Irving H. Picard v. Saul B. Katz et al

Filing 126

DECLARATION of Fernando Bohorquez - seeking leave to file oversize exhibits in Opposition re: 79 MOTION for Summary Judgment.. Document filed by Irving H. Picard. (Bohorquez, Fernando)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
In re:

Adv. Pro. No. 08-01789 (BRL)

BERNARD L. MADOFF INVESTMENT
SECURITIES LLC,
Debtor,

SIPA LIQUIDATION
(Substantively Consolidated)

IRVING H. PICARD, Trustee for the Liquidation of Adv. Pro. No. 10-05287 (BRL)
Bernard L. Madoff Investment Securities LLC,
Plaintiff,
v.

11 Civ. 03605 (JSR) (HBP)

SAUL B. KATZ, et al.,
Defendants.

DECLARATION OF FERNANDO A. BOHORQUEZ, JR. IN OPPOSITION TO THE
DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
BAKER & HOSTETLER LLP
45 Rockefeller Plaza
New York, New York 10111
Telephone: [phone]
Facsimile: [phone]
Attorneys for Irving H. Picard, Trustee
for the Substantively Consolidated SIPA
Liquidation of Bernard L. Madoff
Investment Securities LLC and Bernard L.
Madoff

I, FERNANDO A. BOHORQUEZ, JR., declare pursuant to 28 U.S.C. § 1746, that the following
is true:
1.

I am an attorney with the firm of Baker & Hostetler LLP, counsel to Irving H.

Picard, Esq., Trustee for the substantively consolidated liquidation of Bernard L. Madoff
Investment Securities LLC (“BLMIS”) and Bernard L. Madoff (“Madoff”), plaintiff. I submit
this declaration in support of the Opposition to the Defendants’ Motion for Summary Judgment.
I am personally familiar with the facts set forth herein.
2.

Attached hereto as Exhibit 1 is a true and correct copy of a document entitled

“Sterling Equities Investments,” dated March 31, 2001. (SE_T039132-SE_T039139.)
3.

Attached hereto as Exhibit 2 is a true and correct copy of excerpts from the

Bankruptcy Rule 2004 deposition testimony of Arthur Friedman, dated June 22, 2010.
4.

Attached hereto as Exhibit 3 is a true and correct copy of excerpts from the

deposition testimony of David Katz, dated December 28, 2011.
5.

Attached hereto as Exhibit 4 is a true and correct copy of excerpts from the

deposition testimony of Saul Katz, dated January 13, 2012.
6.

Attached hereto as Exhibit 5 is a true and correct copy of excerpts from the

deposition testimony of Michael Katz, dated December 9, 2011.
7.

Attached hereto as Exhibit 6 is a true and correct copy of excerpts from the

deposition testimony of Mark Peskin, dated December 29, 2011.
8.

Attached hereto as Exhibit 7 is a true and correct copy of an email from Len

Labita to Mark Peskin, dated October 19, 2004. (Trustee Dep. Ex. 68; SE_T620574SE_T620588.)
9.

Attached hereto as Exhibit 8 is a true and correct copy of excerpts from the

2

deposition testimony of Len Labita, dated November 22, 2011.
10.

Attached hereto as Exhibit 9 is a true and correct copy of Sterling Equities 2001

Financial Statement, dated December 31, 2001. (SE_T731593-SE_T731677.)
11.

Attached hereto as Exhibit 10 is a true and correct copy of Sterling Equities 2002

Financial Statement, dated December 31, 2002. (SE_T732084-SE_T732202.)
12.

Attached hereto as Exhibit 11 is a true and correct copy of Sterling Equities 2003

Financial Statement, dated December 31, 2003. (SE_T732372-SE_T731592.)
13.

Attached hereto as Exhibit 12 is a true and correct copy of Sterling Equities 2004

Financial Statements. (BASM000003083-BASM000003164.)
14.

Attached hereto as Exhibit 13 is a true and correct copy of Sterling Equities

Partners Securities Summary, dated December 31, 2005. (SE_T732203-SE_T732287.)
15.

Attached hereto as Exhibit 14 is a true and correct copy of Sterling Equities

Partners Securities Summary, dated December 31, 2006. (SE_T731498-SE_T731592.)
16.

Attached hereto as Exhibit 15 is a true and correct copy of Sterling Equities 2005

Financial Statements. (BASM000018161-BASM000018245.)
17.

Attached hereto as Exhibit 16 is a true and correct copy of an email from Len

Labita to Mark Peskin regarding “Re: ‘Self Insurance Fund,’” dated February 5, 2008. (Trustee
Dep. Ex. 67; SE_T620336.)
18.

Attached hereto as Exhibit 17 is a true and correct copy of an email from Mark

Peskin to Len Labita regarding “Cash available at Madoff,” dated October 24, 2007. (Trustee
Dep. Ex. 48; SE_T680006.)
19.

Attached hereto as Exhibit 18 is a true and correct copy of excerpts from the

Bankruptcy Rule 2004 deposition testimony of Fred Wilpon, dated July 20, 2010.

3

20.

Attached hereto as Exhibit 19 is a true and correct copy of an email from Len

Labita to Mark Peskin regarding “Cash needs,” dated September 12, 2005. (Trustee Dep. Ex. 61;
SE_T620761.)
21.

Attached hereto as Exhibit 20 is a true and correct copy of an email from Len

Labita to Len Labita, dated October 29, 2004. (Trustee Dep. Ex. 63; SE_T696662.)
22.

Attached hereto as Exhibit 21 is a true and correct copy of an email with

attachments from Darryl Jacobson to Len Labita regarding “Mets – financial projections,” dated
June 30, 2005. (Trustee Dep. Ex. 75; SE_T695807-SE_T695809.)
23.

Attached hereto as Exhibit 22 is a true and correct copy of an email from Brian

Koluch to Len Labita and Mark Peskin regarding “Mets Model Package,” dated November 9,
2004. (Trustee Dep. Ex. 76; SE_T696668.)
24.

