Avenue CLO Fund, Ltd. et al v. Bank of America, N.A., et al

Filing 79

CERTIFIED REMAND ORDER. MDL No. 2106. Signed by MDL (FLSD) on 1/14/14. (Attachments: # 1 Transmittal from FLSD, # 2 1 09-md-02106 Designation of Record, # 3 1 09-md-02106 Dkt. Sheet - flsd, # 4 09-MD-2106 DE 1, 2, 4-30, # 5 0 9-MD-2106 DE 32-36, # 6 09-MD-2106 DE 37 part 1 of 3, # 7 09-MD-2106 DE 37 part 2 of 3, # 8 09-MD-2106 DE 37 part 3 of 3, # 9 09-MD-2106 DE 38, 39, 41-47, 49, 50, # 10 09-MD-2106 DE 51, # 11 09-MD-2106 DE 52-59, 61-65, 68, 70, 72-76, # (1 2) 09-MD-2106 DE 78-84, 86-91, # 13 09-MD-2106 DE 93, 95-103, 106-108, # 14 09-MD-2106 DE 110-115, # 15 09-MD-2106 DE 116-125, 127-129, 132-134, # 16 09-MD-2106 DE 136-140, 142-158, # 17 09-MD-2106 DE 160-162, 164-167, 170-175, 177-190, # ( 18) 09-MD-2106 DE 191-199, 201-215, # 19 09-MD-2106 DE 217-229, 232-247, # 20 09-MD-2106 DE 248, # 21 09-MD-2106 DE 249 part 1 of 2, # 22 09-MD-2106 DE 249 part 2 of 2, # 23 09-MD-2106 DE 251-253, 262-266, 284-287, 300, 301, 310, 319, 326-3 31, # 24 09-MD-2106 DE 335, 336, 338-344, 346-349, # 25 09-MD-2106 DE 350, # 26 09-MD-2106 DE 351-358, # 27 09-MD-2106 DE 360-366, 368-374, # 28 09-MD-2106 DE 375 part 1 of 3, # 29 09-MD-2106 DE 375 part 2 of 3, # 30 09-MD-2106 DE 375 p art 3 of 3, # 31 09-MD-2106 DE 376 part 1, # 32 09-MD-2106 DE 376 part 2, # 33 09-MD-2106 DE 376 part 3, # 34 09-MD-2106 DE 376 part 4, # 35 09-MD-2106 DE 376 part 5, # 36 09-MD-2106 DE 376 part 6, # 37 09-MD-2106 DE 376 part 7, # 38 09-MD-2106 DE 376 part 8, # 39 09-MD-2106 DE 376 part 9, # 40 09-MD-2106 DE 377 part 1, # 41 09-MD-2106 DE 377 part 2, # 42 09-MD-2106 DE 378, # 43 09-MD-2106 DE 379, # 44 09-MD-2106 DE 380, # 45 09-MD-2106 DE 381 part 1, # 46 09-MD-2 106 DE 381 part 2, # 47 09-MD-2106 DE 382 part 1, # 48 09-MD-2106 DE 382 part 2, # 49 09-MD-2106 DE 382 part 3, # 50 09-MD-2106 DE 382 part 4, # 51 09-MD-2106 DE 383 part 1, # 52 09-MD-2106 DE 383 part 2, # 53 09-MD-2106 DE 383 part 3, # 54 09-MD-2106 DE 383 part 4, # 55 09-MD-2106 DE 383 part 5, # 56 09-MD-2106 DE 383 part 6, # 57 09-MD-2106 DE 383 part 7, # 58 09-MD-2106 DE 383 part 8, # 59 09-MD-2106 DE 383 part 9, # 60 09-MD-2106 DE 383 part 10, # 61 09-MD-2106 DE 383 part 11, # 62 09-MD-2106 DE 384 part 1, # 63 09-MD-2106 DE 384 part 2, # 64 09-MD-2106 DE 384 part 3, # 65 09-MD-2106 DE 384 part 4, # 66 09-MD-2106 DE 384 part 5, # 67 09-MD-2106 DE 384 part 6, # 68 09-MD-2106 DE 384 part 7, # ( 69) 09-MD-2106 DE 384 part 8, # 70 09-MD-2106 DE 384 part 9, # 71 09-MD-2106 DE 384 part 10, # 72 09-MD-2106 DE 384 part 11, # 73 09-MD-2106 DE 385 part 1, # 74 09-MD-2106 DE 385 part 2, # 75 09-MD-2106 DE 386 part 1, # 76 09-MD-2106 DE 386 part 2, # 77 09-MD-2106 DE 386 part 3, # 78 09-MD-2106 DE 386 part 4, # 79 09-MD-2106 DE 386 part 5, # 80 09-MD-2106 DE 386 part 6, # 81 09-MD-2106 DE 386 part 7, # 82 09-MD-2106 DE 387 part 1, # 83 09-MD-2106 DE 387 part 2, # 84 09-MD-2106 DE 388, # 85 09-MD-2106 DE 389 part 1, # 86 09-MD-2106 DE 389 part 2, # 87 09-MD-2106 DE 389 part 3, # 88 09-MD-2106 DE 389 part 4, # 89 09-MD-2106 DE 390, 392-394, # 90 1 10-cv-20236 Dkt. Sheet - flsd, # 91 10cv20236 DE #1-27, 29-31, 45, 53, 60-65, 67-70, 73, # 92 1 09-cv-23835 Dkt. Sheet - flsd, # 93 09cv23835 DE 112, 115-126, # 94 09cv23835 DE 130, 134, 135 and 145)(Copies have been distributed pursuant to the NEF - MMM)

Case 1:09-md-02106-ASG Document 380 Entered on FLSD Docket 12/05/2013 Page 1 of 12

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Miami Division
CASE NO.: 09-2106-MD-GOLD/GOODMAN
IN RE:
FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL NO. 2106
This document relates to all actions.
______________________________________/
NOTICE OF FILING ON THE PUBLIC RECORD DEPOSITION EXHIBITS
PREVIOUSLY FILED UNDER SEAL RELATED TO SUMMARY JUDGMENT
FILINGS (PART 1: DEPOSITION EXHIBITS 1-182)
Avenue CLO Fund, et al. (“Plaintiffs”) and Defendant Bank of America N.A. (“BANA”)
hereby give notice that they are jointly filing on the public record certain documents, previously
filed under seal, related to Plaintiffs’ Motion for Partial Summary Judgment and BANA’s
Motion for Summary Judgment in the above-titled case.
On October 4, 2013, this Court issued an Order Upon Mandate [D.E. #368] requiring the
parties to specify, by district court docket entry number, which documents previously filed under
seal could be unsealed.1 However, because the parties could not view the sealed entries on the
electronic CM/ECF docket in this case—and therefore, could not determine which district court
docket entry numbers corresponded to each sealed document—the Court later issued a Sua
Sponte Order Regarding Mandate and Documents Filed Under Seal [D.E. #370] requiring the

1

The parties previously filed with the Eleventh Circuit a letter dated December 14, 2012,
identifying documents and testimony that should remain sealed. Since that time, the parties have
determined that certain evidence included on that list no longer needs to remain sealed and, upon
further review of the record, the parties have identified other evidence that should remain sealed
which was inadvertently omitted from the letter.
1

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Case 1:09-md-02106-ASG Document 380 Entered on FLSD Docket 12/05/2013 Page 2 of 12

parties to make a recommendation by November 1, 2013 regarding how they proposed to comply
with this Court’s October 4, 2013 Order Upon Mandate.
On November 1, 2013, the parties filed a Joint Notice Regarding Proposal for Partially
Unsealing Summary Judgment Filings [D.E. #373]. The parties proposed submitting to the
Court redacted copies of all memoranda of law and statements of material facts, in addition to
one copy of each exhibit and a single compilation of each witness’s deposition transcript
excerpts cited in all memoranda of law. On November 5, 2013, this Court entered an Order
Approving Joint Proposal [D.E. #374], approving the parties’ joint proposal and ordering the
parties to file via CM/ECF redacted copies of the summary judgment memoranda of law,
statements of facts, and exhibits, on or before December 6, 2013.
The parties previously filed under seal the deposition exhibits listed below, which were
cited in their respective summary judgment memoranda of law and statements of fact filed on
August 5, 2011, September 9, 2011, and September 27, 2011. Exhibits cited by Plaintiffs were
attached to appendices of exhibits filed in support of their briefs; exhibits cited by BANA were
attached to declarations by Daniel Cantor filed in support of its briefs. In compliance with this
Court’s Order Approving Joint Proposal, the parties now file the following deposition exhibits on
the public record with the exception of those that remain under seal either in full or in part (as
indicated below):2
DEPOSITION EXHIBITS (PART 1: Exhibits 1-182)
Deposition Exhibit
Cantor Exhibit
Filing Status
Dep. Ex. 1
Publicly filed (attached)
Dep. Ex. 3
Publicly filed (attached)
2

Additional documents previously filed under seal related to Plaintiffs’ Motion for Partial
Summary Judgment and BANA’s Motion for Summary Judgment, including the respective
memoranda of law and statements of facts, will be filed under separate cover.
2
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Case 1:09-md-02106-ASG Document 380 Entered on FLSD Docket 12/05/2013 Page 3 of 12

DEPOSITION EXHIBITS (PART 1: Exhibits 1-182)
Deposition Exhibit
Cantor Exhibit
Dep. Ex. 4
Cantor Decl. Ex. 34,
Cantor Opp. Decl. Ex. 41
Dep. Ex. 5
Cantor Opp. Decl. Ex. 42
Dep. Ex. 8
Cantor Decl. Ex. 35,
Cantor Opp. Decl. Ex. 43
Dep. Ex. 9
Cantor Decl. Ex. 85,
Cantor Opp. Decl. Ex. 49
Dep. Ex. 11
Cantor Reply Decl. Ex. 20
Dep. Ex. 14
Cantor Decl. Ex. 40,
Cantor Opp. Decl. Ex. 52
Dep. Ex. 16
Dep. Ex. 18
Cantor Opp. Decl. Ex. 67
Dep. Ex. 19
Cantor Opp. Decl. Ex. 89
Dep. Ex. 21
Dep. Ex. 22
Cantor Opp. Decl. Ex. 73
Dep. Ex. 23
Cantor Opp. Decl. Ex. 74
Dep. Ex. 24
Cantor Decl. Ex. 55,
Cantor Opp. Decl. Ex. 75
Dep. Ex. 26
Dep. Ex. 28
Cantor Opp. Decl. Ex. 78
Dep. Ex. 29
Dep. Ex. 30
Cantor Decl. Ex. 58,
Cantor Opp. Decl. Ex. 79
Dep. Ex. 31
Dep. Ex. 32
Dep. Ex. 34
Dep. Ex. 35
Cantor Opp. Decl. Ex. 83
Dep. Ex. 36
Cantor Decl. Ex. 60,
Cantor Opp. Decl. Ex. 80
Dep. Ex. 37
Dep. Ex. 38
Dep. Ex. 40
Dep. Ex. 41
Cantor Opp. Decl. Ex. 87
Dep. Ex. 42
Cantor Decl. Ex. 78,
Cantor Opp. Decl. Ex. 86
Dep. Ex. 43
Dep. Ex. 44
3
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Filing Status
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Filed Under Seal
Publicly filed (attached)
Filed Under Seal
Publicly filed (attached)
Publicly filed (attached)
Filed Under Seal
Publicly filed (attached)
Filed Under Seal
Publicly filed (attached)
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Publicly filed (attached)
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Publicly filed (attached)
Filed Under Seal
Publicly filed (attached)

Case 1:09-md-02106-ASG Document 380 Entered on FLSD Docket 12/05/2013 Page 4 of 12

DEPOSITION EXHIBITS (PART 1: Exhibits 1-182)
Deposition Exhibit
Cantor Exhibit
Dep. Ex. 45
Dep. Ex. 46
Cantor Opp. Decl. Ex. 69
Dep. Ex. 47
Dep. Ex. 48
Dep. Ex. 50
Dep. Ex. 53
Dep. Ex. 54
Dep. Ex. 56
Dep. Ex. 57
Dep. Ex. 58
Dep. Ex. 59
Dep. Ex. 61
Dep. Ex. 62
Dep. Ex. 63
Dep. Ex. 67
Cantor Opp. Decl. Ex. 44
Dep. Ex. 68
Dep. Ex. 69
Dep. Ex. 72
Cantor Decl. Ex. 1,
Cantor Opp. Decl. Ex. 1
Dep. Ex. 73
Dep. Ex. 75
Cantor Decl. Ex. 39,
Cantor Opp. Decl. Ex. 51
Dep. Ex. 76
Cantor Decl. Ex. 42,
Cantor Opp. Decl. Ex. 54
Dep. Ex. 77
Cantor Decl. Ex. 47,
Cantor Opp. Decl. Ex. 59
Dep. Ex. 78
Dep. Ex. 79
Dep. Ex. 80
Cantor Opp. Decl. Ex. 62,
Cantor Reply Decl. Ex. 22
Dep. Ex. 81
Cantor Opp. Decl. Ex. 58,
Cantor Reply Decl. Ex. 21
Dep. Ex. 91
Cantor Opp. Decl. Ex. 93
Dep. Ex. 92
Cantor Opp. Decl. Ex. 48
Dep. Ex. 97
Cantor Decl. Ex. 74,
Cantor Opp. Decl. Ex. 85
4
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Filing Status
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)

Case 1:09-md-02106-ASG Document 380 Entered on FLSD Docket 12/05/2013 Page 5 of 12

DEPOSITION EXHIBITS (PART 1: Exhibits 1-182)
Deposition Exhibit
Cantor Exhibit
Dep. Ex. 104
Cantor Decl. Ex. 76
Dep. Ex. 115
Dep. Ex. 126
Cantor Opp. Decl. Ex. 36
Dep. Ex. 127
Cantor Opp. Decl. Ex. 37
Dep. Ex. 128
Cantor Opp. Decl. Ex. 38
Dep. Ex. 129
Cantor Opp. Decl. Ex. 39
Dep. Ex. 137
Cantor Opp. Decl. Ex. 35
Dep. Ex. 151
Cantor Reply Decl. Ex. 37
Dep. Ex. 154
Cantor Opp. Decl. Ex. 92
Dep. Ex. 158
Cantor Opp. Decl. Ex. 68,
Cantor Reply Decl. Ex. 23
Dep. Ex. 160
Cantor Opp. Decl. Ex. 71,
Cantor Reply Decl. Ex. 28
Dep. Ex. 175
Cantor Reply Decl. Ex. 38
Dep. Ex. 182
Cantor Opp. Decl. Ex. 94

Filing Status
Publicly filed (attached)
Publicly filed (attached)
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)
Publicly filed (attached)

DEPOSITION EXHIBITS (PART 2: Exhibits 204-489)
Deposition Exhibit
Cantor Exhibit
Filing Status
Dep. Ex. 204
Publicly filed (attached)
Dep. Ex. 205
Cantor Decl. Ex. 43,
Publicly filed (attached)
Cantor Opp. Decl. Ex. 55
Dep. Ex. 206
Publicly filed (attached)
Dep. Ex. 210
Cantor Decl. Ex. 64
Publicly filed (attached)
Dep. Ex. 212
Publicly filed (attached)
Dep. Ex. 216
Publicly filed (attached)
Dep. Ex. 217
Publicly filed (attached)
Dep. Ex. 218
Publicly filed (attached)
Dep. Ex. 220
Publicly filed (attached)
Dep. Ex. 222
Publicly filed (attached)
Dep. Ex. 227
Publicly filed (attached)
Dep. Ex. 228
Publicly filed (attached)
Dep. Ex. 230
Publicly filed (attached)
Dep. Ex. 231
Publicly filed (attached)
Dep. Ex. 232
Publicly filed (attached)
Dep. Ex. 233
Publicly filed (attached)
5
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Case 1:09-md-02106-ASG Document 380 Entered on FLSD Docket 12/05/2013 Page 6 of 12

DEPOSITION EXHIBITS (PART 2: Exhibits 204-489)
Deposition Exhibit
Cantor Exhibit
Filing Status
Dep. Ex. 237
Cantor Opp. Decl. Ex. 45
Publicly filed (attached)
Dep. Ex. 239
Publicly filed (attached)
Dep. Ex. 240
Publicly filed (attached)
Dep. Ex. 241
Cantor Decl. Ex. 38,
Publicly filed (attached)
Cantor Opp. Decl. Ex. 50
Dep. Ex. 243
Publicly filed (attached)
Dep. Ex. 244
Publicly filed (attached)
Dep. Ex. 245
Publicly filed (attached)
Dep. Ex. 246
Publicly filed (attached)
Dep. Ex. 247
Publicly filed (attached)
Dep. Ex. 248
Publicly filed (attached)
Dep. Ex. 249
Publicly filed (attached)
Dep. Ex. 250
Publicly filed (attached)
Dep. Ex. 251
Publicly filed (attached)
Dep. Ex. 252
Publicly filed (attached)
Dep. Ex. 254
Cantor Opp. Decl. Ex. 65
Publicly filed (attached)
Dep. Ex. 263
Publicly filed (attached)
Dep. Ex. 264
Publicly filed (attached)
Dep. Ex. 265
Publicly filed (attached)
Dep. Ex. 268
Cantor Decl. Ex. 81
Filed Under Seal
Dep. Ex. 269
Publicly filed (attached)
Dep. Ex. 270
Publicly filed (attached)
Dep. Ex. 271
Publicly filed (attached)
Dep. Ex. 274
Publicly filed (attached)
Dep. Ex. 275
Publicly filed (attached)
Dep. Ex. 278
Cantor Decl. Ex. 36,
Publicly filed (attached)
Cantor Opp. Decl. Ex. 46
Dep. Ex. 279
Cantor Opp. Decl. Ex. 95
Publicly filed (attached)
Dep. Ex. 280
Cantor Decl. Ex. 48
Publicly filed (attached)
Dep. Ex. 281
Cantor Decl. Ex. 46
Publicly filed (attached)
Dep. Ex. 282
Cantor Decl. Ex. 53
Publicly filed (attached)
Dep. Ex. 283
Cantor Decl. Ex. 44,
Publicly filed (attached)
Cantor Opp. Decl. Ex. 56
Dep. Ex. 285
Cantor Decl. Ex. 51,
Publicly filed (attached)
Cantor Opp. Decl. Ex. 64
Dep. Ex. 286
Cantor Decl. Ex. 54,
Publicly filed (attached)
6
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Case 1:09-md-02106-ASG Document 380 Entered on FLSD Docket 12/05/2013 Page 7 of 12

DEPOSITION EXHIBITS (PART 2: Exhibits 204-489)
Deposition Exhibit
Cantor Exhibit
Filing Status
Cantor Opp. Decl. Ex. 72
Dep. Ex. 288
Cantor Decl. Ex. 65
Publicly filed (attached)
Dep. Ex. 291-B
Publicly filed (attached)
Dep. Ex. 298
Cantor Decl. Ex. 83,
Publicly filed (attached)
Cantor Opp. Decl. Ex. 91
Dep. Ex. 331
Publicly filed (attached)
Dep. Ex. 346
Cantor Reply Decl. Ex. 29
Publicly filed (attached)
Dep. Ex. 348
Cantor Decl. Ex. 77
Publicly filed (attached)
Dep. Ex. 377
Cantor Opp. Decl. Ex. 98,
Publicly filed (attached)
Cantor Reply Decl. Ex. 24
Dep. Ex. 379
Cantor Opp. Decl. Ex. 99,
Publicly filed (attached)
Cantor Reply Decl. Ex. 26
Dep. Ex. 381
Cantor Opp. Decl. Ex. 70,
Publicly filed (attached)
Cantor Reply Decl. Ex. 27
Dep. Ex. 382
Cantor Opp. Decl. Ex. 40,
Publicly filed (attached)
Cantor Reply Decl. Ex. 17
Dep. Ex. 399
Publicly filed (attached)
Dep. Ex. 410
Cantor Decl. Ex. 79
Publicly filed (attached)
Dep. Ex. 455
Cantor Decl. Ex. 41,
Publicly filed (attached)
Cantor Opp. Decl. Ex. 53
Dep. Ex. 456
Filed Under Seal
Dep. Ex. 458
Cantor Decl. Ex. 45,
Filed Under Seal
Cantor Opp. Decl. Ex. 57
Dep. Ex. 459
Cantor Decl. Ex. 50,
Publicly filed (attached)
Cantor Opp. Decl. Ex. 61
Dep. Ex. 463
Filed Under Seal
Dep. Ex. 465
Cantor Decl. Ex. 52,
Publicly filed (attached)
Cantor Opp. Decl. Ex. 66
Dep. Ex. 470
Filed Under Seal
Dep. Ex. 471
Publicly filed (attached)
Dep. Ex. 472
Publicly filed (attached)
Dep. Ex. 473
Publicly filed (attached)
Dep. Ex. 475
Publicly filed (attached)
Dep. Ex. 479
Publicly filed (attached)
Dep. Ex. 481
Publicly filed (attached)
Dep. Ex. 486
Cantor Decl. Ex. 57
Publicly filed (attached)
Dep. Ex. 487
Publicly filed (attached)
7
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Case 1:09-md-02106-ASG Document 380 Entered on FLSD Docket 12/05/2013 Page 8 of 12

