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 381 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 381 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 381 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 381 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 381 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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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 381 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 381 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 381 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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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

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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 381 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. 11
FILED UNDER SEAL

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102

Dep. Ex. 14

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Dep. Ex. 16
FILED UNDER SEAL

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102

Dep. Ex. 18

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FONTAINTEBLEAU LAS VEGAS
Meeting Agenda
October 23, 2008

DRAFT
Location:

The Stirling Club, 2827 Paradise Road, Las Vegas, NV

Time:

12:00 PMPT

o

Project Update
O
O

Construction - Bob Ambridge

O

Retail Leasing - Jacquelin SofTer, Arthur Weiner and Jamie Bourbeau

O

s

Overall Development - Glenn Schaeffer

Financial Overview - Jim Freeman

Retail Loan Status
O
O

a

Overview

Sonny Kotite

Discussion

Tour of Preview Center (Sales Center) - Audrey Oswell
Hard Hat Tour of Resort Development Site - Bob Arnbridge

Participants:

Fontainebleau Resorts - Glenn, Schaeffer, Albert Kotite, Jim Freeman, Audrey Oswell,
Eric Salzinger, Deven Kumar
Bank of America - Jon Varnell, Bret Yunker, David Howard
Union Labor Life Insurance Company - Herb Kolben +1

Sumitomo Mitsui Bank Doug Ruby, Grace Wong
National City Bank - Plissa Hricik, John Cunningham
Turnberry West Construction - Bob Ambridge
Turnberry I AWE Talisman - Jacqueline SofTer, Arthur Weiner, Jamie Irwin

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Dep. Ex. 19

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Dep. Ex. 21
FILED UNDER SEAL

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102

Dep. Ex. 22

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Dep. Ex. 23
FILED UNDER SEAL

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102

Dep. Ex. 24

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Dep. Ex. 26
FILED UNDER SEAL

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Dep. Ex. 28
FILED UNDER SEAL

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Dep. Ex. 29
FILED UNDER SEAL

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102

Dep. Ex. 30
FILED UNDER SEAL

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102

Dep. Ex. 31
FILED UNDER SEAL

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102

Dep. Ex. 32

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102

From:
Sent:
To:
Cc:

Subject

Johnson, Donita M.
Friday, January 30, 2009 5:59 PM
Rustgi, Amit
Rafeedie, McLendon
RE: Letter to Lehman

Hi Ämit,
The Guarantor funded $2,268,825.39 on January 26, 2009 which was applied as a principal curtailment on the
Deficiency Loan. Ullico funded the Borrower $2,268,82539 on January 27,2009 under the Deficiency Loan.
Regards,

bonita

bonita Johnson
Vice President
The Union Labor Life Insurance Corn pm>'
Reo] Estate Investment Group
8403 Colesville Rood

Thirteenth Floor
Silver Spring, Maryland 20910

Phont 202-962-9436
For 202-354-8091
[e-mail]

From: Rustgi, Amit 1mailto:arustahfitrimontrea.con,1
Sent: Friday, January 30, 2009 9:25 AM
To: Johnson, Donita M.
Cc: Rafeedie, McLendon
Subject: RE: Letter to Lehman
On what day did the borrower fund to you and what was the amount funded?

Thanks,

Amit Rustgi I Associate
TriMont Real Estate Advisors
3424 Peachtree Rd. Suite 2200
Atlanta, GA 30326
Direct [phone]
Cell [phone]
Fax [phone]
arustgi(ätrimontrea. corn

tEXHIBIT
From: Johnson, Donita M. rmailto:DJOHNSON©ULLIc0.coml
Sent: Thursday, January 29, 2009 7:48 PM
To: Rafeedie, McLendon

i

TRIM 030208

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 37 of
102
Cc: Rustgi, Amit
Subject- RE Letter to Lehman

They had to pay us that amount first, which we applied to the outstanding deficiency funding balance. Then we
advanced that amount on the deficiency icen.

bonita Johnson
Vice President
The Union Labor Life Insurance Company
Real Estate Itivestment Group
8403 Colesville Rood

Thirteenth Floor
Silver Spring, Maryland 20910
Phone: [phone]
For. 202-354-8091
[e-mail]

From: Rafeedie, McLendon [mailto:mrafeedieetrimontrea.coml
Sent: Thursday, January 29, 2009 2:59 PM
To: Johnson, Donita M.
Cc: Rustgi, Amit
Subject: RE: Letter to Lehman
The document indicates that the borrower will be reimbursing ULLICO for the advance. Am I reading this correctly? liso,
have they paid you back? Trying to keep the balances straight. Thanks.

From: Johnson, Donita M. fmailto:DJOHNSONeULLICO.comj
Sent: Tuesday, January 27, 2009 12:06 PM
To: Rafeedie, McLendon
Cc: Johnson, Donita M.; Cunningham, Daniel
Subject: FW: Letter to Lehman

Hi Mac,

Ullico is releasing their wire now. I will let you know when I have a confirmation number.

I have ottached a copy of the executed First Amendment to &uaraniy Agreement for your files. Also, I will send
you a copy of the left er to Lehman when it is prepared
Thanks,

bonita

bonita Johnson

Vice PrSident
The Union Labor Life Insurance Company
Real Estate Investment Group
8403 Colesville Road

Thirteenth Floor
Silver Spring, Maryland 20910
Phone: [phone]

For 202-354-8091
[e-mail]

2

TRIM 030209

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Notice. This message is intended only for use by the person or
entity to which it is addressed. Because it may contain confidential
information intended solely for the addressee, you are notified that
any disclosing, copying, downloading, distributing or retaining of
this message, and any attached files, is prohibited and may be a
violation of state or federal law. If you received this message in
error, please notify the sender by reply email, and delete the
message and all attached files. Thank you.

