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 37-7 Entered on FLSD Docket 02/18/2010 Page 20 of 43

IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
by their officers thereunto duly authorized as of the day and year first above written.
FONTAINEBLEAU LAS VEGAS HOLDINGS, LLC,
a Delaware limited liability company
By: Fontainebleau Resort Properties I, LLC,
its Managing Member
By: Fontainebleau Resort Holdings, LLC,
its Managing Member
By: Fontainebleau Resorts, LLC, its Managing
Member
By:
Title:

FONTAINEBLEAU LAS V~GAS CAPITAL CORP.
a Delaware qo~poration
Title: ~~Z2{"

FONTAINEBLEAU LAS VEGAS RETAIL, LLC,
a Delaware limited liability company

By: Fontainebleau Las Vegas Retail Mezzanine, LLC,
its Managing Member
By: Fontainebleau Las Vegas Retail Parent, LLC,
its Managing Member

By: Fontainebleau Resort Holdings, LLC,
its Managing Member
By: Fontainebleau Resorts, LLC, its
Managing Member
By:
Title:

[Master Disbursement Agreement]

Case 1:09-md-02106-ASG Document 37-7 Entered on FLSD Docket 02/18/2010 Page 21 of 43

FONTAINEBLEAU LAS VEGAS, LLC,
a Nevada limited liabilitY company

and
FONTAINEBLEAU LAS VEGAS II, LLC,
a Florida limited liability company
By: Fontainebleau Las Vegas Holdings, LLC,
Managing Member of each of the foregoing
By: Fontainebleau Resort Properties I, LLC,
its Managing Member
By: Fontainebleau Resort Holdings, LLC,
its Managing Member

BANK OF AMERICA, N.A., as Bank Agent

By:
Donna F. Kimbrough
Title: Assistant Vice President

WELLS FARGO BANK, N.A., as Trustee
By:
Lynn M. Steiner
Title: Vice President

[Master Disbursement Agreement]

Case 1:09-md-02106-ASG Document 37-7 Entered on FLSD Docket 02/18/2010 Page 22 of 43

FONTAINEBLEAU LAS VEGAS, LLC,
a Nevada limited liabilitY company
and
FONTAINEBLEAU LAS VEGAS II, LLC,
a Florida limited liability company
By: Fontaineblean Las Vegas Holdings, LLC,
Managing Member of each of the foregoing
By: Fontainebleau Resort Properties I, LLC,
its Managing Member

By: Fontainebleau Resort Holdings, LLC,
its Managing Member
By: Fontainebleau Resorts, LLC,
its Managing Member
By:
Title:

BANK OF AMERICA, N.A., as Bank Agent

By:

_

Donna F, Kimbrough
Title: Assistant Vice President

WELLS FARGO BANK, N.A., as Trustee

By:
Lynn M o Steiner
Title: Vice President

[Master Disbursement Agreement]

Case 1:09-md-02106-ASG Document 37-7 Entered on FLSD Docket 02/18/2010 Page 23 of 43

FONTAINEBLEAU LAS VEGAS, LLC,
a Nevada limited liabilitY company
and
FONTAINEBLEAU LAS VEGAS II, LLC,
a Florida limited liabilitY company
By: Fontainebleau Las Vegas Holdings, LLC,
Managing Member of each of the foregoing

By: Fontainebleau Resort Properties I, LLC,
its Managing Member
By: Fontainebleau Resort Holdings, LLC,
its Managing Member
By: Fontainebleau Resorts, LLC,
its Managing Member
By:
Title:

BANK OF AMERICA, N.A., as Bank Agent

By:
Donna F. Kimbrough
Title: Assistant Vice President

WELLS FARGO BANK, N.A., as Trgstee
By: ~’~_ -~
Lynn lk~. Steiner
Title: Vice Presidem

[Master Disbursement Agreement]

Case 1:09-md-02106-ASG Document 37-7 Entered on FLSD Docket 02/18/2010 Page 24 of 43

BANK OF AMERICA, N.A., as Disbursement Agent

B~

~ p. Brown
Title: "ice President

LEHMAN BROTHERS HOLDINGS INC., as Retail Agent

By:
Title:

[Master Disbursement Agreement]

Case 1:09-md-02106-ASG Document 37-7 Entered on FLSD Docket 02/18/2010 Page 25 of 43

EXHIBIT A to the
Disbursement Agreement

DEFINITIONS
"Accounts" means each of the accounts described in Section 2.2, and any other accounts or subaccounts established pursuant hereto from time to time.
"Additional Contract Certificate" means an Additional Contract Certificate substantially in the
form of Exhibit S.
"Additional Contract" means any Contract entered into after the Closing Date.

"Advance" means:
(a) with respect to the Bank Credit Facility, a transfer of funds from the Bank
Proceeds Account into the Bank Funding Account (other than pursuant to Section
2.6.4(c));
(b) with respect to the Second Mortgage Notes, a transfer of funds from the
Second Mortgage Proceeds Account to the Second Mortgage Funding Account (other
than pursuant to Section 2.6.4(b));

(c) with respect to the Retail Facility, an advance of Loans (as defined in the
Retail Facility Agreement) deposited in the Retail Funding Account; and
(d) any transfer of funds from any of the other Accounts (other than the Payment
Accounts) to the Payment Accounts or the Cash Management Account or the h~terest
Account.
"Advance Confirmation Notice" means an Advance Confirmation Notice, substantially in the
form of Exhibit E hereto.
"Advance Date" means the date on which an Advance is requested to be made pursuant to an
Advance Request.
"Advance Request" means (i) in connection with any Advance from the Equity Funding Account
prior to the initial disbursement of fimds from the Second Mortgage Proceeds Account, a written
notice delivered by the Companies pursuant to Section 3.2, (ii) in connection with any Advance
under the Retail Facility solely for Other Project Costs, a written request by the Retail Affiliate
in the required form attached to the Retail Facility Agreement, together with each of the
applicable reports described in Sections 2.07, 2.09, 2.10 and 2.11,, certifying that the amounts
requested are due and payable in connection with the applicable retail lease and that all
applicable conditions set forth in Section 3.5.2 have been satisfied or waived in accordance with
this Agreement, and (iii) in all other cases, an advance request and certificate substantially in the
form of Exhibit C- 1 hereto.
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Case 1:09-md-02106-ASG Document 37-7 Entered on FLSD Docket 02/18/2010 Page 26 of 43

"Advance Request Transfer Report" means, for each Advance Date, a report prepared by the
Project Entities in the appropriate version of the form attached to Exhibit C-1 as Appendix 5.
"Affiliate" as applied to any Person, any other Person which, directly or indirectly, is in control
of, is controlled by, or is under common control with, such Person. For purposes of this
definition, "control" (including, with correlative meanings, the terms "controlling," "controlled
by," and "nnder common control with") as applied to any Person means the power, directly or
indirectly, either to (a) vote 10% or more of the securities having ordinary voting power for the
election of directors (or persons performing similar functions) of such Person or (b) direct or
cause the direction of the management and policies of such Person, whether by contract or
otherwise.
"Affiliate Subordination Agreement" means the Affiliate Subordination Agreement dated as of
the Closing Date executed by the Parent, Turnberry Residential, the General Contractor and the
Companies in favor of the Bank Agent and the Trustee, as the same may be amended,
supplemented, replaced or otherwise modified from time to time.
"Anticipated Bonded Condo Deposits" means, as of each date of determination, the lesser of
(a) the amounts set forth in the matrix below opposite that date, and (b) $75,000,000 minus the
aggregate amonnt of the Bonded Condo Deposits which have then been remitted to the Bonded
Condo Proceeds Account:
Dates Occurring During the Period:

Amount

Closing Date through June 2008
July 2008 - September 2008
October 2008 - December 2008
January 2009 - February 2009
Later Months

$75,000,000
$50,000,000
$25,000,000
$10,000,000
$0

"Architect" means Bergman Walls & Associates.
"Architect’s Advance Certificate" means an advance certificate in the form of Exhibit C-3 hereto
confirming the substantial conformity of construction undertaken to date with the Final Plans and
Specifications for the Project.
"Architect’s A~reement" means the Agreement between the Project Entities and the Architect
dated as of April 2, 2007.
"Available Funds" means, as of each date of determination, the sum of:
(i)

the Projected Interest Income; plus

(ii)

the Anticipated Bonded Condo Deposits; plus

(iii)

the balance of the Equity Funding Account; plus

W02-WEST:LAR\400308993.14

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Case 1:09-md-02106-ASG Document 37-7 Entered on FLSD Docket 02/18/2010 Page 27 of 43

(iv)

the balance of the Cash Management Account; plus

(v)

the balance of the Second Mortgage Proceeds Account; plus

(vi)

the balance of the Bank Proceeds Account; plus

(vii)

the Delay Draw Term Loan Availability; plus

(viii) the Bank Revolving Availability minus $40,000,000; plus
(ix)

the Debt Service Commitment Portion; plus

(x)

the Cash "Support Amount (but not in excess of $200,000,000); plus

(xi) the Retail Lenders Shared Cost Commitment minus the amount of the
Advances theretofore made under the Retail Facility for Shared Costs; plus
(xii) the cash balances then contained in the Resort Payment Account, the
Interest Account and the Resort Loss Proceeds Account in each case as adjusted
in column C of the Current Available Sources Report.
"Available Resort Sources to Final Completion" has the meaning set forth in Section 2.15.
"Available Retail Sources to Final Completion" has the meaning set forth in Section 2.15.
"Available Sources to Final Completion Report" means a report prepared by the Project Entities
in the form attached to Exhibit Q-1 as Appendix 3.
"Bank Agent" means Bank of America, N.A., in its capacity as Administrative Agent under the
Bank Credit Agreement and its successors in such capacity.
"Bank Agent Fee Letter" means the letter agreement dated as of the Closing Date among the
Borrowers and the Bank Agent.
"Bank Credit Agreement" means the Credit Agreement of even date herewith, among the
Borrowers, the Bank Agent, and the Bank Lenders, or any refinancings thereof.
"Bank Credit Facility" means, the credit facilities provided under the Bank Credit Agreement.
"Bank Deed of Trust" means the Deed of Trust dated of even date herewith made by the
Borrowers, as trustors, in favor of Nevada Title Company, as trustee, for the benefit of the Bank
Agent, as beneficiary.
"Bank Funding Account" means the Account of that name described in Section 2.2.
"Bank Lenders" means (a) the financial institutions which are now, or may in the future become,
parties to the Bank Credit Agreement and (b) the counterparties to Interest Rate Agreements that
are permitted to be secured by the Bank Security Documents, in each case, or their successors or
W02-WEST:LAR\400308993.14

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Case 1:09-md-02106-ASG Document 37-7 Entered on FLSD Docket 02/18/2010 Page 28 of 43

assignees in such capacity as lenders or counterparties, as the case may be, under the Bank Credit
Agreement.
"Bank Proceeds Account" means an account ~stablished with the Bank Agent pursuant to the
Bank Credit Agreement, into which the proceeds of Disbursement Agreement Loans made
pursuant to the Bank Credit Agreement will be deposited, which Account is filrther described in
Section 2.2. Pursuant to the Flow of Funds Memo, it is anticipated that the Initial Term Loans
under the Bank Credit Agreement will be deposited into the Bank Proceeds Account on the
Closing Date, and that Delay Draw Term Loans and Revolving Loans which are Disbursement
Agreement Loans made pursuant to the Bank Credit Agreement will also be deposited into the
Bank Proceeds Account.
"Bank Revolving Availability" means, as of each date of determination, the aggregate principal
amount available to be drawn on that date under the Bank Revolving Facility.
"Bank Revolving Facility" means the revolving loan credit facility described in and made
available from time to time to the Borrowers by the Bank Lenders under the Bank Credit
Agreement.
"Bank Revolving Facility Completion Reserve Amount" means, as of each date of determination,
(a) the amount determined as of the Opening Date by the Funding Order for Final Completion
Report as outlined in Section 2.16.2, minus (b) the amount of the cumulative Advances thereafter
made from the Bank Revolving Facility pursuant to Section 2.10(b)(xi).
"Bank Security Documents" means the Bank Deed of Trust, each Completion Guaranty, the
Affiliate Subordination Agreement, and any other guaranties, deeds of trust, security agreements
or Control Agreements executed from time to time by any Loan Party and!or any of their direct
or indirect Affiliates in favor of the Bank Agent or the Bank Lenders to guaranty or secure the
obligations under the Bank Credit Facility.
"Banking Day": (i) for all purposes other than as covered by clauses (ii) and (iii) below, a day
other than a Saturday, Sunday or other day on which commercial banks in New York City, New
York or Las Vegas, Nevada (or, to the extent affecting the Trustee, the Second Mortgage
Proceeds Account, or payments made with respect to the Second Mortgage Notes, Minneapolis
Minnesota) are authorized or required by law to close, (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on, Eurodollar Loans,
any day which is a Banking Day described in clause (i) above and which is also a day for trading
by and between banks in Dollar deposits in the New York interbank eurodollar market and (iii)
with respect to all notices and determinations in connection with Letters of Credit and payments
of principal and interest on Reimbursement Obligations (as such terms are used in the Bank
Credit Agreement), a day other than a Saturday, Sunday or other day on which commercial
banks in New York City, New York are authorized or required by law to close.
"Bankruptcy" means, with respect to any Person, that (i)a conrt having .jurisdiction over any
Project Security shall have entered a decree or order for relief in respect of such Person in an
involuntary case under the Bankruptcy Code or under any other applicable bankruptcy,
insolvency or similar law now or hereafter in effect, which decree or order has not been stayed;
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Case 1:09-md-02106-ASG Document 37-7 Entered on FLSD Docket 02/18/2010 Page 29 of 43

or any other similar relief shall have been granted under any applicable federal or state law; or
(ii) an involuntary case shall be commenced against snch Person, under the Bankruptcy Code or
under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect; or a
decree or order of a court having jurisdiction over any Project Security for the appointment of a
receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over
such Person, or over all or a substantial part of its property, shall have been entered; or there
shall have occurred the involuntary appointment of an interim receiver, trustee or other custodian
of such Person, for all or a substantial part of its property; or a warrant of attachment, execution
or similar process shall have been issued against any substantial part of the property of such
Person, and any such event described in this clause (ii) shall continue for 60 days unless
dismissed, bonded or discharged; or (iii) such Person shall have an order for relief entered with
respect to it or shall commence a voluntary case under the Bai~duptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect or shall consent to the
entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a
voluntary case, under any such law, or shall consent to the appointment of or taking possession
by a receiver, trustee or other custodian for all or a substantial part of its property; or such Person
shall make any assignment for the benefit of creditors, or shall fail generally, or shall admit in
writing its inability, to pay its debts as such debts become due and payable or if the fair market
value of its assets does not exceed its aggregate liabilities; or (iv) such Person shall, or the board
of directors, manager or ~nanaging member of such Person (or any committee thereof) shall,
adopt any resolution or otherwise authorize any action to approve any of the actions referred to
in clause (iii) above.
"Bankruptcy Code" means Title 11 of the United Sates Code as amended from time to time, or
any successor statute thereto.

"Bonded Condo Deposits" means deposits tk~r the purchase of Condo Units that have been
bonded in accordance with NRS 116.411.
"Bonded Condo Proceeds Account" means the Account of that name described in Section 2.2.

"Borrowers" means has the meaning set forth in the preamble hereto.
"Budget/Schedule Amendment Certificate" means a Budget/Schedule Amendment Certificate
substantially in the form of Exhibit M-4 hereto.
"Budgets" means, collectively, the Retail Budget and the Resort Budget.
"Building Department" means the Clark County Building Department.
"Cash Equivalents" means (a) United States dollars; (b) securities issued or directly and fully
guaranteed or insured by the United States government or any agency or instrumentality of the
United States government (as long as the full faith and credit of the United States is pledged in
support of those securities) having maturities of not more than one year from the date of
acquisition; (c) interest-bearing demand or time deposits (which may be represented by
certificates of deposit) issued by banks having general obligations rated (on the date of
acquisition thereof) at least "A" or the equivalent by S&P or Moody’s or, if not so rated, secured
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Case 1:09-md-02106-ASG Document 37-7 Entered on FLSD Docket 02/18/2010 Page 30 of 43

at all times, in the manner and to the extent provided by law, by collateral security consisting of
property of the type specified in clause (a) or (b) of this definition, with a market value of no less
than the amount of monies so invested; (d) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clauses (b) and (c) above entered
into with any financial institution meeting the qualifications specified in clause (c) above;
(e) commercial paper having the highest rating obtainable from Moody’s or S&P and in each
case maturing within six months after the date of acquisition; and (f) money market funds or
mutual funds at least 95% of the assets of which constitute Cash Equivalents of the kinds
described in clauses (a) through (e) of this definition.
"Cash Management Account" means the Account of that name described in Section 2.2. The
Cash Management Account may be used by the Project Entities to pay any Project Costs.
"Cash Support" means, as of each date of determination, the sum of (a) the undrawn amount of
the letter of credit delivered to the Disbursement Agent pursuant to Section 3.1.21 (including any
increases to the arnount thereof), (b) any other letters of credit hereafter delivered to the
Disbursement Agent in support of any Completion Guaranty, issued by a financial institution
reasonably acceptable to the Disbursement Agent and in a form which is similar to the letter of
credit referred to in clause (a) or otherwise reasonably acceptable to the Disbursement Agent,
and (c) any Cash Equivalents hereafter pledged by Persons other than the Project Entities in
support of any Completion Guaranty.

"Cash Support Amount" means, as of each date of determination, the sum of (a) the then
available undrawn amount of the Completion Guaranties, but only to the extent the payment
thereof is supported by Cash Support, t!.lus (b) the then remaining amount of the Liquidity
Account.
"Certificate of Occupancy" means a permanent certificate of occupancy or a temporary
certificate of occupancy for the Project issued by the Building Department in respect of all
material amenities associated with the Project and pursuant to applicable Legal Requirements
which permanent or temporary certificate of occupancy shall be in full force and effect and, in
the case of a temporary certificate of occupancy, if such temporary certificate of occupancy shall
provide for an expiration date, the number of days in the period from the Opening Date to such
expiration date shall be not less than 133% of the number of days that the Construction
Consultant estirnates it will take to complete the Punchlist Items (assuming reasonable diligence
in performing the same) pursuant to the Construction Consultant’s Opening Date Certificate.
"Claims" has the meaning given in Section 11.15.2.
"Closing Date" means the first date on which each of the conditions precedent listed in
Section 3.1 have been satisfied or waived.

"Closing Financing Agreements" has the meaning given in Section 3.1. l(a).
"Code" means the Internal Revenue Code of 1986, as at any time amended.
"Commitment" means, (a)with respect to the Bank Credit Facility, the aggregate principal
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Case 1:09-md-02106-ASG Document 37-7 Entered on FLSD Docket 02/18/2010 Page 31 of 43

amount of all Loans to the Project Entities which may be made under such Facility and (b) with
respect to each other Facility, the aggregate principal amount of all Loans or other advances to
the Project Entities which may be made under such Facility, as specified in the applicable
Facility Agreement.
"Companies" means, collectively, Las Vegas Holdings and its Subsidiaries.
"Completion" means that each of the following has occurred:
(a)

the Opening Date has occurred;

(b) all Contractors have been paid in full (other than (A)Retainage
Amounts and other amounts that, as of the Completion Date, are being
withheld from the Contractors in accordance with the provisions of the
Contracts, (B) amounts being contested in good faith in accordance with
NRS Chapter 624 so long as adequate reserves have been established
through an allocation in the Remaining Cost Report and (C)amounts
payable in respect of Punchlist Items to the extent not covered by the
foregoing clause (A));
(c)

for Punchlist Items:

(1) a list of any remaining Punchlist Items shall have been delivered to
the Construction Consultant and the Disbursement Agent by the Project
Entities and approved by the Construction Consultant as a reasonable final
punchlist (such approval not to be unreasonably withheld); and
(2) to the extent not covered by the then existing Comracts, a written
agreement with all Contractors performing work with respect to Punchlist
Items shall have been entered into by the Project Entities and such
Contractors detailing the cost of remaining Punchlist Items and shall have
been delivered to the Construction Consultant and the Disbursement
Agent by the Project Entities and approved by the Construction Consultant
and the Disbursement Agent;
(d) the Title Insurer shall have issued a title insurance endorsement
updating the date of the policy and containing no exceptions for
mechanics liens with respect to all work performed at the Site prior to the
Completion Date;
(e) the General Contractor shall have delivered its Completion
Certificate certifying the "substantial completion" of the work under the
Prime Construction Agreement and such certifications shall have been
accepted by the Prqject Entities and the Construction Consultant in
accordance with Section 6.2.2; and

for each Contract and Subcontract for which a Payment and
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Performance Bond is required pursuant to Section 5.8 or Section 3.1.33
and for which the Project Entities (or the applicable Contractor) will
release retainage as a result of Completion being achieved, the Project
Entities shall have delivered from the surety under each such Payment and
Performance Bond (i)a "Consent of Surety to Reduction in or Partial
Release of Retainage" (AIA form G707A) if a partial release of Retainage
Amounts held under such Contract or Subcontract will be made or (ii)a
"Consent of Surety to Final Payment" (AIA form G707) if a release of all
Retainage Amounts held under such Contract or Subcontract will be
made).
"Completion Certificates" means, collectively, the Completion Certificates substantially in the
form of Exhibits P-l, P-2, P-3, and P-4, hereto to be delivered by the Pro.ject Entities, the
Construction Consultant, the Architect and the General Contractor, respectively.
"Completion Date" means the date on which the Disbursement Agent countersigns the Project
Entities Completion Certificate acknowledging that Completion has occurred.
"Completion Guarantors" means Turnberry Residential (together with its successors and
permitted assigns under the Completion Guaranty described in clause (a) of the definition
thereof) and each other Person which delivers a Completion Guaranty or Cash Support to the
Disbursement Agent pursuant to Section 6.9.1.
"Completion Guaranties" means, collectively, (a) the Completion Guaranty of even date herewith
executed by Turnberry Residential in favor of the Bank Agent and the Trustee, and (b) each
other completion guaranty hereafter delivered by a Completion Guarantor pursuant to
Section 6.9.1.
"Completion Guaranty Availabilit:~" means, as of each date of determination, the aggregate
amount then available for drawings under the Completion Guaranties in accordance with their
terms; provided that such amounts may only be used for the purposes described in Section 2.6.6.
"Completion Guaranty Proceeds Account" means one or more accounts established in the name
of a Completion Guarantor to hold Cash Support.
"Completion Reserve Calculation Date" means the Advance Date which immediately precedes
the publicly announced scheduled Opening Date.
"Condo Unit" means a condominium or condominium-hotel unit in the Project (and related
common area elements including airspace above the highest point of the Project).
"Consents" means consents to the collateral assignment by the Project Entities of Material
Contracts substantially in the form of Exhibit H hereto, with such modifications as may be
reasonably acceptable to the Bank Agent.
"Construction Consultant" means (a) Inspection and Valuation International, Inc. or any other
construction consultant appointed by the Bank Agent with the approval of the "Required
W02-WEST:LAR\400.30899.3 14

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Lenders" (as defined in the Bank Credit Agreement) and (b) in respect of Advances for Other
Retail Costs only, any other construction consultant appointed by the Retail Agent in accordance
with the terms of the Retail Facility Agreement.
"Construction Consultant Advance Certificate" means (i) in the case of an Advance solely under
Section 3.5.2, a certificate of the Construction Consultant confirming that, based upon its review,
it is not aware of any material errors in the information contained in the Advance Request or
supporting reports, and (ii) in all other cases, a certificate of the Construction Consultant,
substantially in the form of Exhibit C-2 to this Agreement.
"Construction Consultant Closin~ Certificate" means a closing certificate in the form of
Exhibit B-2 hereto.
"Construction Consultant Engagement A~reement means the engagement letter dated as of May
21, 2007 by and among the Construction Consultant, the Retail Agent and Bank of America,
N.A, as Disbursement Agent and Bank Agent.
"Construction Consultant Report" means a preliminary report of the Construction Consultant
delivered to the Disbursement Agent, the Bank Agent, the Retail Agent and the Representative
pursuant to Section 3.1 and stating that (a)the Construction Consultant has reviewed the
Material Contracts, the Plans and Specifications, and other material information deemed
necessary by the Construction Consultant for the purpose of evaluating whether the Project can
be constructed and completed in the manner contemplated by the Operative Documents, and
(b) based on its review of such information, the Construction Consultant is of the opinion that the
Project can be constructed in the manner contemplated by the Operative Documents and, in
particular, that the Project can be constructed and completed in accordance with the Material
Contracts and the Plans and Specifications within the parameters set by the Project Schedule and
the Budgets.
"Contract Amendment Certificate" means a Contract Amendment Certificate, substantially in the
form of Exhibit M-3 hereto.
"Contractors" means the General Contractor and any architects, consultants, designers,
contractors, Subcontractors, suppliers, laborers or any other Persons engaged by any of the
Project Entities in connection with the design, engineering, installation and construction of the
Project.
"Contracts" means, collectively, the contracts entered into, from time to time, between any
Project Entity, or by the General Contractor on behalf of the Project Entities, and any Contractor
for performance of services or sale of goods in comaection with the design, engineering,
installation or construction of the Project (including the Prime Construction Agreement and the
Architect Agreement).
"Control Agreements" means (a) the Control Agreements of even date herewith executed by the
Project Entities in respect of the Accounts in favor of the Disbursement Agent and the Pledgees
described in Section 2.2, and (b) any other control agreement entered into on or after the Closing
Date granting or confirming the rights of the Lenders in any deposit, brokerage or other similar
W02-WEST:LAR\400308993 14

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Case 1:09-md-02106-ASG Document 37-7 Entered on FLSD Docket 02/18/2010 Page 34 of 43

account.

