FILED: NEW YORK COUNTY CLERK 05/12/ :42 PM

Transcription

1 INDEX NO /2016 FILED NEW YORK COUNTY CLERK 05/12/ PM NYSCEF DOC. NO. 1 RECEIVED NYSCEF 05/12/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X M.H. DAVIDSON & CO., DAVIDSON KEMPNER DISTRESSED OPPORTUNITIES FUND LP, DAVIDSON KEMPNER DISTRESSED OPPORTUNITIES INTERNATIONAL LTD., DAVIDSON KEMPNER INTERNATIONAL, LTD., DAVIDSON KEMPNER INSTITUTIONAL PARTNERS, L.P., DAVIDSON KEMPNER PARTNERS, and DAVIDSON KEMPNER CAPITAL MANAGEMENT LP, derivatively on behalf of Commercial Mortgage Pass Through Certificates Series 2007-C5 Trust, Plaintiffs, -against C-III ASSET MANAGEMENT, LLC, Defendant, -and Commercial Mortgage Pass-Through Certificates Series 2007-C5 Trust, Date Purchased May 12, 2016 Index No. SUMMONS Plaintiffs designate New York County as the place of trial. Venue is proper pursuant to CPLR 503. Nominal Defendant x To the above named defendants YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer on the Plaintiffs attorneys within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. 1 of 26

2 Dated May 12, 2016 New York, New York KASOWITZ, BENSON, TORRES & FRIEDMAN LLP By /s/ Michael A. Hanin Michael A. Hanin Kevin A. Cyrulnik 1633 Broadway New York, New York (212) Attorneys for Plaintiffs To C-III ASSET MANAGEMENT, LLC 717 Fifth Avenue New York, NY (212) WELLS FARGO BANK, N.A. Corporate Trust Services 9062 Old Annapolis Road Columbia, MD (410) of 26

3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x M.H. DAVIDSON & CO., DAVIDSON KEMPNER DISTRESSED OPPORTUNITIES FUND LP, DAVIDSON KEMPNER DISTRESSED OPPORTUNITIES INTERNATIONAL LTD., DAVIDSON KEMPNER INTERNATIONAL, LTD., DAVIDSON KEMPNER INSTITUTIONAL PARTNERS, L.P., DAVIDSON KEMPNER PARTNERS, and DAVIDSON KEMPNER CAPITAL MANAGEMENT LP, derivatively on behalf of Commercial Mortgage Pass Through Certificates Series 2007-C5 Trust, Plaintiffs, -against C-III ASSET MANAGEMENT, LLC, Defendant, -and Commercial Mortgage Pass-Through Certificates Series 2007-C5 Trust, Index No. VERIFIED COMPLAINT Nominal Defendant x Plaintiffs M.H. Davidson & Co., Davidson Kempner Distressed Opportunities Fund LP, Davidson Kempner Distressed Opportunities International Ltd., Davidson Kempner International, Ltd., Davidson Kempner Institutional Partners, L.P., Davidson Kempner Partners (collectively, the DK Funds ), and Davidson Kempner Capital Management LP ( DKCM, and together with the DK Funds, Plaintiffs ), derivatively on behalf of Commercial Mortgage PassThrough Certificates Series 2007-C5 Trust (the Trust ), by their undersigned attorneys, as and 3 of 26

4 for their complaint against defendant C-III Asset Management, LLC ( C-III ), and against nominal defendant the Trust, allege as follows PRELIMINARY STATEMENT 1. This action arises out of egregious self-dealing by C-III a Special Servicer entrusted to act on behalf of a trust containing pooled commercial mortgage loans in connection with an audacious scheme to sell Trust assets at artificially low prices for C-III s own benefit. C-III abandoned its most fundamental duty to act for the benefit of the Trust in a brazen attempt to acquire Trust property for itself by fabricating defaults on performing Trust loans, bartering away Trust assets and orchestrating substantially below-market sales of Trust property. This action seeks to recover, on behalf of the Trust, the more than $25 million in damages resulting from C-III s bad faith conduct. 2. At its inception in 2007, the Trust held approximately $2.5 billion in pooled commercial real estate mortgage loans ( Trust Mortgage Loans ) and issued securities to investors ( Certificateholders ) backed by those Trust Mortgage Loans. Prior to the events described herein, the Trust s most valuable assets included a $190.8 million mortgage ( Gulf Coast Loan ) on a 101-acre commercial and retail complex in Fort Myers, Florida ( Gulf Coast Property ), and a $165 million mortgage ( Jericho Loan ) on a 650,000 square-foot office complex in Jericho, New York ( Jericho Property ). 3. The Trust is governed by a Pooling and Servicing Agreement dated as of November 1, 2007 (the PSA ).1 Under the PSA, if a loan owned by the Trust becomes distressed or defaults, responsibility for servicing such Trust Mortgage Loan is assigned to a 1 Capitalized terms used but not defined in the Complaint have the meaning given to them in the PSA. 2 4 of 26

