FILED: NEW YORK COUNTY CLERK 01/18/2017 04:30 PM INDEX NO. 652393/2015 NYSCEF DOC. NO. 321 RECEIVED NYSCEF: 01/18/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------x SUTTONGATE HOLDINGS LIMITED, Index No. 652393/2015 -against- Plaintiff, LACONM MANAGEMENT N.V., SAMIR ANDRAWOS, VIRGINIA IGLESIAS, KASHMIRE INVESTMENTS, LTD., IMMO KASHMIRE DEVELOPMENT INC., SEDNA GROUP LTD., KUIPER GROUP LTD., and OURISTA N.V., SECOND AMENDED COMPLAINT Defendants. --------------------------------------------------------------------x Plaintiff, by its attorneys Olshan Frome Wolosky LLP and Nathan M. Ferst, complaining of Defendants, alleges: PARTIES 1. At all times herein mentioned, Plaintiff Suttongate Holdings Limited was and is a Business Corporation duly formed and existing under the laws of Gibraltar. 2. Upon information and belief and at all times herein mentioned, Defendant Laconm Management N.V. was and is a Business Corporation duly formed and existing under the laws and with its principal place of business in St. Maarten with an address at Welgelegen Road 23, Cayhill, St. Maarten. 3. Upon information and belief and at all times herein mentioned, Defendant Samir Andrawos was and is a natural individual, a citizen of the United States of America and of the Kingdom of the Netherlands, and a resident of the State of Maryland where, apart from the hereinafter described properties and business which he owns with Defendant Virginia Iglesias, Defendant Samir Andrawos with his wife Jennifer Andrawos owns in Maryland a home and, through entities, a shopping center and a warehouse. 3951925-1 1 1 of 36
4. Upon information and belief and at all times herein mentioned, Defendant Virginia Iglesias was and is a natural individual, a citizen of the United States of America and a resident of the State of Florida where she owns an apartment in Miami Beach and also owns a home in St. Maarten. 5. Upon information and belief and at all times herein mentioned, Defendant Samir Andrawos and Defendant Virginia Iglesias live together and are partners and/or shareholders and/or members and/or co-venturers together through different entities owning several businesses and properties, to wit: real properties in St. Maarten including, but not limited to, the properties which, in part, are the subject of this action, such real properties valued in the tens of millions of United States Dollars; a company operating out of Miami Beach, Florida, called Carib Resorts, Inc. which operates several businesses connected with tourism in the Caribbean; an entity holding a long-term lease on Balmoral Island, a twenty (20) acre island off the shore of Nassau in the Bahamas, containing a dolphinarium, a private beach, a restaurant, and several shops to which cruise ships bring tourists; and entities conducting other businesses engaged in tourism, boating, busing, and car and motorcycle rentals on St. Maarten and elsewhere in the Caribbean. 6. Upon information and belief and at all times herein mentioned, Defendant 1. Kashmire Investments, Ltd. was and is a Business Corporation duly formed and existing under the laws of Nevis and owning property in St. Maarten at and adjoining Welgelegen Road 23, Cayhill, St. Maarten. 7. Upon information and belief and at all times herein mentioned, Defendant Immo Kashmire Development Inc. was and is a Business Corporation duly formed and 3951925-1 2 2 of 36
existing under the laws of Nevis and owning property in St. Maarten adjoining Welgelegen Road 23, Cayhill, St. Maarten. 8. Upon information and belief and at all times herein mentioned, Defendant Sedna Group Ltd. was and is a Business Corporation duly formed and existing under the laws of Nevis and owning property in St. Maarten adjoining Welgelegen Road 23, Cayhill, St. Maarten. 9. Upon information and belief and at all times herein mentioned, Defendant Kuiper Group Ltd. was and is a Business Corporation duly formed and existing under the laws of Nevis and owning property in St. Maarten adjoining Welgelegen Road 23, Cayhill, St. Maarten. 10. Upon information and belief and at all times herein mentioned, Defendant Ourista, N.V. was and is a Business Corporation duly formed and existing under the laws of St. Maarten with an address at Welgelegen Road 23, Cayhill, St. Maarten. JURISDICTION, VENUE, AND GOVERNING LAW 11. This Court has jurisdiction over this action and Defendants Laconm Management N.V., Samir Andrawos, Virginia Iglesias, Kashmire Investments, Ltd., Immo Kashmire Development Inc., Sedna Group Ltd., Kuiper Group Ltd., and Ourista, N.V. pursuant to N.Y. G.O.B. Law 5-1402 as all parties hereto agreed that all disputes under the agreements at issue would be resolved before a Court of competent jurisdiction in the State of New York, and the amount in controversy exceeds One Million (US$1,000,000.00) United States Dollars. 12. Venue is properly placed here as the parties agreed that New York County would be the place of adjudication. 3951925-1 3 3 of 36
13. New York law governs the instant action pursuant to N.Y. G.O.B. Law 5-1402 as the parties so agreed. FACTS 14. In or about February of 2014, RBC Royal Bank N.V. as successor in interest to RBTT Bank, N.V. was the owner and holder of instruments of debt and mortgages executed and delivered by Defendants Kashmir Investments, Ltd., Laconm Management N.V., and Ourista N.V. to RBTT Bank N.V. to evidence and secure certain loans ( the Obligations ). 15. Instruments of debt and mortgages comprising the Obligations were signed from time to time by Defendant Virginia Iglesias, Defendant Samir Andrawos, and by one Warren Stephen Defienne on behalf of Defendants Kashmir Investments, Ltd., Laconm Management N.V., and Ourista N.V. 16. The instruments of debt and mortgages comprising the Obligations were guaranteed by Defendants Virginia Iglesias, Samir Andrawos, Immo Kashmire Development Inc., and Ourista N.V. 17. Before and as of February 28, 2014 and continuing thereafter without interruption Defendants Kashmir Investments, Ltd., Laconm Management N.V., and Ourista N.V. were in default under the instruments of debt and mortgages comprising the Obligations. 18. As of February 28, 2014 and continuing thereafter without interruption Defendants Virginia Iglesias, Samir Andrawos, Immo Kashmire Development Inc., and Kuiper Group Ltd. were and are obligated under their guarantees of the instruments of debt and mortgages comprising the Obligations. 3951925-1 4 4 of 36
