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 389-9 Entered on FLSD Docket 12/06/2013 Page 1 of 30

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO 09-MD-02106-CIV-GOLD/GOODMAN

!FILED by _ _ _
,f)(""
. , ,1

D,C,

0' I)01',
{ .. .

STEVEN M. LAR IMORE
CLER K U. S. DIST. CT.
__ S. D. of FL A. - MIAMI

IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION '
MDLNo.2106
1bis document relates to all actions.
_ _ _ _ _ _ _ _ _ _ __ _______ 1

DECLARATION OF ROBERT W. MOCKLER IN SUPPORT OF TERM LENDER
PLAINTIFFS' RESPONSE TO BANK OF AMERICA, N.A.'S EVIDENTIARY
OBJECTIONS INCLUDED IN ITS RESPONSE TO PLAINTIFFS' STATEMENT OF
ADDITIONAL UNDISPUTED MATERIAL FACTS

I, Robert W. Mockler, declare as follows:

1.

I am a principal with the firm McKool Smith, P .C., counsel for Plaintiffs in the

above-captioned action. Except where otherwise indicated, I have personal knowledge of the
facts stated' herein and, if called as a witness, could and would competently testifY t11ereto. I
submit this declaration in support of the Term Lender Plaintiffs' Response to Bank of America,
N.A. 's Evidentiary Objections Included in its Response to Plaintiffs' Statement of Additional .
Undisputed Material Facts in Opposition to Defendant's Motion for Partial Summary Judgment.
2.

A true and correct copy of excerpts of the deposition testimony of Peter V.

Badala, dated August 16, 2011, is attached hereto as Exhibit A.
3.

A true and correct copy of excerpts of the deposition testimony of Robert Barone,

dated April 11, 2011, is attached hereto as Exhibit B.
4.

A true and correct copy of excerpts of the deposition testimony of Shepherd G.

Pyror IV, da.ted August 17, 2011 , is attached hereto as Exhibit C.

1

FILED UNDER SEAL

Case 1:09-md-02106-ASG Document 389-9 Entered on FLSD Docket 12/06/2013 Page 2 of 30

5.

A true and correct copy of excerpts of the deposition testimony of Bret Yunker,

.dated March 1,2011, is attached hereto as Exhibit D.
I declare under penalty of peljury under the laws of the United States of America that

the

foregoing is true and correct.

DATED: October 7, 2011
ROERT W. MOCKLER

2

FILED UNDER SEAL .

Case 1:09-md-02106-ASG Document 389-9 Entered on FLSD Docket 12/06/2013 Page 3 of 30

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing DECLARATION OF ROBERT
W. MOCKLER IN SUPPORT OF TERM LENDER PLAIl'lTIFFS' RESPONSE TO
BANK OF AMERICA, N.A.'S EVIDENTIARY OBJECTIONS INCLUDED IN ITS
RESPONSE TO PLAINTIFFS' STATEMENT OF ADDITIONAL UNDISPUTED
MATERIAL FACTS was filed with the Clerk of the Court. I also certify that the foregoing
document is being electronically served this day on all counsel of record or pro se parties
identified on the attached Service List by agreement of all counsel.

Dated: October 7, 2011.

Lorenz Michel Pruss

Case 1:09-md-02106-ASG Document 389-9 Entered on FLSD Docket 12/06/2013 Page 4 of 30

SERVICE LIST

Bradley J. Butwin, Esq.
Daniel L. Cantor, Esq.
Jonathan Rosenberg, Esq.
William J. Sushon, Esq.
Ken Murata, Esq.
Asher Ri vner, Esq.

Defendants
Bank of America, N.A.

O'MEL VENY & MYERS LLP
Times Square Tower
7 Times Square
New York, NY 10036
Tele: [phone]
Fax: [phone]
Kevin Michael Eckhardt, Esq.
Jamie Zysk Isani, Esq.
HUNTON & WILLIAMS
1111 Brickell Avenue
Suite 2500
Miami, FL 33131
Tele: [phone]
Fa;,,: [phone]

Defendants
Bank of America, N.A.

Case 1:09-md-02106-ASG Document 389-9 Entered on FLSD Docket 12/06/2013 Page 5 of 30

EXHIBIT A

Case 1:09-md-02106-ASG Document 389-9 Entered on FLSD Docket 12/06/2013 Page 6 of 30

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA.

IN RE: FONTAINEBLEAU):.AS VEGAS,
CONTRACT LITIGATION.
MDL NO. 2106.
CASE NO. 09-MD-02106-Crv-GOLD!GOODMAN

DEPOSITION of PETER V. BADALA, taken
pursuant to Notice, held at the law offices : of
0 ' MELVENY .;, MYERS, LLI? ( Times Square Tower, 7 Times

Square, New York, New York, 10036, on Tuesday,
August 16, 2011, at 9:00 a.m . before JEANNETTE
MCCORMICK, a Certified - Shorthand Reporter, License
No; XI00920, and a Notary Public.

JOB No. 169494

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Case 1:09-md-02106-ASG Document 389-9 Entered on FLSD Docket 12/06/2013 Page 7 of 30
PETER V. BADALA
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Q. SO essentially 917 summarizes 919 through
928?
A. 919 is a summary of the detail that makes up
the 64 million on line 12 of Exhibit 917.
Q. SO 919 is the detail ofa line item on 9177
A. Correct, for IVrs number 12.
Q. And 920 is the same thing as 919 but for a
different period and different M report, correct?
A. Right. So you can see the reference in the
heading, it will say - it will give you the
Tumberry West Construction ACR. It will give the
date of June 11, 2008. That's probably the date of
the ACR. And then it will refer to the M report
that it could be found in.
Q. And the same is true of Exhibits -- all of
the Exhibits 919 through 928, the same type of
summary just for different M reports, different
period?
A. Same mechanics, correct.
Q. And how did you use these Exhibits 919
through 928 in coming to the conclusions in your
report?
A. This is the source data that is then used to
time phase, if you will, the information for each of
the POCs included in the Boyken analysis.
Page

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Q. So, for example, if you look at the Boyken
analysis, and you conclude that a poe isn't included
on any of the ACRs, that means you or someone else
went through Exhibits 919 through 928 and checked to
see whether a poe was listed; is that right?
A. I think that is generally correct. And then
to - you then use 918, of course, as well because
that is the source for the enhanced budget numbers.
Q. Did you do anything else with 917 through
928?
A. Probably I did with respect to looking at the
May 2008 period.
Q. [think we can set aside 917 through 928
unless you want to reference them later on. I think
we can tum back to your expert report. See if I
can pick up where we left off.
A. Okay.
Q. Let's go to paragraph 63. So what is the
basis for your conclusion that.Mr. Boyken's review
of the structural steel change is unsupported by the
documents?
A. I guess the way I would describe it is the
suggestion that these costs, this 40 million
dollars, was known to be significant as they want to
describe them, costs were known a year in advance.

8/16/2011

And my point is there's a process that negotiation
of plarming and even discussion among the limited
documents that Mr. Boyken has provided that suggests
there was a process of discussion going on during
the period.
Q. Let's look at Exhibit WWI to the Boyken
report, which is the last exhibit. I know you don't
have tabs, but it should start about a dozen pages
in. It's the WW steel change order.
A. Yes.
Q. If you go back a few more pages -- it's
actually back the other direction.
A. This way?
Q. Yes. A couple more pages in. Right there.