DEPOSITION EXHIBITS (PART 2: Exhibits 204-489)
Deposition Exhibit
Cantor Exhibit
Filing Status
Dep. Ex. 488
Publicly filed (attached)
Dep. Ex. 489
Publicly filed (attached)

DEPOSITION EXHIBITS (PART 3: Exhibits 491-932)
Deposition Exhibit
Cantor Exhibit
Filing Status
Dep. Ex. 491
Publicly filed (attached)
Dep. Ex. 493
Publicly filed (attached)
Dep. Ex. 495
Publicly filed (attached)
Dep. Ex. 497
Publicly filed (attached)
Dep. Ex. 498
Cantor Decl. Ex. 62,
Publicly filed (attached)
Cantor Opp. Decl. Ex. 81
Dep. Ex. 600
Cantor Decl. Ex. 66
Publicly filed (attached)
Dep. Ex. 604
Cantor Decl. Ex. 69
Publicly filed (attached)
Dep. Ex. 607
Publicly filed (attached)
Dep. Ex. 608
Cantor Decl. Ex. 72
Publicly filed (attached)
Dep. Ex. 609
Publicly filed (attached)
Dep. Ex. 610
Cantor Decl. Ex. 73
Publicly filed (attached)
Dep. Ex. 611
Cantor Decl. Ex. 75
Publicly filed (attached)
Dep. Ex. 613
Cantor Decl. Ex. 80
Publicly filed (attached)
Dep. Ex. 614
Publicly filed (attached)
Dep. Ex. 622
Publicly filed (attached)
Dep. Ex. 623
Publicly filed (attached)
Dep. Ex. 624
Publicly filed (attached)
Dep. Ex. 625
Publicly filed (attached)
Dep. Ex. 626
Publicly filed (attached)
Dep. Ex. 627
Publicly filed (attached)
Dep. Ex. 628
Publicly filed (attached)
Dep. Ex. 629
Publicly filed (attached)
Dep. Ex. 634
Publicly filed (attached)
Dep. Ex. 635
Publicly filed (attached)
Dep. Ex. 636
Publicly filed (attached)
Dep. Ex. 637
Publicly filed (attached)
Dep. Ex. 638
Publicly filed (attached)
Dep. Ex. 639
Publicly filed (attached)
Dep. Ex. 640
Publicly filed (attached)
8
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Case 1:09-md-02106-ASG Document 380 Entered on FLSD Docket 12/05/2013 Page 9 of 12

DEPOSITION EXHIBITS (PART 3: Exhibits 491-932)
Deposition Exhibit
Cantor Exhibit
Filing Status
Dep. Ex. 641
Publicly filed (attached)
Dep. Ex. 642
Filed Under Seal
Dep. Ex. 643
Publicly filed (attached)
Dep. Ex. 644
Publicly filed with redactions
(attached)
Dep. Ex. 653
Publicly filed with redactions
(attached)
Dep. Ex. 654
Publicly filed with redactions
(attached)
Dep. Ex. 655
Publicly filed with redactions
(attached)
Dep. Ex. 658
Cantor Decl. Ex. 2,
Publicly filed (attached)
Cantor Opp. Decl. Ex. 2
Dep. Ex. 660
Publicly filed (attached)
Dep. Ex. 664
Cantor Opp. Decl. Ex. 90
Publicly filed (attached)
Dep. Ex. 692
Publicly filed (attached)
Dep. Ex. 694
Publicly filed (attached)
Dep. Ex. 696
Publicly filed (attached)
Dep. Ex. 804
Publicly filed (attached)
Dep. Ex. 805
Publicly filed (attached)
Dep. Ex. 808
Cantor Decl. Ex. 84
Publicly filed (attached)
Dep. Ex. 809
Cantor Decl. Ex. 59
Publicly filed (attached)
Dep. Ex. 810
Cantor Decl. Ex. 61
Publicly filed (attached)
Dep. Ex. 811
Cantor Decl. Ex. 63,
Publicly filed (attached)
Cantor Opp. Decl. Ex. 82
Dep. Ex. 813
Cantor Decl. Ex. 67
Publicly filed (attached)
Dep. Ex. 814
Cantor Decl. Ex. 68,
Publicly filed (attached)
Cantor Opp. Decl. Ex. 84
Dep. Ex. 816
Cantor Decl. Ex. 70
Publicly filed (attached)
Dep. Ex. 819
Cantor Decl. Ex. 71
Publicly filed (attached)
Dep. Ex. 820
Publicly filed (attached)
Dep. Ex. 825
Publicly filed (attached)
Dep. Ex. 827
Cantor Decl. Ex. 82
Publicly filed (attached)
Dep. Ex. 828
Cantor Reply Decl. Ex. 36
Publicly filed (attached)
Dep. Ex. 829
Publicly filed (attached)
Dep. Ex. 831
Cantor Opp. Decl. Ex. 88
Publicly filed (attached)
9
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Case 1:09-md-02106-ASG Document 380 Entered on FLSD Docket 12/05/2013 Page 10 of 12

DEPOSITION EXHIBITS (PART 3: Exhibits 491-932)
Deposition Exhibit
Cantor Exhibit
Filing Status
Dep. Ex. 832
Publicly filed (attached)
Dep. Ex. 834
Publicly filed (attached)
Dep. Ex. 835
Publicly filed (attached)
Dep. Ex. 851
Cantor Reply Decl. Ex. 32
Publicly filed (attached)
Dep. Ex. 860
Publicly filed (attached)
Dep. Ex. 861
Cantor Reply Decl. Ex. 30
Publicly filed (attached)
Dep. Ex. 862
Cantor Reply Decl. Ex. 31
Publicly filed (attached)
Dep. Ex. 864
Publicly filed (attached)
Dep. Ex. 865
Publicly filed (attached)
Dep. Ex. 866
Publicly filed (attached)
Dep. Ex. 868
Cantor Reply Decl. Ex. 19
Publicly filed (attached)
Dep. Ex. 884
Publicly filed (attached)
Dep. Ex. 888
Cantor Decl. Ex. 87
Publicly filed (attached)
Dep. Ex. 890
Cantor Opp. Decl. Ex. 63
Publicly filed (attached)
Dep. Ex. 891
Publicly filed (attached)
Dep. Ex. 892
Cantor Reply Decl. Ex. 18
Publicly filed (attached)
Dep. Ex. 896
Publicly filed (attached)
Dep. Ex. 898
Publicly filed (attached)
Dep. Ex. 899
Publicly filed (attached)
Dep. Ex. 901
Cantor Decl. Ex. 37,
Publicly filed (attached)
Cantor Opp. Decl. Ex. 47
Dep. Ex. 902
Filed Under Seal
Dep. Ex. 903
Publicly filed (attached)
Dep. Ex. 904
Cantor Decl. Ex. 49,
Publicly filed (attached)
Cantor Opp. Decl. Ex. 60
Dep. Ex. 905
Cantor Decl. Ex. 56,
Publicly filed (attached)
Cantor Opp. Decl. Ex. 76
Dep. Ex. 906
Publicly filed (attached)
Dep. Ex. 907
Cantor Opp. Decl. Ex. 77
Publicly filed (attached)
Dep. Ex. 910
Publicly filed (attached)
Dep. Ex. 915
Publicly filed (attached)
Dep. Ex. 917
Publicly filed (attached)
Dep. Ex. 932,
Cantor Decl. Ex. 28,
Publicly filed with redactions
Plaintiffs’ Exhibit
Cantor Reply Decl. Ex. 33
(attached)
1503

10
947889

Case 1:09-md-02106-ASG Document 380 Entered on FLSD Docket 12/05/2013 Page 11 of 12

Date: Miami, Florida
December 5, 2013
By:

By:

/s/ Jamie Zysk Isani
Jamie Zysk Isani

Jamie Zysk Isani (Florida Bar No. 728861)
HUNTON & WILLIAMS LLP
1111 Brickell Avenue, Suite 2500
Miami, Florida 33131
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

Lorenz Prüss (Florida Bar No. 581305)
DIMOND KAPLAN & ROTHSTEIN, P.A.
2665 South Bayshore Drive, PH-2B
Miami, Florida 33133
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

-and-

-and-

Bradley J. Butwin (pro hac vice)
Jonathan Rosenberg (pro hac vice)
Daniel L. Cantor (pro hac vice)
William J. Sushon (pro hac vice)
O’MELVENY & MYERS LLP
7 Times Square
New York, New York 10036
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
[e-mail]
[e-mail]
[e-mail]

J. Michael Hennigan
Kirk D. Dillman
MCKOOL SMITH
865 S. Figueroa Street, Suite 2900
Los Angeles, California 90017
Telephone: [phone]
Facsimile: [phone]
E-mail:
[e-mail]
[e-mail]
Attorneys for Plaintiffs Avenue CLO Fund,
Ltd., et al

Attorneys for Defendant Bank of America, N.A.

11
947889

/s/ Lorenz Michel Prüss
Lorenz Michel Prüss

Case 1:09-md-02106-ASG Document 380 Entered on FLSD Docket 12/05/2013 Page 12 of 12

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing NOTICE OF FILING ON
THE PUBLIC RECORD DEPOSITION EXHIBITS PREVIOUSLY FILED UNDER
SEAL RELATED TO SUMMARY JUDGMENT FILINGS (PART 1: DEPOSITION
EXHIBITS 1-182) was filed with the Clerk of the Court using CM/ECF. I also certify that the
foregoing document is being served this day on all counsel of record or pro se parties identified
on the attached Service List in the manner specified either via transmission of Notices of
Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or
parties who are not authorized to receive electronically the Notice of Electronic Filing.
Dated: December 5, 2013.
/s/ Lorenz Michel Prüss
Lorenz Michel Prüss

12
947889

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Dep. Ex. 8

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Dep. Ex. 9

"t

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CO-LENDING AGRBEMENT

for

LOAN AGREEMENT
DATED AS OF lune 6,2007
MAXIMUM LOAN AMOUNT OF $315,000,000

between

LEHMAN BROTHERS HOLDINGS INC.
as the Agent and a Split Note Holder

-and-

The parties listed on Exhibit A attached hereto
each individually, as a Split Note Kolder

Dated: September24, 2007

EXHIBIT

ö;\ji

&i1
U LL-FLVR0002674

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CO-LENDING AGREEMENT
THIS CO-LENDING AGREEMENT (this "Agreement") is dated as of September 24,

2007, by and among LEHMAN BROTHERS HOLDINGS INC, a Delaware
corporation, having an address at 399 Park Avenue, S Floor, New York, New York
10022 (in its capacity as the Agent hereunder, the "Agent), LEHMAN BROTHERS
HOLDINGS INC., a Delaware corporation, having an address at 399 Park Avenu; gth

Floor (the "Note A-1 Holder"), LIjE UNION LABOR LIFE INSUBM4CE
COMPANY (ULLICO), a Maryland corporation, on Behalf of Separate Account J,
having an address at 1625 Eye Street, NW, Washington, DC 20006 (the "Note A-2
Holder"), NATIONAL CITY BAIIK, a national banking association, having an
address at 1900 East NinthStreet, Cleveland, Ohio 44114 (the "Note Â-3 Holder"),
LEBMAN BROTHERS HOLDINGS INC., a Delaware corporation, having an address

at 399 Park Avenue, 8" Floor (the Note A-4 Holder"), LEDMAN BRO'itJ.ERS
HOLDINGS INC., a Delaware corporation, having an address at 399 Park Avenue, t
Floor, New York, New York 10022 (the "Note A-5 Holder"), LEHMAN BROTHERS
HOLDINGS INC., a Delaware corporation, having an address at 399 Park Avenue, 8"
Floor, New York, New York 10022 (the "Note Ä-6 Uoldefl, LEBMAN BROTtOERS
HOLDINGS INC., a Delaware corporation, having an address at 399 Park Avenue, R

Floor, New York, New York 10022 (the "Note À-7 Holder"), and LEHMAN
BROTHERS HOLDINGS INC., a Delaware corporation, having an address at 399 Park
Avenu; 8th Fino; New York, New York 10022 (the "Note A-8 Holder"). The Note A-1
Holde; Note A-2 Holder, Note Â-3 Holder, Note A-4 Holder, Note À-5 Holder, Note A6 Holder, Note A-7 Holder and Note A-8 Holder, in their capacity as co-lenders pursuant

to this Agreement, are sometimes collectively referred to heroin as the "Split Note
Holders" or 'tenders". All ternis as used in this Agreement shfll unless otherwise
defined in the main body of this Agreement, have the meanings given to anch terms in the
sectionherein titled "Definitions".

RECITALS
Pursuant to that certain Loan Agreement dated as of June 6, 2007 (the
"Original Mortgage Loan Agreement"), between Pontainebleau Las Vegas Rehiil.
LLC, a Delaware limited liability company ("Mortgage Borrower"), and Lehman
Brothers Holdings rae., a Delaware corporation, individually as lender and as Agent for
one or note Co-Lenders ("LBHF'), LBHI made a loan in the maximum principal amount
of $315,000,000 (the "Mortgage Loan') to the Mortgage Borrower.

The Mortgage Loan is evidenced by that certain Promissory Note dated
June 6, 2007 (the "Original Mortgage Note") made by the Mortgage Borrower in favor
of LBHI.

The Original Mortgage Note, and the obligations thereunder, are secured

inr1for evidenced by that certain Deed of Trust, Assignment of Leases and Rents,
Security Agreement and Fixture Filing, dated as of June 6, 2007 (the "Original
Mortgage'), made by Mortgage Borrower in favor of LBHI and encumbering Mortgage
Borrower's leasehold interest in the retail portion (the "Mortgaged Property") of the
1

ULL-FLVR0002GIS

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property to be known as 'Tontaineblcau Las Vegas" in Las Vegas, Nevad; as more
particularly described in the Original Mortgage, (2) that certain Assignment of Leases
and Rents, dated as of June 6, 2007 (the "Original Assignment of Leases and Reals"),
executed by Mortgage Borrower in favor of LBHI, (3) that certain Guaranty of Recourse

Obligations of Borrower, dated as of June 6, 2007 (the "Guaranty of Recourse
Obligations"), made by Jefficy Soffer ("Soffer") and Pontaineblean Resorts, LLC, a
Delaware limited Jithilily company ("Pontaineblean Resorts", and togethér with Soffer
collectively known as the "Guarantor") in vor of LBHI, (4) that certain Completion
Guaranty, dated as of June 6,2007 (the "Completion Guaranty"}, made by Guarantor in

fävor of LBEI, (5) that certain Payment Guaranty, dated as of June 6, 2007 (the

'Payment Guaranty"), made by Guarantor in favor of LBHI, (6) that certain
Environmental Indemnity Agreement, dated as of June 6, 2007 (the "Environmental
indenurity Agreement), made by Mortgage Borrower and Guarantor in favor of LBBI,
(7) that certain Assignment of Permits and Contracts, dated as of June 6, 2007 (the
"Assignment of Permits and Contracts"), executed by Mortgage Bormwer in favor of
LBB1, (8) th'.t certain Conditional Assignment of Leasing Agreement, dated as of June 6,

2007 (the "Conditional Assignment of Leasing Agreeinenfl, executed by Mortgage
Borrower in favor of LB
(9) that certain Conditional Assignment of Management
Agreement, dated as of June 6, 2007 (the "Conditional Assignment of Management
Agreement"), executed by Mortgage Borrower in favor of LBI-ll, and (10) that certain
Intellectual Property Security Agreement, dated as of June 6, 2007, executed by
Mortgage Borrower in favor of LBHI (the "Intellectual Property Security Agreement"
and, together with the Conditional Assignment of Management Agreement, the
Conditional Assignment of Leasing Agreement; the Assignment of Permits and
Contracts, the Environmental Indemnity Agreement, the Guaranty of Recourse

Obligations, the Completion Guaranty, the Payment Guaranty, the Original Assignment
of Leases and Rents, the Original Mortgage Loan Agreement, the Original Mortgage, the

Original Mortgage Note and all other documents which evidence Rndior secure the
Mortgage Loan, the "Original Mortgage Loan Documents").
The Original Mortgage Note has been split and severed into eight (8) separate notes
known as (i) Replacement Promissory Note (Note A-I) in the principal amount of
$80,000,000 (as the same may be amended, restated, replaced, supplemented, severed
into one or more separate notes or otherwise modified from tinte to time, "Note A-1"),
(ii) Replacement Promissory Note (Note A-2) in the principal amount of $60,000,000 (as
the same may be amended, restated, replaced, supplemented, severed into one or more
separate untes or otherwise modified from time to time, "Note A-2"), (iii) Repbirfonent
Promniqoiy Note (Note A-3) in the principal amount of $20,000,000 (as the same may be
amended, iethited, replaced, supplemented, severed into one or more separate notes or
otherwise modified from time to time, "Note A-3"), (iv) Replacement Promissory Note

(Note A-4) in the principal amount of $20,000,000 (as the same may be amended,
restated, replaced, supplemented, severed into one or more separate notes or otherwise
modified from time to time, "Note A-4"), (y) Replacement Promissory Note (Note A-5)
in the principal amount of $20,000,000 (as the same may be amended, restated, replaced,
supplemented, severed into one or more separate notes or otherwise modified from time
to time, 'Note A-5"), (vi) Replacement Promissory Note (Note A-6) in the principal
amount of $25,000,000 (as the same may be amended, restated, replaced, supplemented,
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severed into one or more separate notes or otherwise modified fern time to time, "Note

Â-6"), (vii) Replacement Promissory Note (Note A-7) in the principal amount of
$10,000,000 (as the saine may be amended, restated, replaced, supplemented, severed
into one or more separate notes or otherwise modified flom time to time, 'Note Â-7")

and (viii) Replacement Promissory Note (Note A-8) in the prineipal amount of
$80,000,000 (as the same may be amended, restnted, replaced, supplemented, severed
into one or more separate notes or otherwise modified from line to tine, "Note A-8'
(each dated as of September 9, 2007 and executed by the Mortgage Borrower in favor of
LBHI). Note A-I, Note A-2, Note A-3, Note A-4, Note A-5, Note A-6 Note Á-7 and
Note A-8 shall be collectively referred to herein as the "Split Notes". The Split Notes
and the obligations of the Mortgage Borrower contained Therein axe and shall couSue to
remain secured by the Original Mortgage.

Pursuant to certain Allonges dated the date hereof, Note À-2 has been
assigned by LBHI in. frvor of the Note A-2 Holder and Note A-3 has been assigned by
LBHI in favor of the Note k-3 Holdet
On the date hereof, an undivided interest in the Original Mortgage and the
other Original Mortgage Loan Documents equal to the respective Pm Rata Interests (as
defined herein) has been assigned by LBHT to the Split Note Holders of Note A-2 and
Note A-3 pursuant to Assignment and Assumption Agreements.

In. addition, (i) as of September 9, 2007, the Original Loan Documents
were modified by that certain First Amendment to Mortgage Loan Agreement (the "First

Amendment to Loan Agreemcnf'); the Original Mortgage Loan Agreemenl as
modified by the First Amendment to Loan Agreement is hereinafter referred to as the
"Mortgage Loan Agreement?'. The Original Mortgage Loan Documents, as modified
by the First Amendment to Loan Agreement, are referred to herein as the "Mortgage
Loan Documents", in each case, to reflect the splitting of the Original Mortgage Note
and other modifications set forth therein.

It is the intention and desire of the Split Note Holders to enter into this
Agreement in order to set forth the rights, benefits, priorities, and obligations of the Split
Note Holders inder the Split Notes and the other mutual understandings of the split Note
Holders. The parties hereto intend that the tcansactions contemplated hereby constitute a
"true sale" in accordance with generally accepted accounting principles.

NOW, THEREFORE, in consideration of the mutual promises herein
contained and other good and valuable consideration, the receipt and legal sufficiency of
which are hereby acknowledged, the parties hereto hereby agree, with respect to the
Mortgage Loan, as follows:

DEFENUONS
Capitnhi7ed ternis and phrases not otherwise defined in. this Agreement
shall have the meanings ascribed to them in the Mortgage Loan Agreement
The following terms as used herein shall have the Ibilowing meanings:
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"A Notes(s)" sitill mean, individually and collectively, Note A-1, Note A2, Note A-3, Note A-4, Note A-5, Note A-6. Note A-7 and Note A-8.

"Agent shall mean Lehman Brothers Holdings hìc. and its successors and
assigns. Except to the extent expressly set forth otherwise in this Agreement, references

to the Agent shall refer to the Agent solely in its capacity as "agent" and not in the
Agent's capacity as a Split Note Holder.