Notice. This message is intended only for use by the person or
entity to which it is addressed. Because it may contain confidential
information intended solely for the addressee, you are notified that
any disclosing, copying, downloading, distributing or retaining of
this message, and any attached files, is prohibited and may be a
violation of state or federal law. If you received this message in
error, please notify the sender by reply email, and delete the
message and all attached files. Thank you.

Notice. This message is intended only for use by the person or
entity to which it is addressed. Because it may contain confidential
information intended solely for the addressee, you are notified that
any disclosing, copying, downloading, distributing or retaining of
this message, and any attached files, is prohibited and maybe a
violation of state or federal law If you received this message in
error, please notify the sender by reply email, and delete the
message and all attached files. Thank you.

3

TRIM 030210

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Dep. Ex. 34
FILED UNDER SEAL

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102

Dep. Ex. 35
FILED UNDER SEAL

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102

Dep. Ex. 36
FILED UNDER SEAL

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102

Dep. Ex. 37
FILED UNDER SEAL

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102

Dep. Ex. 38
FILED UNDER SEAL

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102

Dep. Ex. 40
FILED UNDER SEAL

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102

Dep. Ex. 41
FILED UNDER SEAL

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102

Dep. Ex. 42

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Dep. Ex. 43
FILED UNDER SEAL

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102

Dep. Ex. 44

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 55 of
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From:
Sent:
To:
Cc:

Subject:
Attachments:

Johnson, Donita M.

Friday, April 03,20092:11 PM
Rustgi, Amit
Rafeedie, McLendon
RE: Amendment to Guaranty Agreement - Fontainebleau
ULLICO Third Amendment to Guaranty Agreement.pdf

Hi Amit,
I have attached a copy of the signed Third Amendment to Guaranty. Ullico funded $3,313,170.49 ond received a
payment of $1,000,000 from the Guarantor.
1egards,

bonita

bonita Johnson
Vice President
The Union Labor Life Insurance Company
Real Estafe Investment Group
8403 Colesville Road

Thirteenth Floor
Silver 5pring, M'ylond 20910
Phone: [phone]
Foc 202-354-8091
[e-mail]

From: Rustgi, Amit fmailth:arustqi(dtrimontrea.coml
Sent: Friday, April 03, 2009 1:48 PM
To: Johnson, Donita M.
Cc: Rafeedie, McLendon

Subject: Amendment to Guaranty Agreement

Donita,

With the borrower reimbursing you for the last draw, do you have the amendment to the guaranty agreement for our
recortis? lIso, could you please send it to me.
Thanks,

Amit R.ustgi J Associate
TriMont Real Estate Advisors
3424 Peachtree Rd. Suite 2200
Atlanta, GA 30326
Direct [phone]
Cell (716) 574-gogg
Fax [phone]
arustgitrimontrea .com

i

TRIM 030253

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Notice. This message is intended only for use by the person or
entity to which it is addressed. Because it may contain confidential
information intended solely for the addressee, you are notified that
any disclosing, copying, downloading, distributing or retaining of
this message, and any attached files, is prohibited and may be a
violation of state or federal law. If you received this message in
error, please notify the sender by reply email, and delete the
messageand all attached files. Thank you.

2

TRIM 030254

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 57 of
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751507.1

THIRD AMENDMENT TO GUARANTY AGREEMENT

THIS THD AMENDMENT TO GUARANTY AGREEMENT (this "Amendment") is

made as of this 25th day of March, 2009, by I?ONTAINEBLEAU RESORTS, LLC, a
Delaware limited liability company, having its principal place of business at 2827
Paradise Road, Las Vegas, Nevada 89109, TURNBERRY RESIDENTIAL LIMITED
PARTXER, LP., a Delaware Jinilted partnership, having its principal place of business

at L9950 West Country Club Drive, 10th Floor, Aventura, Florida 33180, and

JEFFREY SOFFER, an individual having an address at 19950 West Country Club
Drive, 10th Floor, Aventura, florida 33180 (hereinafter jointly, severally and collectively

referred to as "Guarantors"), in favor of THE UNION LABOR LIFE INSURANCE
COMPANY, a Maryland corporation, on behalf of its Separate Account J (hereinafter
referred to as "ULLICO").
WITNES SETH:

WHEREAS, the parties hereto entered into a Guaranty Agreement dated
December 29, 2008, as amended by that certain First Amendment to Guaranty
Agreement dated January 26, 2009, and as further amended by that certain Second
Amendment to Guaranty Agreement dated February 25, 2009 (as amended, the
"Guaranty") pursuant to which the Guarantors guaranteed the repayment of the
ULLICO Defaulted Loan Funding and the ULLICO Defaulted January Loan Funding
(capitalized tenus not otherwise defined in this Amendment shall have the respective
meanings given in the Guaranty); and

WHEREAS, Mortgage Borrower has requested an additional advance under the
Mortgage Loan Agreement to occur on the date hereof, in an aggregate amount equal
to $4,854,180.00 and, to the best of ULLICO's knowledge, Mortgage Borrower has
satisfied the conditions precedent to such funding in accordance with the relevant
provisions of Section 2.1.2 of the Mortgage Loan Agreement; and

WHEREAS, notwithstanding the satisfaction of such conditions precedent,
Lehman has again failed to fund its pro rata share of such advance as of the date
hereof, which pro rata share is equal to $3,313,170.49 (hereinafter referred to as the
"Defaulted March Share"); and

WHEREAS, as a result of the Defaulted February Share, the parties hereto
hereby acknowledge and agree that Lehman continues to be a Defaulting Split Note
Holder for purposes of the Co-Lending Agreement; and

