IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO

CLEVELAND INTERNATIONAL FUND MEDICAL MART HOTEL, LTD.,
12434 Cedar Rd., Ste. 15
Cleveland Heights, OH 44106
and

THE HUNTINGTON NATIONAL BANK,
in its capacity as Trustee under the Amended and
Restated Trust Indenture, dated October 31,
2013, relating to up to $36,000,000 First
Mortgage Lease Revenue Bonds, Series 2011
(Optima 777, LLC Hotel Project),
200 Public Square
CM22
Cleveland, OH 44114,

Plaintiffs,
vs.

OPTIMA 777, LLC
777 Saint Clair Avenue
Cleveland, OH 44114
Also serve:

c/o Cogency Global Inc., Statutory Agent
3958-D Brown Park Drive
Hilliard, OH 43026
and

CLEVELAND-CUYAHOGA COUNTY PORT
AUTHORITY
c/o William D. Friedman, President and CEO
and/or Legal Counsel
1100 West 9th St., Suite 300
Cleveland, OH 44113

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CASE NO.

JUDGE
COMPLAINT FOR MONEY
JUDGMENT, FORECLOSURE, AND
OTHER EQUITABLE RELIEF

Address and Permanent Parcel Number:

777 St. Clair Avenue, Cleveland, Ohio
Project Site
PPN: 101-04-009

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 THE CITY OF CLEVELAND
c/o Mayor Frank Jackson
Cleveland City Hall
601 Lakeside Ave.
Cleveland, OH 44114

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and

THE COUNTY OF CUYAHOGA
c/o County Executive Armond Budish and
Director of Law Greg Huth
2079 E. 9th St.
Cleveland, OH 44115
Defendants.

For their Complaint against Optima 777, LLC (“Optima” or “Borrower”), Cleveland-

Cuyahoga County Port Authority (the “Port Authority”), the City of Cleveland, and the County of
Cuyahoga (“Cuyahoga County”) (collectively, “Defendants”), Plaintiffs Cleveland International

Fund - Medical Mart Hotel, Ltd. (“CIF” or “Plaintiff”) and The Huntington National Bank in its
capacity as Trustee under the Amended and Restated Trust Indenture, dated October 31, 2013,
relating to up to $36,000,000 First Mortgage Lease Revenue Bonds, Series 2011 (Optima 777,

LLC Hotel Project) (“Huntington” or “Trustee” and, together with CIF, collectively, “Plaintiffs”)

state and aver as follows:

THE PARTIES
1.

Plaintiff CIF is an Ohio limited liability company and the current holder of certain

bonds at issue (defined below) and the owner and holder of a certain note (defined below).

2.

Plaintiff Huntington is a national banking association duly organized and validly

existing under the laws of the United States of America and is duly authorized to exercise trust

powers in the State of Ohio, with its designated corporate trust office in Cleveland, Ohio.

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2

 Huntington is the trustee pursuant to a certain trust indenture (defined below) with respect to

certain bonds at issue (defined below).

3.

Defendant Optima is a Delaware limited liability Company and is the owner of

certain real property identified as permanent parcel number 101-04-009 (“Property”) located at
777 St. Clair Avenue, Cleveland, Ohio (“Project Site”).

4.

Defendant Port Authority is a port authority and body corporate and politic

organized and existing under the laws of the State of Ohio.

5.

Defendant City of Cleveland is a municipality, and body politic and corporate

organized and existing under the Ohio Constitution and the laws of the State of Ohio.

6.

Defendant Cuyahoga County is a body politic and corporate, and a constitutionally

chartered County organized and existing under the laws of the State of Ohio and pursuant to the

County Charter adopted by the people of Cuyahoga County, effective January 1, 2011.
7.

A full and complete legal description of the Property and all interests in the Project

Site and/or Property are set forth in a Commitment of Title Insurance with Judicial Endorsement
(the “Judicial Commitment”) attached as Exhibit 1. A Judicial Commitment is allowed for use in
foreclosure matters involving commercial real estate pursuant to O.R.C. 2329.191(C).

8.

Defendant Port Authority has or may claim to have some right, title or interest in

the Project Site and/or Property by virtue of a ground lease on the Property and should be required
to answer and declare its interest in the Property and/or Project Site, if any.

9.

Defendant City of Cleveland has or may claim to have some right, title or interest

in the Project Site and/or Property, and should be required to answer and declare its interest in the

Property and/or Project Site, if any. Plaintiffs are not foreclosing on the City of Cleveland’s
interest.