"Assignment and Assumption" shall mean any assignment and.
assumption agreement pursuant to witich a Split Note Holder acquires its Pro Rata
Interest, in the form attached hereto as Exhibit P.

"Bankruptcy Action" shall mean any bankruptcy, insolvency or similar
proceeding relating to any Mortgage Borrower, any Mortgaged Property or any Mortgage
Loan Party.

"Canse" shall mean (a) fraud, gross negligence or willfifl misconduct by
the Agent, (b) the commencement of any bankruptcy, insolvency or sh-nilar proceeding
with respect to the Agent, (e) any material breach or default by the Agent under this
Agreement *bich continues for 15 days after written notice to the Agent or (d) the Agent
Ls a Dthulting Split Note Holder.

"Control" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policy and/or policies of a Perso;
whether through ownership of voting securities or other ownership interests, by contact
or otherwise; the terms "Conirollinc and "Controlled" have meanings correlative to the
foregoing.

"Current Split Note Holder" shrill mean each of the Split Note Holders
which is not a Dethulting Split Note Holder.

"Default" shall mean the occurrence of any event under the Mortgage
Loan Dobuments which, but for the giving of notice or the passage of time, or both,
would be an Event of Dthnit

"Default Loans" shall have the meaning set forth in Section 5.01(d)
hereof.

"Default Rate" shall have the meaning set thrth in the Mortgage Loan
Agreement and the respective Notes.

"Defaulting Split Note Holder" shall have the meaning set ßrth in
Section 5.01(a) hereof.

"Eligibility Requirements" means, with respect lo any Person, that such
Person (i) has total assets (in rame or under management) in exòess of $600,000,000 and
(except with respect to a pension advisory fain or similar fiduciary) capital/statutory

surplus or shareholder's equity of $250,000,000 and (ii) is regularly engaged in the
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business of making or owning commercial real estate loans (or interests in commercial
real estate loans) or operating commercial mortgaged properties.

"Enforcement Action" means any judicial or non-judicial foreclosure
proceeding, the exercise of any power of sal; the sale by advertisement, the taking of a
deed or assignment in lieu of foreclosure, the obtaining of a receiver, the pursuit of any
deficiency judgment, acquisition of any Mortgaged Property, any sale of any Mortgaged
Prorty (other than the sale of condominium units in the ordinary course of business), or
the taking of any other enforcement action against any Mortgaged Property.
"Event of Default' shall have the meaning set forth in the Mortgage Loan
Documents.

"Guarantor" shall have the meaning set forth in the Recitals.
"Indebtedness" qhall mean the sum of principal of and interest due on the
Mortgage Loan, and all other obligations and sums due and payable by the Mortgage
Borrower or any other Mortgage Loan Party to the Split Note Holders and the Agent and
incurred pursuant to or evidenced or secured by any of the Mortgage Loan Documents.

"Intercreditor Agreement" 'zlwll mean that certain Interereditor
Agreement dated as of even date herewith entered into between the holder of the
Itz7anhlte Loan and the holder of the Mortgage Loan.

"Loan Default' shall mean an Event of Default as defined in the
Mortgage Loan Agreement
"Loan Fees" shall have the meaning set forth in Section 1.08 hereof

"Mczr.anine Loan" shall mean that certain mezzanine loan in the original
principal amount of $85,000,000 to Fontainebleau Las Vegas Retail Meninin; LLC, a
Delaware limited liability company ('Mezzanine Borrower"), pursuant to that certain

Loan Agreement (Me77atline Loan), dated as of June 6, 2007 (the "Mezzanine
Agreement'), between the Mezzanine Borrower and LBBI (in such capacity, the
"Mezzanine Leude?'), as amended by that certain First Amendment to Mezzanine Loan
Agreement, dated as of September 9, 2007.
"Mortgage Borrower" shall have the meaning provided in the Reciffils.
"Mortgage Loan" shall have the meaning provided in the Recitals.

"Mortgage Loan Agreement" sh'1l have the meaning provided in the
Recitals.

"Mortgage Loan Documents" shall have the meaning provided iii the
Recitai s.

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"Mortgage Loan Party" 'thnll mean the Mortgage Borrower, any
Guarantor, indemnitor or surety of any of the Obligations and any other Person (other
than LBHI) thpt is a party to any of the Mortgage Loan Documents, other than any
Property Manager that is not an Affiliate of a Mortgage Borrower.

'Mortgage Note" shall mean the collective reference to the A Notes.
"Mortgaged Property" chah have the meaning provided in the Recitals.
"Note" civili mean any of Note A-1, Note A-2, Note A-3, Note A-4, Note
k-5, Note A-5, Note A-7 and Note A-8.
"Note A-1" shall have the menning provided in the Recitals.
"Note Â-2" qE all have the meaning provided in the Recitals.

Note A-3" shall have the meaning provided in the Recitals.
"Note Â-4" shall have the theaning provided in the Recitals.
"Note A-S" chRil have the meaning provided in the Recitals.

Note A-G" shall have the meaning provided in the Recitals.

Note Â-7" shall have the meaning provided in the Recitaic.
Note A-8" shall have the meaning provide4 in the Recitals.

"Note A Interest Rate" shall mean the applicable interest rate in effect
from time to time on the A Notes or any A Note, as the context may require (but
excluding interest at the De&ult Rate).

"Note A Piincipat Balance" shall mean, at any time of determination, the
outstanding principal balance of the A Notes or amp' A Note, as the context may require.

"Original Mortgage" shall have the meaning provided in the Recitals.

"Original Mortgage Note" shall have the meaning provided in the
Recitals.

"Patriot Act" means the United States of America Patriot Act, Pub. L.
No. 107-56.

"Permitted Fund Manager" means any Person that on the date of
detemtination is (i) one of the entities listed on Exhibit C or any other nationallyrecognized manager of invesiment fluids investing in debt or equity interests relating to
commercial real estate, (ii) investing through a fund with committed capital of at least
$250,000,000 and (iii) not subject to any bankruptcy, insolvency or similar proceeding.
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"Person" shall mean (i) any individual, corpomtion, partnership, joint
venture, limited liability company, estate, frost or unincorporated association, or (ii) any
federa], state, county or municipal government or any bure a; department or agency
thereof and, in the case of any person or entity set forth in clause (i) or (ii) above, any
fiduciary acting in such capacity on behalf of any of such person or entity.

'Prime Rate" shall mean, for any day, the "prime rate" which is normally
published in the "Money Rates" section of The Wall Street Journal for such day or, in the
event such rate shall not be so published, in such other nationally recognized publication
as the Agent may, from time to time, specifjr.

'Prohibited Person" shall mean any Person:
listed in the ann.exto, or who is otherwise subject to the provisions
o1 Executive Order No. 13224 on Terrorist Financing, effective September 24,

2001, and relating to Blocking Property and Prohibiting Transactions With

Persons Who Comnñt Threaten to Commit, or Support Terrorism (the
'Executive Ordefl;
that is owned or controlled by, or acting for or ou behalf of, any

person or entity that is listed in the annex to, or is otherwise subject to the
provisions, of the Executive Ordßr

with whom a Person is prohibited from dealing or otherwise
engaging in any transaction by any terrorism or money laundering law, including
the Executive Order

who commits, threatens or conspires to commit or supports
"terrorism" as defined in the Executive Order;
(y)
that is named as a "specially designated national and blocked
person" on the most current list published by the U.S. Treasury Department
Office of Foreign Assets Confiti at its official website or at any replacement

website or other replacement official publication of such list; or
(vi)

who is an Affiliate of a Person listed in clauses (i) - (y) above.

'Pro Rata interest", with respect to any individual Split Note Holder, or
"Pro Rata Interests", with respect to each of the Split Note Holders, as the case may be,
shall mean the applicable percentage or percentages of the Mortgage Loan, as set forth on
Exhibit A hereof, as the saine may be supplemented or amended from time to time, held
by such Split Note Holdet

'Protective Advance" means all sums expended as reasonably
determined by the Agent to be necessary (a) to protect the priority, validity and
enforceability of the Lien of the Original Mortgage and the other instruments evidencing
or securing the Indebtedness and (b) to protect the value or the security of the Mortgaged

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Preperty, including any amounts expended in accordance with Section 4.03 of this
Agreement.

"Qualified SeMcer" means any nationally recognized commercial
mortgage loan servicer that is reasonably satisthctory to the Required Split Note Holders.

"Qualified Transferee" meirns a Person that is flot a Prohibited Person for

purpos of the Patriot Act and that is (i) Lehman Brothers Holdings Inc., The Union
Labor Life Insurance Company (ULLICO), National City Bank, or any affiliate under the
Control of such Persons, or (ii) one or more of the flllowing:

a real estate investment trust, bank, saving and loan association,
investment bank; insurance company, trust company, commercial credit corporation,
pension plan, pension fund or pension advisory firm, mutual fund, government entity or
plan, provided that any such Person refened to in this clause (A) satisfies the Eligibility
Requirements;

mi investment company, money management firm or "qualified
institutional buyer" within the meaning of Rule 144k under the Securities Act of 1933,
as amended, or an institutional "accredited investor" 'within the meaning of Regulation
D under the Securities Act of 1933, as amended, provided t1it any such Person referred
to in thic clause (B) satisfies the Eligibility Requirements;
an institution substantially similar to any of the foregoing entities
described in clauses (iiWA't or (ill(S) that satisfies the Eligibility Requirements;

any entity Controlled by or under common Control with one or
more of any of the entities described in clause (il or clanqeq (111(A). or (ii1CC;

a Qualified Trustee in connection with a securitization oÇ the
creation of collateralized debt obligations (including, without lirnilation, collateralized

loan obligations) ("00') secured by or linanbing through an "owner trust" of, the
Mortgage Loan (collectively, "Securitizafion Vehicles"), so long as (A) the special
servicer or manager of such Secìnitization Vehicle has the Required Special Servicer
Rating and (B) the entire "eenfrolling class" of such Securitlzation Vehicle, other than
with respect to a CDO Securitization Vehicle, is held by one or more entities that are
otherwise Qmilified Transfetees under clauses (111CM. Çfl), fQ or im of this denition
provided that the operative documents of the related Securitization Vehicle required that

(1) in the case of a CDO Securitiation Vehicle, the "equity interest" in such
Securitization Vehicle is owned by one or more entities that are Qualified Transferees
under clauses (lillA). (B). (C) or (D) of this definition and (2) if any of the relevant
trustee, special servicer, manager fhils to meet the requirements of this clause (E), such
Person must be replaced by a Person meeting the requirements of this clause (E) within
thirty (30) days;
an investment fund, limited liability company, limited partnership
or general partnership where a Permitted Fund Manager or an. entity that is otherwise a
Qualified Transferee under clauses (111CM (B) (C) or (D) of this definition acts as the

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general partner, managing member or fund manager and at least 50% of the equity
interests in such investment vehicle are owned, directly or indirectly, by one or more
entities that are otherwise Qualified Transferees under classes (ii)(A) (B), (C) or (D) of
this definition;
any entity listed on Exhibit C attached hereto;

nyeititylistedonExhibitDatlachedheieto;or
any Affiliate of a Person described in subparagraphs (A) - (FI).

"Qualified Trustee" means (i) a corporation, national bank, national
banking association or a frust company, organized and doing business under the laws of

any state or the United States of America, authorized under such laws to exercise
corporate trust powers and to accept the frust conferred, having a combined capital and
surplus of at least $1DD,000,000 and subject to supervision or examination by federal or
state authority, (ii) an institution insured by the Federal Deposit Insurance Corporation or
(iii) an institution whose long-term senior unsecured debt is rated in either of the then
current two highest rating categories of each of the Rating Agencies.

"Rating Agencies" shall mean each of SSc?, Moody's Investors Service,
Inc., and Fitch, Inc., or any other nationally-recognized statistical rating agency which
has been designated by the Agent
"Registe?' shall have the meaning set forth in Section 2.01(b) hereof

"Required SpeSi Servicer Rating" means with respect to any particular
special servicer (i) that it has a rating of "CSS1" in the case of Fitch, (ii) that it is listed
ou S&P's list of approved special servicers in the case of S&? and (iii) in the case of
Moody's, that it is acting as special servicer in a commercial mortgage loan seenritization

that was rated by Moody's within the twelve (12) -month period prior to the date of
.dete,mhnflon, and Moody's has not downgraded or withdrawn its then-current rating ou
any class of commercial mortgage securities or placed any class of commercial mortgage
securities on watch thing the continuation of such special servicer as special servicer of
such commercial mortgage securities.

"Required Split Note Holden" means Split Note Holders holding Pro
Rata Interests in the Spilt Notes aggregating more than sixty six and two-thirds percent
(66V%) of the unpaid principalbalanee oftheNotes

"Servicing Standard" shall mean the servicing and administration of the
Mortgage Loan or the management of the Mortgaged Property, as plicable, by the
Agent for the benefit of the Split Note Holders and in accorilnnc.e with applicablc law, the
terms of the Mortgage Loan Documents and this Agreement and in the saine manner in
which, and with the same care, skill, prudence and diligence with which it administers

mortgage loans for its own account or other third parties (whichever servicing is of a
higher standard), giving due consideration to customary and usual standards of practice
of prudent institutional commercial lenders servicing their own loans, and with a view
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towards the best interests of the Split Note Holders as a cxfflective whole and the
maximization of the net present value of the Mortgage Loan (subject to the relative
priority rights of the Split Note Holders as set forth in this Agreement), but without
regard to (i) any relationship that the Agent, or any Affiliate of the Agent, may bave with
the Mortgage Borrower or any Affiliate of the Mortgage Borrower or any other parties to
this Agreement or the Mortgage Loan Documents; (ii) the existenee of any subordinate or
mezzanine loan (including, without limitation, the Mezzanine Loan) that the Agent or
any Affiliate of the Agent, may service, hold or bave an interest 1n (iii) the ownership of
the Mortgage Note or any interest or participation therein, or any equity interS in the

Mortgaged Property, as applicable, by the Agent or any Affiliate of the Agent, as
applicable; and (iv) the sufficiency of any compensation for its services hereunder and/or
the Agent's obligation to make any Protective Advances or incur any expenses.

"Split Note ifotders" h11 bave the meaning set forth in the opening
paragraph of this Agreement and shnll also mean each and every Person that holds an
interest in all or any portion of the Mortgage Loan pursuant to an assignment of any of
the Notes.

"Unconditional Unanimous Consent Modification" shall have the
meaning set forth in Section 2.03(a) hereof.
SECTION 1. PURCHASE, A5SrGm4MRNT. ASSUMPTION AND AGENT
1.01. Purchase of Notes. On the date hereo (i) Note A-1 Holder hns purchased
Note A-1 from LBHI and is now the lawThI owner of Note A-1, (fi) Note A-2 Holder has
purchased Note A-2 from LBHI and is now the Iawthl owner of Note A-2. (iii) Note A-3
Holder has purchased Note A-3 from LBHI and is now the lawful o'cvner of Note A-3,
(iv) Note À-4 Holder has purchased Note A-4 front LBH[ and is now the lawM owner of
Note A-4, (y) Note A-5 Holder has purchased Note A-5 from LBH[ and is now the lawful
owner of Note A-5, (vi) Note A-6 Holder has purchased Note A-6 from LI3HT and now
the lawful owner of Note A-6, (vii) Note A-7 Holder bas purchased Note A-7 and is now
the lawful owner of Note A-7, and (viii) Note A-8 Holder has purchased Note A-8 and is
now the lawful owner of Note A-8.
1.02.

Astment of Mortgage Loan Documents.

Prom

and after the date

hereo the Note A-1 Holder, the Note A-2 Holder, the Note A-3 Holder, the Note A-4
Holder, the Note A-5 Holder, the Note A-6 Holder, the Note A-7 Holder and the Note AS Holder shall hold their respective Pro Rata Interest in the Original Mortgage and the
Mortgage Loan Documents and the Inteicreditor Agreement.

1.01

Assumption of Mortgage Loan Documents.

(a)
Each of the Split Note Holders hereby assumes and undertakes to perihim,
pay or discharge, in accordance with the terms and conditions thereof and in accordance
with its Pm Rata Interest, all obligations of LBHL under the Moitage Loan Documents
and the Iutercreditor Agreement to the extent such obligations are to be performed, paid
or discharged after the date hereof, including, without limitation, the obligation to make
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required future advances tinder the Mortgage Loan Agreement based upon its Pro Rata
Interest Iii te event that the Servicer receives a request from the Mortgage Borrower for
a future advance of proceeds of the Mortgage Loan, the Servicer ahaB deliver a copy of
such request to each Split Note Holder at least four (4) Business Days prior to the dale
upon which each such Split Note Holder is required to fund its Pro Rata Interest of such
future advance in order to allow each Split Note Holder to determine whether Mortgage
Borrower is entitled to such future advance pursuant to the Mortgage Loan Documents.
Alternatively, the Servicer may deliver a certif cate to each Split Note Holder stating that
the conditions set forth in Section 2.1.2 of the Mortgage Loan Agreement to such future
advance bave been satisfied and Mortgage Borrower is entitled to such future advance
pursuant to the Mortgage Loan Documents at least four (4) Business Days prior to the
date on which such future advance is to be tbncled to the Mortgage Borrower and in such
event each Split Note Holder shall fund its Pro Rata Interest of such future advance on
the requested date.
(b)
P2db of the Split Note Holders hereby assumes and undertakes to make, in
accordance with the ternis and conditions set forth in the Mortgage Loan Agreement and

the Master Disbursement Agrement (as such term is deflned in the Mortgage Loan
Agreement) and in accordance with its Pro Rata Interest, the Project Future Advances and
the Debt Service Advance (as such terms are defined in the Mortgage Loan Agreement).
(o)
Each of the Split Note Holders agrees to execute and deliver all such
further assurances as may reasonably be requested by LBHI in order to eftèct the

assumption by such Split Note Holder of the obligations contemplated herein.
L04. Rights of Split Note Holders. The A Notes and the rights of the Split Note
Holders thereunder, including their respective Lights to receive payments of interest,
principal and any and all other amounts due thereunder, shall be - passu, equal and

without priority or prefurence as among all of the Split Note Holders, except as
specifically provided herein
1.05.

Appointment.

(a)
Fqeh Split Note Holder hereby confirms the appointment of the Agent as
agent, to administer the Mortgage Loan and to take actions or cause such actions to be
taken on its behcW with respect to the Mortgage Loan Documents under the pravisions of
tbk Agreement, the Mortgage Loan Agreement, the other Mortgage Loan Documents and
the Servicing Standard The Agent hereby confirms its acceptance of such appointment.

The Agent shall carry out its administrative duties to the Split Note Holders in
accordance with the applicable terms of the Mortgage Loan Agreement, the other
Mortgage Loan Documents, this Agreement and the Servicing Standard. The relatioiship
between the Agent Sd each Split Note Holder is a contractual relationship only, and the
Agent shall not have any duties or responsibilities (except those expressly set forth in the
Mortgage Loan Agreement, the other Mortgage Loan Documents or this Agreement or as
required by the Servicing Standard) or any fiduciary duty to any Spilt Note Holder, and
no implied covenants, functions, responsibilities, obligations or liabilities or duties on the
part of the Agent shall be read into thiq Agreement.
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(b)
Subject to Section 101, the Agent may execute any of its duties under this
Agreement, the Mortgage Loan Agreement or the other Mortgage Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel (including
internal counsel) concerning all matters pertaining to such duties; provided, however, that
the execution of any of the Agent's duties by or through agents or attorneys-in-fact shøll
not relieve the Agent of any of its obligations under this Agreement the Mortgage Loan
Agreement or the other Mortgage Loan Documents. The Agent shall not be responsible
for the negligence or misconduct of any agents or attorneys in fact selected by it in good
faith in accordance with the Servicing standard and exercising reasonable judgment

(e)
Subject to Section 2.01, at the option of the Agent, the Mortgage Loan
may be serviced by a Qualified Servicer ("Servicer') selected by the Agent and the Agent
may delegate ail or any portion of its responsibilities under this Agreement, the Mortgage
Nate, the Mortgage Loan Agreement and the other Mortgage Loan Documents to said

Servicer; provided, however, no such delegation of responsibilities shall relieve the
Agent from its responsibilities and obligations hereunder, which shRil be direct and
primary responsibilities of the Agent Each Split Note Holder acknowledges that as of the

date hereof, Trilvfrnìt Real Estate Advisors, Inc., a Geor&a corporation is acting as
Servicer and shall be entitled to all servicing fees payable under the Mortgage Loan
Documents.
1.06.

Ownership and Possession of Mortgage Loan Documents and Funds.