WHEREAS, in order to induce ULLICO, in its capacity as a Current Split Note

Holder, to fund the Defaulted March Share in place of Lehman on the date hereof
(hereinafter referred to as the "ULLJCO Defaulted March Loan Funding"), Guarantors
have agreed to guaranty the repayment of the ULLICO Defaulted March Loan Funding
as weil as the remaining outstanding portion of the ULLICO Defaulted Loan Funding,
the ULLICO Defaulted January Loan Funding and the ULLICO Defaulted February
Loan Funding (collectively, the "Outstanding Defaulted Loan Fundings") to ULLICO in
accordance with the terms and conditions set forth herein

TRIM 030255

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7815071

NOW THEREFORE, for good and valuable consideration, the receipt and legal

sufficiency of which are hereby acknowledged, the parties hereto, intending to be
bound, hereby agree that the Guaranty is amended as follows:
The foregoing recitals are hereby incorporated herein by this reference as
il fully set forth herein.
As a condition to ULLICOs advance of the ULLICO Defaulted March Loan

Funding, Guarantors shall, (i) on the date hereof, make a partial repayment of the
Outstanding Defaulted Loan Fundings in the amount of $1,000,000.00, leaving an
outstanding balance (prior to the ULLICO Defaulted March Loan Funding) of
$2,391,631.83, and (ii) within ten (IO) business days after the date hereof, cause
Jeffrey Soffer to provide a first priority pledge of his distributions from that certain

shopping mall commonly known as the Borders and Linens Center, situate in

Aventura, Florida (hereinafter referred to as the 'Pledged Equity Interests") to secure
all of the obligations of Guarantors under the Guaranty. Such Pledged Equity

Interests must be satisfactory to ULLICO in its sole discretion, and shall be

documented by ULLICO's outside counsel at Guarantors' expense. In the event that
such Pledged Equity Interests are not acceptable to ULLICO in its sole discretion,
(luarantors shall provide such additional collateral as shall be acceptable to ULLICO
in its sole discretion. Notwithstanding anything herein to the contrary, in the event
that Guarantors are unable to provide sufficient collateral to secure its obligations

under the Guaranty, including the Pledged Equity interests and any additional

collateral that may be required, which is acceptable to ULLICO in its sole discretion
within the time period set forth herein, all amounts guaranteed hereunder shall be
immediately due and payable by Guarantors to ULLICO. Guarantor& payment of
$1,000,000 shall constitute substitute equity proceeds for a portion of Lehman s pro
rata share of the March advance of the Mortgage Loan satisfying clause (i) of
paragraph 3 of the Guaranty with respect to such advance If, for any reason, the
ULLICO Defaulted March Loan Funding is not advanced to Mortgage Borrower and is
returned to ULLICO, the $1,000,000.00 partial repayment made by Guarantors shall
also be returned.
The Guaranty is hereby modified and amended by deleting paragraph 3
thereof in its entirety and substituting the following paragraph 3 in lieu thereof:

The Guaranteed Obligations hereunder shall be due
and payable by Guarantors to ULLICO upon demand by
3.

ULLICO after the earlier to occur of: (i) Lehman falls to fund

its pro rata share of any subsequent advance when and as
due under the Mortgage Loan Agreement and substitute loan

proceeds in the full amount of such obligation are not

advanced in lieu thereof by any Split Note Holder, Mortgage
Borrower or any other party, or (ii) May 29, 2009 (hereinafter
referred to as a "Guaranty Trigger Event")

The "Guaranteed Obligations" under the Guaranty are hereby amended

to mean the outstanding balance of the Outstanding Defaulted Loan Fundings,
including the ULLICO Defaulted March Loan Funding, in the aggregate principal
amount of $5,704,802.32, together with interest thereon to the extent such interest is
not paid from Mortgage Loan proceeds in accordance with the terms of the Mortgage
2

TRIM 030256

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781507.1

Loan Documents.

Guarantors shall be jointly and severally obligated to pay the

Guaranteed Obligations when and as due in accordance with the tenns of the
Guaranty, except that, provided that the Pledged Equity Interests are acceptable to
ULLICO in accordance with the provisions of Section 2 above, Jeffrey Suffer shall have

no personal liability (except to the extent of the Pledged Equity [nterestsj for the
ULLICO Defaulted March Loan Funding and the obligation for the repayment of the
ULLICO Defaulted March Loan Funding shall be the joint and several obligation of
Fontainebleau Resorts, LIC and Turnberiy Residential Limited Partner, L P, together
with ULLICO's right to exercise its security interests in and to the Pledged Equity
Interests for the repayment of the ULLICO Defaulted March Loan Funding.
Notwithstanding anything herein to the contrary, the foregoing limitation shall have no
effect on Jeffrey Soffer's continued personal liability for the Outstanding Defaulted
Loan Fundings other than the t.JLLICO Defaulted March Loan Funding

Guarantors hereby confirm and acknowledge that they have the full
5,
power, authority and legal right to execute this Amendment and to perform all
obligations under the Guaranty, as amended hereby.

All understandings, representations and agreements heretofore had with
respect to this Amendment arc merged into this Amendment whIch, together with the
Guaranty, fully and completely expresses the agreement of Guarantors and ULLICO
with respect to the subject matter hereof.

The obligations of Guarantors hereunder are in addition to, and not in
substitution or replacement of, any obligations of Guarantors under the Mortgage
Loan Documents. This Amendment is being provided solely for the benefit of ULLICO
and no other Lender may enforce the terms hereof or of the Guaranty, nor shall any
default hereunder constitute a default under the other Mortgage Loan Documents.
S,

Each reference herein to ULLCO shall be deemed to include its

successors and assigns, to whose fávor the provisions of the Guaranty, as amended
hereby, shall also inure. Each reference herein to Cuarantors shall be deemed to
include the heirs, executors, administrators, legai representatives, successors and
assigns of Guarantor, all of whom shall be bound by the provisions of the Guaranty,
as amended.
Except as amended hereby, the Guaranty remains unmodified and in full
force and effect, and Guarantors reaffirm theft obligations thereunder.

