IN THE CIRCUIT COURT OF ST. LOUIS COUNTY, MISSOURI U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, SUCCESSOR-IN-INTEREST TO BANK OF AMERICA, N.A., AS TRUSTEE SUCCESSOR-BY-MERGER TO LASALLE Case No. BANK NATIONAL ASSOCIATION, IN ITS CAPACITY AS TRUSTEE, FOR THE Division No. REGISTERED HOLDERS OF LB-UBS COMMERCIAL MORTGAGE TRUST 2006-C6, COMMERCIAL MORTGAGE PASS- THROUGH CERTIFICATES, SERIES 2006-C6, Plaintiff, v. CHESTERFIELD MALL LLC, Defendant. 16SL-CC02572 PLAINTIFF'S MOTION FOR ORDER APPOINTING RECEIVER Plaintiff U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, SUCCESSOR-IN- INTEREST TO BANK OF AMERICA, N.A., AS TRUSTEE, SUCCESSOR BY MERGER TO LASALLE BANK NATIONAL ASSOCIATION, IN ITS CAPACITY AS TRUSTEE, FOR THE REGISTERED HOLDERS OF LB-UBS COMMERCIAL MORTGAGE TRUST 2006-C6, COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-C6, acting by and through C-III Asset Management LLC, its special servicer ("Noteholder", pursuant to the contractual agreement of the parties, Mo. Rev. Stat. 515.240 and 537.500 and Missouri Supreme Court Rule 68.02(a, moves this Court to enter an Order Appointing Receiver relating to certain real property and all leases, rents, income, and personal property security interests relating thereto, located at or about 291 Chesterfield Center, Chesterfield, Missouri, which is commonly known as the Chesterfield Mall ("Mortgaged Property" and which is owned by
defendant CHESTERFIELD MALL LLC ("Borrower". In support thereof, Noteholder states as follows: 1. Simultaneous with the filing of this Motion, Noteholder commenced an action in this Court by filing a Verified Petition for Breach of Note, Declaratory Judgment, and Specific Performance of Deed of Trust and Assignment of Leases and Rents and Appointment of Receiver ("Verified Petition". 2. The Verified Petition requests, among other things, the appointment of a receiver to take possession and maintain, preserve and operate the Mortgaged Property, including Rents 1 associated with the Mortgaged Property. 3. Noteholder is the current holder and owner of a $140,000,000.00 loan made to Borrower, relating to which Borrower has failed to make timely payments. 4. Noteholder is contemplating the pursuit of non-judicial remedies under the power of sale provisions of the Deed of Trust that may run parallel to this action. 5. Borrower owns the Mortgaged Property, and Borrower is operating the Mortgaged Property through a property management company that has an interest in Borrower or is otherwise affiliated with Borrower. 6. Missouri case law holds that a contractual agreement between the parties allowing for the appointment of a receiver is a basis, independent of Missouri Supreme Court Rule 68.02 and Mo. Rev. Stat. 515.240 and 537.500, for appointment of a receiver. MIF Realty v. Pickett, 963 S.W.2d 308, 311 (Mo. Ct. App. 1997. 7. Pursuant to Section 10 of the Deed of Trust, upon the occurrence of a default, Borrower agreed that Noteholder may, without notice or demand, take certain actions, including: 1 Unless otherwise noted, capitalized terms herein shall have the meaning identified in the Verified Petition. 2
... (v institute an action, suit or proceeding in equity for the specific performance of any covenant, condition or agreement contained herein or in any other Loan Document;... (vii apply for the appointment of a trustee, receiver, liquidator or conservator of the [Mortgaged Property], without notice and without regard for the adequacy of the security for the Debt and without regard for the solvency of the [Borrower] or of any person, firm or other entity liable for the payment of the Debt.... 8. Also, pursuant to terms of the Deed of Trust and the Assignment of Rents, in the event of any default by Borrower, the license granted to Borrower to collect and use Rents is automatically revoked. 9. Borrower is currently in default under the Loan Documents. In addition to failing to make timely payments, Borrower has failed to observe and preform the material obligations imposed upon Borrower, as lessor of the Chesterfield Mall, to its tenants under leases for space at the Chesterfield Mall. 10. Noteholder has accelerated the Loan, and all amounts evidenced by the Note and Loan Documents are currently due and owing. 