged Property includes the Holiday Inn FiDi
`
`Hotel, a 492-room hotel currently franchised as a Holiday Inn hotel (the "Hotel").
`
`7.
`
`Upon information and belief, McSam Downtown LLC ("McSam Downtown") is, and at
`
`all relevant times hereinafter mentioned was, a limited liability company formed and existing under and
`
`by virtue of the laws of the State of New York, having a principal place of business at 420 Great Neck
`
`Road, Great Neck, New York 10021 and made a party defendant by reason of being a possible tenant at
`
`the Mortgaged Property.
`
`8.
`
`Upon information and belief, Amazon Restaurant & Bar ("Amazon") is a restaurant
`
`located at the Mortgaged Property and is made a party defendant by reason of being a lessee at the
`
`Mortgaged Property.
`
`9.
`
`Bureau of Highway Operations ("BOHO") is made a party defendant as a judgment
`
`creditor of the Mortgaged Property by reason of the judgment(s) described on Schedule B attached
`
`hereto. BOHO is the holder of a lien or liens on account of those judgment liens, if any, against
`
`Borrower, as described on Schedule B, which liens are subject and subordinate to the lien of the
`
`mortgage being foreclosed herein. BOHO is made a party defendant herein solely for the purpose of
`
`foreclosing those liens, if any, against the Mortgaged Property which accrued, or may accrue,
`
`subsequent to the lien of mortgage being foreclosed herein by virtue of such judgment liens which are or
`
`may be due or which become due to BOHO from any owner ofrecord of the Mortgaged Property.
`
`10.
`
`New York City Environmental Control Board ("NYECB") is made a party defendant as a
`
`judgment creditor of the Mortgaged Property by reason of the judgment(s) described on Schedule B
`
`attached hereto. NYECB is the holder of a lien or liens on account of those judgment liens, if any,
`
`156156680.2
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`FILED: NEW YORK COUNTY CLERK 03/23/2022 06:32 PM
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`INDEX NO. 850073/2022
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`RECEIVED NYSCEF: 03/25/2022
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`against Borrower, as described on Schedule B, which liens are subject and subordinate to the lien of the
`
`mortgage being foreclosed herein. NYECB is made a party defendant herein solely for the purpose of
`
`foreclosing those liens, if any, against the Mortgaged Property which accrued, or may accrue,
`
`subsequent to the lien of mortgage being foreclosed herein by virtue of such judgment liens which are or
`
`may be due or which become due to NYECB from any owner of record of the Mortgaged Property.
`
`11.
`
`Upon information and belief, the "John Doe" defendants constitute tenants, occupants or
`
`other persons and entities who may be in possession of, or may have possessory liens or other interests
`
`in, the Mortgaged Property and which possessory liens or other interests, if any, are subsequent and/or
`
`subordinate to the mortgages being foreclosed herein. Said defendants are named as party defendants
`
`herein for the purpose of terminating their interests.
`
`THE LOAN DOCUMENTS
`
`12.
`
`On or about September 18, 2018, Original Lender agreed to make a loan or loans (the
`
`"Loan") to Borrower, in accordance with the terms and conditions of that certain loan agreement (the
`
`"Loan Agreement") dated September 18, 2018. A true and correct copy of the Loan Agreement is
`
`attached hereto as Exhibit A.
`
`13.
`
`The Loan is in part evidenced by that certain Consolidated, Amended and Restated
`
`Promissory Note dated September 18, 2018 (the "Original Note") in the original principal amount of
`
`One Hundred Thirty-Seven Million Twenty-Five Thousand and 00/100 Dollars ($137,025,000.00)
`
`executed by Borrower in favor of Original Lender. A true copy of the Original Note is annexed hereto
`
`as Exhibit B and its terms are expressly incorporated herein by reference and made part hereof as though
`
`fully and completely set forth herein. All documents evidencing or security for the Loan, including
`
`those set forth herein, shall be collectively referred to as the "Loan Documents."
`
`I 56156680.2
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`INDEX NO. 850073/2022
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`RECEIVED NYSCEF: 03/25/2022
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`14.