This Amendment may be executed in one or more counterparts, each of

which shall be an original and ail of which shall together constitute a single
agreement.
[SIGNATURES ON ?0LLOWING PAGE]

3

TRIM 030257

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781507.)

IN WITNESS WHEREOF, Guarantors have caused this Amendment to be
executed as of the day and year first above written.
FOINTAINEBLEIAU RESORTS. LW, a

Delaware limited liability company

y.

Name:
TltIe Authorized Signatory

TURNBERRY RESWENTIM. LIMITED

PARTNER, L.P.,a Delaware limited

partnership
By:

Soffer GP, LLC, its sole generai partner
By:
Name:
Title:

Jeffie3r Soffer, individually
AGREED AND ACCEPTED

this

day of March. 2009:

TUE tIMON LáBOR LIFE INSURANCE COMPANY.

a Maryland corporation, on behalf of its Separate Account .J
By:

Name:
TItle:

4

TRIM 030258

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 61 of
102
781507Á

IN WITNESS WHEREOF, Guarantors have caused this Amendment to be
executed as of the day and year first above written.
FONTAINEBLE&U RESORTS, LIC, a
Delaware Iiâüted liability company
By:

Name:

Title: Authorized Signatory
TURNUERRY RESmENTIAL LIMITED

PARTNER, LP., a Delaware limited
partnership
By:

Softer GP, LLC, its sole general partner
By:

Name;ÑA.Rso 4.
Title:,44t-%oa,tei

St-rçQ1

Jeffrey Solfer, individually
AGREED AND ACCEPTED

this

day of March, 200g:

THE IJflON LABOR LIFE INSURANCE COMPAIW,

a Maryland corporation, on behalf of its Separate Account J
By:

Name:
Tide:

4

TRIM 030259

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 62 of
102
781507.1

IN WITNESS WHEREOF. Guarartt.ors have caused this Amendment to be

executed as of the day and year first above written.
FONTMNEBLEÄU RESORTS, LW, a
Delaware limited liability company
By:
Name:
Tille: Authorized Signatory

TURNBZRRY RESIDENTIAL LIMITED

PMtTNER, L.P., a Delaware limited

partnership
By:

Softer

GP, LLC,

its sole general partner

By:

Namc:

Jeffrey Soffer, fndßidually

-,

AGREED AND ACCEPTED

this

day of March, 2009:

THE UNION LABOR LIFE INSURANCE COMPANY,

a Maryland corporation, on behalf of its Separate Account J
By:

Name:
Title:

4

TRIM 030260

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 63 of
102

Dep. Ex. 45
FILED UNDER SEAL

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 64 of
102

Dep. Ex. 46
FILED UNDER SEAL

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 65 of
102

Dep. Ex. 47
FILED UNDER SEAL

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 66 of
102

Dep. Ex. 48
FILED UNDER SEAL

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 67 of
102

Dep. Ex. 50
FILED UNDER SEAL

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 68 of
102

Dep. Ex. 53
FILED UNDER SEAL

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 69 of
102

Dep. Ex. 54
FILED UNDER SEAL

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 70 of
102

Dep. Ex. 56

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 71 of
102

Nicholson, Yetta

From:
Sent:
To:
Cc:

Friday, September26, 20081:11 PM
Rustgi, Amit, _ATL-Tceasury Cash Management
Rafeedie, McLendon
RE: Another wire expected for Fontainebleau Las Vegas Retail #1162911

Subject:
Wire has come in

STATJS:

PROCESSED

VIA:

FED

TIME: 12:59
09/25/08

VAJIDT:

CREDIT BANK/ACCOUNT:
CREDIT NAME:
USD EQUIVALENT:
TRANSACTION ANT:
ADVICE:
REF 4:
SENDER Fl:
SENDER Fl NAME:
RECEIVER Fl:
RECEIVER Fl MANE:
ORIGINATOR ID CODE/ID:
ORIGINATOR NAME:
ORIGI NATOR ADDRESS:

ORIGINATOR Fl CODE/ID:
ORIGINATOR Fl NAME:
ORIGINATOR Fl ADDRESS:

INCOMING WIRE - CREDIT
WBGA D 2000025192043
TRIMONT REAL ESTATE ADVISORS, INC.
$2,526, 184 .00

USD

2,526,184.00

20 08 0 92 6-0 0 0399 17

0926B6B7HU2RCO569309261259FT01
026009593
BANK OF AMERICA, N.A., NY
061000227
WACHOVIA BANK OF GEORGIA
004968329641
FONTAINBBLEAU RESORTS, LLC
GENERAL ACCOUNT
2827 PARADISE RD
LAS VEGAS NV 89109-5279
S BOE'AUS3M

BANK OF AMERICA, N.A.
100 WEST 33RD STREET
NEW YORK, NY, US

CHARGE INSTRUCTIONS/AMOUNT:
BENEFICIARY ID CODE/ID:
BENEFICIARY NAME:
BENEFICIARY ADDRESS:
BENEFICIARY REF:
ORIGINATOR TO BENEFICIARY INFO:

SHARED
D2 000 025 192 0 43

TRIMONT REAL ESTATE ADVISORS, INC.
3424 PEACHTREE RD. ATLANTA GA 30326
21958856
TRIMONT FBO TRIMONT REAL ESTATE ADV
ISORS ACCOUNT 2000025192043 FOR BEN
EFIT FORTAINEBLEAU LAS VEGAS RETAIL
LLC 1162911
"' END
OF
WIRE

Thanks,

Yetta

A XEX}UBrr
From: Rustgi, Amit
Sent: Friday, September 26, 2008 11:39 AM

Deponent

To: _ATL-Treasury Cash Management
Cc: Rafeedie, l'lcLendon
Subject: Another wire expected for Fontainebleau Las Vegas Retail #1162911

Dote

Sic

Rptr._

WWWDOBOOLcOM

4

With Lehman not funding their portion of the draw, the borrower has decided to fund Lehman's portion. Can you please
email me when the funds from Fontainebteau come into the collection account. The amount is for $2,526,184. Email me
with any questions. We are expected to wire this total voucher once we receive funds from the borrower. The total
3.