Attached hereto as Exhibit 23 is a true and correct copy of an email from Mark

Peskin to David Cohen regarding “FW: Mets II LLC Lenders’ Meeting Presentation: FINAL,”
dated March 11, 2004. (Trustee Dep. Ex. 73; SE_T663464-SE_T663465.)
25.

Attached hereto as Exhibit 24 is a true and correct copy of an Interoffice

Memorandum from “MK” to “All Partners” regarding “Anticipated Cash Flow to SE Partners,”
dated February 7, 2001. (Trustee Dep. Ex. 85; SE_T699319-SE_T699322.)
26.

Attached hereto as Exhibit 25 is a true and correct copy of a document regarding

“Madoff Accounts Containing Funds in Excess of Collateral As of 9/30/08 (PROJECTED)”.
(Arthur Friedman Dep. Ex. 32; SE_T471909.)

4

27.

Attached hereto as Exhibit 26 is a true and correct copy of a letter from Arthur

Friedman to Frank DiPascali regarding checks for deposit for Jessica, Scott, and Daniel Wilpon,
dated June 2, 2005. (SE_T356382-SE_T356391.)
28.

Attached hereto as Exhibit 27 is a true and correct copy of excerpts from the

Bankruptcy Rule 2004 deposition testimony of David Katz, dated August 31, 2010.
29.

Attached hereto as Exhibit 28 is a true and correct copy of excerpts from the

deposition testimony of Maureen O’Rourke, dated November 18, 2011.
30.

Attached hereto as Exhibit 29 is a true and correct copy of excerpts from the

Bankruptcy Rule 2004 deposition testimony of Mark Peskin, dated July 29, 2010.
31.

Attached hereto as Exhibit 30 is a true and correct copy of an Interoffice

Memorandum from “AF” to “All Partners” regarding “SEF Capital Call,” dated March 15, 2005.
(SE_T559523-SE_T559524.)
32.

Attached hereto as Exhibit 31 is a true and correct copy of an email from Len

Labita to Mark Peskin, dated August 11, 2004. (Trustee Dep. Ex. 54; SE_T620540.)
33.

Attached hereto as Exhibit 32 is a true and correct copy of a Memorandum from

Len Labita to Frank Coonelly regarding “Deferred Compensation Funding Obligation,” dated
May 12, 1999. (Trustee Dep. Ex. 209; SE_T933993.)
34.

Attached hereto as Exhibit 33 is a true and correct copy of an Interoffice

Memorandum from Arthur Friedman to Lennie Labita regarding “Funding of Madoff ‘Sterling
Mets Insurance Fund,’” dated October 16, 2002. (Trustee Dep. Ex. 66; SE_T698160.)
35.

Attached hereto as Exhibit 34 is a true and correct copy of excerpts from the

Bankruptcy Rule 2004 deposition testimony of Saul Katz, dated August 4, 2010.

5

36.

Attached hereto as Exhibit 35 is a true and correct copy of an Interoffice

Memorandum from “MK” to “All Partners” regarding “Citibank Refinance,” dated March 11,
1996. (Trustee Dep. Ex. 84; SE_T699331-SE_T699333.)
37.

Attached hereto as Exhibit 36 is a true and correct copy of an email from Michelle

A. Staten to Mark Peskin regarding “Sterling Internal V closing,” dated July 27, 2006. (Mark
Peskin Dep. Ex. 23; SE_T618921-SE_T618925.)
38.

Attached hereto as Exhibit 37 is a true and correct copy of excerpts from the

`deposition testimony of Noreen Harrington, dated December 30, 2011.
39.

Attached hereto as Exhibit 38 is a true and correct copy of Sterling Equities

Partners Securities Summary, dated December 31, 2004. (SE_T731678-SE_T731813.)
40.

Attached hereto as Exhibit 39 is a true and correct copy of Sterling Equities

Partners Securities Summary, dated December 31, 2007. (SE_T716967-SE_T717049.)
41.

Attached hereto as Exhibit 40 is a true and correct copy of a Management

Meeting Agenda, dated May 17, 2004. (SE_T668238-SE_T668243.)
42.

Attached hereto as Exhibit 41 is a true and correct copy of a Management

Meeting Agenda, dated June 6, 2004. (SE_T668244-SE_T668248.)
43.

Attached hereto as Exhibit 42 is a true and correct copy of a Management

Meeting Agenda, dated June 24, 2004. (SE_T668254-SE_T668257.)
44.

Attached hereto as Exhibit 43 is a true and correct copy of a Management

Meeting Agenda, dated September 7, 2004. (SE_T668277-SE_T668280.)
45.

Attached hereto as Exhibit 44 is a true and correct copy of excerpts from the

deposition testimony of Cynthia Rongione-Bernstein, dated November 15, 2011.
46.

Attached hereto as Exhibit 45 is a true and correct copy of a Pledged Collateral

6

Account Control Agreement, by and between BLMIS, Sterling Thirty Venture LLC, and Fleet
National Bank. (SE_T460699-SE_T460707.)
47.

Attached hereto as Exhibit 46 is a true and correct copy of a Credit Agreement.

(SE_T673552-SE_T673579.)
48.

Attached hereto as Exhibit 47 is a true and correct copy of a Credit Offering

Memorandum between Fleet National Bank and Sterling 30 Ventures, LLC, dated November 6,
2000. (BASM000013095-BASM000013121.)
49.

Attached hereto as Exhibit 48 is a true and correct copy of a letter from Arthur

Friedman to Frank DiPascali requesting withdrawals from seven BLMIS accounts, dated May
28, 2008. (Arthur Friedman Dep. Ex. 30; SE_T401191-SE_T401194.)
50.

Attached hereto as Exhibit 49 is a true and correct copy of an Interoffice

Memorandum from “AF” to “All Partners” regarding “SEF Capital Call,” dated December 5,
2005. (Trustee Dep. Ex. 26; SE_T559544.)
51.

Attached hereto as Exhibit 50 is a true and correct copy of a Sterling Equities

Partners March 2007 Capital Call spreadsheet. (Trustee Dep. Ex. 27; SE_T559330SE_T559356.)
52.