5 Trust representative known as the Special Servicer, who must attempt to collect any delinquent payments and to otherwise maximize the recovery of principal and interest on the loan for the Trust and all Certificateholders. The PSA obligates the Special Servicer to service and administer loans assigned to it in accordance with a code of conduct known as the Servicing Standard and defined in the PSA. C-III was Special Servicer for the Trust until no later than December 4, 2015, when it was replaced by Keycorp Real Estate Capital Markets, Inc. n/k/a KeyBank National Association ( KeyBank ) in connection with the misconduct described herein. 4. Although C-III was the Special Servicer purportedly acting on behalf of the Trust, it coveted the Gulf Coast Property for its own real estate portfolio, as it admitted publicly in Because the Servicing Standard (and other PSA provisions prohibiting self-dealing by the Special Servicer) precluded C-III from acquiring the Gulf Coast Property, C-III hatched a scheme to obtain the Gulf Coast Property by any means necessary that laid ruin to the Servicing Standard and otherwise repudiated C-III s obligations under the PSA. 5. Under the PSA, performing Trust Mortgage Loans i.e., loans paying their debts as they come due may not be purchased from the Trust. If a Trust Mortgage Loan defaults, however, the Trust s Directing Certificateholder generally the largest Certificateholder in the Trust s most junior outstanding Class of Certificates obtains an assignable option to purchase (a Purchase Option ) the defaulted Trust Mortgage Loan at a Fair Value price determined by the Special Servicer in accordance with the Servicing Standard. The Special Servicer obtains a Purchase Option only if (i) the Directing Certificateholder fails to exercise its Purchase Option for 30 days from the date that Fair Value is determined or (ii) the Special Servicer secures an assignment of the Purchase Option from the Directing Certificateholder. However, in the event 3 5 of 26

6 the Special Servicer (or an affiliate) attempts to exercise the Purchase Option at any time, the PSA requires that an independent Trust representative approve the Special Servicer s Fair Value determination to prevent self-dealing. 6. In or about August 2015, the Jericho Loan became a Defaulted Trust Mortgage Loan under the PSA, triggering a Purchase Option for the Trust s then-directing Certificateholder, TCA SPV IV LLC ( TCA ), to acquire the Jericho Loan at a Fair Value price to be determined by C-III. As of August 2015, however, no Purchase Option existed with respect to the Gulf Coast Loan coveted by C-III. Rather, the Gulf Coast Loan was performing, was not scheduled to mature until July 2017, and was not available for purchase from the Trust under the PSA. 7. To acquire the performing Gulf Coast Loan from the Trust, C-III intentionally manufactured the word that C-III used to describe its own conduct in subsequent conversations with Plaintiffs a default on the Gulf Coast Loan. C-III engineered the default by entering into a settlement with the borrower for the Gulf Coast Loan, in which the borrower agreed to accelerate the loan maturity date to September 2015 (from July 2017) in exchange for C-III conveying a Trust asset a parcel of land associated with the Gulf Coast Property to the borrower. The manufactured default of the Gulf Coast Loan triggered TCA s option to purchase the loan at a Fair Value price determined by C-III, which C-III then obtained from TCA by a purported assignment to a C-III affiliate. 8. In exchange for TCA assigning the C-III affiliate the option to purchase the Gulf Coast Loan, C-III deliberately determined an artificially low price for TCA to purchase the Jericho Loan. Specifically, C-III determined that Fair Value for the Jericho Loan was $95,191,753; at least $25 million below the Jericho Loan s actual value as indicated by, among 4 6 of 26

7 other things, a contemporaneous $120 million third-party offer to acquire the Jericho Loan. On September 24, 2015, TCA exercised the option to purchase the Jericho Loan at the purchase price determined by C-III. 9. Plaintiffs became the Trust s Directing Certificateholder on October 21, 2015 and took action necessary to protect the Trust and prevent C-III from acquiring the Gulf Coast Loan, including removing C-III as Special Servicer and stymieing C-III s ploy to acquire the Gulf Coast Property. C-III s machinations, however including transferring portions of the Gulf Coast Property to the borrower in exchange for manufacturing a default, and arranging the sale of the Jericho Loan from the Trust for a patently inadequate low Fair Value had already caused the Trust damages in excess of $25 million. Plaintiffs bring this action to recover, on behalf of the Trust, damages caused by C-III s bad-faith actions in breach of the PSA and the Servicing Standard. PARTIES 10. M.H. Davidson & Co. ( MHD ) is a limited partnership organized under the laws of the State of New York with its principal place of business in the State of New York. MHD is a holder of $395,081 face amount of the A-1-AJ Certificates and $3,838,500 face amount of the A-J Certificates issued by the Trust. 11. Davidson Kempner Distressed Opportunities Fund LP ( DKDOF ) is a limited partnership organized under the laws of Delaware with its principal place of business in the State of New York. DKDOF is a holder of $826,745 of the A-1-AJ Certificates and $6,225,000 of the A-J Certificates issued by the Trust. 12. Davidson Kempner Distressed Opportunities International Ltd. ( DKDOI ) is a Cayman Islands exempt company. DKDOI is a holder of $1,176,498 of the A-1-AJ Certificates and $8,670,000 of the A-J Certificates issued by the Trust. 5 7 of 26