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 10.

Defendant Cuyahoga County has or may claim to have some right, title or interest

in the Project Site and/or Property, or its right to or interest in any property taxes owed or to be

owed on the Property, and should be required to answer and declare its interest in the Project Site
and/or Property, if any. Plaintiffs are not foreclosing on Cuyahoga County’s interest.

JURISDICTION AND VENUE
11.

This Court has jurisdiction over the parties in this dispute pursuant to O.R.C.

§ 2307.382, et seq., including by virtue of Defendants transacting business and/or having an
interest in real property within the State of Ohio, Cuyahoga County.

12.

This Court also has personal jurisdiction over Defendants because their agreements,

activities and actions in connection with this litigation took place in Cuyahoga County, Ohio, and

are governed by Ohio law.
13.

This Court is the proper venue for this action pursuant to Ohio Civ. R. 3(B)(2),

3(B)(3), and 3(B)(5) because Cuyahoga County is the county in which (i) most Defendants have

their principal place of business, (ii) Defendants conducted activity that gave rise to the claim for
relief, and (iii) the Property, which is the subject of this action, is situated.

FACTUAL BACKGROUND RELATING TO THE LOAN DOCUMENTS

14.

On or about December 1, 2011, the Port Authority, as Issuer, and Huntington, as

Trustee, entered into a Trust Indenture (“Original Indenture”) for the purpose of issuing and selling
bonds in the aggregate principal amount of up to $36,000,000.00 (“Project Bonds”) with the

proceeds derived from said sale to assist in the financing for the site demolition, site rehabilitation,
and construction of a 481 room hotel and attached parking facility (“Project Facility”) to be located

on the Project Site (the Project Facility and Project Site collectively are the “Project”).

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 15.

The Project Bonds consist of seventy-two (72) bonds in the denomination of

$500,000 each designated “First Mortgage Lease Revenue Bonds, Series 2011 for the Optima 777,

LLC Hotel Project.”

16.

On or about December 1, 2011, Optima leased the Project Site, the Project

Facilities, and the Property to the Port Authority (the “Ground Lease”). The Ground Lease is
attached hereto as Exhibit 2.

17.

Also on or about December 1, 2011, by Resolution No. 2011 -54, the Port Authority

leased Optima a possessory interest in the Project Site and Project Facilities with rent payments

under the lease to be sufficient to make the debt service payments under the Project Bonds (the
“Project Lease”). The Project Lease is attached hereto as Exhibit 3.
18.

Pursuant to Section 9.9 of the Project Lease, Optima, as Lessee, agreed to be bound

by the terms of the Original Indenture and any amendments or supplements thereto.
19.

Pursuant to Section 12.1 of the Project Lease, Optima’s failure to pay Rent or

Additional Payments pursuant to the Project Lease constitutes an Event of Default thereunder.
20.

Pursuant to Section 12.4 of the Project Lease, if an Event of Default occurs, and the

Lessor (the Port Authority), the Trustee (Huntington), or any Holder (as defined in the Project
Lease; and as described below, CIF is the Holder) should incur expenses, including but not limited

to attorneys’ fees, collection costs, consultant’s fees, appraisal fees in connection with enforcement
of the Project Lease or the collection of sums due thereunder, Lessee (Optima) shall reimburse the

Lessor and the Trustee or any Holder, as applicable, for the expenses so incurred (the “Third Party
Fees”).

21.

On or about December 1, 2011, the Port Authority gave an Open-End Mortgage,

Absolute Assignment of Leases, Security Agreement and Fixture Filing (the “Project Bond

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 Mortgage”) to Huntington, as Trustee, granting a security interest in and transfer unto the Trustee
of all of its leasehold right, title and interest in, inter alia, the Project Site (including the Property)

and the Project Facilities as security for repayment of the Project Bonds.

The Project Bond

Mortgage is attached hereto as Exhibit 4.

22.

On or about December 1, 2011, Optima granted to Huntington an Open-End

Leasehold Mortgage with Absolute Assignment of Leases and Rents, Security Agreement and
Fixture Filing, maximum principal indebtedness not to exceed $36,000,000) (the “Leasehold

Mortgage”), granting a security interest in, and not limited to, all of Optima’s leasehold estate in

the Project, to secure, among other things, the full and timely payment, performance and discharge
of amounts owed under the Project Bonds, and to secure the payment of all rent and performance
of any and all obligations to or for the benefit of CIF, as Lender. The Leasehold Mortgage is

attached hereto as Exhibit 5.