Attached hereto as Exhibit 51 is a true and correct copy of an Interoffice

Memorandum from Arthur Friedman to “All Partners”, regarding “Distribution of Excess
Funds,” dated October 11, 2001. (SE_T434091-SE_T434094.)
53.

Attached hereto as Exhibit 52 is a true and correct copy of an Interoffice

Memorandum from Arthur Friedman to “All Partners”, regarding “Distribution of Madoff
Excesses from Sterling Thirty and 20,” dated April 26, 2005. (SE_T559859-SE_T559861.)
54.

Attached hereto as Exhibit 53 is a true and correct copy of an email from Len

7

Labita to Cynthia Rongione, dated December 10, 2007. (Trustee Dep. Ex. 206; SE_T619569.)
55.

Attached hereto as Exhibit 54 is a true and correct copy of a Confidential

Information Memorandum regarding “Mets II LLC,” dated January 2003. (Trustee Dep. Ex. 72;
SE_T690287-SE_T690398.)
56.

Attached hereto as Exhibit 55 is a true and correct copy of an email from Mark

Peskin to Jeff Wilpon, dated February 4, 2009. (Trustee Dep. Ex. 202; SE_T567509.)
57.

Attached hereto as Exhibit 56 is a true and correct copy of a document entitled

“Sterling Equities Partners: Analysis of Liquidity – Citibank,” dated June 30, 2004. (Mark
Peskin Dep. Ex. 6; SE_T370973-SE_T370979.)
58.

Attached hereto as Exhibit 57 is a true and correct copy of a document entitled

“Financial Information Required Pursuant to Banking Agreements.” (Trustee Dep. Ex. 199;
SE_T709256-SE_T709269.)
59.

Attached hereto as Exhibit 58 is a true and correct copy of an email from Maureen

Hawa to Mark Peskin and Thomas Lucarelli, dated September 14, 2007. (Trustee Dep. Ex. 29;
SE_T616958.)
60.

Attached hereto as Exhibit 59 is a true and correct copy of a spreadsheet entitled

“Sterling Equities Partners: Analysis of Liquidity,” dated December 31, 2007. (Trustee Dep. Ex.
12; SE_T579076.)
61.

Attached hereto as Exhibit 60 is a true and correct copy of a Sterling Equities

Funding LLC Compliance Certificate, dated July 31, 2007. (SE_T854609-SE_T854610.)
62.

Attached hereto as Exhibit 61 is a true and correct copy of a Pledge and Security

Agreement, by and between Charles Sterling Sub LLC and Bank of America. (SE_T461857SE_T461867.)

8

63.

Attached hereto as Exhibit 62 is a true and correct copy of a Pledge and Security

Agreement, by and between FS Company LLC and Bank of America. (SE_T459168SE_T459171.)
64.

Attached hereto as Exhibit 63 is a true and correct copy of a Pledge and Security

Agreement, by and between Judith Wilpon and Iris Katz and Bank of America. (SE_T460359SE_T460372.)
65.

Attached hereto as Exhibit 64 is a true and correct copy of a Pledge and Security

Agreement, by and between RV-RJW LLC and Bank of America, dated July 22, 2008.
(SE_T459359-SE_T459368.)
66.

Attached hereto as Exhibit 65 is a true and correct copy of a Pledge and Security

Agreement, by and between Saul B. Katz Family Trust and Bank of America. (SE_T555875SE_T555883.)
67.

Attached hereto as Exhibit 66 is a true and correct copy of a Pledge and Security

Agreement, by and between Sterling 10 LLC and Bank of America. (SE_T461047SE_T461056.)
68.

Attached hereto as Exhibit 67 is a true and correct copy of a Pledge and Security

Agreement, by and between Sterling 20 LLC and Bank of America. (SE_T459534SE_T459544.)
69.

Attached hereto as Exhibit 68 is a true and correct copy of a Pledge and Security

Agreement, by and between Sterling Brunswick Seven LLC and Bank of America.
(SE_T459753-SE_T459763.)

9

70.

Attached hereto as Exhibit 69 is a true and correct copy of a Pledge and Security

Agreement, by and between Sterling Thirty Venture LLC and Bank of America. (SE_T673654SE_T673656.)
71.

Attached hereto as Exhibit 70 is a true and correct copy of a Pledge and Security

Agreement, by and between Sterling Tracing LLC and Bank of America. (BASM000021949BASM000021959.)
72.

Attached hereto as Exhibit 71 is a true and correct copy of a Pledge and Security

Agreement, by and between Sterling Twenty Five LLC and Bank of America, dated January 19,
2007. (SE_T460010-SE_T460020.)
73.

Attached hereto as Exhibit 72 is a true and correct copy of a Credit Agreement, by

and between Charles Sterling Sub LLC and Bank of America. (SE_T461817-SE_T461839.)
74.

Attached hereto as Exhibit 73 is a true and correct copy of a Credit Agreement, by

and between FS Company LLC and Bank of America. (SE_T459126-SE_T459148.)
75.

Attached hereto as Exhibit 74 is a true and correct copy of a Credit Agreement, by

and between Judith Wilpon, Iris Katz and Bank of America. (SE_T460255-SE_T460325.)
76.

Attached hereto as Exhibit 75 is a true and correct copy of a Credit Agreement, by

and between RV-RJW LLC and Bank of America, dated July 22, 2008. (SE_T459302SE_T459340.)
77.

Attached hereto as Exhibit 76 is a true and correct copy of a Credit Agreement, by

and between Saul B Katz Family Trust and Bank of America. (SE_T555756-SE_T555788.)
78.

Attached hereto as Exhibit 77 is a true and correct copy of a Credit Agreement, by

and between Sterling 10 LLC and Bank of America. (SE_T460997-SE_T461018.)

10

79.

Attached hereto as Exhibit 78 is a true and correct copy of a Credit Agreement, by

and between Sterling 20 LLC and Bank of America. (SE_T459477-SE_T459497.)
80.