8 13. Davidson Kempner International, Ltd. ( DKI ) is a British Virgin Island Company with its principal place of business in the British Virgin Islands. DKI is a holder of $4,382,736 of the A-1-AJ Certificates and $31,089,000 of the A-J Certificates issued by the Trust. 14. Davidson Kempner Institutional Partners, L.P. ( DKIP ) is a limited partnership organized under the laws of Delaware with its principal place of business in the State of New York. DKIP is a holder of $4,461,929 of the A-1-AJ Certificates and $33,200,000 of the A-J Certificates issued by the Trust. 15. Davidson Kempner Partners ( DKP ) is a limited partnership organized under the laws of the State of New York with its principal place of business in the State of New York. DKP is a holder of $2,207,011 of the A-1-AJ Certificates and $17,709,000 of the A-J Certificates issued by the Trust. 16. DKCM is a limited partnership organized under the laws of New York with its principal place of business in New York located at 520 Madison Avenue, New York, NY DKCM is the investment advisor for the DK Funds. 17. The DK Funds acquired their A-1-AJ Certificates and A-J Certificates between July 2013 and May In October 2015, DKCM, on behalf of the DK Funds, became the Series 2007-C5 Directing Certificateholder of the Trust, as described below. 18. C-III is a limited liability company located in Irving, Texas that touts itself as the special servicer for over $106 billion of commercial real estate loans. C-III has offices in New York, including at 717 Fifth Avenue, New York, NY 10022, and conducts business, including the servicing of commercial loans, in New York. 6 8 of 26

9 19. The Trust is a New York common law trust. More than 25% of the commercial mortgages held by the Trust were, at issuance, secured by properties located in New York. Plaintiffs have named the Trust as a nominal defendant because Plaintiffs are suing derivatively to enforce the Trust s rights on behalf of themselves and other Trust Certificateholders. JURISDICTION AND VENUE 20. This Court has jurisdiction pursuant to CPLR 301 and 302 because all parties conduct business in the State of New York. 21. Venue is proper pursuant to CPLR 503 because New York County is the residence of one or more of the parties. FACTS A. The Pooling and Servicing Agreement 22. The Trust was established in November 2007 to hold Trust Mortgage Loans on commercial properties located throughout the United States. The Trust pools the Trust Mortgage Loans and issues Certificates to investors in various Classes who, in return, receive principal and interest payments from the Trust out of the collections received by the Trust in respect of the Trust Mortgage Loans. The Certificates were issued, and the Trust Mortgage Loans serviced and administered, pursuant to the PSA. The Certificates are paid principal and interest in accordance with a priority of payments dictated by the PSA. 23. Wells Fargo acts as trustee for the Trust on behalf of the Certificateholders. 24. Prior to December 4, 2015, C-III was the Special Servicer for the Trust. The Special Servicer is responsible for servicing and administering Trust Mortgage Loans that are in default (or as to which default is reasonably foreseeable), and any real estate acquired by the Trust upon foreclosure of a defaulted Trust Mortgage Loan. Since December 4, 2015, KeyBank has been the Special Servicer for the Trust. 7 9 of 26

10 25. KeyBank is also the Master Servicer on behalf of the Trust. The Master Servicer is responsible for, among other things (as detailed below), the timely collection of payments of principal and interest on the Trust Mortgage Loans. 26. The PSA provides the most junior class of Certificates, which face the greatest and most immediate risk of loss of principal and interest, certain rights and protections. Under the PSA, the most subordinate qualifying Class of Certificates is deemed the Controlling Class. The Controlling Class may select a representative to be the Directing Certificateholder (defined in the PSA as the Series 2007-C5 Directing Certificateholder ). Among other rights, the Directing Certificateholder has the right to direct certain actions of the Special Servicer (subject to the Special Servicer s absolute compliance with the Servicing Standard), as well as an option to acquire certain defaulted Trust Mortgage Loans at a Fair Value determined pursuant to the PSA. 27. As of October 21, 2015, DKCM, on behalf of the DK Funds, was elected Directing Certificateholder of the Trust as representative of the most junior qualifying Class of Trust Certificates still outstanding the Class A-J Certificates. 28. The previous Directing Certificateholder was TCA. TCA was no longer the Directing Certificateholder as of the Distribution Date immediately following TCA s exercise of its purchase option relating to the Jericho Mortgage Loan due to the losses experienced by the Trust on such sale. Upon information and belief, TCA is an entity controlled by Taconic Capital Advisors, a New York-based investment manager. B. The Servicing Standard and Purchase Options under the PSA 29. The Master Servicer and Special Servicer must comply with the Servicing Standard set forth in Section 3.01 of the PSA. The Servicing Standard obligates the Special 8 10 of 26