So this is a document you looked at in assessing
Mr. Boyken's report, right?
A. It's one of the documents, yes.
Q. And what is this?
A. This is the owner executed change order for
the structural steel drawings POC 19A.
Q. SO you would agree that IV! and Bank of
America knew about this change at least by the time
they received this letter change order some time in
June 2008?
MR. MURATA: Objection.
Page

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THE WTINESS: It was provided to them
around that period of time, yes.
BY MR. MOCKLER:
Q. SO at least by June of2008 M and Bank of
America knew there was going to be 41 million
dollars more of structural steel pursuant to this
OCO, right?
MR. MURATA: Objection.
THE IVlTNESS: There was a change order
for the structural steel.
BY MR. MOCKLER:
Q. And it was for 41 million dollars?
A. And it was for 41 million dollars.
Q. And change. You also agree that Tumberry at
least knew that there was going to be a need for
more structural steel much earlier than that, right?
MR. MURATA: Objection. Speculative.
THE WTINESS: There is a documentthere is documentation included within
Mr. Boyken's Exhibit WWI that would indicate
there was a change order request in June
2007.
BY MR. MOCKLER:
Q. And you can see from that change order
request that Tumberry West was notified some time

Page 1.18

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30 (Pages 117 to 120)

Case 1:09-md-02106-ASG Document 389-9 Entered on FLSD Docket 12/06/2013 Page 8 of 30

PETER V, BADALA
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around June 2007 that WW Steel was saying that they
wanted another 41 million dollars for structural
steel, right?
MR. MURATA: Objection.
THE WITNESS: There is a pricing
proposal.
BY MR. MOCKLER:
Q. For structural steel from WW Steel, right?
A. Yes.
Q. Do you understand why it took from June to
2007 to Mayor June 2008 for that to proceed to
another change order?
A. Well, Mr. Boyken doesn't provide very much
documentation on this issue, but there is a letter
from the structural engineer dated May 29, 2008
which provides some insight.
Q. What insight does it provide?
A. That the drawings have been evolving due to
refmements by the designers and the landscape
engineers, clarifications were made to the drawings,
other design impacts due to elevators stair
refinements, other clarifications. And it goes on
to conclude that the structural drawings have been
through an evolution process with the architectural
designer drawings which is very common for

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Q. Anything else?
A. I think that exhausts the paper in Boyken's
file.
Q. Were these owner change orders included with
IVI project starus reports?
A. These what?
Q. Owner change orders, executed owner change
orders.
A. Yes. I believe so.
Q. Including this one?
A. I believe so.
Q. Have you reviewed Mr. Boyken's deposition?
A. Yes.
Q. Is there anything that you recall disagreeing
with in it other than what's in your report?
MR. MURATA: Objection.
THE WITNESS: I can't say that I was
looking at it from that perspective. I was
trying to get a read of his deposition to see
if it was consistent with his report.
BY MR. MOCKLER:
Q. And what was your opinion of whether it was
consistent with his report?
A. It seemed to be.
Q. Did you form any other opinions not expressed
Page 123

Page 12l.

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fast-track projects.
Q. SO your conclusion from this letter is that
the delay from June 2007 to May 2008 was the result
of design evolution?
A. It's MR. MURATA: Objection.
THE WITNESS: It's not a delay. It's an
evolution.
BY MR. MOCKLER:
Q. SO how about this, your conclusion that the
lapse of time from the June 2007 price quotation to
the June 2008 owner change order was the result of
evolution in the drawings?
MR. MURATA: Objection.
THE WITNESS: I'm just reciting or
stating to what Mr. Boyken has provided in
the documents that explains the period
between May 29 of2008 and June 21 of2007.
BY MR. MOCKLER:
Q. Do you see anything else in this
documentation to explain that delay?
A. Yes. On May 8,2008, it also discusses the
efforts that were made by the parties, the designer,
Turnberry West and WW Steel to minimize the costs
and the tonnage increases.

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in your report after reading his deposition?
A. I didn't read it with that - with that
objective in mind. I can tell you that it reaffirms
my analysis and my opinions with respect to the
Boyken report.
Q. And you haven't been asked to perform any
additional analysis or form any additional opinions
based on anything that Mr. Boyken said in his
report?
A. I haven't talked to the attorneys about that.
Q. Let's talk about Mr. Pryor. I will get rid
of more of my documents here by marking this one.
(Whereupon, Plaintiff's Deposition
Exhibit 929 was marked for
Identification.)
BY MR. MOCKLER:
Q. So does Exhibit 929 look like something you
recognize?

A. Yes.
Q. Is it the Pryor report you reviewed in
connection with your report?
A. The section that I looked at, yes, to be from
the Pryor, his prior.
Q. What section did you look at?
A. Opinion number 2.

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Case 1:09-md-02106-ASG Document 389-9 Entered on FLSD Docket 12/06/2013 Page 9 of 30

1

"r'"

C E R T r F I CAT E

"

2

3
" :4

I', JEANN)::TTE McCORMICK, a Certified
Shorthand Rep~r,tei and Nota:t;y Public, certify that
,

"

5 , the , foregoing is ' a true an'd accurate , Computerized
6 Transcript of' the Depositio? w.i\:hin.

.,

7

8

I further certify that I am neither

, 9 attorney" of counsel for, nor related to or employed
10

by any , of the parties to the action in , which ' the'

11 ,Depositions ,a.re, 'talj:eri', and further that' I am not a

12

relative or ,employee of, any attorney or counsel,

,13

employed in this case, nor ' am I financially

14

interested in the action.

15

16
17

18

~rnc~

19

JEANNETTE McCORMICK, C.S.R.

20
21
22

23
." i

" '.' .

24

25

.

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E HIBITB

Case 1:09-md-02106-ASG Document 389-9 Entered on FLSD Docket 12/06/2013 Page 11 of
30

UN~TED

STATES DISTRICT COURT

SOUTHERN DISTRICT ·OF FLORID.A

IN.RE:

FONTAINEBLEAU LAS VEGAS

CONTRACT LITIGATION MOL NO.

2106

This document re~ates to ~ll actions. ·

VIDEOTAPED D.E POSITION OF ROBERT BARONE
New York, New York
Monday, .. April 11,

·Reported by:

AYLETTB GONZALEZ
CLR
JOB No .

159910

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2011

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30
4/11/2011

ROBERT BARONE
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Q.

Do you recall Mr. Bonvicino had
predicted or had known that there were 150
million dollars in cost overruns?
MR. MURATA: Objection.
A. I remember him speculating.
Q. Speculating fairly correctly,
right?
MR. MURATA: Objection.
A. I guess so.
(plaintiffs Exhibit 867,
e-mail from Devin Kumar to Mr. Barone
and Mr. Bonvicino, with attached
spreadsheet, marked for
identification, as of this date.)
Q. 867 is an e-mail from Devin
Kumar to you and Mr. Bonvicino and it
attaches a spreadsheet that I believe shows
an additional 187 million dollars in costs
over budget. You see this?
A. How much?
Q. I think if you look in the far
right, it says about 187 million?
A. Yes.
Q. Do you recall seeing this
e-mail or spreadsheet around the time?

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A. rt may have had to do with the
advance certificate.
Q. Okay. Just to point you to
page 7, again, in that paragraph we've seen
a similar paragraph in the other reports,
the last sentence of the first paragraph:
"While the ACR has been submitted by the
developer of the true representation of
costs, IVI is still concerned all
subcontractor claims have not been fully
incorporated into the report."
A. Correct.
Q. Do you recall being asked by
Bank of America, and possibly others, to do
a cost to complete review for the project?
A. Yes.
Q. Do you recall what you were
asked to do?
A. Specifically, no.
Q. Generally?
A. Generally, look at the costs as
they were put forth by the developer.
Where they came from. How they put them
together and see if their approach was
creditable.

Page 85

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A.
yes.

3

Q. You recall what your response
was?
A. That I said it in here, I'm
sure -~
Q. Paragraph 32.
A. I think we go back to stunned.
Q. I'm going to show you what's
previously marked as Exhibit 828. This is
Project Status Report No. 23. If you
would, just confirm that that's what it is.
A. Yes, it is.
Q. SO, this was, essentially, the
report from March; is that right?
A. I donlt know. Let's see.
MR. MURATA: Objection.
A. It's a report for February
through March. We were there on March 2nd.
Q. SO, it seems like it's prepared
a little bit later than on schedule with
the other ones.
Do you know why that is the
case?
MR. MURATA: Objection.