`
`Pursuant to that certain Note Splitter and Modification Agreement and Omnibus
`
`Amendment to Loan Documents, dated September 18, 2018, a true and correct copy of which is annexed
`
`hereto as Exhibit C, the Original Note was split, severed, and modified into four (4) promissory notes:
`
`(a) the first note being that certain Replacement Promissory Note A-1, dated September 18, 2018,
`
`executed by Borrower in favor of Original Lender in the amount of Thirty-Two Million Twenty Five
`
`Thousand and 00/100 Dollars ($32,025,000.00) ("Note A-1"); (b) the second note being that certain
`
`Replacement Promissory Note A-2, dated September 18, 2018, executed by Borrower in favor of
`
`Original Lender in the amount of Thirty-Five Million and 00/100 Dollars ($35,000,000.00) ("Note A-
`
`2"); (c) the third note being that Replacement Promissory Note A-3, dated September 18, 2018, executed
`
`by Borrower in favor of Original Lender
`
`in the amount of Twenty Million and 00/100 Dollars
`
`($20,000,000.00) ("Note A-3"); and (d) the fourth note being that Replacement Promissory Note B,
`
`dated September 18, 2018, executed by Borrower in favor of Original Lender in the amount of Fifty
`
`Million and 00/100 Dollars ($50,000,000.00) ("Note B" or the "Junior Note" and together with together
`
`with Note A-1, A-2 and A-3, the "Severed Notes").
`
`15.
`
`Pursuant to that Note Reallocation and Modification Agreement, dated November 6,
`
`2018, a true and correct copy of which is annexed hereto as Exhibit D, Borrower and Ladder II (defined
`
`below, and the initial transferee of Notes A-1, A-2 and A-3 from Original Lender) agreed that the
`
`amounts evidenced by Note A-1 and Note A-3 are reallocated amongst two (2) promissory notes in
`
`favor of Ladder II ( who, at that time and pursuant to the allonges and deliveries to Ladder II by Original
`
`Lender, was the holder ofNote A-1 and Note A-3), the first being Replacement Promissory Note A-1-A,
`
`dated November 6, 2018, in the original principal amount of Twenty-Seven Million Twenty-Five
`
`Thousand and No/100 Dollars ($27,025,000.00) ("Note A-1-A") and the second being Replacement
`
`Promissory Note A-3-A, dated November 6, 2018, in the original principal amount of Twenty Five
`
`156156680.2
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`INDEX NO. 850073/2022
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`RECEIVED NYSCEF: 03/25/2022
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`Million and No/100 Dollars ($25,000,000.00) ("Note A-3-A"; collectively with Note A-1-A, the
`
`"Replacement Notes"; the Replacement Notes together with Note A-2 and Note B, the "Note").
`
`16.
`
`True and correct copies of the Severed Notes are attached hereto as Exhibit E, together
`
`with all allonges thereto as described below. True and correct copies of the Replacement Notes
`
`(together with Note A-2 and Note B) are annexed hereto as Exhibit F, together with all allonges thereto
`
`as described below. The terms of all of them are expressly incorporated herein by reference and made
`
`part hereof as though fully and completely set forth herein.
`
`17.
`
`Allonges to Note A-1, Note A-2, and Note A-3 were executed and delivered from
`
`Original Lender to Ladder Capital Finance II LLC and Series TRS of Ladder Capital Finance II LLC, a
`
`series of Ladder Capital Finance II LLC, each a Delaware limited liability company ("Ladder II") as of
`
`October 9, 2018. A true and correct copy of each such allonge to each note as so transferred is attached
`
`as part of the note to which it is attached as described above.
`
`18.
`
`An allonge to Note B was executed and delivered from Original Lender to IGIS US
`
`Private Placement Real Estate Investment Trust No. 228 ("IGIS"), is attached as part of Exhibits E and F
`
`as described above and its terms are expressly incorporated herein by reference and made part hereof as
`
`though fully and completely set forth herein.
`
`19.