TRIM 038104

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 72 of
102
voucher amount is $3,789,276.00 ($1,263,092 from the syndicates that have already arrived in the collection account and
$2,526,184 from Fontainebleau). Email me with any questions.
Thanks,
Amit

Amit Rustgi TriMont Real Estate Advisors
3424 Peachtree Rd. Suite 2200
Atlanta, GA 30326
Direct [phone]
Fax [phone]
ariistwT(thmontrea.com

2

TRIM 038105

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 73 of
102

Dep. Ex. 57

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 74 of
102

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 75 of
102

Dep. Ex. 58

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 76 of
102

From:
Sent:
To:
Subject:

Brown, Jeanne P [e-mail]]
Tuesday, December 30, 2008 2:04 PM
Rafeedie, McLendon
RE:

Anything?

From: Rafeedie, McLendon [maiIth:mrafeedietrimontrea.com1
Sent: Tuesday, December 30, 2008 12:27 PM
To: Brown, Jeanne P

Subject:

We did get the ULLICO funding. Waiting on SMBC. WII send immediately thereafter.
McLendon P. (Mac) Rafeedle I TflMont Real Estate Advisors
3424 Peachtree Rd. Suite 2200

Aanth, GA 3032S
Direct (404) 954 - 5302
Fax (404) 420 - 5610
rnrafeedietrjrronfrea corn

A 'v ExHmrr.2i-7S
Deponent

1

wwwrn,C300LCOM

TRIM 029187

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 77 of
102

Dep. Ex. 59

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 78 of
102

From:
Sent:
To:
Cc:

Subject:

Rafeedie, McLendon
Tuesday, January 27, 2009 1:30PM
LB_Ficallo, Albert
Rustgi, Amit
RE: Letter to Lehman

ULLICO is. Per paragraph 2 of the doc I just sent you, it appears that Fontainebleau is going to reimburse ULLICO for
this advance.

From: LB_Picallo, Albert
Sent: Tuesday, January 27, 2009 1:27 PM
To: Rafeedie, McLendon

Subject Re Letter U) Lehman
Who funded our shortfall?

From: Rafeedie, McLendon
To: Picallo, Albert R
Cc: Rustgi, Amit
Sent: Tue Jan 2713:22:45 2009
Subject: FW: Letter to Lehman
Not sure you were aware of this or not Fontainebleau is puffing more equity in.

Amit Please make sure this document gets saved in documentum and that the additional equity is reflected in our models.
Thanks.
Mac

From: Johnson, Donita M. [mailto: DJOHNSON©ULLICQ.comI
Sent: Tuesday, January 27, 2009 12:06 PM
To: Rafeedie, NIcLendon
Cc: Johnson, Donita NI.; Cunningham, Daniel

Subject: FW Letter to Lehman
Hi Mac,

Ullico is releasing their wire now. I will let you know when I have a confirmation number.

I have attached a copy of the executed First Amendment to Guaranty Agreement for your files. Also, I will send
you a copy of the letter to Lehman when it is prepared.
Thanks,
ban ita

A X EG1ffirr9
Deponent
Date

Rptt_

wwww0000LooM

TRIM 038913

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 79 of
102

Donita Johnson
Vice President
The Union Labor Life Insurance Company
Real Estate Investment Group
8403 Colesville Rood

Thirteenth Floor
Silver Spring, Morylond 20910
Phone: [phone]
For 20a-354-8091
[e-mail]

Notice. This message is intended only for use by the person or
entity to which it is addressed. Because it may contain confidential
information intended solely for the addressee, you are notified that
any disclosing, copying, downloading, distributing or retaining of
this message, and any attached files, is prohibited and may be a
violation of state or federal law. If you received this message in
error, please notify the sender by reply email, and delete the
message and all attached files. Thank you.
This message is intended only for the personal
and confidential use of the designated recipient(s) named above. If you are not the intended recipient of this
message you are hereby notified that any review, dissemination, distribution or copying of this message is
strictly prohibited. This communication is for information purposes only and should not be regarded as an offer
to sell or as a solicitation of an offer to buy any financial product, an official confirmation of any transaction, or
as an official statement of Lehman Brothers. Email transmission cannot be guaranteed to be secure or error-free.
Therefore, we do not represent that this information is complete or accurate and it should not be relied upon as
IRS Circular 230 Disclosure: Please be
such. All information is subject to change without notice.
advised that any discussion of U.S. tax matters contained within this communication (including any
attachments) is not intended or written to be used and cannot be used for the purpose of(i) avoiding U.S. tax
related penalties or (ii) promoting, marketing or recommending to another party any transaction or matter
addressed herein.

2

TRIM 038914

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 80 of
102

Dep. Ex. 61

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 81 of
102

Lesher, Beth [Beth.LeshernationaIcity.com

From:
Sent:
To:

Tuesday, March 03, 2009 9:28 AM
Rustgi, Amit
RE: Fontainebleau

Subject

Oh, sorry to ask you to provide it again. I was un 2ware that you had already responded to Melissa. Thanks,
though - I certainly appreciate your help.
Beth Lesher
construction Loan Administrator II
Real Estate Finance - construction Loan Adniin

National City, now a part of PNC
i chagrin Highlands
2Q00 Auburn Or, Suite 400 (LOC 01-S6CH)
Beachwood, OH 44122

Phone: [phone]
Fax: [phone]
beth. I ash er nationaIci
www.welcomctopnc.com

oem

From: Rustgi, Amit [maiIth:arustgiltrimontrea.coni1
Sent: Tuesday, March 03, 2009 9:16 AM

To Lesher, Beth
Subject: RE: Fontainebleau
I already sent this information to Elissa on Friday but here it is again. ULLICO funded Lehman's share on 12/30/08 in the
amount of $3,391,631.84. The borrower funded Lehman's share on 9/26/08, 1/26/09, and 2/25/09 in the amount of
$7,554,607.43 giving a total between the two of $10,946,239.27. Email me with any additional questions.