19. After February 28, 2014 interest and late charges continued to accrue on the instruments of debt and mortgages comprising the Obligations at the rates stated therein. 20. By July 29, 2014, the balance of the Obligations with default interest and like charges thereon was in excess of the sum of Eleven Million ($11,000.00) United States Dollars. 21. Upon information and belief, before the beginning of 2014 RBC Royal Bank N.V. as successor in interest to RBTT Bank, N.V. threatened to sue and/or foreclose on the instruments of debt and mortgages comprising the Obligations and to sue on the guarantees. 22. Prior to March 7, 2014 Plaintiff Suttongate Holdings Limited as Lender and Defendants Kashmire Investments, Ltd., Sedna Group Ltd., Kuiper Group Ltd., Laconm Management N.V., Samir Andrawos, and Virginia Iglesias as Borrowers agreed to enter into an agreement concerning, among other things, the Obligations. 23. Defendants Kashmire Investments, Ltd., Sedna Group Ltd., Kuiper Group Ltd., Ourista N.V., Samir Andrawos, and Virginia Iglesias agreed to execute and deliver guarantees of full performance and payment by Defendants Kashmire Investments, Ltd., Sedna Group Ltd., Kuiper Group Ltd., Laconm Management N.V., Samir Andrawos, and Virginia Iglesias under any agreement to be made with Plaintiff Suttongate Holdings Limited. 24. On or about July 29, 2014 in St. Maarten, Plaintiff Suttongate Holdings Limited as Lender and Defendants Kashmire Investments, Ltd., Sedna Group Ltd., Kuiper Group Ltd., Laconm Management N.V. and Samir Andrawos as Borrowers 3951925-1 5 5 of 36
entered into a Loan Agreement dated as of March 7, 2014 concerning, among other things, the Obligations ( the March 7, 2014 Loan Agreement ). 25. On July 29, 2014 in St. Maarten, Defendant Samir Andrawos signed the March 7, 2014 Loan Agreement on behalf of Defendant Samir Andrawos and Defendants Kashmire Investments, Ltd., Sedna Group Ltd., and Kuiper Group Ltd. 26. Defendant Virginia Iglesias agreed to but did not execute the March 7, 2014 Loan Agreement because Defendant Virginia Iglesias, according to representations made by Defendant Samir Andrawos, was at the time of the execution of the March 7, 2014 Loan Agreement on July 29, 2014 in the State of Florida suffering from ill health. 27. Simultaneously with the execution of the March 7, 2014 Loan Agreement on July 29, 2014 in St. Maarten, Defendant Samir Andrawos executed before a Notary a personal guaranty of the March 7, 2014 Loan Agreement. 28. At the time of the execution of the March 7, 2014 Loan Agreement on July 29, 2014 in St. Maarten, Defendant Samir Andrawos was accompanied by one Warren Stephen Defienne. 29. At the time of the execution of the March 7, 2014 Loan Agreement on July 29, 2014 in St. Maarten, Defendant Samir Andrawos stated that, in addition to himself (Defendant Samir Andrawos), said Warren Stephen Defienne was an authorized signatory for Defendants Kashmire Investments, Ltd., Sedna Group Ltd., and Kuiper Group Ltd. 30. Said Warren Stephen Defienne in the presence of Defendant Samir Andrawos and before a Notary executed guarantees of the March 7, 2014 Loan 3951925-1 6 6 of 36
Agreement on behalf of Defendants Kashmire Investments, Ltd., Immo Kashmire Development Inc., Sedna Group Ltd., and Kuiper Group Ltd. 31. At the time of the execution of the March 7, 2014 Loan Agreement on July 29, 2014 in St. Maarten, Defendant Samir Andrawos stated that, in addition to himself (Defendant Samir Andrawos), one Marlyn Leonora Adoptie born Rafini was an authorized signatory for Defendant Ourista N.V. 32. Said Marlyn Leonora Adoptie born Rafini in the presence of Defendant Samir Andrawos and before a Notary executed the guarantee of the March 7, 2014 Loan Agreement on behalf of Defendant Ourista N.V. 33. Thereafter, in or about December of 2014 when Charyn Powers CPA as representative of Plaintiff Suttongate Holdings Limited was again in St. Maarten, Defendant Virginia Iglesias undertook to execute the March 7, 2014 Loan Agreement. 34. Plaintiff Suttongate Holdings Limited on the one hand and Defendants Samir Andrawos and Virginia Iglesias on the other had, agreed to add to the March 7, 2014 Loan Agreement two additional borrowers, Defendants Immo Kashmire Development Inc. and Laconm Management N.V. 35. Accordingly, in December of 2014, the March 7, 2014 Loan Agreement was recast in the form of a Loan Agreement dated as of July 15, 2014 ( the July 15, 2014 Loan Agreement ) and executed by Plaintiff Suttongate Holdings Limited as Lender and Defendants Kashmire Investments, Ltd., Immo Kashmire Development Inc., Sedna Group Ltd., Kuiper Group Ltd., Laconm Management N.V., Samir Andrawos, and Virginia Iglesias as Borrowers. 3951925-1 7 7 of 36
36. In December of 2014 in St. Maarten Defendants Samir Andrawos and Virginia Iglesias executed the July 15, 2014 Loan Agreement on their own behalves. 37. Defendant Virginia Iglesias in the July 15, 2014 Loan Agreement undertook to guarantee the obligations of all Defendants. 38. At the time and place of the execution on their own behalves of the July 15, 2014 Loan Agreement, Defendants Samir Andrawos and Virginia Iglesias were accompanied by said Warren Stephen Defienne and by the father of said Warren Stephen Defienne, one Sylvain Defienne who was stated by Defendants Samir Andrawos and Virginia Iglesias to be the accountant for Defendants Samir Andrawos and Virginia Iglesias and all of their companies. 39. At the time and place of the execution on their own behalves of the July 15, 2014 Loan Agreement, Defendants Samir Andrawos and Virginia Iglesias stated that said Warren Stephen Defienne was, in addition to themselves, an authorized signatory for Defendants Kashmire Investments, Ltd., Sedna Group Ltd., and Kuiper Group Ltd. and that said Sylvain Defienne was, in addition to themselves, an authorized signatory fore Defendant Laconm Management N.V. 40. At the time and place of the execution by Defendants Samir Andrawos and Virginia Iglesias on their own behalves of the July 15, 2014 Loan Agreement, said Warren Stephen Defienne in the presence of Defendants Samir Andrawos and Virginia Iglesias executed the July 15, 2014 Loan Agreement on behalf of Defendants Kashmire Investments, Ltd., Immo Kashmire Development Inc., Sedna Group Ltd., and Kuiper Group Ltd. 3951925-1 8 8 of 36