Each of the Split Note Holders shall own an undivided interest in the Mortgage Lon and
the Mortgage Loan Documents equal to its Pm Rata Interest. The Agent shall hold in its
possession, as collateral agent, at its office at 399 Park Avenue, New York, New York
10022, or at such other location as the Agent shall designate in writing to the Split Note
Holders, the Mortgage Loan Documents for the pro rata benefit of the Agent as one of the
Split Note Holders and each of the other Split Note Holders, except that each Split Note
Holder shnll have the right to hold its Note. The parties hereto forther agree that LaSalie
Bank, N.A. may hold such Mortgage Loan Documents, on behalf of the Agent; at its
office at 135 South LaSalle Street, Suite 1625, Chicago, Illinois 60674 without further
notice being provided. The Agent shntl keep and maintain complete and accurate files
and records of ail matters pertaining to the Mortgage Loan. Upon reasonable prior notice
to the Agent by the Split Note Holders, the Agent will make available to the Split Note

Holders and theft representatives and agents, the flies and records relating to the
Mortgage Loan Ihr inspection and copying during normal business hours. The Agent

hereby agrees to hold all payments and other funds received front the Mortgage
Borrower, the Gtarantor or any other Person with respect to the repayment of the
Mortgage Loan and/or pursuant to the enforcement of the rights of Lender under the
Mortgage Loan Documents in a segregated account and shall not commingle such funds
with any other funds.
1.07. SuccessorAgent.

The Agent may resigo, in its sole discretion, without the consent of the
(a)
Split Note Holders or the Mortgage Borrower by giving thirty (30) days' prior written
notice of such resignation to the Split Note Holders and the Mortgage Borrower unless
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applicable Jaw requires a shorter notice period. Upon any such resignation, the retiring
Agent hn1l, on behalf of the Split Note Holders, appoint a successor Agent, which sTiRi!
be subject to the approval of the Required Split Note IThlders, such approval not to be
unreasonably withheld or delayed; provided, however that the retiring Agent civili first
offer such appointment as suecessor Agent to each of the Split Note Holders in order of
their respective Pm Rata Interests (with the Split Note Holder having the largest Pro Rata
Jntrest being given the first offer) If alt Split Note Holders decline to serve as the
Agent, the Required Split Note Holders may appoint a successor the Agent, provided that

any proposed successor Agent shall (i) bave demonsirated its capacity, ability and
expertise to service commercial mortgage loans with principal balances of at least
$50,000,000 each and at least $1,000,000,000 i» the aggregate, and (ii) have accepted
such appointment vAthin ten (10) days of' the offer of appointment.
(b)
The Required Split Note Hèlders shall have the right to remove the Agent
if Cause occurs, provided That for this purpose if any Split Note Holder is the Agent or is
an Affiliate of the Agent, such Split Note Holder' s Pro Rata Interest shall be excluded in
determininwwbioh SplitNote Holden constitutethe Required SpliUNoteHolders.

(e)

The resignation or terminalion of the Agent hereunder shall not be

effective until the acceptance of the appointment as the Agent hereunder by a successor
Agent (meeting the criteria set flrth in SStion 1.07(a) and approved by the Required
Split Note Holders pursuant to Section 1.07(a)) as evidenced by such successor Agent's
execution and delivery to each Split Note Holder of an agreement, which contains an
assumption by such successor Agent of the due and punctual pesformance of all terms
and conditions thereafter to be performed by an Agent under this Agreement and the
Mortgage Loan Documents, and such successor Agent shall thereupon succeed to and
became vested with all the rights, powers, privileges and duties of the retiring Agent, and

the retiring Agent shall be discharged from any duties and obligations under this
Agreement thereafter arising, pmvided however, that the retiring Agent shall tnnsr and
deliver to the successor Agent the Register, all of the Mortgage Loan Documents and any
other documents or instruments, including all books and records relRting to the Mortgage
Loan in its possessiort The retiring Agent hnll execute and deliver all instruments and
documents reasonably requested to effectuatethe transfer of the administration of the
Mortgage Loan. Alter any retiring Agent's resignaüon as the Agent, the provisions of
this Agreement shall inure to its benefit and shall bind it as to any actions taken or
omitted to be taken by it while it was the Agent under this Agreement.
1.08.

Other Loan Fees.

The Agent shall retain for its own account all

reasonable incidental servicing and other loan fees, other than loan extension fees and the
Exit Fee, referred to in the Mortgage Loan Agreement or the Mortgage Loan Documents,
if any, payable after the date hereof ("Loan Fees"). Any extension fees received by the

Agent from the Mortgage Borrower shall be distributed to the Split Note Holders in
accordance 'with their respective Pro Rata Interests. The Exit Fee payable tinder the
Mortgage Loan shall be retained by LBHI.
1.09.

Agent as Split Note Holder. Except to the exwnt its interest in the

Mortgage Loan has been or shall be assigned pursuant to one or more Assignment and
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Assumption agreements, the term "Split Note Rolde?' or "Split Note Holders" shall,
unless the context otherwise expressly indicates, include the Agent in its individual
capacities as holder of a Pro Rata Interest, and the Agent may exercise the rights and
powers and qhall be bound by the obligations of a Split Note Holder without regard to its
rights and obligations as the Agent hereunder.
SECTION 2. ADMINISTRATION OF THE MORTGAGE LOAN

2.01.

Administration.

(a)
The Agent shall administer the Mortgage Loan Agreement and the other
Mortgage Loan Documents and service the Mortgage Loan in accordance with the terms
and conditions of this Agreement and the Mortgage Loan Documents and in accordance
with the terms of the Servicing Standard; provided, however, that neither the Agent nor
any of its directors, officers, agents or employees shall be liable for any error in judgment

or for any action taken or omitted to be taken by it or them in good faith and in
accordance 'with the Servicing Standard 1ml this Agreement except the Agnt (but not

any of its directors, officers, agents or employees) shili be liable for its own gross
negligence or willful misconduct and the gross negligence or willful misconduct of its
offfcera, directors, agents or employees. Notwithstanding anything in this Agreement to
the contrary, the Agent shall also represent the Split Note Holders in connection with the
exercise of their rights and obligations as senior lenders pursuant to the terms of the
Intercreditor Agreement, acting in. accordance 'with the terms of the Servicing Standard.
Without limitation of the generality of the foregoing, neither the Agent, as agent nor any
Split Note Holder (i) shall be responsible in any manner to any Split Note Holder for any
recitals, statements, representations or warranties made by the Mortgage Borrower or
other Mortgage Loan Party contained in the Mortgage Loan Agreement or any other
Mortgage Loan Document or by the Mortgage Borrower or any other Mortgage Loan
Party in any certifirte, report, statement or other document referred to or provided for in,
or received under or in connection with the Mortgage Loan Agreement or any other
Mortgage Loan Document or for the value, validity, effectiveness, genuineness (as long
as the Agent complied with the Servicing Standard), enforceability or sufficiency of this
Agreement, the Mortgage Loan Agreement or any other Mortgage Loan Document or
any such certificate, report, statement or other document, or of any Mortgaged Property;
(ii) shall be responsible fo; or inquire as to, the performance or observance by the
Mortgage Borrower or any other Mortgage Loan Party of any of the tenus, covenants or
conditions of the Mortgage Loan Documents; (iii) shnll have any duty to inspect the
Mortgaged Property (including the books and records of the Mortgage Borrower or any
other Mortgage Loan Party, except as may be specifically provided herein); and (iv) shall
incur any liability under or with respect to the Mortgage Loan or under the Mortgage
Loan Documents or with respect to any Mortgaged Property by acting in good faith upon
any notice, resolution, affidavit, letter statement, consent, certificate or other instrument

or writing (which may be by telegram, telecopy, cable or telex) or conversation
(including by telephone) believed by it to be genuine (as long as the Agent complied with
the Servicing Standard) and signed or sent by the proper party or parties or by acting in

good Thith upon any representation or warranty of the Mortgage Borrower or any
Mortgage Loan Party made or deemed to be made under any Mortgage Loan Document.
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No successor Agent shall be liable for any act or omicsion of any prior Agent which
occurred prior to the date such successor Agent assumed the role of successor Agent
(b)
The Agent chAU maintain a register for the recordation of the names and
addresses of the Split Note Holders, the amount of each Split Note Holder's Pro Rata

Interest and the name and address of each Split Note Holder's agent fir service of
process (the "Registe?'). The entries in the Register shall be conclusive and binding for
all purposes, absent manifest envr, and the Agent and the Split Note Holders may treat
each person or entity whose name is recorded in the Register as a Split Note Holder

hereunder for all purposes of this Agreement The Register shall be avalbthlá for
inspection and copying by any Split Note Holder during normal business hours upon
reasonable prior notice to the Agent The Agent sh1l also maintain a copy of eAch
Assignment and Assumption agreement delivered to the Agent.
2.02. Powers of the Agent. Except, as otherwise expressly provided for in the
Mortgage Loan Documents or this Agreement, including Section 2.03 hereof, the Agent
chalk have the right, in its commercially reasonable discretion, in each instance subject to

the Servicing Standard, (i) to grant or withhold approvals under the Mortgage Loan
Documents; (ii) to agree to the modification or waiver of any of the téms or provisions
of the Mortgage Loan Documents; (iii) to consent to any action or ilure to act by the
Mortgage Borrower or any other Mortgage Loan Party; and (iv) to exercise or refrain
fiom exercicing any tights which the Agent or the Split Note Holders may have with
ìe,pect to the Mortgage Loan, the Mortgage Loan Documents or the Mortgaged Property,
including, without limitation, the tight to:

receive, review and process all documents, certificates, opinions,
insurance policies, reports, requisitions and other materials of every nature and
description submitted by, or on behalf of, the Mortgage Borrower and pursuant to this
Agreement, the Mortgage Loan Agreement, the Mortgage or the other Mortgage Loan

Documents, - to determine whether or not the Mortgage Borrower or any other
Mortgage Loan Party is in compliance with the requirements of the Mortgage Note, the
Mortgage, the Mortgage Loan Agreement and the other Mortgage Loan Documents;

make Protective Advances in accordance with the provisions of this
Agreement and the Mortgage Loan Documents;

receive all payments of principal, interest, fees and other charges paid by
(o)
or on behslf of the Mortgage Borrower and distribute all such funds to the Split Note
Holders as provided for in this Agreement;
(d)

enforce or refrain from enforcing all of the rights, remedies and privileges

afforded or available to the respective Split Note Holders under the terms of the
Mortgage Loan Agreement, the Mortgage Note and the other Mortgage Loan Documents,
any opinion, certificates, warranties, representations or insurance policies furnished by or
on behalf of the Mortgage Borrower or any other Mortgage Loan Party;

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in. connection with any Enforcement Action, subject to Section 2.03, (1)
bring such Enforcement Action in the Agent's name, as the Agent for all of the Split Note
Holders collectively, Ç2) retain and direct counsel to prosecute such EnThrcement Action
on behalf of the Agent for all of the Split Note Holders, (3) make all decisions concerning
the app ointnent of a receiver, the conduct of such Enforcement Action, the collection of
any judgment, the settlement of such Enfnrcement Action, the acceptance of a deed-inlieu of foreclosure, the bid on behalf of the Split Note Holders at any foreclosure sale,
and the commencement and conduct of any deficiency judgment proceeding, (4) suhject
to Section 4.03 hereof, determine the manner of taking and holding title to the Mortgaged
Property, and the sale of the Mortgaged Property after foreclosure, and (5) otherwise act
on behalf of (and act at the direction of in accordance with Section 2.03 hereof) the Split
Note Holders in connection with such Enforcement Action;
in connection with any Bankruptcy Action, (1) the Agent shall submit or
file a proof of claim on behalf of any Split Note Holder, as agent for same, if and to the
extent that such Split Note Holder has thiled to 1e its own proof of claim on or prior to
the tenth (10th) dajimmediately preceding the expiration of the time period for filing

cJjmq, (2) vota on behalf of the Split Note Holders pursuant to their direction in.
accordance with Section. 2.03 below, and (3) otherwise act on behalf of (and, in
accothance with Section 2.03 below, act at the direction of) the Split Note Holders in
connection with sueh Bankruptcy Action; and

do or refrain from doing all such other acts as may be reasonably
necessary or incident to the administration ami servicing of the Mortgage Loan and the
enfbrcement of the rights and remedies of the Split Note Holders.

203 Limitations on the AgeiL The provisions of this Section 2.03 shall, as
among the Agent and the Split Note Holders, govern and control any other inconsistent
provision of this Agreenieut, including, without limitation, Section 2.02 hereof. The
Agent shall not (i) agree to the modification or waiver of any of the terms of the
Mortgage Loan Agzcemen the Mortgage Note, the Mortgage or the other Mottgage
Loan Documents, (ii) consent to any act or omission by the Mortgage Borrower or any
other Mortgage Loan Party or (iii) exercise or waive any rights which the Agent or the
Split Note Holders may bave with respect to the Mortgage Loan, the Mortgage Loan
Agreement the Mortgage Note, the Mortgage or the other Mortgage Loan Documents if
any such agreement, consent or exercise would:
(a)

unless hi each case unanimously approved by all of the Split NoM

Holders:
(i)

change or modi1r the interest rate provisions set forth in the

Mortgage Loan Documents;

(u.increase or decrease the principal amount of the Mortgage Loan,
acept as permitted under the Mortgage Loan Documents or in connection with
the making of Protective Advances;

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(iii)

v)

alterthe Pro Ratalnterestof any SplitNoteHolder
extend the Maturity Date of the Mortgage Loan;

fbrgive the payment of principal o or interest on (other Than
Cv)
interest at the Dethult Rate), the Mortgage Loan or the payment of any other sum
orfte due under the Mortgage Loan Documents to which the Split Note Holders

are entitled; provided, however, if any Split Note Holder is entitled to any
additional amounts described in. the Mortgage Loan Agreement, any such Split
Note Holder may forgive the payment of any such sums due only to such Split
Note Holder without requiring the consent of any other Split Note Holder;
amend or modify in any material respect the terms and provisions
of this Agreement
release all or any portion of the Mortgaged Property or Mortgage
Loan Document (including guaranties, pledges, required equity contributions and

recourse obligations) for the Mortgage Loan except as expressly permitted
without the Agent's consent pursuant to this Agreement or as expressly permitted
by the Mortgage Loan Agreement or other Mortgage Loan Documents or modii'
any terms with respect to the conditions of release of the Mortgaged Property or

Mortgage Loan Documents (including guaranties, pledges, required equity
contributions and recourse obligations) iii any respect or release Mortgage
Borrower, Guarantor or any other credit support party or any other Persons liable

under any of the Mortgage Loan Documents from any obligation under the
Mortgage Loan Documents;
postpone any date for payment of principal o or interest on (other
than interest at the Dethult Rate), the Mortgage Loan or the payment of any other

sian or fre due under the Mortgage Loan Documents to which the Split Note
Holders are entitled; provided, however, if any Split Note Holder is entitled to any
additional amount c described in the Mortgage Loan Agreement, any such Split
Note Holder may agree to the postponement of payment of any such sums due
only to such Split Note Holder without requiring the consent of any other Split
Note Holder,

amend or modify in any material respect the ternis and provisions
of the lntercreditor Agreement;

enter into or modify any agreement subordinating any of the Split
Notes to any indebtedness;
permit or consent to any Transfer (other than a Transfer permitted
pursuaxitto the terms of the Fntercreditor Agreement) or voluntary or involuntary

sale or transfer of all or any portion of the Mortgaged Property or permit any
subordinate financing (other than the Mezzanine Loan) or additional financing of
all or any portion of the Mortgaged Property except as expressly permitted

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without the Agent's consent by this Agreement or except to the extent any of the
same is expressly permitted by the Mortgage Loan Agreement;

Fsrh of the foregoing modifications and other actions set forth in this Section
2.03(a) shall be referred to as an "Unconditional Unanimous Consent Modification."
(b)
Holders:

unless in each case consented to or directed by the Required Split Note

deliver a written waiver of any material obligation uziñer the
Mortgage Loan Documents or a claim against Mortgage Borrower (other than any
waiver described in subsection (a) above, for which the unanimous approval of all
Split Note Holders shall be required);

nit arrangements for or agree to the distribution of any insurance
or condemnation proceeds in a manner not contemplated by the Mortgage Loan
Documents;
consent to an appraisal to determine the Thu insurable value of the
Çiii)
Improvements; or
(iv)
Property

consent to any material change in the use of the Mortgaged

Notwithstanding anything to the contrary herein, (i) each Split Note
Holder shall have the sole right to waive any provisions of the Mortgage Loan
Documents relating to the payment of interest at the DetUIt Rate on any amounts due
and oting with respect to the Note held by such Split Note Holder and (ii) to the extent
that any of the modifications and/or other actions set forth in This Section 2.03(b) till

cause to occur or otherwise result hi any Unconditional Unanimous Consent
Modification, the unanimous consent of all of the Split Note Holders shall be required as
provided under Section 2.03(a) hereof

As to any matters which are subject to the consent or direction of all Split
Note Holders or t& Required Split Note Holders, the Agent shall not be permitted or
required to exercise any discretion or take any action except upon the instructions of all
the Split Note Holders or the Required Split Note Holders, as the case may be, which
instructions shall be binding upon all Split Note Holders. The Agent and its directors,
officers, agents and employees shall be fully protected in acting or in refluining from
action upon such instructions or direction. hi no event shRIl the Agent be required to take

any action which exposes the directors, officers, agents or employees of the Agent to
personal liability or which is contrary to the Mortgage Loan Documents or applicable
law. As to any matters not expressly provided for by the Mortgage Loan Documents or
this Agreement, the Agent shall not be required to exercise any discretion or take any
action, unlcas such inaction on the part of the Agent exposes the Agent or its directors,
officers, agents or employees to personal liability or is contrary to applicable law or
violates the Servicing Standard. In acting hereunder as the Agent, the Agent qhRll be
acting for its own account as one of the Split Note Holders, and for the account of the
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other Split Note Holders, to the extent of their respective Pro Rata Interests in the
Mortgage Loan.
2.04. Approval of Split Note Holders; Ali communications from the Agent to

the Split Note Holders requesting the Split Note Holders' determination, consent,
approval or dipprova1 (i) qhall be given hi the fon of a written notice to each of the
Split Note Holders, (ii) shall be accompanied by a description of the matter or thing as to
which such determination, approval, consent or disapproval is requested, and shall advise
each. of the Split Note Holders where such matter or thing may be inspected, or shall
otherwise adequately describe the matter or issue to be resolvad, (iii) ql-ial! include, to the
extent not previously provided to the Split Note Holders, all written ni2terials (to the
extent necessary to make an informed decision) and a description of all oral intbrmaüon
(to the extent necessary to make an informed decision) provided to the Agent in respect

of the matter or issue to be resolved and (iv) shall include the Agent's recommended
course of action or detennination in respect thereof. The Split Note Holders shall reply
within seven (7) finteas Days after receipt of such notice or such shorter period as may
be required under the Mortgage Loan Documents and as specifically identified to the
Split Note Holders by the Agent so as to not prejudice the Agent's or any Split Note
Holder's position under the Mortgage Loan Documents, provided, however, that if any
Split Note Holder bas not replied to the Agent with uch seven (7)-Business Day period,
the Agent shall send such Split Note Holder a second notice of such request, which
second notice shall inform such Split Note Holder that its response to such request is
required within an additional three (3) Business Days. Such second notice chnll include a

boldted, conspicuous legend at the top of the first page thereof staling that "I YOU
FAIL TO RESPOND TO, OR EXPRESSLY DENY, THIS REQUEST IN WRiTING
WITHIN THREE BUSINESS DAYS YOUR APPROVAL SHALL BE DEEMED
GIVEN-" Failure of a Split Note Holder to respond to the second notice within such
additidnal three (3)-Business Day time frame shall be deemed to be an approval of such
recommendation or determination.
2.05. Enforcement Mtions; Banknwtcy Actions; Protective Advances. Each of
the Split Note Holders acknowledges and agrees that no individual Split Note Holder
may (i) separately enforce or exercise any of the provisions of any of the Mortgage Loan

Documents (including, without limitation, the Notes) other than through the Agent, or (ii)

separately appear, submit or 111e any claim, vote, or take any other action in any
Bankruptcy Action other titan through the Agent, except that each Split Note Holder shall
Esave the right to file its own proof of claim in any Bankruptcy Action. The Agent shall
advise the Split Note Holders of ali material actions which the Agent takes in accordance
with the provisions of this Section 2.05. No Split Note Holder shall make a Protective
Advance without the consent of the Required Split Note Holders except the Agent may

make such an advance in the event of any emergency or any other expense if the
consequences of fifflure to prevent or cure could have an adveu affect on the value of
the Mortgaged Property or the Mortgage Loan. Any such Protective Advances made by
the Agent shall accrue interest at the Prime Rate front the date advanced until repaid to
the Agent as provided hereundet If at any time a holder of any interest in the Mezzanine
Loan is also a Split Note Holder, Ñen stich Split Note Holder shall have no right to
authorize, approve, vote on or consent to a Protective Advance.
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2.06. Notice tu Split Note Holders. The Servicer t'il promptly provide each
Split Note Holder with copies of ail Th,Rnrial statements delivered by the Mortgage
Borrower or any other Mortgage Loan Party to the Servicer pursuant to the Mortgage
Loan Agreement Each Split Note Holder agrees to keep such financial statements
confidential to the same extent that the Lender is obligated to the Mortgage Borrower to
keep such statements confidential as provided in the Mortgage Loan Agreement The
Servicer shøll promptly deliver to the Split Note Holders all material information
regarding the Mortgaged Property (including without limitation, quarterly and annual
officer's certificates, comfbrt letters, operating statements, sales reports and management

and operating reports delivered pursuant to the Mortgage Loan Agreement), the Mortgage

Borrower or any Mortgage Loan Party, and any other holder of any of the ownership
interests of the Mortgage Borrower or any Mortgage Loan Party ñimished to or obtained
by the Servicer, as the Servicer or as one of the Split Note Holders, with respect to the
Mortgage Loan. The Servicer shall also promptly deliver to the Split Note Holders

copies of all notices (including, without limitation, notices of Dethult) and other
communications of a material nature relating to the Mortgage Loan and all notices
received under the JntercSitor Agreement which are sent or received by the Servicer.
The Servicer shall promptly notify the Split Note Holders of any notice of prepayment
received from the Mortgage Borrower.