Amit Rustgi I Associate
TriMont Real Estate Advisors
3424 Peachtree Rd. Suite 2200
Atlanla, GA 30326
Direct [phone]
Cell [phone]
Fax [phone]
arustgifflmonfrea.com

From: Lesher, Beth [mailto:Beth Lesher(a)nationalcity.coml
Sent: Tuesday, March 03, 2009 8:17 AM
To: Rustgi, Amit
Subject: FW: Fontainebleau

HiAmitCould you please answer the questions below....

S

AnExHIBrr

Beth Lesher
Construction Loan Administrator II
Real Estate Finance - construction Loan Admin

Deponent
1.

Date

Rptr_

www.00EOoLcaM

TRIM 031501

4

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 82 of
102
National City, now a part of PNC
I Chagrin Highlands
2000 Auburn Dr, Suite 400 (LOC 01 -86cH)
Beachwood, OH 44122

Phone: [phone]
Fax: [phone]
beth. I esh er nationalcity.com
www.welcornetgpnc.com

From: Hricik, Elissa
Sent: Friday, February 27, 2009 10:30 AM
To: Lesher, Beth
Subject: Fontainebleau
Beth,

Can you get the following information, whether you have it or if you need to request it from TriMont.
How much of Lehman's portion of the commitment has ULLICO actually funded, including the mot recent draw. Basically,
how much has Lehman not funded of their obligation, and of that, how much has ULLICO funded on their behalf, and how
much came from borrower equity.
I need this information rather quickly. I appreciate your assistance.
Thanks,
Elissa
Elissa £ Hridilc
Assistant Vice President
Naiional City Bank, now a part of PNC
Conmiercial Real Estate - Nafional Markets

One Chagn Highhnds
2000 Auburn Drive; Suite 400
Locator 01-86CH
Beacliwood, OH 44122-4327
Office 216-488-3285
Cell: 216-978-3987
Fax: [phone]
Elissa.Hddilc(ñnafionaldty.com

***National city made the following annotations

This communication is a confidential and proprietary business communication. It is intended solely for the use
of the designated recipient(s). If this communication is received in error, please contact the sender and delete
this communication.

2

TRIM 031502

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 83 of
102

Dep. Ex. 62

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 84 of
102

From:
Sent:
To:
Cc:

Subject:

Rafeedie, McLendon
Wednesday, March 25, 2009 4:46 PM
Brown, Jeanne P
Rustgi, Amit
RE: Fbleau

ULLICO will be funding Lehman's share plus their own, in the morning. We should have Sumitomo's share shortly
thereafter and will get the wire out.

From: Brown, Jeanne P [mailto:janne.o.bnwnbankofamerica.com1
Sent: Wednesday, March 25, 2009 12:59 PM
To: Rafeedie, McLendon
Cc. Rustgi, Amit
Subject: RE: Fbleau
Any update?

From: Rafeedie, McLendon [mailin: mrafeedieetrimontrea.comj
Sent: Wednesday, March 25, 2009 10:37 AM
To: Brown, Jeanne P
Rustgi, Amit
Subject: Fbleau

a.

Got your message. Have not heard anything yet, will let you know.
McLendon P. (Mac) Rafeedle I TnMont Real Estate Advisors
3424 Pe?chtree Rd. Suite 2200

Aante, GA 30326
Direct [phone]
Fax [phone]

mrafeedierrtnfrea.com

Ax xirr
Deponent
a

Date

Bptr.....

WWWD'O3OOLCOM

TRIM 040241

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 85 of
102

Dep. Ex. 63

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 86 of
102

From:
Sent:
To:
Cc:

Subject:
Attachments:

Johnson, Donita M.
Friday, April 03,2009 2:11 PM
Rustgi, Amit
Rafeedie, McLendon
RE: Amendment to Guaranty Agreement - Fontainebleau
ULLICO Third Amendment to Guaranty Agreement.pdf

Hi Amit,
I have attached a copy of the signed Third Amendment to Guaranty. Ullico funded $3,313,170.49 and received a
payment of $1,000,000 from the Guarantor.
kegards,
Don ita

Donita Johnson
Vice President
The Union Labor Life Insurance Company
Real Estate Investment Group
8403 Colesville Road

Thirteenth Floor
5ilver Spring, Morylond 20910
Phone: [phone]
Fwc 202-354-8091
[e-mail]

From: Rustgi, Amit [maifto:arustcii©trimontrea.comj
Sent: Friday, April 03, 2009 1:48PM
To: Johnson, Donita ft
Cc: Rafeedie, McLendon
Subject: Amendment to Guaranty Agreement

Donita,

With the borrower reimbursing you for the last draw, do you have the amendment to the guaranty agreement for our
records? If so, could you please send it to me.
Thanks,

Amit Rustgi I Associate
TriMont Real Estate Advisors
3424 Peachtree Rd. Suite 2200
Atlanta, GA 30326
Direct [phone]
Cell [phone]
Fax [phone]

A x EXHIBIT

amstgitrimontreacom

Deponent

Date

Rptr._

VWDoflOotcOw

1.

