Ajredin "Danny" Deari v. Jane Doe

• Court: Court of Appeals of Texas
• Decided: December 7, 2015
• Docket: 05-15-01019-CV
• Status: Published

Opinion

ACCEPTED 05-15-01019-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 12/4/2015 12:04:49 PM LISA MATZ CLERK NO. 05-15-01019-CV

IN THE COURT OF APPEALS FILED IN 5th COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS AT DALLAS 12/4/2015 12:04:49 PM LISA MATZ Clerk

AJREDIN “DANNY” DEARI, Appellants, v. JANE DOE, Appellee.

On Appeal from the 193rd Judicial District Court of Dallas County, Texas Cause No. DC-13-04564

SUPPLEMENTAL APPENDIX IN SUPPORT OF CENTURY’S REPLIES TO THE TRUSTEE’S AND JANE DOE’S RESPONSES TO MOTIONS TO INTERVENE AND FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL

Volume 2 of 2 (Bates Nos. 732-1260)

Charles T. Frazier, Jr. State Bar No. 07403100 cfrazier@adjtlaw.com Roger D. Townsend State Bar No. 20167600 Dana Livingston State Bar No. 12437420 Alexander Dubose Jefferson & Townsend LLP 4925 Greenville Ave., Ste. 510 Dallas, Texas 75206-4087 (214) 369-2358 (214) 369-2359 Fax Attorneys for Intervenor Century Surety Company SUPPLEMENTAL APPENDIX IN SUPPORT OF CENTURY’S REPLIES TO THE TRUSTEE’S AND JANE DOE’S RESPONSES TO MOTIONS TO INTERVENE AND FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL

Century Surety Company (“Century”) hereby files this Supplemental

Appendix in Support of Its Replies to the Trustee’s and Jane Doe’s Responses to

Motions to Intervene and for Extension of Time to File Notice of Appeal.

Supp. Ex. Date Document App. Page(s) Dec. 3, 2015 Supplemental Affidavit of James W. 0001 Bowen 1 Nov. 23, 2015 Deposition of Scott Seidel in In re 0005 Pastazios Pizza, Inc., Case No. 14-34324- hdh11, filed in the Bankruptcy Court for the Northern District of Texas, including referenced exhibits 2 Nov. 3, 2015 Transcript of Hearing of [119] Motion for 0732 Leave – Trustee’s Expedited Motion to Clarify Trust Agreement in In re Pastazios Pizza, Inc., Case No. 14-34324-hdh11, filed in the Bankruptcy Court for the Northern District of Texas 3 Nov. 19, 2015 Order on Trustee’s Motion to Clarify [150] 0855 in In re Pastazios Pizza, Inc., Case No. 14- 34324-hdh11, filed in the Bankruptcy Court for the Northern District of Texas 4 Aug. 25, 2015 Jane Doe’s Unopposed Motion to Intervene 0859 [50] filed in Century Surety Company v. Pastazios Pizza, Inc. Creditor Trust et al., Case No. 3:13-cv-02553-P, in the Northern District of Texas, Dallas Division

SUPPLEMENTAL APPENDIX IN SUPPORT OF CENTURY’S REPLIES TO THE TRUSTEE’S AND JANE DOE’S RESPONSES TO MOTIONS TO INTERVENE AND FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL Page 1 5 Oct. 31, 2015 Pastazios Pizza Inc. Creditor Trust’s 0870 Amended Counterclaims [64] filed in Century Surety Company v. Pastazios Pizza, Inc. Creditor Trust et al., Case No. 3:13-cv-02553-P, in the Northern District of Texas, Dallas Division 6 Nov. 11, 2015 ECF Docket for In re Danny Deari, Case 1129 No. 14-34323-hdh13, filed in the Bankruptcy Court for the Northern District of Texas 7 Nov. 24, 2015 Transcript of Hearing of [145] Expedited 1141 Motion to Enforce Confirmed Plan in In re Pastazios Pizza, Inc., Case No. 14-34324- hdh11, filed in the Bankruptcy Court for the Northern District of Texas 8 Nov. 2, 2015 Trustee’s Reply in Support of Motion to 1250 Clarify Trust Agreement [133] in In re Pastazios Pizza, Inc., Case No. 14-34324- hdh11, filed in the Bankruptcy Court for the Northern District of Texas 9 Nov. 23, 2015 Order Denying Century Surety Company’s 1258 Motion for Continuance [171] in In re Pastazios Pizza, Inc., Case No. 14-34324- hdh11, filed in the Bankruptcy Court for the Northern District of Texas

SUPPLEMENTAL APPENDIX IN SUPPORT OF CENTURY’S REPLIES TO THE TRUSTEE’S AND JANE DOE’S RESPONSES TO MOTIONS TO INTERVENE AND FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL Page 2 Exhibit 2

SUPP APP 0732 1

1 IN THE UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF TEXAS (DALLAS) 2 3 ) Case No. 14-34324-HDD-11 4 In re ) Dallas, Texas ) 5 PASTAZIOS PIZZA, INC., ) ) November 3, 2015 6 Debtor. ) 9:20 AM ) 7 _______________________________) 8 TRANSCRIPT OF HEARING OF [119] MOTION FOR LEAVE - TRUSTEE'S 9 EXPEDITED MOTION TO CLARIFY TRUST AGREEMENT BEFORE THE HONORABLE HARLIN D. HALE, 10 UNITED STATES BANKRUPTCY JUDGE 11

12 13 14 15 16 17

18 19 20 Transcription Services: eScribers 700 West 192nd Street 21 Suite #607 New York, NY 10040 22 (973) 406-2250 23 PROCEEDINGS RECORDED BY ELECTRONIC SOUND RECORDING. 24 TRANSCRIPT PRODUCED BY TRANSCRIPTION SERVICE. 25 APPEARANCES:

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SUPP APP 0733 2

1 For the Debtor: JOYCE W. LINDAUER, ESQ. 2 JOYCE LINDAUER LAW OFFICE 8140 Walnut Hill Lane 3 Suite 301 Dallas, TX 75231 4 For the Trustee: DAVOR RUKAVINA, ESQ. 5 THOMAS BERGHMAN, ESQ. MUNSCH, HARDT, KOPF & HARR 6 500 North Akard Street Suite 3800 7 Dallas, TX 75201 8 For Jane Doe: LAURA M. FONTAINE, ESQ. 9 MICHAEL GRUBER, ESQ. GRUBER HURST ELROD JOHANSEN 10 HAIL SHANK LLP 1445 Ross Avenue 11 Suite 2500 Dallas, TX 75202 12 13 For Century Surety GREGORY HESSE, ESQ. Company: KEVIN W. BROOKS, ESQ. 14 HUNTON & WILLIAMS LLP 1445 Ross Avenue 15 Suite 3700 Dallas, TX 75202 16 17

18 19 20 21 22 23 24 25

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SUPP APP 0734 Colloquy 3

1 THE COURT: Pastazios Pizza. Mr. Rukavina, are you 2 in favor of debtors keeping yachts? 3 MR. RUKAVINA: I am in favor of renting yachts from 4 debtors so long as they are well stocked with provisions. And 5 you know what kind I mean. 6 Your Honor, good morning. Davor Rukavina and Thomas 7 Berghman here for Scott Seidel. Mr. Seidel is also present. 8 THE COURT: Welcome. 9 MR. HESSE: Good morning, Your Honor. Excuse me, 10 good morning, Your Honor. Greg Hesse and Kevin Brooks on 11 behalf of Century Surety Company.

12 THE COURT: Welcome. 13 MS. FONTAINE: Thank you, Your Honor. Laura Fontaine 14 for creditor Jane Doe. With me today in the courtroom is Mike 15 Gruber of Gruber Hurst Elrod Johansen Hail Shank. 16 THE COURT: Welcome. 17 MS. LINDAUER: Your Honor, Joyce Lindauer, counsel

18 for the debtor in the underlying bankruptcy case. 19 THE COURT: Welcome. 20 I know we have a standing argument, but I'd go ahead 21 and -- let's go ahead and proceed through the evidence subject 22 to that. We're not waiving the -- 23 MR. HESSE: Your Honor, before we get started, I'd 24 like to invoke the rule of witness preclusion. The -- I think 25 really the two parties that are here, really, the trustee and

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SUPP APP 0735 Colloquy 4

1 Century Surety Company. The trustee filed a witness list that 2 had Scott Seidel, Joyce Lindauer and Trey Crawford. I'd 3 actually ask that Ms. Lindauer and Mr. Crawford be excluded. 4 THE COURT: Who is Crawford now? 5 MR. CRAWFORD: Me, Your Honor. 6 THE COURT: And whom is he? 7 MR. GRUBER: He's my partner, Your Honor. Mike 8 Gruber. He's my partner in private case with the underlying 9 state court case. 10 THE COURT: Um-hum. All right. That's overruled, 11 these are all parties-in-interest.

12 You may proceed. 13 MR. RUKAVINA: Your Honor, may I approach with a 14 couple of binders? 15 THE COURT: You may. 16 MR. HESSE: Your Honor, may I approach as well? 17 THE COURT: You may.

18 MR. HESSE: With the binders? 19 THE COURT: Yeah, you do the same. Right up here, 20 thank you. 21 MR. RUKAVINA: Your Honor, the last time we were here 22 we didn't really get a chance to give you kind of an update 23 where we are, largely because of Century's oral motion to 24 continue. We do thank you for your hearing today. But I do 25 think it's time to give Your Honor some of the background,

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SUPP APP 0736 Colloquy 5

1 more for context than anything. 2 We do not intend today to try some of these issues 3 that Century raised this Friday in an amended objection to our 4 motion seeking very targeted relief. But because Century has 5 raised those, and because they are of relevance with respect 6 to what's going on before Judge Solis, it merits some 7 discussion at least. 8 So it's been some time I think since the Court has 9 been involved with this case. But if we go back, on April the 10 2nd of this year, the Court confirmed the debtor's plan. 11 The debtor's plan clearly created a creditor trust.

12 The plan had attached to it this trust document which, of 13 course, as Your Honor mentioned last time, had certain blanks 14 in it. Why those blanks were blanks at the time of 15 confirmation, we as the trustee, of course, do not know. 16 What followed were several weeks of the debtor trying 17 to find the 50,000-dollar seed money required by the

18 confirmation order to effectuate the plan. And I don't 19 know -- Mr. Seidel might remember more in detail, I don't 20 remember exactly when that money came in, but it was quite 21 some time later. The debtor had a difficult time finding the 22 50,000 dollars. 23 Consequently, on May 22nd of this year, the debtor 24 signed this trust document which had the blanks in it. 25 THE COURT: They signed it with the blanks still?

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SUPP APP 0737 Colloquy 6

1 MR. RUKAVINA: Yes. The debtor then sent -- Ms. 2 Lindauer sent that document to Mr. Seidel. Mr. Seidel signed 3 that document. At that time, both Mr. Seidel and I were 4 discussing with Ms. Lindauer and with Mr. Erler, who 5 represented Ms. Doe respectively, as to these blanks. 6 Ms. Lindauer will explain to Your Honor that it was 7 her understanding that the trustee would fill in those blanks. 8 That was not the trustee's understanding, this was a contract 9 predating the trustee. The trustee did not believe that he 10 could just fill in whatever he wanted to. 11 And with my communications with Mr. Erler, I'd

12 understood that there was a fully -- I'll just call it fully 13 executed, fully filled-in document that was out there, but it 14 was not provided to me. 15 And, finally, really it wasn't until October that Mr. 16 Erler said whoops, this was not signed. In other words, the 17 full filled-in document did exist, but it was never signed.

18 So we have the signed document with blanks, we have 19 an unsigned document, apparently with all the blanks filled 20 in. 21 Let's go back now. So the trustee becomes the 22 trustee on or about May 22nd of this year. The confirmation 23 order and the plan provide for a trustee to retain insurance 24 counsel, that would be Munsch Hardt. There's a blank for how 25 much we're entitled to be paid, another blank that hasn't been

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SUPP APP 0738 Colloquy 7

1 filled in. And the trust document and the plan provide for 2 this trust advisory board, which was subsequently modified 3 pursuant to your confirmation order to have one person on 4 there. But that person, again, is a blank. 5 Well, we have trial in the Jane Doe state court 6 coming up in early July. We have before Judge Solis, once the 7 stay lifted, proceedings to take care of there as well. So 8 what does the trustee do? Well, on June 8th of this year, I 9 personally appeared in front of the state court. Mr. Crawford 10 was there. Ms. Doe, the ninety-nine percent beneficiary, knew 11 that Mr. Seidel had hired Munsch Hardt as the insurance

12 counsel. No problems with that, no objections, no nothing. 13 Everyone wanted insurance counsel 14 On June 12th of this year, we filed -- I filed a 15 motion to substitute in in the federal action before Judge 16 Solis to substitute in for Pastazios Pizza, because the trust 17 now owned these assets. We conferred with Mr. Shults for

18 Century. Mr. Shults said no opposition to the motion to 19 substitute. Judge Solis granted the motion. So by June 12th, 20 if not a few days earlier, Century knew that Munsch Hardt was 21 insurance counsel. No objection, no problem, no issue. 22 Back in state court we announced to the state court 23 that we had hired the law firm of Chen Dotson, the trustee 24 had, to defend the trust against Ms. Doe's tort claims. No 25 objections, no issue, no nothing.

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SUPP APP 0739 Colloquy 8

1 Technically, according to the language of the trust 2 document, Mr. Seidel was supposed to confer with this trust 3 advisory board for the retention of Chen Dotson, but, again, 4 there was no advisory board. And our communications to that 5 effect, frankly, were circular. Well, I think Ms. Lindauer 6 has it, I think Mr. Erler has it, we're working on it, but we 7 had to hire counsel because we had trial coming up. Everyone 8 knew it, the beneficiary knew it. No objections, no problems. 9 Trial was held over the course of two or three days, 10 it was a bench trial. And ultimately the state court entered 11 a judgment, and the numbers -- I always get confused with the

12 numbers, because there's a number against Mr. Deari, there's a 13 number against Pastazios, but it's in the neighborhood of 14 twenty million dollars, as against Pastazios. 15 We have multiple weeks of meetings and communications 16 with Century thereafter regarding what to do with this 17 judgment. We sent a Stowers demand beforehand. Ultimately,

18 we agree, at Century's invitation, to a mediation on October 19 8th. We participate with Ms. Doe at this mediation. The 20 mediation does not conclude until October the 20th. Two days 21 later we filed this motion. 22 The reason why that is of some relevance is because 23 we had hoped that all of these things would be cleaned up at a 24 mediation if there was a settlement, which unfortunately was 25 not reached. And I say that to address Century's argument of

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SUPP APP 0740 Colloquy 9

1 delay. 2 The trustee did not delay, certainly not 3 intentionally. And I represent to you that it was only a 4 couple of weeks before we filed this motion that finally it 5 became clear from Mr. Erler that, wait, this document had not 6 been formally signed. 7 Now, underpinning all of this are certain arguments 8 that Century has raised both here and in front of Judge Solis, 9 that we take exceptionally seriously, and that we will do 10 something about in the procedurally appropriate posture. 11 Your Honor may recall that Century filed a notice of

12 appearance in the bankruptcy case. Century was served with 13 the disclosure statement and the plan. Century did not file 14 an objection to the plan. Century's lawyers stood right here 15 before you at the confirmation, and when asked by Your Honor 16 whether Century had any comments he basically said well, I'm 17 not a bankruptcy lawyer, I don't really have any, I'm here to

18 answer questions. 19 There is absolutely zero question of due process, and 20 there is absolutely zero question of 11 U.S.C. 1141 that this 21 plan is binding on Century. 22 Century now, months later, is making arguments that 23 the transfer of the insurance policy to the trust was invalid. 24 Century is now, months later, when the trustee has refused to 25 do its bidding, arguing that somehow the plan is a sham, that

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SUPP APP 0741 Colloquy 10

1 it's an irreconcilable conflict of interest, that Mr. Seidel 2 is somehow colluding with everyone basically as a master trick 3 against Century. Century is collaterally attacking Your 4 Honor's final binding nonappealable order. And, again, I say 5 we will do something about it. 6 But Century's really biggest defense is even more 7 shocking, because Century's biggest defense is the 8 disparagement of two judges. 9 First, they despair Judge Ginsberg by basically 10 saying that he rubberstamped collusive and -- they don't use 11 the word "false," but basically pre-engineered findings of

12 fact and conclusions of law. That somehow the trustee lost 13 the case intentionally, that somehow Judge Ginsberg looked the 14 other way, and somehow there's a miscarriage of justice, where 15 Judge Ginsberg somehow awarded twenty million dollars based on 16 collusion, even though Mr. Deari admitted to having sexual 17 relations with the eighteen-year-old girl, even though he

18 admitted to serving her alcohol, even though he admitted to 19 taking her to a hotel, even though he admitted to after the 20 act going to have a cigar and a nice meal, and even though he 21 admitted then going back to the hotel to claim his underwear, 22 that is Century's version of a collusive state court judge. 23 They also disparage you, because Your Honor entered, 24 apparently, a sham plan, a plan that voids the policy. Again, 25 collusive, somehow all engineered to enrich the trustee. I

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SUPP APP 0742 Colloquy 11

1 wish, again, not to try those issues today. Those issues are 2 not before Your Honor. Judge Solis will decide whether they 3 will go before Your Honor or him. Judge Solis has not granted 4 Century leave to amend their complaint, he has, instead, 5 ordered expedited briefing. And although we have agreed to 6 Century amending its complaint before Judge Solis, we will 7 take these issues up with Judge Solis, because we believe that 8 they're highly contentious, not to mention, utterly with 9 basis -- utterly without basis in fact. 10 Where does that leave us today? It leaves us now 11 that settlement discussions have ended, mediation has ended

12 with, basically, a war, a litigation war, which means that 13 things have to be cleaned up. This trust document exists for 14 the benefit of Ms. Doe and other beneficiaries. Mr. Seidel 15 was not there when this trust document was negotiated. Mr. 16 Seidel finds himself on a situation where he has no really 17 resort other than seeking clarification or guidance from this

18 Court. 19 So Mr. Seidel has phrased the issue one of two ways. 20 Just like with many plans, Judge, please compel the parties to 21 do what they should have done. That means designate who is on 22 the trust advisory board, fill in the blank for Munsch Hardt, 23 fill in the blank for fees, I need to know that if the fees 24 are going to be 10,000 dollars for this, I'm not going to go 25 forward. Or, alternatively, Judge, because this trust

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SUPP APP 0743 Colloquy 12

1 advisory board has not been effectuated for months, the 2 provisions of that have been waived by Ms. Doe, for whose 3 benefit the trust was created. 4 Your Honor will also hear from Mr. Berghman, my 5 associate, that he spoke to the second largest unsecured 6 creditor, Sam Johnson's law firm, 42,000 dollars. Mr. Johnson 7 also wishes that the trust advisory board go away as having 8 been waived. 9 Century is the only one contesting this. And Century 10 is contesting this not because they have a legitimate interest 11 in the governance of the plan or the trust document, but

12 because this is as shot, a free shot, bite of the apple, for 13 somehow gaining leverage in the district court action. 14 I was going to suggest to Your Honor one of three 15 ways of proceeding today. 16 First, I was going to suggest that Your Honor take up 17 the standing issue. It sounds like Your Honor's going to

18 carry that issue, and I'm certainly not going to disagree with 19 Your Honor's decision. 20 The second way is to just take up the facts as they 21 are on the record. They're matters of public record, they're 22 in front of Your Honor. There are blanks. All of the parties 23 assigned that are parties to this trust agreement are here, 24 and they're saying this was a mistake, we don't know why this 25 wasn't filled in, but it's time to clean this up, get rid of