11 Servicer to service and administer the [Trust Mortgage Loans]... on behalf of the Trustee and in the best interests of and for the benefit of the Certificateholders (as a collective whole) and PSA 3.01(a)(i) (A) in the same manner in which, and with the same care, skill, prudence and diligence with which such Master Servicer or the Special Servicer, as the case may be, services and administers similar mortgage loans for other third-party portfolios, giving due consideration to the customary and usual standards of practice of prudent institutional commercial and multifamily mortgage loan servicers servicing mortgage loans for third parties, and (B) with the same care, skill, prudence and diligence with which such Master Servicer or the Special Servicer, as the case may be, services and administers commercial and multifamily mortgage loans owned by such Master Servicer or the Special Servicer, as the case may be, whichever standard is higher[.] 30. The Servicing Standard further obligates the Special Servicer to service and administer the Mortgage Loans... without regard to (A) any relationship that [the Special Servicer] or any Affiliate thereof may have with the related Borrower, the Mortgage Loan Seller or any other party to the [PSA] ; (B) the ownership of any Certificate... by the Special Servicer... or by any Affiliate thereof ; or (F) the ownership, servicing or management for itself or others of any other mortgage loans or mortgaged properties by [the Special Servicer] or any Affiliate. PSA 3.01(a)(iii)(A), (B) and (F). 31. If any Trust Mortgage Loan is at least 60 days delinquent in respect of its monthly payments or defaults on a Balloon Payment, the Trust Mortgage Loan becomes a Defaulted Trust Mortgage Loan. PSA Under the Servicing Standard, when a Trust Mortgage becomes a Defaulted Trust Mortgage Loan, the Special Servicer must act to obtain the maximization of the recovery of principal and interest on such Mortgage Loan to the Certificateholders (as a collective whole). PSA 3.01(a)(ii) of 26

12 32. After a Trust Mortgage Loan becomes a Defaulted Trust Mortgage Loan, the Special Servicer generally has 60 days to determine the Fair Value of the Defaulted Trust Mortgage Loan. The Fair Value of the Defaulted Trust Mortgage Loan is to be set in accordance with the Servicing Standard, e.g., in the best interests of and for the benefit of the Certificateholders, and without regard to any conflicts or personal interests. 33. In determining the Fair Value of any Defaulted Trust Mortgage Loan, the Special Servicer must take into account, among other factors, the period and amount of the delinquency on such Defaulted Trust Mortgage Loan, the occupancy level and physical condition of the related property, the state of the local economy in the area where the property is located, the time and expense associated with a purchaser s foreclosing on the related mortgaged property, and the expected recoveries from such Defaulted Trust Mortgage Loan if the Special Servicer were to pursue a workout or foreclosure strategy. In addition, the Special Servicer shall refer to all relevant information contained in the Servicing File, including the most recent Appraisal obtained or conducted with respect to the related Mortgaged Property and available objective third-party information obtained from generally available sources, as well as information obtained from vendors providing real estate services to the Special Servicer, concerning the market for distressed real estate loans and the real estate market for the subject property type in the area where the related Mortgaged Property is located based on the Appraisal. PSA Upon receipt of the Special Servicer s Fair Value determination for a Defaulted Trust Mortgage Loan, the Directing Certificateholder is afforded an exclusive 30-day period in which to exercise or assign the Purchase Option. PSA 3.18(c). Upon the expiration of the 30- day period, either the Directing Certificateholder or the Special Servicer may exercise the Purchase Option with respect to the Defaulted Trust Mortgage Loan, at least until such option of 26

13 expires or is exercised. Stated differently, the Special Servicer obtains a Purchase Option only after the expiration of the Directing Certificateholder s 30-day exclusive period to exercise the Purchase Option. PSA 3.18(c) (if the Directing Certificateholder has not exercised its option... then the Special Servicer... may... exercise the option ) (emphasis added). 35. In the event the Special Servicer (or any affiliate of the Special Servicer) exercises the Purchase Option, the Master Servicer (or the Trustee, if the Master Servicer is affiliated with the Special Servicer) must determine whether the Special Servicer s determination of Fair Value is less than the amount that the Master Servicer considers to be the Fair Value. PSA 3.18(b). 36. In other words, in order for the Special Servicer (or its affiliate) to acquire a Defaulted Trust Mortgage Loan, the Master Servicer must first make an independent determination that the Fair Value established by the Special Servicer is fair to the Trust. As such, when a Special Servicer is situated on both sides of the deal i.e., sets the purchase price for a Trust Mortgage Loan that it intends to purchase the Special Servicer cannot unilaterally manipulate the process to the detriment of the Trust. This check on the Special Servicer s Fair Value determination is required only if the purchaser is the Special Servicer or its affiliate. 37. Under PSA Section 3.18(b), the Special Servicer must modify its determination of the Fair Value of a Defaulted Trust Mortgage Loan based upon changed circumstances or new information in accordance with the Servicing Standard. Upon the receipt of notice of a new Fair Value by the Special Servicer, the Directing Certificateholder has a new Purchase Option for 30 days to acquire the Defaulted Trust Mortgage Loan at the new Fair Value. 38. Under the PSA, a Trust Mortgage Loan may only be sold, as relevant here, on terms and subject to the conditions set forth in [] Section 3.18[.] PSA 3.18(a) of 26