"Controlled Group" means all members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control which, together with the Project
Entities, are treated as a single employer under Section 414(b) or 414(c) of the Code.
"Controlling Person" means (a) until Exhaustion of the Second Mortgage Proceeds Account, the
Trustee and (b) thereafter, the Bank Agent.
"Costed FF&E" means, as of each date of determination, the costs described in column "D"
(headed "Resort Budget") in the row titled "Costed FF&E" in the Remaining Cost Report
prepared as of that date in respect of the Line Items for "Rooms FF&E .... Hotel and F&B
Operating Equipment," "Kitchen Equipment," "Exterior Signage" and "Common Area FF&E".
"Current Available Resort Sources" has, as of each Advance Date, the applicable meaning set
forth in Section 2.09 (as applicable).
"Current Available Retail Sources" has, as of each Advance Date, the applicable meaning set
forth in Section 2.09 (as applicable).
"Current Available Sources Report" means, for each Advance Date, a report prepared by the
Project Entities in the appropriate version of the form attached to Exhibit C-1 as Appendix 3.
"Debt Service" means all principal repayments, interest or premium, if any, commitment fees,
undrawn fees, letter of credit fees, agency fees, expenses and other amounts payable or accrued
from time to time under any of the Bank Credit Agreement, the Second Mortgage Notes, and
other Indebtedness for borrowed money of the Companies which is not contractually
subordinated to the Bank Credit Agreement and the Second Mortgage Notes.
"Debt Service Commitment Portion" means, as of each date of determination $40,000,000 times
the ratio of (a) the number of days which will occur during the period between September 30,
2009 and the Scheduled Opening Date (but not more than 90), over (b) 90, provided that if
approved by the Majority Lead Arrangers in their sole discretion, the Debt Service Commitment
Portion may be any other higher amount which is not greater than $40,000,000.
"Deeds of Trust" means, collectively, the Bank Deed of Trust and the Second Mortgage Deed of
Trust.
"Default" means (i) any of the events specified in Article 7, whether or not any requirement for
the giving of notice, the lapse of time, or both, has been satisfied and (ii) the occurrence of any
"Default" under any Facility Agreement.
"Delay Draw Term Loan Availability" means, as of each date of determination, the then undrawn
portion of the Delay Draw Term Loans.
"Delay Draw Term Loans" has the meaning given in the Bank Credit Agreement.
"Detailed Remaining Cost Report" means a report attached to Exhibit C-1 as Appendix 7.
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Case 1:09-md-02106-ASG Document 37-7 Entered on FLSD Docket 02/18/2010 Page 35 of 43

"Disbursement A~ent" means Bank of America, N.A., in its capacity as the disbursement agent
for the Funding Agents under this Agreement and its successors in such capacity.
"Disbursement Agent Fee Letter" means the Disbursement Agent Fee Letter of even date
herewith between the Project Entities and the Disbursement Agent.
"Disbursement Agreement Loans" has the meaning given in the Bank Credit Agreement.
"Disposition" has the meaning given in the Bank Credit Agreement.
"Dollar" and "$" means dollars in lawful currency of the United States of America.
"Environmental Claim" means any and all obligations, liabilities, losses, administrative,
regulatory or judicial actions, suits, demands, decrees, claims, liens, judgments, warning notices,
notices of noncompliance or violation, investigations, proceedings, removal or remedial actions
or orders, or damages (foreseeable and unforeseeable, including consequential and punitive
damages), penalties, fees, out-of-pocket costs, expenses, disbursements, attorneys’ or consultants’
fees, relating in any way to any Environmental Law or any Environmental Permit issued under
any such Environmental Law including (a) any and all claims by Governmental Authorities for
enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law, and (b) any and all claims by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive relief resulting from
Hazardous Substances or arising from alleged injury or threat of injury to health, safety or the
environment.
"Environmental Law" means any and all Federal, state, and local statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses,
agreements or governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including those related to
Hazardous Substances or wastes, air emissions and discharges to waste or public systems.
"Environmental Matter" means any:
(a)

introduction into the air or
discharge, release, emission, entry or

water;
deposit, disposal, keeping, treatment, importation, exportation,
(b)
production, transportation, handling, processing, carrying, manufacture, collection,
sorting or presence of any Hazardous Substance (including, without limitation, in the case
of waste, any substance which constitutes a scrap material or an effluent or other
unwanted surplus substance arising from the application of any process or activity and
any substance or article which is required to be disposed of as being broken, worn out,
contaminated or otherwise spoiled);
nuisance, noise, defective premises, health and safety at work,
industrial illness, industrial injury due to environmental factors, environmental health
problems (including, without limitation, asbestosis or any other illness or injury caused
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Case 1:09-md-02106-ASG Document 37-7 Entered on FLSD Docket 02/18/2010 Page 36 of 43

by exposure to asbestos); and
(d)

other matter howsoever directly affecting the environment.

"Environmental Permit’, means any permit, approval, identification number, license or other
authorization required under auy Environmental Law.
"Equity Funding Account" means the Account of that name described in Section 2.2.
"~. Interests" means, with respect to any Person, all of the shares of capital stock of (or other
ownership or profit interests in) such Person, all of the warrants, options or other rights for the
purchase or acquisition from such Person of shares of capital stock of (or other ownership or
profit interests in) such Person, all of the securities convertible into or exchangeable for shares of
capital stock of (or other ownership or profit interests in) such Person or warrants, rights or
options for the purchase or acquisition from such Person of such shares (or such other interests),
and all of the other ownership or profit interests in such Person whether voting or nonvoting, and
whether or not such shares, warrants, options, rights or other interests are outstanding on any
date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time
to time, and the regulations promulgated and rulings issued thereunder.
"ERISA Plan" means any Plan (other than a Multiemployer Plan) that is covered by Title IV of
ERISA or to which Section 412 of the Code applies.
"Event of Default" has the meaning given in Section 7.1.
"Event of Loss" rneans, with respect to any property or asset (tangible or intangible, real or
personal), any of the following: (A) any loss, destruction or damage of such property or asset;
(B) any actual condemnation, seizure or taking by exercise of the power of eminent domain or
otherwise of such property or asset, or confiscation of such property or asset or the requisition of
the use of such property or asset; or (C) any settlement in lieu of clause (B).
"Exhaustion" or "Exhausted" means, (a) with respect to the Equity Funding Account, the time at
which all proceeds thereunder have been fully disbursed, (b)with respect to the Bank Credit
Facility and the Retail Facility, the time at which the lending commitments under such Facility
have been fully utilized (and, in the case of the Bank Credit Facility, the Bank Proceeds Account
has no funds remaining on deposit therein), (c) with respect to the Second Mortgage Notes, the
time at which no funds remain in the Second Mortgage Proceeds Account and (d) with respect to
the Liquidity Account, the time at which no funds remain on deposit therein.
"Facility" or "Facilities" means, as the context may require, any or all of the Bank Credit
Facility, the Second Mortgage Indenture and the proceeds of the Notes issued thereunder and the
Retail Facility.
"Facility Agreements" means, collectively, the Bank Credit Agreement, the Second Mortgage
Indenture and the Retail Facility Agreement.
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Case 1:09-md-02106-ASG Document 37-7 Entered on FLSD Docket 02/18/2010 Page 37 of 43

"Final Completion" means that (a) Completion shall have occurred, (b)the Project shall have
received a permanent certificate of occupancy from the Building Department (and copies of such
certificate shall have been delivered to the Disbursement Agent, the Bank Agent, the Trustee and
the Construction Consultant), (c) a Notice of Completion has been posted with respect to the
Project and recorded in the Office of the County Recorder of Clark County, Nevada and the
statutory period for filing mechanics liens under Nevada law with respect to work performed
before filing such Notice of Completion has expired, (d) the Funding Agents have received final
101.6 endorsements from the Title Insurer insuring the priority of their respective Liens on the
Project Security, (e)the Disbursement Agent and the Funding Agents shall have received the
Final Completion Certificates, and the Construction Consultant shall have accepted the General
Contractor’s Final Completion Certificate in accordance with Section 6.2.2, (f)the Project
Entities shall have delivered to the Funding Agents and the Construction Consultant an "as built
survey" of the Project, (g) the Project Entities shall have delivered from the surety under each
Payment and Performance Bond required pursuant to Section 5.8 or Section 3.1.33 a "Consent of
Surety to Final Payment" (AIA form G707), and (h) unless Nevada state laws have been changed
to eliminate any tax benefits associated with such certification and exemption, the Project shall
have received final LEED certification from the U.S. Green Building Council and a final
exemption certificate from the State of Nevada Department of Taxation.
Notwithstanding clause (h) above, Final Completion shall have occurred even if the final LEED
certification required in clause (h) has not been received if any of the following occur:
(A) the Companies receive additional cash contributions to their equity capital following the
Opening Date (in addition to any such contributions made pursuant to Sections 3.8 or 3.9) in an
amount which eqnal to the amount which the Companies will be required to pay in the event any
ultimate denial of a final LEED Certification; or
(B) the Disbursement Agent determines that the other conditions to Final Completion have all
occurred and that the amounts referred to in (A) remain available within from the undrawn
portion of the BmLk Revolving Facility Completion Reserve Amount established pursuant to
Section 2.10.2(b); or
(C) the Resort Request to Final Completion includes as Project Costs the amount which the
Companies will be required to pay in the event any ultimate denial of a final LEED Certification.
"Final Completion Certificates" means, collectively, the Final Completion Certificates in the
forms of Exhibits R-1. R-2, R-3, R-4, hereto to be delivered by the Project Entities. the
Construction Consultant. the Architect and the General Contractor. respectively.
"Final Completion Date" means the date on which Final Completion occurs.

"Final Plans and Specifications" means, with respect to any particular work or Improvement,
Plans and Specifications which (i)have received final approval from all Govemmental
Authorities required to approve such Plans and Specifications prior to completion of the work or
Improvements, and (ii)contain sufficient specificity to permit the completion of the work or
Improvement.

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Case 1:09-md-02106-ASG Document 37-7 Entered on FLSD Docket 02/18/2010 Page 38 of 43

"Financing. Agreements" means, collectively, the Disbursement Agreement, the Facility
Agreements, the Security Documents, the Disbnrsement Agent Fee Letter, the Bank Agent Fee
Letter, the Trustee’s fee letters with the Issuers, the Second Mortgage Purchase Agreement, the
Second Mortgage Notes and any other loan or security agreements entered into on, prior to or
after the Closing Date with the Disbursement Agent or any Funding Agent in connection with
the financing of the Project.
"Flow of Funds Memo" means the Flow of Funds Memo attached hereto as Exhibit T.
"Fontainebleau Las Vegas" means Fontainebleau Las Vegas, LLC, a Nevada limited liability
company.
"Force Majeure Event" means the occurrence of any strikes, lockouts or other labor trouble; the
occurrence of fire, flood, earthquake, hurricane, tornado, sandstorm or other casualty;
governmental preemption; breakdown, accident or other acts of God; acts of war, insurrection,
civil strife and commotion; any enactment, promulgation or amendments of any statute, rule,
order or regulation of any legislature or governmental agency or any department or subdivision
thereof; any litigation not commenced by Parent or any of its Subsidiaries or their Affiliates; or
any other event that occurs after the date of this Agreement that is outside the control of Parent
or its Subsidiaries or Affiliates (excluding any event or circumstance which with reasonable
diligence or investigation is foreseeable as of the date of this Agreement); in each such case
which shall make it physically impossible, unlawfill or commercially impracticable to continue
construction of or to complete the Project or which otherwise delays the construction and/or
completion of the Project; provided, however, that the following shall not constitute Force
Majeure Events: (i) any condition, defect, or physical circumstance of the land, buildings or
improvements which now exists or which should have been known or discovered with the
exercise of reasonable diligence or investigation, including errors, omissions or defects in
construction, plans or development, (ii) the amendment of the Plans and Specifications in a
manner which is prohibited hereby or omissions or defects in the Plans and Specifications,
(iii) increase in the cost of labor, materials and equipment as the result of ordinary cyclical or
seasonal forces, or general inflation, (iv) any failure of any contractor or subcontractor, vendor or
other supplier (that itself is not caused by a Force Majeure Event) to perforn~ at the times, at the
price or in the manner contracted for or to adhere to the Plans and Specifications, or (v) any
defects, errors or omissions in any construction contract, subcontract, supply contract, or the
Budgets.
"Funding Agents" means, collectively, the Bank Agent, the Trustee and the Retail Agent.
"Funding Order for Final Completion Report" means a report prepared by the Project Entities in
the form attached to Exhibit Q-1 as Appendix 4.
"Funding Order Report" means, for each Advance Date, a report prepared by the Project Entities
in the form attached to Exhibit C- 1 as Appendix 4.
"GAAP" means generally accepted accounting principles in the United States of America as in
effect from time to time.
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Case 1:09-md-02106-ASG Document 37-7 Entered on FLSD Docket 02/18/2010 Page 39 of 43

"General Contractor" means Turnberry West Construction, Inc., a Nevada corporation.
"General Contractor’s Advance Certificate" means a certificate substantially in the form of
Exhibit C-4 hereto.
"Governmental Authorit2" means any national, state or local government any political
subdivision thereof or any other governmental, quasi-governmental, judicial, public or statutory
instrumentality, authority, body, agency, bureau or entity, any self-regulatory agency (e._g~.,
NASD), any entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government or any arbitrator with authority to bind a party at law.
"Hazardous Materials Activities" means any past, current, proposed or threatened activity, event
or occurrence involving any Hazardous Substances, including the use, manufacture, possession,
storage, holding, presence, existence, location, Release, threatened Release, discharge,
placement, generation, transportation, processing, construction, treatment, abatement, removal,
remediation, disposal, disposition or handling of any Hazardous Substances, and any corrective
action or response action with respect to any of the foregoing.
"Hazardous Substances" means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes, toxic mold and all other substances or wastes of any nature
regulated pursuant to any Enviromnental Law.
"Improvements" means the buildings, fixtures and other improve~nents to be situated at the Site.
"In Balance Report" means a report substantially in the form attached to Exhibit C-1 as
Appendix 10.
"In Balance Test" means that, at the time of calculation and after giving effect to any requested
The
Advance, Available Funds equal or exceed the Remaining Costs. In Balance Test is
"satisfied" when Available Funds equal or exceed Re~naining Costs.
"IndebtednessY as applied to any Person, means (a)all indebtedness for borrowed money,
(b) that portion of obligations with respect to leases which are or should be, in accordance with
generally accepted accounting principles, classified as a capital lease and a liability on a balance
sheet, (c)notes payable and drafts accepted representing extensions of credit whether or not
representing obligations for borrowed money, (d) any obligation owed for all or any part of the
deferred purchase price of property or services (excluding any such obligations incurred under
ERISA), which purchase price is (i) due more than six months from the date of incurrence of the
obligation in respect thereof or (ii) evidenced by a note or similar written instrument, and (e) all
indebtedness secured by any Lien on any property or asset owned or held by that Person
regardless of whether the indebtedness secured thereby shall have been assumed by that Person
or is nonrecourse to the credit of that Person. Obligations under Interest Rate Agreements do not
constitute Indebtedness hereunder. All obligations tinder the Financing Agreements shall
constitute Indebtedness hereunder.

W02-WEST:[.AR\400308993.14

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Case 1:09-md-02106-ASG Document 37-7 Entered on FLSD Docket 02/18/2010 Page 40 of 43

"Indemnitees" has the meaning given in Section 11.15.2.
"Initial Ba~kk Advance Date" means the date upon which the first Advance is made from the
Bank Proceeds Account concurrent with or following the Exhanstion of the Second Mortgage
Proceeds Account.

"Initial Term Loans" has the meaning given in the Bank Credit Agreement.
"Insurance Advisor Closing Certificate" means a Closing Certificate snbstantially in the form of
Exhibit B-3 hereto.
"Intellectual Property License Agreements" means, collectively, (a) the License Agreement dated
as of the Closing Date among Parent, Resort Properties II and Borrowers, and (b) the License
Agreement dated as of the Closing Date among Parent, Resort Properties II and the Retail
Affiliate, in each case pursuant to which they are granted a license to use the "Fontainebleau"
federal trademark and related present and future intellectual property in connection with the
Fontainebleau Resort.
"Intercreditor Agreements" means, collectively, the Project Lenders Intercreditor Agreement and
the Retail Intercreditor Agreement. ~
"Interest Account" means the Acconnt of that name described in Section 2.2.
"Interest Rate Agreement" means any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement or other similar agreement or arrangement (including, without
limitation, any "Secured Hedge Agreement" as such ter~n is defined in the Bank Credit
Agreement).
"Issuers" has the meaning set forth in the Preamble to this Agreement.
"Issuing Lender" has the meaning set forth in the Bank Credit Agreement.
"Las Vegas" means Fontainebleau Las Vegas, LLC, a Nevada limited liability company
"Las Vegas II" mefins Fontainebleau Las Vegas II, LLC, a Florida limited liability company.
"Las Vegas Capital" means Fontainebleau Las Vegas Capital Corp., a Delaware corporation.
"Las Vegas Holdin_gf!" means Fontainebleau Las Vegas Holdings, LLC, a Nevada limited
liability company.
"Leasing Commissions" means amounts payable as leasing commissions in connection with any
retail lease as set forth in the Retail Budget, as amended from time to time in accordance with
this Agreement.
"LEED Shortfall Amount" means any amonnt by which the Project Costs increase following the
date of this Agreement by reason of any change in Nevada State laws governing the partial sales
and use tax exemption of the Project arising by reason of its proposed qualification pursuant to
W02-WEST: LAR\400308993, 14

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Case 1:09-md-02106-ASG Document 37-7 Entered on FLSD Docket 02/18/2010 Page 41 of 43

the Leadership in Energy and Environmental Design ("LEED") program.
"Legal Requirements" means all laws, statutes, orders, decrees, injunctions, licenses, permits,
approvals, agreements and regulations of any Governmental Authority having jurisdiction over
the matter in question.

"Lenders" means may of the Bank Lenders, the Second Mortgage Holders and the Retail Lenders.
"Letter of Credit" has the meaning given in the Bamk Credit Agreement.
"Lien" means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title retention agreement,
any lease in the nature thereof, any option or other agreement to sell or give a security interest in
and any filing of or agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statues) of any jurisdiction).
"Line Item" means each of the individual line items set forth in the Detailed Remaining Cost
Report (as in effect from time to time).
"Line Item Categor_.y" means the categories of Line Items in the Resort Budget set forth in the
Detailed Remaining Cost Report (as in effect from time to time):
Construction Costs (Turnberry West Construction)
Unallocated Contingency
Insurance
Rooms FF&E
Hotel and F&B Operating Equipment
Kitchen Equipment
Exterior Signage
Common Area FF&E
Gaming FF&E
Entertainment
A&G Facilities and IT
Pre-Opening Expenses/Working Capital
Fees/Permits/Taxes/Other
"Liquidity Account" means the Account of that name described in Section 2.2.
"Liquidity Account Remainder" is defined in Section 2.16.2.
"Loan Parties" means (a) the Project Entities, and (b) as of each relevant date, Parent, Resort
Properties I, each Completion Guarantor, the Retail Facility Completion Guarantor, and each
other Subsidiary of Parent which, as of that date is a party to a Material Contract or a Security
Document.

"Loans" means, as the context may require, loans and advances made under the Bank Credit
W02-WEST!LAR\400308993.14

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Case 1:09-md-02106-ASG Document 37-7 Entered on FLSD Docket 02/18/2010 Page 42 of 43

Facility or the Retail Facility.
"Loss Proceeds" has the meaning given in Section 5.12.
"Loss Proceeds Accounts" means, collectively, the Resort Loss Proceeds Accotmt and the Retail
Loss Proceeds Account.
"Maior Project Participant" shall mean each Person who is party to a Material Contract.
"Material Adverse Effect" means any event or circumstance which:
(a) has a material adverse effect on the business, assets, properties,
liabilities (actual or contingent), operations, condition (financial or otherwise) or
prospects of (i) as of the Closing Date, Parent and its Subsidiaries, taken as a whole, (ii)
the Companies and their Subsidiaries, taken as a whole, or (iii) as of the Closing Date,
Turnberry Residential;
(b) materially and adversely affects the ability of the Companies and
their Subsidiaries, taken as a whole, to perform their respective obligations under the
Financing Agreements or of the Project Entities to construct the Project;
materially and adversely affects the rights of the Secured Parties
(c)
under their respective Financing Agreements, including the validity, enforceability or
priority of the Liens purported to be created under the Security Documents; or
(d) materially and adversely affects the ability of the Project Entities to
achieve the Opening Date by the Outside Date.
"Material Contract" means any of the Prime Construction Agreement, the Architect Agreement,
and each other Contract with a total contract amount in excess of $25,000,000 (or, in the case of
any Contractor, where the total for snch Person is in excess of $25,000,000) and each Payment
and Performance Bond issued to support any of the foregoing.
"Minor Scope Change" means any Scope Change which does not increase or decrease the
amount of Project Costs by more than $2,000,000, provided that the aggregate absolute value of
all such Minor Scope Changes may not exceed $30,000,000.
"Moodf_~" means Moody’s Investors Service, Inc., a Delaware corporation, or any successor
thereof.
"Multiemployer Plan" means a multi-employer plan as defined in Section 3(37) of ERISA to
which the Project Entities or any member of the Controlled Group contributes or has an
obligation to contribute on behalf of its employees.
"Nevada Gaming Authorities" means, collectively, the Nevada Gaming Commission, the Nevada
State Gaming Control Board, the Clark County Liquo~ and Gaming Licensing Board, and any
other federal, state or local agency having jurisdiction over gaming operations in the State of
Nevada.
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Case 1:09-md-02106-ASG Document 37-7 Entered on FLSD Docket 02/18/2010 Page 43 of 43

"Nevada Gaming Laws" means the Nevada Gaming Control Act, as codified in NRS Chapter
463, as amended from time to time, and the regulations of the Nevada Gaming Authorities
promulgated thereunder, as amended from time to time and the various Clark County ordinances
and regulations applicable to gaming activities.
"NRS": the Nevada Revised Statutes, as amended from time to time.
"Obligations" means (a) all loans, advances, debts, liabilities, and obligations, howsoever arising,
owed by the Project Entities or any other Loan Party under the Bank Credit Agreement, the
Second Mortgage Indenture, the Retail Facility or otherwise to any Lender of every kind and
description (whether or not evidenced by any note or instrument and whether or not for the
payment of money), direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising, pursuant to the terms hereof, any of the other Financing Agreements
or any of the other Operative Documents, including all interest (including interest accruing after
the maturity of the Loans and the Second Mortgage Notes and interest accruing after the filing of
any petition in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to any Loan Party, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), fees, premiums, if any, charges, expenses, attorneys’ fees
and accountants fees chargeable to any I_,oan Party in connection with its dealings with the such
Loan Party and payable by any Loan Party hereunder or thereunder; (b)any and all sums
advanced by the Disbursement Agent or any Lender in order to preserve the Project Secnrity or
preserve any Scented Party’s security interest in the Project Security, including all Protective
Advances; and (c)in the event of any proceeding for the collection or enforcement of the
Obligations after an Event of Default shall have occurred and be continuing, the reasonable
expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing of or
realizing on the Pro.ject Security, or of any exercise by any Secured Party of its rights under the
Security Documents, together with reasonable attorneys’ fees and court costs.
"Opening Date" means the date on which all material amenities of the Project are open for
business to gaming and lodging cnstomers, provided that not more than 70% of the tenant
improvements with respect to the retail space within the Project (determined on the basis of
square footage) need be completed on the Opening Date (or such lesser percentage as may be
approved in accordance with the terms of the Bank Credit Agreement).
"Qpening Date Certificates" means, collectively, the certificates in the form of Exhibits Q-1. Q2, Q-3, and Q..4 hereto to be delivered by the Project Entities. the Construction Consultant. the
General Contractor and the Architect. respectively.
"Operative Documents" means the Financing Agreements and the Contracts.
"Other Retail Costs" means costs set forth in the Retail Budget as amended from time to time in
accordance with this Agreement that (i) relate solely to Tenant Allowances and Leasing
Commissions and tenant improvements, and (ii) are not Shared Costs.
"Outside Date" means March 31. 2010. as extended from time to time in accordance with the last
paragraph of Section 6.4.2.
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"Outstanding Releases" has the meaning given in Section 3.3.16.
"Parent" means Fontainebleau Resorts, LLC, a Delaware limited liability company, its
successors and permitted assigns (including any Person formed to consummate a Qualified
Offering which is the owner, directly or indirectly, of 100% of the Equity Interests in the
Borrowers).
"Payment Accounts" means, collectively, each of the Accounts listed in the column headed
Payment Accountsin Section 2.2.
"Payment and Performance Bond" means any payment and performance bond, parent guarantee
or other credit support delivered under any Contract in favor of the Project Entities or the
General Contractor, the Ba~k Agent (acting on behalf of the Bank Lenders) and the Trustee
(acting on behalf of the Second Mortgage Holders) supporting the Contractor’s obligations under
any such Contract, provided that any such credit support other than a payment and performance
bond in a customary form issued by a reputable conunercial bonding company must be
reasonably acceptable to the Disbursement Agent and the Construction Consultant.
"PBGC" means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of
Title IV of ERISA (or any successor).
"Permits" means all authorizations, consents, decrees, permits, waivers, privileges, approvals
from and filings with all Governmental Authorities necessary for the construction, development,
ownership, lease or operation of the Project in accordance with the Operative Documents.
"Permitted Businesses" means the businesses permitted under Section 7.15 of the Bank Credit
Agreement.
"Permitted Encumbrances" means those matters disclosed on the Title Policies (other than any
Liens, claims or other rights arising out of any litigation matters described therein that are
recorded against the Site in the real property records of Clark County, Nevada, but excluding any
lis pendens or similar recording which provides notice of a dispute or claim, but which does not
create a Lien that may be foreclosed or executed upon in respect of the Retained Site or the
Project) and any utility easements in favor of Nevada Power Company that are subject to the
certain letter dated April 19, 2007 from Nevada Power Company to STF Inc.
"Permitted Liens" means the following types of Liens (excluding any such Lien imposed
pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or by ERISA, any such
Lien relating to or imposed in connection with any Environmental Claim, and any such Lien
expressly prohibited by any applicable terms of any of the Security Documents):
(a) Liens for taxes, assessments or governmental charges or claims the
payment of which is not, at the time due and payable or which is being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted, so long as
reserves (determined in accordance with GAAP) shall have been made therefor through
an allocation in the Remaining Cost Report;

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(b) statutory Liens of landlords, statutory Liens of banks and rights of
set.-off, statutory Liens of carriers, warehousemen, mechanics, repairmen, workmen and
materialmen, and other Liens imposed by law, in each case incurred in the ordinary
course of business (i) for amounts which are not overdue for a period of more than
30 days or (ii) that are being contested in good faith in accordance with NRS Chapter 624
by appropriate proceedings (such contest proceedings conclusively operating to stay the
sale of any portion of the Project Security on the account of such Lien) and with
appropriate reserves (determined in consultation with the Construction Consultant)
through an allocation in the Remaining Cost Report which, in the aggregate with all other
such reserves, shall not exceed $50,000,000;
(c) Liens incnrred or deposits made in the ordinary course of business
in connection with workers’ compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders, statutory obligations, surety and
appeal bonds, bids, leases, government contracts, trade contracts, performance and
return-of-rnoney bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money); provided that if such Liens are being contested,
appropriate reserves (determined in accordance with GAAP) have been established
through an allocation in the Remaining Cost Report;
(d) any attachment or judgment Lien not constituting an Event of
Defanlt under Section 8 of the Bank Credit Agreement and Section 6.01 of the Second
Mortgage Indenture;
(e)
leases or subleases granted to third parties in accordance with the
applicable terms of the Security Documents and not interfering in any material respect
with the ordinary conduct of the business of any the applicable Project Entities;
(f)
easements, rights-of-way, restrictions, encroachments and other
similar encumbrances incurred and minor defects and irregularities in title that, in the
aggregate, are not substantial in amonnt and which do not in any case materially detract
from the value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the applicable Project Entities;
(g) leases and subleases permitted under the Bank Credit Agreement
and the Second Mortgage Indenture and any leasehold mortgage in favor of any party
financing the lessee under any lease or sublease permitted thereunder; provided that (i) no
Pro.ject Entity is liable for the payment of any principal of, or interest, premiums or other
Debt Service on, such financing and (ii) the affected lease and leasehold mortgage are
expressly made subject and subordinate to the Liens of the Bank Deed of Trust and
Second Deed of Trust encumbering the affected property;
(h) Liens arising from filing UCC financing statements relating solely
to leases permitted by the Bank Credit Agreement and the Second Mortgage Indenture:
(i) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the importation of
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goods;
(j) any zoning or similar law or right reserved to or vested in any
Governmental Authority to control or regulate the use of any real property;
(k) licenses of patents, trademarks and other intellectual property
rights granted by a Loan Party in the ordinary course of business and not interfering in
any material respect with the ordinary conduct of the business of such Loan Party;
(1) Liens incurred in connection with "Specified Hedge Agreements"
maintained under and as defined in, the Bank Credit Agreement;

(m) Liens securing Indebtedness of the Loan Parties incurred pursuant
to Section 7.2(e) of the Bank Credit Agreement to finance the acquisition of fixed or
capital assets, provided that (i) such Liens shall be created substantially simultaneously
with the acquisition of such fixed or capital assets (or the refinancing of such
Indebtedness as otherwise permitted under the Bank Credit Agreement), (ii) such Liens
do not at any time encumber any property other than the property (and proceeds thereof)
financed by such "Indebtedness" as defined in the Bank Credit Agreement, (iii) the
principal amount of Indebtedness secured the}eby is not increased and (iv) the property
financed by such Indebtedness, is not of a type that will become affixed to the Project
such that the removal thereof could not reasonably be expected to materially interfere
with the ongoing ordinary course operations of the Project;
(n) the rights and interests of the Lenders as provided under the
Financing Agreements;
(o)

Permitted Encumbrances;

Liens on cash Advanced pursuant hereto and deposited with, or
(p)
held for the account of any Loan Party securing reimbursement obligations under
performance bonds, guaranties, commercial letters of credit, bankers’ acceptances or
similar instrnments to the extent permitted under the Bank Credit Agreement granted in
favor of the issners of such performance bonds, guaranties, commercial letters of credit or
bankers’ acceptances, so long as (i) any cash Advanced to secure such reimbursement
obligations is invested (if at all) in Cash Equivalents only to the extent the Project
Entities have the rights to direct investments thereof and (ii) the amount of cash and/or
Cash Equivalents secured by such Liens is not less than the amount of Indebtedness
secured thereby and in any event does not exceed 110% of the amount of the
Indebtedness secured thereby (ignoring, for purposes of this clause (ii), any interest
earned or paid on such cash and any dividends or distributions declared or paid in respect
of such Cash Equivalents);
(q)

Permitted Mechanics Liens; and

(r) to the extent not set forth above, Liens described in clauses (a)
through (r) and (t) through (v) of Section 7.3 of the Bank Credit Agreernent.
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"Permitted Mechanics Liens" means, as of each date of determination, (a) mechanics liens
representing claims asserted against the Project Entities in an aggregate amount not to exceed
$5,000,000, and (b) any other mechanics liens representing claims against the Project Entities
which are acceptable to the Disbursement Agent in consultation with the Construction
Consultant, provided that notwithstanding this clause (b) the aggregate claims represented by the
Permitted Mechanics Liens shall not exceed $25,000,000 at any time.
"Person" means any natural person, corporation, partnership, firm, association, Governmental
Authority or any other entity whether acting in an individual, fiduciary or other capacity.
"Phase I Report" means the environmental assessment for the Site and the Site Easements dated
February 6, 2007 conducted by Western Technologies Inc.
"Plan" means any employee benefit plan as defined in Section 3(3) of ERISA to which the
Project Entities or any member of the Controlled Grgup contributes or has an obligation to
contribute to on behalf of its employees, other than a Multiemployer Plan.