23.

Pursuant to Section 4.1 of the Leasehold Mortgage, to secure payment and

performance of the Secured Obligations (defined therein), the Leasehold Mortgage granted and

assigned to Huntington a security interest in certain personal property described therein (the
“Personal Property” and/or “Collateral”), in which Optima had any interest.

24.

To further secure payments due with respect to the Project Bonds, on or about

December 28, 2011, Optima entered into an Assignment of Leases and Rents to Huntington, as

Trustee (the “Optima Assignment of Leases and Rents”), by which Optima granted to Huntington
a security interest in the lease(s) described therein and any guaranties, renewals or extensions

thereof, together with any other lease(s), whether written or unwritten entered into and demising
any part of the Project, and all rents, issues and profits derived from the Project and any portion

thereof. The Optima Assignment of Leases and Rents is attached hereto as Exhibit 6.

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 25.

On or about December 28, 2011, the Port Authority, as Issuer sold the Project

Bonds to CIF and along with Optima entered into a certain Bond Placement Agreement and
Addendum to Bond Placement Agreement (the “Original Loan Agreement”), pursuant to which
the Port Authority issued to CIF and CIF purchased from the Port Authority the Project Bonds,

which Project Bonds evidenced the Port Authority’s obligation to repay CIF.
26.

On or about December 28, 2011, to evidence its obligations under the Project Lease,

Optima executed and delivered to the Port Authority a certain Promissory Note Secured by a
Mortgage (“Original Promissory Note”) in the principal aggregate original amount of up to thirtysix million and no/100 dollars ($36,000,000.00) with interest at a fixed rate or rates as provided

therein, signed by Optima and payable to the order of Port Authority as assigned to CIF pursuant
to the Loan Agreement (defined below).
27.

On or about December 28, 2011, pursuant to the terms of the Original Loan

Agreement in order to secure payment to CIF of amounts due and owing under the Project Bonds,
the Port Authority assigned any and all right, title and interest of the Port Authority in and to the
Original Promissory Note (as may be amended, supplemented, replaced or modified from time to
time) to CIF. A copy of the Assignment of Promissory Note is attached as Exhibit 7.

28.

On or about October 31, 2013, the Port Authority and Huntington, as Trustee,

entered into an Amended and Restated Trust Indenture (“Amended Indenture”) for the purposes
of amending the Original Indenture. Pursuant to the Amended Indenture, the Port Authority, as

Issuer, assigned to Huntington, as Trustee, and to its successors in trust, and its and their assigns,

all right, title, and interest of the Port Authority in and to (i) the Revenues, including, without

limitation, all Rental Payments and all other moneys received or to be received by Issuer or Trustee
with respect of repayment of the Project Bonds, (ii) the Project Lease, including without limitation

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 all of Issuer’s right, title, and interest in and to the Rental Payments, and (iii) proceeds realized
from the Project Bond Mortgage and the Leasehold Mortgage, and the right to take possession of
and to hold, operate, and manage the Project, and the right to exercise other remedies in the Project

Lease in the event of the occurrence of an Event of Default thereunder. A copy of the Amended

Indenture is attached as Exhibit 8.
29.

Pursuant to Section 7.03 of the Amended Indenture, upon the occurrence of an

Event of Default, “the Trustee upon the written request of Holder(s) [of more than fifty percent

(50%) of the aggregate principal amount of all Project Bonds then outstanding], and not otherwise,
shall declare, by a notice in writing delivered to the Lessee, the principal of all [Project] Bonds

held by such Holder then outstanding (if not then due and payable), and the interest accrued

thereon, all to be due and payable immediately.”
30.

Pursuant to Section 7.04 of the Amended Indenture, upon the occurrence of an

Event of Default, the Trustee may, if directed by a Holder of more than fifty percent (50%) of the

aggregate principal amount of the Project Bonds, “pursue any available remedy at law or in equity
to enforce the payment of Bond Service Charges or [the Amended] Indenture, the [Project] Lease,

the Project Bond Mortgage, the Leasehold Mortgage.. .or any other instrument providing security,
directly or indirectly, for the [Project] Bonds.”
31.

Pursuant to Section 7.08 of the Amended Indenture, as Holder of more than fifty

percent (50%) of the aggregate principal amount of the Project Bonds, CIF may not only direct the

Trustee to exercise but may itself exercise directly all rights and remedies for default exercisable
by the Trustee.
32.