Attached hereto as Exhibit 79 is a true and correct copy of a Credit Agreement, by

and between Sterling Brunswick Seven LLC and Bank of America. (SE_T459713SE_T459735.)
81.

Attached hereto as Exhibit 80 is a true and correct copy of a Credit Agreement, by

and between Sterling Tracing LLC and Bank of America, dated April 20, 2007. (SE_T460853SE_T460891.)
82.

Attached hereto as Exhibit 81 is a true and correct copy of a Mortgage Security &

Business Loan Agreement, by and between FFB Aviation and Bank of America.
(BASM000005380-BASM000005388.)
83.

Attached hereto as Exhibit 82 is a true and correct copy of a Loan Agreement, by

and between Fred Wilpon and Bank of America. (SE_T854197-SE_T854212.)
84.

Attached hereto as Exhibit 83 is a true and correct copy of a Loan Agreement, by

and between Wilpon Family Trust and Bank of America, dated April 10, 2006. (SE_T779090SE_T779166.)
85.

Attached hereto as Exhibit 84 is a true and correct copy of a Loan Agreement, by

and between Katz Family Trust and Bank of America, dated April 10, 2006. (SE_T779217SE_T779289.)
86.

Attached hereto as Exhibit 85 is a true and correct copy of a Loan Agreement, by

and between Wilpon 2002 Trust and Bank of America, dated October 30, 2006.
(BASM000007479-BASM000007494.)

11

87.

Attached hereto as Exhibit 86 is a true and correct copy of a Loan Agreement, by

and between Katz 2002 Trust and Bank of America, dated October 30, 2006.
(BASM000007888-BASM000007903.)
88.

Attached hereto as Exhibit 87 is a true and correct copy of a Loan Agreement, by

and between Iris J Katz and Bank of America, dated April 2, 2007. (SE_T711553SE_T711584.)
89.

Attached hereto as Exhibit 88 is a true and correct copy of a Loan Agreement, by

and between Saul B. Katz and Bank of America, dated March 30, 2007. (SE_T902078SE_T902094.)
90.

Attached hereto as Exhibit 89 is a true and correct copy of a Credit Agreement, by

and between Sterling Internal IV and Bank of America, dated December 14, 2005.
(BASM000003879-BASM000003897.)
91.

Attached hereto as Exhibit 90 is a true and correct copy of an Amended and

Restated Loan Agreement, by and between Sterling Internal V and Bank of
America/Citibank/Wachovia, dated September 30, 2008. (SE_T778597-SE_T778636.)
92.

Attached hereto as Exhibit 91 is a true and correct copy of a Credit Agreement, by

and between Sterling VC IV and Bank of America. (SE_T779293-SE_T779324.)
93.

Attached hereto as Exhibit 92 is a true and correct copy of a Credit Agreement, by

and between Sterling VC V and Bank of America. (SE_T779475-SE_T779507.)
94.

Attached hereto as Exhibit 93 is a true and correct copy of a Credit Agreement, by

and between Sterling and Bank of America. (SE_T779672-SE_T779703.)

12

95.

Attached hereto as Exhibit 94 is a true and correct copy of a Credit Agreement, by

and between Sterling Twenty Five LLC and Bank of America, dated January 29, 2007.
(SE_T459951-SE_T459989.)
96.

Attached hereto as Exhibit 95 is a true and correct copy of a document entitled

“CREB Commercial Deal Structure Sheet,” dated December 2009. (Trustee Dep. Ex. 119;
BASM000015474-BASM000015523.)
97.

Attached hereto as Exhibit 96 is a true and correct copy of excerpts from the

deposition testimony of Peter Stamos, dated January 5, 2012.
98.

Attached hereto as Exhibit 97 is a true and correct copy of handwritten notes,

dated November 8, 2003. (Trustee Dep. Ex. 106; SE_T749946.)
99.

Attached hereto as Exhibit 98 is a true and correct copy of a letter from Fred

Wilpon and Saul B. Katz to Ruth Madoff, dated May 25, 2004. (MADTEE00645190.)
100.

Attached hereto as Exhibit 99 is a true and correct copy of the Proffer of Marvin

Tepper, dated October 8, 2010.
101.

Attached hereto as Exhibit 100 is a true and correct copy of an email from

Maureen Hawa to Mark Peskin, Michael Katz, Arthur Friedman, dated April 24, 2004. (Trustee
Dep. Ex. 32; SE_T633639.)
102.

Attached hereto as Exhibit 101 is a true and correct copy of an email from Mark

Peskin to Matthew Petrula, dated February 19, 2009. (Trustee Dep. Ex. 203; SE_T643533.)
103.

Attached hereto as Exhibit 102 is a true and correct copy of a document entitled

“Execution Copy of Bank of America, N.A. Master Standstill Agreement,” dated February 26,
2009. (Trustee Dep. Ex. 121; BASM000021149-BASM000021199.)
104.

Attached hereto as Exhibit 103 is a true and correct copy of an Interoffice

13

Memorandum from Fred Wilpon & Saul Katz to Arthur Friedman regarding “Madoff
Insurance,” dated February 26, 2001. (SE_T021087-SE_T021088.)
105.

Attached hereto as Exhibit 104 is a true and correct copy of an Interoffice

Memorandum from Arthur Friedman to All Partners regarding “Madoff Insurance,” dated June
13, 2001. (SE_T553941.)
106.

Attached hereto as Exhibit 105 is a true and correct copy of handwritten notes.

(SE_T553944.)
107.

Attached hereto as Exhibit 106 is a true and correct copy of an email from Olga

Dimini to David Steinmann, dated March 16, 2004. (PJADMIN00007396.)
108.

Attached hereto as Exhibit 107 is a true and correct copy of an email from Olga

Dimini to David Steinman, dated June 14, 2002. (PJADMIN00007456.)
109.

Attached hereto as Exhibit 108 is a true and correct copy of an email from Abe

Mastbaum to Joe Nicholson, David P. Steinmann, and Olga Dimini, dated August 15, 2004.
(Steinmann Dep. Ex. 12; PJADMIN00007362-PJADMIN00007364.)
110.