41. At the time and place of the execution by Defendants Samir Andrawos and Virginia Iglesias on their own behalves of the July 15, 2014 Loan Agreement, said Sylvain Defienne in the presence of Defendants Samir Andrawos and Virginia Iglesias executed the July 15, 2014 Loan Agreement on behalf of Defendant Laconm Management N.V. 42. Both the March 7, 2014 Loan Agreement and the July 15, 2014 Loan Agreement provide, among other things, that: (a) Seven Million (US$7,000,000.00) United States Dollars of the loan proceeds were to be and in fact were used by Plaintiff Suttongate Holdings Limited to purchase the Obligations; (b) a further One Million (US$1,000,000.00) United States Dollars of the loan proceeds was to be used for construction as specified in the Loan Agreement; (c) interest at the rate of Eight (8%) Per Cent per annum or Fifty-Three Thousand and Three Hundred and Thirty-Four (US$53,334.00) United States Dollars was to be paid monthly until August 1, 2017 at which time the entire principal indebtedness of Eight Million (US$8,000,000.00) United States Dollars and all accrued interest was to be repaid; (d) tax returns for the six years prior to the date of the Loan Agreement, including payroll returns, and proof of payment of all taxes due under said returns, were to be provided to Plaintiff Suttongate Holdings Limited; (e) the real properties secured by the mortgages under the Obligations were to be kept insured for the benefit of Plaintiff Suttongate Holdings Limited and 3951925-1 9 9 of 36
policies were to be assigned to and delivered to Plaintiff Suttongate Holdings Limited; (f) additional mortgages to secure the Obligations were to be executed and delivered; (g) certified copies of Certificates of Occupancy for the real properties secured by the mortgages under the Obligations were to be provided to Plaintiff Suttongate Holdings Limited; (h) the Obligations remain in full force and effect until fully repaid with interest in accordance with the terms and conditions of the Obligations; (i) upon full performance by Defendants under the Loan Agreement the difference between the outstanding principal balance and all accrued interest under the Obligations and the outstanding principal balance and all accrued interest under the Loan Agreement would be forgiven; (j) the whole of the principal sum and interest shall become due at the election of the Lender, among other things, after default in the payment of any installment of principal or interest for fifteen (15) days, or the failure by Defendants to assign and deliver the aforesaid insurance policies after demand, or the failure by Defendants to maintain the real properties secured by the mortgages under the Obligations, or the failure to comply with or cure any violation on the real properties secured by the mortgages under the Obligations, or the failure by Defendants to keep, observe and perform any covenant or condition of the Loan Agreement; and 3951925-1 10 10 of 36
(k) the Loan Agreement is governed by the laws of the State of New York and all disputes under the Loan Agreement are to be resolved before a Court of competent jurisdiction in the County, City and State of New York with the prevailing party entitled to attorneys fees and expenses of litigation and prejudgment default interest at the rate of Fourteen (14%) Per Cent per annum compounded monthly. 43. Defendants Laconm Management N.V., Samir Andrawos, Virginia Iglesias, Kashmire Investments, Ltd., Immo Kashmire Development Inc., Sedna Group Ltd., and Kuiper Group Ltd. each and all directly contracted to perform material provisions of and to be primarily liable under the Loan Agreement. 44. On or about July 29, 2014 RBC Royal Bank N.V. as successor in interest to RBTT Bank, N.V. transferred, assigned, and delivered to Plaintiff Suttongate Holdings Limited instruments of debt and mortgages comprising the Obligations and the aforesaid guarantees of the Obligations. 45. The transfer, assignment, and delivery by RBC Royal Bank N.V. as successor in interest to RBTT Bank, N.V. to Plaintiff Suttongate Holdings Limited averted the aforesaid threatened foreclosures and suits on guarantees by RBC Royal Bank N.V. as successor in interest to RBTT Bank, N.V. 46. Plaintiff Suttongate Holdings Limited is and has been without interruption since July 29, 2014 the holder of the Obligations and the aforesaid guarantees of the Obligations. 47. Plaintiff Suttongate Holdings Limited has well and fully and faithfully performed each obligation on its part to be performed under the Loan Agreement. 3951925-1 11 11 of 36
FIRST CAUSE OF ACTION (BREACH OF CONTRACT AGAINST ALL DEFENDANTS) 48. Plaintiff Suttongate Holdings Limited repeats and realleges each and every allegation contained in 1 through and including 47, above, as through same were set forth here again at length. 49. Defendants Samir Andrawos, Virginia Iglesias, Laconm Management N.V., Kashmire Investments, Ltd., Immo Kashmire Development Inc., Sedna Group Ltd., Kuiper Group Ltd., and Ourista N.V. defaulted under the March 7, 2014 Loan Agreement and the July 15, 2014 Loan Agreement as follows: (a) not all of the aforesaid One Million (US$1,000,000.00) United States Dollars was used for construction but, rather, portions of the aforesaid One Million (US$1,000,000.00) United States Dollars were used for purposes other than for construction, and construction has ceased on the real properties secured by the mortgages under the Obligations; (b) copies of permits and construction permits for real properties secured by the mortgages under the Obligations have not been provided to Plaintiff Suttongate Holdings Limited; (c) eight (8) monthly payments of interest were paid past their respective due dates, one (1) monthly payment of interest was paid forty-four (44) days past its due date and not paid in full, and no payment since the late and incomplete May 1, 2015 payment has been made, as shown by the following - Due Date Date Received Days Late September 1, 2014 September 5, 2014 4 October 1, 2014 November 7, 2014 37 November 1, 2014 November 14, 2014 13 December 1, 2014 December 12, 2014 11 January 1, 2015 January 9, 2015 8 3951925-1 12 12 of 36