14 39. The PSA gives the Directing Certificateholder the right to direct the Special Servicer with respect to Specially Serviced Mortgage Loans. Section 3.21 provides in relevant part [The Directing Certificateholder] may direct the Special Servicer to take, or to refrain from taking, any actions with respect to servicing and/or administration of a Specially Serviced Mortgage Loan as the [] Directing Certificateholder. 40. The Directing Certificateholder s right to direct the Special Servicer is, however, explicitly subject to, among other things, the Special Servicer s obligation to act in accordance with the Servicing Standard. PSA 3.21(e). 41. Pursuant to the Section 7.01(d) of the PSA, the Directing Certificateholder has the right to terminate the Special Servicer with or without cause. The Special Servicer is deemed to be terminated simultaneously with the designated successor s becoming such Special Servicer. C. The Gulf Coast Loan and the Jericho Loan 42. The Gulf Coast Loan, which was secured by the Gulf Coast Property, was one of the largest Trust Mortgage Loans (by original principal balance) held by the Trust. The Gulf Coast Property is a shopping center in Fort Myers, Florida and is a valuable and unique real estate asset. 43. In October 2014, the Gulf Coast Loan became a Specially Serviced Mortgage Loan. The occupancy rate for the property was approximately 92% at the end of 2012 and increased to approximately 98% as of November As of September 3, 2015 the day before it became defaulted the Gulf Coast Loan was current on its payments and was not a Defaulted Trust Mortgage Loan of 26

15 44. Another of the largest Trust Mortgage Loans (by original principal balance) was the Jericho Loan, secured by the Jericho Property. The Jericho Property has a rent roll featuring Fortune 500 companies, has been recognized as a Class A trophy office property and, with its unique design features, is considered to be an architectural icon on Long Island. 45. Before its sale from the Trust in September 2015, the Jericho Loan had an outstanding balance of approximately $165 million, constituting approximately nine percent of the outstanding principal balance of the Trust Mortgage Loans. D. C-III Abandons the Servicing Standard and Schemes to Acquire the Gulf Coast Property 46. Although C-III acts on behalf of trust beneficiaries as the special servicer for thousands of commercial loans held in trust, it has long been C-III s openly stated business strategy to capitalize on investment opportunities stemming from C-III s role as special servicer. For example, at the Bloomberg Finance & Real Estate Forum held in April 2015, the chief of CIII s parent company, Island Capital, stated publicly that C-III would continue to take advantage of C-III s valuable purchase option rights for the benefit of C-III s affiliated investment funds, indicating that there was extraordinary value to extract from such options. Pertinent here as CIII representatives admitted in subsequent conversations with Plaintiffs C-III had coveted the Gulf Coast Property for some time. 47. For C-III to obtain the Gulf Coast Loan from the Trust, however, at least two things needed to happen. First, to create an option to purchase the Gulf Coast Loan, C-III needed to transform the Gulf Coast Loan into a Defaulted Trust Mortgage Loan, which it was not. Second, to obtain the purchase option for itself, C-III needed to induce TCA, the then-directing Certificateholder, to assign its exclusive purchase option to C-III of 26

16 48. C-III undertook precisely these actions in flagrant breach of the Servicing Standard and the PSA. E. C-III Manufactures a Default on the Gulf Coast Loan 49. As noted above, although the Gulf Coast Loan was subject to special servicing, it was not a Defaulted Trust Mortgage Loan and was not subject to a Purchase Option. To the contrary, C-III projected that the Gulf Coast Property would generate income sufficient to support debt service for the remainder of the term of the Gulf Coast Loan, which was set to mature in July To facilitate its acquisition of the Gulf Coast Property, C-III engineered a gratuitous default on the Gulf Coast Loan in order to vest TCA, the then-directing Certificateholder, with an assignable option to purchase the Gulf Coast Loan (the Gulf Coast Purchase Option ). 51. On September 3, 2015, C-III entered into an agreement with the borrower for the Gulf Coast Loan (the Gulf Coast Borrower ) that accelerated the maturity of the Gulf Coast Loan from July 2017 to September Based on this consensual agreement misleadingly styled a settlement by C-III (the Gulf Coast Settlement ) the Gulf Coast Borrower failed to make a Balloon Payment on the Gulf Coast Loan and C-III declared the Gulf Coast Loan to be a Defaulted Trust Mortgage Loan the very next day, on September 4, As C-III s senior managing director later acknowledged to Plaintiff DKCM, the [Gulf Coast Loan] would not have defaulted without entering into the settlement agreement. 52. To obtain the Gulf Coast Borrower s consent to the Gulf Coast Settlement, C-III transferred ownership of a portion of the Gulf Coast Property to the Gulf Coast Borrower. In other words, to facilitate C-III s desired default on the Gulf Coast Loan, C-III agreed to transfer of 26