CIF, pursuant to Section 7.08 of the Amended Indenture, is the true party in interest

with rights to bring this Complaint, either alone or with the Trustee.

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 33.

On or about October 31, 2013, Optima, the Port Authority, and CIF entered into an

Amended and Restated Addendum to Bond Placement Agreement for the purpose of amending
and restating the Original Loan Agreement (as amended and restated, the “Loan Agreement”).

The Loan Agreement is attached hereto as Exhibit 9.
34.

Pursuant to Section 8.1 of the Loan Agreement, if Optima fails to make timely

payment of Basic Rent pursuant to the Proj ect Lease or if the Proj ect Lease is terminated or deemed

invalid, CIF will have the right to collect under the Amended Note (defined below) and enforce
any rights to any collateral secured by the Loan Documents (defined therein).
35.

Pursuant to Section 13.11 of the Loan Agreement, if CIF engages any attorney to

enforce or defend any provision of the Loan Agreement or any of the other Loan Documents or

related documents, then Optima will immediately pay to CIF, upon demand, the amount of all

attorneys’ fees, expenses, and costs incurred in connection therewith together with applicable
interest.
36.

CIF is the original holder of the Project Bonds, and the current and sole owner and

holder of the Project Bonds.
37.

In or about October 2013, in connection with the Loan Agreement, Optima

executed and delivered its Amended and Restated Promissory Note in the principal sum of thirtysix million and no/100 dollars ($36,000,000.00) (the “Amended Note”), which amended and

restated the Original Note assigned to CIF. A copy of the Amended Note is attached as Exhibit

10.
38.

Optima, through its sole member and manager, executed the Amended Note.

39.

The Amended Note provides that interest will accrue on the outstanding balance of

the note at the rate specified in the Project Bonds.

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 40.

The Amended Note also provides that if Optima fails to make required payments

to CIF by the fifteenth calendar day of the month, Optima will pay, at CIF’s option, a late or

collection charge equal to four percent (4%) of the amount of such unpaid payment.
41.

The Amended Note further provides that a Default Rate of five percent (5.00%) in

excess of the interest rate otherwise accruing under the Amended Note will apply to all sums owing
from the date of a Default (as defined in the relevant mortgages, the Loan Agreement, or other

loan documents).
42.

The Amended Note provides that if an attorney is engaged by CIF to enforce or

defend any provision of the Amended Note, Leasehold Mortgage, or Project Bond Mortgage, then

Optima will pay to CIF immediately, upon demand, all attorneys’ fees and costs incurred by CIF
in connection therewith together with applicable interest as set forth therein from the date of such

demand until paid.

43.

The Amended Note, Loan Agreement, Leasehold Mortgage, Project Bond

Mortgage, Optima Assignment of Leases and Rents, and any other related documents are

collectively referred to herein as the “Loan Documents.”
OPTIMA’S DEFAULT

44.

The Amended Note obligated Optima to pay the principal balance of each of the

Project Bonds on the fifth anniversary following disbursement of the Project Bond proceeds from

each Project Bond (which redemption dates are set forth in the Amended Note) (the “Optional
Redemption Date”).
45.

Pursuant to Section 2.06 of the Loan Agreement, at lender’s demand, Optima was

obligated to redeem each bond on the fifth anniversary following disbursement of the bond

proceeds from such bond.

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 46.

In or about February 2019, CIF, as Lender, and Optima, as Borrower, entered into

a Forbearance Agreement which was supplemented two times (the “Forbearance Agreement”).

The Forbearance Agreement is attached as Exhibit 11.
47.

Optima acknowledged in the Forbearance Agreement that it had failed to pay CIF

upon demand when due and was in default under the Loan Documents.

48.

Specifically, in the Forbearance Agreement Optima informed CIF that it did not

intend to pay CIF the principal balance evidenced by Optima Bonds R-1-A through R-12-A on

March 1, 2019 (their Optional Redemption Date), and informed CIF that it did not intend to pay

the principal balance evidenced by Optima Bonds R-13-A through R-24-A on their Optional
Redemption Date of May 1, 2019 (the “Anticipatory Default”), but requested that CIF not pursue

remedies for the Anticipatory Default so long as Optima, among other things, paid an amount
sufficient to repay all of the Project Bonds together with accrued interest thereon on or before
October 1, 2019.

49.

Optima’s failure to pay CIF as and when due is ongoing and constitutes a Default

pursuant to Section 11.1(a) of the Loan Agreement.
50.