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SUPP APP 0744 Colloquy 13

1 the trust advisory board, designate Munsch Hardt as counsel. 2 What more is there to discuss? Everyone that has an interest 3 in this trust is in agreement that this is what should be 4 done. 5 The third way is if we're going to have an actual 6 evidentiary hearing. Now, if Your Honor is going to take up 7 any of these collateral issues that Century has raised, then I 8 must seek a continuance, because I have a right to depose Mr. 9 Shults, who is here, now objecting to the plan. I have a 10 right to depose Century, asking what is your prejudice, what 11 is your interest in this trust. So I don't think we can have

12 a full and fair evidentiary hearing today. And that's exactly 13 what Century wants. 14 Put Mr. Seidel on the stand on what are otherwise 15 narrow issues, and try to take free testimony for subsequent 16 use before Judge Solis. Really, I have nothing to say or no 17 evidence other than what I've said. There's no smoking gun,

18 there's obviously a mistake, and the Court has to do something 19 about it. 20 Is the Court going to order the U.S. Marshals to 21 bring Ms. Doe down here and sit on a trust advisory board? Is 22 the Court going to conclude that Mr. Seidel can't have a 23 lawyer? Is the Court going to conclude that the whole plan is 24 a sham and convert the case? The Court doesn't have many 25 options I think that are palatable. But the Court's

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SUPP APP 0745 Colloquy 14

1 intervention is not necessarily required if all of the parties 2 that are subject to distrust are in agreement as to what 3 should be done. Thank you. 4 THE COURT: Thank you. Mr. Hesse, before you go let 5 me just see if any of these other parties, so you can address 6 all of them at one time. 7 MS. FONTAINE: Your Honor, Laura Fontaine for 8 creditor Jane Doe. 9 We disagree with a couple of the trustee's recitation 10 of the factual points, but we agree to the relief he seeks. 11 Our position is that at the time of plan confirmation

12 Jane Doe's claim was scheduled as disputed. And the 13 beneficiaries of the trust under the plan were the holders of 14 allowed class 4 claims. 15 Your Honor previously lifted the stay to allow her 16 claim to be tried in state court. The state court trial 17 didn't occur till July. So we were in a bit of a quandary as

18 of the effective date. We'd negotiated this trust, but we 19 haven't been able to resolve our claim either with the debtor, 20 and thereafter we weren't able to resolve our claim with the 21 trustee. The trustee disputed our claim, hired counsel to 22 oppose it. 23 So we weren't a beneficiary of the trust at the time 24 that the trust needed to be executed. We didn't want to run 25 afoul of the other allowed claims in the trust, potentially

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SUPP APP 0746 Colloquy 15

1 prejudice the rights of the other class 4 members. So we 2 decided not to take up our role on the trust advisory board. 3 When our claim was subsequently allowed after we 4 obtained judgment in state court, we decided to intervene in 5 the federal court litigation before Judge Solis directly. At 6 that point, there's no longer a need for us to serve on the 7 trust advisory board, that we could protect our own interests. 8 So there are other members of class 4 that could 9 potentially be appointed to the trust advisory board. We 10 don't want to be at this point. I don't think you're going to 11 have much luck convincing one of the credit card companies, or

12 Sam Johnson, he might have a conflict because he represented 13 the debtor's principal individually at one point. So I don't 14 think there's anybody who wants to be on the board. 15 So we don't disagree that the relief that the trustee 16 seeks, but we think that we got here in a different way. I 17 don't think we waived our right until recently. I don't think

18 we could have been on the trust advisor board. But at this 19 point I think that the trust advisory board no longer has 20 purpose or a willing participant. 21 THE COURT: Thank you. 22 MS. LINDAUER: Your Honor, let me tell you what I 23 recall about confirmation. The plan was confirmed, and then 24 we spent the next couple of months working with Mr. Deari to 25 get the 50,000 dollars.

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SUPP APP 0747 Colloquy 16

1 When the plan was confirmed Mr. Deari had made 2 arrangements to borrow 50,000 dollars. He had an agreement 3 with a gentleman to loan him -- him personally the money. And 4 then shortly after confirmation that person said, well, I 5 really want to look at different terms. So we ended up with 6 just a huge mess with finally arranged the 50,000 dollars, 7 finally got the money over to Mr. Seidel. But that was the 8 focus of probably the two months following confirmation was 9 working through those issues. 10 As far as the creditor trust goes, I did talk to Mr. 11 Seidel, I think I talked with his counsel. And Mr. Deari did

12 sign off on the trust agreement, Mr. Seidel signed off on the 13 trust agreement. As far as the blanks are concerned, my 14 understanding was that the trustee would fill in the blanks 15 because the confirmation order actually addressed a number of 16 the blanks and said what needed to be in those blanks. For 17 example, the trustee being Mr. Seidel. Mr. Seidel could

18 choose his own attorney, so we wouldn't have filled that in. 19 We might have been told who it was and could have filled it 20 in. But, in essence, the trust document, the one the Court 21 has, had all the material terms. 22 THE COURT: What about the trust board? 23 MS. LINDAUER: I'm sorry? 24 THE COURT: What did it have for the board in 25 that blank?

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SUPP APP 0748 Colloquy 17

1 MS. LINDAUER: Well, if you remember, the 2 confirmation order changed the board to one member. My 3 understanding leaving confirmation was that Ms. Doe would be 4 the member on the advisory board because she held the largest 5 claim. Whether it had been allowed or not wasn't really the 6 issue. We knew she had a significant claim, much larger than 7 any other creditors. And so my thought was was her or her 8 counsel would be the participant on the board. So that was my 9 understanding leaving. None of the other creditors had 10 this -- on confirmation, none of the other creditors had 11 really participated in this case to any extent. So Ms. Doe

12 and her counsel were the primary persons that would benefit 13 from the trust, and also the primary persons that were 14 involved in helping establish the trust in the first instance. 15 So my understanding was that she would be the member 16 of the board, and so that was -- 17 THE COURT: Was that the one that Erler -- the one

18 that's filled out, that's what it runs? 19 MS. LINDAUER: I don't know if the one -- I don't 20 know if I've seen the one that was filled out, if that's what 21 it provides or not. The one I saw was the one that we had 22 attached originally to the plan, it had some blanks in it. 23 But -- 24 THE COURT: Ms. Fontaine was shaking her head yes, is 25 that right? Or --

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SUPP APP 0749 Colloquy 18

1 MS. LINDAUER: Is that right? 2 THE COURT: No. 3 MS. FONTAINE: We never filled in the trust ad -- we 4 filled in Munsch Hardt, but we never filled in the trust -- 5 MS. LINDAUER: Trust advisory board. 6 MS. FONTAINE: -- advisory board. 7 MS. LINDAUER: Yeah. 8 THE COURT: Okay. 9 MS. FONTAINE: That's the uncertainty about the 10 allowance of the claim. 11 THE COURT: Okay.

12 MS. LINDAUER: My understanding -- well, and 13 honestly, the -- the way the trust was created we provided a 14 form over to Mr. Erler and his firm. They gave us comments. 15 We went back and forth on the form of the trust -- the primary 16 form of the trust really was a collaboration between 17 both forms, but primarily their form. And so my understanding

18 was that when Mr. Seidel got appointed we're kind of done. I 19 mean the trustee would take over, he would run the creditor 20 trust and he would be responsible for hiring counsel. And the 21 debtor went off and is running his pizza business. 22 And if you remember, the way the plan set up, we 23 split the unsecureds into two groups. There were the smaller 24 unsecureds which the debtor was responsible for paying. There 25 were the larger unsecureds that went into the trust.

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SUPP APP 0750 Colloquy 19

1 So our focus was making sure that Mr. Deari paid the 2 smaller unsecured creditors. We gave him a pay plan for that. 3 He's been making those payments. And then the larger 4 creditors went into the trust to be paid out of the trust. 5 So, really, once the plan was approved we kind of, maybe right 6 or wrong, kind of viewed the trustee as sort of the one 7 responsible for all this. I didn't know who he was going to 8 retain as counsel at the time of confirmation. I think that 9 was determined very quickly thereafter. So we just didn't 10 have that information. 11 When this all started to blow up over the last few

12 days, and I started reading the papers, I was really surprised 13 that this would be really an issue, because two things. 14 The trust itself says if there's any concerns about 15 the trust, subject to bankruptcy court's jurisdiction, the 16 bankruptcy court shall retain jurisdiction over the creditor 17 trust, the trust estate, the trustee, the members of the trust

18 advisory board. So it just seemed to me like if there were 19 any issues, you could take care of those problems. But I also 20 thought the things they were complaining about, frankly, were 21 more ministerial than material. The actual terms of the trust 22 were very straightforward, which is the trust was established 23 to hold claims for the benefit of a group of creditors. That 24 was the whole concept. And Mr. Seidel was appointed as 25 trustee.

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SUPP APP 0751 Colloquy 20

1 And we knew he would be trustee at confirmation 2 because we filled him in in the confirmation order. So as far 3 as what happened with the advisory committee, I really don't 4 know anything about that, other than my understanding was that 5 Mr. Erler's client would be the member of the advisory 6 committee. So that was my understanding of what happened 7 post-confirmation. But like I said, our focus was primarily 8 on trying to get the 50,000 dollars and making sure the other 9 unsecured creditors got paid. 10 THE COURT: Thank you. 11 MS. LINDAUER: So, thanks.

12 THE COURT: Mr. Hesse? 13 MR. HESSE: Good morning, Your Honor. Greg Hesse on 14 behalf of Century Surety. 15 As was mentioned last week, we were brought in kind 16 of late to the game. So I understand that there was no 17 objection made by Century to the confirmation of the plan. I

18 understand that. I understand that they were not scheduled as 19 a creditor. I understand they were not schedule, or they did 20 not file a proof of claim. 21 However, under the terms of the plan, the debtor 22 transferred to this creditor's trust not only claims against 23 Century, but also the Century insurance policy. They assigned 24 that actual policy, itself. As such, that would provide 25 Century with an interest in the plan of reorganization.

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SUPP APP 0752 Colloquy 21

1 And, quite frankly, listening to the dialogue that's 2 been going on here, I'm a little bit befuddled, because I, 3 quite candidly, Your Honor, could make the argument now that 4 we have discovered what's going on here, that the trust was 5 never actually formed, because there is a suggest -- there's 6 some very significant concerns as to what the terms of the 7 document are. You can't even have the parties over here agree 8 upon what the terms of the document are. 9 The debtor thought that Jane Doe was going to be the 10 sole member of the trust advisory board. Jane Doe's counsel 11 denies that that was going to be the case. Everybody kind of

12 forgot about it. The document -- they thought there was 13 a -- they fully filled out a document somewhere, and nobody's 14 ever seen it. I'm not really sure that we actually have a 15 trust that has been formed, which raises some fairly 16 significant questions in and of itself. 17 And I actually, quite candidly, believe that the

18 trust was properly formed up until the time that the trustee 19 filed his motion asking for this Court to, quite candidly I 20 believe, modify the terms of the plan. 21 So let's -- the quest -- what people are suggesting 22 that you do here is to just ignore the trust advisory board 23 and hope it goes away. But I think the Court needs to 24 understand what that means. And I think I would like to, 25 first of all, make reference to what the trustee had asked for

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SUPP APP 0753 Colloquy 22

1 in their motion to clarify. They either -- the way I read it 2 was they want the Court to appoint a person, or to appoint a 3 person appointed, or to declare -- and I'm quoting here, 4 "declare all provisions of the plan, the confirmation order, 5 and the trust agreement related to the trust advisory board, 6 or any permission or approval from the same to be void." They 7 want you to declare all provisions of the plan, the 8 confirmation order, and the trust agreement relating to the 9 trust advisory board to be void. What does that mean, Your 10 Honor? 11 I have a -- I have provided a copy of a -- of my

12 exhibit book, so if you -- if you want to follow along, with 13 Exhibit number 2, which is a copy of the plan of 14 reorganization. 15 Section 7.01 provides in the last sentence, "That 16 except as otherwise provided here, set forth herein, the 17 trustee and the creditor trust shall be subject to the

18 oversight by the trust advisory board, as provided in the 19 creditor trust agreement." So a term of -- what is a fairly 20 material term of the plan, which is the governance of the 21 trust, is going to be gutted by the proposal from the trustee, 22 because there's no longer going to be a trust advisory board 23 overseeing the creditor trust and the trustee. 24 From Century's perspective, that was kind of an 25 important term, because that means that there's someone

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SUPP APP 0754 Colloquy 23

1 keeping track of the trustee to make sure that he is doing 2 what he is supposed to be doing. 3 With regards to the actual terms of the trust 4 agreement, I'll go through a few of the terms, once again in 5 Exhibit 2 attached as Exhibit 1 to the plan, or Exhibit A to 6 the plan. I'll get you to the -- actually the document 7 filing, page -- at the top, Your Honor. 8 THE COURT: Okay. 9 MR. HESSE: Page 30. It talks about the 10 administrative powers of the trustee. Section 4.2(b)(iii), 11 "With prior approval of the trust advisory board -- the

12 trustee may exercise the power with the prior approval of the 13 trust advisor board, to enter into, perform and exercise 14 rights under contracts belonging to the creditor trust." 15 Remember, Your Honor, there was the assignment of the 16 insurance policy with Century into the creditor trust, that 17 would provide protection for Century, because it would be

18 dealing with our contract. 19 4.2(b)(v), "With the prior approval of the trust 20 advisory board the trustee can employ attorneys." 21 Moving over to page 31, 4.2(b)(x), I'm going to 22 invert it, "With the prior approval of the trust advisory 23 board, the trustee can compromise, adjust, or settle, or 24 abandon causes of action." Once again, this relates to 25 Century.

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SUPP APP 0755 Colloquy 24

1 And, interestingly, Your Honor, it was mentioned in 2 the trustee's response, they didn't file this motion until 3 after there was the mediation with Century. Based upon the 4 document that they now rely upon, they didn't have authority 5 to enter into the mediation and to try to settle the claim 6 with Century. They wasted a significant amount of our time 7 going into this mediation because they did not have authority. 8 (xi) also provides "With the consultation of the 9 advisory board, they will compromise, adjust, settle or 10 abandon any avoidance actions." 11 Over on the next page, page 32, "With prior approval

12 of the trust advisory board, they can sue in connection with 13 matters." 14 (xviii) "With prior approval of the trust advisory 15 board, they can borrow money." 16 (xix) "With prior approval of trust advisory board, 17 they can use net causes of action to pay expenses."

18 So those are all fairly significant provisions that 19 require trust advisory board approval. 20 And I'd also like to direct Your Honor's attention 21 to -- bear with me for just a moment. There is a provision in 22 the trust agreement that provides for the ability to amend the 23 trust agreement. They chose not to amend the trust agreement. 24 And probably one of the reasons that they chose not to amend 25 the trust agreement is over here in Section 10.1 starting with

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SUPP APP 0756 Colloquy 25

1 the fifth line from the top. It says that "The trustee is not 2 entitled to amend or modify Sections 4.2(x) and 4.2(xi)." 3 And, again, going back to (x) that is "The trust advisory 4 board has to be consulted and has to approve any settlement of 5 any claims or causes of action." Once again, relating to 6 Century. 7 So this all has -- Century has an interest in what's 8 going on in the trust advisory board, because its contract was 9 assigned to the trust advisory board. And, secondly, that it 10 was -- these doc -- the way that the governance is done with 11 regards to the claim against trust -- Century, provides that

12 the trust advisor board will be consulted. 13 And then I'll also point out to you one fairly 14 significant, just wholesale gutting of the document, is in 15 page 37 of the -- of the plan as it was filed, page 17 of the 16 trust agreement. Starting with Section 6, "The establishment 17 of the trust advisory board in all related matters."

18 And then there's one final point that I would make, 19 Your Honor, is that dealing with the removal of a trustee in 20 Section 8.8(b), "The trustee may be removed by the order of 21 the bankruptcy court, but only upon motion of the trust 22 advisory board with less than a unanimous vote, or upon 23 unanimous vote of the trust advisory board." 24 So to completely eliminate all references to the 25 trust advisory board, you basically have an -- the trustee not

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SUPP APP 0757 Colloquy 26

1 being able to be under the oversight of anyone, and being able 2 to do as he sees. 3 So this a material change to the trust -- trust 4 agreement, which was incorporated by reference into the plan 5 of reorganization, which plan was sent to creditors and 6 parties-of-interest, which creditors and parties-of-interest 7 relied upon in whatever decisions they ultimately made. 8 So, quite candidly, Your Honor, this is a significant 9 modification to the plan of reorganization. And I cited in 10 our objection a fairly lengthy quote from Judge Sharp in the 11 U.S. Brass case, in which he noted that any -- you can file a

12 motion, and you can set it up as trying to describe it as an 13 interpretation of the plan, or kind of a -- an interpretation 14 of a trust agreement, but if it results in material changes to 15 a confirmed -- a substantially confirmed plan, he didn't 16 have -- you don't have authority to modify those provisions. 17 Which then raises the question has the plan been

18 substantially consummated? I'll note, Your Honor, that the 19 debtor did file an application for -- an application to enter 20 a final decree and close the case in which the debtor 21 represented that the plan has been substantially consummated. 22 If the plan, in fact, has been substantially consummated, 23 there's no authority under Section 1127 to modify it, even 24 indirectly by merely seeking to waive these provisions. That 25 ends up being effectively a material modification.

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SUPP APP 0758 Colloquy 27

1 So we would ask that -- I mean, just based upon what 2 they're seeking to do, we'd ask the Court to deny it. 3 This is not a problem that Century caused. We 4 thought that we were dealing with someone who has been 5 properly appointed and has authority to act as they did. The 6 fact that the trustee represented that the trust had been 7 appointed -- the trustee had been appointed, that he had 8 hired -- properly hired counsel in order to try to intervene 9 into the -- litigate the coverage action in federal district 10 court, was based upon the understanding of what was going to 11 happen, and it was consistent with what they were saying. It

12 was only until they filed this motion that real questions 13 arise as to, number one, whether the trustee has, in fact, 14 been formed? Based upon this discussion, I'm not sure that it 15 has. And, secondly, whether the trust -- whether they have 16 authority under Section 1127 to modify these terms anyway. 17 These provisions, in part, provide some protection to

18 Century, it provides -- these protections relate to the 19 ability to settle claims. It provides some form of oversight 20 on the trustee in his actions, that I think that it's 21 important. 22 I think I explained in our response the concerns that 23 have arisen -- as time has gone on as to the inherent -- 24 potentially inherent conflict that has arisen as a result of 25 this particular plan and trust agreement. The trustee has

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SUPP APP 0759 Colloquy 28

1 been given the sole right to object to the claim of Jane Doe. 2 His compensation is based upon the percentage of recovery that 3 can be given from the trust assets, which primarily consist of 4 the claim against Century. The value of the claim against 5 Century directly correlates to the value of the claim -- or 6 the amount of claim that Jane Doe has against the trust. 7 It -- clearly, if Jane Doe's claim is twenty million 8 dollars, and that results in twenty million in proceeds to the 9 trust, the trustee gets a million dollars. 10 If Jane Doe's claim is zero, the trust gets zero. 11 The trustee's compensation is zero. It is directly

12 correlated. 13 And so there is -- there is a potential conflict of 14 interest that exists under this plan and this trust agreement 15 that is -- that is ameliorated in part by having the trust 16 advisory board there to make -- overseeing what is going on. 17 I don't know ultimately what happened in the state

18 court, we'll find out. That's a subject of issues in other 19 courts. All I'm saying is under this document there is a 20 concern. Was it raised at the time of confirmation, no. It 21 became -- but it became more apparent as time has gone on. 22 And, especially now it becomes more apparent when the trustee 23 is seeking to -- and the parties-in-interest here, the debtor 24 and Jane Doe, are asking that the Court eliminate the trust 25 advisory board, the one check over the trustee's actions.