17 valuable property securing the Gulf Coast Loan i.e. valuable property belonging to the Trust to the Gulf Coast Borrower. F. To Obtain the Option to Purchase the Gulf Coast Loan, C-III Orchestrates the Below-Market Sale of the Jericho Loan 53. The $163,750,000 Jericho Loan was secured by the Jericho Property, a 51-acre site improved with two three-story, Class-A office buildings containing 651,683 net rentable square feet in Jericho, New York, approximately 25 miles east of Manhattan. 54. The Jericho Loan was underwritten in April 2007 and used by the borrower to acquire the Jericho Property for a price of $210,000,000. Effective October 17, 2014, after the borrower requested a loan modification, the Jericho Loan was transferred to special servicing. 55. The Jericho Loan became delinquent on or about June 12, On information and belief, the Jericho Loan became a Defaulted Trust Mortgage Loan under the PSA and thus subject to a Fair Value determination by C-III on or about August 12, On or after September 9, 2015, C-III made a final determination that the Fair Value of the Jericho Loan was $95,191,753 (the False Jericho Option Price ). Instead of complying with the Servicing Standard, C-III determined the False Jericho Option Price with the understanding and expectation that (i) TCA, the then-directing Certificateholder, would purchase the Jericho Loan at this below-market price; and (ii) in exchange, TCA would assign to a C-III affiliate the Gulf Coast Purchase Option fabricated by C-III in connection with the Gulf Coast Settlement. 57. This exchange is precisely what occurred. On September 23, 2015, TCA exercised its option to purchase the Jericho Loan at the False Jericho Option Price, causing the Trust to receive at least $25 million less than was available as compensation for the Jericho of 26

18 Loan. Completing the scheme, approximately five days later, on September 28, 2015, TCA assigned the Gulf Coast Purchase Option to C-III s affiliate, Gulf Coast Note, L.P. ( GCN ). 58. On October 2, 2015, DKCM met with C-III representatives to discuss, among other things, how to maximize the value of the Jericho Loan to the Trust for the benefit of all Certificateholders. At the October 2 meeting, C-III encouraged DKCM to work with the Jericho borrower on a loan modification that could preserve the Jericho Loan in the Trust. As C-III knew and fully understood at the time, however, such a modification was impossible, because the Trust no longer owned the Jericho Loan. 59. Although C-III determined the False Jericho Option Price to further its own interests, C-III knew that the False Jericho Option Price would not be subject to independent review because it would not be exercised by C-III or a known C-III affiliate. The False Jericho Option Price was an essential part of C-III s pursuit of the Gulf Coast Property. It was also objectively false and inadequate. 60. In the months preceding C-III s sale of the Jericho Loan from the Trust, appraisals and valuation opinions commissioned by C-III consistently valued the Jericho Loan higher than the False Jericho Option Price. For example, in November 2014, real estate consultant CBRE appraised the Jericho Property for $100 million on an as is basis and $135 million on an as stabilized basis. In March 2015, real estate investment bank Eastdil Secured estimated a value for the Jericho Loan of approximately $103,400,000 using highly conservative assumptions, including a 10.75% discount rate and explicitly advised C-III that given the strong investor demand for distressed debt at the time we do not believe there will be a discount for the Loan Value of 26

19 61. Most egregiously, however, C-III disregarded the single most reliable indication of fair value an actual market offer for the Jericho Loan. On August 6, 2015 less than one month before C-III determined the False Jericho Option Price of $95,191,753 C-III received an offer to purchase the Jericho Loan for $120 million from Gary Gelman, founder, Chairman, and CEO of American Learning Corporation, and a tenant of the Jericho Property. C-III caused this $120 million offer to fail in order to retain the Jericho Loan in the Trust in order to exchange the Jericho Loan, shortly thereafter, for TCA s Gulf Coast Purchase Option. 62. The PSA is clear that, in determining Fair Value for the Jericho Loan, C-III was required to take into account, among other factors, the period and amount of the delinquency on such Trust Mortgage Loan, the occupancy level and physical condition of the related Mortgage Property, the state of the local economy in the area where the Mortgage Property is located, the time and expense associated with a purchaser s foreclosing on the related Mortgage Property, and the expected recoveries from such Defaulted Mortgage Loan if the Special Servicer were to pursue a workout or foreclosure strategy instead of selling such Defaulted Mortgage Loan pursuant to the subject purchase option. C-III was further required to consider all relevant information contained in the Servicing File, including the most recent Appraisal... and available objective third-party information obtained from generally available sources, as well as information obtained from vendors providing real estate services to the Special Servicer.... PSA 3.18(b). 63. C-III ignored these requirements, entirely and intentionally, and determined the Fair Value for the Jericho Loan in bad faith. Having disregarded relevant indicia of Fair Value, C-III justified the False Jericho Option Price by relying on stale, biased and unreliable information TCA s analysis of the net present value of a February 2015 proposal by the of 26