February 1, 2015 February 2, 2015 1 March 1, 2015 March 18, 2015 17 April 1, 2015 April 14, 2015 13 May 1, 2015 June 15, 2015 less $50.00 44 (d) said eight (8) payments are the only payments ever made under the Loan Agreement; (e) tax returns for the six years prior to the date of the Loan Agreement, including payroll returns, and proof of payment of all taxes due under said returns, have not been provided to Plaintiff Suttongate Holdings Limited; (f) the real properties secured by the mortgages under the Obligations have not been kept insured for the benefit of Plaintiff Suttongate Holdings Limited and policies have not been assigned to and delivered to Plaintiff Suttongate Holdings Limited; (g) additional mortgages to secure the Obligations have not been executed and delivered; and (h) certified copies of Certificates of Occupancy for the real properties secured by the mortgages under the Obligations have not been provided to Plaintiff Suttongate Holdings Limited. 50. Plaintiff Suttongate Holdings Limited on June 16, 2015 by email to Defendants Samir Andrawos and Virginia Iglesias notified Defendants Laconm Management N.V., Samir Andrawos, Virginia Iglesias, Kashmire Investments, Ltd., Immo Kashmire Development Inc., Sedna Group Ltd., and Kuiper Group Ltd. of their aforesaid breaches under the Loan Agreement and demanded that said breaches be cured. 51. Defendants Laconm Management N.V., Samir Andrawos, Virginia Iglesias, Kashmire Investments, Ltd., Immo Kashmire Development Inc., Sedna Group 3951925-1 13 13 of 36
Ltd., and Kuiper Group Ltd. failed to cure their aforesaid breaches under the Loan Agreement after all applicable grace periods. 52. Plaintiff Suttongate Holdings Limited elected to, and did by written notice on July 2, 2015 given to Defendants Laconm Management N.V., Samir Andrawos, Virginia Iglesias, Kashmire Investments, Ltd., Immo Kashmire Development Inc., Sedna Group Ltd., and Kuiper Group Ltd., declare the balance of the Loan Agreement and of the Obligations with interest thereon at the agreed rate as now due and payable, no part of which has been paid. 53. By reason of the foregoing, Plaintiff Suttongate Holdings Limited is entitled to: (a) a declaration that Plaintiff Suttongate Holdings Limited is entitled to all sums owed under the Obligations and the guarantees of the Obligations; and (b) recover from Defendants Laconm Management N.V., Samir Andrawos, Virginia Iglesias, Kashmire Investments, Ltd., Immo Kashmire Development Inc., Sedna Group Ltd., Kuiper Group Ltd., and Ourista N.V., jointly and severally, a sum totaling the full amount of the Obligations with all interest and default interest, late charges, and like charges thereon as specified therein through and including the date of judgment herein, in an amount to be determined at trial but in all events substantially in excess of Thirteen Million ($13,000,000.00) United States Dollars. SECOND CAUSE OF ACTION (BREACH OF CONTRACT AGAINST ALL DEFENDANTS) 3951925-1 14 14 of 36
54. Plaintiff Suttongate Holdings Limited repeats and realleges each and every allegation contained in 1 through and including 54, above, as through same were set forth here again at length. 55. By reason of the foregoing, and in addition to the sum(s) claimed in the First Cause of Action, Plaintiff Suttongate Holdings Limited is entitled to recover from Defendants Laconm Management N.V., Samir Andrawos, Virginia Iglesias, Kashmire Investments, Ltd., Immo Kashmire Development Inc., Sedna Group Ltd., Kuiper Group Ltd., and Ourista N.V., jointly and severally, the principal amount of One Million (US$1,000,000.00) United States Dollars loaned by Plaintiff Suttongate Holdings Limited in addition to the sums loaned on account of the Obligations under the March 7, 2014 Loan Agreement and the July 15, 2014 Loan Agreement with all interest and default interest, late charges, and like charges thereon as specified in the Loan Agreement through and including the date of judgment herein. THIRD CAUSE OF ACTION (SPECIFIC PERFORMANCE AGAINST ALL DEFENDANTS) 56. Plaintiff Suttongate Holdings Limited repeats and realleges each and every allegation contained in 1 through and including 55, above, as through same were set forth here again at length. 57. Plaintiff has fully performed under the March 7, 2014 Loan Agreement and the July 15, 2014 Loan Agreement to date. 58. Defendants defaulted under the March 7, 2014 Loan Agreement and the July 15, 2014 Loan Agreement by, among other things, failing to execute or deliver mortgages for the properties securing the loan; failing to provide copies of licenses, permits, and certificates of occupancy pertaining to the properties and required for the use, construction, 3951925-1 15 15 of 36
or occupancy thereof; failing to keep the properties securing the loan insured for the benefit of Plaintiff; and otherwise failing to perform their obligations relating to the properties and the security of Suttongate s loan through such properties. 59. Suttongate seeks specific performance of Defendants obligations under the Loan Agreements, including but not limited to the obligation to execute and deliver mortgages for the properties securing the loan; the obligation to deliver copies of licenses, permits, and certificates of occupancy pertaining to the properties and required for the use, construction, or occupancy thereof; the obligation to keep the properties securing the loan insured for the benefit of Plaintiff; and all other obligations relating to the properties and the security of Suttongate s loan through such properties. 60. Suttongate has notified Defendants of their breaches and demanded that such breaches be cured, but Defendants have failed to do so. 61. It is within Defendants power to perform under the Loan Agreements. 62. Plaintiff Suttongate Holdings Limited has no adequate remedy at law. 63. By reason of the foregoing, Plaintiff Suttongate Holdings Limited is entitled to specific performance of the March 7, 2014 Loan Agreement and the July 15, 2014 Loan Agreement, including but not limited to executing and delivering mortgages for the properties; delivering copies of licenses, permits, and certificates of occupancy pertaining to the properties and required for the use, construction, or occupancy thereof; keeping the properties securing the loan insured for the benefit of Plaintiff; and performance of all other obligations relating to the properties and the security of Suttongate s loan through such properties. FOURTH CAUSE OF ACTION (ENFORCEMENT OF GUARANTEES AGAINST ALL DEFENDANTS) 3951925-1 16 16 of 36