On or about September 30, 2019, CIF and Optima entered into a Supplemental

Forbearance Agreement (the “Supplemental Forbearance Agreement”) after Optima failed to pay
the Project Bonds on their respective Optional Redemption Dates under the Loan Agreement
following CIF’s demand and failed to refinance or sell the Property in order to repay all of the

Project Bonds together with accrued interest thereon on or before October 1, 2019 as promised. A

copy of the Supplemental Forbearance Agreement is attached as Exhibit 12.
51.

Pursuant to the Supplemental Forbearance Agreement, CIF again agreed, with

conditions, that it would not enforce or permit the Trustee to enforce certain remedies available to

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 them with respect to Optima’s known default so long as Optima tendered an amount sufficient to
repay all of the Indebtedness together with accrued interest thereon on or before December 1, 2019.
52.

The Supplemental Forbearance Agreement did not restrict CIF’s right to accelerate

the payment of amounts due and owing, and on or about October 22, 2019, CIF sent Optima a

notice of its failure to pay and default under the Loan Documents (the “October 22, 2019 Notice”).
Therein, pursuant to Section 11.2 of the Loan Agreement and Section 5(a) of the Forbearance

Agreement, CIF accelerated and declared all sums owing to CIF under the Amended Note, Loan
Agreement, and other Loan Documents immediately due and payable, and demanded that Optima

immediately pay the same.

53.

On or about October 31, 2019, Huntington, as Trustee, sent Optima, the Port

Authority, and CIF a Notice of Event of Default and Acceleration (the “October 31, 2019 Notice”)
based on CIF’s October 22, 2019 Notice. Therein, Huntington notified Optima that pursuant to

Section 7.03 of the Amended Indenture, Huntington accelerated and declared due and payable

immediately, all payments of principal and interest on all Project Bonds outstanding together with
other sums due and owing under the Amended Indenture. The October 31, 2019 and October 22,

2019 Notices are collectively attached hereto as Exhibit 13.
54.

Optima did not repay the Indebtedness as required and the Supplemental

Forbearance Agreement expired pursuant to its terms on December 1, 2019.
55.

Second

On or about June 8, 2020, CIF, as Lender, and Optima, as Borrower, entered into a

Supplemental Forbearance Agreement

(the

“Second

Supplemental Forbearance

Agreement”) whereby CIF agreed not to enforce or permit the Trustee to enforce certain remedies
available to them with respect to Optima’s known defaults pursuant to the Loan Agreement and

Amended Indenture prior to March 1, 2022, so long as Optima met certain conditions and made

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 certain payments, including but not limited to, a payment of Five Million Dollars ($5,000,000.00)
in immediately available funds no later than ninety (90) days following the date of the Second
Supplemental Forbearance Agreement, to be applied against the outstanding principal balance of

the Amended Note.

The Second Supplemental Forbearance Agreement is attached hereto as

Exhibit 14.
56.

The Second Supplemental Forbearance Agreement, agreed to and executed by

Optima, provided that (a) Optima’s failure to pay CIF the principal balance of the Amended Note
evidenced by Bonds R- 1-A through R-24-A when due (the “Known Default”) constituted a Default

under Section 11(a) of the Loan Agreement and an Event of Default under Article 7 of the

Amended Indenture beyond any right to notice or cure and that the default was ongoing; and (b)
Optima is in default under the Loan Agreement, the Amended Note, and the Project Bonds for
failure to pay its indebtedness as accelerated and demanded by CIF and such default is continuing.

(Ex. 14, Recitals).
57.

The Second Supplemental Forbearance Agreement further provided that (a) Optima

is absolutely and unconditionally liable to CIF for the indebtedness evidenced by the Loan
Agreement, Project Bonds, Amended Note, and the other Loan Documents; (b) the indebtedness

constitutes the legal, valid, and binding obligation of Optima to CIF and all of the indebtedness is
immediately due and payable but for the accommodations made by CIF and, as of the date of the

Forbearance Agreement, Optima has no defenses, rights of set-off, or claims reducing its

indebtedness to CIF; and (c) Optima’s Known Default constitutes a Default under the Loan
Agreement and an Event of Default under the Amended Indenture beyond any right to notice or
cure and is continuing. (Ex. 14, §§ 2(a)-(c)).

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 58.

Optima failed to pay CIF the Five Million Dollars ($5,000,000.00) within ninety

(90) days of the date of the Second Supplement to Forbearance Agreement. As a result, CIF is no

longer required not to enforce or permit the Trustee to enforce certain remedies available to them

with respect to Optima’s known defaults pursuant to the Loan Documents, Project Bonds, or

Amended Indenture.
59.