"Plans_and Specifications" means all plans, specifications, design documents, schematic
drawings and related items for the design, architecture and construction of the Project that are
listed on Exhibit U hereto including, from time to time, any fl~rther such plans, specifications,
design documents, schematic drawings and related items which are consistent with the standards
of Exhibit M-1 or M-2 and delivered pursuant to Section 3.3.19. in each case, as amended in
accordance with Section 6.2.
"Prime Constructio~n Agreement" means the construction agreement in the form of AIA
Document Al14-2001 dated as of June 6, 2007 (but effective as of April 1, 2007) between
Las Vegas and the General Contractor for the construction of the Project.
"Proceeds Accounts" means, collectively, each of the Accounts listed as a Proceeds Account in
the matrix set forth in Section 2.2.
"Pro£tect" means the construction of the Fontainebleau Resort and Casino on the Site, as more
particularly described in Exhibit V-1 hereto.
"Project Costs" means all costs incurred, or to be incurred by the Project Entities in connection
with the development, design, engineering, procurement, construction, installation, opening and
completion of the Project in accordance with this Agreement, including, without duplication:

(a)

all costs associated with the bonding of deposits for Condo Units;

(b)

all costs incurred under the Contracts;

(c)

working capital costs incurred prior to the Scheduled Opening Date;

(d) financing, closing and administration costs related to the Project until the
Scheduled Opening Date including, but not limited to, insurance costs (including, with respect to
directors and officers insurance), guarantee fees, legal fees and expenses, financial advisory fees
and expenses, and fees and expenses of insurance advisors, taxes and other out-of-pocket
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Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 5 of 50

expenses payable by the Project Entities tmder all documents related to the financing and
administration of the Project until the Scheduled Opening Date, including the costs of acquiring
Permits for the Project prior to the Completion Date;
(e) technical fees and expenses (including, without limitation, fees and expenses of
the Construction Consultant), fees and expenses of the Disbursement Agent, the Construction
Consultant, and all other technical advisors;
(f) Debt Service which will accrue in respect of Indebtedness of the Companies prior
to the Opening Date (but expressly excluding Debt Service in respect of the Retail Facility);
(g)

the expenses associated with the sales and marketing of the Condo Units;

(h) costs incurred in settling insurance claims in connection with Events of Loss and
collecting Loss Proceeds at any time prior to the Final Completion Date;
(i) cash to collateralize commercial letters of credit to the extent that payment of any
such cash amount to the vendor or materialman who is the beneficiary of such letter of credit
would have constituted a "Project Cost";
(j)

soft costs including building permits and design costs / consultants;

(k) amounts transferred prior to the Opening Date to an account established pursuant
to Section 6.8(b) for payroll expenses otherwise constituting "Project Costs";
(1)

pre-opening expenses incurred prior to the Opening Date;

(m)

costs with respect to owners insurance incurred prior to the Opening Date; and

(n)

Other Retail Costs.

"Project Entities" means the Borrowers, the Issuers and the Retail Affiliate.
"Project Entity Closing Certificate" means a Closing Certificate substantially in the form of
Exhibit B-1 hereto.
"Project Intended Uses" means the intended uses of the Project, as more particularly set forth in
Exhibit V-2 hereto.
"Project Lenders Intercreditor Agreement" means the Intercreditor Agreement of even date
herewith between the Bamk Agent and the Trustee.
"Project Schedule" means the schedule for construction and completion of the Project prepared
by the Project Entities and attached hereto as Exhibit F as amended from time to time in
accordance with the terms hereof.
"Proiect Secured Parties" means (a) the Bank Agent acting for the benefit of the Bank Lenders,
and the counterparties to certain Interest Rate Agreements entered into by the Companies, (b) the
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Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 6 of 50

Trustee acting for the benefit of the Second Mortgage Holders, and (c) the Disbursement Agent
acting on behalf of any one or more of the foregoing (but not on behalf of the Retail Agent or the
Retail Lenders).
"Proiect Security" means, at any time, all real and personal property which is subject or is
intended to be subject to the security interests or liens granted by any of the Security Documents.
"Projected Interest Income" means, (a) as of the Opening Date, $73,748,175, and (b) as of each
subsequent date of determination, the anticipated interest income in respect of the Resort
Accounts, as reasonably determined by the Companies for the period between that date and the
Opening Date.
"Protective Advances" means any Advances made when an Event of Default has occurred and
remains continuing with respect to (i)the payment of any delinquent taxes or insurance
premiums owed by any of the Project Entities with respect to the Project or the Site, (ii)the
removal of any lien or encumbrance on the Project or the Site that is not permitted under the
Financing Agreements or the defense of the Project Entities’ title thereto or of the validity,
enforceability, perfection or priority of the liens and secnrity interests granted or purported to be
granted pursuant to the Security Documents, (iii) the payment of Project Costs after delivery of a
Stop Funding Notice by the Disbursement Agent, or (iv) the repair, maintenance, protection or
preservation of the value of the Project or any portion thereof, including, without limitation, for
payment of (A) heating, gas, electric and other utility bills or (B) in the case of amounts paid by
the Bank Agent or the Trustee, amounts reasonably necessary to prevent the provider of any
financing pursuant to the Retail Facility from terminating its agreement to advance funds
thereunder, all of which Advances shall be deemed to be obligatory advances regardless of the
Person to whom funds are advanced.
"Punchlist Items" means minor or insubstantial details of construction or mechanical adjustment,
the non-completion of which, when all such items are taken together, will not interfere in any
material respect with the use or occupancy of the Project or the ability of the Project Entities (or
any tenant or subtenant thereof) to perform work that is necessary or desirable to prepare such
portion of the Project for such use or occupancy; provided that, in all events, "Punchlist Items"
shall include (to the extent not already completed), without limitation, the items set forth in each
punchlist delivered by the Project Entities pursuant to the Prime Construction Agreement and all
items that are listed on the "punchlists" furnished by the Building Department, the Nevada
Department of Transportation or the Clark County Department of Public Works in cotmection
with, or after, the issuance of the Project temporary certificate of occupancy as those that must be
completed in order for the Building Department to issue a Project permanent certificate of
occnpancy.
"Realized Savings" means, in respect of each Line Item Category, a decrease in the anticipated
cost to complete the work or acquire the goods and services contemplated by such Line Item
Category which (i) results from a decrease in the anticipated cost to complete the work which the
Project Entities are able to demonstrate to the reasonable satisfaction of the Construction
Consultant, or (ii)results from a Scope Change which (A) complies with the requirements of
Section 6.2 and (B) results, to the reasonable satisfaction of the Construction Consultant, in a
quantifiable decrease in materials, supplies, or required services, in each case, which is
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Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 7 of 50

documented by the Project Entities in a Realized Savings Certificate, duly executed and
completed with all exhibits and attachments thereto. The Disbursement Agent shall be entitled
to rely on certifications from the Project Entities and the Construction Consultant set forth in a
Realized Savings Certificate in determining whether "Realized Savings" has been achieved.
"Realized Savings Certificate" means a certificate of the Project Entities substantially in the form
of Exhibit N.
"Reciprocal Easement Agreement" means the Construction, Operation and Reciprocal Easement
Agreement dated as of June 6, 2007 among the Borrowers and the Retail Affiliate.
"Release" means, any release, spill, emission, leaking, pumping, pouring, injection, escaping,
deposit, disposal, discharge, dispersal dumping, leaching or migration of Hazardous Substances
into the indoor or outdoor environment (including the abandonment or disposal of any barrels,
containers or other closed receptacles containing any Hazardous Substances), including the
movement of any Hazardous Substances throngh the air, soil, surface water or groundwater.
"Remaining Cost Report" means a report in the form attached to Exhibit C-1 as Appendix 8.
"Remaining Costs" means, as of each date of determination, the amount reflected in the
Remaining Cost Report prepared as of the most recent date in the row titled "Total" under the "In
Balance Test Adjustments" section which shall in all events include the entire amount of any
disputed claims with Contractors, except to the extent that the Construction Consultant concurs
with the Project Entities that the amount asserted by the relevant Contractor is in excess of the
amount which is reasonably likely to be due to that Contractor.
"Representative" means Banc of America Securities LLC, when acting in its capacity as a
representative of the initial purchasers of the Second Mortgage Notes pursuant to the terms of the
Second Mortgage Indenture.
"Requested Cost Report" means, for each Advance Date, a report prepared by the Project Entities
in the appropriate version of the form attached to Exhibit C-1 as Appendix 1.
"Requested Cost to Final Completion Report" has a report prepared by the Pro.ject Entities in the
form attached to Exhibit Q- 1 as Appendix 1.
"Required Minimum Contingency" means, as of each date of determination, the amount
calculated as follows:
(a) As of the Closing Date, $111,039,860;
(b) from time to time thereafter, the greater of (i) $5,000,000 and (ii) amount determined
pursuant to the following formula:
RMC = $111,039,860" (1.00 - PC))
Where:
(1) RMC = Required Minimum Contingency under the Resort Budget;
= Percentage of the Project completed as of the calculation date as a percentage
(2) PC
of the Total Hard Costs.
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"Required Minimum Excess Revolver Support Amount" as used in each Remaining Cost Report
means, as of each date of determination, the amount calculated as follows:
(a) As of the Closing Date, $15,394,566;
(b) from time to time thereafter, the amount determined pursuant to the following formula:
RMER = $15,394,566 * (1.00 - PC))
Where:
(1) RMER = Required Minimum Excess Revolver Support under the Resort Budget;
= Percentage of the Project completed as of the calculation date as a percentage
(2) PC
of the Total Hard Costs.
"Required Minimum Liquidity Account" as used in the Remaining Cost Report, means, as of
each date of determination, the amount calculated as follows:
(a) As of the Closing Date, $50,000,000;
(b) from time to time thereafter, the amount determined pursuant to the following formula:
RMLA = $50,000,000 * (1.00- PC))
Where:
(1) RMLA = Required Minimum Liquidity Account under the Resort Budget;
= Percentage of the Project completed as of the calculation date as a percentage
(2) PC
of the Total Hard Costs.
"Residual Bank Revolving Facility Completion Reserve Amount" means, as of each date of
determination, the amount determined as of the Opening by the Funding Order for Final
Completion Report as outlined in Section 2.17.2, minus (b) the amount of the cumulative
Advances thereafter made from the Bank Revolving Facility pursuant to Section 2.10.2(b)(xiv).
"Resort Accounts" means each of the Accounts other than the Retail Payment Account, the
Retail Funding Account and the Retail Loss Proceeds Account.
"Resort Budget" means as of each date of determination, the budget set forth in column D of the
Remaining Cost Report.
"Resort Loss Proceeds Account" means the Account of that name described in Section 2.2.
"Resort Payment Account" means the Account of that name described in Section 2.2.
"Resort Properties I" means Fontainebleau Resort Properties I. LLC. a Delaware limited liability
company.
"Resort Properties II" means Fontainebleau Resort Properties II. LLC. a Delaware limited
liability company.
"Resort Request" means, for each Advance Date. the total amount of the Project Costs expended
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Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 9 of 50

pursuant to the Resort Budget for which payment is requested on that Advance Date (including
the amount of m~y such Project Costs which have been paid through the Cash Management
Account).
"Resort Request to Final Completion" has the meaning set forth in Section 2.13.2.
"Resort Sources" means, subject to the limitations described herein, the following sources, in
each case to the extent set forth in the Current Available Sources Report: (a)the Resort Loss
Proceeds Acconnt, (b)the Resort Payment Account, (c)the Interest Account, (d)the Liquidity
Account, (e)the Bonded Condo Proceeds Account, (f)the Cash Management Account, (g)the
Equity Funding Account, (h)the Second Mortgage Proceeds Account, (i)the Bank Proceeds
Account (j) the Delay Draw Term Loan Availability, (k) the Bank Revolving Facility
Availability, and (1) the Completion Guaranty Availability.
"Responsible Officer" means as to any Person, the chief executive officer, chief financial officer,
president, or executive chairman thereof, or of its ultimate manager or signatory Person.
"Retail Accounts" means, collectively, the Retail Funding Account, the Retail Payment Account
and the Retail Loss Proceeds Account.
"Retail Affiliate" means Fontainebleau Las Vegas Retail, LLC, a Delaware limited liability
company.
"Retail Agent_" means Lehman Brothers Holdings Inc., and any successor agent under the Retail
Facility.
"Retail Air Space Lease" means the Master Lease Agreement dated as of June 6, 2007 between
the Borrowers and the Retail Affiliate.
¯"Retail Air Space Parcels" means, collectively, the air space parcels at the Site to be leased (and
later owned) by the Retail Affiliate described on Exhibit V-4.
"Retail Budget" means as of each date of determination, the budget set forth in column B of the
Retail Remaining Cost Report.
"Retail Facility" means the $315,000,000 credit facility made available pursuant to the Retail
Facility Agreement.
"Retail Facility Availability" means, as of each date of determination, the aggregate principal
a~nount available to be drawn on that date under the Retail Facility.
"Retail Facility/ Agreement" ~neans the Loan Agreement dated June 6, 2007 among the Retail
Affiliate, the Retail Lenders and the Retail Agent.
"Retail Facility Completion Guarantor" means Jeffrey Soffer and Parent.
"Retail Funding Account" means the Account of that name described in Section 2.2.
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"Retail Intercreditor Agreement" means the Intercreditor Agreement of event date herewith
among the Batkk Agent, the Trustee, the Retail Agent and the Retail Affiliate.
"Retail Lenders" means the lenders from time to time parties to the Retail Facility.
"Retail Lenders Shared Cost Commitment" means $83,000,000.
"Retail Loss Proceeds Account’: means the Account of that name described in Section 2.2 into
which Loss Proceeds in respect of improvements and fixtures constituting Other Retail Costs are
to be deposited.
"Retail Payment Account" means the Account of that name described in Section 2.2.
"Retail Remaining Cost Report" means a report in the form attached to Exhibit C-1 as
Appendix 9.
"Retail Request to Final Completion" has the meaning set forth in Section 2.13.1.
"Retail Request" means, for each Advance Date, the total amount of the Other Retail Cost
expended pursuant to the Retail Budget for which payment is requested on that Advance Date
(including the amount required to reimburse the Cash Management Account for any such Project
Costs which have been paid through the Cash Management Account).
"Retail Security Documents" means the deed of trust, security agreement and other security
documents executed from time to time by the Retail Affiliate in favor of the Retail Agent and the
Retail Lenders.
"Retail Shared Cost Percentage" means:
(1) as of any date of determination prior to the Initial Bank Advance Date, zero; and

(2) as of each date of determination from and after the Initial Bank Advance Date, the
percentage which is equal to the ratio of (a) the aggregate Project Costs expended on and
following the Initial Bank Advance Date in respect of the Podium (as determined in the Detailed
Remaining Cost Report), to (b) the amount determined in the Detailed Remaining Cost Report as
of the Initial Bank Advance Date (and prior to giving effect to the Advances made on that date)
of the remaining Project Costs associated with the Podium through Final Completion.
"Retail Sources" means subject to the limitations described herein, the following sources, in each
case to the extent set forth in the Current Available Sources Report: (a) the Retail Loss Proceeds
Account, (b) the Retail Payment Account, and (c) the then available principal amount of the
Retail. Facility.
"Retail Unincorporated Materials" means, as of each date of the making of the applicable
Advance Request, all materials, machinery, fixtures, fumiture, equipment or other items
purchased or mannfactured for incorporation into the retail component of the Project but which,
at snch date, (i) are not located at the site of the retail component and for which the Retail
Affiliate has paid or intends to pay with the proceeds of the Advance Request all or a portion of
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the purchase price, or (ii) are located at the site of the retail component but are not expected to be
incorporated into the Project within 30 days after such Advance Request.
"Retainage Amounts" means at any given time amounts which have accrued and are owing under
the terms of a Contract for work or services already provided but which at.such time (and in
accordance with the terms of the Contract) are being withheld from payment to the Contractor,
until certain subsequent events (e__~., completion benchmarks) have been achieved under the
Contract.
"Reviewin~ Accountant" means Deloitte & Touche, LLP or any subsequent nationally
recognized firm of independent public accountants selected by the Project Entities, with the
consent of the Bank Agent from time to time (which shall not be unreasonably withheld or
delayed), as auditors of the Project Entities.
"Revolving Loans" has the meaning given in the Bank Credit Agreement.
"S&P" means Standard & Poor’s Ratings Group, or any successor thereof.
"Scheduled Advance Date" means, as to each Advance Request, the 25th day of the calendar
month during which such Advance Request is received (or, if such day is not a Banking Day, on
the next Banking Day).
"Scheduled Opening Date" means October 1, 2009, as the same may from time to time be
extended pursuant to Section 6.4.
"Scope Change" means any change to the physical configuration or amenities of the Project from
what is described in the Plans and Specifications or any other change to the design, layout,
architecture or quality of the Project from that which is contemplated on the Closing Date,
prowided that it is acknowledged that the Plans and Specifications delivered on the Closing Date
are preliminary in nature and that any further refinement or embellishment thereof in a manner
which is not determined by the Construction Consultant to be materially inconsistent with such
Plans and Specifications or any subsequent refinement or embellishment thereof shall not be
considered to be a "Scope Change."
"Second Deed of Trust" means the Deed of Trust of even date herewith executed by the
Borrowers, as trustors, for the benefit of the Trustee, as beneficiary.
"Second Mortgage Funding Account" means the Account of that name described in Section 2.2.
"Second Mortgage Holders" means the holders of the Second Mortgage Notes.
"Second Mortgage Indenture" means the Indenture dated as of June 6, 2007 among the Issuers,
the Borrowers (as guarantors) and the Trustee.
"Second Mortgage Notes" means the 10 1/4% Second Mortgage Notes Due 2015 in the
aggregate principal amount of $675,000,000, issue~l by the Issuers, as co-issuers, pursuant to the
Second Mortgage Indenture.
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Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 12 of 50

"Second Mortgage Proceeds Account" means an account established with the Trustee into which
the net proceeds of the offering of the Second Mortgage Notes shall be deposited on the Closing
Date in accordance with the Flow of Funds Memo, which Account is further described in Section
2.2.

"Second Mortgage Purchase Agreement" means the Purchase Agreement dated May 24, 2007
entered into between the Representative, the Issuers and the guarantors signatory thereto
concerning the purchase of the Second Mortgage Notes.
"Second Mortgage Security Documents" means, collectively, the Second Deed of Trust, each
Completion Guaranty, the Affiliate Subordination Agreement, and any guaranties, deeds of trust,
security agreements or Control Agreements executed from time to time by any of the Loan
Parties or one or more of their direct or indirect Subsidiaries in favor of the Trustee or the
Second Mortgage Holders to secure, support or guaranty the obligations under the Second
Mortgage Notes and the Second Mortgage Indenture.
"Secured Parties" means, collectively, the Project Secured Parties and the Retail Lenders.
"Security Documents" means, collectively and without duplication, the Bank Security
Documents, the Second Mortgage Security Documents, the Retail Security Documents, each
Completion Guaranty, each Payment and Performance Bond, the Control Agreements, the
Consents, and any other deeds of trust, security agreements or Control Agreements entered into
by any of the Loan Parties and/or one or more of their direct or indirect Subsidiaries for the
benefit of any Secured Party in accordance with the terms of the Financing Agreements or the
Intercreditor Agreements.
"Shared Cost Allocation Report" means, for the Initial Bank Advance Date and each subsequent
Advance Date, a report prepared by the Project Entities in the appropriate version of the form
attached to Exhibit C-1 as Appendix 2.
"Shared Costs" means the portion of the overall Project Costs reflected in the Resort Budget
which are to be paid for using both the Resort Sources and (to the extent of the Retail Lenders
Shared Cost Commiunent) the Retail Facility (primarily costs associated with the Podium).
"Shared Cost to Final Completion Allocation Rel~ort" means a report prepared by the Project
Entities in the form attached to Exhibit Q-1 as Appendix 2.
"Site" means the construction site for the Project as described in Exhibit ¥-3 hereto, together
with any other real property which is hereafter subject to a lien under the Bank Deed of Trust or
the Second Deed of Trust.
"Site Easements" means the easements appurtenant, easements in gross, license agreements and
other rights runlfing for the benefit of the Project Entities and/or appurtenant to the Site,
including, without limitation, the easements and licenses described in the Title Policies.
"Solvent" means, as to any Person, that (a) the su~n of the assets of such Person, both at a fair
valuation and at a present fair saleable value, exceeds its liabilities, including its probable
W02-WEST:LAR\400308993.14

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Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 13 of 50

liability in respect of contingent liabilities, (b) such Person will have sufficient capital with
which to conduct its business as presently conducted and as proposed to be conducted and (c)
such Person has not incurred debts, and does not intend to incur debts, beyond its ability to pay
such debts as they mature.
"Stop Funding Notice" has the meaning given in Section 2.5.1.
"Subcontract" means any subcontract or purchase order entered into with any Subcontractor.
"Subcontractor" means any direct or indirect subcontractor of any tier under any Contract.
"Subsidiary" as to any Person, a corporation, partnership, limited liability company or other
entity of which shares of stock or other ownership interests having ordinary voting power (other
than stock or such other ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such
Person.
"Tax" shall mean shall mean any federal, state, local, foreign or other tax, levy, impost, fee,
assessment or other government charge, including without limitation income, estimated income,
business, occupation, franchise, property, payroll, personal property, sales, transfer, use,
employment, commercial rent, occupancy, franchise or withholding taxes, and any premium,
including without limitation interest, penalties and additions in connection therewith.
"Tenant Allowance" means amounts payable directly to a retail tenant as part of any construction
allowance pnrsuant to any retail lease entered into by the Retail Affiliate in accordance with the
Retail Facility Agreement.
"Title Insurer" means Lawyers Title Insurance Corporation.
"Title Policies" means, collectively, the policies of title insurance issued by Title Insurer as of the
Closing Date.
"Total Hard Costs" means, as of each date of determination, the costs described in column D in
the row titled "Construction Hard Costs Subtotal" in the Detailed Remaining Cost Report
prepared as of that date.
"Trustee" means Wells Fargo Bank, N.A., when acting in its capacity as the trustee under the
Second Mortgage Indenture and its successors in such capacity.
"Tumberry Residential" means Turuberry Residential Limited Partner, L.P., a Delaware limited
partnership.
"UCC" means the Uniform Commercial Code of the State of New York.
"Unallocated Contingency Balance" means, as of each date of determination, the "Unallocated
Contingency" Line Item Category in the Remaining Cost Report.
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Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 14 of 50

"Unincorporated Materials" means, as of each date of the making of each Advance Request, all
materials, machinery, fixtures, filrniture, equipment or other items purchased or manufactured
for incorporation into the Project but which, at such date, (i) are not located at the Site and for
which the Project Entities have paid or intend to pay with the proceeds of the Advance Request
all or a portion of the purchase price, or (ii) are located at the Site but are not expected to be
incorporated into the Project within 30 days after such Advance Request.

RULES OF INTERPRETATION
1.

The singular includes the plural and the plural includes the singular.

2.

The word "or" is not exclusive.
A reference to a Legal Requirement inclndes any amendment or modification of such
Legal Requirement, and all regulations, rulings and other Legal Requirements
promulgated under such Legal Requirement.

4.

A reference to a Person includes its permitted successors and permitted assigns.

5.

Acconnting terms have the meanings assigned to them by GAAP.

6.

The words "include," "includes" and "including" are not limiting.
A reference in a document to an Article, Section, Exhibit, Schedule, Amlex or Appendix
is to the Article, Section, Exhibit, Schedule, Annex or Appendix of such document unless
otherwise indicated. Exhibits, Schedules, A~mexes or Appendices to auy document shall
be deemed incorporated by reference in such document.

o

References to any document, instrument or agreement (a) shall include all exhibits,
schedules and other attachments thereto, (b) shall include all documents, instruments or
agreements issued or executed in replacement thereof, and (c) shall mean, unless
specifically indicated, such document, instrument or agreement as in effect on the date
hereof, notwithstanding any termination, expiration or amendment of such agreement
unless (i) all of the parties hereto are signatories to such amendment or (ii) the signatories
to such amendment have the right to amend this Agreement without the consent of the
other parties hereto, in either of which case any references shall be to such agreement as
so amended.
The words "hereof," "herein" and "hereunder" and words of similar import when used in
any document shall refer to such document as a whole and not to any particular provision
of such document.