2.07. Hazard Insurance and Condemnation Award. If any Split Note Holder
becomes aware of any damage to any Mortgaged Property, or of any actual or potential
condemnation affecting any Mortgaged Property or the security for the Mortgage Loan, it
shjill promptly notir the Agent of the occurrence and nature thereof The Agent shall
promptly notify each of the SplitNote Holders o and, upon prior written cousent of the
Required Split Note Holders, qhRll have the authority to adjust; compromise or settle

hazard insurance or condemnation cjnirns in accordance with the provisions of the
Mortgage Loan Documents. The net proceeds of any insurance or condemnation award,
after payment of fèes, expenses and costs of collection, shgit be made available to the
Mortgage Borrower to restore or replace the Mortgaged Property or be applied to the

principal amount of the Mortgage Loan in accordance with the provisions of the
Mortgage Loan Documents and in accordance with the provisions of applicable law. To
the extent permitted by applicable law and not otherwise provided for in the Mortgage

Loan Documents the proceeds of any insurance recovery or condemnation award
received by the Agent and not immedintely disbursed or immediately applied to the
Indebtedness or not otherwise distributed by the Agent in accordance with the Mortgage
Loan Documents or this Agreement, shall be deposited in an interest-bearing account for
the benefit of the Split Note Holders, which account 1i%d1 provide for interest at then
prevailing market rates, provided that nothing herein shall require that interest be earned

at the highest prevailing rates. The income, if any, received by the Agent from such
account and not payable to others shall be shared by the Split Note Holders in accordance
with their respective Pro Rata Interests.
2.08. Inspection. The Agent, upon the written request of any Split Note Holder,
shil make, or cause to be made, reasonable inspections of the Mortgaged Property and
shall provide the Split Note Holden with teasonable infbrmatiou with respect to the
condition of the Mortgaged Property. Provided no Event of Default exists, such
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inspections shall be made not more frequently than semi-annually. In the event that the
Agent inspects the Mortgaged Property in accordance with the foiegoing the Agent shall
noüf each Split Note Holder of such inspection at least 24 heurs prier te such inspection
and each Split Note Holder or its representative shall have the right to accompany the
Agent on such inspection.
2.09. Business Activities of Each Split Note Holder. Each Split Note Holder
acknowledges that the other Split Note Holders and their resp ecive Affiliates may make
loans or otherwise extend credit to and generally engage in any kind of business with any

Affiliate of the Mortgage Borrower ("Mortgage Borrower Related Parties"), and
receive paynrmts on such other loans or extensions of credit to Mortgage Borrower
Related Parties and otherwise act with respect Thereto freely and without accountability in
the same manner as if this Agreement and the transactions contemplated hereby were not

in ect No Split Note Holder shall assign its Note to the Mortgage Bormwer any
Mortgage Borrower Related Parties or the Mezzanine Bormwer
2.10. Mortgage Loan Documents. To the extent of any conflict between Article
IX of the Mortgage Loan Agreement and this Agreement; the tents and conditions of this
Agreement till prevail and controL To the extent not addressed in this Agreement, the
tenus and conditions of Article IX of the Mortgage Loan Agreement shall govern and

control, and such tenus and conditions set forth in Article IX of the Mortgage Loan
Agreement are incorporated herein by this reference.

SECTION 3. PAYMENTS INCREASED COSTS. PERMITFED TRANSACTIONS
3.01. Method of Payment Upon receipt of any payments of principal of,
interest on and other amounts due with respect to the Mortgage Loan, the Servicer t.11
promptly, but in no event later than. 12:00 noon, New York City time, on the Business
Day which is two (2) Business days blowing the collection in immediately available
thnds of any such payment by the Agent or the Servicer on behalf of the Agent distribute,

in immediately available funds, to each Split Note Holder entitled to payment in
accordance with this Agra emen.t, the amount to which such Split Note Holder is entitlecL
The distribution to each Split Note Holder hereunder chal! be to the account specified in
Exhibit B unless otherwise specified in writing to the Agent Bach payment to the Agent
or the Servicer on behalf of the Agent under this Section 3.01 shall constitute a payment
by the Mortgage Borrower to the Split Note Holders in the amount of such payment, and
any portion of the Mortgage Loan paid by any such payment to the Agent or the Servicer
on behalf of the Agent by or on behalf of the Mortgage Borrower civili not be considered
outstanding br any purpose alter the date of its receipt by the Agent or the Servicer on
behalf of the Agent
3.02. Payments. All amounts tendered by or collected from the Mortgage
Borrower or any other Person or otherwise available br payment of the Mortgage Loan
(including amounts received by any SeMcer), whether received in the bm of monthly
payments, spread maintenance payments, Ibreclosure proceeds, funds received as a result
of the taking of any Enforcement Action by the Agent, proceeds from the sale of the
Mortgaged Property, proceeds under title, hazard or other insurance policies or awards or
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settlements in respect of condemnation proceedings or shnilar exercise, of the power of
eminent domain (other than (i) proceeds, awards or settlements which are required to be
applied to the restoration or repair of the Mortgaged Property or released to the Mortgage

Borrower in accordance with the Mortgage Loan Documents, notwithstanding the
occurrence of a Loan Dethult, and Çii) amounts collected on the Mortgage Loan that are
then due and payable to the Servicer under the Mortgage Loan and any interest accrued
thereon incurred in connection with the Mortgage Loan) h211 be applied in the following
order of priority
first, to the Split Note Holders to reimburse the amount of any Protective
Advances made by the Split Note Holders in accordance with this agreement in the same
order in which such Protective Advances were made by the Split Note Holders; and
second, to the Split Note Holders pro rata in proportion to their respective

Pro Rata Interests and pari passu in an amount equal to ali amounts due under the A
Notes to satistj the ANotes in thU.
3.03. rncreased Cost oftheMortgage Loa If any SplitNote Holder is entitled
to, and decides to require payment of, any additional amounts described in the Mortgage
Loan Agreement, such Split Note Holder shall: (a) give 'written notice thereof to the
Agent, who shall noiifr the Mortgage Borrower, and such sums shall be payable to such
Split Note Holder at the rate and place indicated in such notice subject to the ternis of this
Agreement and the Mortgage Loan Documents; and (b) a
'tantously with the giving of

such notice, furnish to the Agent (who may, but is not obligated to, furnish to the
Mortgage Borrower) at least ten (10) Business Days prior to each date on which such
additional amounts are payable, a certificate of an officer of such Split Note Holder
setting forth the amount to which such Split Note Holder is then entitled pursuant to the
Mortgage Loan Documents. Such SplitNote Holder's certificate chah be consistent 'with
such Split Note Holder's good tàith determination of the costs incurred, directly or
indirectly, by it 'with respect to the related amounts and clialt be accompanied by such
other supporting documentation and evidence as the Agent or the Mortgage Borrower
shall reasonably require. The Agent shall remit to such Split Note Holder the Split Note
Holder's interest in such additional amounts to the extent collected and in accordance
with the terms and conditions of Section 3.01 hereof.
3.04. Taxes. All taxes due and payable on any payments to be made to a Split
Note Holder in respect of the Mortgage Loan or under the Mortgage Loan Agreement
shall be such Split Note Holder's sole responsibility. All payments payable to the Split
Note Holders hereunder or with respect to the Mortgage Loan shall be made to the Split
Note Holders without deduction for any taxes, rhRrges, levies or withholdings except to
the extent, if any, that such amounts are required to be 'withheld by the Agent under the
laws, tules and regulations of the United States of America and any other applicable
taxing authority. 1f a Split Note Holder is organized or is existing under the laws of
another jurisdiction outside the United States, such Split Note Holder shall provide to the
Agent upon the execution of this Agreement and, from tizne to time thereafter, completed

and signed copies of any form that may be required by the United States rutemal
Revenue Sei-vice in order to certify such Split Note Holder's exemptions from 'United
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States withholding taxes with respect tè payments to be made to such Split Note Holder
in respect of the Mortgage Loan or under the Mortgage Loan Agreement or such othei

documents as are necessary to indicate that all such payments are exempt from
withholding taxes or subject to such taxes at arate reduced by an applicable tax treaty.

3.05. Excess l'avinenta. If any Split Note Holder or the Agent in its capacity as
a Split Note Holder shall obtain any payment (whether voluntary, involuntary, tough
the exercise of any right of set-off or othnwise) on account ofita interest in the Mortgage
Loan in excess of the amount to which it is entitled pursuant to this Agreement, such
excess shall be shared among all Split Note Holders in accordance with their respective
Pro Rata Interests. However, if all or any portion of such excess payment is thereafter
recovered by the Mortgage Borrower or other party entitled thereto through legal action
or otherwise, each Split Note Holder shnll reimburse the party required to refund such
payment to the Mortgage Boxmwer or any other party entitled thereto in an amount equal

to the amount such Split Note Holder so received. Within three (3) Business Days of
obtaining any excess payment, each Split Note Holder agrees to nofif, the Agent of such
excess payment.
3.06. Recaptured Payments. 1f the Agent or any Servicer holding or having
distributed any amount received or collected in respect of the Notes determines, or a
court of competent jurisdiction orden, at any lime that any amount received or collected

in respect of the Notes must, pursuant to any Solvency, bankruptcy, fraudulent
conveyance, preference or similar law, be returned to the Mortgage Borrower or paid to

any Split Note Holder, the Agent or any Servicer or paid to any other Person, then,
notwithstanding any other provision of this Agreemeùt, neither the Agent nor any
Servicer qhnll be required to distribute any portion thereof to any Split Note Holder, and
each Split Note Holder shall promptly repay on demand a portion of the amount to be
returned to the Mortgage Borrower based on each Split Note Holder's Pio Rata Interest in
the Mortgage Loan, together with interest thereon at such rate, if any, as shall have been
required to be paid to the Mortgage Borrower, any Split Note Holder, the Servicer or
such other Person with respect thereto. The return of any funds pursuant to the foregoing
sentenze shall be allocated among the Split Note Holders so that any losses are allocated
to the Split Note Holders based on their respective Pro Rata Interests. Each of the Split
Note Holders agrees that if at any time it shall receive from any sources whatsoever any
payment on account of the Mortgage Loan in excess of its distributable share thereo it
dm11 promptly remit such excess to the Agent and the Agent shall hold such payment in

trust for the other Split Note Holders. The Agent shall have the right to offset any
amounts due hereunder from any of the Split Note Holders with respect to the Mortgage
Loan against any fixture payments due to any Split Note Holder, as applicable, under the
Mortgage Loan, provided, that the obligations of each of the Split Note Holders under
this Section 3.06 are separate and distinct obligations from one another and in no event
shall the Agent or the Servicer enforce the obligations of any Split Note Holder against

the other Split Note Holders. The obligations of the Split Note Holders under this
Section 3.06 constitute absolute, unconditional and continuing obligations and the Agent
and the Servicer sTudi be deemed a third party teneficiary of these provisions.

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3.07. Return of Parnents. g for any reason, the Servicer makes any payment
to any Split Note Holder before the Servicer has received or applied that corresponding

payment on the Mortgage Loan (it being understood that the Servicer is under no
obligation to do so), and, thereafter, the Servicer does not receive the corresponding
payment within five (5) Business Days of the date the Servicer made such payment to
such Split Note Holder, such Split Note Holder sh,il1, at the Servicer's request, relum that
payment to the Servicer within three (3) Business Days following such request In
addition, such Split Note Holder civili simultaneously remit interest on that payment at
the overnight rate for federal funds transactions between member banks of the Federal
Reserve System, as published by the Federal Reserve Bank of New York, for each day
fon the making of that payment to such Split Note Holder until its return to the Servicer.
If the Servicer has received or applied any payment in respect of the Mortgage Loan and
has paid any Split Note Holder on account of such payment and, thereafter, that payment
or application is rescinded or must otherwise be returned or paid over by the Servicer
under applicable law, whether or not required pursuant to any bankruptcy or insolvency
law, the sharing of payments clause of any Mortgage Loan Document or otherwise, such
Split Note Holder shall, at the Servicer's request, reten the amount so received to the
Servicer within three (3) Business Days following such request In addition, such Split
Note Holder qbnll sinuiltaneously remit any interest or other amount required to be paid
by the Servicer with respect to tivit payment or applicatioit All requests pursuant to this
Section 3.07 shall be promptly confirmed in writing, and such onfinnation shall include
an explanation of the circumstances giving rise to such request.

308 Permitted Transactions with Mortgage Borrower or Any Other Mortgage
Loan Party. The Agent, the Split Note Holders and their Affiliates may accept deposits
from, lend money to, act as Irustee u dpr indentures of, and generally engage in any kind
of business with the Mortgage Borrower or any Mortgage Loan Party, any principal or
partner of the Mortgage Borrower or any Mortgage Loan Party, and any person or entity
who may do business with or own securities of the Mortgage Borrower or any Mortgage
Loan Party or of any principal or partner of the Mortgage Borrower or any Mortgage
Loan Party, all as if the Agent, and the Split Note Holders ware not acting as lenders, and
the Agent was not acting as the Agent in respect of the Mortgage Loan, and without any
duty to account therefor, but subject to the Servicing Standnr& Notwithstanding the
preceding sentence, the Agent and the Split Note Holders each agree in their respective
capacities hereunder to act Thirly and without discrimination with respect to the Mortgage
Loan notwithstanding any other transactions or business each may have with the
Mortgage Borrower or any Mortgage Loan Party, any principal or partner of the
Mortgage Borrower or any Mortgage Loan Party, and any person or entity who may do
business with or own securities of the Mortgage Borrower or any Mortgage Loan Party or

of any principal or partner of the Mortgage Borrower or any Mortgage Loan Patty;
however, the foregoing shalt not limit the rights of either the Split Note Holders or the
Agent to enforce any remedies with respect to sich other transactions. 1f any property is

taken by the Agent or the Split Note Holden as collateral for any other loans or
extensions of credit made by the Agent, or the Split Note Holders to or for the Mortgage
Borrower or any Mortgage Loam Party, or any property is in the Agent' s, or any Split
Note Holder's possession or control, or any deposit is held or other indebtedness is owing
by the Agent, or any Split Note Holder, and that property, deposit or indebtedness, or the
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proceeds thereof; may be or become collateral for or otherwise available for payment in
connection with the Mortgage Loan by reason of the general description of secured
obligations contained in any security agreement or other agreement or instrument held by
the Agent or any Split Note Holder or by reason of a right of set-off, counterclaim or
otherwise, the other Split Note Holders shall have no interest in that property, deposit or
indebtedness, or the proceeds thereof; except that if the property, deposit or indebtedness,

or the proceeds thereof; shall be applied in reduction of amounts outstanding in
connection with the Mortgage Loan, then, subject to Section 3.07 hereof; the other Split
Note Holders chal! be entitled to the amount provided in this Agreement with respect to
such payment
3.09 First Interest Payment Pro Ration. Notwithstanding anything to the
contrary contained herein, the parties hereto herthy acknowledge and agree that the
payment of interest due on October 9, 2007. inder the Spilt Notes shall be prorated and
disbursed as follows:
pari passu to the Split Note Holders accordance with
their Pro Rata Interests in an amount equal to the accrued and unpaid interest on the
Mortgage Lao, for the period commencing on the September 9, 2007 through and
including October 8,2007 at the rates per anzunn specified in the Split Notes; and

all accrued and unpaid interest on the Split Notes fir the
period froth September 9, 2007 through and including the date immediately preceding the
date of this Agreement shall be paid by each Assignee to Assigna on the Settlement Date
(as such teuns are defined in the Assignment and Assumption Agreement).
SECTION 4. DEFAULT BY MORTGAGE BORROWER
4.01. Accelexatiom Upon te occurrence of i Loan Default, the Split Note
Holders hereby agree to consult with each other during the fifteen (15)-day period
immediøely following such occurrence with respect to the exercise of any rights and

remedies the Split Note Holdeù may have under the Mortgage Loan Documents or the
commencement of any Enforcement Action against the Mortgaged Property. The Agent
shnll promptly notifr all of the Split Note Holders of the decision ruade or direction given

by the Required Split Note Holders.

During such fifiben (15)-day period, no

Enforcement Action shall be taken unless directed by the Required Split Note Holders. If
at the end of such fifteen (15)-clay period, (a) the Loan De&ult has not been cured or
waived in accordance with the terms of this Agreement, or (b) the Required Split Note
Holders have not affirmatively directed the Agent to either take an Enforcement Action

or to take no action, the Agent shall declare the outstanding principal balance of the
Notes, all interest thereon and all other amounts payable under the Mortgage Loan
Documents to be immediately due and payable and commence an Enforcement Action,
including, without limitation, the commencement of a foreclosure action or similar action

against the Mortgaged Property, provided that (A) such action is not stayed by any
bankruptcy or insolvency proceeding or any other injunction or court order, (B) the Agent
believes in good Thith that such action shall not expose the Agentto any liability from any
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party, including without limitation, Mortgage Borrower or any Split Note Holder and (C)
such Loan Dethult shall constitute a material Loan Default If after commencing such
Enforcement Action, the Agent is directed to cease such Enforcement Action or to take

another course of action by the Required Split Note Holders under the terms of this
Agreement, the Agent shall follow such direclion.
4.02. Thiförcement of Remedies. Subject to the provisions of Sections 2.05 and
4.01 hcreo the Required Split Note Holders shall determine whether and in what manner

and fo what extent, any and all rights under the Mortgage Loan Documents qliIl be
exercised by the Agent in respect of a LoS DelimIt Çmcluding, without limitation, during
the pendency of any Bankruptcy Action), including, but not limited to, whether all or any

portion of the Mortgaged Property should be acquired or relii7Pd upon and, if it is
determined that an acquisition should be made, whether such acquisition should be made
by the acceptance of a deed in lieu of foreclosure or by purchase at foreclosure sale or
otherwise. The Agent shall thereupon take such action as is approved or directed by the
Required Split Note Holders.
4.03.

TitLe to Mortgaged Property. In the event that all or any portion of the

Mortgaged Property is acquircd by the Agent as the result of a foreclosure or the
acceptance of a deed or accigament in lieu of foreclosure, or is retained in satisfaction of
all or any part of Mortgage Borrower's obligations, title to any such Mortgaged Property
or any portion thereof shall be held in the name of the Agent or a nominee or subsidiiiry
of the Agent, in any case as agent, for the ratable benefit of the Split Note Holders. The
Agent chah promptly after the taking of title prepare a recommended course of action for

such Mortgaged Property (the 'Post-Foreclosure PIan', which chah be subject to the
approval of the Required Split Note Holders in accorcLinrr with the procedure set forth in
Section 2.04 hereofL The Agent shall manage, operate, repair, administer, complete,

construct, restore or otherwise deal with the Mortgaged Property so acquired in
accordance with the Servicing Standath and the Post-Foreclosure Plan and administer all
transactions relating thereto, including, without limitation, employing a managing agent

and other agents, contractors and employees, including agents for the sale of such
Mortgaged Property, or any portion thereuÇ and the collecting of rent and other sums
tim such Mortgaged Properly, and paying expenses of such Mortgaged Property. The
Agent shall render, or cause to be rendered by the managing agent, to each of the Split
Note Holders, monthly, an income and expense statement for the Mortgaged Property.
Finii of the Split Note Holders shall contribute its Pro Rata Interest of any operating loss
for such Mortgaged Property, and such other expenses and operating reserves as the
Agent shall deem reasonably necessary within five (5) Business Days following notice
thereof. To the extent there is net operating income from such Mortgaged Property, the
Agent chal! detennine the amount and timing of distributions to the Split Note Holders.
All such distributions shall be made to the Split Note Holders in accordance with Section
3.02 of this Agreement The Agent shall undertake to sell such Mortgaged Property, at
such price or prices and upon such terms and conditions as may be approved pursuant to
Section 2.03. Any sales proceeds from any portion of the Mortgaged Property ramaining
alter each Split Note Holder receives all amounts to which it is entitled pursuant to
Section 3.02 shall be distributed to the Split Note Holders in accordance with their Pro
Rata Interests.