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SUPP APP 0760 Colloquy 29

1 So in our view, Your Honor, you should deny the 2 motion as a material modification of the plan. This is not a 3 mess that we caused, it's a mess that they caused. And 4 if -- and, quite candidly, if they didn't actually effectuate 5 the formation of the trust, maybe there's a material 6 modification to the plan that raises questions as to whether 7 this case should be dismissed or converted. Thank you, Your 8 Honor. 9 THE COURT: Thank you, Mr. Hesse. 10 MR. RUKAVINA: Your Honor, I think Mr. Gruber wants 11 to address the Court.

12 THE COURT: Okay. 13 MR. GRUBER: Your Honor, I just want to address, 14 especially that last comment, that "not the mess that they 15 made." 16 Your Honor, my client, Ms. Doe, as an eighteen-year- 17 old girl put up with four years of depositions questioning

18 her -- everything about her, three-day very adversarial trial. 19 We can play you depo clips where they go into everything about 20 whether she was really raped, whether she wanted it, whether 21 she wanted the herpes that she still has. 22 They initially, four years ago, indicated that their 23 problem was coverage here. And then once they hired counsel, 24 they pulled that counsel. And my client had four years of 25 this because they wouldn't respond to the first demand for

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SUPP APP 0761 Colloquy 30

1 payment, or the next three they didn't respond to us at all. 2 The bankruptcy is because -- 3 MR. HESSE: Your Honor, I'm going to -- 4 MR. GRUBER: -- they couldn't pay the attorney's 5 fees. 6 MR. HESSE: Your Honor, I'm going to object to the 7 relevance to this, to the matter at hand. 8 THE COURT: Overruled. 9 MR. GRUBER: Okay. The reason we're here in 10 bankruptcy court is because they quit paying counsel, and that 11 is what led to this bankruptcy. Your Honor, they showed no

12 interest in this case at all, except for showing up, sending a 13 lawyer, never to defend their insured, but they did send a 14 lawyer to the bankruptcy hearing where this plan was approved. 15 But aside from that, Your Honor, they didn't even answer our 16 letters begging them to keep our client from having to go 17 through what she had to go through.

18 I'm a little emotional, because this is a young lady 19 who I was there when they brought her home from the hospital, 20 a friend of our family, played with my kids when she was 21 young. And continually -- they continue to pull things like 22 this. It's the most ridiculous pleading that they've just 23 filed in Judge Solis' court. Judge, for them to say they're 24 not responsible what has happened to my client, and what has 25 happened in this instance, is ridiculous. Thank you.

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SUPP APP 0762 Colloquy 31

1 THE COURT: Thank you. Mr. Rukavina, I hear you on 2 your motion for a continuance, but I'm overruling that. 3 Why don't you call your first witness? 4 MR. RUKAVINA: Why don't I get some easy stuff out of 5 the way first, Your Honor. I move to admit Exhibits A through 6 H. 7 MR. HESSE: Your Honor, we will not stipulate to the 8 admissibility of Exhibit 8, Your Honor threw that one out. 9 MR. RUKAVINA: Which one? Exhibit -- 10 MR. HESSE: That's the trust agreement. The 11 executed -- the purportedly executed --

12 MR. RUKAVINA: I just didn't hear you, Exhibit A? 13 MR. HESSE: 8. 14 MR. RUKAVINA: 8. I don't have -- I have A through 15 H. 16 MR. HESSE: I'm sorry, I was looking at mine. 17 THE COURT: And yours, you just have A through F, is

18 that right, Mr. Rukavina, because the others -- 19 MR. RUKAVINA: I have A through H, Your Honor, in the 20 binder. G and H were not on my witness and exhibit list -- 21 THE COURT: Oh, I see. 22 MR. RUKAVINA: -- because they were just filed by 23 Century on Friday evening. 24 THE COURT: Oh, okay, right. 25 MR. HESSE: C, Exhibit C, Your Honor threw that one

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SUPP APP 0763 Colloquy 32

1 out. 2 THE COURT: Do you object to C? 3 MR. HESSE: I -- at this point I'm not going to 4 stipulate to its admissibility. 5 THE COURT: Okay. A, B, and then D through H are 6 admitted. 7 (Trustee's Exhibits A, B, D-H were hereby received into 8 evidence, as of this date.) 9 MR. RUKAVINA: Your Honor, I'd like to briefly 10 proffer the testimony of Thomas Berghman. 11 MR. HESSE: Your Honor, I'm going to object.

12 THE COURT: All right. Mr. Berghman, please come 13 over here. 14 Mr. Berghman, you're an attorney licensed to practice 15 in the State of Texas, is that right? 16 MR. BERGHMAN: I am, Your Honor. 17 THE COURT: You may take the witness stand without

18 the administration of the oath. 19 MR. HESSE: Your Honor, also, Mr. Berghman was not 20 listed on the witness list. 21 MR. RUKAVINA: Your Honor, I was -- shall I get my 22 cell phone? 23 THE COURT: Sure. 24 MR. HESSE: I don't believe -- 25 MR. RUKAVINA: Wasn't I listed on it?

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SUPP APP 0764 Colloquy 33

1 MR. HESSE: You listed Mr. -- 2 MR. RUKAVINA: Your Honor, a lot of this is in 3 response to what they filed Friday -- Friday afternoon. 4 THE COURT: Sustain the objection. 5 MR. RUKAVINA: Your Honor, I'll call Joyce Lindauer. 6 MR. BERGHMAN: She just went to the -- I'll call her, 7 just a second. 8 MR. HESSE: I will object to Ms. Lindauer being 9 called as a witness. She is an attorney that's been acting as 10 an attorney. Under the Texas Disciplinary Rules an attorney 11 cannot act as a witness on material facts. So we would object

12 to Ms. Lindauer being called. 13 THE COURT: Overruled. 14 (Pause) 15 THE COURT: Now we've lost everybody? 16 MR. RUKAVINA: Your Honor, I apologize. It would 17 have been fun to put my associate on the stand though.

18 THE COURT: We're going backwards. I'd like to see 19 Mr. Berghman up there. 20 MR. RUKAVINA: We'll conduct the examination in 21 Flemish. 22 MR. RUKAVINA: You want me to run out and yell at 23 them? 24 THE COURT: We need a witness in. 25 (Pause)

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SUPP APP 0765 Colloquy 34

1 MR. HESSE: Your Honor, I will also reurge my request 2 to invoke the rule. 3 THE COURT: Okay. I'm overruling it. 4 MS. LINDAUER: I'm sorry, Your Honor. I went to go 5 move my car. I didn't get very far, but it's all right. 6 MR. RUKAVINA: I've called you as a witness. 7 MS. LINDAUER: I know, that's what I heard. You want 8 to swear me in or -- 9 THE COURT: No, just I'm going to state on the record 10 you're a lawyer licensed to practice in the State of Texas, is 11 that right?

12 MS. LINDAUER: Yes, sir. 13 THE COURT: You may take the witness without the 14 administration of the oath. 15 MS. LINDAUER: Thank you, Your Honor. 16 DIRECT EXAMINATION 17 BY MR. RUKAVINA:

18 Q. Ms. Lindauer, for the record, please state your name and 19 Your role in this bankruptcy case? 20 A. Yeah, my name is Joyce Lindauer. And I was approved as 21 attorney for the debtor Pastazios Pizza, Inc. 22 Q. Are you familiar with the plan that was confirmed in this 23 case, and the accompanying trust agreement? 24 A. I am. 25 Q. How so?

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SUPP APP 0766 Joyce Lindauer - Direct 35

1 A. I drafted the plan with the involvement of a number of 2 the creditors in the case, primarily Jane Doe's counsel, Mr. 3 Erler, Ms. Fontaine originally. Early on in the case there 4 was a big move to convert the case to Chapter 7 or appoint a 5 trustee. We were able to work out an agreement with them to 6 do a plan instead that included a creditor trust. 7 Q. And was that creditor trust negotiated by you with 8 anyone? 9 A. Yes. 10 Q. And who was it negotiated by you with? 11 A. It was negotiated with me, with Laura Fontaine and Jeff

12 Erler, primarily. Our prior counsel, Mr. Johnson, I believe, 13 who had been handling the litigation for Pastazios, and also 14 Danny Deari, had a little bit of input also in the case and 15 how things would be handled in the case. 16 Q. What was the purpose during those negotiations of having 17 a trust advisory board?

18 A. A trust advisory board was really not discussed per se. 19 It wasn't really -- I mean, it was a concept, but it wasn't 20 really a material term that was discussed. 21 Q. For whose benefit was the trust agreement negotiated? 22 A. For the benefit of the creditors who would have claims 23 that would have been greater than the claims that were allowed 24 in the -- what we called an administrative convenience class. 25 We had a 5,000-dollar limit on adminis -- on claims. So it

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SUPP APP 0767 Joyce Lindauer - Direct 36

1 was for the creditors who had claims greater than 5,000 2 dollars. 3 MR. RUKAVINA: May I approach the witness, Your 4 Honor? 5 THE COURT: You may. 6 MS. LINDAUER: Thank you. 7 Q. Would you please turn to Exhibit C. 8 A. I've got that. 9 Q. I'll ask you if you recognize that document, and then 10 flip to the signature page please? 11 A. Yeah, this is a copy of the creditor trust agreement that

12 was included as part of the plan that was filed in the 13 Pastazios Pizza case. 14 Q. And did Mr. Deari sign this and then you e-mail to Mr. 15 Seidel? 16 A. I did. 17 Q. Mr. Seidel then signed it and e-mailed it to you?

18 A. Correct. 19 MR. RUKAVINA: Your Honor, I'd move to admit Exhibit 20 C. 21 MR. HESSE: Your Honor, may I take Ms. Lindauer on 22 voir dire? 23 MR. RUKAVINA: What's the point? 24 THE COURT: You may. You may. 25 VOIR DIRE EXAMINATION

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SUPP APP 0768 Joyce Lindauer - Voir Dire 37

1 BY MR. HESSE: 2 Q. Ms. Lindauer, were you present in the room when Mr. Deari 3 signed the agreement? 4 A. Yeah, I believe he signed it at our office. He signed -- 5 Q. No, were you in the room with him? 6 A. Yes. 7 Q. You were in the room? 8 A. Yeah. 9 Q. Okay. So you witnessed him actually signing the 10 agreement? 11 A. Yeah, he stopped by our office to sign it.

12 Q. And when you put it in front of -- when he signed this 13 page, what was put in front of him? 14 A. The entire trust agreement. 15 Q. The entire trust agreement. The -- I'll note at 16 the -- I'll note at the top -- 17 A. Um-hum.

18 Q. -- above the signature, it says, "Signature page 19 follows"? 20 A. Right. 21 Q. Now, could you please turn to Trustee's Exhibit A, the 22 last page? 23 A. Got it. 24 Q. Can you compare the two pages? 25 A. Yes.

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SUPP APP 0769 Joyce Lindauer - Voir Dire 38

1 Q. Now, the page that was attached to the plan does not 2 state at the top of the signature page, "Signature page 3 follows," correct? 4 A. Correct. 5 Q. And also the -- page 29 of Exhibit C -- 6 A. Right. 7 Q. -- does not have at the top of it the court's filing 8 stamp, correct? 9 A. Correct. 10 Q. Whereas on page 29 of the trust agreement attached 11 to -- as Exhibit A, there is at the top the court's filing

12 stamp, correct? 13 A. Correct. 14 Q. Okay. And were you in the room when Mr. Seidel signed 15 the document? 16 A. No. 17 Q. And what did you e-mail to Mr. Seidel?

18 A. The signature page. 19 Q. Just the signature page? 20 A. Just the signature page. 21 Q. Okay. 22 MR. HESSE: I have no further questions on voir dire. 23 Thank you, Your Honor. 24 THE COURT: All right. 25 MR. HESSE: We would object to the admissibility at

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SUPP APP 0770 Joyce Lindauer - Voir Dire 39

1 this time. 2 THE COURT: On what basis? 3 MR. HESSE: The -- it does not appear to be an 4 accurate -- it doesn't appear to be -- let me -- let's 5 wait until Mr. Seidel -- I'd object at this point in time, she 6 didn't see Mr. Seidel sign the document. At this point, we'd 7 wait to have an opportunity to talk with Mr. Seidel about what 8 he signed as well. I'd ask for a temporary not be admitted 9 because she did not witness Mr. Seidel signing the document. 10 THE COURT: Well, I'll carry the objection, but the 11 witness will be examined on this document, right.

12 MR. HESSE: Okay, thank you, Your Honor. 13 THE COURT: So you can examine her about the trust 14 document. 15 MR. RUKAVINA: Yes. 16 BY MR. RUKAVINA: 17 Q. Ms. Lindauer, before we look at this document, you were,

18 again, lead debtor's counsel in this case, correct? 19 A. Correct. 20 Q. Did Century participate, appear, and do anything in this 21 bankruptcy case? 22 A. Not that I recall. 23 Q. Was Century ever intended to be a beneficiary of this 24 plan or the trust agreement? 25 A. No.

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SUPP APP 0771 Joyce Lindauer - Direct 40

1 Q. Did Century ever try to negotiate anything about this 2 trust agreement or plan with you? 3 A. No. 4 Q. Do you recall whether Century's attorney appeared at the 5 confirmation? 6 A. You mention that they did; I don't recall. They may 7 have. I think they attended. That may be the only hearing 8 they actually attended. 9 Q. But had they attended the hearing and tried to negotiate 10 something with you, or clarify something, would you have 11 remembered that?

12 A. Oh, yeah, absolutely. 13 Q. Okay. Now, if we go over this trust agreement, not to 14 burden the Court's time -- 15 A. Sure. 16 Q. -- you'll agree with me that there are certain blanks in 17 this agreement?

18 A. Absolutely. 19 Q. Explain to me, or to the Court, rather, how it is that on 20 May 22nd, 2015 Mr. Deari signed this and it was sent to Mr. 21 Seidel with blanks in it? 22 A. Well, I think what happened with the trust agreement was 23 that shortly following confirmation, the primary focus, 24 because Mr. Seidel and I were on the phone a lot, was trying 25 to get the 50,000 dollars that he needed as sort of the seed

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SUPP APP 0772 Joyce Lindauer - Direct 41

1 money for the plan and then the trust. The trust 2 agreement -- the confirmation order had adjusted some of the 3 terms of the trust agreement. For example, it appointed Mr. 4 Seidel as the trustee. 5 Q. So that -- 6 A. Yeah. 7 Q. -- blank was filled in by the judge, basically? 8 A. Yeah, by the confirmation order. 9 Q. Yeah. 10 A. It also addressed that the trustee could hire counsel. 11 It also addressed that the advisory board would be one member

12 as opposed to multiple members. What happened was then I know 13 Mr. Seidel called me at some point and said we don't have a 14 signed trust agreement, we need the trust agreement signed. 15 And I said okay, let me get a hold of Mr. Deari. The reason 16 that Mr. Hesse, I think is having problems with the 17 pagination, Your Honor, is I'm pretty certain what we did was

18 just printed out -- because we had it in Word, printed out a 19 copy of the trust agreement. Mr. Deari came by, signed the 20 trust agreement, and then we faxed or e-mail over the 21 signature page to Mr. Seidel. Or, and I'm not remembering 22 exactly, we may have already had Mr. Seidel's signature, but 23 that -- 24 Q. In any event, go back to, please -- 25 A. Sure.

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SUPP APP 0773 Joyce Lindauer - Direct 42

1 Q. -- why there are still blanks in this document? 2 A. Okay. So there's still blanks in the document because, 3 honestly, after the agreement was signed by Mr. Deari and Mr. 4 Seidel, I just assumed that Mr. Seidel, as the trustee of the 5 trust, would fill in the missing blanks, because at that point 6 I viewed him as the responsible person, because he was the 7 trustee of the trust. And the way I understand trusts work, 8 the trustee is the responsible person. And so I just assumed 9 the blanks would all be filled in. I'm not even sure I knew 10 who his insurance counsel was until I think you may have 11 contacted me at some point.

12 Q. Did Mr. Seidel ever represent to you, or tell you that he 13 would fill in those blanks? 14 A. No. I don't think we ever talked about. 15 Q. Thank you. 16 MR. RUKAVINA: I'll pass the witness, Your Honor. 17 THE COURT: Mr. Hesse?

18 CROSS-EXAMINATION 19 BY MR. HESSE: 20 Q. A couple of follow-up questions, Ms. Lindauer. 21 A. Sure. 22 Q. Let me make sure that I understand. What happened when 23 you and -- with Mr. Deari is that you printed out the -- a 24 Word document for him to sign? 25 A. Correct.

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SUPP APP 0774 Joyce Lindauer - Cross 43

1 Q. Is that document -- do you know where that document is? 2 A. I'm sure it's still on my computer. 3 Q. Well, no, I mean, the executed agreement? 4 A. Oh, it's probably in our file, I would think. 5 Q. Okay. Now -- so the agreement that Mr. Deari signed did 6 not have at the top of it the court's filing stamp? 7 A. No, because I didn't go and pull the one that was 8 attached to the plan. We would have just printed one off of 9 the computer. 10 Q. So what is presented as Exhibit C is not a true and 11 correct copy of the document that Mr. Deari signed?

12 A. I have no reason to believe that it isn't. 13 Q. But it doesn't -- but this document that's being 14 presented as Exhibit 6 -- or C, I'm sorry, has the court's 15 filing stamp, whereas you said that he signed a document that 16 did not have the Court's filing stamp? 17 A. Apparently, that's true, yes.

18 Q. Okay. So this is -- the document that is presented is 19 not the document he signed? It's not a copy of the document 20 he signed? 21 A. If the document that he signed did not have this little 22 header writing across the top, then you would be correct. But 23 I have no reason to believe the one with the header is any 24 different than the one that he would have signed. 25 Q. But you don't know for sure, do you?

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SUPP APP 0775 Joyce Lindauer - Cross 44

1 A. No, because I didn't sit and compare them. 2 Q. Okay, thank you. And you sent to Mr. Seidel solely the 3 signature page, correct? 4 A. That's what I recall. 5 Q. Okay. 6 A. Now, he may have a different recollection. That's what I 7 recall. 8 Q. Okay. And it was your understanding that -- and the 9 document -- 10 MR. HESSE: Let me rephrase the question, Your Honor. 11 Q. And the document that Mr. Deari signed had the blanks in

12 it, correct? 13 A. I believe so. 14 Q. And it was your understanding that the rest of the 15 agreement would be filled in by Mr. Seidel? 16 A. Correct. 17 Q. So Mr. Deari didn't sign a completed document, correct?

18 A. He signed a document with blanks in it, we did not fill 19 in those blanks. 20 Q. Okay. All right. So he did not sign the completed 21 document? 22 A. He -- well, that's -- he signed what you have right here 23 as the creditor trust agreement. 24 Q. Which was not -- which it was your understanding was not 25 to be the final agreement?

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SUPP APP 0776 Joyce Lindauer - Cross 45

1 A. No, that was the final agreement. 2 Q. But there were -- but the trustee was going to complete 3 the agreement, correct? 4 A. Right. Just fill in the blanks. Those were ministerial, 5 those were just fill in names of his counsel, fill in -- I 6 think there's a notice provision that needed to be filled in, 7 those types of things. But the material terms were all here. 8 Q. Okay. And it was Mr. Deari's understanding that there 9 would be a trust committee, a trust advisory board? 10 A. You know, I don't know, Mr. Deari's a pretty simple guy, 11 I'm not sure he had any understanding of how that would work.

12 Yeah. 13 Q. Let me rephrase the question. 14 A. Sure. 15 Q. It was your understanding that there would be a trust 16 advisory board appointed, correct? 17 A. Right. But it was my understanding that it would be a

18 one-member board. And I believe Ms. Doe was going to be the 19 member. 20 Q. No, I understand. 21 A. Okay. 22 Q. So -- no, I understand -- 23 A. Right. 24 Q. -- that under the confirmation order it was modified. 25 A. Right.