10.

References to "days" shall mean calendar days, unless the term "Banking Days" shall be
used.

W02-WEST:LAR\400308993 14

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Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 15 of 50

11.

The Financing Agreements are the result of negotiations among, and have been reviewed
by, the Project Entities, the Funding Agents, the Lenders and the Disbursement Agent.
Accordingly, the Financing Agreements shall be deemed to be the product of all parties
thereto, and no ambiguity shall be construed in favor of or against any such Person.

12.

Where any instrument, document or agreement is required to be delivered pursuant hereto
in a form which is "substantially in the form" of the Exhibit hereto (or words of similar
import), the form of such instrument, document or agreement shall be required to
comport with the form attached hereto, but with such changes as may be reasonably
acceptable to the Disbnrsement Agent.

13.

In the event that any day or date referred to in the provisions of this Agreement occurs on
a day that is not a Banking Day, the reference shall be deemed to be to the next
succeeding Banking Day.

W02-WEST:LAR\400308993 14

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Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 16 of 50

EXHIBIT C-I
to Master Disbursement Agreement
ADVANCE REQUEST

1[_I, 20Ll

Certificate Date: [
Bank of America, N.A.,
as Disbursement Agent
Relationship Administration Office Manager
Credit Services & Administration
Commercial Real Estate NJ & PA
Bank of America, N .A.
750 Walnut Avenue
MC: NJ6-502-01-03
Cranford, NJ 07016
Attn: Jeanne P. Brown, Vice President
Re:

Advance Request No. 1 . _ 1 under Master Disbursement Agreement dated as
of June 6, 2007 (the "Disbursement Agreement") among Fontainebleau Las Vegas
Holdings, LLC, Fontainebleau Las Vegas Capital Corp., Fontainebleau Las Vegas Retail,
LLC, Fontainebleau Las Vegas, LLC, and Fontainebleau Las Vegas 11, LLC (collectively,
the "Project Entities"), the Funding Agents referred to therein, and Bank of America,
N.A., as Disbursement Agent.
Requested Advance Date: [
Resort Amount Requested: $[
Retail Amount Requested: $[
Period Covered: L

J

I, 20LJ
]
._ _]
[_.1, 20[_] through [_._ _ ~ [_I, 20LJ

Ladies and Gentlemen:
The Project Entities hereby submit this Advance Request (the "Advance Request") pursuant to
the Disbursement Agreement_ Capitalized terms used herein without definition shall have the meanings
assigned in the Disbursement Agreement.
The Project Entities hereby request the making of the Advances reflected in the Funding Order
Report and Advance Request Transfer Report. In connection with the Advances requested herein, and to
induce the Disbursement Agent and each relevant Funding Agent to make such Advances, the Project
Entities hereby represent, warrant and certify as follows:
1.

Certifications.

A.
Attachments: Each of the following attachments to this Advance Request is what it
purports to be, is accurate in all material respects, is consistent with the requirements of the Disbursement
Agreement, and reflects the information required by the Disbursement Agreement to be reflected therein,
W02-WEST1CDGl\4001853059

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Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 17 of 50

in each case as of the Advance Date specified above.
Appendix

Title

1
2

Requested Cost Report
Shared Cost Allocation Report!
Current Available Sources Report
Funding Order Report
Advance Request Transfer Report
[Reserved]
Detailed Remaining Cost Report
Remaining Cost Report
Retail Remaining Cost Report
In Balance Report
Lien Release Summar!
Title Insurance Endorsement Chart3
Inventory of Unincorporated Materials
Architect Advance Certificate
General Contractor's Advance Certificate
List of Additional Contracts
List of Scope Changes

3
4

5
6
7
8
9
10
11
12
13
14
15
16
17

B.
Requested Cost Report. The Requested Cost Report attached hereto is in the form
required by the Master Disbursement Agreement, and summarizes costs reflected in the Budgets for
which Advances are requested to be made on the relevant Advance Date. Each of the items which
collectively constitute the Resort Request and the Retail Request set forth in the Requested Cost Report
are included in the Budgets, and have been properly expended by the Project Entities in accordance with
the Budgets or are anticipated to be expended prior to the Advance Date set forth in the Advance Request.
With respect to amounts requested for construction expenses, the Requested Cost Report accurately lists,
for each applicable line item, the total current payment requested by the Prqject Entities (net of retainage).
Copies of invoices from the Contractors and Subcontractors for which payment is requested have been
delivered to the Construction Consultant. All items described in the Requested Cost Report represent (a)
work that has been satisfactorily performed in a good and workmanlike manner and in conformance with
the Plans and Specifications, (b) materials that have been delivered to the Site and are incorporated into
the Project or will be incorporated within the period contemplated by the Disbursement Agreement, or are
Unincorporated Materials complying with the requirements of Disbursement Agreement, (c) the Prqject
Entities' best estimate of Project Costs which will become due and payable on or prior to the Requested
Advance Date.

Include this Appendix only from and after the Initial Bank Advance Date.
2

Include this Appendix only when requesting Advances fmen the Bank Proceeds Account.

3

Include this Appendix only when requesting Advances from the Bank Proceeds Account.

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Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 18 of 50

4

Shared Cost Allocation Report. The Shared Cost Allocation Report attached hereto is in
the form required by the Master Disbursement Agreement.
C.

D.
Current Available Sources Report. The Current Available Sources Report attached
hereto is in the form required by the Master Disbursement Agreement, and accurately reflects availability
under each of the applicable Financing Agreements and the available balance of the various Accounts
which is available to nmd Project Costs.
E.
Funding Order Report. The Funding Order Report attached hereto is in the form required
by the Master Disbursement Agreement, and has been prepared in accordance with Section 2.10 of the
Master Disbursement Agreement, and correctly applies the funding order set forth in such Section to the
funds identified in the Current Available Sources Report.
F.
Advance Request Transfer Report. The Advance Request Transfer Report is in the form
required by the Disbursement Agreement and directs the funds allocated in the Funding Order Report to
the various accounts and to reimburse drawings of the Letters of Credit under the Bank Credit Agreement
in the manner required by the Disbursement Agreement
G.
Detailed Remaining Cost Report. The Detailed Remaining Cost Report is in the fom1
required by the Master Disbursement Agreement, and reflects for each Line Item Category all changes
thereto which are required by Section 6.2 of the Master Disbursement Agreement by reason of any Scope
Change or Realized Savings.
Remaining Cost Report. The Remaining Cost Report attached hereto is in the
H.
form required by the Master Disbursement Agreement, and has been prepared in accordance with
Section 4.17 of the Master Disbursement Agreement, and reflects all reasonably anticipated
Project Costs required to achieve Final Completion. The Remaining Costs Report details the balance
required to complete each line item.
L
Retail Remaining Cost Report. The Retail Remaining Cost Report attached hereto is in
the form required by the Master Disbursement Agreement accurately details the remaining costs in the
Retail Budget.

J.
accordance.

In Balance Report. The In Balance Report correctly computes the In Balance Test in

K.
Lien Release Summary and Title Insurance Endorsement Chart. The
lien
release
summary chart and appropriate evidence of lien releases required by Section 3.3.16 of the Disbursement
Agreement, and title insurance endorsement commitments required by Section 3.3.17 of the Disbursement
Agreement, have been received as of the Requested Advance Date for all work, materials and/or services
performed and/or delivered in connection with the Project. In addition, all endorsements to the Title
Policies required pursuant to the Disbursement Agreement have been received. s
L

Inventory of Unincorporated Materials.

The inventory of Unincorporated Materials

----_._----_.
4

5

Include this Appendix only from and after the Initial Bank Advance Date.
Include this certification only when requesting Advances from the Bank Proceeds Account

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Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 19 of 50

which is attached hereto is accurate in all material respects, and identifies all Unincorporated Materials
and states the value thereof. All Unincorporated Materials for which full payment has previously been
made or is being made with the proceeds of the Advance to be disbursed are, or will be upon full
payment, owned by the Project Entities, and all lien rights or claims of the supplier have been or will be
released simultaneously with such full payment and all amounts, if any, required to be paid to the supplier
thereof with respect to the installation of such Unincorporated Materials (including any Retainage
Amounts). The Project Entities believe that the Unincorporated Materials consist of components that
conform to the Plans and Specifications and that will be ready for incorporation into the Pr~ject
reasonably promptly following delivery thereof. All Unincorporated Materials are properly inventoried,
securely stored, protected against theft and damage at the Site or at such other location which has been
specifically identified by its address to the Construction Consultant and the Disbursement Agent (or if the
Project Entities cannot provide the address of the current storage location, the Project Entities have
provided the Construction Consultant with a list of the name and address of the applicable contracting
party supplying or manufacturing such Unincorporated Materials). With respect to any Unincorporated
Materials as to which deposit or other partial payments have been made or will be made out of the
requested Advance (but which have not been and will not be fully paid after giving effect to the requested
Advance), the Project Secured Parties have, or will have upon payment with the proceeds of the requested
Advance, a perfected security interest in the Project Entities' rights to the Unincorporated Materials and
the Contracts therefor, with the priority therein contemplated by the Security Documents. With respect to
(i) Unincorporated Materials not stored at the Site from a single or Affiliated suppliers (of which the
Project Entities are aware that such suppliers is an Affiliate) with a contract price (or expected aggregate
amount to be paid in the case of "cost-plus" Contracts) in excess of $5,000,000, and (ii) any Contracts for
Unincorporated Materials with a contract price (or expected aggregate amount to be paid in the case of
"cost plus" Contracts) in excess of $5,000,000 (excluding items located outside of the United States or in
transit from jurisdictions outside ofthe United States), the Project Entities have executed and delivered to
the Disbursement Agent such additional security documents (including, without limitation, financing
statements, security agreements, collateral access agreements, consents of manufacturers, vendors,
warehousemen and bailees) reasonably requested by the Disbursement Agent necessary to grant the
Secured Parties such security interest in the Project Entities' rights to such Unincorporated Materials or
Contracts. All Unincorporated Materials are insured against casualty, loss and theft for an amount equal
to their replacement costs in accordance with Exhibit D to the Master Disbursement Agreement. The
value of Unincorporated Materials located at the Site but not expected to be incorporated into the Project
within the ensuing calendar month is not more than $25,000,000 (or any greater amount approved in
accordance with the terms of the Master Disbursement Agreement). The amounts paid by the Project
Entities in respect of Unincorporated Materials not at the Site is not more than $50,000,000 (or any
greater amount approved in accordance with the terms of the Master Disbursement Agreement). The
amount of contract deposits paid by the Project Entities in respect of Unincorporated Materials is not
more than $50,000,000 (or any greater amount approved in accordance with the terms of the Master
Disbursement Agreement).6
M.
List of Additional Contracts. Attached to this Advance Request is a complete and
accurate listings of all Contracts entered into by the Pr~ject Entities since the date of the last Advance
Request, together with (i) copies of any Contract entered into by the Project Entities and any Contractor
with a contract price (or in the case of the "cost plus" contracts, expected aggregate amounts to be paid) in
excess of $5,000,000, (ii) copies of each first tier Subcontract with a contract price (or in the case of the
"cost plus" contracts, expected aggregate amounts to be paid) in excess of $5,000,000, and (iii) a copy of

6

Include this certification only when requesting Advances from the Bank Proceeds Account.

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Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 20 of 50

any Payment and Perfonnance Bond required pursuant to Section 5.12 of the Disbursement Agreement, in
each case unless previously delivered.
N.
List of Scope Changes. A list of all approved, pending and proposed Scope Changes
(other than Minor Scope Changes) since the previous Advance Request, together with copies of all such
Scope Changes (other than Minor Scope Changes) not previously delivered to the Disbursement Agent, is
attached hereto.
O.

General Representations.

1.
Each Material Contract is in full force and effect except (i) for amendments to
Material Contracts not prohibited by Section 6.1 of the Master Disbursement Agreement or by the
Financing Agreements, (ii) to the extent the Project Entities have entered into a replacement Material
Contract to the extent required or permitted by Section 7.1.6 of the Master Disbursement Agreement, and
(iii) to the extent terminated in accordance with their respective tenns.

2.
Each Financing Agreement is in full force and effect, without amendment since
the date of its execution and delivery, and in a form which was provided to the Bank Agent and the
Trustee prior to the Closing Date, except for amendments to the Financing Agreements to the extent
pennitted under the Facility Agreements or to the extent terminated in accordance with their respective
terms.
3.
Each representation and warranty of each Project Entity set forth in Article 4 of
the Master Disbursement Agreement or in any Material Contract is true and correct in all material
respects as if made on the Requested Advance Date (except that any representation and warranty that
relates expressly to an earlier date shall be deemed made only as of such earlier date), unless, prior to the
Initial Bank Advance Date, the failure of any such representation and warranty referred to in this clause 3
to be true and correct could not reasonably be expected to have a Material Adverse Effect.
4.
To the Project Entities' knowledge, each representation and warranty of each
Major Project Participant (other than any Project Entity) set forth in any of the Material Contracts is true
and correct in all material respects as if made on the Requested Advance Date (except that any
representation and warranty that relates expressly to an earlier date shall be deemed made only as of such
earlier date) unless the failure of any such representation and warranty referred to in this clause 4 to be
true and correct does not reasonably be expected to have in a Material Adverse Effect, in each case, as
certified by the Project Entities in the relevant Advance Request.
5.

The In Balance Test is satisfied.

6.
There is no order, judgment or decree of any court, arbitrator or governmental
authority shall purport to enjoin or restrain the Bank Lenders or the Trustee from making the Advances to
be made by them on the Requested Advance Date.
7.

The making of the requested Advance shall not violate any law.

8.
Since the Closing Date, there has not occurred any change in the economics or
feasibility of constructing and/or operating the Project, or in the financial condition, business or property
ofthe Project Entities, any of which could reasonably be expected to have a Material Adverse Effect.

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Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 21 of 50

9.
Construction of the Project is proceeding materially in accordance with the
Project Schedule and the plans and specifications for the Project (including any Plans and Specifications
then delivered) and no Major Project Participant or first tier Subcontractor under the Prime Construction
Agreement or party to a Subcontract with a total contract amount or value in excess of $25,000,000 has
suspended performance or otherwise repudiated its obligation to perform any duty or obligation under its
respective Material Contract or Subcontract (unless such suspended or repudiated Material Contract or
Subcontract is permitted to be, and actually has been, replaced, or a replacement is determined not to be
necessary, pursuant to Section 7.1.5 or Section 7.1.6).
10.
[[Solely with respect to the initial Advance of funds from the Second Mortgage
Proceeds Account, the entire amount of the Equity Proceeds Account has been, or shall concurrently be,
applied to the payment of Project Costs.]f
11.
[[Solely with respect to the initial Advance of funds from the Second Mortgage
Proceeds Account (other than any Advance made solely to pay interest on the Second Mortgage Notes),
fixed price or guaranteed maximum price Contracts with Subcontractors in respect of 75% of the Total
Hard Cost are in place]] 8
12.
[[Solely with respect to the first Advance which occurs following October 1,
2007, fixed price or guaranteed maximum price Contracts with Subcontractors in respect of 85% of the
Total Hard Costs are in place. Each such Subcontract and Contract is consistent with the Budgets, the
Project Schedule and the plans and specifications for the Project now in effect.]] 9
13.
[[Solely with respect to the Initial Bank Advance Date, (i) fixed price or
guaranteed maximum price Contracts with Subcontractors in respect of 95% of the Total Hard Costs are
in place, and (ii) fixed price contracts in respect of not less than 50% of the Costed FF&E are in place.
Each such Subcontract and Contract is consistent with the Budgets, the Project Schedule and the plans
and specifications for the Project now in effect.]] 10
14.
In the case of each Advance from the Bank Proceeds Account made concurrently
with or following the Exhaustion of the Second Mortgage Proceeds Account, the Project Entities have
delivered a copy of (i) each Contract or series of related Contracts with the same Person entered into
between the Prqject Entities and any Contractor with a contract price (or expected aggregate amount to be
paid in the case of "cost plus" contracts) in excess of $25,000,000, (ii) each first tier Subcontract with a
contract price (or expected aggregate amount to be paid in the case of "cost plus" contracts) in excess of
$25,000,000 (or any or series of related Contracts with the same person), and (iii) a copy of any Payment
and Performance Bond required pursuant to Section 5.8 to the Disbursement Agent, the Construction
Consultant and Bank Agent promptly after mutual execution and delivery thereof. 11

7

Insert only where appropriate.

8

Insert only where appropriate

9

Insert only where appropriate.

10

Insert only where appropriate.

II

Insert only where appropriate.

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Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 22 of 50

15.
In the case of each Advance from the Bank Proceeds Account made concurrently
with or following the Exhaustion of the Second Mortgage Proceeds Account, the Project Entities have
delivered to the Disbursement Agent duly executed acknowledgments of payments and releases of
mechanics' and materialmen's liens substantially in the form of Exhibit I to the Master Disbursement
Agreement (with any modifications required by Nevada law) from the Contractors required by the Master
Disbursement Agreement for all work, services and materials, including equipment and fixtures of all
kinds, done, performed or furnished for the construction of the Project from the last day covered by the
immediately preceding Advance Request through the last day covered by this Advance Request except for
such work, services and materials the payment for which does not exceed, in the aggregate $50,000,000
and is being disputed in good faith, so long as (1) such proceedings shall not involve any substantial
danger of the sale, forfeiture or loss of the Project or the Site, as the case may be, title thereto or any
interest therein and shall not interfere in any material respect with the Project or the Site, and (2) adequate
cash reserves have been provided therefor through an allocation in the Remaining Cost Report. To the
extent of any Outstanding Releases, the Project Entities have provided to the Disbursement Agent from
the Title Insurer bonds or endorsements to the title insurance policies insuring the lien free status of the
work. The aggregate of all Outstanding Releases do not represent work with an aggregate value in excess
of $50,000,000. 12
16.
In the case of each Advance from the Bank Proceeds Account made concurrently
with or following the Exhaustion of the Second Mortgage Proceeds Account, the Project Entities have, or
will prior the Requested Advance Date deliver a commitment from the Title Insurer evidencing the Title
Insurer's unconditional commitment to issue an endorsement to the Bank Agent's Title Policy in the form
of a 122 CLTA Endorsement insuring the continuing priority of the Lien of the Bank Agent's Deed of
Trust as security for the requested Advance and confirming and/or insuring that there are no intervening
liens or encumbrances which may then or thereafter take priority over the Liens of such Deed of Trust
other than Permitted Encumbrances and such intervening liens or encumbrances securing amounts the
payment of which is being disputed in good faith by the Borrowers (in which case the Disbursement
Agent has received confirmation from the Bank Agent that the Title Insurer has delivered to the Bank
Agent any endorsement to its Title Policy required or desirable to assure the Bank Agent against loss to
the priority of such lien or encumbrance). 13
17.
In the case of each Advance from the Bank Proceeds Account made concurrently
with or following the Exhaustion of the Second Mortgage Proceeds Account, no action, suit, proceeding
or investigation of any kind shall has been instituted or, to the Project Entities' knowledge, is pending or
threatened, including actions or proceedings of or before any Governmental Authority, to which any
Project Entity, the Project or, to the knowledge of the Project Entities, any Major Project Participant
(other than any Project Entity), is a party or is subject, or by which any of them or any of their properties
or the Project are bound that could reasonably be expected to have a Material Adverse Effect nor are the
Project Entities aware of any reasonable basis for any such action, suit, proceeding or investigation and no
il~junction or other restraining order shall have been issued and no hearing to cause an injunction or other
restraining order to be issued shall be pending or noticed with respect to any action, suit or proceeding if
the same could reasonably be expected to have a Material Adverse Effect. 14
-------------12

Insert this paragraph only where Advances from the Bank Proceeds Account are requested.

13

Insert this paragraph only where Advances from the Bank Proceeds Account are requested.

14

Insert this paragraph only where Advances from the Bank Proceeds Account are requested.

W02·WEST1CDG1\4001853059

-7-

Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 23 of 50

18.
To the best of the Prqject Entities' knowledge, the construction performed in
respect of the Project as of the date hereof is substantially in accordance with the current Plans and
Specifications for the Project.
19.

L_.

As

of the

date

hereof,

the

estimated

Scheduled

Opening

Date

is

.--.J. The Project Entities have no reason to believe that the Opening Date will not occur

on or prior to such date, or that the Completion Date will not occur within 180 days thereafter. 15
20.
No Default or Event of Default has occurred and is continuing or reasonably
could be expected to result from the requested Advance under the Disbursement Agreement.
21.
The Prqject Entities have submitted to the Construction Consultant all Plans and
Specifications in effect as of the date hereof. All Advances requested under this Advance Request are for
the payment of Prqject Costs incurred for work are consistent with such Plans and Specifications and will
permit the Project Entities to complete construction of the Project on or before the Completion Date
required above.
22.
Each representation and warranty (a) of the Project Entities set forth in Article IV
of the Disbursement Agreement or in any of the other Financing Agreements or Material Contract is true
and correct in all material respects as if made on and as of the Requested Advance Date with the same
effect as if given on the date thereof (except that any representation and warranty that relates expressly to
an earlier date shall be deemed made as of such earlier date), and (b) to the Project Entities' knowledge, of
the General Contractor, the Completion Guarantor, the Architect and each other Major Project Participant
(other than the Project Entities) set forth in any of the Material Contracts is true and correct in all material
respects as if made on and as of the Requested Advance Date with the same effect as if given on the date
thereof (except that any representation and warranty that relates expressly to an earlier date shall be
deemed made as of such earlier date) unless the failure of any such representation and warranty referred
to in this clause (b) to be true and correct could not reasonably be expected to have a Material Adverse
Effect.
23.
Without limitation on the foregoing, the conditions set forth in Sections 3.3 or
3.4, as applicable, of the Disbursement Agreement are satisfied as of the Requested Advance Date with
the following exceptions:
[List any exceptions, ifany].
The foregoing representations, warranties and certifications are or will be true and correct
as of the Requested Advance Date and Disbursement Agent is entitled to rely on the foregoing in
authorizing and making the Advances herein requested. By executing the Advance Confirmation Notice,
the Project Entities will be deemed to confirm that the foregoing representations, warranties and
certifications are correct as of the Requested Advance Date.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]

15

Modify this Section after Opening Date or Completion Date have occurred

W02-WEST: ICDG 1\4001853059

-8-

Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 24 of 50

IN WITNESS WHEREOF, the Project Entities have executed this Advance Request as of
the date hereof.
FONTAINEBLEAU LAS VEGAS HOLDINGS, LLC,
a Nevada limited liability company

By: Fontainebleau Resort Properties I, LLC,
its Managing Member
By: Fontainebleau Resort Holdings, LLC,
its Managing Member
By: Fontainebleau Resorts, LLC, its Managing
Member
By:
Title:

FONTAINEBLEAU LAS VEGAS CAPITAL CORP.
a Delaware corporation

By:

-------

Title:

FONTAINEBLEAU LAS VEGAS RETAIL, LLC,
a Delaware limited liability company

By: Fontainebleau Las Vegas Retail Mezzanine, LLC,
its Managing Member
By: Fontainebleau Las Vegas Retail Parent, LLC,
its Managing Member
By: Fontainebleau Resort Holdings, LLC,
its Managing Member
By: Fontainebleau Resorts, LLC, its
Managing Member
By:
Title:

W02-WESTICDGl\4001853059

-9-

Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 25 of 50

FONTAINEBLEAU LAS VEGAS, LLC,
a Nevada limited liability company
and
FONTAINEBLEAU LAS VEGAS II, LLC,
a Florida limited liability company
By: Fontainebleau Las Vegas Holdings, LLC,
Managing Member of each of the foregoing
By: Fontainebleau Resort Properties I, LLC,
its Managing Member
By: Fontainebleau Resort Holdings, LLC,
its Managing Member
By: Fontainebleau Resorts, LLC,
its Managing Member
By:
Title:

W02-WEST1CDG1\4001853059

-10-

FONTAINEBLEAU RESORT AND CASINO
Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 26 of 50
LAS VEGAS, NV
REQUESTED COST REPORT
APPENDIX I TO EXHIBIT C-1
VERSION A - PRIOR TO INITIAL BANK ADVANCE DATE
[Date]
RETAIL BUDGET
Cash Management Account Reimbursement for Other Retail Costs
Total Cash Management Account Reimbursement
Retail Tenant Allowance
Retail Lease Commissions
RETAIL REQUEST

$
$

-

$
$

(A)

-

(B)

$

Cash Management Account Reimbursement
Cash Management Account Reimbursement for Resort Project Costs
Total Cash Management Account Reimbursement

(C)

$
$

Bank Revolving Credit Facilitv Reimbursement
Bank Revolving Credrt Facilrty Advances made in respect of UCs
Total Bank Revolving Credit Facility Reimbursement

(D)

$
$

-; ..-

-

RESORT BUDGET (INCLUDING ALL SHARED COSTS AND EXCLUDING DEBT SERVICE)

-~

-

Project Costs (without duplication with amounts above)
Tumberry West ConstnJctlon
Insurance

-

Total Construction Costs

$
$
$

-

Total Costed FF&E

$
$
$
$
$
$

Rooms FF&E
Hotel and F&B Operating EqUipment
Kitchen Equipment
Exterior Signage
Common Area FF&E

Gaming FF&E

-

-

$
$

Entertainment
A&G and Facilities and IT
Total Other FF&E

_!_------=--$

Pre-Opening I Working Capital
Fees I Permits I Taxes I Other

$

Condominium-Hotel Selling Expenses
Fees and Expenses

$
$
$

-

$

Subtotal
RESORT REQUEST (E)

-

-----_._$

FONTAINEBLEAU RESORT AND CASINO
Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 27 of 50
LAS VEGAS, NV
CURRENT AVAILABLE SOURCES REPORT
APPENDIX III TO EXHIBIT C-1
VERSION A - PRIOR TO INITIAL BANK ADVANCE DATE
[Date]

CURRENT

LESS:

BALANCE

RETAIL SOURCES

PAYMENTS(1)

Retail Loss Proceeds Account balance (to be Advanced only for Other Retail Costs)

$

-

Retail Payment Account balance (including interest income)

$

-

Retail Facility Availability

$

CURRENT AVAILABLE RETAIL SOURCES

-

N/A

$

-

$

-

$

-

$

$

N/A

$

RESORT SOURCES

BALANCE

$

CURRENT

Resort Loss Proceeds Account balance

$

Resort Payment A=unt balance (including interest income)

PAYMENTS I1 )

-

BALANCE

N/A

$

$

$

-

-

$

N/A

$

Amount by which Liquidity Account balance exceeds $50,000,000

LESS:

BALANCE

-

$

-

$

Bonded Condo Proceeds Account balance

$

-

N/A

Equity Funding Account balance

$

-

N/A

Second Mortgage Proceeds Account balance (2)

$

Bank Proceeds Account balance (3)

$

-

$

-

$

$

-

$

-

$

CURRENT AVAILABLE RESORT SOURCES

$

-

$

$

-

(1) Payments to be made pursuant to previous Advance Requests and Debt Service payable directly from the Second Mortgage Proceeds Account and the Bank Proceeds Account
Each to be entered as a negative amount
(2) Prior to the Initial Bank Advance Date all Debt Service in respect of the Second Mortgage Notes Indenture will be payable directly from the Second Mortgage Proceeds Account
(3) Prior to the Initial Bank Advance Date all Debt Service in respect of the Bank Credit Facilities will be payable directly from the Bank Proceeds Account
For the purposes of Version A of the Current Available Sources Report, the Bank Proceeds Account will be available solely for Advances in respect of Debt Service

-

FONTAINEBLEAU RESORT AND CASINO
Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 28 of 50
LAS VEGAS, NV
FUNDING ORDER REPORT
APPENDIX IV TO EXHIBIT C-1
VERSION A - PRIOR TO INITIAL BANK ADVANCE DATE
[Date]

REQUEST TO

BALANCE

BALANCE

(From Current
Available Sources
Report)

RETAIL SOURCES

FUNDED
(Amounts from
Column B until
requests in Column
A are satisfied)

(B)

(e)

BE SATISFIED

(AI

-

$

Retail Request (Requested Cost Report Row B)

$

-

$
$

-

Retail Facility Availability

TO:rAL

f-----

-

$

RESORT SOURCES

-

$

BALANCE

REQUEST TO
BE SATISFIED

(From Current
Available Sources
Report)

(AI

Resort Request (Requested Cost Report Row E)

$

-

-

BALANCE
FUNDED
(Amounts from
Column B until
requests in Column
A are satisfied)

(Cl

$
$

Amount by which Liquidity Account balance exceeds $50,000,000

-

(B)

$

Resort Loss Proceeds Account balance
Resort Payment Account balance (as adjusted in the Current Available Sources Report)

$
$
$

$

Retail Loss Proceeds Account balance (to be Advanced only for Other Retail Costs)
Retail Payment Account balance (including interest income)

-

-

$
$

-

$
$

-

-

Bonded Condo Proceeds A=unt balance

$

-

Equity Funding Account balance
Second Mortgage Proceeds Account balance

$
$

-

$
$

-

Bank Proceeds Account balance

$

-

$

-

$

-

$

TOTAL

$

-

--

FONTAINEBLEAU RESORT AND CASINO
Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 29 of 50
LAS VEGAS, NV
ADVANCE REQUEST TRANSFER REPORT
APPENDIX V TO EXHIBIT C"1
VERSION A - PRIOR TO INITIAL BANK ADVANCE DATE
[Date]

RETAIL

AMOUNT

Cash Management Account (Requested Cost Report Row A)

-

$

Retail Payment Account (Requested Cost Report Row B less amounts listed above)

TOTAL

$
1-----------

$

RESORT

-

AMOUNT

Cash Management Account (Requested Cost Report Row C)

$

-

UC Reimbursement to Bank Revolving Facility (Requested Cost Report Row 0)

$

-

$

-

Resort Payment Account (Requested Cost Report Row E less amounts listed above)

TOTAL
Bank Proceeds Account (Total of Funding Order Report C less total of Funding Order Report Column A)

1---.