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I remember something like this,

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Page 86

Page 87

Q. Do you recall what your general
conclusion was?
A. No.
Q. SO, let'sMR. MOCKLER: rn give you
guys copies of these.
Q. And you can look at your
Declaration as well.
A. Okay.
Q. This was previously marked as
Exhibit 298. Can you just confirm that it
is the cost to complete review.
A. Yes, it is.
Q. And that's your signature there
on page 2?
A. Yes, it is.
Q. Do you recall receiving
information about a "enhanced version" of
the project submitted by the developer?
A. I remember - I remember
something about it, yes.
Q. Let's look at your Declaration.
So, starting on paragraph 34 A. Yes.
Q. - why don't I just have you

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4/11/2011

ROBERT BARONE

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MR. MOCKLER: Finish mine. I
don't know how much you guys are
gonnahave.
MR. MURATA: If you want to
take a break, sure. Let's go off the
record.
THE VIDEOGRAPHER: The time is
approximately 11 :59 a.m.
We're off the record.
(Whereupon, an off-the-record
discussion was held.)
THE VIDEOGRAPHER: The time is
approximately 12:02.
We're back on the record.
BY MR MOCKLER:
Q. Hello again.
A. Hi there.
Q. You recall we spoke about a
revised Construction Consultant Advance
Certificate that Mr. Bonvicino executed on
March 23rd?
A. Yes.
Q. Do you recall whether there was
an additional changes to the advanced
request following your execution of that

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document?
A. No, I don't recalL
Q. You recall we spoke about
changes to the project budget that had been
funded with equity early on in the timeline
in 2008?
A. I don't remember speaking about
that.
Q. I thought we had. I may be
wrong. Let's look at an exhibit.
Well, first of all, do you
recall that that occurred?
A. Yes.
Q. And what was your understanding
of -- your recollection of what happened?
A. My recollection was that there
were significant structural steel changes
amongst some other minor things, but after
the design was finished that had to be
rectified.
Q. Do you recall how you learned
about that?
A. It was disclosed by the
borrower.
Q. The borrower told there's a

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couple hundred million dollars in increased
costs?

MR. MURATA: Objection. That's
not his testimony.
A. I don't remember exactly how it
happened.
Q. Let's look at a document. I
don't think ifs been marked yet, so let's
mark that as the next one.
(Plaintiff's Exhibit 868,
Project Status Report No. 14, marked
for identification, as of this date.)
Q. SO, again, flfSt, if you would
look and identify the exhibit as -- or
confirm that it's Project Status Report No.
14.
A. Yes, it is.
Q. And if you look on page 2, the
first sentence says: "Direct cost budget
was increased by 190 million."
You see that?
A. Yes.
Q. Do you recall that that
happened?
A. Yes, I do.

Q. You think it was for structural
steel? Thafs your recollection?
A. There were some - yeah, there
were revisions - there were completions of
design that occurred right after closing
that this was a result of additional costs.
Q. And those costs showed up
whenever the reporting period was for this
June 25th, 2008 report?
A. I believe so.
Q. Do you recall having concerns
about any delay in getting information
about those changes to the budget?
MR MURATA: Objection.
A. No, I don't remember.
Q. Mr. Barone, you received a
Subpoena in this case calling for you to
join us here today. You recall that?
A. Yes.
Q. Let's mark it as the next
exhibit.
(plaintiff's Exhibit 869,
Subpoena, marked for identification,
as of this date.)
Q. Do you recall receiving - this

~Sarnoft
877;955.3855

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Case 1:09-md-02106-ASG Document 389-9 Entered on FLSD Docket 12/06/2013 Page 14 of
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C E R T I F I CAT E

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2

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STATE OF NEW YORK

S8. :
4

COUNTY OF ' RICHMOND

)

5

6

I, AYLETTE GONZALEZ r a Notarr '

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Public for ' and within the State of New

8

York, do

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hereby , cert~fy:

That the

\~itness,

ROBERT BARONE,

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whose examination is hereinbefore set forth

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was duly sworn and that such examination is

12

'a true record of the testimony given ,by

13

that witness;

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I

furthe,r certify that I am not ,

15

related to any of the parties to this

16

action br blood or by marriage and that I

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am in no way interested in' the outcome of'

18

' this matter.

19

IN ',WITNESS WHEREOF, I have

20

hereuntoset ,IDY hand this 20th day of

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April, 201+.

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, 24

(

"'.

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Global Deposition

Servic~s

[phone]

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EXHIBIT C

Case 1:09-md-02106-ASG Document 389-9 Entered on FLSD Docket 12/06/2013 Page 16 of
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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF FLORIDA

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---------------------------------

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IN RE: FONTAINBLEAU LAS VEGAS

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CONTRACT LITIGATION

Case No. 09-MO-02106

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MOL No. 2106

CIV-GOLD/GOLDMAN

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This document relates to all

10

actions.

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---------------------------------

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14

Deposition of SHEPHERD G. PRYOR IV,

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taken at 865 South Figueroa Street,

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Los Angeles, California, commencing at

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9:00 a.m. Wednesday, August 17, 2011, before

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Gail E. Kennamer, CSR 4583, CCRR.

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APPEARANCES OF COUNSEL:
FOR THE PLAINTIFF:
HENNIGAN DORMAN, UP
BY KIRK D. DILLMAN, ESQ.
865 South Rgueroa Street, Suite 2900
Los Angeles, Califomia 90017
[e-mail]

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marked as Exhibit 932..

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MR. DIlJ.MAN: Okay.
(Whereupon the dOalment referred to is marked by
the reporter as Exhibit 932 for Identification.)

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FDR THE DEFENDANTS:
O'MRVENY & MYERS UP
BY DANIEL L. CANTOR, ESQ.
and JOHN D. ESTERHAY, ESQ.
711mes Square
New York, New York 10036

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II
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Q. I wi!! show you a document that w e have had

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213.694.1200

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BY MR. CANlDR:

I don't know whether you have seen It before.
rm Impressed you have an
exhibit number that wasn't a 1.
Q.

MR. DIllMAN:

BY MR. CANTOR:

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Q. Mr. Pryor, have you ever seen this document
before?
A. Yes.
Q, And if you'd take a Jook at page '57 of the

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dOOJment

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212.408.2483

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[e-mail]
[e-mail]

Is that your signature?
A. Yes.

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Q. And could you tel! me what this document is,

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sir?

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report and In particular, pag~ 4 through 6 of Exhibit

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A.

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25

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A. (Indicating.)

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Yes.

A. This Is my expert report dated May 23rd, 2011.
Q. Okay. If you could tum to Exhibit A to your

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1

Wednesday, August 17, 2011; Los Angeles, canfornla

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9:00 a.m.

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-000-

3

SHEPHERD G. PRYOR IV,

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a witness herein, having been administered the oath,

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testifies as follows:

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BY MR. CANTOR:
Q. Could you state your full name for the record,
please.

A. On page 6.
Q. Okay.
A. There Is a listing of directorships In the
company. The second company listed, Ultelg Engineers,
I'm now aJITently chairman of the board of that

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A. Shepherd G. Pryor IV.

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Q. And could you give me your business address,

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please.

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A. 975 North Avenue, Highland Park, lI!Jnols

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60035.
Q. And, t>1r. Pryor, until a minute or so ago, you

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and I never met beforer have we?

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A.. We have not

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Q. Am I correct, sir, you have been retained as

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expert witness on behalf of the plaintiffs In this

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an

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litigation?

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-EXAMINATION-

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Yes. WIth one update.

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A.

Q. Okay. What would that be?

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Q. Is that your current resume and cuniculum
vitae, however you prefer to tenn It?

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A. Yes.

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company.
Q. Okay. Not executive chalnnan?