20 defaulting borrower to divide the Jericho Loan into an interest-bearing A-Note and noninterest-bearing B-Note. C-III s supposed reliance on TCA s analysis of this borrower proposal was erroneous given, among other things (i) the borrower s incentive to value the interest-bearing A-Note as low as possible; and (ii) TCA s incentive to acquire the Jericho Loan at the lowest possible price. In any event, the actual value of the borrower s proposed modification to the Trust far exceeded the False Jericho Option Price. 64. The damage to the Trust from C-III s bad faith servicing of the Jericho Loan was confirmed when, shortly after the sale of the Jericho Loan from the Trust, the Jericho Property was refinanced in January 2016 with a total expected funding of up to $100 million. Applying conservative industry standard loan-to-value ratios of between 70-80%, this expected funding amount reflects an appraised value of between $125 and $143 million; i.e. at least $30-48 million more than the price that C-III had determined for the Jericho Property just five months earlier. G. After Injuring the Trust, C-III s Gambit for the Gulf Coast Property Fails 65. On September 28, 2015, TCA assigned the Gulf Coast Purchase Option to C-III affiliate GCN. The same day, GCN purported to exercise the option at the cash price of $150,218, However, because GCN was a C-III affiliate, C-III s Fair Value determination for the Gulf Coast Loan was subject to independent review by the Master Servicer. GCN s purported exercise of the purchase option was therefore expressly contingent on, among other things, the Master Servicer determining that the Fair Value was no less than the amount that the Master Servicer considers to be the Fair Value. On December 2, 2015, the Master Servicer determined that the Fair Value of the Gulf Coast Loan was greater than C-III s determination of Fair Value, negating GCN s purported right to exercise the Gulf Coast Purchase Option of 26

21 67. On October 21, 2015, DKCM replaced TCA as the Directing Certificateholder of the Trust and promptly removed C-III as Special Servicer. Specifically, on November 6, 2015, pursuant to section 7.01(d) of the PSA, DKCM gave direction to (i) terminate the rights and obligations of C-III... as the Special Servicer under the PSA with respect to all of the Mortgage Loans, and (ii) designate KeyBank... to serve as the successor Special Servicer under the PSA with respect to all of the Mortgage Loans except the Cornerstone Commerce Center Total Loan. 68. Although DKCM directed the removal of C-III as Special Servicer on November 6, 2015, the process of transitioning special servicers is not instantaneous and requires, in additional to certain administrative transfers and approvals, the approval of the ratings agencies. Upon information and belief, C-III deliberately delayed this process for its own benefit. In any event, the Trustee replaced C-III with Key Bank as the Trust s Special Servicer effective December 4, On December 3, 2015, with its time as Special Servicer nearing an end and in a desperate attempt to obtain the Gulf Coast Property, C-III (i) determined a new Fair Value for the Gulf Coast Loan of $151,600,000; (ii) purported to assign the option to purchase the Gulf Coast Loan for $151,600,000 to its affiliate GCN (the $151.6 Million Option ); and (iii) caused GCN to give written notice of its purported exercise of the $151.6 Million Option (the December 3 Notice ). 70. Under the PSA, however, the option to purchase the $151.6 Million Option belonged exclusively to DKCM, the then-directing Certificateholder, for the 30-day period beginning December 3, On December 29, 2015, DKCM exercised its right as Directing Certificateholder to exercise the $151.6 Million Option and purchase the Golf Coast Loan. DKCM s termination of 26