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SUPP APP 0777 Joyce Lindauer - Cross 46

1 Q. And I'm not trying to change anything -- 2 A. Sure. 3 Q. -- from the confirmation order. 4 A. Sure. 5 Q. But you had no reason to believe that the trust advisory 6 board would not occur -- 7 A. No. 8 Q. -- or be appointed? 9 A. No. 10 Q. Okay. Gainfully, the debtor doesn't have a dog in that 11 particular fight, does it?

12 A. The debtor has no dog in any of this fight. Mr. Deari 13 was able to keep his pizza restaurant. These were claims that 14 belonged to the creditors. Whether there's a trust or not, 15 somebody's got to pursue the claims for the benefit of those 16 creditors, that was the concept. 17 Q. Sure.

18 A. Okay. 19 Q. And was the primary claim -- the primary asset of the 20 trust was the claim that was being asserted against Century 21 and Century insurance policy, correct? 22 A. Correct. 23 Q. And the three creditors are primarily Ms. Doe, and then 24 two trade vendors? 25 A. It's either two or three trade vendors --

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SUPP APP 0778 Joyce Lindauer - Cross 47

1 Q. Okay. 2 A. -- I'm not sure. But, yeah, that's correct. 3 Q. But those are fairly small? 4 A. Correct. 5 MR. HESSE: I have no further questions, Your Honor. 6 THE COURT: Thank you. Mr. Rukavina? 7 MR. RUKAVINA: Just one follow-up, Ms. Lindauer. 8 THE WITNESS: Sure. 9 REDIRECT EXAMINATION 10 BY MR. RUKAVINA: 11 Q. Just so I understand, so you agreed to the trust advisory

12 board in your own mind being Ms. Doe because that would 13 benefit Ms. Doe? 14 A. Right. And the other -- 15 Q. And that Ms. -- 16 A. -- other creditors too, honestly. 17 Q. And if Ms. Doe waives that benefit do you see any

18 resulting prejudice to the debtor or anyone else? 19 A. No, not really. I think Mr. Seidel's an excellent 20 trustee. I don't think he needs -- I think he can do this job 21 without an advisory board, frankly. 22 Q. Thank you. 23 MR. RUKAVINA: Thank you, Your Honor. 24 THE COURT: Any other questions of Ms. Lindauer? 25 You may step down, Ms. Lindauer.

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SUPP APP 0779 Joyce Lindauer - Redirect 48

1 MS. LINDAUER: Thank you, Your Honor. 2 THE COURT: How you like that witness box? 3 MS. LINDAUER: I hate it. I hate being a witness. 4 MR. RUKAVINA: I was down there not too long ago, if 5 I recall. 6 THE COURT: I think I made a finding you were 7 credible too. 8 MR. RUKAVINA: You made a finding I was credible, 9 thank you. 10 I'll call Trey Crawford please. 11 I would have rather had a finding of good-looking,

12 but I'll take credible. 13 THE COURT: Mr. Crawford, for the record, you're a 14 lawyer licensed to practice in the State of Texas, is that 15 correct? 16 MR. CRAWFORD: Yes, Your Honor. And just for the 17 record, my legal name is Tom Crawford III.

18 THE COURT: Okay. You may be seated. 19 MR. RUKAVINA: But I'm going to call you Trey, just 20 because that's how I know you, is that okay? 21 MR. CRAWFORD: My entire life I've been called Trey, 22 so yes, sir. 23 DIRECT EXAMINATION 24 BY MR. RUKAVINA: 25 Q. And just, quickly, you're a lawyer and you represented

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SUPP APP 0780 Tom Crawford III - Direct 49

1 Ms. Doe in the state court lawsuit? 2 A. Yes, sir. 3 Q. Okay. And when did you start representing Ms. Doe? 4 A. I believe in early 2013. 5 Q. And did the case get tried? 6 A. It did get tried to a verdict. 7 Q. Were you there personally? 8 A. Yes, I was lead trial counsel. 9 Q. On or about June 8th, 2015, did I appear in the state 10 court on a scheduling matter with you? 11 A. You did.

12 Q. Okay. Was Mr. Seidel there? 13 A. I believe he was there. 14 Q. Okay. Did you have an understanding that I had been 15 retained by Mr. Seidel together with my firm as insurance 16 counsel? 17 A. Yes.

18 Q. Did you or Ms. Doe have any objection to that? 19 A. No. 20 Q. Have you ever voiced any objection to Mr. Seidel 21 retaining my firm as insurance counsel? 22 A. No. 23 Q. At that hearing did I inform the state court that Mr. 24 Seidel had retained replacement trial counsel? 25 A. Yes, you did.

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SUPP APP 0781 Tom Crawford III - Direct 50

1 Q. And who was their trial counsel, do you recall? 2 A. Chen Dotson. 3 Q. Did Ms. Doe know that Chen Dotson would be, and was and 4 did try the lawsuit on behalf of the trust? 5 A. We knew as soon as they were appointed and moved to make 6 an appearance in the state court case. 7 Q. Did you or Ms. Doe have -- voice any objection to the 8 trustee retaining Chen Dotson? 9 A. Not at all. 10 Q. Okay. What was the result of trial? 11 A. We got a twenty million-dollar verdict jointly and

12 severably against PPI and Deari. And the state court judge 13 actually said it's most egregious set of facts he's seen since 14 he's been a judge. 15 Q. The brief facts I gave to the judge during my opening, 16 you were here for those, did I generally tell the judge the 17 truth about the evidence that was adduced?

18 A. Absolutely. 19 Q. Okay. Did Ms. Doe offer to settle her claims before 20 trial? 21 MR. HESSE: Your Honor -- 22 A. We tri -- 23 MR. HESSE: -- objection for 40(h) settlement 24 negotiations. 25 MR. RUKAVINA: It's not 40(h) if it's the basis of a

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SUPP APP 0782 Tom Crawford III - Direct 51

1 cause of action, which in this case is Stowers. We're not 2 going to go into what was necessarily discussed, and it's not 3 being used -- 4 MR. HESSE: But it's not relevant to this trial. 5 THE COURT: Overruled on that question. Don't go 6 into settlement discussions. 7 MR. RUKAVINA: Thank you. 8 Q. Did Ms. Doe offer to settle before trial? 9 A. We begged to settle before trial so she wouldn't have to 10 go through the two and a half years that she went through. 11 Q. And I think we all know as the attorneys what the Stowers

12 doctrine is. Was it pursuant to the Stowers doctrine that Ms. 13 Doe made her offer? 14 A. Absolutely. 15 MR. HESSE: Your Honor, objection, that's a legal 16 issue. And it's a matter subject to -- it's not a matter 17 that's relevant to this case.

18 MR. RUKAVINA: I'll ask it this way, Your Honor. 19 THE COURT: Sustained to relevance. 20 Q. Did Ms. Doe offer to settle within policy limits? 21 A. Absolutely. 22 Q. And was that offer accepted? 23 A. It was not even responded to. 24 Q. Okay. Now, you understand that Ms. Doe -- or do you 25 understand that Ms. Doe was intended at the time of

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SUPP APP 0783 Tom Crawford III - Direct 52

1 confirmation in this bankruptcy case, to sit on this trust 2 advisory board? 3 A. Can you repeat the question? 4 Q. Pardon me. Do you understand that at the time of 5 confirmation, or do you have any understanding that at the 6 time of confirmation here in this bankruptcy case, Ms. Doe was 7 apparently intended to sit on the trust advisory board? 8 A. I honestly don't know that. Mr. Erler and Ms. Fontaine 9 probably would know better than I would. 10 Q. Okay. Does Ms. Doe today want to sit on the trust 11 advisory board?

12 A. Frankly, I don't think it's necessary. I mean, the 13 trustee's got fiduciary duties. As long as they're following 14 the fiduciary duties, I don't -- I really don't see a point in 15 doing that. 16 Q. Okay. Without going into discussions you've had with 17 your client, I take it that you have -- that Ms. Doe has made

18 an informed decision on that point? 19 A. Absolutely. 20 Q. Do you believe that Ms. Doe has been prejudiced by the 21 trustee retaining insurance counsel, retaining Chen Dotson and 22 not seeking approval from a trust advisory board? 23 A. Not a bit. 24 Q. Okay. 25 MR. RUKAVINA: Your Honor, I pass the witness. Thank

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SUPP APP 0784 Tom Crawford III - Direct 53

1 you. 2 THE COURT: Mr. Hesse? Oh, Ms. Fontaine, first. 3 MR. HESSE: Your Honor, I'm going to raise the same 4 objection. They're members of the same firm that there's an 5 ethical issue with a lawyer acting as a witness, and -- on a 6 relevant matter, and having -- acting as counsel in the same 7 matter. 8 THE COURT: Overruled. 9 MS. FONTAINE: I'll be real quick, Your Honor. 10 CROSS-EXAMINATION 11 BY MS. FONTAINE:

12 Q. Mr. Crawford, who has been primarily responsible as 13 counsel for communications with Century Insurance Company? 14 A. At which firm? 15 Q. At our firm. 16 A. Most likely me. 17 Q. Have you ever had any communications with Century

18 Insurance Company about the membership of the trust advisory 19 board? 20 A. No. I don't -- 21 Q. Did -- 22 A. I've never talked to them about that. 23 Q. Did it come up at state court trial who was a member of 24 the trust advisory board? 25 A. Not that I recall.

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SUPP APP 0785 Tom Crawford III - Cross 54

1 Q. Have you had multiple communications with -- related to 2 settlement of this lawsuit? 3 A. Yeah, their lawyer called me saying that you have the 4 attention from the highest people in the company, we really 5 want to sit down and mediate -- 6 MR. HESSE: Objection, Your Honor, we're getting into 7 settlement discussions. 8 THE COURT: Sustained. 9 Q. At any point in time have they informed you that they 10 relied upon the trust agreement? 11 A. No. In fact, I read the transcript where they asserted

12 no objection to the trust agreement. 13 MR. HESSE: Objection, Your Honor, hearsay. 14 A. It's -- 15 THE COURT: Overruled. 16 MS. FONTAINE: Thank you, Your Honor. No further 17 questions.

18 THE COURT: Mr. Hesse? 19 CROSS-EXAMINATION 20 BY MR. HESSE: 21 Q. Mr. Crawford, isn't it true that Century is disputing 22 that is -- it has coverage of the claim that is asserted by 23 Ms. Doe against Pastazios? 24 A. I really can't figure out what Century's position is, it 25 changed.

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SUPP APP 0786 Tom Crawford III - Cross 55

1 Q. Well, Mr. Crawford, isn't that one of the things that's 2 in the state court -- excuse me, Federal District Court 3 complaint? 4 A. Which complaint are you referring to? 5 Q. Any one, pick a complaint? 6 A. Can you repeat the question of what you're asking? 7 Q. Isn't Century disputing coverage? 8 A. They are now, yes. 9 Q. They are disputing coverage. And that they don't owe a 10 liability for this -- for this particular cause of action that 11 your client is asserting?

12 A. I wholeheartedly disagree with that. 13 Q. You may disagree, but aren't they -- but Century's 14 disputing that it has coverage? 15 A. It is now. 16 MR. HESSE: I have no further comments, Your Honor. 17 THE COURT: Mr. Rukavina?

18 REDIRECT EXAMINATION 19 BY MR. RUKAVINA: 20 Q. Just so that it's in the record, Mr. Crawford, are you on 21 ECF in the Federal District Court action for Judge Solis? 22 A. I am. 23 Q. You get the pleadings in there? 24 A. Yes. 25 Q. On or about June 12th of this year, did I file a motion

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SUPP APP 0787 Tom Crawford III - Redirect 56

1 to substitute in? 2 A. You did. 3 Q. And would, pursuant to ECF, Century have received a copy? 4 A. They would. 5 Q. So as of June 12th you have reason to believe that 6 Century knew that the trustee had hired Munsch Hardt? 7 A. There'd be no question. I remember getting the ECF. 8 Q. Also, by the way, and without going into details, were 9 you party to any communications this summer after trial -- 10 MR. HESSE: Your Honor, this is going beyond the 11 scope of cross.

12 MR. RUKAVINA: It's okay. I'll withdraw the 13 question. Thank you. 14 THE COURT: You may step down, Mr. Crawford. 15 THE WITNESS: Thank you, Judge. 16 THE COURT: You may call your next witness. 17 MR. RUKAVINA: Your Honor, I'll call the trustee.

18 THE COURT: Mr. Seidel? Mr. Seidel, since you're 19 testifying as capacity of trustee, I'm going to swear you in. 20 No offense though, okay? 21 MR. SEIDEL: None taken. 22 (Witness sworn) 23 THE COURT: You may be seated. 24 DIRECT EXAMINATION 25 BY MR. RUKAVINA:

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SUPP APP 0788 Scott Seidel - Direct 57

1 Q. And for the record, sir, you are the trustee in this 2 post-confirmation trust? 3 A. Yes. 4 Q. Would you please turn to Exhibit C? There's two binders. 5 Now, do you recognize this document? 6 A. Yes, sir. 7 Q. And if you'll turn to the last page, the signature page? 8 Did you -- is that your signature, did you sign this document? 9 A. Yes, sir. 10 Q. And you signed it -- did you sign it after Mr. Deari had 11 signed it?

12 A. Yes, sir. 13 Q. So the issues with the pagination or whatever, is that 14 how the document came to you? 15 A. Yes, sir. 16 Q. And did the whole document come to you, or just the 17 signature page?

18 A. It came to me in two parts from what I recall. 19 Q. Okay. What two parts, sir? 20 A. First part was the creditor trust agreement that has the 21 stamp of the court on top. And the second e-mail had the 22 signature line for Mr. -- the signature page of Mr. Deari. 23 Q. And who sent you this, where did it come from? 24 A. Ms. Lindauer. 25 Q. How long have you been a lawyer, sir?

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SUPP APP 0789 Scott Seidel - Direct 58

1 A. Longer than I'd like to admit, twenty-five, thirty years. 2 Q. How long have you been a trustee? 3 A. Same amount of time, basically. 4 Q. And how many sales contracts, 9019s would you, ballpark, 5 you've signed in your twenty-five -- 6 A. Thousands. 7 Q. Is there anything unusual about a signature page being 8 separate from the contract? 9 A. No. 10 Q. Is that what's done frequently? 11 A. Yes.

12 Q. Okay. Now when you got this document explain to the 13 Judge what the state of the trust was? In other words, plan 14 is confirmed on April 2nd -- 15 A. Right. 16 Q. -- you get this document May 22nd? 17 A. Right.

18 Q. What was going on with respect to you being the trustee 19 of the trust? 20 A. Well, there was some discussion about me being the 21 trustee of the trust. And then there was supposed to be 22 50,000-dollar seed money to hire lawyers to defend the cause 23 of action. And the 50,000 dollars wasn't there. And so we 24 fought, and we fought, and we had phone calls, and we had more 25 phone calls, and we had more correspondence. And the 50,000

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SUPP APP 0790 Scott Seidel - Direct 59

1 dollars wasn't there. And so we continued to fight. And we 2 had state litigation proceeding. We had lawyers involved. 3 Q. Let me stop you just there. When was the state court 4 going to go to trial? Early July? 5 A. Early July is my recollection. 6 Q. Were you there with me on July 8th -- I'm sorry, on June 7 8th, 2015 before Judge Ginsberg? 8 A. Yes, I was. 9 Q. Did we inform the judge that we might have to seek a 10 continuance? 11 A. I did.

12 Q. What did he say? 13 A. He was not to receptive to any type of continuance. 14 Q. Do you recall who Sam Johnson was? 15 A. Yes, he was the prior lawyer in the case. 16 Q. And without going into anything that's privileged, did 17 you have multiple communications with Mr. Johnson about him

18 representing the trust? 19 A. I did. 20 Q. Was an agreement reached? 21 A. No. 22 Q. Was it a financial reason? 23 A. It was a financial reason, basically. 24 Q. So at that time with trial coming up, and the judge 25 saying there's not going to be a continuance, what were you

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SUPP APP 0791 Scott Seidel - Direct 60

1 doing with respect to that state court trial and getting 2 counsel? 3 A. I was busily trying to get the state court counsel on 4 board, and also trying to get the 50,000 dollars, so that we 5 have some money. 6 Q. But that was my point, you couldn't get counsel without 7 that 50,000? 8 A. No. No one was volunteering to go step into this. 9 Q. Did you in any way hide from Ms. Doe, or Mr. Deari, or 10 anyone that you were getting trial counsel to defend the 11 trust?

12 A. Absolutely not. 13 Q. Without the 50,000 dollars would this plan have been 14 effectuated? 15 A. No. 16 Q. In other words that was the more pressing issue? 17 A. That was the issue.

18 Q. Okay. At some point you retained the state court trial 19 counsel that Mr. Crawford testified was Chen Dotson, is that 20 correct? 21 A. Yes. 22 Q. Okay. And they did defend the trust at the -- 23 A. They did. 24 Q. And they lost? 25 A. They lost.

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SUPP APP 0792 Scott Seidel - Direct 61

1 Q. We lost? 2 A. We lost. 3 Q. What would have happened if you had not retained anyone 4 to defend the trust because there's no trust advisory board 5 for you to call -- well, first of all, was there a trust 6 advisory board for you to call to say hey, I want to hire Chen 7 Dotson? 8 A. Never. 9 Q. What would have happened if you had just raised your hand 10 and said well, I ain't going to hire no one? 11 A. We'd have had a catastrophe. That was a -- they were

12 steamrolling towards proceeding. There wasn't going to be a 13 continuance; we had to get someone in. If there was no one 14 in, we would have been defaulted. 15 Q. Okay. Now, as far as the retention of Munsch Hardt, you 16 have retained Munsch Hardt as your "insurance counsel," is 17 that correct?

18 A. Correct. 19 Q. Was this ever hidden from anyone? 20 A. Never. It was told to everyone, anybody who was involved 21 or asked questions about this case. 22 Q. Okay. Now, the summer's progressing, was there a time 23 when we mediated with Century? 24 A. Yes. 25 Q. And was that about October 8?

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SUPP APP 0793 Scott Seidel - Direct 62

1 A. Yes. 2 Q. And did the mediation last some time thereafter, without 3 going into any details? 4 A. Yes. 5 Q. And was it about October 20th that the mediation 6 basically failed? 7 A. My recollection. 8 Q. Now, in that time, so after you hired Chen Dotson, after 9 you hired me, are you having communications with anyone 10 regarding the blanks in the trustee agreement? 11 A. I think maybe with you, that would be it.

12 Q. Without going into details, did you ask me to 13 investigate? 14 A. Yes. 15 Q. And did I report back to you without telling the Court 16 what I said? 17 A. Yes.

18 Q. Okay. And after all that is when we filed this motion? 19 A. Yes. 20 Q. I guess the question is going to be why did we not file 21 this motion much sooner? 22 A. Well, we were trying to see what -- how the mediation 23 went which would obviate all of this. 24 Q. Did you have an understanding that there was a fully 25 executed agreement that just hadn't been provided to you yet?

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SUPP APP 0794 Scott Seidel - Direct 63

1 A. That was my understanding that there was one with the 2 firm, your firm filled in. 3 Q. Has the trust in your mind been properly effectuated? 4 A. Yeah. 5 Q. The issues we're here on don't concern the existence of 6 the trust, they concern the existence of what you can do 7 without or with approval, isn't that correct? 8 A. Correct. 9 Q. Okay. Is the -- is Century in any way, shape or form a 10 beneficiary of this trust to your belief or knowledge? 11 A. Not to my knowledge.