64. Plaintiff Suttongate Holdings Limited repeats and realleges each and every allegation contained in 1 through and including 63, above, as through same were set forth here again at length. 65. In the March 7, 2014 Loan Agreement, Defendants Kashmire Investments, Ltd., Sedna Group Ltd., Kuiper Group Ltd., and Samir Andrawos undertook to have Defendants Virginia Iglesias, Samir Andrawos, Kashmire Investments, Ltd., Sedna Group Ltd., Kuiper Group Ltd., and Ourista N.V. guarantee the obligations under the March 7, 2014 Loan Agreement. 66. In the July 15, 2014 Loan Agreement, Defendants Kashmire Investments, Ltd., Sedna Group Ltd., Kuiper Group Ltd., Samir Andrawos, Virginia Iglesias, Laconm Management Group N.V., and Immo Kashmire Development Inc. undertook to personally guarantee the obligations under the March 7, 2014 Loan Agreement and the July 15, 2014 Loan Agreement. 67. Defendants Samir Andrawos, Immo Kashmire Development Inc., Sedna Group Ltd., Kuiper Group Ltd., and Ourista N.V. executed and delivered to Plaintiff Suttongate Holdings Limited additional guarantees executed and notarized on July 29, 2014 ( the Guarantees ) in which they represented, agreed and undertook, among other things, that: (a) the extent of their liability is not limited to Eight Million (US$8,000,000.00) United States Dollars plus interest and all charges and costs; (b) each of them has a financial interest in and benefit directly from the making of the loan by Lender to Borrower; 3951925-1 17 17 of 36
(c) each of them unconditionally guarantees the Lender the prompt and unconditional payment of all claims of every nature and the performance of all obligations of every nature which are owed by Borrower to Lender pursuant to loan documents and any subsequent amendments, extensions or consolidations thereof; (d) (e) (f) the amount of the Guarantees is unlimited; each of them waives presentment, demand, notice or protest; their obligations are primary, absolute, independent, ir r evocable and unconditional; (g) Lender may proceed directly against them and is not first required to proceed against any borrower or any other person or entity or against any real estate pursuant to any mortgage or against any other security for any Borrower's obligations to Lender; (h) the obligations of each of them are unconditional and irrevocable, irrespective of either: (a) the genuineness, validity or enforceability of any of the Loan Documents; (b) any limitation of liability of the Borrower contained in any of the loan documents; (c) the existence of any security given to secure the said bond; (d) impossibility or the illegality of performance on the part of Borrower of its obligations under the loan documents; (e) the sale or other transfer of all or any portion of mortgaged real estate; (f) any defense that may arise by reason of the incapacity or lack of authority of Borrower or Guarantor or the failure of Lender to file or enforce a claim against the estate of Borrower or any other guarantor in any bankruptcy or other proceeding; or (g) any other circumstances, occurrence or 3951925-1 18 18 of 36
condition, whether similar or dissimilar to any of the foregoing, which might otherwise constitute a legal or equitable defense, discharge or release of a Guarantor or surety; (i) each of them represents and warrants that: (a) he/it/she has either examined the loan documents or has had an opportunity to examine the loan documents and has waived the right to examine them; (b) he/it/she has the full power, authority and legal right to enter into, execute and deliver the Guarantees; and (c) the Guarantees are valid and binding legal obligations of each of them and is fully enforceable; (j) all rights and remedies of Lender under this Agreement, any of the loan documents, or by law are separate and cumulative, and the exercise of one shall not limit or prejudice the exercise of any other such rights or remedies; (k) if Lender employs counsel to enforce the Guarantees by suit or otherwise, each of them will reimburse Lender for all expenses incurred in connection therewith (including, without limitation, reasonable attorneys' fees), whether or not suit is actually instituted; (l) this Guarantee does not replace any other Guarantee but is in addition to any other Guarantee given by Guarantor on this and any related matter; and (m) the Guarantees are governed by the law of the state of New York and any claim or dispute relating to the Guarantees shall exclusively be brought to and adjudicated in any court of competent jurisdiction in the State of New York, City of New York, County of New York. 3951925-1 19 19 of 36
68. By reason of the foregoing, Plaintiff Suttongate Holdings Limited is entitled to recover from Defendants Samir Andrawos, Virginia Iglesias, Immo Kashmire Development Inc., Sedna Group Ltd., Kuiper Group Ltd., and Ourista N.V., jointly and severally: (a) a sum totaling the full amount of the Obligations with all interest and default interest, late charges, and like charges thereon as specified therein through and including the date of judgment herein, in an amount to be determined at trial but in all events substantially in excess of Eleven Million ($11,000,000.00) United States Dollars; (b) additionally, the principal amount of One Million (US$1,000,000.00) United States Dollars loaned by Plaintiff Suttongate Holdings Limited in addition to the sums loaned on account of the Obligations under the March 7, 2014 Loan Agreement and the July 15, 2014 Loan Agreement with all interest and default interest, late charges, and like charges thereon as specified in the Loan Agreement through and including the date of judgment herein; and (c) the legal fees and expenses of Plaintiff Suttongate Holdings Limited in enforcing the Guarantees. FIFTH CAUSE OF ACTION (FRAUD AGAINST ALL DEFENDANTS) 69. Plaintiff Suttongate Holdings Limited repeats and realleges each and every allegation contained in 1 through and including 68, above, as through same were set forth here again at length. 70. Commencing in or about December of 2013 and continuing until and including the times of the making of the March 7, 2014 Loan Agreement and the July 15, 3951925-1 20 20 of 36