`
`Subsequently, allonges to Note A-1-A, A-2 and A-3-A were executed and delivered from
`
`Ladder II to Wilmington Trust, National Association, as Trustee for the benefit of the registered holders
`
`of Commercial Mortgage Pass-Through Certificates Series 2018-C6, to the securitization trustee for the
`
`benefit of registered holders of Wells Fargo Commercial Mortgage Trust 2018-C47, Commercial
`
`Mortgage Pass-Through Certificates, Series 2018-C4 7 and the securitization trustee for the benefit of
`
`CS AIL 2018-C 14 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
`
`156156680.2
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`INDEX NO. 850073/2022
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`RECEIVED NYSCEF: 03/25/2022
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`Series 2018-Cl4, respectively. A true and correct copy of each such allonge to each note as so
`
`transferred is attached as part of Exhibit F hereto.
`
`20.
`
`Subsequently, pursuant to the Assignment and Assumption between IGIS and HI FIDI B
`
`Note Owner LLC ("HI FIDI") dated February 8, 2022 (the "Assignment and Assumption"), IGIS
`
`assigned the Note, the Co-Lender Agreement and the other Loan Documents to HI FIDI, who assumed
`
`the commitments, obligations and liabilities of IGIS as Lender under the Loan Documents and Junior
`
`Noteholder under the Co-Lender Agreement. An allonge to Note B was executed and delivered from
`
`IGIS to HI FIDI and a true and correct copy of that allonge is attached as part of Exhibit F as described
`
`above and its terms are expressly incorporated herein by reference and made part hereof as though fully
`
`and completely set forth herein. A true and correct copy of the Assignment and Assumption is annexed
`
`hereto as Exhibit G and its terms are expressly incorporated herein by reference and made part hereof as
`
`though fully and completely set forth herein.
`
`21.
`
`Pursuant to that certain Co-Lender Agreement by and between Original Lender ("Lead
`
`Senior Noteholder") and IGIS ("Junior Noteholder") dated September 18, 2018 (the "Co-Lender
`
`Agreement"), the Lead Senior Noteholder ( or the Servicer or subservicer acting on behalf of the Lead
`
`Senior Noteholder) is authorized to institute any foreclosure action on behalf of the other Noteholders
`
`(as defined in the Co-Lender Agreement). A true and correct copy of the Co-Lender Agreement is
`
`annexed hereto as Exhibit H and its terms are expressly incorporated herein by reference and made part
`
`hereof as though fully and completely set forth herein.
`
`22.
`
`As security for the payment of the Loan, on or about September 18, 2018, Borrower
`
`executed and delivered to Original Lender that certain Consolidated, Amended and Restated Mortgage,
`
`Assignment of Leases and Rents and Security Agreement dated September 18, 2018 (the "Mortgage")
`
`securing the obligations under the Note.
`
`156156680.2
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`INDEX NO. 850073/2022
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`RECEIVED NYSCEF: 03/25/2022
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`23.
`
`The Mortgage was recorded in the New York Office of the City Register on October 1,
`
`2018, CRFN 2018000325482.
`
`24.
`
`The Mortgage encumbers that certain real property described therein (all property given
`
`as security thereunder, the "Property"). A true copy of the Mortgage evidencing a first priority lien is
`
`annexed hereto as Exhibit I and its terms are expressly incorporated herein by reference and made part
`
`hereof as though fully and completely set forth herein.
`
`25.
`
`In addition to being a real property mortgage, the Mortgage is a "security agreement"
`
`within the meaning of the Uniform Commercial Code. Section 1.3 of the Mortgage provides that the
`
`Mortgage is intended to be a security agreement pursuant to the Uniform Commercial Code for any of
`
`the items specified above as part of the Property which, under applicable law, may be subject to a
`
`security interest pursuant to the Uniform Commercial Code, and under that section Borrower granted to
`
`Original Lender a security interest in said items.
`
`26.