A. Correct.
Q. If you'd

tum back to page 5, I will walk

through your resume a little bit and try to do It In
chronological order.
MR. DIUJ-1AN: Sony. Page 5 of Exhibit A7
HR. CANTOR: Of Exhibit A. I'm sorry if that
was unclear.
Q. Am I correct, sir, that Fi rst National Bank of

Chicago was the first job In the banking Industry you
had?
A. Yes, it was.
Q. Okay. And you started there - What Is the

Rrst Scholar Program, please?
A. The First Scholar Program was a management

2 {Pages 2 to 5}

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training program that took a selected group of
employees, brought them In as a selected gtoUp of
employees. And I Involved them In fUHime day~to-day
work In various rotational assignments, and at the same

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time those people also attended business school at
night
Q, Isee.

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And during that period, the asslgnments you got
were various areas of the bank just to leam those
areas; Is that right?
A. They were various areas. It was sometimes
independently negotiated areas. So, for example, I
worked In the holdIng company, I worked In the bust
department, and I worked In a corporate banking area as
well.
Q. Okay. And then you became a loan officer In
corporate lending?

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get mixed. I was a loan officer or an assistant vice

president over the course of time when I was with First
National Bank of Chicago. I was In the corporate

banldng group for most: of that time.
Q. I see.
A. And I was In more than one unit of the
corporate banking group. So that I focused at one
point on vessel owning and operating campan les Q. rught

A. - and at another time on capttal goods

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manufacturers.

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Q. Okay. The vessel operating companies, what
kind of ships are we talking about?
A. Could be ocean-golng vessels, such as LNG

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A. As a loan officer, I would be marketing
services of the bank to potential customers. I woold
be negotiating loan commitments, analyzing the credit
worthIness of customers, document! ng the loans,
monlllJring the loans, and maintaining the customer

carriers or it could be river boats, which could be
stem whee! steamers, barge, tow boats, those types of
vessels.
Q. Did it indude things like large passenger

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A. Yes.
Q. And dE!SQ'lbe for me your responsibilities as a
loan officer in corporatelending?

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ships, ocean liners?
A. We looked occasionally at ocean liners. Those

,.

would fall within the category. I don't recall having
a loan of that natlJre at that time.
Q. And were these Single-lender loans?
A. Both Single lend er and multi lender,
Q, When they were multi lender, generally

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relationship.
Q. Okay. Now In your resume here you state that
you made construction finance loans to vessel operating
companies.
These are loans to build shIps?
A. Yes.
Q. Okay. Anything other than that - Wrt:hdrawn.
Let me as\< a better question.
Is anything else encompassed within construction
finance loans to vessel operating companies as it
relates spedfically to your experience at First
National?
A. Well, I had a number of different experiences
at First National, one of which was providing
construction finance for vessels.
When t was in a unit that specialized in ship
finandng, that was the name of the unIt.
Q. Okay.
A. Also, at First Chicago, I was In other
assignments, so I was in other parts of the corporate
banklng group.
Q. Okay. And that's while you were a loan
officer corporate lending or was that later on In your
career at First National?
A. Well, I was - Some of these things are - Can

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speaking, how many co-lenders would you have?
A. Well, in the case of the LNG carriers, which
were several hundred million dollars, there were a
fairly large number of co-Ienders,
Q. Did you have any agent responsibilities with
respect to these multi-lender loans in connection with
vessel - for vessel operating companIes?
A. Trying to recall. I believe In one - In one
or two, yes.
Q, Okay. You spedfically recall Instances in
which - Well, withdrawn,
And what. jf any. agent responsibility did you
personally have, in those instances?
A. Well, the ones I'm reca!1ing, I would have
been the - the loan officer who was in charge as the
agent
Q. Okay. And what were their agent
responsibilities?
A. Well, in any of those cases where I was an
agent on a multi-bank credit, whether it was that
particular loan, I was sort of thinking about, others.
An agent would be responsible for collecting money,
coordinating with the - the various lenders,
syndicate - syndicate lenders or partidpants,
coordinating with the borrower, determining whether

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funding was appropriate, for example, the conditions
precedent, and handling a variety of Informational
transfers between borrower and the various lenders.
Q. For these loans to the vessel--operating
companies that we have been talking about where you
were acting as agent, were the funds, the loan funds,
dIsbursed aU at one time or were they disbursed over
time?
A. In the particular one I'm thinking about.. 1
believe there were some funding over a period of time.
Q. Okay. Do you remember how long a period of
time that was?

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A. Construction process took about two years, r

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think, In that one.
Q. Okay. Was the funding at regular Intervals?

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A. I don't recall enough of the detail.
Q. Okay. Then at some point you became a VP In
the corporate lending area. And jf I understood you
correctly, the industry focus shifted; is that correct?
A. I was In a different unit, a unit that did not
do vessels, but financed capital goods manufacturers.
Q. Okay. And when you say financed capital goods
manufacturers, was it one particular part of their
operations or would it be different types of loans
depending on what they needed?

Involved In, \n this area for construction, a plant or
something similar?
A. There could have been, but I don't recall the
particula~

Instance.

these loans have been single loans Single-lender loans or multi~lender loans?
Q. Would

A. They were both. I recall instances where I
was - played the agent, the direct agent role, and
credits with 15 or 20 partidpatlng lenders.
I recall others where it was a single-bank loan.
Q. Okay. And do you have any sense 0 f how many
of the loans In this part of your career you were
Involved In as an agent?
A. I can't recount exactly.
Q. can you give me an estimate? Fewer than five?
More than ten?
A. Probably over fIVe. Probably less than ten.
Q. Okay. And then in 1977, you moved to Wells
Fargo; correct?
A. Correct.
Q. Why did you leave First National Bank of
Chicago?

A. I was reauited by Wells Fargo to open their
first office for corporate banking outside of
california.

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A. It would be the latter. capita! goods
manufacrurers would be automotive, construction, farm
equipment, machine tool. A variety of companies that
might find thei r way Into that partiaJlar OJStomer
group. But we would provide anything that was a that was provided by a bank at that time: Tenn loans,
revolving credits, short term Q. RIght
A. ~- current lines, letters of credit So the
whole - the whole array.
Revolving credits are the ones that have the
characteriStics that are most simUar to the
construction loans where there is borrowing. Sometimes
In revolvIng credIt, there Is borrowing, repayment and
reborrowing, or sometimes there .is just a series of
borrowings as the loan more or less fills up over time.
Q. The revolving credits that you were dealing
with for these borrowers, were they generally in the
nature of workIng capital-type loans, loans for current
operations, as opposed to for capital projects?
A. They could be for any different reason. They
could be working capital. They could be capItal
projects. They might be mergers and acquIsitions.
Variety of uses.
Q. Okay. Were any of the loans that you were

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Q. Okay. And you started there as an assistant

vice president and worked your way up to sen!orVP and
regIonal manager; right?
A. I actually left: as seniorVP and deputy group
headQ. Okay. I'm sorry.
A. - for corporate.
Q. WhlJe you were in ChIcago, It was - the most:
senIor position you obtained was senior VP and regional
manager; is that correct?
A. More or less correct. In my transition or my
effort to make a tranSItion, r was takIng the role of
deputy group head, but I ultimately made a decision not

to move to CalifornIa.
Q. Okay. In the bullet points under the entry
for Wells Fargo In Chicago, the second bulJet poInt
down, you state that, among otl1erthlngs, you were
personalty active In lending to companIes.
WhIch period during your time at Wells Fargo in
Chicago are you referring to as being personally active
In lending to companIes?
A. The entlre period.
Q. Okay. And SO that Indudes when you were
regional manager?
A.. Yes.

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Q. Okay. And when you say ·personaUy active In
lending to companies,· can you explain to me what you
mean by that?

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A. - slice of the map.

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And then at the point where I was transferring to

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canfomla, just added everything in the Northern
californIa, Pacific Northwest; so It just changed that
geography.
But the - but I had P&!. responslbJllty basically
for the all of the busIness, the busIness d the
corporate banking group In the Midwest..
Q. What percentage of your time when you were
senior vice president was spent on the - the active
lendlng~type actlvitles that we have been dlsCJsslng as

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opposed to your other duties as senior vice presIdent?
A. Well, the lendIng was our major busIness. So

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A.. Sure. The market that we partldpated In, In
the time period In whIch I was playIng that role In
partiOJlar, the late '80s, mid to late 19805, our loans
that we be<:ame Involved In were more and more
concentrated In the hlghty leveraged transactions.
Tended to be larger, more leveraged. They were a group
of leveraged buyouts, meJ11er and acquisition
flnandngs, leverage recapitalizations, and other
transaCtions that were fundamental sort or
transformative character to the borrower.