12 Q. Has -- since you've been involved in this case, has 13 Century always been an adversary to us? 14 A. Yes. 15 Q. Have we been engaged in active litigation with Century? 16 A. Yes. 17 Q. Can you think of any reason, being a trustee for twenty-

18 five years, having had thousands of cases, why your litigation 19 adversary would in any way, shape or form have any say on the 20 internal governance of your trust? 21 A. No. 22 MR. RUKAVINA: Thank you, Your Honor. I'll pass the 23 witness. 24 THE COURT: Ms. Fontaine? 25 CROSS-EXAMINATION

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SUPP APP 0795 Scott Seidel - Cross 64

1 BY MS. FONTAINE: 2 Q. Mr. Seidel, when you were appointed trustee in the 3 confirmation order, what was your understanding as to the 4 status of Jane Doe's claim? 5 A. That it's being litigated. 6 Q. As trustee you're responsible for objecting to proofs of 7 claims, are you not? 8 A. Yes. 9 Q. Prior to the state court trial did Ms. Doe offer to 10 compromise and allow her claim? 11 A. I'm trying to remember. I stand to be refreshed on that.

12 Q. Did she ever send you a demand letter prior to trial of 13 the state court litigation? 14 A. I'm sure she did. 15 Q. Did you decide to compromise and allow her claim prior to 16 trial? 17 A. No, we litigated that claim down in trial.

18 Q. Did you ever represent to anybody that Jane Doe was on 19 the trust advisory board? 20 A. I don't believe so, no. 21 Q. Did you ever tell Century, in particular, that Jane Doe 22 was on the trust advisor board? 23 A. I never talked to Century. 24 Q. Have you ever represented to anyone that anybody's on the 25 trust advisory board?

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SUPP APP 0796 Scott Seidel - Cross 65

1 A. No. 2 MS. FONTAINE: No further questions, Your Honor. 3 THE COURT: Thank you. Mr. Hesse? 4 CROSS-EXAMINATION 5 BY MR. HESSE: 6 Q. Mr. Seidel -- 7 A. Yes, sir. 8 Q. -- when were you first contacted to become the trustee? 9 A. My memory is not what it was, but I'm going to say April, 10 I believe. Maybe March, April, does that make sense? 11 Q. Let me -- bear with me for just one moment.

12 MR. HESSE: I'll ask the Court to take judicial 13 notice of Century's Exhibit 4, which is a copy of the order 14 confirming the plan. 15 THE WITNESS: Yes, sir. 16 MR. HESSE: It's that one. And it says that it -- 17 Q. I was going to ask if this might help reflect your --

18 A. Sure. 19 Q. -- or refresh your recollection. It's Exhibit 4. 20 A. 4. Okay. 21 Q. And does the fact that it was signed on April 2 refresh 22 your recollection as to when you were first contacted? 23 A. Yes, sir, it would have been around that time frame. 24 Q. Okay. Maybe March -- maybe late March? Obviously 25 sometime before April 2?

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SUPP APP 0797 Scott Seidel - Cross 66

1 A. That's my recollection. 2 Q. Okay. And prior to agreeing to become the liquidating 3 trustee or -- excuse me, the creditor trustee, did you review 4 the debtor's plan of reorganization? 5 A. Took a look at it. 6 Q. So you did review it? 7 A. I took a look. 8 Q. Did you review the trust agreement? 9 A. I took a look at it. 10 Q. Okay. And when you say you took a look at it, what does 11 that mean?

12 A. I didn't full out read the doc -- I saw the document. 13 Q. And was there anything about the plan or trust agreement 14 that seemed unusual to you? 15 A. I don't swim in that water a whole lot, so it's all a 16 little unusual to me. I'm not an 11 guy. 17 Q. Fair enough. And then if we can -- I was going to ask

18 you if you paid particular attention, I will ask you to look 19 at the Trustee's Exhibit A, which is the other book, since 20 it's already been admitted. Paragraph Section 7.01. 21 THE COURT: In A? 22 MR. HESSE: Yes, Trustee's Exhibit A. 23 THE COURT: All right. 24 A. 7.01, creation of creditor trust and appointment of the 25 trustee.

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SUPP APP 0798 Scott Seidel - Cross 67

1 Q. Yes. And the last sentence there specifically states 2 that the trustee and the creditor trust will be subject to the 3 oversight of a trust advisory board, is that -- do you have a 4 recollection of seeing that at the time? 5 A. I see it. 6 Q. Actually, at the time of -- let's say in early -- late 7 March, early April, when you looked at the trust -- the plan 8 and the trust agreement? 9 A. Yes, it's there. 10 Q. Okay. Does that seem like an unusual provision? 11 A. Like I said, I'm not -- I don't come into the Chapter 11

12 post-confirmation world that often -- 13 Q. Okay. 14 A. -- so I'm not sure. I apologize, I'm just not. 15 Q. Now you said that you reviewed -- let me go back. So you 16 reviewed it to that point in time, just looked at it. Did 17 you -- when did you -- when was the next time you have a

18 recollection of looking at the trust agreement? 19 A. It would have been April, May, I would guess. 20 Q. Okay. And if you could turn to paragraph -- or excuse 21 me, Exhibit C in the trustee's book. And this is the 22 creditor's trust agreement, and if you could turn it over to 23 the last page. 24 A. Yes, sir. 25 Q. Is that your sig -- you said that was your signature,

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SUPP APP 0799 Scott Seidel - Cross 68

1 correct? 2 A. Yes, sir. 3 Q. And when did you sign that document? 4 A. It would have been when I received the e-mail from Ms. 5 Lindauer, I would have thought right when it's dated, May 6 22nd. 7 Q. Is that your handwriting that dates it? 8 A. No, sir, that's not my handwriting. 9 Q. Okay. But it sounds about right that you would have 10 signed it on May 22? 11 A. That sounds about right, yes, sir.

12 Q. Okay. And prior to -- and you said that you got the 13 document -- that you got two documents with that e-mail, is 14 that -- is my understanding correct? 15 A. You know, sir, it's been a while since I've looked at 16 this, but my recollection is that I got two e-mails from Ms. 17 Lindauer.

18 Q. Okay. 19 A. One was, as I indicated before, the trust agreement. And 20 then the second was the signature page. 21 Q. And did you review the trust agreement before signing it? 22 A. Yes, sir, I looked at it. 23 Q. Okay. So when you signed the trust agreement you knew 24 that there were the blanks that were in the trust agreement, 25 correct?

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SUPP APP 0800 Scott Seidel - Cross 69

1 A. Yes. 2 Q. And you also were aware at that time that there were 3 several provisions in the trust agreement that required 4 approval of a trust advisory board, correct? 5 A. I see that, yes. 6 Q. And do you remember the -- and so, for example, in 7 Section 4.2 of the trust advisory -- excuse me, the trust 8 agreement, 4.2(b) -- 9 A. Hold on one second, 4.2(b). 10 Q. There are the provisions that deal with -- that with 11 prior approval of the trust advisory board you can enter into

12 -- under contracts, that's (iii)? 13 A. Would you mind pointing me to where you're talking about? 14 MR. RUKAVINA: I don't see a 4.2. 15 Q. 4.2 -- 16 A. Yes, sir. 17 Q. -- (b) --

18 A. Yes, sir. 19 Q. -- (iii). 20 A. Okay. I see that now. It says with the prior approval 21 of the trust advisory board. 22 Q. Let's go to trust advisory board 4. 23 MR. RUKAVINA: I might have coffee (ph.) in their 24 material. 25 MR. HESSE: Well, yeah, you are missing a page.

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SUPP APP 0801 Scott Seidel - Cross 70

1 MR. RUKAVINA: Okay. 2 Q. It's 4.2(b)(iii), that's one of the sections that 3 requires prior approval of the trust advisory board, correct? 4 A. That's what it says, yes, sir. 5 Q. And there's (v) below that that provides that with prior 6 approval of the trust advisory board, that you can employ 7 attorneys, accountants, et cetera? 8 A. That's what it says, yes, sir. 9 Q. And turning over to the next page, (x), that you may 10 compromise, adjust, settle, or abandon any causes of action 11 with the prior approval of the advisory board, correct?

12 A. That's what it says, yes sir. 13 Q. And those causes of actions would have included the 14 claims against Century, correct? 15 A. Yes. 16 Q. And then under (xi), slightly different language, but 17 dealing with avoidance actions, you can compromise, adjust or

18 settle but with consultation of the advisory board, correct? 19 A. That's what it says, yes, sir. 20 Q. So there were sev -- so you knew that all those 21 provisions existed at the time that you signed this document, 22 correct? 23 A. I'm -- 24 Q. Pardon me? 25 A. They were there, they were there.

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SUPP APP 0802 Scott Seidel - Cross 71

1 Q. Okay. And then I'm going to ask you to turn over to 2 Section 10.1 3 A. Yep. Is there a page number? 4 Q. It's page 24 of the trust agreement, or if you're look -- 5 A. Okay. 6 Q. And I'll point you to the -- and this provides that -- 7 A. 10.1, I see it. 8 Q. 10.1, this provides a mechanism for the trustee to be 9 able to amend and -- amend the trust agreement, correct? 10 A. Yes, apparently. 11 Q. You want to take a look at it and read it?

12 A. I'm catching up to you, go ahead. 13 Q. On the fifth line from the bottom it states "Provided 14 further that the trustee shall not be entitled to amend or 15 modify certain sections, including 4.2(x) and 4.2(xi)," 16 correct? 17 A. I believe you've read it correctly, yes.

18 Q. And if we go back to 4.2(x) and (xi), page 11 -- 19 A. Yes, sir. 20 Q. -- those two sections specifically incorporate oversight 21 by a trust advisory board, correct? 22 A. It says what it says, yes, sir. 23 Q. And so those are two sections that cannot be amended, 24 correct? 25 A. That may be.

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SUPP APP 0803 Scott Seidel - Cross 72

1 Q. Now, with regard to your motion today, you're asking the 2 Court to basically read out all sections of the trust 3 agreement that relate to the trust advisory board, correct? 4 A. That's one alternative, yes. 5 Q. Okay. Wouldn't you consider that to be a material 6 modification of this agreement? 7 A. No. 8 MR. RUKAVINA: Your Honor, object, it's a legal 9 conclusion. 10 THE COURT: Overruled. 11 Q. You don't think that would be a material modification?

12 A. No, sir. 13 Q. Now, with regards to -- excuse me, Section 4.2(x) -- 14 A. I'm sorry, could you give me the page again? 15 Q. It's 11, page 11 of the -- 16 A. Yes, sir. 17 Q. That -- now you knew that you would need to have trust

18 advisory board authority before you could settle with Century, 19 correct? 20 MR. RUKAVINA: Your Honor, I will object to that to 21 the extent that it would have to be answered by invading the 22 attorney-client privilege and our work product. He is 23 my -- although he's a lawyer, he's my client in this instance. 24 THE COURT: Don't go into conversations with your 25 lawyer, but answer the question if you can.

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SUPP APP 0804 Scott Seidel - Cross 73

1 THE WITNESS: Okay. 2 A. Do you mind repeating the question? 3 Q. Pursuant to the terms of Section 4.2 -- excuse me, 4 4.2(b)(x), you understood -- you know that you need to have 5 trust advisory board approval to enter into any settlement 6 with Century? 7 MR. RUKAVINA: I would just, again, Your Honor, 8 advise the witness to answer like you said, only to the extent 9 he can without invading our privilege. 10 A. Yeah, I visited with counsel about that, and we came to a 11 conclusion.

12 Q. Well, what conclusion did you and counsel come to? 13 MR. RUKAVINA: And, Your Honor, that is the core of 14 my work product and attorney-client privilege. 15 MR. HESSE: He opened the door, Your Honor. 16 THE COURT: If you could answer the question without 17 invading your attorney-client privilege, which I take it to

18 note that you know what that is, you may answer the question. 19 THE WITNESS: I don't believe I can, Your Honor. 20 THE COURT: Sustained. It's sustained, the attorney- 21 client privilege objection. 22 Q. So you went into mediation with Century knowing full well 23 that you did not have authority to settle the cause of action? 24 MR. RUKAVINA: Objection, Your Honor, that misstates 25 the prior answer. And, again, he cannot answer that question

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SUPP APP 0805 Scott Seidel - Cross 74

1 without invading the privilege. 2 THE COURT: I think you can get that information if 3 you restate the question. 4 Q. Is it your understanding, Mr. Seidel, that you cannot 5 settle with Century without approval of the trust advisory 6 board? 7 MR. RUKAVINA: Same question as before, Your Honor. 8 THE COURT: Overruled on that one. 9 A. We believed if we could have gotten to a settlement 10 mediation, that could have been done, a settlement could have 11 gotten done.

12 Q. Who is "we"? 13 A. My counsel and I. Wholeheartedly. 14 Q. How did you think -- in light of the language in the 15 trust agreement how could you have gotten that done? 16 A. That's with discussion with my lawyer. 17 Q. So based upon the terms of the trust agreement though,

18 you would have to have Cent -- you'd have to have trust 19 advisory board approval to settle with Century? 20 MR. RUKAVINA: Your Honor, that's a legal conclusion 21 THE COURT: Overruled. Overruled. He may testify as 22 to his understanding of the trust document. 23 A. I'm sorry, could you repeat your question? 24 Q. Based on your understanding of the trust agreement, you 25 could not settle with Century without trust advisory board

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SUPP APP 0806 Scott Seidel - Cross 75

1 approval? 2 A. My understanding was we could have got a settlement done. 3 Q. Under the terms of the agreement? 4 A. My understanding is we could have gotten it done, yes. 5 Q. Under the terms of the agreement? 6 A. My understanding. 7 Q. Okay. You were here when Ms. Lindauer testified that it 8 was her understanding that Jane Doe was going to be the member 9 of the trust advisory board, is that correct? 10 A. Yes. 11 Q. And was it your understanding that Jane Doe was going to

12 be the member of the trust advisory board? 13 A. It would make sense to me. 14 Q. Who did you understand to be the -- that was going to be 15 the member of the trust advisory board? 16 A. I would have thought it would have been Ms. Doe, but I 17 don't know.

18 Q. Did Ms. Doe ever act like she was the member of the trust 19 advisory board? 20 A. I don't know what act like member of the trust advisory 21 board would be, but, no, not that I recall. 22 Q. Did her counsel ever act in a manner that would be 23 consistent with being on the trust -- a member of the trust 24 advisory board? 25 A. I don't know.

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SUPP APP 0807 Scott Seidel - Cross 76

1 Q. Have you ever taken direction from Ms. Doe or her 2 counsel? 3 A. I have not taken direction from them. 4 Q. Now, Mr. -- 5 A. I've sought their input, just as I've sought your 6 client's input. 7 Q. What kind of input did you seek? 8 MR. RUKAVINA: Your Honor, that goes far beyond the 9 relevance of this motion. 10 THE COURT: Overruled. 11 A. I'm sorry?

12 Q. What input did you seek? 13 A. When we were at the mediation all day, we listened to 14 what everybody had to say. 15 Q. Okay. And what was her input? 16 MR. RUKAVINA: Your Honor, that's a mediation 17 privilege now. He just said it was at a mediation, and we

18 know that there are strict rules in Texas on mediation. 19 MR. HESSE: Withdraw the question, Your Honor. 20 THE COURT: Okay. 21 Q. Now, Mr. Seidel, isn't it true that you'll receive five 22 percent of any recovery that the trust obtains from causes of 23 action? 24 A. I think -- I think that term is net, after attorney's 25 fees are paid. But, yes, I would receive a percentage of the

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SUPP APP 0808 Scott Seidel - Cross 77

1 recovery. 2 Q. And that would include a percentage of the -- I'll try to 3 use the proper term, net recoveries from Century, correct? 4 A. I think that's correct, yes, sir. 5 Q. So if the net proceeds that the trust collects from 6 Century is twenty million dollars, your piece would be a 7 million dollars, correct? 8 A. In the way it's written, yes. 9 Q. And, on the other hand, if the trust receives zero 10 dollars from Century, your compensation would be zero dollars, 11 correct?

12 A. Yes, sir. 13 Q. Now, isn't it true that the size of the claim the trust 14 is asserting against Century depends upon the amount of the 15 claim that Jane Doe has against the trust? 16 A. Okay, you have to repeat that one, you went really fast 17 for me.

18 Q. Isn't it true that the size of the claim, or the amount 19 that is being asserted against Century by the trust depends 20 upon the amount of the claim that Jane Doe has against the 21 trust? 22 A. Yeah, that would make sense. 23 Q. Once again, if Jane Doe has a claim of twenty million 24 dollars against the trust, and the trust receives -- or let me 25 rephrase that. If Jane Doe has a claim in excess of twenty

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SUPP APP 0809 Scott Seidel - Cross 78

1 million dollars -- 2 A. Okay. 3 Q. -- and the trust will assert a claim of in excess of 4 twenty million dollars against Century, correct? 5 A. Yes, sir. 6 Q. On the other hand, if the claim of Jane doe is zero 7 against the trust, the trust will not have a claim against 8 Century, correct? 9 MR. RUKAVINA: Your Honor, I just want to make sure 10 he does -- I'm going to object to a legal conclusion. I mean, 11 again, he's not a lawyer, and what the legal ramifications of

12 Jane Doe having zero claim against Century may be, he's not 13 ready to answer. For example, there is the duty to defend. 14 It is different from the duty to indemnify. So, again, I 15 would just lodge an objection to the legal conclusion nature 16 of these questions. 17 THE COURT: Witness may give his understanding if he

18 has one. 19 A. Okay, I'm sorry, can you repeat again? 20 Q. So if Jane Doe has a claim of zero dollars against the 21 trust, the trust will not have a claim against Century, is 22 that correct? 23 A. I'm not sure. I -- I just don't know. It seems like 24 they would not, but there may be other things. 25 Q. Okay. So --

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SUPP APP 0810 Scott Seidel - Cross 79

1 A. Attorney's fees, et cetera, I don't know. 2 Q. And this is the way that the plan and the trust agreement 3 is written, that's how the economics work? 4 A. Like a Chapter 7 case, in my mind. 5 Q. Okay. Now, you as the trustee, is the sole party with 6 the authority to object to Jane Doe's claim, correct? 7 A. I think that's right. 8 Q. Okay. So Century couldn't object to her claim? 9 A. I don't know what Century can do. 10 Q. Well, let's -- 11 A. I don't know.

12 Q. If you were the sole -- do you have -- are you the sole 13 person that could -- 14 A. I'm the only one that can object to claims. 15 Q. You're the only -- so you're the only person that can 16 object to claims. And I think you testified before that upon 17 confirmation of the plan -- well, let me -- let me step back.

18 Upon -- when did you actually become -- do you understand that 19 your role as trustee began? 20 A. I would -- I would say April, May 2015. 21 Q. Would it have been the day that the plan had been 22 confirmed, or the day that the trust agreement was signed? 23 A. And your question was when I became -- 24 Q. When did you assume the role as trustee? 25 A. One of those two days, probably the -- probably the

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SUPP APP 0811 Scott Seidel - Cross 80

1 latter, but I'm not positive. 2 Q. Okay. So you would have assumed the responsibility as 3 trustee on May 22? And at that time did you take control of 4 the litigation asserted by Jane Doe against the trust? 5 A. Yeah. I mean, we tried to defend that litigation. 6 Q. And you hired counsel to defend? 7 A. Yes, sir. 8 Q. Now you were also present at the trial, correct? 9 A. Not for every minute of it. It went on for three days, 10 but I was there. 11 Q. You were there at various times?