Attached hereto as Exhibit 109 is a true and correct copy of a check request from

“OMD” to “MMC”, dated April 5, 2002. (PJASAG0000006-PJASAG0000024.)
111.

Attached hereto as Exhibit 110 is a true and correct copy of a letter from Abe

Mastbaum to Robert Duran, dated March 22, 2000. (PJADMIN00007612.)
112.

Attached hereto as Exhibit 111 is a true and correct copy of an email from Charles

Klein to Olga Dimini, dated August 16, 2004. (PJADMIN00007355.)
113.

Attached hereto as Exhibit 112 is a true and correct copy of excerpts from the

Bankruptcy Rule 2004 deposition testimony of Charles Klein, dated November 8, 2010.
114.

Attached hereto as Exhibit 113 is a true and correct copy of a letter from Richard

14

N. Papert to Fred Wilpon, dated April 30, 2001. (Arthur Friedman Dep. Ex. 39; SE_T554010SE_T554014.)
115.

Attached hereto as Exhibit 114 is a true and correct copy of an article by Erin

Arvedlund, entitled Don’t Ask, Don’t Tell: Bernie Madoff is so secretive, he even asks his
investors to keep mum. (Arthur Friedman Dep. Ex. 40; SE_T021079.)
116.

Attached hereto as Exhibit 115 is a true and correct copy of excerpts from the

Bankruptcy Rule 2004 deposition testimony of Peter Stamos, dated August 19, 2010.
117.

Attached hereto as Exhibit 116 is a true and correct copy of excerpts from the

deposition testimony of Kevin Okimoto, dated January 6, 2012.
118.

Attached hereto as Exhibit 117 is a true and correct copy of a calendar invitation

to attendees Peter Stamos, Chris Stamos, Maria Gagne, Scott Whitcher, Ashok Chachra,
Georgette Wong, Samantha Hojo, dated January 7, 2005. (Trustee Dep. Ex. 308;
SSMT01238214-SSMT01238218.)
119.

Attached hereto as Exhibit 118 is a true and correct copy of a document entitled

“Ascot Partners L.P.” (Trustee Dep. Ex. 302; SSKW00007066.)
120.

Attached hereto as Exhibit 119 is a true and correct copy of excerpts from the

Bankruptcy Rule 2004 deposition testimony of Ashok Chachra, dated October 8, 2010.
121.

Attached hereto as Exhibit 120 is a true and correct copy of an email from Jia

OuYang to Frank Wang; William Chen; Eugene Choe; and [e-mail], dated
December 12, 2008. (SSMT01010357-SSMT01010364.)
122.

Attached hereto as Exhibit 121 is a true and correct copy of an email from Peter

Stamos to Noreen Harrington, dated February 13, 2003. (SENH00000077-SENH00000078.)
123.

Attached hereto as Exhibit 122 is a true and correct copy of an email from Noreen

15

Harrington to Kevin Barcelona, dated December 15, 2008. (Trustee Dep. Ex. 227;
SSMT00906963.)
124.

Attached hereto as Exhibit 123 is a true and correct copy of an email from Rohit

Kumar to Ashok Chachra, dated March 16, 2006. (Trustee Dep. Ex. 309; SSMT00615750SSMT00615751.)
125.

Attached hereto as Exhibit 124 is a true and correct copy of an email from Derek

S. Daley to Peter Stamos, dated August 13, 2003. (Trustee Dep. Ex. 306; SSMT02406074SSMT02406076.)
126.

Attached hereto as Exhibit 125 is a true and correct copy of an email from Peter

Stamos to Tim Dick, dated December 14, 2008. (SSMT010527.)
127.

Attached hereto as Exhibit 126 is a true and correct copy of excerpts from the

deposition testimony of Kevin Dunleavy, dated December 21, 2011.
128.

Attached hereto as Exhibit 127 is a true and correct copy of excerpts from the

deposition testimony of Kevin Barcelona, dated December 15, 2011.
129.

Attached hereto as Exhibit 128 is a true and correct copy of an email from Kevin

Dunleavy to David Heaton, dated December 12, 2008. (Trustee Dep. Ex. 157;
ML&CI000002187-ML&CI000002189.)
130.

Attached hereto as Exhibit 129 is a true and correct copy of an email from Lauren

Flecha to Jared Kanover, dated June 6, 2008. (Trustee Dep. Ex. 152; SSMT02285581SSMT02285587.)
131.

Attached hereto as Exhibit 130 is a true and correct copy of excerpts from the

deposition testimony of Basil Stamos, dated January 3, 2012.
132.

Attached hereto as Exhibit 131 is a true and correct copy of the Sterling Stamos

16

website.
133.

Attached hereto as Exhibit 132 is a true and correct copy of an Ascot Fund

Prospectus, dated January 2003. (SSKW00023944-SSKW00023968.)
134.

Attached hereto as Exhibit 133 is a true and correct copy of a document entitled

“Pete Sheet,” dated September 2, 2004. (Trustee Dep. Ex. 296; SSMT01229948.)
135.

Attached hereto as Exhibit 134 is a true and correct copy of excerpts from the

BLMIS account maintenance file of Peter Stamos, account number 1KW213. (Trustee Dep. Ex.
297; AMF00084334-AMF00084365.)
136.

Attached hereto as Exhibit 135 is a true and correct copy of excerpts from the

BLMIS account maintenance file of Peter Stamos, account number 1KW213. (AMF00304852AMF00304888.)
137.

Attached hereto as Exhibit 136 is a true and correct copy of excerpts from the

BLMIS account maintenance file of Peter Stamos, account number 1KW213. (AMF00306318AMF00306338.)
138.

Attached hereto as Exhibit 137 is a true and correct copy of excerpts from the

deposition testimony of Christopher Stamos, dated January 4, 2012.
139.

Attached hereto as Exhibit 138 is a true and correct copy of an email from Basil

Stamos to Nerou “Neil” Cheng, Michael Stern, Ronald Ablow, and [e-mail], dated
December 13, 2008. (Trustee Dep. Ex. 233; SSMT00847959.)
140.