`
`As additional security for the payment of the Loan, on or about September 18, 2018,
`
`Mortgagor executed and delivered to Original Lender, an Assignment of Leases and Rents securing the
`
`obligations under the Note (the "Assignment of Rents"). A true copy of the Assignment of Rents is
`
`annexed hereto as Exhibit J and its terms are expressly incorporated herein by reference and made part
`
`hereof as though fully and completely set forth herein.
`
`27.
`
`The Assignment of Rents was duly recorded in the New York Office of the City Register
`
`on October 1, 2018, CRFN 2018000325483.
`
`28.
`
`As further security for the payment of the Loan, on or about September 18, 2018,
`
`Guarantor executed and delivered to Original Lender, a Guaranty of Recourse Obligations guaranteeing
`
`the payment of certain obligations under the Loan Documents (the "Guaranty"). A true copy of the
`
`156156680.2
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`INDEX NO. 850073/2022
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`RECEIVED NYSCEF: 03/25/2022
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`Guaranty is annexed hereto as Exhibit K and its terms are expressly incorporated herein by reference
`
`and made part hereof as though fully and completely set forth herein.
`
`29.
`
`As further security for the payment of the Loan, on or about September 18, 2018,
`
`Guarantor executed and delivered to Original Lender, that certain Environmental Indemnity Agreement
`
`indemnifying Original Lender with respect to certain environmental representations, warranties and
`
`covenants with respect to certain obligations under the Loan Documents (the "Environmental Indenmity
`
`Agreement"). A true copy of the Environmental Indemnity Agreement is annexed hereto as Exhibit L
`
`and its terms are expressly incorporated herein by reference and made part hereof as though fully and
`
`completely set forth herein.
`
`30.
`
`Borrower also executed and delivered to Original Lender that certain Cash Management
`
`Agreement dated September 18, 2018. The Cash Management Agreement provides for, inter alia,
`
`security interests in and control over cash proceeds of the Borrower's operations on the terms and
`
`conditions set forth therein. A true copy of the Cash Management Agreement is annexed hereto as
`
`Exhibit M and its terms are expressly incorporated herein by reference and made part hereof as though
`
`fully and completely set forth herein.
`
`31.
`
`Pursuant to that certain Management Agreement dated July 24, 2014 between Borrower
`
`and Crescent Hotels & Resorts, LLC ("Manager") ( as the same may be amended, restated, replaced,
`
`supplemented or otherwise modified from time to time, the "Management Agreement"), Borrower
`
`employed Manager exclusively to rent, lease, operate and manage the Property and Manager is entitled
`
`to certain management fees thereunder.
`
`32.
`
`As additional security for the payment of the Loan, on or about September 18, 2018,
`
`Mortgagor executed and delivered to Original Lender, an Assignment of Management Agreement and
`
`Subordination of Management Fees securing the obligations under the Note (the "Assignment of
`
`156156680.2
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`FILED: NEW YORK COUNTY CLERK 03/23/2022 06:32 PM
`NYSCEF DOC. NO. 1
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`Management Agreement").
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`True copies of the Management Agreement and Assignment of
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`Management Agreement are annexed hereto as Exhibit N and its terms are expressly incorporated herein
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`by reference and made part hereof as though fully and completely set forth herein.
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`33.
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`As additional security for the payment of the Loan, on or about September 18, 2018,
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`Mortgagor executed and delivered to Original Lender, a Collateral Assignment of Agreements,
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`Licenses, Permits and Contracts securing the obligations under the Note (the "Collateral Assignment").
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`A true copy of the Collateral Assignment is annexed hereto as Exhibit O and its terms are expressly
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`incorporated herein by reference and made part hereof as though fully and completely set forth herein.
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`34.
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`Pursuant to that Deposit Account Control Agreement dated September 18, 2018 by and
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`among Borrower, Original Lender, and Wells Fargo Bank, National Association ("Wells Fargo"),
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`Borrower and Lender agreed that all Rents and other Gross Revenue (as defined in the Loan Agreement)
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`would be deposited into an account designated by and established for the benefit of Lender, and
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`Borrower and Lender at Wells Fargo (the "Deposit Account Control Agreement" or "DACA").