22 of C-III as Special Servicer and acquisition of the Gulf Coast Loan thwarted C-III s scheme to acquire the Gulf Coast Property, but only after C-III s numerous breaches of the PSA had reduced the Trust s value by at least $25 million, damaging the Trust and its Certificateholders, including the DK Funds. H. Plaintiffs Standing to Commence This Action 72. Plaintiffs have complied with all prerequisites and preconditions in the PSA for instituting this action. 73. On each of October 22, November 11 and December 9, 2015, DKCM notified the Trustee in writing of C-III s material default in respect of its obligations under the PSA, including C-III s ongoing breaches of the Servicing Standard. 74. By letter dated March 3, 2016 (the March 3 Notice ), Plaintiffs gave the Trustee written notice of the former Special Servicer s breaches described herein and of the Special Servicer s continuing and incurable default with respect to those breaches. The March 3 Notice was sent to the Trustee by , Federal Express and telecopy, and was received by the Trustee on or about March 3, The March 3 Notice (i) confirmed that Plaintiffs held in excess of 25% of the Class A-J Certificates; (ii) requested that the Trustee institute an action, in its own name as Trustee and on behalf of the Trust, to redress C-III s conduct; and (iii) offered to provide reasonable indemnity and security to the Trustee to secure the Trustee against its costs, expenses and liability by pursuing the requested action. 76. The Trustee has not instituted such action. On March 28, 2016, the Trustee advised Plaintiffs in writing that it has determined not to institute the requested proceedings. 77. The Trustee has refused to bring the action requested by Plaintiffs for 60 days of 26

23 78. Having satisfied Section 11.03(c) of the PSA, Plaintiffs, as Certificateholders in the Trust, have standing to institute this action. First Claim For Relief (Breach of Contract) 79. Plaintiffs reallege each of the allegations in this Verified Complaint as if fully set forth herein. 80. The PSA is a valid and enforceable contract. 81. Under the PSA, C-III was obligated to act in accordance with the Servicing Standard. The Servicing Standard required C-III, among other things, to service and administer the Mortgage Loans... on behalf of the Trustee and in the best interests of and for the benefit of the Certificateholders (as a collective whole) and with the same care, skill, prudence and diligence with which C-III services and administers similar mortgage loans for other thirdparty portfolios or commercial mortgage loans owned by the Special Servicer, whichever standard is higher. The Servicing Standard further required C-III to service the Trust Mortgage Loans without regard to the interests of C-III and/or its affiliates in any of the Trust Mortgage Loans, and to obtain the maximization of the recovery of principal and interest on such Mortgage Loan to the Certificateholders (as a collective whole). 82. Plaintiffs have performed all of their obligations under the PSA. Upon information and belief, the Trust has performed all of its obligations under the PSA. 83. C-III breached the PSA by abandoning the Servicing Standard in furtherance of its own interests through the conduct alleged herein, including by (i) manufacturing a default on the Gulf Coast Loan; (ii) transferring valuable Trust property to the Gulf Coast Borrower in exchange for an agreement that caused the Gulf Coast Loan to default; (iii) orchestrating the sale of 26

24 of the Jericho Loan from the Trust at the False Jericho Option Price; and (iv) taking these and other actions in order to acquire Trust property for a C-III affiliate. 84. Plaintiffs therefore seek money damages on behalf of and for the benefit of the Trust as a result of C-III s breaches in an amount to be determined at trial, but in any event no less than $25 million. PRAYER FOR RELIEF WHEREFORE, Plaintiffs demand judgment (a) Awarding damages in favor of the Trust against C-III, in the amount to be determined at trial, but in any event no less than $25 million; (b) Awarding Plaintiffs their reasonable costs and expenses incurred in this action, including attorneys fees and expert fees, pursuant to BCL 626(e); (c) Declaring that C-III is not entitled to indemnification from the Trust for any of its losses, liabilities or expenses incurred in connection with this action; (d) Such further relief as the Court deems just and proper. Dated May 12, 2016 New York, NY KASOWITZ, BENSON, TORRES & FRIEDMAN LLP By /s/ Michael A. Hanin Michael A. Hanin Kevin A. Cyrulnik 1633 Broadway New York, New York (212) Attorneys for Plaintiffs of 26

25 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x M.H. DAVIDSON & CO., DAVIDSON KEMPNER DISTRESSED OPPORTUNITIES FUND LP, DAVIDSON KEMPNER DISTRESSED OPPORTUNITIES INTERNATIONAL LTD., DAVIDSON KEMPNER INTERNATIONAL, LTD., DAVIDSON KEMPNER INSTITUTIONAL PARTNERS, L.P., DAVIDSON KEMPNER PARTNERS, and DAVIDSON KEMPNER CAPITAL MANAGEMENT LP, derivatively on behalf of Commercial Mortgage Pass Through Certificates Series 2007-C5 Trust, Plaintiffs, -against C-III ASSET MANAGEMENT, LLC, Defendant, -and Commercial Mortgage Pass-Through Certificates Series 2007-C5 Trust, Index No. VERIFICATION Nominal Defendant x STATE OF NEW YORK ) ) COUNTY OF NEW YORK ) Patrick Dennis, being duly sworn, deposes and says I am a Managing Member of Davidson Kempner Capital Management LP, investment advisor to Plaintiffs M.H. Davidson & Co., Davidson Kempner Distressed Opportunities Fund LP, Davidson Kempner Distressed Opportunities International Ltd., Davidson Kempner International, Ltd., Davidson Kempner Institutional Partners, L.P., and Davidson Kempner Partners. I have read the foregoing Verified 25 of 26

26 26 of 26