11. Consequently, pursuant to the Loan Documents, Noteholder is entitled to the appointment of a receiver to take immediate possession of the Mortgaged Property and collect Rents from and operate the Mortgaged Property. 12. Noteholder's rights pursuant to the terms of the Loan Documents, including the right to possession and use of the Mortgaged Property and Rents and the right to the appointment of a receiver upon default by Borrower, are critical to Noteholder's ability to realize the benefit of its bargain under the Loan Documents. 13. The Note and Loan Documents provide, except in certain circumstances, nonrecourse obligations of Borrower; consequently, Noteholder's right to enforce the obligations 3
contained in the Note and Loan Documents are, under the circumstances currently known to Noteholder, limited to those enforcement rights granted it pursuant to the Loan Documents, including the right to possession and use of the Mortgaged Property and the right to the appointment of a receiver upon default by Borrowers. 14. Also, pursuant to Mo. Rev. Stat. 515.240 and 537.500 and Missouri Supreme Court Rule 68.02(a, this Court is authorized to appoint a receiver to protect Noteholder s interest in the Mortgaged Property, to collect Rents, and specifically to appoint a receiver to keep, preserve and manage the Mortgaged Property and protect any business interest entrusted to the receiver pending the determination of this lawsuit. 15. Missouri Supreme Court Rule 68.02 states that whenever it appears to the Court that a receiver is necessary to keep, preserve and protect any business, business interest or property... the court... may appoint a receiver whose duty it shall be to keep, preserve and protect... the business, business interest or property sought to be protected. Missouri Revised Statute 515.240 contains similar language, and Mo. Rev. Stat. 537.500 provides for the appointment of a receiver when property is being wasted or dissipated. 16. There is due and owing to Noteholder under the Loan Documents the unpaid principal balance of $140,000,000.00 as of June 17, 2016, plus additional amounts accrued and to accrue under the terms of the Loan Documents and, upon information and belief, the value of the Mortgaged Property, less Rents and other proceeds of the Mortgaged Property, is estimated to be $63,000,000.00. Noteholder has not inspected the Mortgaged Property and lacks sufficient information to concretely identify the value of the Mortgaged Property, and Noteholder reserves all rights to amend or otherwise differently identify the value of the Mortgaged Property. 4
17. The obligations evidenced by the Loan Documents exceed the value of the Mortgaged Property. 18. In the absence of an order of the Court requiring specific performance of the Loan Documents, including appointing a receiver to take possession of, collect, manage and operate the Mortgaged Property during the pendency of the lawsuit, Noteholder will be harmed by delay of its bargained-for rights under the Loan Documents.. 19. Legal remedies are inadequate to prevent the additional dissipation and waste of the Mortgaged Property. 20. A proposed Order Appointing Receiver is attached as Exhibit 1 to this Motion. 21. Noteholder requests that Madison Marquette Retail Services LLC be appointed receiver, to act in the best interests of the Mortgaged Property at the direction of this Court, including pursuant to an Order Appointing Receiver. The qualifications of Madison Marquette Retail Services LLC to act as receiver are identified in Exhibit 2 to this Motion. Borrower will not be materially prejudiced by the appointment of a receiver. To the contrary, all parties will be benefited by the appointment of Madison Marquette Retail Services LLC as a receiver, with powers that provide a means by which to effectively manage the Mortgaged Property and make material decisions relating to the Mortgaged Property. 5
Respectfully submitted, DENTONS US LLP /s/robert A. Hammeke Daniel A. Spirn, MO #48098 Robert A. Hammeke, MO #51540 Tyler I. Page, MO #64073 4520 Main Street, Suite 1100 Kansas City, MO 64111 Telephone: 816-460-2400 Facsimile: 816-531-7545 daniel.spirn@dentons.com robert.hammeke@dentons.com tyler.page@dentons.com Attorneys for Plaintiff 6