$

-

$

-

FONTAINEBLEAU RESORT AND CASINO
Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 30 of 50
LAS VEGAS, NV
REQUESTED COST REPORT
APPENDIX I TO EXHIBIT C-1
VERSION B - ON THE INITIAL BANK ADVANCE DATE
[Date]
RETAIL BUDGET
Cash Management Account Reimbursement for Other Retail Costs
Total Cash Management Account Reimbursement

L -____
(A)

~

RETAIL REQUEST

(B)

-

$
$

Retail Tenant Allowance
Retail Lease Commissions

$

-

~-------,-

$

RESORT BUDGET (INCLUDING ALL SHARED COSTS AND DEBT SERVICE)
Cash ,Management Account Reimbursement
Cash Management Account Reimbursement for Resort Project Costs
Total Cash Management Account Reimbursement

(C)

Debt Service
Debt Service - Bank Credit Facilities
Debt Service .. Second Mortgage Notes
Total Debt Service

(D)

Bank Revolving Credit Facility Reimbursement
(1)
Bank Revolving Credit Facilrty Advances made in respect of UCs
Total Bank Revolving Credit Facility Reimbursement

(E)

$
$

~.

__. _ -

-

$
..L- __..
$
....0.--------

--=--

$
..
"'"-._-----

..!..-._-----

Project Costs (without duplication with amounts above)
Tumberry West Construction
Insurance

$
Total Construction Costs

Rooms FF&E
Hotel and F&B Operating Equipment
Kitchen Equipment
Exterior Signage

-1-_----=-

-

$
$
$
$
$

-

-1-___
.---.:.....-

Common Area FF&E
Total Costed FF&E
Gaming FF&E
Entertainment
A&G and Facilities and IT
Total Other FF&E

$
$
$
$
i-"-.-------$

Pre-Opening I Working Capital
Fees I Permits I Taxes I Other
Condominium-Hotel Selling Expenses
Fees and Expenses

$
$

..

$
$

Subtotal
RESORT REQUEST (F)
(1) Only applicable to the extent that the Resort Request will not be satisfied by the Bank RevolVing FaCIlity

.

...::...-

$
---

$

-

Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 31 of 50
FONTAINEBLEAU RESORT AND CASINO
LAS VEGAS, NV
SHARED COST ALLOCATION REPORT
APPENDIX \I TO EXHIBIT C-1
VERSION B - ON THE INITIAL BANK ADVANCE DATE
[Date]

Total Shared Costs

Retail Lenders Shared Cost Commitment

(A)

Retail Shared Cost Percentage (1)

-

(B)

$

0.0%

Cumulative Retail Lenders Funding Requirement

(C)

$

-

Less: Retail Lender Funding to Date

(D)

$

-

(E)

$

Retail Lender Funding Required

,----

(1) Calculated as the amount of spending since the Initial Bank Advance Date on the Podium (as defined in the Detailed Remaining Cost Report. and including amounts reflected in this
Advance Request and including any applicable reimbursements to the Cash Management Account) divided by total bUdgeted spending following the Imtlal Bank Advance Date for the
Podium. multiplied by 100%

-

FONTAINEBLEAU RESORT AND CASINO
Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 32 of 50
LAS VEGAS, NV
CURRENT AVAILABLE SOURCES REPORT
APPENDIX III TO EXHIBIT C-1
VERSION B - ON THE INITIAL BANK ADVANCE DATE
[Date]

RETAIL SOURCES

CURRENT

LESS:

BALANCE

PAYMENTS(')

Retail Loss Proceeds Account balance (to be Advanced only for Other Retail Costs)

$

-

Retail Payment Account balance (including interest income)

$

-

Retail Facility Availability

$

-

$

-

CURRENT AVAILABLE RETAIL SOURCES

RESORT SOURCES

N/A

Resort Payment Account balance (inclUding interest income)
Interest Account balance (including interest income)
Amount by which the Liquidity Account balance exceeds $50,000,000
Bonded Condo Proceeds Account balance
Equity Funding Account balance
Second Mortgage Proceeds Account balance

-

N/A

$

-

-

$

$
$

$

-

LESS:
PAYMENTS!')

$

-

N/A

$
$

-

N/A

-

$

-

$

-

$

-

$
$
$

-

-

$

-

$
$
$

-

-

N/A

Delay Draw Term Loan Availability

$
$

-

N/A
N/A

-

N/A

$

--

$

$

N/A
N/A

$

(1) Payments (including Debt Services) to be made pursuant to previous Advance Requests from the Retail Payment Account, Resort Payment Account and
Interest Account), entered as negative amounts

-

N/A

-

$

$
$
$

-

-

-

$

CURRENT AVAILABLE RESORT SOURCES

$
$

-

$

Bank ReVOlving Availability

BALANCE

N/A
N/A

Bank proceeds Account balance

Completion Guaranty Availability
Liquidity Account balance (without duplication with any amounts listed above)

-

-

$

CURRENT
BALANCE

Retail Lender Funding Required (Shared Cost Allocation Report Row (E))
Resort Loss Proceeds Account balance

BALANCE

$

-

$

-

-

$

$

--

FONTAINEBLEAU RESORT AND CASINO
Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 33 of 50
LAS VEGAS, NV
FUNDING ORDER REPORT
APPENDIX IV TO EXHIBIT C-1
VERSION B - ON THE INITIAL BANK ADVANCE DATE
[Date]

RETAIL SOURCES

REQUEST TO

BALANCE

BALANCE

(From Current
Available Sources
Report)

FUNDED
(Amounts from
Column B until
requests in Column
A are satisfied)

(Bl

(C)

BE SATISFIED

(A)
-

$

Retail Request (Requested Cost Report Row B)
Retail Loss Proceeds Account balance (to be Advanced only for Other Retail Costs)

$

$

-

Retail Payment Account balance (including interest income)

$

-

$

-

Retail Facility Availability

$

-

$

-

$

-

$

TOTAL

-

$

RESORT SOURCES

REQUEST TO
BE SATISFIED

BALANCE
(From Current
Available Sources
Report)

(A)

Resort Request (Requested Cost Report Row F)

._----

-

BALANCE
FUNDED
(Amounts from
Column B until
requests in Column
A are satisfied)

(B)

(Cl

$

Retail Lender Funding Required (Shared Cost Allocation Report Row (E))

$

$

-

Resort Loss Proceeds Account balance

$

-

$

-

Resort Payment Account balance (as adjusted in the Current Available Sources Report)

$

-

Interest Account balance (as adjusted in the Current Available Sources Report)

$

-

$
$

-

-

Amount by which the Liquidity Account balance exceeds $50,000,000

$

$

-

Bonded Condo Proceeds Account balance

$

$

-

Equity Funding Account balance

$

-

$

Second Mortgage Proceeds Account balance

$

-

$

Bank Proceeds Account balance
Delay Draw Term Loan Availability (min $150,000,000 draws) (1)

$

Bank Revolving Facility Availability (excluding last $62,000,000 Available)
Completion Guaranty Availability (2)
Liquidity Account balance (without duplication with any amounts listed above)
Remaining Bank Revolving Credit Facility Availability

$

$
$
$
$

TOTAL

1--------$
$

$

-

-

$

-

$
$
$

-

$

-

(1) As long as Availability remains under the Delay Draw Term Loan, the Company may at its option choose to draw up to $150,000000 on the Bank Revolving Facility prior to

taking an Advance from the Delay Draw Term Loan The proceeds from any such Delay Draw Term Loan Advance Will go first to repay borrowing under the Bank Revolving
Facility
(2) Completion Guaranty Availability is not available to be used towards Debt Service

-

$

-

FONTAINEBLEAU RESORT AND Document 37-8 Entered on FLSD Docket 02/18/2010 Page 34 of 50
Case 1:09-md-02106-ASG CASINO
LAS VEGAS, NV
ADVANCE REQUEST TRANSFER REPORT
APPENDIX V TO EXHIBIT C-1
VERSION B - ON THE INITIAL BANK ADVANCE DATE
[Date]

RETAIL

AMOUNT

Cash Management Account (Requested Cost Report Row A)

$

-

Retail Payment Account (Requested Cost Report Row B less amounts listed above)

$

-

$

-

TOTAL

RESORT

AMOUNT

Cash Management Account (Requested Cost Report Row C)

$

-

Interest Account (Requested Cost Report Row D)

$

-

UC Reimbursement to Bank Revolving Facility (Requested Cost Report Row E)

$

-

$

-

f-,-.

$

-

$

-

Resort Payment Account (Requested Cost Report Row F less amounts listed above)
TOTAL
Bank Proceeds Account (Total of Funding Order Report C less total of Funding Order Report Column A)

FONTAINEBLEAU RESORT AND CASINO
Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 35 of 50
LAS VEGAS, NV
REQUESTED COST REPORT
APPENDIX I TO EXHIBIT C-1
VERSION C - DURING THE BANK FUNDING PERIOD AND PRIOR TO THE COMPLETION RESERVE CALCULATION DATE
[Date]
RETAIL BUDGET

(A)

Retail Tenant Allowance
Retaill.ease Commissions
RETAIL REQUEST

(B)

$
$

-

$
$

Cash Management Account Reimbursement for Other Retail Costs
Total Cash Management Account Reimbursement

-

$

RESORT BUDGET (INCLUDING ALL SHARED COSTS)
Cash Management Account Reimbursement
Cash Management Account Reimbursement for Resort Project Costs
Total Cash Management Account Reimbursement

$
(C)

Debt Service
Debt Service Bank CredIT Facilities
Debt Service - Second Mortgage Notes

-

~--

Total Debt Service

(D)

$
$
$

Bank Revolving Credit Facility Reimbursement
(1)
Bank Revolving Credit FacilITy Advances made in respect of UCs
Total Bank Revolving Credit Facility Reimbursement

(E)

$
$

-

.::.--

Project Costs (without duplication with amounts above)
Tumberry West Construction
Insurance

$
Total Construction Costs

Rooms FF&E
Hotel and F&B Operating EqUipment
KITchen EqUipment
Exterior Signage

-

r!---------=-$
-

Total Costed FF&E

$
$
$
$
$
$

Total Other FF&E

-

$
$
$
$

Common Area FF&E

Gaming FF&E
Entertainment
A&G and FaGilities and IT

Pre-Opening I Working CapITal
Fees I Pemnits I Taxes I Other

$
$
$

-

$
$

Condominium- Hotel Selling Expenses
Fees and Expenses

-

Subtotal
RESORT REQUEST (F)
(1) Only applicable to the extent that the Resort Request

W(II

not be satisfied by the Bank RevolVing Facllrty

$

-

--

Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 36 of 50
FONTAINEBLEAU RESORT AND CASINO
LAS VEGAS, NV
SHARED COST ALLOCATION REPORT
APPENDIX II TO EXHIBIT C-1
VERSION C - DURING THE BANK FUNDING PERIOD AND PRIOR TO THE COMPLETION RESERVE CALCULATION DATE
[Date]

Total Shared Costs

Retail Lenders Shared Cost Commitment

(A)

Retail Shared Cost Percentage (1)

-

(B)

$

0.0"10
1---

Cumulative Retail Lenders Funding Requirement

(C)

$

Less: Retail Lender Funding to Date

(D)

$

(E)

$

Retail Lender Funding Required

-

------

---_._--- ._-------._-_._-----_.
(1) Calculated as the amount of spending since the Initial Bank Advance Date on the Podium (as defined in the Detailed Remaining Cost Report, and including amounts reflected in this

Advance Request and including any applicable reimbursements to the Cash Management Account) divided by total budgeted spending following the Initial Bank Advance Date for the
Podium, mUltiplied by 100%

FONTAINEBLEAU RESORT AND CASINO
Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 37 of 50
LAS VEGAS, NV
CURRENT AVAILABLE SOURCES REPORT
APPENDIX III TO EXHIBIT C-1
VERSION C - DURING THE BANK FUNDING PERIOD AND PRIOR TO THE COMPLETION RESERVE CALCULATION DATE
[Date]

CURRENT

LESS:

BALANCE

RETAIL SOURCES

PAYMENTS!l)

Retail Loss Proceeds Account balance (to be Advanced only for· Other Retail Costs)

$

-

Retail Payment Account balance (including interest income)

$
$

-

$

-

$

Retail Facility Availability

CURRENT AVAILABLE RETAIL SOURCES

------$

RESORT SOURCES

N/A

Retail Lender Funding Required (Shared Cost Allocation Report Row (E))

$

-

Interest Account balance (including interest income)
Amount by which the Liquidity Account balance exceeds $50,000,000

$
$

-

Bonded Condo Proceeds Account balance

$

-

Equity Funding Account balance

-

Second Mortgage Proceeds Account balance

$
$

Bank Proceeds Account balance

$

-

Delay Draw Term Loan Availability

$
$
$
$

-

f----

$

$

-

$
$

-

-

$

-

-

$
$

-

$
$

-

$
$

-

$

-

N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A

-

-

-

BALANCE

N/A
N/A

$

--

(1) Payments (including Debt Services) to be made pursuant to previous Advance Requests from the Retail Payment Account, Resort Payment Account and
Interest Account), entered as negative amounts

-

-

-

$
$

CURRENT AVAILABLE RESORT SOURCES

-

$
$

LESS:
PAYMENTS(l)

Resort Loss Proceeds Account balance
Resort Payment Account balance (including interest income)

Completion Guaranty Availability
Liquidity Account balance (without duplication with any amounts listed above)

$

N/A

CURRENT
BALANCE

Bank Revolving Availability

BALANCE

$
$

$
$
$

-

-

._-

$

-

FONTAINEBLEAU RESORT AND CASINO
Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 38 of 50
LAS VEGAS, NV
FUNDING ORDER REPORT
APPENDIX IV TO EXHIBIT C-1
VERSION C - DURING THE BANK FUNDING PERIOD AND PRIOR TO THE COMPLETION RESERVE CALCULATION DATE
[Date]

RETAIL SOURCES

REQUEST TO

BALANCE

BALANCE

(From Current
Available Sources
Report)

FUNDED
(Amounts from
Column B until
requests in Column
A are satisfied)

IB\

IC\

BE SATISFIED

IA\

-

$

Retail Request (Requested Cost Report Row B)
Retail Loss Proceeds Account balance (to be Advanced only for Other Retail Costs)

$

Retail Facility Availability

-

$

Retail Payment Account balance (including interest income)

$

TOTAL

-

$

RESORT SOURCES

$

-

.-

BALANCE
(From Current
Available Sources
Report)

IA\

Resort Request (Requested Cost Report Row F)

$

._----_._-

-

$

BALANCE
FUNDED
(Amounts from
Column B until
requests in Column
A are satisfied)

IB\

ICI

-

Retail Lender Funding Required (Shared Cost Allocation Report Row (E»

$

Resort Loss Proceeds Account balance
Resort Payment Account balance (as adjusted

-

$

-

$

$
In

-

$

$

REQUEST TO
BE SATISFIED

-

$

-

$

the Current Available Sources Report)

-

$
$

-

$

-

Interest Account balance (as adjusted in the Current Available Sources Report)

$

Amount by which the Liquidity AccC)unt balance exceeds $50, 000, 000

$

Bonded Condo Proceeds Account balance

$

Equity Funding Account balance

$

-

$

-

Second Mortgage Proceeds Account balance

$

-

$

-

Bank Proceeds Account balance
Delay Draw Term Loan Availability (min $150,000.000 draws) (1)

$

-

$

-

$

-

$

Bank Revolving Facility Availability (excluding last $62,000,000 Available)

$

-

$

-

Completion Guaranty Availability (2)
Liquidity Account balance (without duplication with any amounts listed above)
Remaining Bank Revolving Credit Facility Availability

$
$
$

-

-

-

$
$
$

$

-

$

TOTAL

1--.

$

-

$

-

'---'--

(1) As long as Availability remains under the Delay Draw Term Loan, the Company may at its opi,on choose to draw up to $150,000,000 on the Bank Revolving Facility prior to

taking an Advance from the Delay Draw Term Loan

The proceeds from any such Delay Draw Term l.oan Advance will go first to repay borrowing under the Bank Revolving

Facility
(2) Completion Guaranty Availability is not available to be used towards Debt Service

-

FONTAINEBLEAU RESORT AND Document 37-8 Entered on FLSD Docket 02/18/2010 Page 39 of 50
Case 1:09-md-02106-ASG CASINO
LAS VEGAS, NV
ADVANCE REQUEST TRANSFER REPORT
APPENDIX V TO EXHIBIT C-1
VERSION C - DURING THE BANK FUNDING PERIOD AND PRIOR TO THE COMPLETION RESERVE CALCULATION DATE
[Date]

RETAIL

AMOUNT

Cash Management Account (Requested Cost Report Row A)

$

-

Retail Payment Account (Requested Cost Report Row B less amounts listed above)

$

-

TOTAL

~.

-

$

RESORT

AMOUNT

Cash Management Account (Requested Cost Report Row C)

$

-

Interest Account (Requested Cost Report Row D)

$

-

UC Reimbursement to Bank Revolving Facility (Requested Cost Report Row E)

$

-

Resort Payment Account (Requested Cost Report Row F less amounts listed above)

$

-

$

-

$

-

TOTAL
Bank Proceeds Account (Total of Funding Order Report C less total of Funding Order Report Column A)

FONTAINEBLEAU RESORT AND CASINO
Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 40 of 50
LAS VEGAS, NV
REQUESTED COST REPORT
APPENDIX I TO EXHIBIT C-1
VERSION 0 - COMPLETION RESERVE CALCULATION DATE AND SUBSEQUENT DATES

[Date]
RETAIL BUDGET
Cash Management Account Reimbursement for Other Retail Costs
Total Cash Management Account Reimbursement

...L.___
(A)

Retail Tenant Allowance
Retail Lease Commissions

-.L-_
$
$

RETAIL REQUEST

(B)

.-=---

-

$

RESORT BUDGET (INCLUDING ALL SHARED COSTS)
Cash Management Account Reimbursement
Cash Management Account Reimbursement for Resort Project Costs
Total Cash Management Account Reimbursement
Debt Service
(1)
Debt Service - Bank Credit Facilities (Accrued Through Opening Date)
Debt Service .. Second Mortgage Notes (Accrued Through Opening Date)

$
(C)

(1)

Total Debt Service

(D)

L.
$
$
$

--=---

.--

---

Project Costs (without duplication with amounts above)
Tumberry West Construction
Insurance

$
$
Total Construction Costs

Rooms FF&E
Hotel and F&B Operating EqUipment
Kitchen EqUipment
Exterior Signage

$
$
$
$
$
$

Common Area FF&E
Total Costed FF&E

$

Gaming FF&E

$

Entertainment
A&G and Facilities and IT

$
$
Total Other FF&E

$

-

-

.-=--

. -=---

Pre-Opening I Working Caprtal
Fees I Permits I Taxes I Other

$
$

-

Condominium-Hotel Selling Expenses
Fees and Expenses

$
$

-

Subtotal
RESORT REQUEST (E)

$
$

(1) To be entered only for the Advance Date which immediately precedes the Opening Date, and in an amount for all Debt Service accrued thrc
the Openrng Date Requested amounts will be transferred to the Interest Account regardless of the period in which they will become due ar
payable (in the case of Second Mortgage Notes Debt Service) Payments from the Interest Account following the Openrng Date Will be rna,
directly from the Interest Account and will not be included in subsequent Advance Requests

Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 41 of 50
FONTAINEBLEAU RESORT AND CASINO
LAS VEGAS, NV
SHARED COST ALLOCATION REPORT
APPENDIX II TO EXHIBIT C-1
VERSION D - COMPLETION RESERVE CALCULATION DATE AND SUBSEQUENT DATES
[Date]

Total Shared Costs

Retail Lenders Shared Cost Commitment

(A)

Retail Shared Cost Percentage (1)

(B)

$
0.0%

--._----Cumulative Retaill.enders Funding Requirement

(C)

$

Less: Retail Lender Funding to Date

(D)

$

(E)

$

.. -

Retail Lender Funding Required

-----_._-._-(1) Calculated as the amount of spending since the Initial Bank Advance Date on the Podium (as defined in the Detailed Remaining Cost Report. and including amounts reflected in this

Advance Request and including any applicable reimbursements to the Cash Management Account) divided by total bUdgeted spending following the Initial Bank Advance Date for the
Podium, multiplied by 100%

Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 42 of 50
FONTAINEBLEAU RESORT AND CASINO
LAS VEGAS, NV
CURRENT AVAILABLE SOURCES REPORT
APPENDIX 1\1 TO EXHIBIT C-1
VERSION D - COMPLETION RESERVE CALCULATION DATE AND SUBSEQUENT DATES
[Date]

CURRENT

Retail Loss Proceeds Account balance (to be Advanced only for Other Retail Costs)

-

$

Retail Facility Availability

PAYMENTS!l)

$

Retail Payment Account balance (including interest income)

LESS:

BALANCE

RETAIL SOURCES

$

CURRENT AVAILABLE RETAIL SOURCES

-

RESORT SOURCES

Retail Lender Funding Required (Shared Cost Allocation Report Row (El)

$
$

$

-

$
$

Debt
Service under the Credit Agreement
Bonded Condo Proceeds Account balance

$
$

-

Equity Funding Account balance

$

Second Mortgage Proceeds Account balance

$

Bank Proceeds Account balance
Delay Draw Term Loan Availability

$
$

Bank Revolving Facility Completion Reserve Amount

$

Completion Guaranty Availability
Liquidity Account Remainder (without duplication with any amounts listed above)

$
$

$

$

-

$
$

-

-

$

-

N/A

$
$

-

N/A
N/A

-

N/A

$
$

-

-

N/A
N/A

$
$

-

N/A

$

-

N/A

$

-

N/A

$

-

N/A

$

-

-

$

-

-

-

-

$

(1) Payments (including Debt Services) to be made pursuant to previous Advance Requests from the Retail Payment Account, Resort Payment Account and
Interest Account), entered as negative amounts

BALANCE

N/A

-

CURRENT AVAILABLE RESORT SOURCES

-

N/A

$

$

-

LESS:
PAYMENTS!l)

$

1--------

-

$

$

Interest Account balance (including interest income)

Residual Bank Revolving Facility Completion Reserve Amount

$

N/A

CURRENT
BALANCE

Resort Loss Proceeds Account balance
Resort Payment Account balance (including interest income)

$

-

-

$

-

N/A
$

1---

BALANCE

FONTAINEBLEAU RESORT AND CASINO
Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 43 of 50
LAS VEGAS, NV
FUNDING ORDER REPORT
APPENDIX IV TO EXHIBIT C-1
VERSION D - COMPLETION RESERVE CALCULATION DATE AND SUBSEQUENT DATES
[Date]

RETAIL SOURCES

REOUESTTO

BALANCE

BALANCE

(From Current
Available Sources
Report)

FUNDED
(Amounts from
Column B until
requests in Column
A are satisfied)

(B)

(C)

BE SATISFIED

(AI
$

Retail Request (Requested Cost Report Row B)

-

Retail Payment Account balance (including interest income)

$
$

-

Retail Facility Availability

$

Retail Loss Proceeds Account balance (to be Advanced only for Other Retail Costs)

TOTAL

f-----

-

$

RESORT SOURCES

$

REOUESTTO
BE SATISFIED

-

-

-----

$
$
$

-

-

$

-

BALANCE
(From Current
Available Sources
Report)

(A)

Resort Request (Requested Cost Report Row E)

BALANCE
FUNDED
(Amounts from
Column B until
requests in Column
A are satisfied)

(B)

(e)

$

-

Retail Lender Funding Required (Shared Cost Allocation Report Row (E»)

$

-

$

Resort Loss Proceeds Account balance

-

$

Resort Payment Account balance (as adjusted in the Current Available Sources Report)

$
$

Interest Account balance (as adjusted in the Current Available Sources Report)

$

-

$
$

-

-

-

-

$

Debt
Service under the Credit Agreement

$

Bonded Condo Proceeds Account balance

$

Equity Funding Account balance

$

-

$
$

Second Mortgage Proceeds Account balance

$

-

$

Bank Proceeds Account balance
Delay Draw Term Loan Availability (min $150,000,000 draws) (1)

$

-

$

-

$
$

Bank Revolving Facility Availability (up to $62,000,000 Available)

$

-

Completion Guaranty Availability (2)
Liquidity Account Remainder (without duplication with any amounts listed above)
Residual Bank Revolving Facility Completion Reserve Amount

$
$
$

-

TOTAL

$-

-

$

-

$
$
$
$

$

(1) As long as Availability remains under the Delay Draw Term Loan, the Company may at its option choose to draw up to $150,000,000 on the Bank Revolving Facility prior to
taking an Advance from the Delay Draw Term Loan The proceeds from any such Delay Draw Term Loan Advance will go first to repay borrowing under the Bank Revolving
Facility
(2) Completion Guaranty Availability is not available to be used towards Debt Service

-

-

--

-

FONTAINEBLEAU RESORT AND Document 37-8 Entered on FLSD Docket 02/18/2010 Page 44 of 50
Case 1:09-md-02106-ASG CASINO
LAS VEGAS, NV
ADVANCE REQUEST TRANSFER REPORT
APPENDIX V TO EXHIBIT C-1
VERSION 0 - COMPLETION RESERVE CALCULATION DATE AND SUBSEQUENT DATES
[Date]

RETAIL

AMOUNT

Cash Management Account (Requested Cost Report Row A)

$

-

Retail Payment Account (Requested Cost Report Row B less amounts listed above)

$

-

$

- --

TOTAL

RESORT

AMOUNT

Interest Account (Requested Cost Report Row 0)

$

-

Cash Management Account (Requested Cost Report Row C)

$

-

Resort Payment Account (Requested Cost Report Row E less amounts listed above)

$

-

$

-

$

-

TOTAL
Bank Proceeds Account (Total of Funding Order Report C less total of Funding Order Report Column A)

Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 45 of 50

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Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 46 of 50

fUNTAINEBlEAURESORT ANDCASHW

LA.S VEGAS, IN
OETAJ.LfD REMAININO CO:5T REPORT
APPEN{}lX\lIlTOEXHIBITC·1

[DATE]

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Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 47 of 50

fONTAiNUlLEAU J<ESORI AND CASINO
~V£GAS,"N

DfTAJLEOREMAJNI"G COST REPORT
APPENDIX VII. TO EXHIBIT C·1

ro.'olfl

ClOl-ll'OGREIJORT
&LlOOET

I
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PRIORREs.oR:T &UOOET
CURRHllP1:PJOO
(0 fROM PRKlR loloONTHI &UOOET ~flo:::-,lJO+jS

TODAT€
(GFROlol PRJORWOfolTHI

''I

CURREIojTPfRJOO
COMPt-ElfD,1I

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OATE(c';&G)

"" COMPlElfO IG.'O)

1',

(6«;"0)

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Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 48 of 50

fONTAINE8LEAU RESORT AND CASINO
LAS VEGAS, KV
REMAINING COST REPORT
APPENDIX VIM TO 0:11181T C·1
[OATEI

CLOSING RESORT

Of SCRIPTION

BUDGET

I FRO~B~:~TMONTHI
110
PRIOR RESORT

,

I

A

111.03I1,&M

,

1753,634,074

1110311,fW

,

,

40,000,000

1,~,&73.113<l

1,>004,6B,IIH

73,7U.2~7

n,7U.2~7

Ho(.I.r>dF'B0p"I.-1I~£q<Jlpm411'1

4I1,c.&1,1157

411,O./l1,1157

22,2W,24O

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II:
h

o.trl s--,.Iu AeenM'<:l lhrough Sclwd'-""t<l
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TOTAL CO"'-PLETED TO

TO DATE

lK FROM PRIOR ~ONTH)

DATE IG-J-K)

,

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'::::li:-~"1,1 \:
$

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CURRfNTPfRIOD
COMPLEHOTO DATE (
LaM)

BALANCE TO
COMPLETEI04<- Nl

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'''
4i,n8,52l

TOTAL COMPLETED TO
DArE (E_faO)

I:

49,Ol1.llST

,
,
,

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111,0Ji,&M

-tO,ooo,ooo

CURRENT PERIOD

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,

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1Ilo04,&73,1134

PREVlQUSCOMPLETED
TO DATE

RESORT BUDGET

!I'

"'-O~~~~~ONS

8

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CURRENT PfRIOO

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'

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IN BALANCE 1ES. ADjUSTMENTS

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""

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il11,039,WD

~OOOO,OOO

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100519062
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(1) To

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fJl.ld ocr! wtihout oI'H~'n~RIIJ'n'i'

(2)lob.l ....do-.J\ ..

ltlofo~glr.CIol'r,gOI!.

Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 49 of 50

FONTAINEBLEAU RESORT AND CASINO
LAS VEGAS, NV
RETAIL REMAINING COST REPORT
APPENDIX IX TO EXHIBIT C-1
[DATE]

CLOSING RETAIL
BUDGET
(A)

DESCRIPTION

RETAIL BUDGET
(B)

RETAIL BUDGET SPENT
TO DATE
(C)

$

56,000,000

$

-

$

6,000,000

$

-

$

62,000,000

Retail Tenant Allowance

$

56,000,000

$

56,000,000

$

Retail Lease Commissions

$

6,000,000

$

6,000,000

$

62,000,000

$

62,000,000

TOTAL RETAIL REMAINING COSTS

RETAIL BUDGET
REMAINING COSTS
(D = B - C)

Case 1:09-md-02106-ASG Document 37-8 Entered on FLSD Docket 02/18/2010 Page 50 of 50

FONTAINEBLEAU RESORT AND CASINO
LAS VEGAS, NV
IN BALANCE REPORT
APPENDIX X TO EXHIBIT C-1
[DATE]

DESCRIPTION

IN BALANCE TEST

AVAILABLE FUNDS
Projected Interest Income

$

(1)

73,717,616

Anticipated Bonded Condo Deposits

$

75,000,000

Equity Funding Account

$

314,000,000

Cash Management Account

$

6,000,000

Second Mortgage Proceeds Account

$

675,000,000

Bank Proceeds Account

$

700,000,000

Delay Draw Term Loan Availability

$

350,000,000

Bank Revolving Availability, Minus $40,000,000

$

760,000,000

Debt Sevlce Commitment Portion

$

Cash Support Amount

$

100,000,000
83,000,000

-

Retail Lenders Shared Cost Commitment (Less Advances Made for Shared Costs)

$

Cash Balance in the Resort Payment Account

$

.

Cash Balance in the Interest Account

$

.

Cash Balance in the Resort Loss Proceeds Account

$

-

TOTAL AVAILABLE FUNDS

$

3,136,717,616

$

(3,086,717,516)

LESS: TOTAL
Remaining Costs (In Balance Test Adjustments Total from the Remaining Cost Report)

IN BALANCE POSITIVE I (NEGATIVE)
(1) Anticipated interest income on all Resort accounts

$

50,000,100

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 1 of 40

Appendix 11
to Advance Request
Lien Release Summary - Master List
Waivers received for work billed through

Pavment Application Reference

I Contractor / Subcontractor
I
!

,

Contractor /
Subcontractor #

Project Entities
Advance Request #

Date

' __

Waiver Amount
Conditional
(Current Period)

Notes

,

I
,

I

,

I
I

W02-WEST 1CDG 1\400185305.9

-1-

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 2 of 40

Appendix 12
Title Insurance Endorsement Chart

i

I

Date of Advance Request

Advance Request No.

CLTA 122 Endorsement
Received for Trustee

CLTA 122 Endorsement
Received for Bank Agent

I

I

I

I

!
I

I

I

I

i
!

I

I

I
!

;

I

I

I

I
I
W02-WEST lCDGl14001853059

-1-

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 3 of 40

Appendix 13
Inventory of Unincorporated Materials
Address of
Location of Dffsite Stored
Materials (if
available)

Contractor /
Subcontractor/Supplier
Name
I

(Column D)
Amount shown in
Column "G" on
Previous
Application

Description of
Stored Materials

(Column E)
Stored Materials
(Amounts
Requested this
Advance Request)

I

(Column F)
I (Column G)
Stored Materials I Total Materials
Presently Stored
which were put in
place This Period .
(D+E-F=G)

I

I

J
I

I
I

TOTALS

W02·WEST 1COG 1\400185305.9

I

-1-

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 4 of 40

Appendix 16
to Advance Request
Material Project Documents entered into by the Project Entities from
date of previous Advance Request to the Certificate Date.

W02-WEST ICDG 1\4001853059

-1-

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 5 of 40

Appendix 17
to Advance Request

List of Scope Changes

W02-WEST ICDG 1\4001853059

-1-

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 6 of 40

EXHIBIT T
FLOW OF FUNDS MEMO
See attached.

Exhibit T- 1

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 7 of 40

$675,000,000 PrincipalAmount of 10.25% Second Mortgage Notes Due 2015
of
Fontainebleau Las Vegas Holdings, LLC and
Fontainebleau Las Vegas Capital Corp.

$1,850,000,000 Senior Secured Credit Facility
of
Fontainebleau Las Vegas, LLC and
Fontainebleau Las Vegas II, LLC
$375,000,000 Common Equity Private Placement
of
Fontainebleau Equity Holdings, LLC
$190,000,000 Payment-In-Kind Preferred Private Placement
of
Fontainebleau Resorts, LLC
$315,000,000 Senior Secured Loan
of
Fontainebleau Las Vegas Retail, LLC

$85,000,000 Mezzanine Loan
of
Fontainebleau Las Vegas Retail Mezzanine, LLC
$630,000,000 Senior Secured Credit Facility
of
Fontainebleau Florida Hotel, LLC and
Fontainebleau Florida Tower 2, LLC
$40,000,000 Mezzanine Loan
of
Fontainebleau Florida Holdings, LLC
FLOW OF FUNDS MEMO
Closing Date: June 6, 2007

LA\1725490 18

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 8 of 40

This Flow of Funds Memo memorializes the funds transfer and other procedures
to be followed in connection with the closing of the transactions described in the agreements
listed in Schedule I hereto, collectively referred to as the "Transaction Documents." Nothing in
this Flow of Funds Memo is intended to amend, supersede or otherwise modify the terms and
conditions of any of the Transaction Documents, or any of the agreements, certificates or
instruments executed and delivered in connection with the Transaction Documents or as required
or contemplated thereby or hereby. This Flow of Funds Memo is attached as Exhibit T to the
Disbursement Agreement (defined in Schedule I hereto).
The following Schedules are attached to this Flow of Funds Memo:
Schedule

Purpose

I
II

List of Transaction Documents
Transfers to be made from the FB Resorts Closing Account
Transfers to be made by Bank of America
Transfers and Payments to be made by LandAm
Transfers to be made by Bank of America (after Upflow from FB
Las Vegas Closing Account)
Transfers to be made from the FB Las Vegas Closing Account
Transfer to be made by Bank of America to Repay Intercompany
Debt (the "Upflow’)
Transfers to be made by Bank of America
Transfers and Payments to be made by LandAm
Transfers to be made from the FB Florida Hotel Closing Account
Transfers to be made by Bank of America
Transfers and Payments to be made by LandAm (Orlando account)
Transfers and Payments to be made by LandAm (Sunrise account)
Account Information for Permanent Accounts and Accounts required
under the Disbursement Agreement
Parties and Contact Persons
List of Miami Subcontractors to be Paid by LandAm
Transfers to be Made by Bank of America to Pay Equity Financing Fees
(delivered separately, not attached hereto)

A
B
C
III
A.1
A.2
B
IV
A
B
C
V
VI
VII
VIII

The closing of the transactions contemplated by the Transaction Documents will occur on
Jnne 6, 2007 (the "Closing Date") beginning at 8:00 aom., New York City time, at the offices of
Latham & Watkins LLP, 6.33 W. 5th Street, Los Angeles, California 90071.
Those participating in the closing by telephone can dial-in beginning at 8:00 a.m. using
the following number:
Toll Free: [phone]
U.S. Toll: [phone]
Access Code: 115764

LA\172549018

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 9 of 40

The following entities that are parties to the Transaction Documents are described
herein as:
Fontainebleau Las Vegas, LI.,C and Fontainebleau Las Vegas II, LLC are referred
to collectively as "FB Las Vegas."
Fontainebleau Las Vegas Holdings, LLC and Fontainebleau Las Vegas Capital
Corp. are referred to collectively as "FB Las Vegas Holdings."
Fontainebleau Equity Holdings, LLC is referred to as "FB Equity."
Fontainebleau Resorts, LLC is referred to as "FB Resorts."
Fontainebleau Las Vegas Retail, LLC is referred to as "FB Retail."
Fontainebleau Las Vegas Retail Mezzanine, LLC is referred to as "FB Las Vegas
Mezzanine."
Fontainebleau Las Vegas Retail Parent, LLC is referred to as "FB Retail Parent."
Fontainebleau Florida Hotel, LLC and Fontainebleau Florida Tower 2, LLC are
referred to collectively as "FB Miami."
Fontaineblean Florida Holdings, LLC is referred to "FB Florida Holdings."
All of the entities referred to above are referred to collectively as the
"Fontainebleau Affiliates."
Bank of America, N.A., as Administrative Agent under the Miami Mezzanine
Credit Agreement, the Miami Project Credit Agreement and the Las Vegas Credit
Agreement, Bane of America Securities LLC, as representative of the initial
purchasers of the Second Mortgage Notes, Lehman Brothers Holdings Inc., as
agent under the Retail Credit Agreement and Retail Mezzanine Credit Agreement,
are collectively referred to as the "Investor Parties."
Wells Fargo Bank, N.A., when acting in its capacity as the escrow agent for
receipt of equity proceeds is referred to as the "Equity Proceeds Agent."
Bank of America, N.A., when acting in its capacity as the Disbursement Agent
under the Disbursement Agreement is referred to as the "Disbursement Agent."
Bane of America Securities LLC, when acting as the representative of the initial
purchasers of the Second Mortgage Notes is referred to as the "Initial
Purchaser."

2
LA\172549018

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 10 of 40

TRANSACTIONS SUMMARY
Capital Raising Transactions
1. Class A Equity Private Placement: FB Equity has entered into the Class A Subscription
Agreements with accredited investors under which it has agreed to sell equity units in FB
Equity valued at $125,000,000 (the "Class A Equity Offering"). The aggregate subscription
amount of $125,000,000 is held in a separate account with the Equity Proceeds Agent (the
"Class A Proceeds Account") to be disbursed on the Closing Date.
2. PIK Preferred Private Placement: FB Resorts has entered into the PIK Subscription
Agreements with accredited investors under which it has agreed to sell PIK preferred units in
FB Resorts valued at $190,000,000 (the "PIK Offering"). The aggregate subscription amount
of $190,000,000 is held in a separate account with the Equity Proceeds Agent (the "PIK
Proceeds Account") to be disbursed on the Closing Date.
3. PBL Equity Private Placement: FB Equity has entered into the PBL Subscription
Agreement and PBL Securities Purchase Agreement, with Publishing and Broadcasting
Limited, an accredited investor, under which it has agreed to sell to PBL or an affiliate of PBL
20,833,333 Class B Units in FB Equity and 2,439 Class B membership units in Fontainebleau
Equity Holdings Voteco, LLC for an aggregate purchase price of $250,000,000 (the "PBL
Offering"). The subscription amount of $250,000,000 is held in a separate account with Bank
of America (the "PBL Account") to be disbursed on the Closing Date°
4. Offerin~ of Second Mort~ao~e Notes: FB Las Vegas Holdings will consummate the
offering (the "Second Mortgage Notes Offering") of $675,000,000 aggregate principal
amount of 10.25% Second Mortgage Notes due 2015 (the "Second Mortgage Notes") under
Rule 144A and Regulation S of the Securities Act of 1933, as amended, pursuant to the
Purchase Agreement and the Indenture.
5. Las Vegas Retail Loan: FB Retail will enter into the Loan Agreement under which
Lehman Brothers Holdings, Inc. agrees to provide up to $315,000,000 (the "Retail Loan"). On
the Closing Date, FB Retail will receive $120,000,000 in net proceeds from the portion of the
Retail Loan that will be funded on the Closing Date.
6. Las Vegas Retail Mezzanine Loan: FB Retail Mezzanine will enter into the Retail
Mezzanine Loan Agreement under which it will receive $85,000,000 (the "Retail Mezzanine
Loan") on the Closing Date. On the Closing Date, FB Retail Mezzanine will receive the entire
amount of the Retail Mezzanine Loan.
7. Las Vegas Credit Facility: FB Las Vegas will enter into a senior secured credit facility in
the amount of $1,850,000,000 (the "Las Vegas Credit Facility") under which FB Las Vegas
will receive a $700,000,000 term loan on the Closing Date.

LA\1725490 18

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 11 of 40

8. Miami Mezzanine Loan: FB Florida Holdings will enter into the Miami Mezzanine Loan
Agreement, under which it will receive up to $40,000,000 (the "Miami Mezzanine Loan") on
the Closing Date.

9. Miami Construction and Term Loans: FB Miami will enter into a ~enior secured credit
facility in the amount of $630,000,000 (the "Miami Credit Facility") under which FB Miami
will receive $220,000,000 from the Term Loans and $60,829,289.64 from the Construction
Loan on the Closing Date.
Debt Repayments, Equity Unit Retirement, Capital Contributions and Related Expenses
10. Repayment of Soffer Bridge Note: FB Resorts will pay $44,854,159.94 to fully discharge
the debt incurred pursuant to the Promissory Note, dated as of April 25, 2007 (the "Soffer
Bridge Note"), among FB Resorts and Jeffrey Softer and Jacquelyn Soffer.
11o Repayment of Pru Mezzanine Debt: FB Resortswill pay on behalf of Fontainebleau
Resort Holdings, LLC, $208,659,305.57 to fully discharge the debt incurred pursuant to the
Loan Agreement, dated as of July 13, 2005 (the "Pru Mezzanine Agreement"), between
Fontainebleau Resort Holdings, LLC and the Prudential Insurance Company of America.
12. Las Vegas Equity Contribution: FB Resorts will transfer $370,000,000 to the FB Las
Vegas Closing Account as an equity contribution to FB Las Vegas. This amount will be further
distributed from the FB Las Vegas Closing Account by Bank of America and LandAm in the
mauner described on Schedule III hereto (including the payment of debt under the Existing
BofA Credit Agreement allocated to Las Vegas, payment of title premiums and recording fees,
payment of professional fees and expenses, contractor fees, transfer to FB Resorts for
redemption of the Softer preferred unit described in # 14 below and funding of accounts under
the Disbursement Agreement).
13. Miami Equity Contribution: FB Resorts will transfer $60,000,000 to the FB Florida
Hotel Closing Acconnt as an equity contribution to FB Miami. This amount will be further
distributed from the FB Florida Hotel Closing Account by Bank of America and LandAm in the
manner described on Schedule IV hereto (including the payment of debt under the Existing
BofA Credit Agreement allocated to Miami, payment of title premiunas and recording fees,
payment of professional fees and expenses and payment of subcontractors’ fees).
14. Redemption of Preferred Unit: FB Las Vegas Holdings will transfer $45,812,957.27 to
FB Resorts to retire intercompany debt and to permit FB Resorts to redeem the Class A
Preferred Unit held by Jeffrey Softer dated as of January 20, 2006 (the "Preferred Unit"). Of
this amount, a $30,000,000 portion shall be directed to Deutsche Bank Trust Company
Americas by FB Resorts as cash collateral for a $50,000,000 letter of credit to be issued in
favor of Bank of America as support for a completion guaranty,.

I,A\172549018

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 12 of 40

Establishment of the Closin~ Day Accounts

To facilitate the foregoing transactions, the following Closing Day Accounts have been
established in the names listed below and with the persons described below in order to receive the
funds specified in this Flow of Funds Memo and to disburse such funds in accordance with this
Flow of Funds Memo. Each of the Closing Day Accounts will be closed when the funds contained
therein have been disbursed.
Account Number

Resorts Closing Account
~held in the name of FB Resorts)

Wire Instructions

#1233058189

Bank of America, N.A.
Account Name: Fontainebleau Resorts,
LLC Closing Account FBO Bank of
America, N.A.
Account Number: 1233058189
ABA: 026009593
Attn: Diane Dycus
Bank of America, N oA.
Account Name: Fontainebleau Las Vegas
Holdings, LLC Closing Account FBO
Bank of America, N.A.
Account Number: 1233058429
ABA: 026009593
Attn: Diane Dycus
Bank of America, N.A.
Account Name: Fontainebleau Florida
Hotel Properties, LLC Closing Account
FBO Bank of America, NoA.
Account Number: 1233058202
ABA: 026009593
Attn: Diane Dycus
Wells Fargo Bank, N.A.
ABA # 121000248
Acct #:0001038377
Acct Name: Corporate Trust Clearing
F/F/C Acct #:22334600
~,ttn: Renee Kuhl
3ank of America. N.A.
ABA#: 026009593
Account Name: PBL Finance
A/C#: 6550989432

-FB Las Vegas Holdings Closing
Account (held in the name of
FB Las Vegas Holdings)

#1233058429

FB Florida Hotel Closing
Account (held in the name of
FB Florida Hotel Properties)

#1233058202

Class A Proceeds Closing
Account (held in the name of
FB Equity)

PBL Closing Account (held in
the name of PBL or its
designee)

PIK Proceeds Closing Account
(held in the name of FB Resorts)

LA\1725490 18

#22334600

#6550989432

#22334500

Wells Fargo Bank, N.A.
ABA #121000248
Acct #:0001038377
Acct Name: Corporate Trust Clearing
F/F/C Acct #:22334500
Attn: Renee Kuhl

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 13 of 40

In addition, the following accounts will be used by LandAm to receive and
disburse closing funds for the FB Resorts, FB Las Vegas and FB Miami transactions:
Wire Instructions

Account Number
LandAm Closing
Account (Orlando)

LandAm Closing
Account (Sunrise)

WACHOVIA BANK, N.A.
201 South Jefferson Street
Roanoke, VA 2401 l
ABA#: 051400549
Acct#: 2000001201291
To the Account of:
LAWYERS TITLE INSURANCE CORP.
Contact: LANDAM CS
[phone]
Jared Heal¥
Wachovia
20 North Orange Avenue
Orlando, FL 32801
ABA#: 051400549
Acct#: 2000027521162
Acct Name: LandAmerica Financial Group

#2000001201291

#2000027521162

6
LA\1725490 18

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 14 of 40

Overall Funding Sources
The funds for the foregoing transactions will be obtained from the following
sources"

The receipt by FB Las Vegas Holdings of $658,125,000 consisting of the
1.
net proceeds from the Second Mortgage Notes Offering.
2. The receipt by FB Las Vegas of $700,000,000 consisting of the proceeds
of the Las Vegas Credit Facility.
The receipt by FB Resorts of $190,000,000 consisting of the proceeds of

o

the PIK Offering.
4. The receipt by FB Equity of $125,000,000 consisting of the proceeds of
the Class A Equity Offering.
o

The receipt by FB Equity of $250,000,000 consisting of the proceeds of

the PBL Offering.
o

The receipt by FB Retail of $120,000,000 consisting of the proceeds of the

Retail Loan.
7. The receipt by FB Retail Mezzanine of $85,000,000 consisting of the
proceeds of the Retail Mezzanine Loan.
8. The receipt by FB Miami of $280,829,289.64 consisting of the net
proceeds of the Miami Credit Facility.
9. The receipt by FB Florida Holdings of $28,800,000 consisting of the net
proceeds of the fully-funded Miami Mezzanine Loan.
The total cash funding to be received by the Fontainebleau entities listed above on
the Closing Date is $2,437,754,289.64.

7
LA\172549018

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 15 of 40

Overall Fundin~ Uses
The funds described in "Overall Funding Sources" will be used as follows:
1. An aggregate amount of $658,125,000 will be deposited directly by the
Initial Purchaser into the Second Mortgage Proceeds Account at Wells Fargo.
2. An aggregate amount of $700,000,000 will be deposited directly by Bank
of America into the Bank Proceeds Account.
All remaining amounts will be used to make the payments described in
3.
Schedules lI, III and IV on the Closing Date, including $197,899,087.84 which will be deposited
~irectly by Bank of America into the FB Resorts Restricted Cash Account, the FB Resorts Cash
Account, the FB Las Vegas Liquidity Reserve Account, the FB Las Vegas Cash Management
Account, the FB Las Vegas Resort Payment Account, the FB Las Vegas Equity Funding
Account, and the FB Florida Cash Management Account.

8
LA\ 1725490 18

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 16 of 40

ORDER OF EVENTS IN CONNECTION WITH THE CLOSING
All times indicated are Eastern Daylight Time and on the Closing Date unless
otherwise indicated. All funds transferred are in immediately available funds. Where any party
confirms its conditions are satisfied, it excludes items which are scheduled to occur later in the
list of events set forth below:
Events Prior to the Closing
1. On May 24, 2007, pricing of the Second Mortgage Notes occurred
pursuant to the Purchase Agreement.
2. On May 29, 2007, the Closing Day Accounts were established at the
Equity Proceeds Agent.
3. On June 1, 2007, PBL executed and delivered the PBL Subscription
Agreement for the PIK.
4. On June 1, 2007, Bank of America confirmed that the PBL Account
contained $250,000,000.
On June 1, 2007, the various investors under the Class A Subscription
5.
Agreements and the PIK Subscription Agreements executed and delivered signed copies of the
Class A Subscription Agreement and PIK Subscription Agreement.
6.
Bank of America.

On or before June 4, 2007, the Closing Day Accounts were established at

On June 5, 2007, the Equity Proceeds Agent confirmed that the Class A
7.
Proceeds Account contained $125,000,000 and that the PIK Proceeds Account contained at least
$190,000,000.
On or before June 5, 2007, the following recordable instruments were
8.
delivered to LandAm for recordation in the official records of Clark County, Nevada (in the
order set forth below), and LandAm signed a title instruction letter in favor of the Disbursement
Agent, requesting the recordation of the following documents in the order set forth below:

a)
b)

c)
d)
e)

g)
i)

J)

k)

REA
Memo of Master Lease
Memo of Retail Intercreditor Agreement
New Bank Deed of Trust
Retail Deed of Trust
Retail Assignment other
Retail UCC
Second Mortgage Deed of Trust
Memo of Affiliate Lease
SNDA
Reconveyance of Deed of Trust by Las Vegas
9

LA\ 1725490.18

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 17 of 40

l)

Reconveyance of Deed of Trust by Las Vegas II

On or before June 5, 2007, the following recordable instruments were
9.
delivered to LandAm for recordation in the official records of Miami Dade County, Florida (in
the order set forth below) and LandAm signed a title instruction letter in favor of Bank of
America, N.A., as Administrative Agent under the Miami Project Credit Agreement:
Amended and Restated Mortgage
a)
Amended and Restated Tower 3 Mortgage
b)
Certain Notices of Termination and Commencement
c)
10. On or before June 6, 2007, PBL executed and delivered the PBL Securities
Pnrchase Agreement and Subscription Agreement for the purchase of Class B Units.
11. On or before June 6, 2007, the follo~ving instructions were provided to
Bank of America to pay:
a)
b)

c)

from FB Resorts, FB Las Vegas and FB Miami to make the payments on
Schedules II.A., II.C, III.A and IV.A
from Jeffrey Soffer (for bridge loan and preferred unit) to pay Deutsche
Bank with proceeds from the Preferred Unit on Schedule II.C
from PBL to fund FB Resorts Closing Account

Events at the Closin~ At the Closing, the following events shall occur in the following
sequence:

EXCEPT AS OTHERWISE INDICATED, ALL TRANSACTIONS AT THE CLOSING
ARE DEEMED TO TAKE PLACE SIMULTANEOUSLY, AND NO TRANSACTION SHALL
BE DEEMED TO HAVE BEEN COMPLETED AND NO DOCUMENT SHALL BE DEEMED
TO HAVE BEEN DELIVERED UNTIL ALL SUCH TRANSACTIONS ARE COMPLETED
AND ALL SUCH DOCUMENTS DELIVERED.
12~ At approximately 8:00 a.m. the Retail Lender shall transfer $210,500,000
to LandAm to disburse in accordance with the instructions provided by the Retail Lender to
LandArn, which shall include an instruction to disburse $205,000,000 to the FB Resorts Closing
Account upon confirmation of certain closing conditions by the Retail Lender.
13o

On the Closing Date, the following confirmations were made:

(a) At approximately 8:00 a.m. the Fontainebleau Affiliates
confirmed that all conditions under the Transaction Documents have been satisfied
or waived and that they are ready to execute and deliver the Transaction
Documents and are ready to release their signatures and consummate the
transactions contemplated thereby.
(b) At approximately 8:01 Jeffrey Soffer shall direct that of the
$45,812,957.27 owed to him to redeem the Preferred Unit (i) $30,000,000 of the

10
LA\172549018

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 18 of 40

amount shall be paid to Deutsche Bank Trust Company and (ii) the remaining
$15,812,957.27 shall be paid to him.
(c) At approximately 8:02 a.m. PBL confirmed that all
conditions contained in the Securities Purchase Agreement have been satisfied or
waived and that PBL is ready to consummate the PBL Offering.