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Most of the partfdpatlons or the slze of the our portion of the loan would be In the 30- to
100 mllUon-doltar area.
Anything that approached $100 mUllan would

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it would have been, I don't know, maybe 90, 95 percent,.
and the other smaller compo.,ent Is In pUrSuing the

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require that I get on a plane, Ily to California, and
personally deal wIth the lnternal approvals, which
meant that In order to accomplish that, I would be very
deep{y Involved in the dEmin during tj,e origination of
those loans.
So I would visit customerS along with people who
worked for me. I would help in the analysis and - as
well as review analyses that were done by those

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managerial, coordination of vanous things that had to
be dOlle to - to justoverse:e the activities of all of
the employers.

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Q. In the third bullet point down there under the
Wells Fargo Chicago entry, you reference that you
agented three major loans.
Do you recall the details d \those loans?
A. To some degree.
Q. Who were - Who were the company - the
borrowers? Excuse me.

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players.

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A. One borrower was RelIance 8ectric. It's a

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leverage buyout.
Q. Do you recall -I'm sorry.
A. let me think about. The(IndIcating.)
I want to set that loan aside.
Q. Okay.
A. I'm qUestionIng whether that was exactly what
rote we were playIng.

23

I would read and partldpate In the negotiation of
documents, the actual loan dOaJments, whether it was
our documents or whether it was dOaJments In a loan
where we were partldpating.
So I played a very direct role, very similar to
tile role that I would have played as an account
officer.
Q. Was there a threshold below which you didn't
get involved A. It would Q. - generally speaking?
A. Generally, I was extremely involved as I went
through that entire period. Thcre may have been some
loans in the 1- to 5-mlllion sort of category where I
was less involved.
Q. Okay. And what were - to the extent that it
differs from what you were just explainIng to me, what
were your primary responsibilities as a senior vice
president and regional manager?
A. I was -1 was charged with the marl(eting and
Origination and customer ma1ntenance in the Midwest.
Everything from OhiO, to Nebraska, to Missouri, !et's

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Q. Right.

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One - one was the Revco OS.
Q. Okay. AndA. One was Farrell Gas.
Q. F-a-N-e-I?
A. F-a-r-r-e-I~l. Gas.
Q. Okay.
A. One was West PoInt pepperell, which W35 really
a Farley Industries, F-a~r+-e-y, tndustries/West PoInt
Pepperell.
Q. I remember that actlJa!ly.
So in your resume you mentioned three major loans.

You have given me three, plus Reliance Electric.
Do you - As you sit here now, do you recaU
Whether Reliance 8ectric was one that you guys agented
It or not?
A. We played a signlficant role. We may net have

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agented that partirular one.
Q. Okay. When was the RevtO DS loan?
A. Late 19805.
Q. And what k.Ind of finandng was tnat?
A. It was a leverage buyout.
Q. And what sorts of loan fadlltics did WeDs

•
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Fargo provide or partidpate In, In connection with the

leverage buyout?
A. We provided a senIor lending tadlities. That
would be senlor--serured revolving credits. There CDuld
have been a tenn loan. It would be a mlxbJre ofrevolvers and term loans would be our portion. And

there was a whole structlJre of other debt, subortfinated
debt and various mezzanine Instruments that were
provided by nonbanks.
Q. Now, when you provide - let's talk
specifically about Revco, but you can generalize, if
appropriate.
When you provide finandng in an LBO mntext, are
you simpty providing transaction finandng or are you
also providing finandng for the company's operations
post dosing of the LBO?
A. Well, you raise a good pOint because post
dosing, if you haven't provided for operations, you
probably created a bJ9 problem foryoursetf and the

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say this poorly, but let me - I will give It my best
shot·· Were these lenders a part of the lending group
pre-daslng or did they sign 00 - WillS the loan
syndicated or particIpation SOld post-C:lllSlng or both?
A. It was not a real either/or. They were They were·· These -- These lenders were not typically

loaning money or having corporate banking relationships

with the company pMor to the tronsadJon.
Q. Okay.
A. So for the most part, they were brought Into
the transaction. They were brought In pre-daslng [n
order to be a part of the clOSing. And then, of
course, post-clasJng this group of lenders would then
become the bank lenders for the company.
So we had to seek partldpants In the loan and •.
and talk to those people as they agreed or didn't agree
to come lnto the finand ng.
Q. Okay. And what was your role personally with
respect m the agenting responsibilities on this loan?
A. Wen, I was the manager of the unit In whlctl
the loan ....'as baing ne90tlated and Inltlated.
Because of the size of the loan, agaIn, I
partidpated In the analysis, the negotlat1ons. J met
multiple times with the bLlYout group prior to the
transaction, personall y involved In the negotiation of

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borrower.
Q. RJght
A. Generally, the leverage buyout f lnandng
generally has those two romponents. You got a certain
component that - that is necessary to affect the
initial transaction. So, for example, If It's a - If
it's a go-private transaction, the money is being paid
to stockholders, it's not retrievable ttlereafter, and
it's also not residing within the company. So thatfilat's the first component' of the transaction.
And thereafter, there is a need for woriting
capital and operational finandng.
Q. So the - the loans that we're talking about
here involved both aspects of that?
A. Yes.
Q. And the agentlng responsibilities would apply
to whim aspect of that?
A. Both.
Q. Both. And haw big was the lender group in
connection with the Revco oansactlon?
A. I remember speaking to a pretty sizable
roomful of bankers an more than one occasion on that;
so just trying to remember from that. There had to
between 25, 30 lenders, maybe more.
Q. Okay. And were these lenders - Tm gOing to

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tenns and conditions, and In ttle approval process.
In the syndication process, at the time we handled
aU within our office. We did not have StJb units or
the bank that were - that were providing the
syndlc:atlon's efforts. We mad e contlcG.
1 occasIonally had discuss/ons with other banks
that we had me.:!tings with, banks ilnd th~ potential bank
group; so I would meet occasionally wi!hsome of those
people and attended the closing and thereafter the
movement of money Is not handled and was not handled In
!he Ollcago office 50 the IJ'ansfers of funds and those
Issues were handled by a group that reported to me, and
that was housed In callfornla.
Q. Okay. And would that group have been the ones
who would have been r~nsib le for determlnlng whether
any conditions precedent to the bOlTOwer obtaining
funds had been met?
A. Thllt kind of responsibility would have been
resident with the loan officers, not the operation ill
people.
Q. Okay. And the roan office~ were people who
reported to you?
A. Yes.

Q. But you personally were not responsible for
reviewing a - a given reQUest for funds and

6 (Pages 18 to 21)

VERITEJ:T REPORTING COMPANY

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Case 1:09-md-02106-ASG Document 389-9 Entered on FLSD Docket 12/06/2013 Page 22 of
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determIning whether conditions precedent or other

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prerequiSites to funding had been met; correct?
A. I would not necessarily participate in al! cf

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Q. Okay. Why over time as opposed to when It
occurred?
A. There were some Increas!ng pressures that thIs
new CEO was hying to deal With.
Q. Okay. What were the natlJre of the dlsOJSSlons
with the other lenders?
A. Requests that the company was making for
waivers and amendments.

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Q. And were those waivers - requests for waIvers
and amendments granted?

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those, but I recall partldpatlng In some.
So If a question arcs e, for example, that might
come into my office for discussion.
Q. Do you remember any questions that arose arose on the Revco OS finandng?
A. Yes.

Q. can you ten me anythIng?
A. This company had a new chief finanda!

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officer, and he dedded that it would be a gocx::l idea to

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make a prepayment under the agreement, and came into

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the bank, probably made a notification that he was
planning to do prep ayment.
And I recall having discussions about whether that
was a good idea on the part of the comp any or not.