Attached hereto as Exhibit 139 is a true and correct copy of an email from Basil

Stamos to John Tucker and Tim Waterfield, dated December 14, 2008. (Trustee Dep. Ex. 234;
SSMT00934640-SSMT00934642.)
141.

Attached hereto as Exhibit 140 is a true and correct copy of an email from Basil

17

Stamos to [e-mail], dated December 14, 2008. (Trustee Dep. Ex. 235;
SSMT00934636-SSMT00934639.)
142.

Attached hereto as Exhibit 141 is a true and correct copy of an email from Basil

Stamos to Ophelia Dahl and [e-mail], dated December 14, 2008. (Trustee Dep. Ex.
236; SSMT01089343.)
143.

Attached hereto as Exhibit 142 is a true and correct copy of an email from Basil

Stamos to Tracy Kidder, dated December 14, 2008. (Trustee Dep. Ex. 237; SSMT00960990.)
144.

Attached hereto as Exhibit 143 is a true and correct copy of an email from David

Valle to Basil Stamos and Omar Minaya, dated December 14, 2008. (Trustee Dep. Ex. 238;
SSMT00877890-SSMT00877891.)
145.

Attached hereto as Exhibit 144 is a true and correct copy of an email from Rajesh

Gupta to Basil Stamos, dated December 14, 2008. (Trustee Dep. Ex. 239; SSMT00801965SSMT00801966.)
146.

Attached hereto as Exhibit 145 is a true and correct copy of an email from Nerou

“Neil” Cheng to Basil Stamos, dated December 15, 2008. (Trustee Dep. Ex. 240;
SSMT00824644-SSMT00824645.)
147.

Attached hereto as Exhibit 146 a true and correct copy of an email from HEST to

Basil Stamos, dated December 15, 2008. (Trustee Dep. Ex. 241; SSMT00961098SSMT00961102.)
148.

Attached hereto as Exhibit 147 is a true and correct copy of an email to Basil

Stamos, [e-mail], dated December 15, 2008. (Trustee Dep. Ex. 242;
SSMT01061630-SSMT01061632.)
149.

Attached hereto as Exhibit 148 is a true and correct copy of an email from Basil

18

Stamos to Bill Housworth, dated December 19, 2008. (Trustee Dep. Ex. 243; SSMT01195993.)
150.

Attached hereto as Exhibit 149 is a true and correct copy of an email from Mark

Thompson to Ashok Chachra, dated December 16, 2008. (Trustee Dep. Ex. 329;
SSMT00934925-SSMT00934931.)
151.

Attached hereto as Exhibit 150 is a true and correct copy of an email from Ashok

Chachra to Peter Stamos, dated December 13, 2008. (Trustee Dep. Ex. 330; SSMT01194929SSMT01194931.)
152.

Attached hereto as Exhibit 151 is a true and correct copy of an email from Ashok

Chachra to Janice Yu, dated December 16, 2008. (SSMT01061678-SSMT01061682.)
153.

Attached hereto as Exhibit 152 is a true and correct copy of an email chain

between Peter Stamos and Stephen Woodsum, dated December 18 and December 19, 2008.
(Peter Stamos Dep. Ex. 4; SSMT00935530-SSMT00935535.)
154.

Attached hereto as Exhibit 153 is a true and correct copy of an email from Peter

Stamos to Ashok Chachra, dated August 18, 2004. (SSMT01252043.)
155.

Attached hereto as Exhibit 154 is a true and correct copy of an email from Ralph

D. Sinsheimer to Peter Stamos, dated December 12, 2008. (SSMT01089216-SSMT01089218.)
156.

Attached hereto as Exhibit 155 is a true and correct copy of an email from Mark

Peskin to Maureen Hawa and Arthur Friedman, dated September 18, 2006. (Trustee Dep. Ex.
42; SE_T622441-SE_T622442.)
157.

Attached hereto as Exhibit 156 is a true and correct copy of an email from Peter

Stamos to J. Ezra Merkin, dated November 15, 2004. (Peter Stamos Dep. Ex. 9;
SSMT00014472-SSMT00014478.)
158.

Attached hereto as Exhibit 157 is a true and correct copy of excerpts from the

19

deposition testimony of Martin Sass, dated December 22, 2011.
159.

Attached hereto as Exhibit 158 is a true and correct copy of Brooklyn College

Foundation Full Board Minutes, dated November 12, 2008. (Trustee Dep. Ex. 160; APNYYBCF0000271-APNYY-BCF0000280.)
160.

Attached hereto as Exhibit 159 is a true and correct copy of the Expert Report of

Dr. Steve Pomerantz, dated November 22, 2011.
161.

Attached hereto as Exhibit 160 is a true and correct copy of a Memorandum from

Barry Gonder to Sterling Doubleday File, dated September 13, 1990. (Arthur Friedman Dep. Ex.
5, SE_T433829-SE_T433832.)
162.

Attached hereto as Exhibit 161 is a true and correct copy of a J.P. Morgan Chase

1992 Analysis of Bernard L. Madoff’s Investment for Saul B. Katz (Account KW024), dated
July 1993. (Trustee Dep. Ex. 357; SE_T954094-SE_T954118.)
163.

Attached hereto as Exhibit 162 is a true and correct copy of a Sterling Equities

Associates Employee Retirement Plan Fund Description. (Trustee Dep. Ex. 34; SE_T019533.)
164.

Attached hereto as Exhibit 163 is a true and correct copy of a Rate Comparison

Chart. (Arthur Friedman Dep. Ex. 6; SE_T553984-SE_T553989.)
165.

Attached hereto as Exhibit 164 is a true and correct copy of an email from

Cynthia Bernstein to Tom Osterman and Kathleen McGovern, dated February 11, 2008. (Arthur
Friedman Dep. Ex. 38; SE_T475550.)
166.

Attached hereto as Exhibit 165 is a true and correct copy of excerpts from the

deposition testimony of Fred Wilpon, dated January 10, 2012.
167.