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`In
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`addition, Borrower executed and delivered to Original Lender that certain Cash Management Agreement
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`dated September 18, 2018, which provides for, inter alia, security interests in and control over cash
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`proceeds of the Borrower's operations on the terms and condition set forth therein. The DACA provides
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`for, inter alia, security interests in and control over cash proceeds of the Borrower's operations on the
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`terms and conditions set forth therein, including with respect to funds transmitted from the accounts
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`governed by the DACA to the account under the Cash Management Agreement upon the occurrence of a
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`Cash Management Period (as defined in the Loan Agreement). True copies of the Deposit Account
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`Control Agreement and Cash Management Agreement are annexed hereto as Exhibit P and their terms
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`are expressly incorporated herein by reference and made part hereof as though fully and completely set
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`forth herein.
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`35.
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`Effective as of October 9, 2018, the Mortgage was assigned by Original Lender to Ladder
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`II through execution and delivery of the Assignment of Consolidated, Amended and Restated Mortgage,
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`Assignment of Leases and Rents and Security Agreement (the "Original Lender Assignment of
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`Mortgage"). Allonges to Note A-1, Note A-2, and Note A-3 were executed and delivered from Original
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`Lender to Ladder II. A true and correct copy of each such allonge to each such Note as so transferred is
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`attached as part of Exhibit E as described above. A copy of the Original Lender Assignment of
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`Mortgage dated as of October 9, 2018 and recorded November 20, 2018 in the Office of the New York
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`City Register, as CRFN 2018000384205 is annexed hereto as Exhibit Q.
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`36.
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`Effective as of October 9, 2018, Original Lender executed and delivered to Ladder II, an
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`Assignment of Assignment of Leases and Rents securing the obligations under the Note (the
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`"Assignment of Assignment of Rents"). A true copy of the Assignment of Assignment of Rents,
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`recorded November 20, 2018 in the New York City Register at CRFN 2018000384206, is annexed
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`hereto as Exhibit R and its terms are expressly incorporated herein by reference and made part hereof as
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`though fully and completely set forth herein.
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`3 7.
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`Effective no later than as of December 11, 2018, the Mortgage and Original Lender
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`Assignment of Mortgage were assigned to Plaintiff through execution and delivery of the Assignment of
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`Mortgage. Allonges to Note A-1-A (which had replaced Note A-1 by this time), Note A-2, and Note A-
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`3-A (which had replaced Note A-3 by this time) were executed and delivered from Ladder II to Plaintiff.
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`A true and correct copy of each such allonge to each such Note as so transferred is attached as part of
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`Exhibit F as described above. A copy of the Assignment of Mortgage (the "Ladder II Assignment of
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`Mortgage") dated as of December 11, 2018 and recorded January 15, 2019 in the Office of the New
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`York City Register, as CRFN 2019000016907, is annexed hereto as Exhibit S
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`3 8.
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`The Ladder II Assignment of Mortgage was duly recorded in the real estate records of
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`Office of the Clerk for New York County, New York as set forth above and the recording fee was duly
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`paid.
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`39.
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`Effective as of December 11, 2018, Ladder II executed and delivered to Plaintiff, an
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`Assignment of Assignment of Leases and Rents securing the obligations under the Note (the "Ladder II
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`Assignment of Assignment of Rents"). A true copy of the Ladder II Assignment of Assignment of
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`Rents, recorded January 7, 2019 in the New York City Register at CRFN 2019000005858, is annexed
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`hereto as Exhibit T and its terms are expressly incorporated herein by reference and made part hereof as
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`though fully and completely set forth herein.
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`40.