Because Optima failed to repay the Indebtedness on or before September 15, 2020,

Optima is liable for a Late Fee as provided in the Amended Note. Based on the current principal
balance of the Loan, the Late Fee is One Million Four Hundred Thousand Dollars ($1,400,000.00)

(4% of $35MM) which amount will accrue interest at the Default Rate from September 16, 2020
until paid.
60.

Having previously accelerated all sums owing to CIF under the Loan Documents,

CIF is entitled to immediate payment of: (a) principal in the amount of Thirty-Five Million Dollars
($35,000,000.00); (b) accrued but unpaid interest through September 8, 2020 in the amount of

Four Hundred Ninety-Seven Thousand Two Hundred Eight and 34/100 Dollars ($497,208.34); (c)
additional accrued interest against the principal balance at the Default Rate of 8.75% per annum
from September 8, 2020 until paid; (d) because Optima failed to repay the Indebtedness on or

before September 15, 2020, a Late Charge, which, based on the principal balance of the loan is
anticipated to equal One Million Four Hundred Thousand Dollars ($1,400,000.00) and will accrue
interest at the Default Rate of 8.75% from September 16, 2020 until paid; (e) any Third Party Fees,

including but not limited to, collection costs, consultant’s fees, and attorneys’ fees; and (f)

protective advances incurred and/or made by CIF in an amount to be determined.
61.

Additionally, CIF is entitled to other amounts that may be due and owing under the

Loan Documents.

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 62.

Further, Huntington, as Trustee is entitled pursuant to Section 6.03 of the Amended

Indenture and related Loan Documents, including but not limited to Section 3.2(d) of the Project
Lease, to payment or reimbursement by Optima of any fees, charges, and expenses of the Trustee
and its agents and for all advances, counsel fees, and other ordinary and extraordinary expenses

paid or incurred together with any charges and expenses Huntington incurs in enforcing its rights

under the Loan Documents, including extra compensation for the performance of any

Extraordinary Services and/or reimbursement of Extraordinary Expenses in an amount to be
determined.
FIRST CAUSE OF ACTION - JUDGMENT ON AMENDED NOTE

(Brought by Plaintiff CIF as Lender)
63.

Plaintiff CIF incorporates the paragraphs above as if fully rewritten and set forth

64.

CIF is the holder of the Amended Note, given and executed by Optima, as

herein.

Borrower, to amend and restate the Original Note issued by the Port Authority and assigned to
CIF.
65.

CIF has demanded payment of the amounts due on the Amended Note from

Optima, and Optima has either refused or failed to make the payments required thereunder.
66.

Pursuant to the Amended Note, as of September 8, 2020, there is due and owing to

CIF from Optima: (a) principal in the amount of Thirty-Five Million Dollars ($35,000,000.00),
(b) accrued but unpaid interest through September 8, 2020 in the amount of Four Hundred Ninety­

Seven Thousand Two Hundred Eight and 34/100 Dollars ($497,208.34); (c) additional accrued
interest against the principal balance at the Default Rate of 8.75% per annum from September 8,

2020 until paid; (d) because Optima failed to repay the Indebtedness on or before September 15,
2020, a Late Charge, which, based on the principal balance of the loan is anticipated to equal One
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 Million Four Hundred Thousand Dollars ($1,400,000.00) (4% of $35MM), and will accrue interest

at the Default Rate of 8.75% from September 16, 2020 until paid; (e) Third Party Fees incurred by

CIF in an amount to be determined; and (f) protective advances in an amount to be determined.

SECOND CAUSE OF ACTION -FORECLOSURE ON PROJECT
BASED ON LEASEHOLD MORTGAGE
(Brought by Plaintiffs)
67.

Plaintiffs incorporate the paragraphs above as if fully rewritten and set forth herein.

68.

Optima is in default under the terms of the Loan Documents for reasons including

but not limited to (i) the failure to make payment when due; and (ii) the failure to comply with the
terms and provisions of the Loan Documents.

69.

The Leasehold Mortgage is a good and valid lien upon the Project.

70.

The Leasehold Mortgage is the first and best lien on the Project.

71.

Based upon the aforementioned defaults, the conditions of the Leasehold Mortgage

have been broken and the same have become absolute.
72.