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Whether -- Whether, If they made such a
prepayment, they would have the ability to - to
reborrow.
Q. Okay. Were those discussions with him or
Internally at Wells Faryo?
A. I do - I recall some Intemal discussions.
There were certainly dlsQ.lsslons between him and
various people. I don't recall whether I was Involved

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A. Yes.
Q. And how was it determIned that those would
be - would be granted? Withdrawn.
How dld this - the bank group detennlne whether
those requests would be granted?
A. Typical waivers and amendments have a
requisite number of banks or proportionate number of
banks who would vote. Submitted to the banks as a .as a question or as a recommended action, and then the
companies recommended or requested the ac.tlon. The
banks vote. And If the requisIte number of banks
approve It, then It's an approved waiver or an approved
amendment.

Q. Okay. The Farrel! Gas trans:lI:tioo, when was
that?

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in the direct conversation with him or not.

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Q. With respect to that issue, were there any
conversations with other lenders?
A. r don't recall.
Q. Any other issues that you can recall that got
elevated to you in connection with the Revco OS
finandng?
A. r recall a conversation with the CEO about
a - r guess a threat that was issued to him from one
of the subordinated lenders, and it was - I don't
know - maybe threat is not the right word. Pressure
from the subordinated lender for him to come and ask
for some dispensations on the part of tile - of the
senior lenders.
Q. Dispensations for the company or for the
subordinated lender?
A. Wel!, dispensations for the company that would
have accrued to the benefit of the subordinated lender
in which - which it was - it was a - more of an
advisory conversation. I just gave my opinions on what
I thought.
Q. Were there any discussions with the other
lenders cnncemfng this request?
A. I think it materialized into discussions with
the other lenders over time.

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A. Again, in the late 1980s.
Q. Okay. And what kInd of financing was that?
A. That was a major acquisition finandng.
And followed by financing ofa company with
provisions for continued series of acquisitions:
Q. All the funds were to be used for acquisitions
as opposed .~ as opposed to operations?
A. Well, it would be hard to distinguish those in
a way. The company \va5 a propane distribution company.
It purchased operating entities.
Q. RIght
A. And those became immediarely part of Its
operation.

The use - I'm trying to recall whether the use of
proceeds was somehow specifically restricted to
acquIsitions. I don't believe it was. I think It was
a broad scope of uses of proceeds within which were
acquIsition finandngs, and they were conditioned by
certain rules that we negotiated.
Q. For example, If they wanted to acquire another
gas company and In so doing they recognized this
company had substandard equipment, could the funds be
used to purchase equipment or were they only to be used
for purchasing the owner.;hip interes t in this company?
A. That's what I'm saying. More than likely,

7

(Pages 22 to 25)

VERITElIT REPORTING COMPANY

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they would have purchased assets as opposed to some
ownership interest, and - and those assets would be
blended with their total pool of assets o....er time.
Q. I see.
A. So I believe that the use of proceeds was not

limited to making those small acquisitions on the
go-forward basis, but also encompassed other operating
entities.

Q. Okay. And what responsibilities did you

personally have with respect to the agenting of these
fad[ftjes?

A. Simnar to the other loan I was Involved In:

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Q. Were these loans where the bank group had

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In the meeting with the prindpals, meeting with the

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company over time, helping to conduct analysis,
overseeing and reviewing anatysis, partldpating In the
negotiations, partldpating In the approvals.
rommitted finandng in advance - long In advance of
the borrower actually - attually a~ng the
financ.lng or was it a situation for example with the
FoUow-on acquisitions where each time the company
would come back and say, ~Okay, I'm gOing to do this.
I need another million and a hatt" or whatever?
A. In the relationship that we had with the
company, there was the initial loan. There may have

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involveme:nt lD Revea, where at $Om e point In time only

certain issues would get elevated to you and the res t
was left to the lending officers?
A. Most of the day to day was left to the [ending
officers, yes.
Q. Do you recall whether there we re any Issues

that were - were elevated tD you with respect the
Farre!! Gas finandng7
A.

Yes.

Q. Can you tell me about those Issues?
A. From time

to time,

1 think we did process

either additional loa ns or additional changes.

amendments to the fundamental fir.anclng to provide them
with addItional funds to make those acquisitions, small
acquisitions, that we were diScussIng.
Q. Okay. West Point Pepperell, when was that?

A. Similar timehame, late 1980s.
Q. So for all of West Point Pepperell, Farrell
Gas, and Revco, these were all while you were senior
vice president and reg ianal manager?
A. Yes.
Q. And what kind of - What kind of financing was

West Point Pepperell7
A. It was a loan to Farley Industries to acquire
West Paint Pepperell.

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A. Well, the acquisTtion portion was fully funded
at dosing.
Q. Okay.

A. The initial acquisition was as large as the

company, existing company. So that was all ownership
transfer whether by assets or stock.. and it was - so
it was necessary to provide aJl that fundIng upfront
Q. I guess what fm getting at - and I apologize
if my question Is 11/ funned - were the banks as a
part of that initial finandng, were they committing to
provide finandng for other transactions down the road
or were they putting In all of their money at that
time, and It was being used for this initial
transaction?
A. As I recall, there was a - there was deeper
commitment. That is, suffident money to finance the
initial acquisition and then ongoing funds that would
be available both for the corporate operations and the:
other smaller acquisit10ns that might OCQJr.
Q. Was this a similar situation in tenns of your

7

Q. And similar tD what we tJlked about with
R..."'VCO, did it involve provic:llng finundng for
operations post dosing?
A. I would say yes.
Q. And what were your rcsponslbilities as agent
with respect to the West Point Pepperell finandng1
A. Very S
imilar to the - my desalplion in the

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been some amend ing and inaeaslng that went an
thereafter In the facilities. There could have been
possibly a new fudlity.
Q. In the initial loan, was that fully funded at
dosing?

other two cases.

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Q. Do you recall any lfI~nces with respect to
West Point Pepperell where issues that might otherwiSe
have be<'J1 handled by the lending officers .....ere elevated
tD your attention?
A. Yes.
Q. PleaS<! tell me what you recall.
A. We had il Cfr'agent bank~rs trust and we had
numerous waivers and amendments that were requested by
the company; and as a result, I wcs Involved In
numerous conversations about the waivers and
amendments.
Q. V'Jith the ro-agent?
A. With my account officers, with approval

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authorities with the c:o-agent From time to time,
definitely with the company, and coukl be conversations
with the banks. I don't f~CilI!.
Q. Okay. Now, other than these three that we

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8 (Pages 26 to 29)

VERITEXT REPORTING COMPANY

(21 2) 279-9424

www.veritext.com

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In 0I1cago, did you have any other experience agentlng

major loans?
A. The quallficatJon and the bullet point we're

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active In lending to companies?
A. I was certaInly personafly active In the

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have been talking about and that are referenced In
your - In your resume, while you were at Wells Fargo

Q. You were 00 the othcr side of the table from
what you had been doIng In ChIcago?
A. I wasn't just the appJ"Dllfng authority at that
point, but the approval authorities, the people that I
had to go and seek a final approval from .
Q. Right
A. I happened to be co-Iocated wIth. So It was
more a geographic change and the addition of the
Padfie Northwest to my respons1bUltles along with
those that I had In the ,." idwest.
Q. Okay. Did you have any agentlng
responsibilitles while you were senior vice president
deputy group head?
A. Well, as a continuation of those thIngs that I
had done when I was located In Ch!cago, those would
have contlnued.
Q. By that you mean, the specific loans that you
had worked on when you were; In Chicago?
A. RJght. Any of those things that were stili In
the portfolio.
I basically would have everything that was in the

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talklng about was that these were bUlion-doliar size
finandng in the '80s. A bun an-plus finandng was
probably comparable to some greater multiple,

8

mlnl-blllioll"do!lar finandng.
So yes, there were other situatIons where we might
have agented loans that were smaller dollar amount than
a blll10n dollars. Again, levelGge buyouts, levelGge
recaps, or acquisItion finandngs.
Q. Were there any Instances In which you were the
lending officer with sort of front-l ioe responslbJUty,
If you v.ill, for the agcntjng responsi bllitles?
MR. DILlMAN: other than as he's already
testified?
MR.. CANTOR: Yes. I'm excluding these three
nO'.....
MR. DIUJ1AN: Well, and First National Bank
of ChIcago.
MR.. CANTOR: All right. Let me start over.

