FILED: NEW YORK COUNTY CLERK 08/10/2010 NYSCEF DOC. NO. 1 INDEX NO. 651222/2010 RECEIVED NYSCEF: 08/10/2010 SUPREME COURT OF STATE OP NEW YORK COUNTY OF NEW YORK -- -X BASE VILLAGE OXVNER LLC, Plaintiff, COMPLAINT _3_gaj_n5t. Index NO. HYPO REAL ESTATE CAPITAL CORPORATION, DEKABANK DEUTSCI-IE GIROZENTRALE, DANSKE BANK AS, and KBC BANK Defendants. - Plaintiff Base Village Owner LLC, by its attorneys, Katsl-ty Korins LLP, for its complaint, alleges as follows: PRELIMINARY STATEMENT 1. This is an action by plaintiff Base Village Owner LLC ("plaintiff" or against defendants Hypo Real Estate Capital Corporation, Dekabanle; Deutsche Girozentrale, Dansko Bank Group, and KBC Bank NN. (collectively, "defendants" or the "Lenders"), in which plaintiff seeks a judgment against defendants, jointly and severally, in excess of over four hundred and six million ($406,000,000) dollars in damages, as well as declaratory and injunctive relief. As detailed below, despite committing to fund over $520 million in connection with plaintiffs project in Snowmass, Colorado, the Lenders engaged in a transparent effort to evade their contractual ohligatiorw to fund, in accordance with the loan agreement between the parties, due to the credit crisis experienced in the markets in general and by these defendants in particular inthe second half of 2008 and into 2009. By reason of their misconduct and breach of contract, defendants are causing BVO to lose its entire equity interest in the project of approximately two hundred and thirteen million ($213,000,000] dollars, as well as depriving it ofthe profits of approximately one hundred and ninety-three million (Sl 93,000,000) dollars which it would have earned but for defendants' wrongful actions. 2. In brief, in March 2007, BVO and the Lenders entered into a loan agreement to enable EVO to acquire and develop over nineteen acres of land in Snowmass a world famous ski resort near Aspen, Colorado. BVO's project in Snowmass was enormous, involving, among other things, the development, construction, and management of condominiums, hotels, and retail space at the base of Snowmass Mountain (the "Proj ect"). The centerpiece of the Proj ect was the construction of the Viceroy, a 225-unit condoniinium-hotel complex (referred to as "Phase of the Proj ect), which was comprised of two buildings - building 13A and building l3B. The portion of the $520 million loan facility associated with the Viceroy construction was expected to amount to approximately $260 million. 3. The loan agreement originally provided that BVO had to satisfy certain conditions precedent before the Lenders were obligated to make advances for any Phase work (the "Phase Requirements"), In or about February 2003, BVO requested that Phase be bifurcated between buildings 13A and l3B, thereby permitting BVO to obtain funding from the Lenders for the construction of building l3A, prior to the construction of building l3B. As such, the Phase Requirements would similarly be bifurcated between 13A and 1313, with each building having its own, separate conditions precedent that would have to be satistied to commence funding (respectively, the "l 3A Requirements" and the Requirements"). In response to BVO's request, the Lenders in fact unanimously approved the bifurcation. 4. Thereafter, in September 2008, BVO satisfied the 13A Requirements whereupon, consistent with the agreement between the parties, the Lenders provided with the financing to commence the development and construction of the 13A building. Built under budget and 2 witliin the projected time-frame, the construction of 13A was completed and has long been open for business. 5. ln January 2009, BVU submitted a complete package of the 13B Requirements, all of which had been previously furnished, and, consistent with the agreement between the parties, sought funding from the Lenders for the development and construction of the 13B building. However, during the preceding six months, as the world~>>wide Enaucial crisis took hold, the Lenders were confronting mounting debt loads, while dealing with deteriorating credit markets. Among the Lenders, Lehman Brothers (which was a predecessor-lender to defendant Danske Bank Group) had filed for bankruptcy, requiring EVO to fund Lehman`s portion of the financing for several months, and the German government had begun the process of nationalizing defendant Hype, which had had its credit downgraded in July 2008. 6. Thus, the Lenders - notwithstanding BVO's satisfaction of the 13B Requirements, but now prioritizing their own bottom lines - refused to fund the construction of the 13B building, which was vital for the generation of revenue and profit for the Project. Not surprisingly, given the significance of 1313 to the Puoject's overall financial success, the Lenders shameful repudiation of their obligations caused the Project to come to a standstill soon thereafter, and EVO was unavoidably Lmable to service the loan. 7. As set forth below, as a direct result of the Lenders' breach of their funding obligations, as aforesaid, thereby preventing the construction of 13B, plaintiff has been damaged and is entitled to recover all of the losses it has sustained -including the loss of its equity, the profits it would have derived on the project, as well as the reputational harm sustained, an amount in excess of $406 million dollars. S. In addition, plaintiff is entitled to declaratory relief, establishing that it is not in default imder the parties' loan agreement, as well as injunctive relief; restraining and enjoining 3 defendants from foreclosing on the Snowmass property and taking and transferring title thereto, due to the claimed default by BVO. Without such relief, plaintiff will be irreparably harmed; indeed, defendants have already commenced a non-judicial foreclosure proceeding on the Snowmass property, seeking to strip the property from plaintiff. Defendants should be called to account for their wrongful actions, in derogation of their contractual obligations to plaintiff and judgment against the Lenders for the relief requested should be granted. PARTIES 9. Plaintiff BVO is a Delaware limited liability company, having a place of business at 60 Columbus Circle, New York, New York 10023. 10. Upon infonnation and belief, defendant Hype Real Estate Capital Corporation ("Hypo") is a Delaware corporation, with its principal place of business at 622 Third Avenue, New York, New York 10017. Hypo was also the Administrative Agent under the Loan and Security Agreement, dated March 1, 2007 (the "Loan Agreement"}. 11. Upon information and belief defendant Dckabank Deutsche Girozentrale ("Dekabank") is a bank organized under the laws ofthe Federal Republic of Germany, having an address at Mainaer Lanstr. 16 6-325, Frankfurt am Main, Germany. 12. Upon information and belief, defendant Danske Bank AS ("Dans1