CIF may have advanced or may advance during the pendency of this action sums

for the payment of taxes, hazard insurance premiums, and protection of the Project, and other

Third-Party Fees, the total amount of which is undetermined at the present time, but which amount

will be ascertainable and may be added to the outstanding amounts owed to CIF.
73.

Huntington, as Trustee may be entitled to and may have advanced or may advance

during the pendency of this action pursuant but not limited to Section 6.03 of the Amended

Indenture and Section 3.2(d) of the Project Lease ordinary and extraordinary compensation, fees,
expenses, and charges, the total amount of which is undetermined at the present time, but which

amount will be ascertainable and is to be paid to Huntington, as Trustee.

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 74.

The Defendants named in this Complaint have or may claim to have an interest in

the Project and/or Property as set forth in Exhibit 1. Plaintiffs are not foreclosing on the City of

Cleveland’s or Cuyahoga County’s interest.
75.

Pursuant to Section 5.1 of the Leasehold Mortgage, the Leasehold Mortgage is a

first lien on Optima’s leasehold interest in the Property, the Project Site, and the Project, and as
such, Plaintiffs are also entitled to exercise their rights under the Loan Documents to foreclose on

Optima’s leasehold interest in the Project and any equity of redemption of Defendant Optima, and

to have the Project sold by the sheriff of this county at a sheriff’s sale or as otherwise authorized

by the Court.
76.

Plaintiffs are also entitled to an order from this Court that it is entitled to exclusive

possession of the Project Site and the Project, including the right to exclusive possession of the
Project Lease, which the Leasehold Mortgage secures, including the right to sell or otherwise

dispossess Optima of the Project Lease as authorized by the Court.

THIRD CAUSE OF ACTION
ASSIGNMENT OF LEASES AND RENTS AND POSSESSION OF PROJECT AND
COLLATERAL
(Brought by Plaintiffs)
77.

Plaintiffs incorporate the paragraphs above as if fully rewritten and set forth herein.

78.

Pursuant to the Loan Documents and the aforementioned terms of the Leasehold

Mortgage, including but not limited to the Optima Assignment of Leases and Rents, CIF, as a

result of the aforementioned defaults, has the right to enter upon the Project for the purpose of
taking possession of the Project and Collateral.
79.

Pursuant to Section 4.1 of the Leasehold Mortgage, to secure payment and

performance of the Secured Obligations (defined therein), the Leasehold Mortgage grants and

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 assigns to Huntington a security interest in all of Optima’s leasehold estate in the Project, to secure,

among other things, the full and timely payment, performance and discharge of amounts owed
under the Project Bonds, and to secure the payment of all rent and performance of any and all
obligations to or for the benefit of CIF, as Lender.

80.

Pursuant to the Leasehold Mortgage, the other Loan Documents, and applicable

law, Plaintiffs are entitled to exercise their rights under the Loan Documents to enter onto the

Property where any of the Collateral is located and take possession of, collect, sell, and dispose of
any Collateral as provided for in Section 4.5 of the Leasehold Mortgage.

FOURTH CAUSE OF ACTION
ASSIGNMENT OF RENTS
(Brought by Plaintiffs)

81.

Plaintiffs incorporate the paragraphs above as if fully rewritten and set forth herein.

82.

The Optima Assignment of Leases and Rents contains a provision giving all of

Optima’s leasehold estate in the Project to secure, among other things, the full and timely payment
and performance and discharge of amounts owed under the Project Bonds, and that upon the
occurrence of an event of default, Plaintiffs are entitled to all of Optima’s leasehold estate in the

Project including, among other things, any rents, issues, and profits derived from the Project and

any portion thereof, and the payment of all rent and performance of any and all obligations to or

for the benefit of CIF, as Lender

83.

Based on the aforementioned defaults, Plaintiffs are now entitled to collect the

rents, if any, generated on the Project as provided in the Optima Assignment of Leases and Rents.

84.

Plaintiffs request that this Honorable Court enter an order requiring Optima: (i) to

pay all rents on the Project to CIF from the inception of this litigation; (ii) to provide CIF with a

monthly accounting of all rents received; (iii) to allow CIF, if it chooses, to collect all rents and to

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 apply those rents received to the balance owed to it on the Indebtedness; and (iv) to allow CIF to
enforce all rights it may have pursuant to the Optima Assignment of Leases and Rents, Leasehold
Mortgage and other Loan Documents.
WHEREFORE, Plaintiffs prays for judgment against the Defendants for the following

relief:

A.

With respect to the First Cause of Action, for a Judgment on the Amended Note
against Optima and in favor of Plaintiff CIF including the following:
i.
ii.
iii.

iv.

v.