2014 Loan Agreement, Defendants Samir Andrawos and Virginia Iglesias represented to Plaintiff Suttongate Holdings Limited, represented by its attorney Arie E. David, Esq. and its financial advisor, Charyn Powers CPA, that: (a) Defendants Samir Andrawos and Virginia Iglesias were the sole owners of and wholly controlled Defendants Laconm Management N.V., Kashmire Investments, Ltd., Immo Kashmire Development Inc., Sedna Group Ltd., Kuiper Group Ltd., and Ourista N.V.; (b) Defendants Samir Andrawos and Virginia Iglesias had the financial wherewithal to meet all obligations under the Loan Agreement and Guarantees and cited their ownership of all of the properties and businesses specified hereinabove; and (c) each of Defendants Samir Andrawos and Virginia Iglesias and any persons designated by Defendants Samir Andrawos and Virginia Iglesias to execute the March 7, 2014 Loan Agreement and the July 15, 2014 Loan Agreement and the Guarantees were authorized signatories on behalf of Defendants Laconm Management N.V., Kashmire Investments, Ltd., Immo Kashmire Development Inc., Sedna Group Ltd., Kuiper Group Ltd., and Ourista N.V. 71. The aforesaid representations were made, among others, at the following times and places by Defendants Samir Andrawos and Virginia Iglesias to Charyn Powers CPA and Arie E. David, Esq.: 3951925-1 21 21 of 36
(a) on December 16, 2013 through and in St. Maarten by both Defendants Samir Andrawos and Virginia Iglesias to Charyn Powers CPA and Arie E. David, Esq.; (b) on December 17, 2013 in St. Maarten by both Defendants Samir Andrawos and Virginia Iglesias to Charyn Powers CPA and Arie E. David, Esq.; (c) on December 18, 2013 in St. Maarten by both Defendants Samir Andrawos and Virginia Iglesias to Charyn Powers CPA and Arie E. David, Esq.; (d) on December 19, 2013 in St. Maarten by both Defendants Samir Andrawos and Virginia Iglesias to Charyn Powers CPA and Arie E. David, Esq.; (e) on December 20, 2013 in St. Maarten by both Defendants Samir Andrawos and Virginia Iglesias to Charyn Powers CPA and Arie E. David, Esq.; (f) on January 6, 2014 in Trinidad by both Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq.; (g) on January 7, 2014 in Trinidad at the offices of RBC Royal Bank N.V. by both Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq.; (h) on January 8, 2014 in St. Maarten by both Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq.; (i) on March 3, 2014 in St. Maarten by both Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq.; (j) on March 4, 2014 in St. Maarten by both Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq.; 3951925-1 22 22 of 36
(k) on March 5, 2014 in St. Maarten by both Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq.; (l) on June 25, 2014 on Defendant Samir Andrawos and Virginia Iglesias Balmoral Island in the Bahamas by both Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq. and Charyn Powers CPA; (m) on June 26, 2014 on Defendant Samir Andrawos and Virginia Iglesias Balmoral Island in the Bahamas by both Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq. and Charyn Powers CPA; (n) on June 27, 2014 on Defendant Samir Andrawos and Virginia Iglesias Balmoral Island in the Bahamas by both Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq. and Charyn Powers CPA; (o) on June 28, 2014 on Defendant Samir Andrawos and Virginia Iglesias Balmoral Island in the Bahamas by both Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq. and Charyn Powers CPA; (p) on July 27, 2014 in St. Maarten by Defendant Samir Andrawos to Arie E. David, Esq. and Charyn Powers CPA; (q) on July 28, 2014 in St. Maarten by Defendant Samir Andrawos to Arie E. David, Esq. and Charyn Powers CPA; (r) on July 29, 2014 in St. Maarten by Defendant Samir Andrawos to Arie E. David, Esq. and Charyn Powers CPA; (s) on July 30, 2014 in St. Maarten by Defendant Samir Andrawos to Arie E. David, Esq. and Charyn Powers CPA; 3951925-1 23 23 of 36
(t) on August 26, 2014 in St. Maarten by Defendant Samir Andrawos to Arie E. David, Esq.; (u) on September 11, 2014 in St. Maarten by Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq. and Charyn Powers CPA; (v) on September 12, 2014 in St. Maarten by Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq. and Charyn Powers CPA; (w) on September 13, 2014 in St. Maarten by Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq. and Charyn Powers CPA; (x) on September 14, 2014 in St. Maarten by Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq. and Charyn Powers CPA; (y) on October 8, 2014 in St. Maarten by Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq. and Charyn Powers CPA; (z) on October 9, 2014 in St. Maarten by Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq. and Charyn Powers CPA; (aa) on October 10, 2014 in St. Maarten by Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq. and Charyn Powers CPA; (bb) on October 11, 2014 in St. Maarten by Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq. and Charyn Powers CPA; (cc) on November 11, 2014 in St. Maarten by Defendant Samir Andrawos to Arie E. David, Esq.; (dd) on December 1, 2014 in St. Maarten by Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq. and Charyn Powers CPA; 3951925-1 24 24 of 36