(d) At approximately 8:04 a.m. the Placement Agent confirmed
that all conditions under the Subscription Agreements have been satisfied or
waived and that it is ready to consummate the Class A Equity Offering and the PIK
Offering.
(e) At approximately 8:06 a.m. Bank of America confirmed that
it has received written instructions from PBL authorizing the release of the funds in
the PBL Closing Account to FB Equity.
(f)
At approximately 8:08 a.m. the Equity Proceeds Agent
confirmed that it has received joint written instructions authorizing the release of
the funds in the Class A Proceeds Closing Acconnt to FB Equity.
(g) At approximately 8:10 a.m. the Equity Proceeds Agent
confirmed that it has received joint written instructions authorizing the release of
the funds in the PIK Proceeds Closing Account to FB Resorts.
(h) At approximately 8:12 a.m, Deutsche Bank Trust Company
Americas confirmed that all conditions to issuing the $50,000,000 letter of credit to
Bank of America as Disbursement Agent and in favor of Bank of America and the
Trustee have been satisfied or waived and that Sheppard Mullin as the
representative of Bank of America shall confirm the letter of credit has been issued
and is ready to be delivered subject only to the receipt of the $30,000,000 cash
collateral and accompanying fees.
At approximately 8:14 a.m. Lehman confirmed that all
(i)
conditions contained in the Retail Loan Agreement and the Retail Mezzanine Loan
Agreement have been satisfied or waived and that they are ready to execute and
deliver the Retail Loan Agreement and Retail Mezzanine Loan Agreement and are
ready to consummate the transactions contemplated thereby, and that $210,500,000
was wired to LandAm with an instruction to wire $205,000,000 to the FB Resort
Closing Account upon confirmation of these conditions by Lehman.
At approximately 8:16 a.m. the Initial Purchaser confirmed
(i)
that all conditions contained in the Purchase Agreement have been satisfied or
waived and that the Initial Purchasers are ready to consummate the Second
Mortgage Notes Of[Ering.
(k) At approximately 8:18 a.m. FB Holdings will execute and
deliver the authentication order to the Trustee, and the Trustee shall release its
signatures to the Indenture, and the Indenture and the Notes shall become effective.
1l
LA\1725490 18

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 19 of 40

At approximately 8:20 a.m. Bank of America, N.A., as
(1)
Administrative Agent, confirmed that all conditions contained in: (i) the Las
Vegas Credit Agreement; (ii) the Miami Mezzanine Loan Agreement and (iii) the
Miami Project Credit Agreement have been satisfied or waived and that the
Lenders under those Agreements are ready to execute and deliver those
Agreements and are ready to consummate the transactions contemplated thereby.
Funds Transfers from Equity Proceeds" Agent to FB Resorts Closing Account
14. At approximately 9:00 a.m. the Equity Proceeds Agent shall wire
$125,000,000 from the Class A Proceeds Closing Account to FB Resorts Closing
Account and provide a fed reference number as soon as one is assigned.
15. At approximately 9:00 a.m. the Equity Proceeds Agent shall wire
$190,000,000 from the PIK Proceeds Closing Account to FB Resorts Closing Account
and provide a fed reference number as soon as one is assigned.
Funds TransJbr from Bank of America to FB Resorts Closing Account
16. At approximately 9:00 a.m. Bank of America shall wire $250,000,000
from the PBL Closing Account to FB Resorts Closing Account and provide a fed
reference number as Soon as one is assigned.
Funds" Transfer from Lehman Brothers
17. At approximately 9:01 a.m. Lehman shall authorize and LandAm shall
wire $205,000,000 to the FB Resorts Closing Account.
Funding of the Second Mortgage Notes
18. At approximately 9:30 a.m. Bank of America shall confirm receipt of the
wires from the equity accounts and Lehman and that the FB Resorts Closing Account is
fully funded.
19. At approximately 9:32 a.m. the Initial Purchaser shall wire $658,125,000
representing the net proceeds of the Second Mortgage Notes Offering to the Second
Mortgage Proceeds Account at Wells Fargo using the following wiring instructions:
Wells Fargo Bank, NoAo
ABA #121000248
Acct #: 1038377
F/F/C Acct # 22338800
Acct Name: Corporate Trust Clearing
Attn: Renee Kuhl

Funding of Initial Term Loans under the Las Vegas Credit Agreement
20. At approximately 9:35 the Lenders under the Las Vegas Credit Agreement
shall fund to Bank of America as Administrative Agent.
12
LA\1725490 18

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 20 of 40

21. At approximately 9:55 a.m. Bank of America shall transfer $700,000,000
from the proceeds of the Las Vegas Credit Facility to the Bank Proceeds Account using
the following wire instructions:
Bank of America Mutual Funds Services
ABA # - 026009593
Credit Account number 90113-83980
Attn: Norman Hoelter
For further credit to mutual fund acct 0238-5090110384
Pre-Funding Confirmation, Investment of Proceeds and Release of Notes
22. At approximately 10:00 a.m. Wells Fargo shall confirm receipt of the
$658,125,000 in the Second Mortgage Proceeds Account.
23. At approximately 10:02 a.m. a representative from FB Holdings, the
Initial Purchaser and the Trustee shall call DTC and instruct DTC to release the Second
Mortgage Notes.
24. At approximately 10:25 a.m. Bank of America shall confirm receipt of the
$700,000,000 in the Bank Proceeds Account.
25. Wells Fargo shall invest the funds in the Second Mortgage Proceeds
Account in Permitted Investments pursuant to that certain Wells Fargo investment
instruction letter.
26. Break of America shall invest the funds in the Bank Proceeds Account in
Permitted Investments pursuant to investment instructions provided to it.
Funds" Transfers from FB Resorts Closing Account
27. At approximately 10:40 a.m. Bank of America shall wire the payments
listed on Schedule I1.A from the FB Resorts Closing Account.
Funding of Miami Mezzanine Loan and Miami Project Credit Facility

28. At approximately 10:45 a.m. Bank of America shall fully fund the
$40,000,000 Miami Mezzanine Loan and shall concurrently deduct certain fees and cash
reserves and wire the remaining $28,800,000 net proceeds to the FB Florida Hotel
Closing Account.
29. At approximately 10:47 the Lenders under the Miami Project Credit
Agreement shall fund to Bank of America as Administrative Agent.
30. At approximately 11:25 a.m. Bank of America shall wire $280,829,289.64
from the proceeds of the Miami Project Credit Facility to the FB Florida Hotel Closing
Account.

13
LAX 1725490 18

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 21 of 40

Funds Transfers from FB Las Vegas Holdings Closing Account and FB Florida Hotel Closing
Account
31.

The following steps shall occur concurrently at approximately 10:55 a.m.

(a) Bank of America shall wire the payment referred to as the
Upflow from the FB Las Vegas Closing Account to the FB Resorts Closing
Account (as indicated on Schedule III.A1).

(b) Bank of America shall wire the payments listed on Schedule
III.A2 from the FB Lhs Vegas Closing Account.
32. At approximately 11:00 a.m. Bank of America shall wire the payments
from the FB Resorts Closing Account listed on Schedule II:C.
33. At approximately 11:30 a.m. Bank of America shall wire the payments
listed on Schedule IV.A from the FB Florida Hotel Closing Account.
At the end of this step, the FB Resorts Closing Account, the FB Las Vegas Closing Account and
the FB Florida Hotel Closing Account will have a zero balance, and the accounts required under
the Disbursement Agreement shall be fully funded.
Release of Letter of Credit by Deutsche Bank
34. Upon receipt of the fees listed in Schedule III.A2 and the cash collateral
listed in Schedule II.C, Deutsche Bank shall release and deliver the $50,000,000 letter of credit.
Disbursement oJ Funds by LandAm

35. Immediately upon receipt of the wires from Bank of America listed on
Schedule II.A and Schedule III.A expected to occur at approximately 11 : 15 a.m.,
LandAm shall wire the following payments concurrently:
(a) The payments on Schedule II.B using the $3,718,863.50 it
received from the FB Resorts Closing Account°
(b) The payments on Schedule III.B using the $21,010,374.70 it
received from the FB Las Vegas Closing Account.
36. lm~nediately upon receipt of the wires from Bank of America listed on
Schedule IV.A, expected to occur at approximately 12:00 p.m., LandAm shall wire the
following payments concurrently:

(a) The payments by wire on Schedule IV.B using the
$9,160,068.59 it received from the FB Florida Hotel Closing Account.
(b) The payments by check on Schedule IV.C using the
$5,610,420.55 it received from the FB Florida Closing Account.

14
LA\172549018

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 22 of 40

Schedule I
Transaction Documents

1. Retail Mortgage Loan A~reement: The Loan Agreement dated as of Jtme 6,
2007 (the "Retail Loan Agreement") between Fontainebleau Las Vegas Retail, LLC, as
Borrower, and Lehman Brothers Holdings Inc., as Lender ("Retail Lender").
2. Retail Mezzanine Loan Agreement: The Mezzanine Loan Agreement dated as of
June 6, 2007 (the "Retail Mezzanine Loan Agreement") among Fontainebleau Las Vegas Retail
Mezzanine, LLC as Borrower, Fontainebleau Las Vegas Retail Parent, LLC as Pledgor and
Lehman Brother Holdings Inc. as Lender.
3.
Class A Subscription Agreement: The various Subscription Agreements tbr the
purchase of Class A Units offered by Fontainebleau Equity Holdings, LLC (the "Class A
Subscription Agreement") among Fontainebleau Equity Holdings, LLC, Merrill Lynch, Pierce,
Feuner & Smith Inc. as "Placement Agent" and the various accredited investors who complete
and sign the Subscription Agreement.
4. Class A Escrow Agreement: The Agreement dated as of May 29, 2007 (the
"Class A Escrow Agreement") among Fontainebleau Equity Holdings, LLC, the Equity Proceeds
Agent and the Placement Agent.
5.
PIK Subscription Agreement: The various Subscription Agreements for the
purchase of Senior PIK Preferred Units offered by Fontainebleau Resorts, LLC (the "PIK
Subscription Agreement") among Fontainebleau Resorts, LLC, the Placement Agent and the
various accredited investors who complete and sign the Subscription Agreement.
6. PIK Escrow Agreement: The Agreement dated as of May 29, 2007 (the "PIK
Escrow Agreement") among Fontainebleau Resorts, LLC, the Equity Proceeds Agent and the
Placement Agent~
7. PBL Securities Purchase A~reement: The Amended and Restated Securities
Purchase Agreement dated as of June 6, 2007 (the "PBL Securities Purchase Agreement")
between Fontainebleau Resorts, LLC and Publishing and Broadcasting, Limited, a company
organized under the laws of Western Australia ("PBL").
8. PBL Subscription Agreement: The Subscription Agreement for the purchase of
Class B Units offered by Fontainebleau Equity Holdings, LLC dated as of June 1, 2007 (the "PBL
Subscription Agreement") among Fontainebleau Equity Holdings, LLC, Fontainebleau Equity
Holdings Voteco, LLC and PBL Overseas (CI) Limited.
9. Purchase Agreement: The Purchase Agreement, dated as of May 24, 2007 (the
"Purchase ~.greeme ~ by and among Fontainebleau Las Vegas Holdings, LLC and
Fontainebleau Las Vegas Capital Corp. as "Issuers," Fontainebleau Resorts, LLC, Fontainebleau
Resort Properties I, LLC, Fontainebleau Las Vegas, LLC and Fontainebleau Las Vegas II, LLC as
"Guarantors" and Banc of America Securities LLC, as the representative of the several initial
I-I
LA\1725490 18

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 23 of 40

purchasers which includes Banc of America Securities LLC, Barclays Capital Inc., Deutsche Bank
Securities Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated.
10. Indenture: The Indenture, dated as of June 6, 2007 (the "Indenture") executed by
the Issuers under which Wells Fargo Bank, National Association serves as the Trustee (the
"Trustee").
11. Las Vegas Credit Agreement: The Credit Agreement dated as of June 6, 2007
(the "Las Vegas Credit Agreement") by and among Fontainebleau Las Vegas, LLC and
Fontainebleau Las Vegas iI, LLC, as Borrowers, and Bank of America, N.A. as Administrative
Agent.
12. Master Disbursement Agreement: The Master Disbursement Agreement dated as
of June 6, 2007 (the "Disbursement Agreement") among Fontainebleau Las Vegas Holdings,
LLC, Fontainebleau Las Vegas Capital Corp., Foritainebleau Las Vegas Retail, LLC,
Fontainebleau Las Vegas, LLC and Fontainebleau Las Vegas II, LLC and Bank of America, N.A.
as the "Bank Agent" and Disbursement Agent, Wells Fargo Bank, N.A. as the Trustee and
Lehman Brothers Holdings, Inc. as the Retail Agent.
13. Miami Mezzanine Loan Agreement: The Mezzanine Credit Agreement dated as
of June 6, 2007 (the "Miami Mezzanine Loan Agreement") among Fontainebleau Florida
Holdings, LLC as Borrowers and Bank of America, N.A. as Administrative Agent.
14. Miami Proiect Credit Agreement: The Third Amended and Restated Credit
Agreement dated as of June 6, 2007 (the "Miami Project Credit Agreement") among
Fontainebleau Florida Hotel Properties, LLC and Fontainebleau Florida Tower 2, LLC as
Borrowers and Bank of America, N.A. as Administrative Agent.

I-2
LA\1725490 18

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 24 of 40

Schedule II
Transfers from the FB Resorts Closing Account
Transfers to be made by Bank of America from Account # 1233058189
-Wire Transfer Instructior~s_

Name
Prudential Insurance Co.
(Payoff of Prudential
Mezzanine Loan)

JeffreY Soffer and Jacquelyn
Soffer

$44,854,15994

(Payoff of SoftEr Bridge
Loan)
Equity Financing Fees

$17,000,000

See Schedule VIII (delivered separately, not an
attachment hereto)

$3,718,86350

WACHOVIA BANK, N A.
201 South Jefferson Street
Roanoke, VA 24011
ABA # 051400549
Acct#: 2000001201291
Acct Name: LAWYERS T1TLE INSURANCE
Contact: Jared Healy [phone]

(Bank of America, Merrill
Lynch, Deutsche Bank)
LandAm

State Street Bank & Trust Company
Boston, Massachusetts
ABA#: 011000028
Acct#: 37947058
\cct Name: PRISA 1-99 A
Reference: Fontainebleau Loan-Payment in full
Bank Atlantic
Fort Lauderdale, FL
ABA 267 083 763
~_ccount title: l’urnberry Development
Account number: 055382582

(For Disbursement)

FB Florida Hotel Closing
Account

$60,000,000

Bank of America. NA
~ccount NaJne: Fontainebleau Florida Hotel Properties,
LLC Closing Account FBO Bank of America, N.A
Account Number: 1233058202
ABA: 026009593
Attn: Diane Dycus

FB Las Vegas Closing
~ccount

$370,000,000

Bank of America, NA
~ccount Nmne: Fontainebleau Las Vegas Holdings,
LLC Closing Account FBO Bank of America. N A.
Account Nmnber: 1233058429
ABA: 026009593
Attn: Diane Dycus

FB Resorts Restricted Cash
Account

$25,000,000

FB Resorts Cash Account

$40,767,670~99

TOTAL:

Bank of America Mutual Funds Services
ABA # - 026009593
Credit Account number 90113-83980
Attn: Norman Hoelter
For further credit to mutual fund acct 01555090110383
Bank of America
ABA#: 026009593
Routing Number: 122400724
Acct#: 004968329641
Acct Name: Fontainebleau Resorts, LLC
EON 20-2668268

$770,000 000

II-1
LA\1725490 18

Fed Reference #

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 25 of 40

B. Transfers to be made by LandAm
Name

Buchanan Ingersoll &
Rooney P.C.

Amoun
$2,355,198

(Counsel to Fontainebleau)

Latham & Watkins LLP

$1,250,000

Counsel to Fontainebleau)

Brownstein Hyatt Farber
Schreck P.C.

$27,000

(Nevada counsel to
Fontainebleau--gaming
and corporate)

Snell & Wilmer LLP

$65,165.50

(Nevada counsel to
Fontainebleau--real estate)

Seiden Wayne LLC

$21,500

(Counsel to Letter of
Credit Provider)

TOTAL:

Wire Transfer Instructions
National City Bank
445 Smithfield Street
Pittsburgh, PA 15222
ABA#: 0430-0012-2
Acct#: 549525330
Acct Name: Buchanan Ingersoll & Rooney PC
Swift Code: NATCUS33
Please notify Sue Kempf [phone] or
susan.kempf@bipc-com
Citibank, Delaware
ABA#:03-1100209
A/C#: 39117003
Account Name: t,atham & Watkins
Reference: 043440-0000.
Key Bank of Colorado
3300 East First Avenue
Denver, CO 80206
Brownstein Hyatt Farber Schreck, P.C.
COLTAF Trust Account
ABA#: 307070267
Acct#: 82123967
Reference: 23552.2
Contact: Sue Seabeck 303-223-I 100
Bank - JP Morgan Chase NA
~ddress - 201 No Central Ave., Phoenix, AZ
85004
ABA#: 021000021
Acct #: 5979
Acct Name - Snell & Wilmer
Reference: Fontainebleau/45920 (JASM)
Bank of America
One Newark Center
Newark, New Jersey 07102
ABA # 0260-09593
Acct. # 415-400-4760
Account Name: Seiden Wayne LLC - Operating
Account
Reference: Deutsche Bank - Turnberry, Client #
08394.0008
"lease notify Peter G. Seiden, Esq. (212) 4465003

$3~_718,863.50

II-2
LA\1725490 18

Fed Reference #

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 26 of 40

C. Transfers to be made by Bank of America (after upflow from FB Las Vegas
Closing Account in Schedule III.A1) from Account # 1233058189
.Amoun_At
Jeffrey Soffer

$15,812,957.27

(Redemption of Preferred
Unit)
Deutsche Bank

$30,000,000

(Letter of Credit)

TOTAL:

Wire Transfer Instructions
Bank Atlantic
Fort Lauderdale, FL
ABA 267 083 763
Account title: Turnberry Development
Account number: 055382582
Deutsche Bank Trust Company Americas
280 Park Avenue
New York, NY 10017
ABA# 021-00-1033
F/B/O: Jeffrey Soffer Collateral Accotmt
Account Number: #35250018

$45,812,957.27_

II-3
LA\1725490 18

Fed Reference #

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 27 of 40

Schedule III
Transfers from the FB Las Vegas Closing Account
A1. Transfers to be made by Bank of America from Account # 1233058429 to
Repay Intercompany Debt
:Amount
FB Resorts Closing
Account

$45,812,957.27

Wire Transfer Instructions

Fed Reference

Bank of America, N.A.
Account Name: Fontainebleau Resorts, LLC
Closing Account FBO Bank of America, NoA.
Account Number: 1233058189
ABA: 026009593
Attn: Diane Dycus

A2. Transfers to be made by Bank of America from Account # 1233058429
Amount
Bank of America

Wire Transfer Instructions

$150,706,125

Wire Transfer to Existing Bank Group Members

$32,639,126.18

Wire Transfer to New Bank Group Members

$21,010,374.70

WACt!OVIA BANK, N.A.
~_01 South Jefferson Street
Roanoke, VA 24011
ABA # 051400549
Acct#: 2000001201291
Acct Name: LAWYERS TITLE INSURANCE
Contact: Jared Healy [phone]
3ank of America Mutual Fnnds Services
~BA # - 026009593
Credit Account number 90113-83980
Attn: Norman Hoelter
For further credit to mutua! fund acct 01555090110382
Bank of America, N.A.
Acct Name: Fontainebleau Las Vegas, LLC Cash
Management Acconnt
Account Number: 4968332450
~BA: 026009593
Bank of America, NoA.
Acct Name: Fontainebleau Las Vegas, LLC
Resort Payment Account
Account Number: 501001203813
ABA: 026009593

(Repayment of Tranche A
of Credit Facility)
Bank of America
(Credit Facility Financing
Fees)
LandAm
(Title fees and for
disbursement)

-F~ Las Vegas Liquidity
Reserve Account

$50,000,000

FB [,as Vegas Cash
Management Account

$6,000,000

-~ Las Vegas Resort
Payment Account

$32,700,000

III-1
LA\1725490 18

Fed Reference #_

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 28 of 40

Amount
FB Las Vegas Equity
Funding Account

TOTAL:

$31,131,416.85

Wire Transfer Instructions
Bank of America Mutual Funds Services
ABA # - 026009593
Credit Account number 90113-83980
Atm: Norman Hoelter
For further credit to mutual fund acct 02385090110385

$370,000,000

III-2
LA\1725490 18

Fed Reference #

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 29 of 40

B. Transfers to be made by LandAm
Amoun_____~t

LandAmerica

$1,494,132-34

--~re Transfer Instructions

Internal Transfer

(Title Premium, UCC fees
and recording fees)
Buchanan Ingersoll &
Rooney P.C.
(Counsel to Fontainebleau)

$l,325,000

Latham & Watkins LLP

$3,250,000

(Counsel to Fontainebleau)

Snell & Wilmer LLP

$193,478..95

(Nevada counsel to
Fontainebleau--real estate)

Brownstein Hyatt Farber
Schreck P.C.

$73,000

(Nevada counsel to
Fontainebleau--gaming
and corporate)

S-~peppard, Mullin,
Richter & Hampton LLP

$1,500,000

(Counsel to Bank of
America)

Lionel Sawyer & Collins
(Nevada counsel to Credit
Lenders)

$42,500

National City Bank
445 Smithfield Street
Pittsburgh, PA 15222
ABA#: 0430-0012-2
Acct#: 549525330
Acct Name: Buchanan Ingersoll & Rooney PC
Swift Code: NATCUS33
Please notify Sue Kempf [phone] or
[e-mail]
Citibank, Delaware
ABA#:03-1100209
A/C#: 39117003
Account Name: Latham & Watkins
Reference: 043440-0000
Bank - JP Morgan Chase NA
Address - 201 N. Central Ave., Phoenix, AZ
85004
ABA#: 021000021
Acct #: 5979
Acct Name - Snell & Wilmer
Reference: Fontainebleau/45920 (JASM)
Key Bank of Colorado
3300 East First Avenue
Denver, CO 80206
Brownstein Hyatt Farber Schreck, P.C
COLTAF Trust Account
ABA#: 307070267
Acct#: 82123967
Reference: 23552.2
Contact: Sue Seabeck 303-223-1100
3ank of America, N.A.
~BA Routing Number: 026009593
Swift Address: BOFAUS3N
Account Name: Sheppard, Mullin, Richter
Hampton LLP
Account Number: 14592.-51871
Ref: BNI-115742
3ank of America
300 S Fourth Street
Las Vegas, NV 89109
For Credit to: Lionel Sawyer & Collins
ABA#: 0260-0959-3
A/C#: 004961844233
SWIFT No.: BOFAUS3N
~,eference: Fontainebleau

III-3
LA\1725490 18

Fed Reference #

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 30 of 40

Name ....
Inspection & Valuation
International, Inc.