B.

the principal amount of $35,000,000.00;
accrued but unpaid interest through September 8,2020 in the amount
of $497,208.34;
additional accrued interest on the outstanding principal balance at the
Default Rate of 8.75% per annum from September 8, 2020 until paid;
because Optima failed to repay the indebtedness on or before
September 15, 2020, a Late Fee in the amount of One $1,400,000.00
(4% of $35MM), with interest to accrue at the Default Rate of 8.75%
per annum from September 16, 2020 until paid, the total amount of
which is undetermined at the present time, but which amount will be
ascertainable at the time the Court enters judgment; and
all attorneys’ fees and costs incurred by CIF in connection with
collecting amounts pursuant to the Amended Note;

With respect to the Second Cause of Action, for an Order that:
i.
ii.
iii.

iv.
v.

vi.
vii.
viii.
ix.

Plaintiffs, through the Leasehold Mortgage, have a valid and
subsisting lien upon the Project;
the Leasehold Mortgage be foreclosed;
Plaintiffs be allowed to enter and take control of the Project and
Personal Property;
the equity of redemption of Defendants be forever cut off and
barred;
all Defendants be required to answer as to their interests in the
Project or be forever barred from asserting any interest therein;
all liens be marshaled and their priorities determined;
the Project be sold;
the Project Lease be sold or otherwise possessed as directed by CIF;
upon sale of the Project and sale or re-letting of the Project Lease,
the proceeds therefrom be paid to Plaintiff CIF to satisfy the amount
of its existing liens and the interest and other amounts due therein,
together with its advancements, disbursements, attorneys’ fees, and
costs expended herein; and

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 x.

C.

With respect to the Third Cause of Action, for an Order that:
i.

ii.

D.

Huntington, as Trustee, pursuant but not limited to Section 6.03 of
the Amended Indenture and Section 3.2(d) of the Project Lease, be
paid or reimbursed by Optima for any fees, charges and expenses,
both ordinary and extraordinary, incurred by Huntington in
enforcing its rights under the Loan Documents in an amount to be
determined.

Plaintiffs have a security interest on the Leasehold Mortgage and the
Personal Property secured thereby in the amount of the
Indebtedness; and
CIF is entitled to take possession of the Personal Property and/or
Collateral for the purposes of collecting, selling, and disposing of
any Collateral with the proceeds therefrom to be paid to Plaintiff
CIF to satisfy the amount owed under the Loan Documents;

With respect to the Fourth Cause of Action, for an Order that:
i.
ii.
iii.

iv.

Optima is required to pay all rents on the Project to CIF from the
inception of this litigation;
Optima provide CIF with a monthly accounting of all rents received;
CIF is permitted, if it chooses, to collect all rents and to apply those
rents received to the balance owed to it on the Indebtedness; and
CIF is permitted to enforce all rights it may have pursuant to the
Optima Assignment of Leases and Rents, the Leasehold Mortgage,
and other Loan Documents.

E.

For an Order awarding Plaintiff CIF the deficiency balance due under the Amended
Note remaining after the foreclosure sale;

F.

For an Order awarding Plaintiffs any attorneys’ fees, costs, Third Party Fees, and
expenses they have incurred in connection with this action;

G.

For an Order awarding Plaintiff CIF amounts for payment of taxes, hazard
insurance premiums, and protection of the Project, the total amount of which is
undetermined at the present time, but which amount will be ascertainable and may
be added to the outstanding amounts owed to Plaintiffs;

H.

For an Order that Huntington, as Trustee is entitled, pursuant but not limited to
Section 6.03 of the Amended Indenture and Section 3.2(d) of the Project Lease, to
payment or reimbursement by Optima of any fees, charges and expenses, both
ordinary and extraordinary, incurred by Huntington in enforcing its rights under the
Loan Documents in an amount to be determined; and

I.

For any other relief that the Court deems just and proper.

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 Respectfully submitted,
/s/Robin M. Wilson_________________
Robin M. Wilson (0066604)
Katherine M. Poldneff (0088529)
ULMER & BERNE LLP
1660 W. 2nd St., Suite 1100

Cleveland, Ohio 44113
216-583-7000 (phone)
216-583-7001 (facsimile)
rwilson@ulmer.com
kpoldneff@ulmer.com

Attorneysfor Plaintiff Cleveland International Fund Medical Mart Hotel Ltd.
CLEV1997:2662574vl7

39993.00014

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