(ee) on December 2, 2014 in St. Maarten by Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq. and Charyn Powers CPA; (ff) on December 3, 2014 in St. Maarten by Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq. and Charyn Powers CPA; (gg) on December 4, 2014 in St. Maarten by Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq. and Charyn Powers CPA; (hh) on December 5, 2014 in St. Maarten by Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq. and Charyn Powers CPA; (ii) on December 6, 2014 in St. Maarten by Defendants Samir Andrawos and Virginia Iglesias to Arie E. David, Esq. and Charyn Powers CPA; and (jj) on dates thereafter. 72. Defendants Samir Andrawos and Virginia Iglesias made the above representations until and after the making of the March 7, 2014 Loan Agreement and the July 15, 2014 Loan Agreement. 73. Except for the aforementioned two (2) individuals who signed on behalf of the corporate Defendants as aforesaid, Defendants Samir Andrawos and Virginia Iglesias were and are the only individuals who ever dealt on behalf of all corporate Defendants with Plaintiff Suttongate Holdings Limited concerning the March 7, 2014 Loan Agreement and the July 15, 2014 Loan Agreement and the Guarantees, both before and after their making. 74. In addition to being the sole individuals who ever negotiated with Plaintiff Suttongate Holdings Limited concerning the Loan Agreement, Defendants Samir 3951925-1 25 25 of 36
Andrawos and Virginia Iglesias, upon information and at all times herein at issue, were the sole individuals who negotiated with RBTT Bank, N.V., RBC Royal Bank N.V., vendors, officials of the government of St. Maarten, lawyers, engineers, architects, accountants, and anyone and everyone else concerning the corporate Defendants. 75. Upon information and belief, Defendants Samir Andrawos and Virginia Iglesias represented to RBTT Bank, N.V. and to RBC Royal Bank N.V. that Defendants Samir Andrawos and Virginia Iglesias were the sole owners of and wholly controlled Defendants Laconm Management N.V., Kashmire Investments, Ltd., Immo Kashmire Development Inc., Sedna Group Ltd., Kuiper Group Ltd., and Ourista N.V. to induce RBTT Bank, N.V. to loan monies under the Obligations and to accept guarantees of the Obligations. 76. Plaintiff Suttongate Holdings Limited believed to be true and relied upon the representations of Defendants Samir Andrawos and Virginia Iglesias that: (a) Defendants Samir Andrawos and Virginia Iglesias were the sole owners of and wholly controlled Defendants Laconm Management N.V., Kashmire Investments, Ltd., Immo Kashmire Development Inc., Sedna Group Ltd., Kuiper Group Ltd., and Ourista N.V.; (b) Defendants Samir Andrawos and Virginia Iglesias had full power and authority at all times to execute documents and instruments on behalf of all corporate Defendants including, without limitation, the Obligations and the March 7, 2014 Loan Agreement; and (c) the persons designated by Defendants Samir Andrawos and Virginia Iglesias to execute the July 15, 2014 Loan Agreement and the 3951925-1 26 26 of 36
Guarantees were authorized signatories of and with full power and authority to bind Defendants Laconm Management N.V., Kashmire Investments, Ltd., Immo Kashmire Development Inc., Sedna Group Ltd., Kuiper Group Ltd., and Ourista N.V. 77. In reliance upon the aforesaid representations, Plaintiff Suttongate Holdings Limited entered into the March 7, 2014 Loan Agreement and the July 15, 2014 Loan Agreement, accepted the Guarantees, purchased the Obligations and the guarantees of the Obligations, and loaned monies as aforesaid. 78. But for the aforesaid representations, Plaintiff Suttongate Holdings Limited would not have entered into the March 7, 2014 Loan Agreement and the July 15, 2014 Loan Agreement, would not have accepted the Guarantees, would not have purchased the Obligations and the guarantees of the Obligations, and would not have loaned monies as aforesaid. 79. In the face of the aforesaid defaults under the March 7, 2014 Loan Agreement and the July 15, 2014 Loan Agreement and the Guarantees, Defendant Samir Andrawos stated: (a) (b) sue us ; that Defendants Samir Andrawos and Virginia Iglesias had no power to enter into any agreements on behalf of any corporate Defendant; (c) that Defendants Samir Andrawos and Virginia Iglesias do not own or control any of the corporate Defendants; (d) that the individuals designated by Defendants Samir Andrawos and Virginia Iglesias to execute the March 7, 2014 Loan Agreement and the July 15, 3951925-1 27 27 of 36
2014 Loan Agreement and the Guarantees were not authorized signatories for any corporate Defendants and that the corporate Defendants did not sign anything; (e) that Plaintiff Suttongate Holdings Limited has no valid agreements or guarantees; (f) and that, as protection against any attempts at enforcement by Plaintiff Suttongate Holdings Limited of any agreements, bankruptcy proceedings would be instituted. 80. The aforesaid representations and actions by Defendants Samir Andrawos and Virginia Iglesias were intended to induce and in fact did induce Plaintiff Suttongate Holdings Limited to enter into the March 7, 2014 Loan Agreement and the July 15, 2014 Loan Agreement, to accept the aforesaid Bonds and the Guarantees, to purchase the Obligations and the guarantees of the Obligations, and to loan monies as aforesaid, in order to: (a) prevent foreclosure of and suits under the Obligations and enforcement of the guarantees of the Obligations by RBC Royal Bank N.V. as successor in interest to RBTT Bank, N.V. by having Plaintiff Suttongate Holdings Limited purchase the Obligations and guarantees of the Obligations and to forebear from foreclosing and suing thereon; and (b) to obtain the discount of the difference between the outstanding principal balance and all accrued interest under the Obligations and the outstanding principal balance and all accrued interest under the Loan Agreement, which in any event was to be had only upon full performance by Defendants Laconm Management N.V., Samir Andrawos, Virginia Iglesias, Kashmire Investments, 3951925-1 28 28 of 36