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`On October 1, 2018, a UCC-1 Financing Statement was filed in the New York Office of
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`the City Register at CRFN 20180000325486 (the "Original County UCC"), and on November 20, 2018,
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`a UCC-3 Assignment of Financing Statement at CRFN 2018000384207 was filed in the New York
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`Office of the City Register, whereby the Original County UCC was assigned to Ladder II (the "Ladder II
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`UCC-3 Assignment"). On January 7, 2019, a UCC-3 Assignment of Financing Statement at CRFN
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`2019000005859 was filed in the New York Office of the City Register, whereby the Ladder II UCC-3
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`Assignment was assigned to Plaintiff (the "Plaintiff UCC-3 Assignment," together with the Ladder II
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`UCC-3 Assignment, the "UCC-3 Assignments")). True and correct copies of the UCC-3 Assignments
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`and the Original County UCC are attached hereto as Exhibit U.
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`41.
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`On October 4, 2018, a UCC-1 Financing Statement was filed with the Delaware
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`Secretary of State at file number 20186851592 (the "Original Delaware UCC"), and on November 27,
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`2018, a UCC-3 Assignment of Financing Statement at file number 20188183879 was filed with the
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`Delaware Secretary of State, whereby the Original State UCC was assigned to Ladder II (the "Ladder II
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`Delaware UCC-3 Assignment"). On January 24, 2019, a UCC-3 Assignment of Financing Statement at
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`20190540885 was filed in the Delaware Secretary of State, whereby the Ladder II UCC-3 Assignment
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`was assigned to Series TRS of Ladder Capital Finance II LLC (the "Ladder TRS Delaware UCC-3
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`Assignment"). On April 1, 2019, a UCC-3 Assignment of Financing Statement at 20192239890 was
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`filed with the Delaware Secretary of State, whereby the Ladder TRS Delaware UCC-3 Assignment was
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`assigned to Plaintiff (the "Plaintiff UCC-3 Assignment," together with the Ladder II Delaware UCC-3
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`Assignment and Ladder TRS Delaware UCC-3 Assignment, the "Delaware UCC-3 Assignments")).
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`True and correct copies of the Delaware UCC-3 Assignments and the Original Delaware UCC are
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`attached hereto as Exhibit V.
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`42.
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`The Loan, the Loan Agreement, Original Note, the Co-Lender Agreement, Mortgage, the
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`Assignment of Rents, Assignment of Assignment of Rents, Assignment of Mortgage, the Cash
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`Management Agreement, the Deposition Account Control Agreement, the Guaranty, the Management
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`Agreement, the Original Lender Assignment of Mortgage, and the Ladder II Assignment of Mortgage
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`and all other instruments or documents evidencing or securing the obligations of Borrower under the
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`Note and/or any other loan document are collectively referred to herein as the "Loan Documents."
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`PROVISIONS COMMON TO THE LOAN AGREEMENT, NOTE AND MORTGAGE
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`43.
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`At all times prior to default, Borrower was obligated to pay interest at a constant rate of
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`5.259% (the "Interest Rate") per annum on the outstanding principal amounts under the Loan
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`Agreement. See Ex. A at S-I-10.
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`44.
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`The interest on the Outstanding Principal Balance of the Loan is "calculated by
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`multiplying (a) the actual number of days elapsed in the period for which the calculation is being made·
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`by (b) a daily rate based on a three hundred sixty (360) day year (that is, the Interest Rate or Default
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`Rate, as then applicable, expressed as an annual rate divided by 360) by (c) the Outstanding Principal
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`Balance. See Ex. A (Loan Agreement at Section 2.2.3).
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`FILED: NEW YORK COUNTY CLERK 03/23/2022 06:32 PM
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`RECEIVED NYSCEF: 03/25/2022
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`45.
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`The "Default Rate" is defined in the Loan Agreement as the lesser of (i) the Maximum
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`Legal Rate or (b) five percent (5%) above the Interest Rate. Thus, the Default Rate is 10.259% per
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`annum. It shall be "calculated from the date the Default occurred which led to such Event of Default,
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`without regard to any grace or cure periods contained herein." Loan Agreement at Section 2.2.2.
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`46.
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`The Mortgage provides in Section 7 .1 (g) that, upon the occurrence of an Event of
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`Default, the mortgagee (here, Plaintiff):
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`apply for the appointment of a receiver, trustee, liquidator or conservator of the Property, which
`appointment is hereby authorized and consented to by Borrower, without notice and