12 A. Yes, sir. 13 Q. Did you direct the defense of Jane Doe's claims? 14 MR. RUKAVINA: Your Honor, I object on the grounds of 15 relevance. This has nothing to do with the relief we're 16 seeking. And, moreover, this is an attempt to collaterally 17 obtain discovery in a hot moving piece of litigation in front

18 of Judge Solis. This is an attempt by counsel to get free 19 discovery. 20 THE COURT: Relevance, Mr. Hesse? 21 MR. HESSE: I'll withdraw the question, Your Honor. 22 THE COURT: Okay. 23 Q. Now, isn't it true that at the conclusion of the state 24 court hearing your lawyer advised Century of valid appeal 25 points?

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SUPP APP 0812 Scott Seidel - Cross 81

1 MR. RUKAVINA: Objection, Your Honor. Again, that is 2 outside of anything to do with relevance here. It's subject 3 to litigation. It is also the best evidence rule. 4 THE COURT: Sustained on relevance. 5 MR. HESSE: I beg your pardon, Your Honor? 6 THE COURT: Sustained on relevance. 7 MR. HESSE: Okay. 8 Q. I'll just ask though, you made the decision not to appeal 9 the Jane Doe -- 10 MR. RUKAVINA: Your Honor, objection to relevance. 11 Again, this is something that is not present here, but is in

12 front of Judge Solis. 13 THE COURT: You may answer that question, everybody 14 knows the answer to that question. You may answer the 15 question. 16 A. Correct. On visiting with counsel, we came up with a 17 decision on that.

18 Q. After visiting with counsel? 19 A. Yes, sir. 20 Q. Okay. Now, if you -- as I understand from your response, 21 the preferred relief that you're seeking is to eliminate the 22 provisions relating to a trust advisory board, is that 23 correct? 24 A. That is an option, yes, sir. 25 Q. Well, is that the prim --

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SUPP APP 0813 Scott Seidel - Cross 82

1 A. It would be great. 2 Q. -- preferred relief? 3 A. Sure. 4 Q. That would be the preferred relief. And so that would 5 eliminate the trust advisory board's oversight of your actions 6 as trustee, correct? 7 A. Yes. 8 Q. And that would amend Section 7.01 of the plan, correct? 9 A. I -- if you say so, I don't have the plan number in front 10 of me, I believe you. 11 Q. We'll look at Exhibit A --

12 A. Yep. 13 Q. -- page 13, Section 7.01, last sentence. 14 A. It would change that sentence, yes. 15 Q. And it would also eliminate the process under which you 16 would be removed as trustee, correct? 17 A. I assume so. But if anybody wants to remove me, they

18 could file papers and have at it. 19 Q. Well, let's look at Section 8.8 of the trust agreement? 20 A. Okay. 21 Q. It's Exhibit A, it's the docketed page 42? 22 A. 8.8(a), I have it, resignation. 23 Q. Well, 8.8(b). 24 A. (b), removal. 25 Q. And it provides that the trustee may be removed (1)

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SUPP APP 0814 Scott Seidel - Cross 83

1 either by order of the bankruptcy court upon motion of the 2 trust advisory board with less than unanimous vote, or upon 3 unanimous vote of the trust advisory board? 4 A. Yes, sir. 5 Q. So if there's an elimination of the trust advisory board, 6 there is no mechanism to remove you as trustee, correct? 7 A. No, I don't agree with that. I think anybody can file 8 papers to remove me anytime they want. 9 Q. Okay. One of the blanks that's in the 10 trust advisory -- or excuse me, the trust agreement, is the 11 compensation to Munsch Hardt?

12 A. Yes. 13 Q. Has there ever been an agreement reached as to Munsch 14 Hardt's compensation for being insurance counsel? 15 A. They're just billing hourly. 16 Q. So they're just billing hourly. Is that authorized by 17 the trust agreement?

18 A. I'm trying to remember how they're billing, to be quite 19 honest, counsel. 20 (Pause) 21 Q. Section 9.2. 22 A. Yes, sir. 23 Q. So that -- you don't know what that blank is, filled in 24 is? 25 A. No.

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SUPP APP 0815 Scott Seidel - Cross 84

1 Q. And just to be clear, going back to page 23, Section 2 9.1(a), the blank relating to Munsch -- or relating to 3 insurance litigation counsel, that's never been filled in 4 either, has it? 5 A. It's not filled in. Always been Munsch Hardt since day 6 one. 7 Q. I beg your pardon? 8 A. I said Munsch Hardt has been involved since day one, 9 that's not -- that's not filled in. 10 MR. HESSE: I have no further questions, Your Honor. 11 THE COURT: Thank you. Mr. Rukavina?

12 MR. RUKAVINA: Your Honor, I was a little bit 13 confused by your ruling before on my Exhibit C. To the extent 14 it has not been admitted, I would ask that it be admitted. 15 THE COURT: Response? 16 MR. HESSE: I believe they've authenticated it, Your 17 Honor.

18 THE COURT: C's admitted. I just carried his 19 objection so Mr. -- 20 (Trust agreement was hereby received into evidence as 21 Trustee's Exhibit C, as of this date.) 22 MR. HESSE: Thank you, Your Honor. 23 THE COURT: -- Seidel could testify that he had 24 signed it. 25 MR. RUKAVINA: Thank you, Your Honor.

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SUPP APP 0816 Scott Seidel - Redirect 85

1 REDIRECT EXAMINATION 2 BY MR. RUKAVINA: 3 Q. Mr. Seidel, and we have to be careful, because it 4 concerns mediation so let's not going into details. Was Ms. 5 Doe present? 6 A. Absolutely. 7 Q. Was her counsel present? 8 A. Absolutely. 9 Q. Did we meet with her and her counsel? 10 A. Sure. 11 Q. And you said that at least other people thought that Ms.

12 Doe should have been on this trust advisory board, right? 13 A. Yes. 14 Q. So logically did you believe in good faith that if there 15 was an agreement reached, all the necessary parties were 16 there, and it could have been taken care of right then and 17 there?

18 A. Yes, sir. 19 Q. In fact, without -- now, be careful, without saying 20 anything about what was said, in fact, did Ms. Doe and you 21 have the same answer to the mediator on his mediator proposal? 22 A. Yes. 23 Q. Okay. So to the extent that any kind of conferring with 24 Ms. Doe would have been necessary, do you believe in good 25 faith that you satisfied that?

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SUPP APP 0817 Scott Seidel - Redirect 86

1 A. Yes. 2 Q. I want you to go, like Mr. Hess did, to page 10 of the 3 creditor trust agreement, that's Exhibit C. I want you to go 4 to Section 4.2, please. 4.2(b), you'll recall Mr. Hesse took 5 you through this? 6 A. Yes, sir. 7 Q. I'm going to try to burn through this and not to try the 8 Court's patience. 9 A. Yes, sir. 10 Q. (b)(1) doesn't speak about a trust advisory board? 11 A. Correct.

12 Q. (b)(2) doesn't speak about a trust advisory board? 13 A. Correct. 14 Q. (3) does "With the prior approval of the trust advisory 15 board to enter into, perform and exercise rights under 16 contracts binding upon the creditor trust." Have you, sir, 17 entered into, performed, or exercised rights under any

18 contract binding upon the creditor trust? 19 A. Not to my knowledge. 20 Q. Okay. (4) doesn't speak about the advisory board, does 21 it? 22 A. No, sir. 23 Q. (5), it does speak about the advisory board. It says 24 "With the prior approval of the trust advisory board" and then 25 we read "except insofar as such duties and powers arise from,

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SUPP APP 0818 Scott Seidel - Redirect 87

1 relate to, or are in connection with the causes of action to 2 employ attorneys," et cetera, et cetera. You employed Chen 3 Dotson, correct? 4 A. Correct. 5 Q. And do you believe that that arose from, related to, or 6 was in connection with the causes of action? 7 A. I do. 8 Q. Do you believe that you needed approval from the trust 9 advisory board to retain Chen Dotson? 10 A. No. 11 Q. Was there a trust advisory board to seek the approval

12 from for anything? 13 A. There was never one. 14 Q. Are you responsible for that? 15 A. No, I'm not responsible for that. 16 Q. Let's go on. (6), nothing about trust advisory board? 17 A. Correct.

18 Q. (7), nothing about trust advisory board. 19 A. Right. 20 Q. (8), nothing. 21 A. Correct. 22 Q. (9). (10), "To compromise, adjust, settle or abandon any 23 cause of action," blah, blah, blah, "with the prior approval 24 of the trust advisory board." Have you compromised, adjusted, 25 settled, or abandoned any cause of action?

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SUPP APP 0819 Scott Seidel - Redirect 88

1 A. No. 2 Q. (11), "To compromise, adjust, settle, or abandon any 3 avoidance action in consultation with the trust advisory 4 board." Have you compromised, adjusted, settled or abandoned 5 any avoidance action? 6 A. I have not, sir. 7 Q. Were there any avoidance actions in this case? 8 A. No, sir. 9 Q. the judge could read it for himself, but (12), (13) and 10 (14) don't speak to trust advisory board. (15), "With the 11 prior approval of the trust advisory board, to sue in

12 connection with any matter arising from or related to the plan 13 or disagreement," blah, blah, blah. Have you sued in 14 connection with any matter arising from or related to the plan 15 or this agreement? 16 A. No. 17 Q. Okay. Let's look at (16), that's an interesting one.

18 "To represent the interests of the beneficiaries with respect 19 to any matters relating to the plan, disagreement, or creditor 20 trust, affecting the rights of such beneficiaries." You see 21 that, sir? 22 A. I see that. 23 Q. Is that what you're doing today? 24 A. That is what we've been doing, yes. 25 Q. Have you been doing that since you got into this case?

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SUPP APP 0820 Scott Seidel - Redirect 89

1 A. That's what we've been doing since I got in this case. 2 Q. (17), no trust advisory board. (18), "With the prior 3 approval of a trust advisory board to borrow money." Have you 4 borrowed money? 5 A. I have not borrowed money 6 Q. (19), "With the prior approval of a trust advisory board 7 to use that cause of action." Have you used that cause of 8 action? 9 A. No. 10 Q. And (20) is also interesting. "To do and perform all 11 such acts, execute and deliver all such deeds, bills of sale,"

12 et cetera, et cetera, "as it may deem reasonably necessary or 13 advisable to carry out the purposes of the creditor trust." 14 What's your answer on that one, sir, have you been doing that? 15 A. I've been doing that. 16 Q. And to the best of your recollection, when was the 50,000 17 dollars from Mr. Deari obtained?

18 A. You know, I can tell you the exact date if you'd asked me 19 it last night, I could look at the bank account. I don't 20 know. It was -- it took a lot of doing. And I can find out 21 the answer. 22 Q. Would you say late May or early June? 23 A. That makes sense. 24 Q. Okay. So it was before we hired Chen Dotson? 25 A. Yes.

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SUPP APP 0821 Scott Seidel - Recross 90

1 Q. Thank you. 2 MR. RUKAVINA: I'll pass the witness, Your Honor. 3 THE COURT: Anything further, Mr. Hesse? No. Ms. 4 Fontaine, sorry? Mr. Rukavina's so tall I can't see you. 5 MS. FONTAINE: I cower behind him when necessary. 6 RECROSS-EXAMINATION 7 BY MS. FONTAINE: 8 Q. Mr. Seidel -- 9 A. Yes, ma'am. 10 Q. -- briefly for the record. What's your primary 11 occupation?

12 A. I'm an attorney and bankruptcy trustee. 13 Q. Generally most days are you a fiduciary to somebody? 14 A. Yes, every day. 15 Q. Are you capable of exercising your fiduciary duties? 16 A. I am. 17 Q. If the Court eliminates the trust advisory board, will

18 you continue to exercise your fiduciary duties to the trust? 19 A. Absolutely. 20 Q. If you have some question over how you could best 21 exercise your fiduciary duties, will you seek clarification 22 from the bankruptcy court? 23 A. Yes, with notice to everyone. 24 Q. Is that something that you typically do? 25 A. That's what I always do, try to do.

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SUPP APP 0822 Scott Seidel - Recross 91

1 MS. FONTAINE: Thank you, Your Honor. 2 THE COURT: Thank you. Mr. Hesse, any other 3 questions to the trustee? 4 MR. HESSE: No, I think he's had enough. 5 THE COURT: You may step down, Mr. Seidel, thank you. 6 THE WITNESS: Thank you, Your Honor. 7 MR. RUKAVINA: Your Honor, we have no further 8 evidence. 9 THE COURT: All right. Mr. Hesse, you have anything? 10 MR. HESSE: No, we have no further evidence. 11 THE COURT: Okay. Why don't we take a five-minute

12 break. How about ten minutes per side for closing. 13 MR. HESSE: That'd be -- everybody on that side of 14 the room ten minutes? 15 THE COURT: You get equal to whatever the other side, 16 so yeah. 17 MR. HESSE: Whatever they get, fair enough.

18 THE COURT: Okay. Ten -- would ten be enough, Mr. 19 Rukavina? 20 MR. RUKAVINA: Oh, much less than that for me. I'm 21 not going to be long winded today. 22 THE COURT: Say then ten. 23 MR. HESSE: Okay. 24 THE COURT: If they take twelve, you get twelve, 25 though, Mr. Hesse.

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SUPP APP 0823 Scott Seidel - Recross 92

1 All right. We'll be in recess for about five 2 minutes. 3 THE CLERK: All rise. 4 (Recess from 11:04 a.m. until 11:15 p.m.) 5 THE CLERK: All rise. 6 THE COURT: Good morning again. Please be seated. 7 Thank you. 8 Please be seated, thank you. 9 Mr. Rukavina you get to go first and last. And try 10 to keep it around ten if you would. 11 MR. RUKAVINA: I will, Your Honor, thank you.

12 Let me just point out that I hope that the irony of 13 this hearing and of Century's position is not lost on the 14 Court. 15 The irony is as follows: 16 If Century is to be believed, they relied on the 17 plan, they relied on the trust agreement, they relied on a

18 trust advisory board. 19 If Century is to be believed, the person that should 20 have been on that trust advisory board was Ms. Doe. 21 If Century is to be believed, Ms. Doe would have 22 basically had a serious input on how this litigation would 23 have gone forward. 24 If Century is to be believed, Ms. Doe, their 25 adversary, would have been somehow acting for their benefit.

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SUPP APP 0824 Colloquy 93

1 That's ludicrous. 2 It is ludicrous for them to argue any kind of 3 reliance, any kind of prejudice, any kind of standing, any 4 kind of interest in how the trust is internally governed or 5 administered. And I dare say, and I will say it, that the 6 reason why they want Ms. Doe to be on this board today is 7 exactly so they could go to Judge Solis and say collusion, 8 collusion. 9 It's actually quite ironic that for reasons that no 10 one really intended or knows why, Ms. Doe never sat on this 11 board. Ms. Doe never guided, commanded in any way, shape or

12 form, the trustee's decision making. But now they want to 13 force Ms. Doe under threat of your writ to sit on this board, 14 to make decisions maybe, so they can go to Judge Solis and say 15 hah, hah, hah, look at that collusion that Judge Hale approved 16 of and then commanded her to take a part of. 17 Your Honor, this is fundamentally in my humble

18 opinion a matter of equity. Both the rule of law and the rule 19 of equity knows a situation where there is an impossibility of 20 contractual performance. Part of the reason why equity 21 developed is because parties have contracted to do things that 22 became impossible. The coronation of the king, I forget which 23 one, suddenly he dies, there's no coronation, why did I rent 24 the house right on the parade path. 25 Equity comes to help people when they are in an

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SUPP APP 0825 Colloquy 94

1 impossible position like the trustee is here. Who is the 2 trustee to seek input from when there's no one on this board, 3 and no one wants to sit on this board? Who is the trustee to 4 go to to hire Chen Dotson if you need her to when the state 5 court judge says "we're going to trial"? Is the trustee not 6 to hire Munsch Hardt when everyone knows that he needs counsel 7 to prosecute this claim for everyone's benefit? 8 Because the matter is rooted in equity I suggest, 9 Your Honor, that the Court look at it according to the rules 10 of equity. 11 One, is there fault? I'm not saying that there's

12 fault. Mr. Deari had many more important things to think 13 about than some blanks in the document. Ms. Doe had many more 14 important things to think about than some blanks in the 15 document. They're going to proceeding on the trial of their 16 lives, one that would make or break probably both of their 17 lives in one way or another. So I don't think there's fault.

18 But if there is fault it's certainly not the 19 trustee's. The trustee signed the agreement with the 20 understanding that the blanks were being filled in, or that it 21 had been done. The trustee took action to protect the assets 22 of this estate. His first and foremost duty. 23 Because the action is rooted in equity he also looked 24 at prejudice, is there prejudice? Has Century been in any 25 way, shape or form prejudiced by Munsch Hardt being retained,

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SUPP APP 0826 Colloquy 95

1 by Chen Dotson being retained, by there not being a member on 2 the trust advisory board? And the prejudice is intimate with 3 the standing as well. They have no standing, they have no 4 prejudice. How will they possibly be prejudiced if Your Honor 5 grants us relief today? There is no prejudice to them. Where 6 is the prejudice? The prejudice is on the trustee. Is the 7 trustee going to go forward when the name of his counsel is 8 blank, when how much is counsel can be paid is a blank, when 9 his decisions before are questioned as to having been done 10 appropriately? Where is the prejudice here? The prejudice is 11 against the same people for whose benefit this plan is

12 designed. 13 So if you look at the maxims of equity, Your Honor, 14 and you look at the principles of impossibility of 15 performance, or frustration of purpose, or just waiver, the 16 people that matter here have said and are saying we don't need 17 no trust advisory board, we didn't need none, we want it gone.

18 And the only reason why we've come to you is because this is a 19 plan, and because Mr. Seidel is not about to fill in blanks on 20 his own in the sneak of night, or to sit down with other 21 people and post-date or pre-date documents, and fill them in, 22 which maybe he could have and maybe he should have. Not 23 expecting that Century, a stranger to this, would be forced to 24 confess at an evidentiary hearing on something that clearly 25 needs fixing.

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SUPP APP 0827 Colloquy 96

1 And this is not a plan modification. Many times it 2 happens that a plan says there's going to be a rights 3 offering, or the debtor will deliver a financial document, or 4 the debtor will raise funding through some issuance of debt, 5 and it does not happen. And the question then is what to do 6 about it? Is it a material term? Has it been waived? Are 7 the beneficiaries of the plan agreeable to its waiving, or are 8 they going to move to convert the case for post-confirmation 9 default? Which no creditor here is doing. This is, Your 10 Honor, not a plan modification, it is merely the enforcement 11 of a plan by requiring the parties that told you they would do

12 this, to do it. Or, far more equitably, listening to them now 13 and saying this was never needed and it's not needed now. 14 THE COURT: Let me ask you a question, and don't 15 infer from the question you're winning or losing. But in the 16 compensation blank what goes there? 17 MR. RUKAVINA: Your Honor, I do not know. But if I

18 look back at your confirmation order, which is my Exhibit B -- 19 THE COURT: Yeah, I looked at that. 20 MR. RUKAVINA: -- it says, "The trustee shall 21 identify and retain counsel." What goes there, 22 frankly -- okay, let me give you a human answer, Judge. 23 THE COURT: Okay. 24 MR. RUKAVINA: We now have a nineteen point-something 25 million-dollar creditor, we've got a 40,000 dollar creditor,

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SUPP APP 0828 Colloquy 97

1 and we got two tiny creditors. What goes in there is what Ms. 2 Doe is comfortable providing for. And then I will make the 3 decision for my firm whether we're comfortable proceeding on 4 that. So if Ms. Doe, who is my 99.9 percent beneficiary says 5 Davor, do it hourly, I'll say okay. If Ms. Doe says you can 6 get 25,000 dollars and that's it, well, then I'll say good 7 day, ma'am, go somewhere else. So, frankly, what goes there 8 is whatever the parties want to put in there. It's not a 327, 9 or a 330 matter. 10 THE COURT: Okay, thank you. Let's hear from anyone 11 else. Mr. Hesse, this goes -- this ups your time. All right.

