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Affidavit of Andrew J Hundertmark in Support of Preliminary Injunction

Affidavit of Andrew J Hundertmark in Support of Preliminary Injunction

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Published by: Eliot Brown / New York Observer on Aug 20, 2010
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09/28/2010

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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK
---- ------- --- -------------- ---------- --- ------- --- --- ---------- x
BANK OF AMERICA, N.A., as Trustee for the
Registered Holders of Wachovia Ban
Commercial Mortgage Trust 2007 -C30, acting by
and through its Special Servicer, CWCapital Asset
Management LLC, BANK OF AMERICA, N.A.,as Trustee for the Registered Holders of COBALT
CMBS Commercial Mortgage Trust 2007 -C2,
acting by and through CWCapital AssetManagement LLC pursuant to the authoritygranted under that certain Amended and Restated
Co-Lender Agreement dated March 12,2007 and
U.S. BANK NATIONAL ASSOCIATION, as
Trustee for the Registered Holders of Wachovia
Bank Commercial Mortgage Trust 2007-C31, ML-CFC Commercial Mortgage Trust 2007-5 and ML-
CFC Commercial Mortgage Trust 2007-6, acting
by and though CWCapital Asset Management
LLC pursuant to the authority granted under thatcertain Amended and Restated Co-Lender
Agreement dated March 12,2007,
Plaintiffs,-against-
PSWNYCLLC,
Defendant.
---- ---- --- ------------------------------------- --- --- ---- ------ x
STATEOFMARYLAND )
) ss.:
CITYOFBALTIMORE )
Index
No.: 05/~93/2-0'D
AFFIDAVIT OF ANDREW J.HUNDERTMARK IN SUPPORT OF
PRELIMINARY INJUNCTION
ANDREW J. HUNDERTMARK, being duly sworn deposes and says:
1. I am employed at CWCapital Asset Management LLC ("CWCAM") as a
Senior Vice President. CWCAM fied this motion for preliminary injunction (i) in its capacity asSpecial 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
is the subject of this action.
2. I am over eighteen (18) years of age and am competent to testify as a
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.
3. I am in charge of the management and disposition of real-estate secured,
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
business under my supervision and control. i
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.
-2-
 
certain loans extended to facilitate the purchase of the Property by the Borrowers (defined
below) in 2006 and 2007.
5. On or about August 7,2010, defendant PSW NYC LLC ("PSW"), a shell
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 clearto 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
the defaults under the Senior Loan (defined below).
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
seeking the following relief prior to August 25,2010:
(A) A preliminary injunction enjoining:
(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:
(a) acquiring or sellng PCV ST MEZZ 1 LP's limited parnership
interests in PCV ST Owner LP and/or from acquiring or sellng
PCV ST MEZZ 1 LP's limited liabilty company interests in PCV
ST Owner GP LLC on or after August 25, 2010 whether by
foreclosure sale or otherwise, without prior payment of the total
-3-

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