Amount

Wire Transfer Instructions

$25,000

JP Morgan Chase Bank
New York, NY 10017
ABA#: 021000021
A/C#: 6700066108
Reference: Invoice 28861

(Independent Construction
Consultant)
RR Donneiley Financial

$250,000

Wells Fargo, National
Association

$29,000

(Trustee under Purchase
Agreement)
--~ones Day

$71,318.75

(Counsel to Trustee)

Bracewell & Giuliani
LLP
(Counsel to Merrill Lynch)

Standard & Poor’s

$34,314.52

$675,000

(Rating Agency)

Moody’s Investors
Services

$319,000

(Rating Agency)
Deutsche Bank
(Fees for maintaining the
Letter of Credit)

$750,000

Bank of America
ABA#: 026009593
Acct#: 1233552859
Chips Address: 0959
Swift Address: BOFAUS3N
Ref: Fontainebleau Invoice
Wells Fargo Bank, N.A.
ABA#: 121000248
Acct#: 1000031565
Memo: (invoice #, Fontainebleau)
Attn= CTS Acctg
Citibank
ABA: #021000089
Acct#: 37026407
Entitled: Jones Day
Ref: Fontainebleau/Wells Fargo Counsel
Bank of America
901 Main Street
Dallas, Texas
ABA Number: 026009593
Account No.: 001390004197
Name on Account: Bracewell & Giuliani LLP
Bank of America
San Francisco, CA
Standard and Poor’s
ABA#: 026009593
Acct#: 12334-02500
Reference: lnvoice 10146259
SUNTRUST BANK
ABA#: 061000104
Acct#: 8801939847
Swift Code: SNTRUS3A
Reference: G 1603179-000
Deutsche Bank Trust Company Americas
280 Park Avenue
New York, NY 10017
ABA# 021-00-1033
F/B/O: Turnberry Residential Limited Partner,
L.P
Account Number: #42928333

III-4
LA\1725490 18

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 31 of 40

~mount
Aon Risk Services

$10,978,630.14

(Insurance premiums for
Builder’s ~isk and OCIP)

TOTAL:

~Wire Transfer Instructions
Bank of America
1401 Elm St,.
Dallas, TX 75202
ABA Number (WIRES ONLY): 026009593
ABA Number (ACH ONLY): 111000012
Account Number: 3751508366
SWIFT Number: BOFAUS3N
Account Name: Aon Risk Services Companies,
lnc~
Reference: Fontainebleau Las Vegas OCIP &
Builders Risk

$21 010 374.7___9_O

III-5
t,A\1725490 18

Fed Reference #

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 32 of 40

Schedule IV
Transfers from the FB Florida Hotel Closing Account
A. Transfers to be made by Bank of America from Account # 1233058202
Wire Transfer Instructions or lntrabank Transfers
Bank of America

$340,692,584057

Wire Transfer to Existing Bank Group Members

$11,166,215.93

Wire Transfer to New Bank Group Members

$9,160,068.59

WACHOVIA BANK, N.A.
201 South Jefferson Street
Roanoke, VA 24011
ABA # 051400549
Acct#: 2000001201291
Acct Name: LAWYERS TITLE INSURANCE
Contact: Jared Healy [phone]

$5,610,420.55

Wachovia
20 North Orange Avenue
Orlando, FL 32801
ABA#: 051400549
Acct#: 2000027521162
Acct Name: LandAmerica Financial Group
Bank of America, N.A~
Acct Name: Fontainebleau Florida Hotel, LLC
Cash Management Accotmt
Account Number: 501002420938
ABA: 026009593

(Repayment of Tranches B
and C of Credit
Agreement)
Bank of America

(Financing Fees for Florida
Facility)
LandAmerica Financial
Group
(for title premium, UCC
fees and professional
services including
contractors to be paid by
wire)
LandAmerica Financial
Group
(for stamp taxes, recording
fees and contractors to be
~aid by check)
FB Florida Cash
Management Account

TOTAL:

$3,000,000

$369,629,289.64

IV-1
LA\1725490 18

Fed Reference #
_

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 33 of 40

B. Transfers to be made by LandAm (Orlando)
Amount
LandAmerica Financial

$1,394,532

Wire Transfer Instructions

Fed Reference #

Internal Transfer

(title premium and UCC
fees only)
Snbeontraetors

$4.863.994.11

Payment by wire as indicated on Schedule Vll.A

$896.399

National City Bank
445 Smithfield Street
Pittsburgh, PA 15222
A~BA#: 0430-0012-2
Acct#: 549525330
Acct Name: Buchanan Ingersoll & Rooney PC
Swift Code: NATCUS33
Please notify Sue Kempf [phone] or
[e-mail]
3ank of America, N.Ao
~_BA Routing Number: 026009593
Swift Address: BOFAUS3N
Account Name: Sheppard, Mullin, Richter &
Hampton LLP
Account Number: 14592-51871
Ref: BNI-115742
JPMorgan Chase Private Bank
Cadwalader, Wickersham & Taft LLP
ABA#: 021000021
Acct#: 967707218
Ref! 14827.320

(As listed on Schedule
VII.A)
Buchanan Ingersoll &
Rooney P.C.
(Counsel to Fontainebleau)

Sheppard, Mullin,
Richter & Hampton LLP

$650,000

(Counsel to of America)

-~adwalader Wickersham
& Taft

$75,000

(Special Mezzanine
Counsel to Bank of
America)
-~olland & Knight

$4,300

(Florida counsel to Credit
Facility Lenders)

Bracewell & Giuliani
LLP

$11,685.48

(Counsel to Merrill Lynch)

Inspection & Valuation
International, Inc.
(Independent Construction
Consultant)

$17,500

Wachovia Bank
200 South Biscayne Blvd.
1 lth Floor
Miami, Florida 33131
~BA Number: 063-000-021
Credit Account of~ Holland & Knight LLP Trust
Account (IOTA) Account
Number: 2166760009652
Confirm to: Georgette Suarez [phone]
Facsimile No.: [phone]
Bank of America
~01 Main Street
Dallas, Texas
ABA Number 026009593
n, ccount No= 001390004197
Name on Account: Bracewell & Giuliani LLP
JP Morgan Chase Bank
"
New York, NY 10017
ABA#: 021000021
A/C#: 6700066108
).eference: Invoice 28828

IV-2
LA\1725490 18

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 34 of 40

_Amount

_N__ame
Aon Risk Services

$1,246,658

(Insurance Premiums)

Wire Transfer Instructions

Fed Reference #

Bank of America
1401 Elm St.
Dallas, TX 75202
ABA Number: 111000012
Account Number: 3751508366
SWIFT Number: BOFAUS6S
Account Name: Aon Risk Services Companies,
Inc.
Reference: Client Account Number:
570000032250

$9,160,068.5~9

-TOTAL:

C. Transfers to be made by LandAm (Sunrise)
Amount

Wire Transfer Instructions

Stamp Taxes &
Recording Fees

$2,383,760.50

Payment by check

Subcontractors

$3,226,660.05

Payment by check

(As listed on Schedule
VIIoB)
TOTAL:

$5,610,420.55

IV-3
LA\1725490 18

Fed Reference #

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 35 of 40

Schedule V
Account Information for Permanent Accounts and Accounts Required Under the Disbursement
Agreement
¯ Amount

Wire Transfer Instructions

FB Restricted Cash
Accourlt

$25,000.000

FB Resorts Cash
Account

$40,767,670.99

Bank of America Mutual Funds Services
ABA # - 026009593
Credit Account number 90113-83980
Attn: Norman Hoelter
:or further credit to mutual fund acct 01555090110383
Bank of America
ABA~#: 026009593
Routing Number: 122400724
Acct#: 004968329641
Acct Name: Fontainebleau Resorts, LLC
EON 20-2668268
Bank of America Mutual Funds Services
ABA # - 026009593
Credit Account number 90113-83980
Attn: Norman ttoelter
For further credit to mutual fund acct 01555090110382
Bank of America, N.A.
Acct Name: Fontainebleau Las Vegas, LLC
Cash Management Account
Acct #: 4968332450
ABA #: 026009593
Bank of America, N.A
Acct Name: Fontainebleau Las Vegas, LLC
Resort Payment Account
Acct #: 501001203813
ABA #: 026009593

_Name

FB Las Vegas Liquidity
Reserve Account

$50,000,000

FB Las Vegas Cash
Management Account

$6,000,000

FB Las Vegas Resort
Payment Account

$32,700,000

FB Las Vegas Equity
Funding Account

$31,131,416.85

Bank of America Mutual Funds Services
ABA # - 026009593
Credit Account number 90113-83980
Attn: Norman Hoelter
For further credit to mutnal fund acct 02385090110385

FB Florida Cash
Management Account

$3,000,000

Bank of America, NoA.
Acct Name: Fontainebleau Florida Hotel,
LLC Cash Management Account
Acct #: 501002420938
ABA #: 026009593

V-I
LA\1725490 18

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 36 of 40

~

ame

econd Mortgage
roceeds Account

Bank Proceeds Account

Amount
$658,125.000

$700.000.000

Wire Transfer Instructions
Wells Fargo Bank, N.A.
ABA # 121000248
Acct #: 1038377
F/F/C Acct #: 22338800
Acct Name: Corporate Trust Clearing
F/F/C Acct #:22338800
Attn: Renee Kuhl
Bank of America Mutual Funds Services
ABA # - 026009593
Credit Account number 90113-83980
Attn: Norman Hoelter
For further credit to mutual fund acct 02385090110384

V-2
LA\! 725490 18

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 37 of 40

Schedule VI
Parties and Contact Persons
Role

Contact Persons

Bank of America, N.A.

Administrative Agent
Proceeds Agent
Bank Agent

Charles Wenmohs
[phone]

Brownstein Hyatt Farber
Schreck

Local Nevada Counsel to
Fontainebleau

Ellen Schulhofer
[phone]

Buchanan Ingersoll &
Rooney PC

Counsel to Fontainebleau

Jack Kessler
[phone]

Depository Trust Company
(DTC)

Holder of Global Second
Mortgage Note

B of A To Contact

Deutsche Bank Trust Company
Americas

Letter of Credit Provider

Peter Seiden
[phone]

Holland & Knight LLP

Local Florida Counsel to Credit
Facility Lenders

John F. Halula
[phone]

Inspection & Valuation
International, Inc.

Independent Construction
Consultant

Bob Barone
[phone] x213

Jones Day

Counsel to Trustee

Stacey LeFont
[phone]

LandAmericaJLawyer’ s Title

Title Insurance Company

John Elzeer
[phone]

Latham & Watkins

Counsel to the Co~npany

Pamela Kelly
[phone]

Lehman Brothers

Retail Lender

Josh Freedman
[phone]

Lionel Sawyer & Collins

Local Nevada Counsel to the
Bank Lenders

Mark Goldstein
[phone]

Merrill Lynch, Pierce, Fenner
& Smith Inc.

Placement Agent

Tom Reilly
[phone]

Name

VI-1
LA\1725490 18

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 38 of 40

Name

Role

Contact Persons

PBL

Investor

Shearman & Sterling LLP

Counsel to Initial Purchasers

Bernadette Sarroff
[phone]
Andy Carr
[phone]
Lindsay Maddock
[phone]
Brad Kern
[phone]

Sheppard Mullin Richter &
Hampton LLP

Counsel to Bank Lenders

Bill Scott
[phone]

Skadden, Arps, Slate, Meagher
and Flom LLP

Counsel to PBL

Patricia Moran
[phone]

Snell & Wilmer L.L.P.

Local counsel to Fontainebleau

Jim Mace or Pat Curtis
[phone]/5226

Thacher Proffitt & Wood LLP

Counsel to Retail Lender

Brett Gross
[phone]

Wells Fargo Bank, National
Association

Second Mortgage Notes
Indenture Trustee

Lynn M. Steiner
[phone]

VI-2
LA\1725490 18

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 39 of 40

Schedule VII
Miami Subcontractors to be Paid by LandAm

A. Transfers to be Made by Wire from LandAm (Orlando)
Amount

Wire Transfer Instructions

Accurate Glass Works

$6.750.00

Butcher and Baecker

$350,944.66

ABA: 061000104
Acct#: 1000058064873
Swift Code: SNTRUS3A
Chase Bank
ABA#: 072000326
Acct#: 360672724
Comerica Bank
500 Woodward Ave
Detroit, MI 48226
ABA#: 072000096
Acct#: 1076-03600l
Acct Name: Gallagher-Kaiser Corp.
Janis Services Inc.
ABA#: 066010377
Acct #: 9131005820
Wells Fargo
ABA#: 121000248
Acct#: 6832305806
Bauk of America, NA.
Tumberry Construction, Inc.
Fontainebleau Resort Project
ABA#: 026009593
Acct#: 005568466495
Attn: John Peterson
305 -682-4252

Name

Gallagher-Kaiser

$55,900

Janis Services

$2,038,171.54

Northstar Fire

$212,227.91

Turnberry Construction

$2,200,000

TOTAL:

$4,863,994.11

VII-1
LA\ 1725490 18

Fed Reference #

Case 1:09-md-02106-ASG Document 37-9 Entered on FLSD Docket 02/18/2010 Page 40 of 40

B. Transfers to be Made by Check from LandAm (Sunrise)
Name

Amount

Alfredo Carboneli

$15,600

BC Architects

$43,200

Dalima Studio Architecture

$2,940
$2,872.46

Douglas Orr Plumbing
Dynamic Environmental Drilling

$37,440

Fred McGilvray, Inc.

$339,210

HJ Foundation

$129,825

HKS Architects

$798,235.19

[BA Consultants

$16,920

Ion EleCtric

$162,000

Jackson & White

$65,678

Jeffrey Beers Intl.

$175,000

Kaplan, Gehring, McCarroli

$27,025

Langan Engineering

$31,818.46

Matrix

$3,51%44

Miami Drywall

$151,560

Michael Hirsch

$31,350

Nichols Brosch Wurst Wolfe

$20,421.96

Omega Contracting

$356,340.68

Schindler Elevator

$17,250

Seed Design

$34,606.77

Structural Waterproofing

$389,691.23

Van Kirk & Sons

$295,876.8

Walker Parking

$18,265.41

Wilson & Assoc.

$27,13878

Wiss, Janey, EIstner Assoc.

$32,876.87
$3 226~60.05

TOTAL:

VII-2
LA\1725490 18

Case 1:09-md-02106-ASG Document 37-10 Entered on FLSD Docket 02/18/2010 Page 1 of 3

Exhibit C

Case 1:09-md-02106-ASG Document 37-10 Entered on FLSD Docket 02/18/2010 Page 2 of 3

NOTICE OF BORROWING

March 2, 2009
Bank of America, N.A.,
as Administrative Agent
Mail Code: TXI-492-14-11
Bank of America Plaza
901 Main St.
Dallas, TX 75202-3714
Attention: Donna F. Kimbrough
Fontainebleau Las Vegas, LLC and Fontainebleau Las Vegas II, LLC
Ladies and Gentlemen:
Pursuant to Section 2.4 of that certain Credit Agreement, dated as of June 6, 2007 (as
amended, supplemented, replaced or otherwise modified from time to time, the "Credit
Agreement"; capitalized tenns used but not defined herein shall have the meanings given to them
in the Credit Agreement or if not set forth therein the meanings given to them in the
Disbursement Agreement, or, to the extent the Disbursement Agreement is then not in effect, the
Disbursement Agreement as of the last day of its effectiveness), among Fontainebleau Las
Vegas, LLC and Fontainebleau Las Vegas II, LLC (collectively, the "Borrowers"), each lender
from time to time party thereto and Bank of America, N.A., as administrative agent (the
"Administrative Agent"), the BOlTowers hereby give the Administrative Agent ilTevocable notice
that the Bon'owers hereby request a Loan under the Credit Agreement, and in that connection set
forth below the infonnation relating to such Loan:
I.

The Banking Day of the proposed Loan is March 3, 2009 (the "Borrowing Date").

2.

The proposed Loan is a Disbursement Agreement Loan.

3.
The proposed Loan is a Delay Draw Loan and a Revolving Loan.The Type of the
proposed Loan is a Base Rate Loan.
4.
The aggregate amount of the proposed Delay Draw Loan is $350,000,000, and the
aggregate amount of the proposed Revolving Loan is $670,000,000.
The BOlTowers agree that, if prior to the BOlTowing Date any of the foregoing
certifications shall cease to be true and cOlTect, the BOlTowers shall forthwith notify the
Administrative Agent thereof in writing (any such notice, a "Non-Compliance Notice"). Except
to the extent, if any, that prior to the BOlTowing Date, the Borrowers shall deliver a
Non-Compliance Notice to the Administrative Agent, each of the foregoing certifications shall
be deemed to be made additionally on the Borrowing Date as if made on such date.
The undersigned is executing this Notice of BOlTowing not in an individual capacity, but
in the undersigned's capacity as a Responsible Officer ofthe Borrowers.

Case 1:09-md-02106-ASG Document 37-10 Entered on FLSD Docket 02/18/2010 Page 3 of 3

Very tmly yours,
FONTAINEBLEAU LAS VEGAS, LLC,
and
FONTAINEBLEAU LAS VEGAS II, LLC
By: Fontainebleau Las Vegas Holdings, LLC,
Managing Member of each of the foregoing
By: Fontainebleau Resort Properties I, LLC, its
Managing Member
By: Fontainebleau Resort Holdings, LLC, its
Managing Member
By: Fontainebleau Resorts, LLC, its Managing
Member
By:
Name:
Title:

2

Case 1:09-md-02106-ASG Document 37-11 Entered on FLSD Docket 02/18/2010 Page 1 of 3

Exhibit D

Case 1:09-md-02106-ASG Document 37-11 Entered on FLSD Docket 02/18/2010 Page 2 of 3

NOTICE OF BORROWING
March 3, 2009
Bank of America, N.A.,
as Administrative Agent
Mail Code: TX 1-492-14-11
Bank of America Plaza
901 Main St.
Dallas, TX 75202-3714
Attention: Donna F. Kimbrough
Fontainebleau Las Vegas, LLC and Fontainebleau Las Vegas 11, LLC
Ladies and Gentlemen:
Pursuant to Section 2.4 of that certain Credit Agreement, dated as of June 6, 2007 (as
amended, supplemented, replaced or otherwise modified from time to time, the "Credit
Agreement"; capitalized terms used but not defined herein shall have the meanings given to them
in the Credit Agreement or if not set forth therein the meanings given to them in the
Disbursement Agreement, or, to the extent the Disbursement Agreement is then not in effect, the
Disbursement Agreement as of the last day of its effectiveness), among Fontainebleau Las
Vegas, LLC and Fontainebleau Las Vegas 11, LLC (collectively, the "Borrowers"), each lender
from time to time party thereto and Bank of America, N.A., as administrative agent (the
"Administrative Agent"), the Borrowers hereby give the Administrative Agent irrevocable notice
that the Borrowers hereby request a Loan under the Credit Agreement, and in that connection set
forth below the information relating to such Loan:
1.

The Banking Day of the proposed Loan is March 5, 2009 (the "Borrowing Date").

2.

The proposed Loan is a Disbursement Agreement Loan.

3.

The proposed Loan is a Delay Draw Loan and a Revolving Loan.

4.

'rhe Type of the proposed Loan is a Base Rate Loan,

5.
The aggregate amount of the proposed Delay Draw Loan is $350,000,000, and the
aggregate amount of the proposed Revolving Loan is $656,522,698.
The Borrowers agree that, if prior to the Borrowing Date any of the foregoing
certifications shall cease to be true and correct, the Borrowers shall forthwith notify the
Administrative Agent thereof in writing (any such notice, a "Non-Compliance Notice"). Except
to the extent, if any, that prior to the Borrowing Date, the Borrowers shall deliver a
Non-Compliance Notice to the Administrative Agent, each of the foregoing certifications shall
be deemed to be made additionally on the Borrowing Date as ifmade on such date.
The undersigned is executing this Notice of Borrowing not in an individual capacity, but
in the undersigned's capacity as a Responsible Officer of the Borrowers.

Case 1:09-md-02106-ASG Document 37-11 Entered on FLSD Docket 02/18/2010 Page 3 of 3

Very truly yours,
FONTAINEBLEAU LAS VEGAS, LLC,
and
FONTAINEBLEAU LAS VEGAS II, LLC
By: Fontainebleau Las Vegas Holdings, LLC,
Managing Member of each of the foregoing
By: Fontainebleau Resort Properties I, LLC, its
Managing Member
By: Fontainebleau Resort Holdings, LLC, its
Managing Member
By: Fontainebleau Resorts, LLC, its Managing
Member
\

By:
Name:
Title:

2

'

._~_tJo:

/~/

_

Jim I'feeman
Sr.Vice President and Chief Financial Officer

Case 1:09-md-02106-ASG Document 37-12 Entered on FLSD Docket 02/18/2010 Page 1 of 2

Exhibit E

Case 1:09-md-02106-ASG Document 37-12 Entered on FLSD Docket 02/18/2010 Page 2 of 2

view publication
title:

Borrowing Notice & Agency Communication

appropriate
for:
folder:

Public Side

first posted:

effective:

Mar 04,
2009

Communications
Mar 04, 09 17:06 Ronaldo Naval/BOA

last updated: Mar 04, 09 17:06 Ronaldo Naval/BOA

text
PUBLIC SIDE LENDERS MESSAGE:
Dear Lenders and Professionals:
We are posting a renewed Loan Notice from the Company. Bank of America has formed an ad
hoc steering committee which unanimously supports the position that the renewed Loan Notice
does not comply with the terms of the Credit Agreement.
Lenders which disagree with the steering committee's position are asked to immediately contact
Bank of America, as Administrative Agent, to make operational arrangements for funding their
portion of the requested borrowing.
attachments
3997_001.pdf
download attachments

51K

Case 1:09-md-02106-ASG Document 37-13 Entered on FLSD Docket 02/18/2010 Page 1 of 3

Exhibit F

Case 1:09-md-02106-ASG Document 37-13 Entered on FLSD Docket 02/18/2010 Page 2 of 3

NOTICE OF BORROWING
March 9, 2009
Bank of America, N.A.,
as Administrative Agent
Mail Code: TXI-492-l4-ll
Bank of America Plaza
901 Main St.
Dallas, TX 75202-3714
Attention: Donna F. Kimbrough
Fontainebleau Las Vegas, LLC and Fontainebleau Las Vegas II, LLC
Ladies and Gentlemen:
Pursuant to Section 2.4 of that certain Credit Agreement, dated as of June 6, 2007 (as
amended, supplemented, replaced or otherwise modified from time to time, the "Credit
Agreement"; capitalized terms used but not defined herein shall have the meanings given to them
in the Credit Agreement or if not set forth therein the meanings given to them in the
Disbursement Agreement, or, to the extent the Disbursement Agreement is then not in effect, the
Disbursement Agreement as of the last day of its effectiveness), among Fontainebleau Las
Vegas, LLC and Fontainebleau Las Vegas II, LLC (collectively, the "Borrowers"), each lender
from time to time party thereto and Bank of America, N.A., as administrative agent (the
"Administrative Agent"), the Borrowers hereby give the Administrative Agent irrevocable notice
that the Borrowers hereby request a Loan under the Credit Agreement, and in that connection set
forth below the information relating to such Loan:
1.

The Banking Day of the proposed Loan

2.

The proposed Loan is a Disbursement Agreement Loan.

3.

The proposed Loan is a Delay Draw Loan.

4.

The Type of the proposed Loan is a Base Rate Loan.

5.

The aggregate amount of the proposed Loan is $350,000,000.

IS

March 10, 2009 (the "Borrowing

Date").

The Borrowers agree that, if prior to the Borrowing Date any of the foregoing
certifications shall cease to be true and correct, the Borrowers shall f0l1hwith notify the
Administrative Agent thereof in writing (any such notice, a "Non-Compliance Notice"). Except
to the extent, if any, that prior to the Borrowing Date, the Borrowers shall deliver a
Non-Compliance Notice to the Administrative Agent, each of the foregoing certifications shall
be deemed to be made additionally on the Borrowing Date as if made on such date.
The undersigned is executing this Notice of Borrowing not in an individual capacity, but
in the undersigned's capacity as a Responsible Officer of the Borrowers.

Case 1:09-md-02106-ASG Document 37-13 Entered on FLSD Docket 02/18/2010 Page 3 of 3

Very truly yours,
FONTAINEBLEAU LAS VEGAS, LLC,
and
FONTAINEBLEAU LAS VEGAS II, LLC
By: Fontainebleau Las Vegas Holdings, LLC,
Managing Member of each of the foregoing
By: Fontainebleau Resort Properties I, LLC, its
Managing Member
By: Fontainebleau Resort Holdings, LLC, its
Managing Member
By: Fontainebleau Resorts, LLC, its Managing
Member

~~e.
Title:

2

.~
J'--em-a-n--------Sr.Vice President and Chief Financial Officer

I
'-

Case 1:09-md-02106-ASG Document 37-14 Entered on FLSD Docket 02/18/2010 Page 1 of 3

Exhibit G

Case 1:09-md-02106-ASG Document 37-14 Entered on FLSD Docket 02/18/2010 Page 2 of 3

•

BankofAmerica
Global Product. Solutions
Credit Services

~

April 20, 2009

By Electronic Mail, Telecopier and Overnight Courier

Jim Freeman, Senior Vice President and Chief Financial Officer
Fontainebleau Las Vegas, LLC
c/o Fontainebleau Resorts LLC
2827 Paradise Road
Las Vegas, NV 89109
Dear Ladies and Gentlemen:
This letter is delivered with reference to the Credit Agreement dated as of June 6, 2007 (the
"Credit Agreement"), among Fontainebleau Las Vegas, LLC, a Nevada limited liability
company, and Fontainebleau Las Vegas II, LLC, a Florida limited liability company
(collectively, the "Borrowers"), the Lenders, and Bank of America, N.A., as Administrative
Agent. Capitalized terms used but not defined herein are used with the meanings set forth in the
Credit Agreement.
You are hereby notified that the Required Facility Lenders under the Revolving Credit Facility
have determined that one or more Events of Default have occurred and are continuing and that
they have requested that the Administrative Agent notify you that the Total Revolving
Commitments have been terminated. Pursuant to Section 8 of the Credit Agreement, you are
hereby notified that the Total Revolving Commitments are terminated effective immediately.

W02-WEST: LAR\40 I498138. I

-1-

Bank of America, TXl-492-14-04
901 Main Street, 14th Floor, Dallas, TX 75202-3714

Ikcycled Paper

Case 1:09-md-02106-ASG Document 37-14 Entered on FLSD Docket 02/18/2010 Page 3 of 3

The Administrative Agent and the Revolving Lenders hereby expressly reserve all of their rights,
remedies and privileges under the Credit Agreement, the other Loan Documents and applicable
law.
BANK OF AMERICA, N.A., as Administrative Agent

By:

&~/Qp~

Ronaldo Naval, Vice President
cc.

Lenders
Bank of America, N.A., as Disbursement Agent
Whitney Thier, Esq.
Turnberry Residential Limited Partner, L.P.
Turnberry West Construction, Inc.
Mario Romine, Esq.
Fontainebleau Resorts, LLC
Fontainebleau Resort Properties I, LLC
Fontainebleau Resort Properties II, LLC
Fontainebleau Las Vegas Holdings, LLC
Fontainebleau Las Vegas Capital Corp.
Wells Fargo Bank:, N.A., as Trustee
Lehman Brothers Holdings, Inc., as Retail Agent

W02·WEST; LAR\401498138.1

-2-

Case 1:09-md-02106-ASG Document 37-15 Entered on FLSD Docket 02/18/2010 Page 1 of 3

Exhibit H

Case 1:09-md-02106-ASG Document 37-15 Entered on FLSD Docket 02/18/2010 Page 2 of 3

NOTICE OF BORROWING
April 21,2009
Ronaldo Naval, Vice President
Bank of America, N,A.
Mail Code: TXI-492-14-11
Bank of America Plaza
90 I Main Street, 14th Floor
Dallas, TX 75202-3714

Fontainebleau Las Vegas, LLC
Ladies and Gentlemen:
Pursuant to Section 2.4 of that certain Credit Agreement, dated as of June 6, 2007 (as
amended, supplemented, replaced or otherwise modified from time to time, the "Credit
Agreement"; capitalized terms used but not defined herein shall have the meanings given to them
in the Credit Agreement or if not set forth therein the meanings given to them in the
Disbursement Agreement, or, to the extent the Disbursement Agreement is then not in effect, the
Disbursement Agreement as of the last day of its effectiveness), among Fontainebleau Las
Vegas, LLC (collectively, the "Bonower"), each lendcr fl'om time to time party thereto and Bank
of America, N.A., as administrative agent (the" Administrative Agent"), the Borrower hereby
gives the Administrative Agent irrevocable noticc that the Borrower hereby requests a Loan
under the Credit Agreement, and in that connection set fOlih below the information relating to
such Loan:

I.

The Banking Day of the proposed Loan is April 23, 2009 (the "Borl'Owing Date"),

2,

The pl'Oposed Loan is a Disbursement Agreement Loan,

3,

The pl'Oposed Loan is a Revolving Loan,

4,

The Type of the proposed Loan is a Base Rate Loan.

5,

The aggregate amount of the proposed Loan is $710,000,000,

The Borrower agrees that, if prior to the Borrowing Date any of the foregoing
certifications shall cease to be true and correct, the Borrower shall forthwith notify the
Administrative Agent thereof in writing (any such noticc, a "Non-Compliance Notice"), Except
to the extent, if any, that prior to the Borrowing Date, the Borrower shall deliver a
Non-Compliance Notice to the Administrative Agent, each of the foregoing certifications shall
be deemed to be made additionally on the Borl'Owing Date as if made on such date,
The undersigned is executing this Notice of Borrowing not in an individual capacity, but
in the undersigned's capacity as a Responsible Officer of the Borrower,

Case 1:09-md-02106-ASG Document 37-15 Entered on FLSD Docket 02/18/2010 Page 3 of 3

Very truly yours,
FONTAINEBLEAU LAS VEGAS, LLC,

By: Fontainebleau Las Vegas Holdings, LLC,
Managing Member of each of the foregoing
By: Fontainebleau ResortProperties I,.LLC, its
Managing Member
By: Fontainebleau Resott Holdings, LLC, its
Managing Membet
By: Fontainebleau Resorts, LLC, its Managing
Member
By:
Name:
Title:

2

Xi;;;~~

Sr.Viee President and Chief Financial Officer