12 MS. FONTAINE: Thank you, Your Honor. This has been 13 a really grueling four years for my client. She had her 14 deposition taken twice. She's now fought in three different 15 courts the bankruptcy cases, because as Your Honor's aware 16 there's a Chapter 13 still being fought. We're hotly 17 contested. We came to a consensual plan, but she still

18 couldn't get her claim approved. That leaves her in a 19 delicate personal position as of the effective date of this 20 plan. 21 She didn't take up the seat on the trust advisory 22 board, because she didn't have an allowed claim, and she 23 wasn't a beneficiary of the trust. She didn't want to do 24 anything in connection with the trust that might prejudice 25 some other beneficiary's rights, that they might come after

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SUPP APP 0829 Colloquy 98

1 her. She didn't want to do anything that was going to 2 prejudice Century's rights, so she just stayed out of it. 3 At this point, Your Honor, I think that you could 4 appoint -- order her appointed, I think you could order 5 somebody else appointed. You could order -- you could find 6 that Scott Seidel, a Chapter 7 trustee that you're very 7 familiar with, would probably exercise his fiduciary duties 8 okay, without oversight by Jane Doe, the rape victim. Because 9 that's what Century's really demanding. 10 They're saying no, no, no, we demand that you put the 11 rape victim in charge of the trust, so that we will be better

12 off somehow. I suppose that they think that they would be 13 better off because it would be easier for them to make a 14 collusion argument in Judge Solis' court. I don't think it's 15 appropriate for Your Honor to order her to collude with the 16 trustee, I think that ship may have sailed. 17 THE COURT: I don't think I'll order her to collude

18 with the trustee. 19 MS. FONTAINE: Yeah. But I think that we -- the 20 point of Your Honor's order should be to allow everybody to 21 proceed as they have thus far, with nobody up till now asking 22 who's on the TAB, who's supervising Scott Seidel, who is Scott 23 Seidel going to take orders from. Scott Seidel knows how to 24 be a fiduciary and I think we should trust him to go ahead and 25 do that from here on out as he's been doing thus far.

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SUPP APP 0830 Colloquy 99

1 THE COURT: Thank you, Ms. Fontaine. 2 MS. FONTAINE: Thank you, Your Honor. 3 THE COURT: Mr. Hesse? 4 MR. HESSE: Good afternoon, Your Honor. Well, it's 5 still good morning, I'm sorry. 6 THE COURT: This was a twenty- or thirty-minute 7 hearing, as I recall. 8 MR. HESSE: Indeed. First of all, I want to make one 9 point; I want to clarify one thing. Century has never 10 suggested anyone should be on the trust advisory board. 11 Notwithstanding what the two previous speakers had indicated,

12 Century has never said that they pick -- Ms. Doe should be on 13 the board -- the trust advisory board, that anyone in 14 particular should be on the trust advisory board. I just want 15 to make it clear we never said that. 16 Century thought, like many other people apparently, 17 that there was a wholly formed trust advisory board pursuant

18 to the terms of a confirmed plan with a -- which incorporated 19 by reference the trust agreement. It was only when the 20 trustee filed his motion, which incidentally was after the 21 mediation that he didn't have authority to participate in, 22 only after he filed his motion asking you to amend the plan 23 and the trust agreement to eliminate the trust advisory board, 24 that we became aware that it wasn't appointed. 25 And I think that one of the opening statement -- one

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SUPP APP 0831 Colloquy 100

1 of the comments that was made in opening statement really kind 2 of highlights really what's going on here. There is 3 litigation going on in the federal district court, but it was 4 noted that means the trustee has to clean things up now since 5 he's going to be in federal district court, because there's a 6 problem here. This is a problem that was of the making of, I 7 don't know whom, but it wasn't -- the particular problems with 8 the trust and the trust advisory board wasn't Century. 9 Was it the trustee, who signed the trust agreement 10 without having the material terms in it, and after he should 11 have read it and realized he had to have authority from the

12 trust advisory board to do certain things? Maybe he should 13 have dealt with it earlier. Was it the responsibility of the 14 debtor under their proposed plan to make sure that the holes 15 were filled in the trust? Probably should have done it. 16 I guess we found out today the negotiations were done 17 by Ms. Doe's counsel in the context of that plan. Maybe they

18 should have made sure that all -- that everything was done. 19 But it only became apparent to us in the last week or two that 20 there's a problem here. 21 Now, I'll also reemphasize, like I did on opening, 22 the evidence that has been presented here raises an 23 interesting question as to whether there was a meeting of the 24 minds, and we actually do have a trust agreement. 25 Ms. Lindauer had her client sign a document with

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SUPP APP 0832 Colloquy 101

1 blanks in it, figuring that Scott Seidel would fill in the 2 blanks, identify I guess the trust advisory board, identify 3 his law firm, because she didn't know who the law firm was. 4 Fill in the blank with the amount that would be paid to the 5 trustee's law firm, because she didn't do it, because she 6 thought it was his responsibility. Mr. Seidel didn't fill in 7 the blanks because he didn't think it was his responsibility. 8 And they're the two signatories to it. I think there's a 9 question as to whether there's a meeting of minds. And going 10 one step further, Mr. Seidel has testified, or it's been 11 represented by Mr. Seidel, he thought there was a fully -- a

12 fully completed document somewhere, that he just didn't have. 13 I don't know if there's a meeting of minds. It's a real, real 14 question, and a real, real concern that maybe they don't 15 have -- that they have not properly formed the trust. 16 Now, as we've indicated in our objection, confirmed 17 plans of reorganization are binding agreements on the parties,

18 they're binding on the trustee too. They're binding on the 19 debtor. They're not just binding on us. And we're not the 20 ones here asking you to modify the plan to accommodate what 21 should have been done. But it's also binding on the debtor 22 and the trustee. 23 And as Judge Sharp indicated in the U.S. Brass case, 24 that once you have a substantially consummated plan, which the 25 debtor represents has occurred, you can't modify, you can't

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SUPP APP 0833 Colloquy 102

1 amend a plan, 1127 does not allow for it. And the reason you 2 don't amend the plan, as Judge Sharp noted, and I think it's a 3 pretty good point, is that there's an intent to have finality, 4 because the debtor creates a disclosure statement, he 5 circulates a -- they circulate the plan, they attach 6 documents. And parties rely upon those, they vote for it, 7 they rely on it to object to it, they rely on it not to object 8 to it if they choose. And so to now come out seven months 9 later, and to completely change the terms of the plan, is not 10 allowed under the Bankruptcy Code, nor applicable case law. 11 Now, admittedly, Century's not a creditor, and we're

12 not a beneficiary under the trust, but there are provisions of 13 that trust agreement that affect Century. The trustee went 14 into mediation without settlement, without authority to settle 15 the agreement -- settle the causes of action, based upon the 16 plain language of the agreement. Had we known that, we may 17 not have wasted our time going to a mediation. I don't know,

18 I wasn't involved at that point in time. But that's something 19 that Century should be able to rely upon, is his authority. 20 And so this is not the time to change the governance 21 of the agreement. This is not the time to change it. We're 22 well past the ability to do it. I mean, even if there was 23 fraud, you can only revoke confirmations 180 days after the 24 order is confirmed. I mean, we're well past the applicable 25 deadlines. But for them to come in and try to change it so

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SUPP APP 0834 Colloquy 103

1 that they can have things cleaned up for the federal district 2 court litigation, smacks us as a tad bit unfair. 3 What happened to Ms. Doe was horrific. I don't think 4 anybody denies that. But just because it was horrific, 5 doesn't mean it's covered by the insurance policy we have with 6 Pastazios. Pastazios has denied coverage, and that's the 7 question. Is it covered? 8 But to change the rules and to change the governance 9 of this thing at this point in time so that they can clean 10 things up going into trial smacks of gamesmanship. And, 11 consequently, just based upon clear reading of 1127, the

12 courts that have interpreted changes to plan documents as 13 effectively being a change -- a modification of a plan, whole 14 host of case law, we'd ask the Court to deny the motion 15 to -- that has been filed by the trustee. 16 THE COURT: Thank you, Mr. Hesse. Mr. Rukavina, you 17 get to go last.

18 MR. RUKAVINA: Your Honor, three brief points. 19 One, I cannot wait for discovery because what 20 happened is that Mr. Shults for Century called Mr. Crawford 21 for Jane Doe and they arranged the mediation. We were brought 22 in later, after the fact kicking and screaming. So for 23 Century to suggest that they relied on anything is just flat 24 false. 25 Point two, you heard that there was no meeting of the

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SUPP APP 0835 Colloquy 104

1 minds. And you heard that these are material blanks. I'm not 2 suggesting that Your Honor is perfect, or anyone is perfect. 3 But you've been a judge for a long time, you're a good judge, 4 you were a good lawyer, I don't think you would have confirmed 5 the plan if you thought that there were material omissions or 6 a failure of the meeting of the minds. I think it's like 7 other -- many other plans, where there are things left that 8 are going to be filled in later that are not material, that 9 are ministerial. 10 And point three, just so that we're very clear here, 11 Mr. Seidel has not violated any provision of this trust

12 agreement. I went through step-by-step, he never borrowed 13 money, never entered into contracts. 14 The only thing he did was he hired Chen Dotson, which 15 you saw there was a bracket that said except you can hire 16 lawyers like that without trust approval. What the blank on 17 Munsch Hardt and the blank on Munsch Hardt's fees, the trustee

18 didn't violate anything, he did not violate anything, he did 19 not breach anything. If anyone loses here it's me, I go back 20 to the firm and say whoops. And that's it. 21 THE COURT: Thank you. 22 This is rather messy, and I know you're in litigation 23 upstairs, or downstairs, I'm not sure where Judge Solis is, 24 we'll try to get you a ruling in the next few days. I'll 25 probably just set up a CourtCall, and ask Mr. Rukavina to give

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SUPP APP 0836 Colloquy 105

1 notice to everyone so you can participate by CourtCall. 2 Thank you. 3 MR. RUKAVINA: Thank you, Your Honor. 4 THE COURT: We'll be in recess. 5 MR. HESSE: Thank you, Your Honor. 6 THE CLERK: All rise. 7 (Whereupon these proceedings were concluded at 11:34 AM) 8 9 10 11

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SUPP APP 0837 106

1 2 I N D E X 3 VOIR 4 WITNESSES: DIRECT CROSS REDIRECT RECROSS DIRE 5 Joyce Lindauer 34 42 47 36 6 Tom Crawford III 48 53 55 7 Scott Seidel 56 63 84 89 8 9 10 EXHIBITS: DESCRIPTION I.D. EVID 11 Trustee:

12 A, B, D-H 32 13 C Trust agreement 84 14 15 16 RULINGS: PAGE LINE 17 Motion by trustee for continuance denied 30 17

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SUPP APP 0838 107

1 2 C E R T I F I C A T I O N 3 4 I, Esther Accardi, the court approved transcriber, do 5 hereby certify the foregoing is a true and correct transcript 6 from the official electronic sound recording of the 7 proceedings in the above-entitled matter. 8 9 10 November 9, 2015

11 ______________________________ _________________

12 ESTHER ACCARDI DATE 13 AAERT Certified Electronic Transcriber CET**D 485 14 15 16 17

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SUPP APP 0839 PASTAZIOS PIZZA, INC. Case No. 14-34324-HDH-11 November 3, 2015

23 (1) 35:25 9:19,20;40:12,18; 32:18;34:14 1 84:1 50,000 (12) 50:18;51:14,21;52:19; administrative (2) 24 (1) 5:22;15:25;16:2,6; 60:12;85:6,8;90:19 23:10;35:24 1 (2) 71:4 20:8;40:25;58:23,25; accepted (1) admissibility (3) 23:5;82:25 25,000 (1) 60:4,7,13;89:16 51:22 31:8;32:4;38:25 10 (2) 97:6 50,000-dollar (2) accommodate (1) admit (3) 86:2;87:22 29 (2) 5:17;58:22 101:20 31:5;36:19;58:1 10,000 (1) 38:5,10 accompanying (1) admitted (11) 11:24 2nd (2) 6 34:23 10:16,18,18,19,21; 10.1 (4) 5:10;58:14 according (2) 32:6;39:8;66:20;84:14, 24:25;71:2,7,8 6 (3) 8:1;94:9 14,18 11 (7) 3 25:16;43:14;87:16 account (1) admittedly (1) 9:20;66:16;67:11; 89:19 102:11 71:18;72:15,15;88:2 3 (1) 7 accountants (1) adversarial (1) 11:04 (1) 86:14 70:7 29:18 92:4 30 (1) 7 (4) accurate (1) adversary (3) 11:15 (1) 23:9 35:4;79:4;87:18;98:6 39:4 63:13,19;92:25 92:4 31 (1) 7.01 (5) across (1) advisable (1) 11:34 (1) 23:21 22:15;66:20,24;82:8, 43:22 89:13 105:7 32 (1) 13 act (6) advise (1) 1127 (4) 24:11 10:20;27:5;33:11; 73:8 26:23;27:16;102:1; 327 (1) 8 75:18,20,22 advised (1) 103:11 97:8 acting (4) 80:24 1141 (1) 330 (1) 8 (5) 33:9;53:5,6;92:25 advisor (4) 9:20 97:9 31:8,13,14;61:25; action (24) 15:18;23:13;25:12; 12 (1) 37 (1) 87:20 7:15;12:13;23:24; 64:22 88:9 25:15 8.8 (1) 24:17;25:5;27:9;51:1; advisory (120) 12th (4) 82:19 55:10,21;58:23;70:10; 7:2;8:3,4;11:22;12:1, 7:14,19;55:25;56:5 4 8.8a (1) 73:23;76:23;87:1,6,23, 7;13:1,21;15:2,7,9,19; 13 (3) 82:22 25;88:3,5;89:7,8;94:21, 17:4;18:5,6;19:18;20:3, 82:13;88:9;97:16 4 (8) 8.8b (2) 23;102:15 5;21:10,22;22:5,9,18,22; 14 (1) 14:14;15:1,8;65:13, 25:20;82:23 actions (7) 23:11,20,22;24:9,12,14, 88:10 19,20;69:22;86:20 8th (5) 24:10;27:20;28:25; 16,19;25:3,8,9,17,22,23, 15 (1) 4.2 (5) 7:8;8:19;49:9;59:6,7 70:13,17;82:5;88:7 25;28:16,25;35:17,18; 88:10 69:7,14,15;73:3;86:4 active (1) 41:11;45:9,16;46:5; 16 (1) 4.2b (3) 9 63:15 47:11,21;52:2,7,11,22; 88:17 69:8,9;86:4 acts (1) 53:18,24;61:4,6;64:19, 17 (2) 4.2biii (2) 9 (1) 89:11 25;67:3;69:4,7,11,21,22; 25:15;89:2 23:10;70:2 87:22 actual (4) 70:3,6,11,18;71:21;72:3, 18 (1) 4.2bv (1) 9.1a (1) 13:5;19:21;20:24;23:3 18;73:5;74:5,19,25;75:9, 89:2 23:19 84:2 actually (14) 12,15,19,20,24;81:22; 180 (1) 4.2bx (2) 9.2 (1) 4:3;16:15;21:5,14,17; 82:5;83:2,3,5,10;85:12; 102:23 23:21;73:4 83:21 23:6;29:4;37:9;40:8; 86:10,12,14,20,23,24; 19 (1) 4.2x (4) 9019s (1) 50:13;67:6;79:18;93:9; 87:9,11,16,18,24;88:3, 89:6 25:2;71:15,18;72:13 58:4 100:24 10,11;89:2,3,6;90:17; 4.2xi (2) 99.9 (1) ad (1) 92:18,20;95:2,17;97:21; 2 25:2;71:15 97:4 18:3 99:10,13,14,17,23; 40,000 (1) address (4) 100:8,12;101:2 2 (4) 96:25 A 8:25;14:5;29:11,13 affect (1) 22:13;23:5;65:21,25 40h (2) addressed (3) 102:13 20 (1) 50:23,25 abandon (5) 16:15;41:10,11 affecting (1) 89:10 42 (1) 23:24;24:10;70:10; adduced (1) 88:20 2013 (1) 82:21 87:22;88:2 50:17 afoul (1) 49:4 42,000 (1) abandoned (2) adjust (6) 14:25 2015 (4) 12:6 87:25;88:4 23:23;24:9;70:10,17; afternoon (2) 40:20;49:9;59:7;79:20 ability (3) 87:22;88:2 33:3;99:4 20th (2) 5 24:22;27:19;102:22 adjusted (3) again (20) 8:20;62:5 able (8) 41:2;87:24;88:4 7:4;8:3;10:4,24;11:1; 22 (2) 5 (1) 14:19,20;26:1,1;35:5; adminis (1) 23:4,24;25:3,5;39:18; 68:10;80:3 86:23 46:13;71:9;102:19 35:25 72:14;73:7,25;77:23; 22nd (5) 5,000 (1) above (1) administered (1) 78:11,14,19;81:1,11; 5:23;6:22;40:20; 36:1 37:18 93:5 92:6 58:16;68:6 5,000-dollar (1) absolutely (12) administration (2) against (27)

Min-U-Script® eScribers, LLC | (973) 406-2250 (1) 1 - against operations@escribers.net | www.escribers.net SUPP APP 0840 PASTAZIOS PIZZA, INC. Case No. 14-34324-HDH-11 November 3, 2015