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SECTION 5. DEFAULT BY AGENT OR SPLIT NOTE HOLDER
5.01.

Defaults.

g fir any reason, the Agent, as a Split Note Holder but not as an the
Agent, or any of the Split Note H Iders shall ThU or refuse to abide by its obligations
under the Mortgage Loan Agreement, this Agreement or the other Mortgage Loan
Documents and such failure continues five days after written notice frani the Agent (or if
the Agent, as a Split Note Holder, is the one refising or failing to abide by its obligations,
from. any other Split Note Holder) of such Thilure (provided that no such written notice
and opportunity to cure shall be applicable to the extent that it may, in any way, prejudice
or adveisdy affect the rights or remedies of Lender under the Mortgage Loan Agreement

or any of the other Mortgage Loan Documents) (each a "Defaulthg Split Note
Holder"), then, in addition to the rights and remedies that may be available to the Agent

and the other Split Note Holders at law and in equity, such Defaulting Split Note
Holder's right to participate in the administration of the Mortgage Loan and the Morigage

Loan Documents, including without limitation, any rights to consent to or direct any
action or inaction of the Agent tU be suspended during the pendeney of such failure or
refusal.

g for any reason, the DefMilting Split Note Holder fails to make timely
payment of any amount required to be paid by it hereunder or under the Mortgage Loan
Documents, in addition to other rights and remedies which the Agent, on behalf of all
Split Note holders, may have under Section 5.0 1(a) hereof or otherwise, the Agent, on
behalf of all Split Note Holders, shall be entitled (i) to collect interest from the Deßnilthg
Split Note Holder for the period from (and including) the &te on which the payment was
due until (but excluding) the date on which the payment is ruade at the Prime Rate, (ii)
pursuant to Section 5.01(d) hereof, to withhold or set og and to apply to the payment of
the defaulted amount and any related interest, any amounts to be paid to the Defaulting
Split Note Holder under this Agreement, and (iii) to bring an action or suit against the
Defaulting SplitNote Holder in a court of competent jurisdiction to recover the defaulted
amount and any related interest

JI the Agent is a Defaulting Split Note Holder, the Current Split Note
Holders holding at least sixty six and two thirds percent (66 %%) of the outstanding
principal balance of the Notes ahnil have the immediate right to termitmte the Agent as
the Agent and appoint a successor Agent pursuant to Section 1.07 hereof (provided that
for this purpose if any Split Note Holder is a Defaulting Split Note Holder, such Split
Note Holder's Pro Rata Interest shall be excluded in detemiining which Split Note
Holders constitute at least sixty six and two thirds percent (66 34%) of the outstanding
principal balance of the Notes). Until such lime as such successor Agent has accepted
such appointment, the Agent shall take no action other than upon the consent or direction
of the Required Split Note Holders or, if such action requires the consent or direction of

all of the Split Note Holders, upon the consent or direction of all of the Split Note
Holders other than the Agent

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(d)

If any Defaulting Split Note Holder shall fail to make any advance

required under the Mortgage Loan Documents or This Agreement, the Current Split Note
Holders shall have the right to fund such advance on behalf of the Defaulting Split Note

Holder (and if more than one Current Split Note Holder desires to finid such advanc;
then the finding shall be nade in accordance with their respective Pro Rata Interests
recalculated for the purposes hereof to exclude the Defaulting Split Note Holder). All
Obligations owing to a Defaulting Split Note Holder and to be applied or distributed
hereunder shall be subordinated in right of payment, as provided in the fbllowing
sentence, to the prior payment in fall of all principal oQ interest on and fees relating to
the advances funded by the Current Split Note Holders in connection with any such
advances in which the Defaulting Split Note Holder has not funded its Pro Rata Interest
(or bas otherwise failed or refused to abide by its obligations under the Mortgage Loan
Agreement, this Agreement or the other Mortgage Loan Docmnea,ts and such failure or
refirsal has a material adverse affect on the Split Note Holders, the Mortgage Loan or the
Mortgage Borrower) (such principal, interS and fees being referred to as "Default
Loans" for the purposes of this Section 5.01(d)). Each Default Loan shall accme interest
at the Prime Rate. All amounts paid by the Mortgage Borrower and otherwise due to be
applied to the Obligations owing to such Defaulting Split Note Holder pursuant to the
ternis hereof shall be distributed by the Agent to the Current Split Note Holders holding
Default Loans in accordance with the respective balances of the outstanding Default
Loans until all Default Loans have been - in full Upon such payment in full of all
Default Loans, the Dethulting Split Note Holder shtll no longer be deemed a Defaulting
Split Note Holder. This provision governs only the relationship among the Agent, each
Defaulting Split Note Holder and the Current Split Note Holders; nothing hereunder shall
limit the obligation of Mortgage Borrower to repay ali Mortgage Loans in accordance

with the terms of the Mortgage Loan Documents. The provisions of this section shall
apply and be efihetive regardless of whether a Loan Default occurs, and notwithstanding
(i) any other provision of this Agreement to the contrary, (ii) any instruction of the
Mortgage Borrower as to its desired application of payments or (iii) the suspension of
such Defrnñting Split Note Holder' s rights to vote on matters which are subject to the
consent or approval of the Split Note Holders or all of the Split Note Holders.

102. Advances. F2rh of the Agent, solely in its capacity as a Current Split
Note Holder, and any one or more of the other Current Split Note Holders may, at their
respective option, pay to the Agent all costs, expenses or disbursements incurred or made
by the Agent pursuant to the terms of this Agreement not theretofore paid by a Defaulting

Split Note Holder and thQ amounts so paid shall constitute Default Loans to such
Dthulting Split Note Holder.
SECTION 6. INDEMNIFICATION
6.01. Indemnification of the Agent
Each Split Note Holder agrees to
indemnify, defend, reimburse and hold the Agent harmless (to the extent not reimbursed
by the Mortgage Borrower or any other Mortgage Loan Party), in accordance with its Pro
Rata Interest, for any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, reasonable costs, expenses or disbursements which may be imposed on,
incurred by, or asserted against the Agent, as agent in any way relating to or arising out
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of the Mortgage Loan, or any action taken or omitted by the Agent under this Agreement
or the Mortgage Loan Documents and shall make payment with respect thereto within ten
(10) Business Days of a request therefor, provided that the Split Note Holders shall not be
liable for any portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from, related to or arising
foin the breach of the Servicing Standard or this Agreement or from the gross negligence
or willild misconduct of the Agent, as the case may be, as determined by a final judgment
of a court of competent jurisdiction. Each Split Note Holder agrees to reimburse the
Agent promptly upon demand for its Pro Rata Interest in all Protective Advances made
by the Agent in accordance with the terms of this Agreement. The Agent shcill be entitled
to deduct from any payments to be made to the Split Note Holders under this Agreement,

and to retain, amounts due the Agent as reimbursement hereunder provided that the
Agent shall have first delivered to the Split Note Holders thirty (30) days prior written
notice of such amounts and the circumstances giving rise thereto, and the Split Note
Holders have not paid such amounts. The Agent shall make reasonable attempts to
collect such amounts from the Mortgage Borrower ¿ncl the other Mortgage Loan. Parties.
1f the Agent receives payment of any amount referred to in this Section 601 from the
Mortgage Borrower or any third party aller a Spilt Note Ifolder has reimbursed the Agent
fox such amount, the Agpnt shsll promptly return the amount of the reimbursement to

such Split Note Holder. Any loss, cost, liability or expense occasioned solely by the
conduct of any one of the Split Note Holders shall be borne solely by the party causing
such loss, cost, liability or expense and such party shall indemnify, defend and hold the
other Split Note Holders harmless against any and ali such losses, costs and liabilities and
expenses (including, but not limited to, reasonable attorneys' foes) sustained, or incurred
by the other Split Note Holders as a result thereof:
6.02.

Indemniñcation on Default Bach Defaulting Split Note Holder chah

indemnify, defend and hold the Agent and each of the other Split Note Holders harmless
from and against any and all losses, damages, liabilities or expenses (including, but not
limited to, reasonable attorneys' fees and interest at the Default Rate) which they may
sustain or incur by reason of or as a consequence of the Defaulting Split Note Holder's
failure or reftmal to abide by its obligations under the Mortgage Loan Documents or this

Agreement The Agent till set-off against principal, interest or other payments due to
the Defaulting Split Note HolderS for losses actually incurred by the Agent and the other
Split Note Holdeys as a result of such Defaulting Split Note Holder's failure or refusal to
abide by its obligations under the Mortgage Loan Documents or this Agreement The
exercise of the above ternedies clwll not reduce, dminish or liquidate the Defaulting Split

Note Holder's Pro Rata Interest or the obligations for the sharing of losses and
reimbursement for costs, liabilities and expenses under the Mortgage Loan Agreement
and this Agreement
SECTION 7. REPRESENTATION WAIUtANTS AND ACKNOWLEDGMENTS
7.01. Split Note Holder's Representations and Warranties Farh Split Note
Holder hereby represents and warrants to the other parties to thic Agreement, as of the
tiatehereofi

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The Split Note Holder has all necessary corporate power and authority to
awn its Pro Rata Interest in the Mortgage Loan, and bas all necessary corporate power
and authority to perform all its obligations with respect to this Agreement, the related
Assignment and Assumption, the Mortgage Loan Agreement and the Mortgage Loan
Documents;
The execution and delivery of this Agreement, the related Assignment and
Assumption, the Mortgage Loan Agreement and all other instruments and documents
executed in connection therewith have been duly authorized by all requisite corporate
action of the Split Note Holder;
(e)

Neither the execution and delivery

of

this Agreement the related

Assignment and Assumption or the Mortgage Loan Agreement nor performance by the

Split Note Holder thereunder 'will conflict with or result lu a breath of any of the
provisions of, or constitute a default under the organizational documents of the Split Note
Holder, as amended, or any agreement, mortgage, indenture or other instrument to which

the Split Note Holder is a party, or result in the violation of any law, nile, regulation,
order, judgment or decree to which the Split Note Holder is subject;
of the

There is no litigation or governmental proceeding pending or, to the best
Split Note Holder's knowledge, threatened which, if determined adversely to the

Split Note. Holder, would materially adversely affect the enforceabifity of this
Agreement, the related Assignment and Assumption, the Mortgage Loan Agreement or
any other document or instrument executed in connection herewith

No approval, authorization, order, license or consent o or registration or
filing with, any governmental authority or other person is required in connection with this
Agreement, the related Assignment and Assumption or the Mortgage Loan Agreement
and
It is, and upon its execution and delivery of this Agreement and the related
Assignment and Assumption and its pertbrmance thereunder, shall continue to be (1) in.
compliance with any and all applIcable licensing requirements of the state where the
Mortgaged Property is located, if any stich requirements are applicable to the Split Note
Holder, and (2) (i) organized under the laws of such state or (ii) qualified to do business
in such state or (iii) to the best of its knowledge, not required to qualify to do business in
such state.

7.02. BRISA Representations. The Split Note Holders represent and warrant to

the other parties of this Agreement thnt neither the execution nor delivery of this
Agreement, the Mortgage Loan Agreement or the Mortgage Loan Documents or any
subsequent Assignment and Assumption nor the exercise of any remedy or enforcement

of any riat with respect thereto will constitute a prohibited transaction within the
meaning of section 406 of the Employee Retirement Income Security Act of 1974, as
amended, or section 4975 of the Internal Revenue Code of1986, as amended, for which
an exemption is not available, and if such. execution, delivery, purchase, exercise or

enforeement constitutes such a prohibited transaction, the Split Note Holders will
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cooperate with the Deprtment of Labor, rnternal Revenue Service and other affected
parties in obtaining an exemption therefor. The Split Note HoMers will not sell, assign,
transfrr, participate or otherwise dispose of its interest in the Mortgage Loan Agreement

and the Mortgage Loan Documents to any entity other than the Agent unless the
prospective purchaser, assignee, participant or transferee provides the Agent with a
certification or opinion of counsel reasonably safisfäctory to the Agent that such sale,
assignment, imnsfer or other disposition will not constitute, and will not cause the
exercise of any remedy or enforcement of any right with respect to this Agreement or the
Mortgage Loan Documents to be, such a prohibited transaction.
7.03. Agent's ReDresentatìons and Warranties. The Agent hereby represents
and warrant to the other pailles hereto, as of the date hereof:

The Agent has all necessary corporate ower and authority to own its Pro
Rata Interest in the Mortgage Loan, ¿nd has all necessary corporate power and authority
to perform all its obligations with respect to this Agreement, the related Assignment and
Assumption, the hiteroreditor Agreement, the Mortgage Loan Agreement and the other
Mortgage Loan Documents;
The execution and delivery of this Agreement, the related Assignment and
Assumption and the Jntercreditor Agreement and all other instruments and documents
executed in connection therewith have been duly authorized by all requisite corporate
action of the Agent;

Neither the execution and delivery of this Agreement the Intercreditor
Agreement, the related Assignment and Assumption, nor performance by the Agent
thereunder will conflict with or result in a breach of any of the provisions o or constitute

a deftult under the organizational documents of the Agent, as amended, or any
agreement, mortgage, indenture or other instrument to which the Agent is a party, or
result in the violation of any law, rule, regulation, other, judgment or decree to which the
Agent is subject;
(5)
There is no litigation or governments! proceeding pending, or to the best
of the Agent's knowledge, threatened which, if determined adversely to the Agent, would
adversely affect the enforceability of this Agreement, the Interereditor Agreement, the
related Assignment and Assumption, or any other document or instrument executed in
connection herewith and

lt is (I) in compliance 'with any and all applicable licensing requirements

of the state where the Mortgaged Property is located, if any such requirements are
applicable to the Agent, and (2) (i) organized under the laws of such tate, or (ii) qualified
to do business in such state or (iii) to the best of its knowledge, not required to qualify to
do business in such state.

There are no documents evidencing or securing the Mortgage Loan other
than the Mortgage Loan Documents, true and correct copies of which have been provided

to each of the Split Note Holden. There are no documents between the Agent and the
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holder of the Mezzanine Loan regarding the relationship between the Mortgage Loan and

the Mezzanine Loan other than the Interereditor Agreement tue and correct copies of
which bave been provided to each of the Split Note Holders. None of the Mortgage Loan
Documents or the Intercreditor Agreement has been superseded, amended, modified,

cancelled, extended or otherwise changed except as described in the recitals to this
Agreement

704. Examination of Mortgage Loan.
Each Split Note Holder hereby acknowledges that LBHI has flirnished it
with copies of the Mortgage Loan Documents and financial statements, certificates,
instruments, documents, affidavits, resolutions and agreements as such Split Note Holder
deemed necessary to make its own credit analysis and decision in respect of the Mortgage
Loan. Bach Split Note Holder acknowledges that it has, independently and, except as set
forth herein, in the Mortgage Loan Documents or in the Assignment and Assumption,
without reliance upon the Agent or any other Split Note Holder and based on such other
documents and information as it bas deemed appropriate, made its own credit analysis
and decision to enter into this Agreement and to. extend credit to the Mortgage Borrower.
Each Split Note Holder also acknowledges to the Agent and the other Split Note Holders
that it wifi, independently and Without reliance upon the Kgenior any other Split Note
Holder and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in taking or not
taking action in respect of the Mortgage Loan and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, prospects, financial and
other conditions of creditworthiness of the Mortgage Borrower and the other Mortgage
Loan PartIes.

Each Split Note Holder hereby acknowledges fli,t except as specifically

set forth herein or in the Mortgage Loan Agreement or in thò Assignment and
Assumption, neither the Agent nor any Split Note Holder. makes any warranty or
representatioñ to the Split Note Holders and neither the Agent nor any Split Note Holder

shall be responsible to any Split Note Holder for (i) any statements, warranties or
representations (written or otherwise) made in or in connection with the Mortgage Loan

or the Mortgage Loan Documents or for the financial condition of the Mortgage
Borrower or any Mortgage Loan Party or fix the title or the value of the Mortgaged
Property nor (ii) the due execution, legality, validity, enforceability, genuineness,
sufficiency or colleclibility of any of the Mortgage Loan Documents or any other
instrument or document fiznished pursuant thereto or in connection with the Mortgage
Loan or the legality, validity, enforceability, genuineness, sufficiency, perfection or
.

priority of any rights in the Mortgaged Property.

ECTION 8. ASSIGNMENTS AND PARTICIPATIONS
8.01.

Assignments and Participations.

(a)
Bath Split Note Holder may transfer or assign its interest in the Mortgage
Loan by assignment in accordance with and subject to the tents and conditions of this
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Agreement, provided thät any transfb by assignment to a Split Note Holder of less than a
Split Note Holder's entire interest in the Mortgage Loan shall be in a minimum amount
of $10,000,000 ñnd provided fùrther, that with respect to each Split Note Hàlder, any

suchtransferto anyfersonthathnotanAffiliateofanexisting SplitNoteHoldershall
be either (a) to a Qualified Transferee or Q) subject to prior written approval of the
Required Split Note Holders, which approval shall not be unreasonably withheld,
conditioned or delayed.

The assigning Split Note Holder will give notice of such assignment to the
)
Agent, and the Agent will give notice of such assignment to the other Split Note Holders.
Upon the effectiveness of any such assignment (and after notice to, and (to the extent

required pursuant to the terms hereof), with the consent o4 the Required Split Note
Holders, if applicable) the assignee chill become a 'tende?' or "Split Note Rolde?' for
all purposes of this Agreement and the Mortgage Loan Documents and, to the extent of
such assignment, the assigning Split Note Holder shall be relieved of its obligations
hereunder to the extent of the Note being assigned, and in connection therewith, the
Agent qhnll be authorized to amend Exhibit A of this Agreement to reflect Pro Rata
Tnterests of each of the Split Note Holders taking into account such assignment In
connection with such assignment, the Agent agites upon notice of such assignment and
the surrender of the appropriate Note to the Agent by the assigning Split Note Holder, it
will promptly cause the Mortgage Borrower to provide to the assigning Lender and to the
assignee separate promissory notes in the amount of theft respective interests
substantially in the form of the original Note being assigned (but with notation thereon
that it is given in substitution for and replacement of the original Note or any replacement
noteí thercof) By executing and delivering an assignment agreement in accordance with
this Section 8.01(b), the r4Ñcigning Lender thereunder and the assignee thereunder shall be
deemed to confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of the interest
being assigned thereby flee and clear of any adverse clninv (ii) except as set forth in
clause (i) above, such assigning Lender makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations made in or
in connection with this Agreement, any of the Mortgage Loan Documents or any other
instrument or document furnished pursuant hereto or thereto, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement any of the

Mortgage Loan Documents or any other instrument or document famished pursuant
hereto or thereto or the fliinncial condition of the Mortgage Borrower or the performance
or observance by the Mortgage Borrower of any of its obligations under the Mortgage

Loan Documents or any other instrument or document furnished pursuant hereto or
thereto; (iii) such assignee represents and warrants that it is legally authorized to enter
into such assignment agreement, (iv) such assignee confirms that it has received a copy
of this Agreement, the Mortgage Loan Documents and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to
enter into such assignment agreement, (y) such assignee will independently and without
reliance upon the Agent, such assigning Lender or any other Lender, and based on such
documents and inThrmation as it chaU deem appropriate at the time, continue to make its

own credit decisions in taking or not taking action under this Agreement and the
Mortgage Loan Documents; (vi) such assignee appoints and authorizes the Agent to take
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such action on its behalf and to exercise such powers under this Agreement or the
Mortgage Loan Documents as are delegated to the Agent by the terms hereof or thereof,
together with such powers as are reasonably incidental thereto; and (vil) such assignS
agrees in %sTiting that it shall perform in accordance with their tenus all the obligations
which by the terms of this Agreement and the Mortgage Loan Documents are required to
be performed by it as a Lender or Split Note Holder.

The Agent shall maintain a copy of each Assignment and
Assumption Agreement delivered to and accepted by it and shall record in its
records the names and address of each Spilt Note Holder and its Pro Rata Interest

Upon receipt of an Assignment and Assumption Agreement
executed by an assigning Lender and an assignee, the Agent shaIl if such
Assignment and Assumption Agreement has been properly comple4ed and
consented to if required herein, accept such Assignment and Assumption
Agreement, and record the information contained therein in its records.

Each Split Note Holder may grant a participation interest in its Spilt Note

and in and to i rights and obligations under the Mortgage Loan Documents in
accordance with and subject to the terms and conditions of this Agreement 'without the
consent of the Agent or any other Split Note Holder; provided, however that (i) such
Spilt Note Holder provides written notice of any such participation to the Agent; (il) such
Spilt Note Holder qbnll remain solely responsible to the other parties hereto for the
performance of its obligations under this Agreement, (iii) the Agent and the other Split
Note Holders shall continue to deal solely and directly with such Split Note Holder in
connection with such Spilt Note Holder's rights and obligations under this Agreement
and with regard to any and all payments to be made under this Agreement, and (iv) the

holder of any such participation shall not be entitled to voting rights under this
Agreement.