TRIM 030253

t

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 87 of
102
Notice. This message is intended only for use by the person or
entity to which it is addressed. Because it may contain confidential
information intended solely for the addressee, you are notified that
any disclosing, copying, downloading, distributing or retaining of
this message, and any attached files, is prohibited and may be a
violation of state or federal law. If you received this message in
error, please notify the sender by reply email, and delete the
message and all attached files. Thank you.

2

TRIM 030254

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 88 of
102
78i507.1

THIRD AMENDMENT TO GUARANTY AGREEMENT

THIS THIRD AMENDMENT TO GUARANTY AGREEMENT (this "Amendment") is

made as of this 25th day of March, 2009, by FONTAINEBLEAU RESORTS, LLC, a
Delaware limited liability company, having its principal place of business at 2827
Paradise Road, Las Vegas, Nevada 89109, TURNBERRY RESIDENTIAL LIMITED
PARTNER, L.P., a Delaware limited partnership, having its principal place of business

at 19950 West tountry Club Drive, 10th Floor, Aventura, Florida 33180, and
JEFFREY SOFFER, an individual having an address at 19950 West Country Club

Drive, 10th Floor, Aventura, Florida 33180 (hereinafter jointly, severally and collectively

referred to as "Guarantors"), in favor of THE UMON LABOR LIFE INSURANCE
COMPANY, a Maryland corporation, on behalf of its Separate Account J (hereinafter
referred to as 1'ULLICO")
WITNES SETH:

WHEREAS, the parties hereto entered into a Guaranty Agreement dated
December 29, 2008, as amended by that certain First Amendment to Guaranty
Agreement dated January 26, 2009, and as further amended by that certain Second
Amendment to Guaranty Agreement dated February 25, 2009 (as amended, the
"Guaranty") pursuant to which the Guarantors guaranteed the repayment of the
ULLICO Defaulted Loan Funding and the ULLICO Defaulted January Loan Funding
(capitalized terms not otherwise defined in this Amendment shall have the respective
meanings given in the Guaranty); and
WHEREAS, Mortgage Borrower has requested an additional advance under the
Mortgage Loan Agreement to occur on the date hereof, in an aggregate amount equal
to $4,854j8000 and, to the best of ULLICO's knowledge, Mortgage Borrower has
satisfied the conditions precedent to such funding in accordance with the relevant
provisions of Section 21.2 of the Mortgage Loan Agreement; arid

WHEREAS, notwithstanding the satisfaction of such conditions precedent,
Lehman has again failed to fund its pro rata share of such advance as of the date
hereof, which pro rata share is equal to $3,313,170.49 (hereinafter referred to as the
"Defaulted March Share"); and

WHEREAS, as a result of the Defaulted February Share, the parties hereto
hereby acknowledge and agree that Lehman continues to be a Defaulting Split Note
Holder for purposes of the Co-Lending Agreement; and

WHEREAS, in order to induce ULLICO, in its capacity as a Current Split Note

Holder, to fund the Defaulted March Share in place of Lehman on the date hereof
(hereinafter referred to as the "UIJLICO Defaulted March Loan Funding"), Guarantors
have agreed to guaranty the repayment of the ULLICO Defaulted March Loan Funding
as well as the remaining outstanding portion of the ULLICO Defaulted Loan Funding,
the ULLICO Defaulted January Loan Funding and the ULLICO Defaulted February
Loan Funding (collectively, the "Outstanding Defaulted Loan Fundings") to ULLICC) in
accordance with the terms and conditions set forth herein

TRIM 030255

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 89 of
102
781507 1

NOW THEREFORE, for good and valuable consideration, the receipt and legal

sufficiency of which are hereby acknowledged, the parties hereto, intending to be
bound, hereby agree that the Guaranty is amended as follows:
The foregoing recitals are hereby incorporated herein by this reference as
if fully set forth herein.
As a condition to ULLICO's advance of the ULLICO Defaulted March Loan

Funding, Guarantors shall, (i) on the date hereof, make a partial repayment of the
Outstanding Defaulted Loan Fundings in the amount of $1,000,000.00, leaving an
outstanding balance (prior to the ULLICO Defaulted March Loan Funding) of
$2,391,631.83, and (ii) within ten (10) business days after the date hereof, cause
Jeffrey Sofrer to provide a first priority pledge of his distributions from that certain

shopping mall commonly known as the Borders and Linens Center, situate in

Aventura, Florida (hereinafter referred to as the "Pledged Equity Interests") to secure
all of the obligations of Guarantors under the Guaranty. Such Pledged Equity

Interests must be satisfactory to ULLICO in its sole discretion, and shall be

documented by ULLICO's outside counsel at Guarantors' expense. In the event that
such Pledged Equity Interests are not acceptable to ULLICO in its sole discretion,
Guarantors shall provide such additional collateral as shall be acceptable to ULLICO
in its sole discretion. Notwithstanding anything herein to the contrary, in the event
that Guarantors are unable to provide sufficient collateral to secure its obligations

under the Guaranty, including the Pledged Equity Interests and any additional

collateral that may be required, which is acceptable to IJLLICO in its sole discretion
within the lime period set forth herein, all amounts guaranteed hereunder shall be
immediately due and payable by Guarantors to ULLICO. Guarantors' payment of
$1,000,000 shall constitute substitute equity proceeds for a portion of Lehman's pro
rata share of the March advance of th Mortgage Loan satisfying clause (i) of
paragraph 3 of the Guaranty with respect to such advance. If, for any reason, the
ULLICO Defaulted March Loan Funding is not advanced to Mortgage Borrower and is
returned to ULLICO, the $i,uoo,000.o@ paitial repayment made by Guarantors shall
also be returned

The Guaranty is hereby modified and amended by deleting paragraph 3
thereof in its entirety and substituting the following paragraph 3 in lieu thereof:

The Guaranteed Obligations hereunder shall be due
and payable by Guarantors to ULLICO upon demand b.y
3.