Attached hereto as Exhibit 166 is a true and correct copy of a “Due Diligence

Time Line – Sterling,” dated March 2000. (Trustee Dep. Ex. 80; SE_T749838-SE_T749840.)

20

168.

Attached hereto as Exhibit 167 is a true and correct copy of excerpts from the

deposition testimony of Steven Kenny, dated December 9, 2011.
169.

Attached hereto as Exhibit 168 is a true and correct copy of excerpts from the

Bankruptcy Rule 2004 deposition testimony of Elliot Margolis, dated August 12, 2012.
170.

Attached hereto as Exhibit 169 is a true and correct copy of a letter from Arthur

Friedman to Steve Kenny, dated October 24, 2000. (Margolis Dep. Ex. 4; BASM000013598BASM000013599.)
171.

Attached hereto as Exhibit 170 is a true and correct copy of an email from Jared

Kanover to Mark Peskin, dated September 20, 2006. (Trustee Dep. Ex. 343; SE_T956542SE_T956544.)
172.

Attached hereto as Exhibit 171 is a true and correct copy of a letter from Arthur

Friedman to Derek McGirt, dated November 8, 2002. (SE_T699258-SE_T699259.)
173.

Attached hereto as Exhibit 172 is a true and correct copy of an email from Basil

Stamos to Samantha Hojo, dated September 7, 2005. (Trustee Dep. Ex. 232; SSMT02407720.)
174.

Attached hereto as Exhibit 173 is a true and correct copy of a Redemption

Memorandum for Sterling Stamos Friends & Family Fund, L.P. (SSMT02406520.)
175.

Attached hereto as Exhibit 174 are true and correct copies of a Management

Meeting Agenda, dated October 24, 2005, and Management Meeting Minutes, dated October 10,
2005. (Trustee Dep. Ex. 105; SE_T668546-SE_T668549.)
176.

Attached hereto as Exhibit 175 is a true and correct copy of a Management

Meeting Agenda, dated June 19, 2006. (Trustee Dep. Ex. 341; SE_T668679-SE_T668684.)
177.

Attached hereto as Exhibit 176 are true and correct copies of a Management

Meeting Agenda, dated September 25, 2006, and Management Meeting Minutes, dated

21

September 11, 2006. (Trustee Dep. Ex. 342; SE_T668725-SE_T668728.)
178.

Attached hereto as Exhibit 177 are true and correct copies of a Management

Meeting Agenda, dated September 10, 2007, and Management Meeting Minutes, dated August
27, 2007. (SE_T668878-SE_T668883.)
179.

Attached hereto as Exhibit 178 are true and correct copies of a Management

Meeting Agenda, dated November 21, 2005, and Management Meeting Minutes, dated
November 14, 2005. (Trustee Dep. Ex. 101; SE_T668554-SE_T668567.)
180.

Attached hereto as Exhibit 179 is a true and correct copy of an email from Peter

Stamos to Saul B. Katz and Emily O’Shea, dated November 30, 2005. (Trustee Dep. Ex. 340;
SE_T865249-SE_T865251.)
181.

Attached hereto as Exhibit 180 is a true and correct copy of a Confidential

Memorandum from “AF” to “All Partners” regarding “Special Investment in Madoff,” dated
November 28, 2005. (Arthur Friedman Dep. Ex. 23; SE_T553935.)
182.

Attached hereto as Exhibit 181 is a true and correct copy of a Confidential

Memorandum from “AF” to “All Partners” regarding “Special Investment in Madoff,” dated
November 28, 2005. (SE_T559817-SE_T559818.)
183.

Attached hereto as Exhibit 182 is a true and correct copy of a Memorandum from

Anne Pawelczak to Mark Peskin, dated July 5, 2004. (Trustee Dep. Ex. 217; SE_T705030SE_T705032.)
184.

Attached hereto as Exhibit 183 is a true and correct copy of an email from Anne

Pawelczak to Mark Peskin, dated June 17, 2004. (SE_T620565-SE_T620567.)
185.

Attached hereto as Exhibit 184 is a true and correct copy of an email from Anne

Pawelczak to Mark Peskin, dated April 9, 2005. (Trustee Dep. Ex. 192; SE_T618643.)

22

186.

Attached hereto as Exhibit 185 is a true and correct copy of excerpts from the

deposition testimony of Joseph Reese, dated December 29, 2011.
187.

Attached hereto as Exhibit 186 is a true and correct copy of an email from Mark

Peskin to Anne Pawelczak, dated November 9, 2005. (Trustee Dep. Ex. 219; SE_T621860.)
188.

Attached hereto as Exhibit 187 is a true and correct copy of an “Annual Report to

Fiduciaries,” regarding Sterling Equities Employees Retirement Plan (Account 1-KW182-3).
(SE_T014145-SE_T014147.)
189.

Attached hereto as Exhibit 188 is a Sterling Equities Associates Employees

Retirement Plan for the period ending December 11, 2008. (SE_T015657.)
190.

Attached hereto as Exhibit 189 is the Expert Report of Harrison J. Goldin, dated

November 22, 2011.
191.

Attached hereto as Exhibit 190 is a true and correct copy of an Interoffice

Memorandum from “MK” to “DMK” regarding “Registered Investment Advisors,” dated July
14, 2004. (Trustee Dep. Ex. 92; SE_T699392.)
192.

Attached hereto as Exhibit 191 are true and correct copies of a Management

Meeting Agenda and Management Meeting Minutes, dated November 1, 2004. (Trustee Dep.
Ex. 354; SE_T668295-SE_T668299.)
193.

Attached hereto as Exhibit 192 are true and correct copies of a Management

Meeting Agenda, dated July 11, 2005, and Management Meeting Minutes, dated June 13, 2005.
(Trustee Dep. Ex. 355; SE_T668492-SE_T668497.)
194.

Attached hereto as Exhibit 193 are true and correct copies of a Management

Meeting Agenda, dated February 28, 2005, and Management Meeting Minutes, dated February
7, 2005. (SE_T668408-SE_T668413.)