Notwithstanding anything to the contrary contained in this Section 8.01.
each Split Note Holder shill be pennitted to transfer or assign its interest in the Mortgage
Loan to a trustee (a "Trcnhander") as part of a pool of mortgages securing Pfandbriefe
issued by suth Spilt Note Holder under German law aUoving the issuance of Pfandbriefe.
8.02.

Not a Security. The Split Notes shall not be deemed to be securities

within the meaning of the Securities Act of 1933 or the Securities Exctrnge Act of 1934.
Each of the Split Note Holders acknowledges that it is (i) (a) a substantial, sophisticated
investor having such knowledge and experience in finnnrial and business matters, and, in
particular, in such maten related to instruments sirnilnr to the Split Notes, such flint it is
capable of evaluating the merits and risks of investment in the Split Notes, (b) able to
bear the economic risks of such an investment and (o) au "accredited investor within the

meaning of Rule 501(a) promulgated pursuant to Securitìes.Act of 1933; or (ii) a
"qualified institutional buye?' as defined in Rule 144A iimler the Securities Act of 1933.

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SECTiON 9. FINANCING
9.01. Financing. Each Split Note Holder (in such capacity, a "Loan Pledgor")
shall have the right to pledge (such pledge, a "Pledge") audIt Split Note Holder's Split
Note to any Person which has extended a credit facility, including, without limitation,
credit in the form of a repurchase agreement facifity, to such Loan Pledgor and would

otbnvSe satisfy the requirements of a Qualified Transthree (such Persón, a "Loan
Pledgee"), on the terms and conditions set forth in this Section 9.01. Upon written notice
by the Loan Pledgor to the Agent that the Pledgé has been effected and delivery to the

Agent of the address for notice purposes of the Loan Pledgee, the Agent agrees to
acknowledge receipt of such notIce and thereafter agrees: (i) to give the Loan Pledgee
written notice of any default by the Loan Pledgor under this Agreement of which default

the Agent has actual kttowledge; (ii) to allow the Loan Pledgee (who qhll not be
obligated to cure and such default) to cure such 4e&ult within the same period afforded
to the Split Note Holder; and Çiii) that no amendment or modification of this Agreemeirt
that adversely affects the rights or obligations of the Loan Pledgor, and no waiver or
termination of the Loan Pledgor's right under this Agreement, shall be effective against
the Loan Pledgee without the written cousant of the Loan Pledgec, which consent shall
not be unreasonably withhekF pmvided. however the consent of the Loan Pledgee shall
not be required nnfrss the Loan Pledgor's consent was required pursunnt to the terms of
thi.' Agreement to effect mich modification, waiver or termination; and Çiv) that, upon
written notice (a 'Redirection Notice") to the Agent by the Loan Pledgee that the Loan
Pledgor ¡s ¡n dethult beyond applicable cure periods under its obligations to the Loan
Pledgee pursuant to the applicable credit agreement between the Loan Pledgor and the
Loan Pledgee (which notice need not bejoined in or coi&med by the Loan Pledgor), and
until such Redirection Notice is withdrawn or rescinded by the Loan Pledgee, the Agent
shall remit to the Loan Pledgee and not to the Loan Pledgor, any payments that the Agent
would otherwise be obligated to pay to the Loan Pledgor from tizne to time pursuant to
this Agreemen any Mortgage Loan Document or any other agreement among the Split
Note Holders tint related to the Mortgage Loan or Loan Pledgor. Each Split Note Holder
hereby unconditionally and absolutely releases the Agent from any liability to such Split
Note Holder on account of the Agent's compliance with any Redirection Notice believed
by the Agent to have been delivered by such Split Note Holder's Loan Pledgee. The
Loan Pledgee shall be permitted to fhlly exercise its rights and remedies against the Loan
Plecigor, and reølize on all collateral granted by the Loan Pledgor to the Loan Pledgee
(and accept an assignment in lieu of fineclosure as to such collateral), in accordance with
applicable law. Ja such event, and upon receipt of an Assignment and Assumption signed
by the Loan Pledgee, the Agent shall recognize the Loan Pledgee (and any tzans&ree
which is also a Qualified Transferee at any foreclosure or similar sale held by the Loan
Pledgee or any transfer in lieu of such foreclosure), and its suecsors and assigns, as the
successor to the Loan Pledgor's rights, remedies and obligations under this Agreement,
and any such Loan Pledgee or Qualified Transferee shall assume in the writing the
obligations of the Loan Pledgor hereunder accruing from and after such Transfèr and
agrees to be bound by the terms and provisions hereof. The Loan Pledgee agrees to be
bound by the terms and conditions of the lntercreditor Agreement The rights of Loan
Pledgee under this Section 9.01 shall remain effective unless and until Loan Pledgee shall
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have riolified the Agent in writing that its interest in the applicable Split Note and this
Agreement has terminated.
SECTION 10. MISCELLANEOUS

10.01. Further Assurances. The Agent and each Split Note Holder 1mll
cooperate filly with each other in order to early out promptly and filly the tenns and
provisions of this Agreement Bach party hereto shall from time to tinte execute and
deliver such, other agreements, documents or instruments and take such other actions as
may be reasonably necessary or desirable to effectuate the terms of this Agreement The
Agent and the Split Note Holders liall each be solely responsible for all costs and
expenses (including their respective attorneys' fees and disbursements) incurred by them
in connection with the execution and delivery of this Agreement and otherwise incurred
by them in entering into the transactions contemplated herein.

10.02. No WaÑer etc. No failure or delay an the part of any party hereto in
exercising any tight, power or remedy hereunder shall operate as a waiver thereof, nor
shnll any single or partial exercise of any such right, power or remedy preclude any other
or further exercise thereof or the exercise of any other right, power or remedy hereunder.

10.03. Notice. Except as otherwise expressly provided herein, all notices,
requests and demands to or upon the respective parties hereto to be effective shall be in
willing (including by faccimile or email), arad hn11 be deemed to have been duly given or
made when delivered by band, or five (5) days after being deposited in the United States
or German (Deutsche Post) mail, certified or registered, postage prepaid, or,in the case of
thcsimile notice, when sent, answerback received, or in the case of email notice, on the
next Business Day alter transmittal, or in the case of a nationally recognized overnight
courier service, one (1) Business Day after delivery to auth courier service, or, in the case
of a courier service Ihr an international delivery, two (2) Business Days after delivery to
such courier service, addressed, in the case of each Split Note Holder and the Agent at the
addresses specified on Exhibit E attached hereto, or to such other addresses as may be
designated by any party in a written notice to the other parties hereto, wovided that
notices and communications shall not be effective until received by the party to whom
they are addressed.

10.04. Conflict With Other Agreements. This Agreement contains additional
ternas änd conditions relating to the administration of the Mortgage Loan. h the event of
any conflict between the provisions of this Agreement and the provisions of the Mortgage

Loan Agreement or any of the other Mortgage Loan Documents in respect of the
administration of the Mortgage Loan, the provisions of this Agreement shall control as
between the Agent and the Split Note Holders. Notwithstanding the foregoing, the Agent
sluill not be required to take any action or refrain from any actioa in violation of the terms

of the Mortgage Loan Documents except, if in conflict herewith, Article IX of the
Mortgage Loan Agreement

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10.05. No Third Party Beneficiaries. No person, other than the parties hereto and
their permitted successors and assigns pursuant to the Mortgage Loan Agreement hal1
have anyñghts under this Agreement.
10.06. Counterparts. This Agreement may be executed in two or more
counterparts each of which 'thai! be deemed an original but ali of which together hnll
constitute one and the same instrument.

10.07. No Amendments. No amendment supplement or modification of this
Agreement shall be effective against a party against whom the enforcement of such

amendment supplement or other modification would be asserted, unless such
amendment, supplement or modification was made in a writing signed by such party.

10.08. Severability. In case any one or more of the provisions contained in thic
Agreement, or any application thereo shall be invalid, ifiegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions contained
herein, and any other application thereof, shall not in any way be affected or impaired
thereby.

10.09. Governing Law. This Agreement shall be consimed in accordance with
and governed by the laws of the State of New York, excluding its rules of conflict of
laws.

10.10. Headings. etc. The headings and captions of various paragraphs of this
Agreement are for convenience of reference only and are not to be constmed as defining
or Thniling, in any way, the scope or intent of tbe provisions hereof
10.11. No Partnership or Joint Venture. Neither the execution of this Agreement

nor the purchase of an interest in the Mortgage Loan or in the Mortgage Loan
Documents, or any agreement to share in profits or losses arising ott of this transaction,
is intended to be, nor shall it be construed to be, the formation of a partnership or joint
venture among the Split Note Holders and the Agent; and neither the Agent nor any Split
Note Holder qhill be liable to any other person or entity for the liability in tort or contract
of the Agent or any other Split Note Holder arising in connection with the Mortgage
Loan or any fransanfion connected herewith or therewith nor shall the Agent have any
fiduciary obligations to any Split Note Holder nor qhaU any Split Note Holder have any
fiduciary duty to the Agent or any other Split Note Holder. The Agent hail have änd

may exercise such powers as are specifically delegated to the Agent under this
Agreement.

10.12. True Sale. This Agreement is intended to effectuate a "true sal&' of the
Split Note contemplated hereby. In no event shall the transactions contemplated hereby
be deemed a financing or other extension of credit The parties hereto 'thil in all respects

account for the transactions contemplated hereby in a manner consistent with the
preceding sentence.

10.13. Submission to Jurisdiction. With respect to any claim arising out of this
Agreement, the Mortgage Loan Agreement or any other Mortgage Loan Documents, each
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party hereto irrevocably submits to the nonexchzsive jurisdiction of the courts of the State
of New York and the United States District Court located in the City of New York, and
each party hereto (i) irrevocably waives any objection which it way have at any time to

the laying of venue of any suit, action or proceeding arising out of or relating to this
Agreement, the Mortgage Loan Agreement or any other Mortgage Loan Docmnents
brought in any such court, (ii) irrevocably waives any claim that any such suit, action ör
proceeding brought in any such court has been brought in an inconvenient forum and
further (iii) irrevocably waives the right to object, with respect to such claim, suit, action
or proceeding brought in any such court, that such court does not have jurisdiction over
such party. Nothing in This Agreement wifi be deemed to preclude the Agent or the Split
Note Holders from bringing an action or proceeding in respect of this Agreement in any
otherjurisdiction.

10.14. WAIVER OF JURY TRIAL THE SPLIT NOTE HOLDERS HEREBY
KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY FOREVER WAIVE THE
RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON
TITIS AGREEMENT OR ARISING OUT 0F, UNDER OB. IN CONNECTION WiTH
TUIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS,

STATEMENTS (WHETHER VERBAL OR WRFTEN) OR ACTIONS OP ANY
PARTY OR THE EXERCISE BY ANY PARTY OF ITh RIGHTS UNDER THIS
AGREEMENT IN ANY WAY ARISING OUT OF OR RELATED IN ANY MANNER
WiTH TITE SUBJECT MM thR HEREOF OR THEREOF.

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]N WITNESS WHEREOF, the pardos hereto have executed this Agreement as of

the date first above titen.

SPIfl NOTE HOlDERS:
NOTE A-1 HOLDER:

LEHMAN BROTHBRS HOLDINGS NC, a
Delaware corporation, individually as a CoLender and as Agent fhr ort or more CoLenders

By:
Name:

Title:

Catherine
Anthorized Signatory

Co-Li&g Agreement

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NOTE A-2 HOlDER

THE UNION LABOR LUE iNSURANCE
COMPANY
(ULLICO),
a Maryland
corporation, on Behalf of Separate Account I

B

Name:
Title:

Herbert A. Kolben
Senior Vice President

Co-Lending Agteement

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NOTE A-3 IIOLDER:

NAflONAL CiT Y BANK, a National
Banking Association

Co-Lending Agreement

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NOTß À-4 HOLDEIt

LEBMAN BROTHERS HOlDINGS INC., a
Delaware coxpomüon, individually as a CoLender and as Agent r one or more CaLendets

Nane:

mie:

Cathetine Harnett
Authorized Signatory

Co-Lending Agreement

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NOTh A-5 EOWHL
LEUMAN np.ØTFERS HOLDINGS INC., a.
De1aWaT cofpOXßñDfl, individually as a Co-

Leuder aDd as Agent for one or moxe CoLenders

Czthe,irUarflttt
Auth oiiza3 Siguatmy

0-eziding AgctBlIleflt

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NOTE A-6 HOlDER:
LEIIMAN BROTIIBES HOLDINGS 1Ml, a
Delawaxe corporation, indMdually as a Co-

Leañer and as Agent fbi one or more Co-

Let

Naine:
Catherbìen
Autho,fr,,j Signatoty

Co-Lending Agreement

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NOTE À-7 HOLDEt
LEEMAÌT BROThERS BOLDThTOS INC., a
Delaware corp c}xalion, individually as a Co-

Lender and as Agent for one or more CoLenders

By
Name:
Title:

Catherine Harnett
Authoñzea Signatory

Co-Lending Agreement

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NOTB A-8 EOLDEIt
LEHMAN BROTIIBRS HOLDINGS INC., a
Delaware corporation, individually as a Co-

Lender and as Agent g

Marne:

Title:

ont or more Co-

Catherine Thniett

Authorizetl$ignathw

Co-Lending Agreeniait

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AGENT:

LEliMAN BROTHERS BOU)JNGS INC., a
Delaware coxpomilon, individually as a Co-

Lander ami as Agent for one or more CoLenders

By:
Name:
Title:

Cathetho Harueft
Mithoîjzed Siguatmy

Co-Lending Agreement

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EXHIBITA
PRO RATA INTERESTS

Split Note Holder
Note A-1
Note À-2
Note À-3
Note A-4
Note A-5
Note À-6
Note A-7
Note A-S

Pro Rata Interest
25.397%
19.048%
6.349%
6.349%
6.349%
7.937%
3.175%
25.397%

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EXHIBIT B
ACCOUNT INFORMATION - SPLIT NOTE HOLDER PAYMENT

WIRING INSTRUCTIONS

ASSIGNEE
Note A-1 Holder:
Lehman Brothers Holdings Lac.

Note A-2 Holder:
The Union Labor Life Insurance Company

Banlc
ABA No.:
Acet. Name
Aect. No:
Ref.
Contact:

Citibmk, NA.

Bank:

Mellon Bank
The Union Labor I We - Generai
2182582
031000037
Fontaineblean Sal Vegas Retail

(IlLICO) on Behalf of Separate Account I Acct. Name:
Aect. No
ABANo:
Ref.
Nota Á-3 Holder:
National City Bank

Bank
ABANo:
Acct. Nane:

021-000-089
Lehman Brothers Holdings Inc.
40615501
Fontainebleau Retail Sr. Loan
EdwinMejia(212-320-0175)

National City Bank
041 000 124

Acct. No:
Ref.
Note A-4 Holder:
Lehman Brothers Holdings Inc.

151804/0004710
Pontaine1leau Las Vegas Retail

Bank:
ABA No:
Acct. Name:

Citibank, N.A.
021-000-089
Lehman Brothers Holdings Inc
40615501
Fontaineblean Retail Sr Loan
Edwin Mejia (212-320-0175)

Acct.No:
Ref.
Contact:

Note A-5 Holder
Lehman Brothers Holdings Inc.

Bank:

ABANo:
Acct. Name:

(ect. No:

Rat

Citibank, N.A.
021-000-089
Lehman Brothers Holdings Inc.
40615501

Contact
Note A-5 Holdec
Lehman Brothers Holdings Inc.

Fontaineblean Retif Sr. Loan
Edwin Mejia (212-320-0175)

Bank

Citibank, NA

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WIRING INSTRUCTIONS

ASSIGNEE
ABANo:
Aect. Name:

Acet Ncr
Ref.
Contact;

Note A-7 Holder:
Lehman Brothers Holdings Inc.

Bank

021-000-089
Lehman Brothers Holdings Inc.
40615501
Fontainebleau Retail Sr. Loan
Edwin Mejía (212-320-0175)

Contact

Citibank, N.A.
021-000-089
Lehman Brothers Holdings Inc.
40615501
Pontainebleau Retail Sr. Loan
Edwin Mejía (212-320-0175)

Bank:

CitibanlçNA

ABANo:
Acct Name:
Acct.No;

021-000-089
Lehman Brothers Holdings Inc.
40615501
Pontaineblean Retail Sr. Loan
Edwin Meus (212-320-0175)

ABA No;

Aect Name:
AecLl'4o:
Ref.

Note A-S Holdec
Lehman Brothers Holdthgs Inc.

Ref
Contact:

2

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EXHIBIT C
PERMITTED FUND MANAGERS
Apollo Real Estate Advisors
Archon Capital, L.P.
BIackRock, Inc.
Clarion Partners
CVJ Capital
Fortiess Investment CJmup, LLC
11/2 Credit Partners Master Fund Ltd.
iStar Financial Inc.
LE. Roberts Companies
Starwood Financial Trust
The Blackstone Group International Ltd.
Walton SLeet Capital, LLC

U LL-FLVR0002725

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EXHIBIT D
QUALIFThD TRANSFEREE

AEW Capital Management
Angelo Gordon & Company
Arbor Financial
Apollo Real Estate Advisors
ARCap
Arden Realty
Barrow Street Capital
Blackacre Capital Group, L.?.
Boston Properties
Capital Trust.
Carlyle Group
CarrAmerica Realty Corporation
Cresrant Real Estate
CW Capital
Emmes & Company
Fleet National Bank and its Tn-Sail Funds
Giaxumexoy Capital
11)2 Ciedit Partuers Master Fund Ltd.
Hartford Life rnsurance Company (and
affiliated insurance companies)
Reliman. Financial
IStar Financial
JE Roberts Cog.
Legg Mason Real Estate
Lupert Mier Partners
Mack Cali Realty
MassMutual (DL Babson and ifflhiated
fimds)
Meadowbrook Real Estate Fund
Metropolitan Life
Mony Realty Capital
New York Life (and affiliated fluids)
Northstar Capital Investment Corp.
Oaktree Capital Management
Olympus Real Estate Fund (Hicks Musa)

Pacific Life
Prentiss Properties
Reckson Associates/Reckson Operating
Partnership

R1EEF
Rnckport Group
Starwood Opportunity Fund (Starwood
Capital)
Sterling Equities
TrizecHahn Corp
Vornado Realty
Wells Fargo
Westbrook Real Estate Fund

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EXHIBIT E
(NOTICE ADDRESSES)

1f tu the Agent:

Lehman Brothers Holdings Inc.
e/o Lehman Brothers Holdings
399 Park Avenue
NewYorlç New York 10022
Attention: Benjamin Herman
Facsimile No.: [phone]

With a copy to:

Lehman Brothers Holdings be.
e/o Lehman Brothers Holdings
399 Park Avenue
New York, New York 10022
Attentiorn Gary Taylor
Facsimile No.: [phone]
and

Thacher Proffitt & Wood
Two World Financial Center

NewYork,NewYork 10281
Attention: Mitchell G. Williams, Esq.
Facsimile No.: [phone]

1f to Note A-1 Holden

Lehman Brothers Holdings Inc.
e/o Lehman Brothers Holdings
399 Park Avenue
New Yodç New York 10022
Attention: Benjamin Herman
Facsimile No.: [phone]

With a copy to:

Lehman Brothers Holdings Inc.
e/o Lehman Brothers Holdings
399 Park Avenue
New York; New York 10022
Attention: Gary Taylor
Facsimile No.: [phone]
and

Thacher Proffitt & Wood
Two World Financial Center
New York, New York 10281
Attention: Mitchell G. Williams, Esq.
Facsimile No.: [phone]

ULL-FLVR0002727

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If to Note Â-2 Holden

The Union Labor Life Insurance Company
1625 Eye Street, NW
Washington, DC 20006
Aîtentiorn Donita Johnson
FacsinilleNo [phone]

With a copy to:

Meyer Unkovie & Scott LLP
1300 Oliver Building
Pittsburgh, Pennsylvania 15222
Attention: Matthew D. Whitworth
Facsimile No.: [phone]

If to Note A-3 Holden

National City Bank
2000 Auburn Drive, Suite 400
Beachwood, Ohio 44122
Attentiorn Elissa Huicilc
Assistant Vice President
FacsfinileNo.: [phone]

With a copy to:

1f to Note A-4 Holder

Lehman Brothers Holdings Inc.
e/o Lehman Brothers Holdings
399 ParJcAvenue
New Yoilç New York 10022
Attention: Benjamin Herman
Facsimile No.: [phone]

With a copy to:

Lehman Brothers Holdings Inc.
e/o Lehman Brothers Holdings
399 Park Avenue
New York, New York 10022
Attention: Gary Taylor
Facsimile No.: [phone]

and
Thacher Proffitt & Wood
Two World Financial Center
New York, New York 10281
Attenfiorn Mitchell G. Williams, Esq.
Facsimile No.: [phone]

U LL-FLVR0002728

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1f to Note Â-5 Bolder:

Lelnnan Brothers Holdings rue.
e/o Lehman Brothers Holdings
399 Park Avenue
New York, New York 10022
Attentiorn Benjamin Herman
Facsimile No.: (212) 713-12'18

With a copy to:

Lehman Brothers Holdings Inc.
e/o Lehman Brothers Holdings
399 Park Avenue
New York, New York 10022
Attention: Gary Taylor
Facsimile No - [phone]
and

Thacher Proffitt & Wood

Two World Financial Cet
NewYorlc New York 10281
Attention: Mitchell G. Williams, Esq.
Facsimile No - [phone]

Jito Note A-6 Holder:

Lehman Brothers Holdings Inc.
e/o Lehman Brothers Holdings
399 Park Avenue
New York, New York 10022
Attention: Benjamin Herman
FacsimileNo-: [phone]

With a copy to:

Lehman Brothers Holdings Inc.
e/o Lehman Brothers Holdings
399 ParkAvenne
New York, New York 10022

Attenüort Gary Taylor
Facsimile No.: [phone]
and

macher Proffitt & Wood
Two World Financial Center
New York; New York 10281
Attention: Mitchell G. Williams, Esq.
Facsimile No.: [phone]

If to Note A-7 Holder

Lehman Brothers Holdings Inc.