Ltd., Immo Kashmire Development Inc., Sedna Group Ltd., and Kuiper Group Ltd. under the Loan Agreement, which full performance has not been had. 81. It would serve as a fraud to permit all Defendants to deny that Defendants Samir Andrawos and Virginia Iglesias own and control all corporate Defendants, to further deny that Defendants Samir Andrawos and Virginia Iglesias and other persons stated by Defendants Samir Andrawos and Virginia Iglesias to be authorized to execute the March 7, 2014 Loan Agreement and the July 15, 2014 Loan Agreement and the Guarantees were in fact so authorized, and to also deny the validity and enforceability of the Obligations and the guarantees of the Obligations. 82. By reason of the foregoing, Plaintiff Suttongate Holdings Limited is entitled to recover as compensatory damages from all Defendants a sum totaling the full amount of Plaintiff Suttongate Holdings Limited s out of pocket expenses including, without limitation, monies loaned, and other outlays as a result of entering into, relating to, or pursuing the aforesaid agreements with Defendants in a sum to be determined at trial and punitive damages in such sum as shall seem appropriate to the trier of fact. SIXTH CAUSE OF ACTION (DECLARATION OF ALTER EGO AGAINST ALL DEFENDANTS) 83. Plaintiff Suttongate Holdings Limited repeats and realleges each and every allegation contained in 1 through and including 82, above, as through same were set forth here again at length. 84. Among other things, Defendants Samir Andrawos and Virginia Iglesias Samir and Vicky and all of the corporate Defendants: (a) at all times failed and fail to observe corporate formalities in that: (i) they failed and fail to hold any, let alone regular, meetings; (ii) they failed and 3951925-1 29 29 of 36
fail to keep minutes; and (iii) they failed and fail to maintain any, let alone separate, books of account, records, and bank accounts; (b) they have insufficient capital in that: (i) Defendant Laconm Management N.V. has no capital or assets whatsoever; (ii) Defendants Kashmire Investments, Ltd., Kashmire Investments, Ltd., Immo Kashmire Development Inc., Sedna Group Ltd., and Kuiper Group Ltd. are the record owners of real estate but have no capital to operate or maintain same and the monies to purchase those properties which those Defendants own did not come from those companies; (iii) all payments made for the benefit of Defendants Kashmire Investments, Ltd., Kashmire Investments, Ltd., Immo Kashmire Development Inc., Sedna Group Ltd., and Kuiper Group Ltd. are made by companies owned and operated by Defendants Samir Andrawos and Vicky Iglesias; (iv) Defendants Samir Andrawos and Vicky Iglesias and companies operated by them received loan monies from RBTT Bank, N.V. and used said monies to build on properties owned by others; (v) Defendant Laconm Management N.V. borrows monies and diverts same to whatever enterprise of Defendants Samir Andrawos and Vicky Iglesias is at that time needful of funds: (c) they co-mingle funds and other property in that: (i) Defendant Laconm Management N.V. is a nominal borrower of RBC Royal Bank N.V. as successor in interest to RBTT Bank, N.V. and of Plaintiff Suttongate Holdings Limited but all funds from said loans have been channeled to properties owned by Defendants Kashmire Investments, Ltd., Kashmire Investments, Ltd., Immo Kashmire Development Inc., Sedna Group Ltd., and Kuiper Group Ltd. and 3951925-1 30 30 of 36
others, all under the control of Defendants Samir Andrawos and Vicky Iglesias; (ii) monies from other entities controlled by Defendants Samir Andrawos and Virginia Iglesias are commingled with funds of the corporate Defendants herein; (d) they are under common ownership in that: (i) Defendants Samir Andrawos and Virginia Iglesias are the owners and controlling persons of Defendants Laconm Management N.V., Kashmire Investments, Ltd., Immo Kashmire Development Inc., Sedna Group Ltd., Kuiper Group Ltd., and Ourista N.V. (e) they have common officers, directors and employees in that: (i) a service company called ISG Management, Inc. which is a tax-haven service company serves as a nominal Director and Secretary of the corporate Defendants although said nominal Director and Secretary has never dealt with Plaintiff Suttongate Holdings Limited or, upon information and belief, with any bank, architect, engineer, broker, or government official concerning the assets and activities of said corporate Defendants; (ii) all dealings by the corporate Defendants with Plaintiff Suttongate Holdings Limited and with all banks, architects, engineers, brokers, or government official concerning the assets and activities of said corporate Defendants were solely through Defendants Samir Andrawos and Virginia Iglesias; (iii) Defendants Laconm Management N.V., Kashmire Investments, Ltd., Immo Kashmire Development Inc., Sedna Group Ltd., and Kuiper Group Ltd. have no offices, no officers other than the aforesaid tax-haven service company, and no employees; 3951925-1 31 31 of 36
(f) the corporate Defendants are interchangeable and indistinguishable as all of the corporate Defendants are operated by Defendants Samir Andrawos and Virginia Iglesias at the office of Defendants Samir Andrawos and Virginia Iglesias at Welgelegen Road 23, Cayhill, St. Maarten; (g) the corporate Defendants incorporated in Nevis have no offices or employees in Nevis or elsewhere but, rather, all use the address of the aforesaid tax haven corporate services company or the office address of the aforementioned Sylvain Defienne in St. Maarten who acts as the accountant for all Defendants; (h) all substantive inquires to the office and telephone number of the corporate Defendants are referred to Defendants Samir Andrawos and Virginia Iglesias; (i) no corporate Defendant has any discretion in conducting its affairs as all business conducted by all corporate Defendants, whether with Plaintiff Suttongate Holdings Limited or with others is conducted always and only by Defendants Samir Andrawos and Virginia Iglesias such that, not only does no corporate Defendant have any discretion in conducting its affairs, but except for Defendants Samir Andrawos and Virginia Iglesias there is no-one to exercise discretion; (j) as shown above, the corporate Defendants failed and fail to conduct business at arm s length between affiliates; (k) no corporate Defendant is an independent profit center in that, as shown above, no corporate Defendant pays any of its own expenses; 3951925-1 32 32 of 36