It was dearly not that great of a Qu~on.
Q. During your time at Wells Fargo in ChIcago,

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approval process; but now the dis tance between me and
the approval authorities was much different.

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other than the three loans we have been talking about,
were there other Instances In whIch you were the
front*!1ne representative for Wens Fargo In terms of
Its agentlng responsi bilities?
A. As J had done at first DllCago, occasicnally
served as the direct agent as an account dficer, when
I came over to Wells Fargo, I played a very similar
role In banklng. I was a direct aCCount officer. I
was calling en QlStomers to setlc direct business. And
for several years, that was: the totAl of my - my
responsibilities before I took over ~ management
responSlblltties In that office.
And In that time period, I served from time to
Ume as an agent or I mIght have served as a direct
lender with a sfngle-lender transaction.
Q. Okay. Now, 1991, you moved out to San
Francisco and became: or may have -- shortly before you
moved became senior vice president. deputy group h!!ad;

correct?
A. r made a temporary move to San Frandsco

during that time period.
Q. Am 1 correct this was a promotion?
A. Yes.
Q. And In this posiUon, senior vice president
deputy group hearl, did you continue to be p"'
JSOr131l Y

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Chicago portfolio, now the addition of things that were
in the portfolio from the San Frandsco office that I
took: over. That - that was basically all the Padfic
Northwest
So from time to time, during that period,·I might
have become involved. I recall enough cnnversatioos to
know that I was Involved In and out of various loans,
vat10us agented loans.
Q. Okay. Now, you left that job after a year,

correct?
A. I left that job in, I think, aboutmid*l99l.
Q. Okay. Why was that?
A. May of 1991.
Q. 'Noy was that?
A. Family reasons. I had elected after - after
trying to make the move, decided that I would leave so
that my family would not be dissatisfied with mOving,
whIch It was becoming a very strong preference.
Q. Okay.
A. So it was a family decision .
Q. When you made that dedsion, you needed to
leave the bank as well?
A. Yes. Because we had d05erl our offices at
Southern caJifomia generally.
Q. Okay. I want to j ump ahead to the next item

9 (Page s 30 to 33 )

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Case 1:09-md-02106-ASG Document 389-9 Entered on FLSD Docket 12/06/2013 Page 25 of
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up, if you will on your resume. rm going to mangle
this name. Lobue Assodates,
A. lobue.
Q. Am I dose?
A. Lobue.
Q. lobue.

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What kind of business is that?
A. Lobue Assodates is an international bank
consulting firm.
Q. And how did you get involved with them?
A. Actually from an ad that they placed.

B

Q. Where was the ad?

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A. In some finandal press.
And ! was interested in putting together a product

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for a consulting company at the time. They were one
that I talked to, about 1994, 1995. I was looking to
put tngether a product to work on the credit process
for banks, and they did not have a credit process, so I
was oonglng that capability to them.
Q. And explain to me what you mean by "credit
process"?
A. The effidency and the efficcc:y of the credit
process, that is, the dedsion-making process,
authority for credit approvals, monitoring of credits,
the ratina and aradina of credits. Those thinas that

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about previously or is that a different solt of

function?
A. That's similar to what I'm talking about
Q. Okay. And then -Ratlona!!:zed underwriting
process for high growth mortgage finance company.· what
does that Involve?
A. There was a mortgage finance company that
Issued first mortgages and home equity loans and their
process took them 30 to 4S days to aCOlmpllsh, and the
project was to reduce the time necessary to ilCCDmplish

that
Q. Okay. let's talk about Shepherd G. Pryor IV
Management Consulting.

I can figure out where you got the nam e from. How
many other e.mployees are there In this company?
A. I am the employee.
Q. You are the employee.
looking at some of the bullets under that enby,
the thlrti one down, says "Evaluate, design, develop,
and reengineer critical business processes for
financial Instil:l.Jtions:
can you explain to me what.that means?
A. We!!, there is a colon, and then a series of
examples thereafter: Credit processes, credit training
systems, portfolio analysis, product development, those

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are done according to regulatory mandates by every
bank. but that sometimes are either costly, slow down
the process, or maybe ineffective and create risk.
Q. And what you did was to try and streamline
that process or make it more effident?
A. Yes. WeH, to rationalize that process. To
make it more effident on the one hand and to make it
more effuctive on the other.
Q. In the first bullet under that entry, you
refer to, wRedesigned the credit process and credit
policy for a major Saudi ArabIan bank.n Can you tell
me what you mean by credit policy?
A. Credit polides are generally dOQJments and
polides that govern the credIt process of a bank.
In this partiOJlar situation, I drafted and
designed the credit policy for that bank's approval.
But every bank has a - a policy framework: within which
its authority structure, its monitoring structure, aU
of the various things that the banks do in order to
maintain their - their control over, and the value
that they get from the credit relationships that they
have with their customers.
Q. Okay. The next bullet down talks about
Rationalized Credit Group.
Is that similar to what you've just been ta!klng

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types of things.
Q. I see.
A. So I was Involved In a number of different
projects to assist finandal institutions with those those areas.
Q. Okay. And then the next bullet down talks
about conducting on~site acquisition due diligence
(financial servIce).
What kind of due diligence would you be doing?
A. Credit, operational, legal, and accounting.
Q. And when you say "finandal services
Industry," would you be doing due diligence for
finandal services companies that were making
acquisitions or part of the lending process? What
would your role be?
A. The acquirer Is a finandal institution, and
they had a number of finandal Institutions of various
types that they were interested In aajuiring, and they
needed on.-site due diligence to verify aU of the
assumptions that they were maldng about the value.
And so I would go and either run a project team,
for instance, say legal due diligence - rm not an
attorney - but I would have a series of a group of
),3\vyers in the country doing legal due diligence and
then coming back to me for further direction or inquIry

10 (Pages 34 to 37)

VERITEXT REPORTING COMPANY

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Case 1:09-md-02106-ASG Document 389-9 Entered on FLSD Docket 12/06/2013 Page 26 of
30

Page 188
1

STATE OF CALIFORNIA ) ss

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I, Gail E. Kennamer, CSR 4583, CCRR do hereby
certify:

5

That the foregoing deposition was taken

6

before me at the time and place therein set forth

7

and at which time the witness was administered the

8

oath;

9

That the testimony of the witness and all

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examination were recorded stenographically by me,

12

and were thereafter transcribed under my direction

13

and supervision, and that the foregoing page.s

14

contain a full, true and accurate record of all

15

proceedings and testimony to the best of my skill

16

~.

objections made by counsel at the time of the

and ability.

17

I further certify that I am neither counsel for

18

any party to said action, nor am I related to any

19

party to said action, nor am I in any way interested

20

in the outcome thereof .

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IN WITNESS WHEREOF, I have subscribed my name
this 25th day of August 2011 ..

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~.
•..

--

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Gail E . Kennamer, CSR 4583, CCRR

212-279-9424

VERITEXT REPORTING COMPANY
WWw.veritext.com

212-490-3430

Case 1:09-md-02106-ASG Document 389-9 Entered on FLSD Docket 12/06/2013 Page 27 of
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EXHIBITD .

Case 1:09-md-02106-ASG Document 389-9 Entered on FLSD Docket 12/06/2013 Page 28 of
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3/1/2011

BRETYUNKER
UNl'rtn S'UI!t'ES lUillKRO?t'CY COtrn.'1

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SOO'Te::oUl DISTRICT OF FLORlDA
KI:AKI DIVl:SION

In re:

CASt NO.