23

195.

Attached hereto as Exhibit 194 is a true and correct copy of a Bank of America

“In Progress Modification to CAR Report”, dated June 5, 2008. (Trustee Dep. Ex. 139;
BASM000009051-BASM000009108.)
196.

Attached hereto as Exhibit 195 is a true and correct copy of an Interoffice

Memorandum from “AF” to “All Partners” regarding “Madoff Accounts,” dated February 28,
2000. (Arthur Friedman Dep. Ex. 25; SE_T405836-SE_T405837.)
197.

Attached hereto as Exhibit 196 is a true and correct copy of a document entitled

“Credit Offering Memorandum (Full Format),” dated July 1999. (Trustee Dep. Ex. 120;
BASM000011224-BASM000011257.)
198.

Attached hereto as Exhibit 197 is a true and correct copy of an Interoffice

Memorandum from “MK” to “Files” regarding “$25,000,000 Revolving Credit Facility to Judith
A. Wilpon (JAW) and Iris J. Katz (IJK),” dated March 13, 1996. (Trustee Dep. Ex. 83;
SE_T699327-SE_T699330.)
199.

Attached hereto as Exhibit 198 is a true and correct copy of an interoffice

memorandum from “MK” to “File” regarding “SEF Capital Call,” dated October 3, 2007.
(Trustee Dep. Ex. 86; SE_T560422.)
200.

Attached hereto as Exhibit 199 is a true and correct copy of a series of withdrawal

letters from BLMIS, dated January 7, 1999. (SE_T367223-SE_T367239.)
201.

Attached hereto as Exhibit 200 is a true and correct copy of an email from Len

Labita to Mark Peskin regarding “weekly cash flow,” attaching “Weekly Cash Analysis”, dated
May 16, 2005. (Trustee Dep. Ex. 207; SE_T695579.)
202.

Attached hereto as Exhibit 201 is a true and correct copy of a Confidential

Memorandum from Arthur Friedman to Fred Wilpon/Saul Katz entitled “Movement of Madoff

24

Funds.” (SE_T471875.)
203.

Attached hereto as Exhibit 202 is a true and correct copy of a “Revised Sterling

Debt Restructuring Plan - Results Period.” (Trustee Dep. Ex. 122; BASM000035532BASM000035547.)
204.

Attached hereto as Exhibit 203 is a true and correct copy of a Preliminary Debt

Restructuring Plan. (Trustee Dep. Ex. 204; BASM000017832-BASM000017845.)
205.

Attached hereto as Exhibit 204 is a true and correct copy of an Intercreditor

Agreement, dated December 23, 2009. (Trustee Dep. Ex. 127; BASM000019177BASM000019306.)
206.

Attached hereto as Exhibit 205 is a true and correct copy of an email from Mark

Peskin to Mohsin Meghji, dated January 25, 2009. (Trustee Dep. Ex. 200; SE_T753386SE_T753388.)
207.

Attached hereto as Exhibit 206 is a true and correct copy of a Revised Debt

Restructuring Plan, prepared by Loughlin Meghji for Sterling, dated April 23, 2009. (Trustee
Dep. Ex. 205; BASM000017752-BASM000017769.)
208.

Attached hereto as Exhibit 207 is a true and correct copy of a Credit Agreement,

by and between Saul Katz Trust and Bank of America, dated November 29, 2000.
(SE_T555750-SE_T555987.)
209.

Attached hereto as Exhibit 208 is a true and correct copy of a Sterling 10 LLC

Operating Agreement. (SE_T461075-SE_T461090.)
210.

Attached hereto as Exhibit 209 is a true and correct copy of a Sterling 10 LLC

Operating Agreement. (SE_T459573-SE_T459578.)
211.

Attached hereto as Exhibit 210 is a true and correct copy of a Sterling 10

25

LLC Operating Agreement. (SE_T673693-SE_T673700.)
212.

Attached hereto as Exhibit 211 is a true and correct copy of a Sterling Twenty

Five LLC Operating Agreement. (SE_T460952-SE_T460088.)
213.

Attached hereto as Exhibit 212 is a true and correct copy of a Sterling Tracing

LLC Operating Agreement. (SE_T460059-SE_T460976.)
214.

Attached hereto as Exhibit 213 is a true and correct copy of a presentation entitled

“Sterling Stamos Company Overview: Discussion with Merrill Lynch,” dated February 2004.
(Trustee Dep. Ex. 187; SE_T954272-SE_T954315.)
215.

Attached hereto as Exhibit 214 is a true and correct copy of a spreadsheet entitled

“The Sterling Equities Partners Analysis of Liquidity,” dated September 30, 2008.
(SE_T600640-SE_T601030.)
216.

Attached hereto as Exhibit 215 is a true and correct copy of an email from

Stephen Woodsum to Peter Stamos, dated December 15, 2008. (SSMT00802052SSMT00802056.)
217.

Attached hereto as Exhibit 216 is a true and correct copy of a “Summary Plan

Description of the Sterling Equities Associates Employees Retirement Plan,” dated January 1,
2003. (Trustee Dep. Ex. 95; SE_T013065-SE_T013097.)
218.

Attached hereto as Exhibit 217 is a true and correct copy of the “Sterling Equities

Employees Retirement Plan Summary Plan Description.” (SE_T011665-SE_T011684.)
219.

Attached hereto as Exhibit 218 is a true and correct copy of a letter from Duke

Potter to Jackie Gaines regarding “Sterling Equities Employees Retirement Plan,” dated
December 9, 1998. (SE_T021235-SE_T021236.)

26

220.

Attached hereto as Exhibit 219 is a true and correct copy of a letter from Douglas

Freeman to ESBA regarding the Sterling Equities Associates Employees Retirement Plan, dated
January 6, 2009. (SE_T007804.)
I declare under penalty of perjury that the foregoing is true and correct.
Dated: February 9, 2012
New York, New York
/s/ Fernando A. Bohorquez, Jr.
Fernando A. Bohorquez, Jr.

27