ULLICO after the earlier to occur of: (i) Lehman fails to fund

its pro rata share of any subsequent advance when and as
due under the Mortgage Loan Agreement and substitute loan

proceeds in the full amount of such obligation are not

advanced in lieu thereof by any Split Note Holder, Mortgage
Borrower or any other party, or (ii) May 29, 2009 (hereinafter
referred to as a "Guaranty Trigger Event").

The "Guaranteed Obligations" under the Guaranty are hereby amended

to mean the outstanding balance of the Outstanding Defaulted Loan Fundings,
including the ULLICO Defaulted March Loan Funding, in the aggregate principal

amount of $5,704,802.32, together with interest thereon to the extent such interest is
not paid from Mortgage Loan proceeds in accordance with the terms of the Mortgage
2

TRIM 030256

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 90 of
102
781507.1

Guarantors shall be jointly and severally obligated to pay the
Guaranteed Obligations when and as due in accordance with the terms of the

Loan Documents.

Guaranty, except that, provided that the Pledged Equity Interests are acceptable to
ULLICO in accordance with the provisions of Section 2 above, Jeffrey Soffer shall have

no personal liability (except to the extent of the Pledged Equity Interests) for the

ULLICO Defaulted March Loan Funding and the obligation for the repayment of the
ULLICO Defaulted March Loan Funding shall be the joint and several obligation of
Fontainebieau Resorts, LLC and Turnberry Residential Limited Farther, L.P., together
with ULLICO's right to exercise its security interests in and to the Pledged Equity

Interests for the repayment of the ULLICO Defaulted March Loan Funding.
Notwithstanding anything herein to the contrary, the foregoing limitation shall have no
effect on Jeffrey Softer's continued personal liability for the Outstanding Defaulted
Loan Fundings other than the [JLLICO Defaulted March Loan Funding.

Guarantors hereby confirm and acknowledge that they have the full
power, authority and legal right to execute this Amendment and to perform all
obligations under the Guaranty, as amended hereby.

All understandings, representations and agreements heretofore had with
respect to this Amendment are merged into this Amendment which, together with the
Guaranty, fully and completely expresses the agreement of Guarantors and ULLICO
with respect to the subject matter hereof.

The obligations of Guarantors hereunder are in addition to, and not in
substitution or replacement of, any obligations of Guarantors under the Mortgage
Loan Documents. This Amendment is being provided solely for the benefit of t.JLLICO

and no other Lender may enforce the terms hereof or of the Guaranty, nor shall any
default hereunder constitute a default under the other Mortgage Loan Documents.
8,

Each reference herein to ULLICO shall be deemed to include its

successors and assigns, to whose favor the provisions of the Guaranty, as amended
hereby, shall also inure. Each reference herein to Guarantors shall be deemed to
include the hefts, executors, administrators, legal representatives, successors and
assigns of Guarantor, all of whom shall be bound by the provisions of the Guaranty,
as amended.
Except as amended hereby, the Guaranty remains unmodified and in. full
force and effect, and Guarantors reaffirm theft obligations thereunder.

This Amendment may be executed in one or more counterparts, each of

which shall be an original and afl of which shall together constitute a single
agreement.
[SLGNATURES ON ?OLLOWThIG PAGE]

3

TRIM 030257

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 91 of
102
781507.]

IN WiTNESS WHEREOF. Guarantors have caused this Amendment to be
executed as of the day and year first above wi-itten.
EONTAINEBLEAU RESORTS, LLC, a

Delaware limited liability company

By:7
Name:

'5'

'',

'TItle: Authorized Signatory
TIJRNBERRY RESIDENTIAL LIMITED
PARTNER, L.P., a Delaware lu-tilted

partnership
Soffer GE', LLC. its sole general partner

By:

By:

Name.
Title:

Jeffrey Soffer, individually
AGREED AND ACCEFED
day of March, 2009:
this
TIlE UNION LABOR LIFE INSURANCE COMPANY,

a Maryland corporation, on behalf of its Separate Account J
By:

Name:
Title:

4

TRIM 030258

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102
7815071

IN WITNESS WHEREOF, Guarantors have caused this Amendment to be
executed as of the day and year first above written.
FONTMNEBLEAU RESORTS, LW, a
Delaware limited liability company
By:

Name

Title: Authorized Signatory
TURNBERRY RESIDENTThL LIMITED

PARTNER, L.P., a Delaware limited

partnership
By:

Soffer GP, LLC, its sole general partner
By:

-

Name:H&Rto 4 rp0
Title:A(A-j-ttoaItcccc

St)&-rof2,f

Jeffrey Soffer, individually
AGREED AND ACCEPTED

this

day of March, 2009:

TUE niXON LABOR LifE E{SIJRANCE COMPMqY,

a Maxyland corporation, on behalf of its Separate Account J
By:

Name:
Title:

TRIM 030259

Case 1:09-md-02106-ASG Document 381-1 Entered on FLSD Docket 12/05/2013 Page 93 of
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Th1507, I

IN WITNESS WHEREOF. Quni-antors have caused this Amendment to be
executed as of the day and \'ear first above written.
FONTA.INEBLEAU RESORTS, LLC, a

Delaware limited liability company
By:

Name:
Title: Authorized Signatory
TLTRNBERRY RESmENTIAL LThUTED

PARTNER, L.P., a Delaware limited

partnership
Soffer GP, LLC, its sok gcneral partner

By:

By:

Namc
Title:

Jeffrey Soffer, in. 'idually
AGREED AND ACCEPTED

this

day of March. 2009:

THE UNION LABOR LJFE msuanNcE COMPANY,
a Maryland corporation, on behalf of its Separate Account J
By:

Name;
Title:

4

TRIM 030260

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Dep. Ex. 67

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Dep. Ex. 68

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Dep. Ex. 69

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