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e/o Lehman Brothers Holdings
399 Park Avenue
New York, New York 10022
Attention: Benjamin Herman
Facsimile NoW: [phone]

Withacopyto:

Lehman Brothers Holdings Inc.
e/o Lehman. Brothers Holdings
399 Park Avenue
New York, New York 10022
Attention: Gary Taylor
Facsimile No.: [phone]

and
Thacher Promtt & Wood
Two World Financial Center

NewYork,NewYork 10281
Attention: Mitchell G. Williams, Esq.
Facsimile No.: [phone]

lito Note A-S Holder:

Lehman Brothers Holdings [no.
cío Lehman Brothers Holdings
399 Park Avenue
New York, New York 10022
Attention: Benjamin Herman
Facsimile No.: [phone]

With a copy to:

Lehman Brothers Holdings hie.
e/o Lehman Brothers Holdings
399 Park Avenue
New York, New York 10022

Attention: Gary T'lor
Facsimile Nc [phone]
and
Thacher Proffitt & Wood
Two World Financial Center
New York, New York 10281
Attention: Mitchell G. WIlliams, Esq.
Facsimile No.: [phone]

IJLL-FLVR000273O

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EXHIBIT F
(FORM OF ASSIGNMENT AND ASSUMPTEON)

ASSIGNMENT AN) ASSUMPTION AGREEMENT
This Assignment and Assumption (the "Assignment Agreement") is made as of
September

_, 2007 (the "Settlement Date"), between LEHMAN BROTHERS HOLDINGS

INC., a Delaware corporation, having an address at 399 Park Avenue, New York, New York
10022 ("Assignor") and I
a [
i
('Assignee").
RECITALS:

V'HEBEAS, reference is hereby made to (i) that certain Loan Agreement, dated
as of June 6, 2007, as amended by that certain First Amendment to Mortgage Loan Agreement,
dated as of September 9, 2007, made between Fontainebleau Las Vegas Retail, TIC, a Delaware
limited liability company ("Borrower") and Assignor (as the same may hereafter be further
amended, modified or supplemented from tinte to time, the "Mortgage Loan Agreement'), (ii)
that certain Replacement Promissory Note (Note A-1) of even date herewith in the principal
amount of $80,000,000 or so much thereof as may be advanced thereunder (as the same may be
amended, restated, replaced, supplemented, severed into one or more separate notes otherwise
modified from time to tint; "Note A-l"), (iii) that certain Replacement Promissory Note (Note
A-2) of even date herewith in the principal amount of $60,000,000 or so much thereof as may be
advanced thereunder (as the same may be amended, restated, replaced, supplemented, severed

into one or more separate notes otherwise molifrd from time to time, "Note A-2"), (iv) that
certain Replacement Promissory Note (Note A-3) of even date herewith in the principal amount

of $20,000,000 or so much thereof as may be advanced thereunder (as the same may be
amended, restated, replaced, supplemented, severed into one or more separate notes otherwise
modified from time to thne, "Note À-3"), (y) that certain Replacement Promissory Note (Note
A-4) of even date herewith in the principal amount of $20,000,000 or so much thereof as may be
advanced thereunder (as the same may be amended, restated, replaced, supplemented, severed
into one or more separate notes otherwise modified fi'om time to time, "Note À-4"), (vi) that
certain Replacement Promissory Note (Note A-5) of even date herewith i the principal amount

of $20,000,000 or so much thereof as may be advanced thereunder (as the same may be
amended, restated, replaced, supplemented, severed into one or more separate notes otherwise
modified front time to time, "Note A-S"), (vii) that certain Replacement Promissory Note (Note
A-6) of even, date herewith in the principal amount of $25,000,000 or so much thereof as may be
advanced thereunder (as the same may be amended, restated, replaced, supplemented, severed
into one or more separate notes otherwise modified from time to time, "Note À-6"), (viii) that
certain Replacement Promissory Note (Note A-?) of even date herewith in the principal amount

of $10,000,000 or so much thereof as may be advanced thereunder (as the same may be
amended, restated, replaced, supplemented, severed into one or more separate notes otherwise
modified from time to time, "Note A-7") and (ix) thnt certain Replacement Promissory Note
(Note A-8) of even date herewith in the principal amount of $80,000,000 or so much thereof as
may be advanced thereunder (as the same may be amended, restated, replaced, supplemented,
severed into one or more separate notes otherwise modified from tinte to time, "Note A-8").

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Unless defined herein or in any Aimer attached hereto, termc defined in the Mortgage Loan
Agreement are used herein as therein defined.

NOW, ThEREFORE, in consideration of the covenants, agreements,
representations and/or warranties of Assignor and Assignee set forth herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of
Assignor mid Assignee do hereby agree as follows:
The Assignor hereby sefis and assigns to the Assignee without recourse and
without representation or warranty (other than as expressly prtMded herein), and the Assignee
hereby purr.hnces and assumes from the Assignor, Note Aand a Pro Rata Interest in the

Loan Documents (other than Note A-_, Note A-_, Note A-, Note A-__, Note A-__, Note
and Note A). Assignee hereby assumes and undertakes to perform, pay or discharge,
Ain accordance with the ternis and conditions thereof, and in accordance with its Pro Rata Interest,
all obligations of Assignor under the Loan Documents (other than Note A-_, Note A-_, Note
A-_, Note A-_, Note A-_, Note A-_ and Note A- ), to the extent such obligations
are to be performed, paid or discharged after the date hereof

The Assignor (i) represents and warrants that it is duly authorized to enter into
and perform the ternis of this Assignment Agreement; (li) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and that such interest is
free and clear of any liens or security interests; (iii) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or representations made in

or in connection 'with the Mortgage Loan Agreement, the other Loan Documents, or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of the Mortgage
Loan Agreement the other Loan Documents, or any other instrument or document furnished
pursuant thereto; and (iv) makes no representation or warranty and assumes no responsibility
with respect to the fnancial condition of the Borrower or any of its Affiliates or the performance
or observance by the Borrower of any of its obligations under the Mortgage Loan Agreement, the
other LoanDocuntents, or any other instrument or document furnished pursuant thereto except as
expressly set forth herein. Attached hereto as Annex II is a true, correct and complete list of all
of the Loan Documents as of the date hereof. To Assignor's knowledge, there currently exists no
default or event which, with the giving of notice or the lapse of time, or both, would constitute an
Event of Default under the Loan Documents.

The Assignee (i) represents and warrants thnf it is duly authorized to enter into
and perform the terms of this Assignment Agreement, (ii) confirms that it has received a copy of
the Mortgage Loan Agreement and the other Loan Documents listed on Ajinex II hereto, together

with copies of the financial statements referred to therein and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment Agreement, and has not relied on any statements or representations made
by Assignor in connection with its decision to purchase the Pro Rata Interest pursuant to this
Assignment Agreement; (iii) agrees that it will, independently and without reliance upon the
Assignor and based on such documents and information as it chal! deexíi appropriate at the time,
coatinue to make its own credit decisions in taking or not taking action under the Mortgage Loan
Agreement, (iv) agrees that it will perform in accordance with their terms all of the obligations
which by the terms of the Mortgage Loan Agreement are required to be performed by it as a

ULL-FLVR000Z732

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Lender holding its Pro Rata Interest; and Cv) agrees flint the interest being assigned hereundrr is
being acqúired by it for its own account, for investment purposes only and not with a view to the
public distribution thereof and without any present ititenlaon of its resale in eiter case That 'would
be in violation of applicable securities law&

As of the Settlement Date, (i) the Assignee shah be a party to the Mortgage Loan
Agreement 0rid, to the extent provided in this Assignment Agreement have the tights and
obligations of a Lender under the Mortgage Loan Agreement and the other Loan Documents

(other than Note A-_, Note A-_, Note A-_, Note A- ,Note A-_, Note A-_ and Note
A-_.), and (ii) the Assignor shall, with respect to that portion of its interest assigned hereby
relinquish its tights and be released frein its future obligations under the Loan Documents.

Assignee hereby acknowledges and agrees that, as cf the date hereof, Assignor

dm11 serve as the Agent uit the Mortgage loan documents, pursuant to that certain CoLending Agreement dated the
Holders.

cbife

hereof between Msignor Assignee and the other Split Note

It is agreed that as of the Settlement Date, the Assignee shiill be entitled to all
interest on the disbursed amount of the Pro Rata Interest of the Loan at the rates specified in the
Mortgage Loan Agreement and Note A-_. Upon the Settlement Date, the Assignee shall pay to
the Assignor an amount specified by the Assignor in. writing which represents the Pro Rata
Interest of the principal amount of the Loan made by the Assignor pursuant to the Mortgage

Loan Agreement which is outstanding on the Settlement Date and which is being assigned
hereunder. The Assignor and the Assignee shall make all appropriate adjustments in payments
under the Mortgage Loan Agreement for periods prior to the Settlement Date directly between
themselves on the Settlement Date.

This Assignment Agreement may be executed in any number of counterparts
which, when taken together, shall be deemed to constitute one and the same instrument.

Assignor will, do, execute, acknowledge and deliver all and every such further
acts, deeds, conveyances, assignments, notices of assignments, transfers and assurances as
Assignee shall, from time to time, reasonably require, for the better assuring, conveying,
assigning, transferring and confirming unto Assignee the property and rights hereby given,
granted, bargained, sold, conveyed, and/or assigned or intended now or hereafler. Assignor and

Assignee will, do, execute, acknowledge and deliver all and every such further acts as are
reasonably required for carrying out the intention or facilitating the performance of the terms of
this Assignment.

TIlTS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED TN ACCORDANCE 'WITH, ThE lAWS OP THE STATE OF NEW YORK.

[SIGNATURES APPEAR ON '111E FOLLOWING PAGEJ

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IN WITNESS WHEREOF, the parties hereto have caused this Assignment
Agreement to be executed by their respective officers thereìmto duly authorized, as of the date
first above written.
AS SIGNOR:

LEhMAN BROTHERS HOLDNGS NC., a
Delaware corporation (individually and as lead
arranger and Agent for itself and certain Split Note
Holders)

Name:
Title:

ASSIGNEE:
[

1

a

I-

By:

Name:
Title:

By:

Name:
Title:

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ANNEX FOR ASSIGNMENt AND ASSIJ1\4PTJON AGREEMENT
ANNEX I
Pto Rata Interest:
Amounls as of Settlement Date:

General Commitment
Aggregate Amount for all
Lenders

$315,000,000.00

ProRalainterestofLoan
o. Amount of Pro Rata

Amount
Disbursed as of
Assignment Date
$1

Undisbursed
Commitment

.00J

$[

.001

.00J

$1

.001

1%

SF

.

.001

Interest of Loan
Assignee Notice Instructions:
Assignee Wire Instructions:

ULL-FLVR0002T3S

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ANNEX FOR ASSIGNMENT AND ASSUMPTION AGREEMENT

AM4EX II
List of Loan Documents

Piomissoiy Note dated as of June 6, 2007 in the principal amount of $315,000,000 macít by
Borrower in favor of Assignor, as replaced by:

I

Repisoement Promissory Note A-I dated as of September 9, 2007 made by

Borrower in. favor of Assignor in the principal amount of $80,000,000.00;

II
Replacement Promissory Note A-2 dated as of September 9, 2007 made by
Borrower in favor of Assignor in the principal amount of $60,000,000.00, with respective
Allonge made to TRE UNION LABOR LIFE INSURANCE COMPANY (ULLICO), a
Maryland corporation, on Behalf of Separate Actount J;
UI
Replacement Promissory Note A-3 dated as of September 9, 2007 made by
Borrower in favor of Assignor in the principal amount of $20,000,000, with respective Allonge
made to NATIONAL CITY BANX, a national banking ass ociafion

W

Replacenient Promissory Note Â-4 dated as of September 9, 2007 made by

Borrower in favor of Assignor in the principal amount of $20,000,000.00;
V
Replacement Note A-5 dated as cf September 9, 2007 made by Borrower in favor
of Assignor in the principal amount of $20,000,000.00;
Replacement Note A-6 dated as of September 9, 2007 made by Borrower in favor
VI
of Assignor in the principal amount of $25,000,000.00;
VU
Replacement Note A-7 dated as of September 9, 2007 made by Borrower in favor
of Assignor inthe principal amount of $10,000,000.00; and
VUE
Replacement Note A-3 dated as of September 9, 2007 made by Borrower in. favor
of Assignor in. the principal amount of $80,000,000.00;

Loan Agreement, dated as of June 6, 2007 between Assignor and Borrower, as modified by that
certain First Amendment to Mortgage Loan Agreement and Other Loan Documents, dated as of
Setember 9,2007 between Borrower and Assignot
Deed of Trust, Assignment of Rents and Leases, Security Agreement and Fixture Filing dated as
of June 6, 2007 executed and delivered by Borrower to Assignor.
Assignment of Leases and Rents dated as of June 6, 2007 between Bocrower and Assignor.
Borrower's Certification dated as of June 6, 2007 made by Assignor to Borrower.

Environmental Indemnity Ageement dated as of June 6, 2007 executed by Borrower and
.J'FREY SOFHR, an individual, and FONTAINEBLEAU RESORTS, LLC, a Delaware
limited liability company, for the benefit of Assignor.

trPW: lflLE0A14715505.fl 16248-007M 09/1412C07 04:08 I'M

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Completion Guaranty, dated as of June 6, 2007 from JEFFREY SUFFER, an individual, arid
FONTAINEBLEAU RESORTS, LLC, a Delaware limited liability company, (collectively or
individually, as the context requires, "Guarantor"), to Assignor.
Guaranty of Payment, dated as of June 6,2007 from Guarantor to Assignor.

Guaranty of Recourse Obligations of Borrower, dated as of June 6, 2007 from Guarantor to
Assignor.

Conditional Assignment of Management Agreement dated as of lime 6,2007 made by Borrower
to Assignor and acknowledged and consented to by TB REALTY, INC., a Nevada corporation.

Conditional Assignment of Leasing Agreement dated as of June 6, 2007 among Assignor,
Borrower, and TB REALTY INC., aNevada corporation.
Assignment of Permits and Contracts dated as of June 6, 2007 between Borrower and Assignor.

Jntellectual Property and Secùrity Agreement dated as of June 6,2007 made by Borrower in
favor of Assignor.

Subordination of Affiliate Defèrred Payments Agreement dated as of June 6, 2007 made by
Borrower to Assignor and acknowledged and consented to by JEFFREY SUFFER, an individual,
FONTAJNEBLEAU RESORTS, LLC, a Delaware limited liability company ('Parent"), and
TURNBERRY RESIDENTIAL LIMiTED PARTNER, L P., a Delaware limited partnership.

Subordination of Credit Enhancement Feé Agreement dated as of June 6, 2007 made by
Borrower to Assignor and acknowledged and consented to by JEFFREY S OFFER, an individual,
Patent; and TUBNBERRY RESIDENTIAL L3MFITED PARTNER, L.P., a Delaware limited
partnership.

Subordination of Reimbursement Agreement dated as of June 6, 2.007 made by Bòrrower to
Assignor and acknowledged and consented to by FONTAINEBLEAIJ RESORTS, LLC, a
Delaware limited liability company.

Consent and Agreement dated as of June 6, 2007 executed by TURÌ4BERRY WEST
CONSTRUCTION, INC., a Nevada corporation and FONTAINEBLEAU LASS VEGAS, LLC, a

Delaware limited liability company for the benefit of (i) BANK OF AMERICA, NA, in its

capacity as the administrative agent (the "Bank Agent') (ii) WELLS FARGO BANIÇ
NATIONAL ASSOCIATION, in its capacity as the trustee (the "Trustee") and (iii) LEHMAN
BROTHERS HOLDINGS INC. Da/A LEHMAN CAPITAL, A DIVISION OF LEHMAN
BROTHERS HOLDINGS, INC., a Delaware corporation, in its capacity as agent

Cotisent and Agreement dated as of June 6, 2007 executed by BERGMAN, WALLS &
ASSOCIATES, LTD., a Nevada corporation, and FONTAINEBLEAU LAS VEGAS, LLC, a
Delaware limited liability company for the benefit of (i) BANK OF AMERICA, NA, in its

capacity as the administrative agent (the "Bank Agent') (ii) WELLS FARGO BANK,

(JPW: NYLEOAL7ISSOS.1J 16248-00758 09/14/200704:08 PM

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NATIONAL ASSOCIkTION, in its capacity as the frustee (the "Trustee') and (iii) LEHMAN
BROTHERS HOLDINGS INC. DIE/A LEHMAN CAPiTAL, A DIVISION OF LEHMAN
BROTHERS HOLDINGS, INC., a Delaware corporation, in its capacity as agent
Master Disbursement Agreement among FONTAINEELBAU LAS VEGAS HOLDINGS, LIC,
FONTAINEBLEAU LAS VEGAS CAPITAL CORP., Bormss
FONTA.INEBLEAU LAS
'VEGAS, LLC, and FONTAINEBLEAU LAS VEGAS ii; LLC, BANK OF AMERICA, NS, as

the Bank Agent WELLS FARGO BANK, NA., as the Trustee, LEHMAN BROTHERS
HOLDINGS INC., as the Retail Agent, and BANK OF AMERICA, N.A.., as the Disbursement
Agent

Retail Intercreditor dated as of June 6, 2006 by and among Bank of America, NS, Wells Fargo
Bank, National Association, Lehman Brothers Holdings Inc., and Borrower.

Interereditor Agreement dnted as of June 6, 2007 by and between Assignor and LEHMAN
BROTHERS HOLDINGS INC., individmlly and as Agent for one or more Co-Lenders as
Mezzanine Lender.
UCC-1 Financing Statement between Borrower as Debtor and Assignor as Secured Party filed in
the Clark County Clerk's Office. Nevada.

UCC-i Financing Statement between Borrower as Debtor and Assignor as Secured Party filed
'with the Secretary of State of Delaware.

Co..Lending Agreement dated as of September 24, 2007 between LEHMAN BROTHERS
HOLDINGS INC. as the Agent and a Split Note Holder and "), LEHMAN BROTHERS
HOLDINGS INC., a Delaware corporation, "Note A-1 Rolde?', THE UNION LABOR LIFE
INSURANCE COMPANY (ULLICO), a Maryland corporation, on Beh nif of Separate Account
J, "Note A-2 Holde?, , NATIONAL CITY BANK, a national banldng association, "Note A-3

Holder", LEHMAN BROTHERS HOLDINGS INC., a Delaware corporation; "Note À-4
Holder", LEHMAN BROTHERS HOLDINGS INC., a Delaware corporation, "Note A-5
Holder", LEHMAN BROTHERS HOLDINGS INC., a Delaware corporation, "Note A-6
Holder", LEHMAN BROTHERS HOLDINGS INC., a Delaware corporation, "Note A-7
Holder", LEHMAN BROTHERS HOLDINGS INC., a Delaware corporation, "Note À-8
Holder".

Assignment and Assumption Agreement dated as of September 24,2007 between Assignor and
THE UNION LABOR LIFE INSURANCE COMPANY ((ILLICO), a Maryland corporation, on
Behalf of Separate Account J, as Asignee.
Assignment and Assumption Agreement dated as of September 24, 2007 between Assignor and
NATIONAL CITY BANK, a national banldng association, as Assignee.

(TPW: NYLEGAL:715505.1J 15241.00752 09fI4107 04:08 PM

U LL-ELVR000ZT3O