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09-2~~al-BKC-AJC

roNnntt:B:t.EAU :t.hS WCOAS CON'rnACl' LI.TJ:GA'l'ION

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VIDEOTAPED PEPOSlrION Qf :sRE'.r TtlNKtR,
a ",itntHIS herein, takQIl. by theoPl.ail1ti:Ef, purauant.
to Artic1eo 31 of the- CiviJ. P:::aetieo Law , RuJ.1!!.!l o!
Te$t.il:1ony, 7 TiJ::,o" Squou:o, New YQ:::k, Naw Yo:::k,
begin:U.ng at 9:00 a.t:I. on TuDlJday, March 1, ·2011,
hald. at t:h.e. abovo-J:II).ntionad tiI::e and plncCiI bCilfa:::e
SARA FREOND. a Sho::-thand RnportQr aIld. a Nota:ry
Public of the Stato of New York.

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JOB No. 157278

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APPEARANCES:

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HENNIGAN BENNETT & DORMAN LLP

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Attorneys for Plaintiff
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865 South Figueroa Street - Suite 2900

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Los Angeles, California 90017
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BY: KIRK D. DILLMAN, ESQ.

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O'MELVENY &MYERSLLP

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INDEX OF WITNESSES'
EXAMINATION BY
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MR. DILLMAN
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INDEX OF EXHIBITS
NO.
DESCRIPTION
PAGE
Exhibit 2 E-mail
181
Exhibit 18 (previously marked)meeting agenda 171
Exhibit 19 (previously marked)Nat City memo 174
Exhibit 67 E-mail chain
39
Exhibit 68 E-mail chain
52
Exhibit 69 E-mail chain
54
Exhibit 70 E-mails
61
Exhibit 71 E-mails
79
85
Exhibit 72 Disbursement agreement
Exhibit 73 E-mail chain
102
Exhibit 74 E-mail chain
136
Exhibit 75 Request/response
142
Exhibit 76 Letter
145
Exhibit 77 Response
146
149
Exhibit 78 E-mail
Exhibit 79 E-mail
151
Exhibit 80 E-mail chain .
155
Exhibit 81 E-mail chain
167
Exhibit 82 E-mail
179
191
Exhibit 83 E-mail
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Attorneys for Bank of America. N.A.
Times Square Tower
7 Times Square

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NewYork,NewYork 10036

BY; DANlEL CANTOR, ESQ.
SAMANTHA A. HlLL, ESQ.

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ALSO PRESENT:

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Thomas Delvecchio - videograpber

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~Sarnoff
877.955.3855

VIDEOGRAPHER: Good morning .. Here
begins media number one of the deposition of
Mr. Bret Yunker in the matter ofIn re: .
Fontainebleau Las Vegas Contract Litigation.
Ibis case is in the United States District
Court, Southern District of Florida, and the
case number is - the MDL number is 2106.
Today is Tuesday, March 1, 201 L The time is
approximately 9:12 a.m. This deposition is
taking place at the office of O'lvIelveny &
Myers, 7 Times Square, New York, New York,
and is being taken on behalf of plaintiffs.
My name is Tom Delvecchio appearing on behalf
of Sarnoff Reporters Litigation Technologies.
All counseVparties and deponent, please
take notice that as part of videotaping this
deposition, very high quality microphones are
being used. These microphones are very
sensitive. If any party, attorneys or
deponent wishes to make a statement or have a
conversation off the record, they should
state that they're going off the record and
gain concurrence from all parties. The
videographer will then stop recording. All
comments made by any party, attorney or
Page 4

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Case 1:09-md-02106-ASG Document 389-9 Entered on FLSD Docket 12/06/2013 Page 29 of
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3/1/2011

BRETYUNKER
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Q. As you described it, to purpose was to
let the retail lenders know what was going on with
the resort?
A. First was, to let them know what was
going on with the project in terms of construction,
general updates, leasing out the retail, etc., etc.
Q. And those were the sort of topics you
would discUss throughout the project?
A. Presumably, yes. Those were discussed
throughout the project, and any retail lender could
call the company and get an update at any time.
Q. And you haven't been involved in those
conversations prior to October 23?
MR. CANTOR: ObjeCtion.
A. No, not with the retail lenders, no.
Q. You said that was part ofwbat was
discussed, whicb was to give the retail lenders an
update on the project?
A. Yes, that's right.
Q. What else?
A. Tbey also discussed the status of their
loan.
Q. SO, they provided an update?
A. I believe the company provided an
update, and then some of the retail lenders

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you reviewed, right?
A. I believe so, yes.
Q. Anything stated in that that does not
comport with your recollection of wbat was said at
the meeting?
MR. CANTOR: Objection. Assuming he has
one.

A. I believe it's generally consistent with
wbat I recall from that meeting.
Q. You recall that there was not sufficient
interest by the retail lenders, other than Lehman,
to cover the full amount of tlie Lehman obligations?
A. Those were statements made by the other
banks in that meeting. I don't know bow mucb of
that was posturing within the meeting within a bank
group as to wbo was going to do wbat, but I believe
those statements were made in that context at that
meeting.
. Q . . You didn't have a reason to doubt their
correctness, did you?
MR. CANTOR: Objection. He just gave
you a reason.
A, No. I bad a very good reason to. doubt
it. Because.banks within a bank syndicate may do
something --depending on the size of their
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Page 173

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discussed their perspectives all the status of that
loan.
Q. In preparing for your deposition bere
today, did you review any materials whicb refresbed
your recollection on the discussions during this
October 23, 2008 meeting?
A. I did not review any materials specific .
to that meeting, other than there was one memo, I
think, from one of the retail banks.
Q. From Sumitomo?
A. I don't recall if it was that bank.
Q. Did that help to refresh·your
recollection as to wbat occurred at the meeting?
A. Not much, it wasn't terribly detailed,
from what I recall seeing.
Q. Exhibit 19, which was previously marked,
is that the document that you're referring to? .
MR. CANTOR: For what it's worth, you
said Sumitomo.
MR. DILLMAN: I did indeed. It was
National C. Thank you.
A. This is a Nat City memo. Yes, I believe
this is the memo I saw.
Q. Specifically Bates stamp ending 71, the
bullet beginning October 23, 2008, is the portion

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commitment within that facility, they may be
posturing in a meeting like that, and they may
ultimately do something else.
Q. Anything could bappen.
A. So, that was the reason I doubted wbat
they were saying as to if they would step up to the
full amount of Lehman.
Q. You doubted, or you didn't necessarily
take them at their word?
A. I didn't necessarily take them at their
word, which is a form of doubt to me.
Q. Did you believe, leaving that meeting,
that the retail lenders, other than Lehman, would
ultimately step up and pay·all of Lehman's
commitment on tbe retail facility?
A. I don't recall wbat I believed coming
out of that meeting.
Q. You did hear the retail lenders asking
Fontainebleau as to wbether or not Fontainebleau
would be prepared to put in additional equity, did .
you not?
A. t don't recall that specific discussion.
Q. Were there discussions about
Fontainebleau taking over the commitment on the
retail facility?

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~Sarnoff.
877.955.3855

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Case 1:09-md-02106-ASG Document 389-9 Entered on FLSD Docket 12/06/2013 Page 30 of
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B. YUNKER

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CER'r1:FIClI,TE

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STATE Of' NEW YORK)
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coUNTY: OF

KINGS

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I, SARA FREUND, a Notary Public
within and foro the State of New oYork, doOhereby

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THAT BRET YUNKER, the witness whose

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deposition is hereinbefore set forth, was duly

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sworn by me and that such deposition is a true

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orecord of the testimony given by such witness.

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1 0further certify that I am not

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related to any of the parties to this action by

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blood or marriage; and that I am in no way

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interested in the outcome of this

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matter.

IN WITNESS WHEREOF, I have hereunto
set my hand this 11th day of Ma,r-ch, 201.1.

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Sl'.R..l\ FREUND