7:24;8:12,13,14;10:3; ameliorated (1) 19:5;30:14;34:20; attorney (8) bear (2) 20:22;25:11;28:4,4,6; 28:15 93:15;97:18 16:18;32:14;33:9,10, 24:21;65:11 46:20;50:12;54:23; amend (12) April (9) 10;34:21;40:4;90:12 became (7) 70:14;77:14,15,19,20, 11:4;24:22,23,24; 5:9;58:14;65:9,10,21, attorney- (1) 9:5;28:21,21;79:23; 24;78:4,7,7,12,20,21; 25:2;71:9,9,14;82:8; 25;67:7,19;79:20 73:20 93:22;99:24;100:19 80:4;95:11 99:22;102:1,2 argue (1) attorney-client (3) become (3) ago (2) amended (2) 93:2 72:22;73:14,17 65:8;66:2;79:18 29:22;48:4 5:3;71:23 arguing (1) attorneys (4) becomes (2) agree (5) amending (1) 9:25 23:20;51:11;70:7;87:2 6:21;28:22 8:18;14:10;21:7; 11:6 argument (4) attorney's (3) beforehand (1) 40:16;83:7 amount (7) 3:20;8:25;21:3;98:14 30:4;76:24;79:1 8:17 agreeable (1) 24:6;28:6;58:3;77:14, arguments (2) authenticated (1) befuddled (1) 96:7 18,20;101:4 9:7,22 84:16 21:2 agreed (2) announced (1) arise (2) authority (13) beg (2) 11:5;47:11 7:22 27:13;86:25 24:4,7;26:16,23;27:5, 81:5;84:7 agreeing (1) answered (1) arisen (2) 16;72:18;73:23;79:6; began (1) 66:2 72:21 27:23,24 99:21;100:11;102:14,19 79:19 agreement (95) apologize (2) arising (2) authorized (1) begged (1) 12:23;13:3;14:2;16:2, 33:16;67:14 88:12,14 83:16 51:9 12,13;22:5,8,19;23:4; apparent (3) arose (1) avoidance (5) begging (1) 24:22,23,23,25;25:16; 28:21,22;100:19 87:5 24:10;70:17;88:3,5,7 30:16 26:4,14;27:25;28:14; apparently (6) around (2) awarded (1) behalf (3) 31:10;34:23;35:5,21; 6:19;10:24;43:17; 65:23;92:10 10:15 3:11;20:14;50:4 36:11;37:3,10,14,15; 52:7;71:10;99:16 arranged (2) aware (3) behind (1) 38:10;39:24;40:2,13,17, appeal (2) 16:6;103:21 69:2;97:15;99:24 90:5 22;41:2,3,14,14,19,20; 80:24;81:8 arrangements (1) away (2) belief (1) 42:3;43:3,5;44:15,23,25; appear (4) 16:2 12:7;21:23 63:10 45:1,3;54:10,12;57:20; 39:3,4,20;49:9 aside (1) belonged (1) 59:20;62:10,25;66:8,13; appearance (2) 30:15 B 46:14 67:8,18,22;68:19,21,23, 9:12;50:6 assert (1) belonging (1) 24;69:3,8;71:4,9;72:3,6; appeared (2) 78:3 b1 (1) 23:14 74:15,17,24;75:3,5;79:2, 7:9;40:4 asserted (5) 86:10 below (1) 22;82:19;83:10,13,17; apple (1) 46:20;54:11,22;77:19; b2 (1) 70:5 84:20;85:15;86:3;88:15; 12:12 80:4 86:12 bench (1) 92:17;94:19;99:19,23; applicable (2) asserting (2) back (14) 8:10 100:9,24;102:13,15,16, 102:10,24 55:11;77:14 5:9;6:21;7:22;10:21; beneficiaries (5) 21;104:12 application (2) asset (1) 18:15;25:3;41:24;62:15; 11:14;14:13;88:18,20; agreements (1) 26:19,19 46:19 67:15;71:18;79:17;84:1; 96:7 101:17 appoint (4) assets (3) 96:18;104:19 beneficiary (8) ahead (4) 22:2,2;35:4;98:4 7:17;28:3;94:21 background (1) 7:10;8:8;14:23;39:23; 3:20,21;71:12;98:24 appointed (15) assigned (3) 4:25 63:10;97:4,23;102:12 ain't (1) 15:9;18:18;19:24; 12:23;20:23;25:9 backwards (1) beneficiary's (1) 61:10 22:3;27:5,7,7;41:3; assignment (1) 33:18 97:25 alcohol (1) 45:16;46:8;50:5;64:2; 23:15 ballpark (1) benefit (12) 10:18 98:4,5;99:24 associate (2) 58:4 11:14;12:3;17:12; allow (5) appointment (1) 12:5;33:17 bank (1) 19:23;35:21,22;46:15; 14:15;64:10,15;98:20; 66:24 assume (2) 89:19 47:13,17;92:25;94:7; 102:1 approach (3) 79:24;82:17 bankruptcy (19) 95:11 allowance (1) 4:13,16;36:3 assumed (3) 3:18;9:12,17;19:15, Berghman (9) 18:10 appropriate (2) 42:4,8;80:2 16;25:21;30:2,10,11,14; 3:7;12:4;32:10,12,14, allowed (7) 9:10;98:15 attach (1) 34:19;39:21;52:1,6; 16,19;33:6,19 14:14,25;15:3;17:5; appropriately (1) 102:5 83:1;90:12,22;97:15; best (3) 35:23;97:22;102:10 95:10 attached (6) 102:10 81:3;89:16;90:20 along (1) approval (30) 5:12;17:22;23:5;38:1, based (10) better (3) 22:12 22:6;23:11,12,19,22; 10;43:8 10:15;24:3;27:1,10, 52:9;98:11,13 alternative (1) 24:11,14,16,19;52:22; attacking (1) 14;28:2;74:17,24; beyond (2) 72:4 63:7;69:4,11,20;70:3,6, 10:3 102:15;103:11 56:10;76:8 alternatively (1) 11;73:5;74:5,19;75:1; attempt (2) basically (12) bidding (1) 11:25 86:14,24;87:8,11,23; 80:16,18 9:16;10:2,9,11;11:12; 9:25 although (2) 88:11;89:3,6;104:16 attended (3) 25:25;41:7;58:3;59:23; big (1) 11:5;72:23 approve (1) 40:7,8,9 62:6;72:2;92:22 35:4 always (4) 25:4 attention (3) basis (4) biggest (2) 8:11;63:13;84:5;90:25 approved (5) 24:20;54:4;66:18 11:9,9;39:2;50:25 10:6,7

Min-U-Script® eScribers, LLC | (973) 406-2250 (2) ago - biggest operations@escribers.net | www.escribers.net SUPP APP 0841 PASTAZIOS PIZZA, INC. Case No. 14-34324-HDH-11 November 3, 2015

billing (3) 16:2;24:15;89:3 97:5;102:23;103:1,9; 79:8,9;80:24;92:16,19, 7:24;14:14,25;19:23; 83:15,16,18 borrowed (3) 104:15;105:1 21,24;94:24;95:23;99:9, 20:22;25:5;27:19;35:22, bills (1) 89:4,5;104:12 candidly (5) 12,16;100:8;102:13,19; 23,25;36:1;46:13,15; 89:11 both (5) 21:3,17,19;26:8;29:4 103:20,23 50:19;64:7;70:14;79:14, binder (1) 6:3;9:8;18:17;93:18; capable (1) Century's (16) 16;80:13 31:20 94:16 90:15 4:23;8:18,25;9:14; clarification (2) binders (3) bottom (1) capacity (1) 10:6,7,22;22:24;40:4; 11:17;90:21 4:14,18;57:4 71:13 56:19 54:24;55:13;65:13; clarify (3) binding (9) box (1) car (1) 92:13;98:2,9;102:11 22:1;40:10;99:9 9:21;10:4;86:16,18; 48:2 34:5 certain (6) class (4) 101:17,18,18,19,21 bracket (1) card (1) 5:13;9:7;40:16;41:17; 14:14;15:1,8;35:24 bit (6) 104:15 15:11 71:15;100:12 clean (3) 14:17;21:2;35:14; Brass (2) care (3) certainly (3) 12:25;100:4;103:9 52:23;84:12;103:2 26:11;101:23 7:7;19:19;85:16 9:2;12:18;94:18 cleaned (3) bite (1) breach (1) careful (2) cetera (6) 8:23;11:13;103:1 12:12 104:19 85:3,19 70:7;79:1;87:2,2; clear (5) blah (6) break (2) carried (1) 89:12,12 9:5;84:1;99:15; 87:23,23,23;88:13,13, 91:12;94:16 84:18 chance (1) 103:11;104:10 13 brief (2) carry (3) 4:22 clearly (3) blank (15) 50:15;103:18 12:18;39:10;89:13 change (10) 5:11;28:7;95:24 6:24,25;7:4;11:22,23; briefing (1) case (40) 26:3;46:1;82:14; CLERK (3) 16:25;41:7;83:23;84:2; 11:5 3:18;4:8,9;5:9;9:12; 102:9,20,21,25;103:8,8, 92:3,5;105:6 95:8,8;96:16;101:4; briefly (2) 10:13;13:24;17:11; 13 client (11) 104:16,17 32:9;90:10 21:11;26:11,20;29:7; changed (2) 20:5;29:16,24;30:16, blanks (37) bring (1) 30:12;34:19,23;35:2,3,4, 17:2;54:25 24;52:17;55:11;72:23; 5:13,14,14,24,25;6:5, 13:21 14,15;36:13;39:18,21; changes (2) 73:21;97:13;100:25 7,18,19;12:22;16:13,14, Brooks (1) 49:5;50:6;51:1,17;52:1, 26:14;103:12 client's (1) 16,16;17:22;40:16,21; 3:10 6;59:15;61:21;63:12; Chapter (5) 76:6 42:1,2,5,9,13;44:11,18, brought (3) 79:4;88:7,25;89:1;96:8; 35:4;67:11;79:4; clips (1) 19;45:4;62:10;68:24; 20:15;30:19;103:21 101:23;102:10;103:14 97:16;98:6 29:19 83:9;94:13,14,20;95:19; burden (1) cases (2) charge (1) close (1) 101:1,2,7;104:1 40:14 63:18;97:15 98:11 26:20 blow (1) burn (1) catastrophe (1) check (1) closing (1) 19:11 86:7 61:11 28:25 91:12 board (133) busily (1) catching (1) Chen (15) Code (1) 7:2;8:3,4;11:22;12:1, 60:3 71:12 7:23;8:3;50:2,3,8; 102:10 7;13:1,21;15:2,7,9,14, business (1) cause (8) 52:21;60:19;61:6;62:8; coffee (1) 18,19;16:22,24;17:2,4,8, 18:21 51:1;55:10;58:22; 87:2,9;89:24;94:4;95:1; 69:23 16;18:5,6;19:18;21:10, 73:23;87:23,25;89:7,7 104:14 collaboration (1) 22;22:5,9,18,22;23:11, C caused (3) choose (2) 18:16 13,20,23;24:9,12,15,16, 27:3;29:3,3 16:18;102:8 collateral (1) 19;25:4,8,9,12,17,22,23, call (10) causes (9) chose (2) 13:7 25;28:16,25;35:17,18; 6:12;31:3;33:5,6; 23:24;24:17;25:5; 24:23,24 collaterally (2) 41:11;45:9,16,18;46:6; 48:10,19;56:16,17;61:5, 70:10,13;76:22;87:1,6; cigar (1) 10:3;80:16 47:12,21;52:2,7,11,22; 6 102:15 10:20 collects (1) 53:19,24;60:4;61:4,6; called (8) cell (1) circular (1) 77:5 64:19,22,25;67:3;69:4, 33:9,12;34:6;35:24; 32:22 8:5 collude (2) 11,21,22;70:3,6,11,18; 41:13;48:21;54:3; Cent (1) circulate (1) 98:15,17 71:21;72:3,18;73:5; 103:20 74:18 102:5 colluding (1) 74:6,19,25;75:9,12,15, calls (2) Century (92) circulates (1) 10:2 19,21,24;81:22;83:2,3,5; 58:24,25 3:11;4:1;5:3,4;7:18, 102:5 collusion (5) 85:12;86:10,12,15,20, came (7) 20;8:16;9:8,11,12,13,16, cited (1) 10:16;93:7,8,15;98:14 23,24;87:9,11,16,18,24; 5:20;41:19;57:14,18; 21,22,24;10:3,3;11:4,6; 26:9 collusive (3) 88:4,10,11;89:2,3,6; 73:10;81:16;97:17 12:9,9;13:7,10,13;20:14, claim (44) 10:10,22,25 90:17;92:18,20;93:6,11, can (41) 17,23,23,25;23:16,17, 10:21;14:12,16,19,20, comfortable (2) 13;94:2,3;95:2,17; 13:11;14:5;23:20,23; 25;24:3,6;25:6,7,11; 21;15:3;17:5,6;18:10; 97:2,3 97:22;99:10,13,13,14, 24:12,15,17;26:11,12; 27:3,18;28:4,5;31:23; 20:20;24:5;25:11;28:1, coming (3) 17,23;100:8,12;101:2 28:3;29:19;37:24;39:13; 39:20,23;40:1;46:20,21; 4,4,5,6,7,10;46:19,20; 7:6;8:7;59:24 board's (1) 47:20;52:3;55:6;63:6, 53:13,17;54:21;55:7; 54:22;64:4,10,15,17; commanded (2) 82:5 17;66:17;69:11;70:6,17; 56:3,6;61:23;63:9,13,15; 77:13,15,18,20,23,25; 93:11,16 book (3) 72:25;73:9,19;74:2; 64:21,23;70:14;72:18; 78:3,6,7,12,20,21;79:6, comment (1) 22:12;66:19;67:21 78:19;79:9,14,15;83:7; 73:6,22;74:5,19,25;77:3, 8;94:7;97:18,22 29:14 borrow (3) 89:18,20;93:14;95:8; 6,10,14,19;78:4,8,12,21; claims (19) comments (4)

Min-U-Script® eScribers, LLC | (973) 406-2250 (3) billing - comments operations@escribers.net | www.escribers.net SUPP APP 0842 PASTAZIOS PIZZA, INC. Case No. 14-34324-HDH-11 November 3, 2015

9:16;18:14;55:16; confirmation (32) contracted (1) 27:2,10;28:18,24;29:9, 17:7,9,10;19:2,4,23; 100:1 5:15,18;6:22;7:3;9:15; 93:21 11,12;30:8,10,23;31:1, 20:9;26:5,6;35:2,22; committee (3) 14:11;15:23;16:4,8,15; contracts (5) 17,21,24;32:2,5,12,17, 36:1;46:14,16,23;47:16; 20:3,6;45:9 17:2,3,10;19:8;20:1,2, 23:14;58:4;69:12; 23;33:4,13,15,18,24; 97:1 communications (9) 17;22:4,8;28:20;40:5, 86:16;104:13 34:3,9,13;36:5,24;38:24; creditor's (2) 6:11;8:4,15;53:13,17; 23;41:2,8;45:24;46:3; contractual (1) 39:2,10,13;40:19;42:17; 20:22;67:22 54:1;56:9;59:17;62:9 52:1,5,6;64:3;79:17; 93:20 47:6,24;48:2,6,13,18; cross (1) companies (1) 96:18 control (1) 49:1,10,23;50:6,12;51:5, 56:11 15:11 confirmations (1) 80:3 19;53:2,8,23;54:8,15,18; CROSS-EXAMINATION (5) Company (5) 102:23 convenience (1) 55:2,2,17,21;56:14,16, 42:18;53:10;54:19; 3:11;4:1;53:13,18; confirmed (12) 35:24 18,23;57:21;59:3;60:1,3, 63:25;65:4 54:4 5:10;15:23;16:1; conversations (1) 18;62:15;63:24;64:9,13; C's (1) compare (2) 26:15,15;34:22;58:14; 72:24 65:3,12;66:21,23;72:2, 84:18 37:24;44:1 79:22;99:18;101:16; convert (3) 10,24;73:16,20;74:2,8, compel (1) 102:24;104:4 13:24;35:4;96:8 21;76:10,20;78:17; D 11:20 confirming (1) converted (1) 80:20,22,24;81:4,6,13; compensation (6) 65:14 29:7 83:1;84:11,15,18,23; Danny (1) 28:2,11;77:10;83:11, conflict (4) convincing (1) 90:3,17,22;91:2,5,9,11, 35:14 14;96:16 10:1;15:12;27:24; 15:11 15,18,22,24;92:6,14; dare (1) complaining (1) 28:13 copy (8) 94:5,9;96:14,19,23; 93:5 19:20 confused (2) 22:11,13;36:11;41:19; 97:10;98:14,17;99:1,3,6; date (5) complaint (5) 8:11;84:13 43:11,19;56:3;65:13 100:3,5;103:2,14,16; 14:18;32:8;84:21; 11:4,6;55:3,4,5 connection (6) core (1) 104:21;105:4 89:18;97:19 complete (1) 24:12;87:1,6;88:12, 73:13 CourtCall (2) dated (1) 45:2 14;97:24 coronation (2) 104:25;105:1 68:5 completed (3) consensual (1) 93:22,23 courtroom (1) dates (1) 44:17,20;101:12 97:17 correctly (1) 3:14 68:7 completely (2) Consequently (2) 71:17 courts (3) Davor (2) 25:24;102:9 5:23;103:11 correlated (1) 28:19;97:15;103:12 3:6;97:5 compromise (8) consider (1) 28:12 Court's (9) day (7) 23:23;24:9;64:10,15; 72:5 correlates (1) 13:25;19:15;38:7,11; 76:13;79:21,22;84:5, 70:10,17;87:22;88:2 consist (1) 28:5 40:14;43:6,14,16;86:8 8;90:14;97:7 compromised (2) 28:3 correspondence (1) coverage (7) days (9) 87:24;88:4 consistent (2) 58:25 27:9;29:23;54:22; 7:20;8:9,20;19:12; computer (2) 27:11;75:23 counsel (57) 55:7,9,14;103:6 79:25;80:9;90:13; 43:2,9 consultation (3) 3:17;6:24;7:12,13,21; covered (2) 102:23;104:24 concept (3) 24:8;70:18;88:3 8:7;13:1;14:21;16:11; 103:5,7 deadlines (1) 19:24;35:19;46:16 consulted (2) 17:8,12;18:20;19:8; cower (1) 102:25 concern (4) 25:4,12 21:10;27:8;29:23,24; 90:5 deal (1) 28:20;63:5,6;101:14 consummated (4) 30:10;35:2,12;39:18; Crawford (17) 69:10 concerned (1) 26:18,21,22;101:24 41:10;42:10;45:5;49:8, 4:2,3,4,5;7:9;48:10,13, dealing (4) 16:13 contacted (3) 16,21,24;50:1;52:21; 16,17,21;53:12;54:21; 23:18;25:19;27:4; concerns (4) 42:11;65:8,22 53:6,13;60:2,3,6,10,19; 55:1,20;56:14;60:19; 70:17 19:14;21:6;27:22;85:4 contentious (1) 61:16;73:10,12;74:13; 103:20 dealt (1) conclude (3) 11:8 75:22;76:2;80:6,18; created (3) 100:13 8:20;13:22,23 contested (1) 81:16,18;83:14,19;84:3; 5:11;12:3;18:13 Deari (25) concluded (1) 97:17 85:7,9;94:6;95:7,8; creates (1) 8:12;10:16;15:24; 105:7 contesting (2) 96:21;100:17 102:4 16:1,11;19:1;35:14; conclusion (7) 12:9,10 couple (5) creation (1) 36:14;37:2;40:20;41:15, 72:9;73:11,12;74:20; context (2) 4:14;9:4;14:9;15:24; 66:24 19;42:3,23;43:5,11; 78:10,15;80:23 5:1;100:17 42:20 credible (3) 44:11,17;46:12;50:12; conclusions (1) continually (1) course (3) 48:7,8,12 57:10,22;60:9;89:17; 10:12 30:21 5:13,15;8:9 credit (1) 94:12 conduct (1) continuance (6) COURT (178) 15:11 Deari's (2) 33:20 13:8;31:2;59:10,13, 3:1,8,12,16,19;4:4,6,9, creditor (30) 45:8,10 confer (1) 25;61:13 10,15,17,19;5:8,10,25; 3:14;5:11;12:6;14:8; debt (1) 8:2 continue (3) 7:5,9,22,22;8:10;10:22; 16:10;18:19;19:16; 96:4 conferred (1) 4:24;30:21;90:18 11:18;12:13;13:18,20, 20:19;22:17,19,23; debtor (24) 7:17 continued (1) 22,23,24;14:4,16,16; 23:14,16;35:6,7;36:11; 3:18;5:16,21,23;6:1; conferring (1) 59:1 15:4,5,21;16:20,22,24; 44:23;57:20;66:3,24; 14:19;18:21,24;20:21; 85:23 contract (5) 17:17,24;18:2,8,11; 67:2;86:3,16,18;88:19; 21:9;26:19,20;28:23; confess (1) 6:8;23:18;25:8;58:8; 19:16;20:10,12;21:19, 89:13;96:9,25,25;102:11 34:21;46:10,12;47:18; 95:24 86:18 23;22:2;23:8;25:21; creditors (17) 96:3,4;100:14;101:19,

Min-U-Script® eScribers, LLC | (973) 406-2250 (4) committee - debtor operations@escribers.net | www.escribers.net SUPP APP 0843 PASTAZIOS PIZZA, INC. Case No. 14-34324-HDH-11 November 3, 2015

21,25;102:4 11:21;13:1 14:12,21 74:10,11,15;75:2,4; 25:24;28:24;81:21; debtors (2) designed (1) disputing (4) 94:21;95:9;100:15,16, 82:5,15;99:23 3:2,4 95:12 54:21;55:7,9,14 18;101:21 eliminates (1) debtor's (5) despair (1) district (7) door (1) 90:17 5:10,11;15:13;39:18; 10:9 12:13;27:9;55:2,21; 73:15 elimination (1) 66:4 detail (1) 100:3,5;103:1 Dotson (15) 83:5 decide (2) 5:19 distrust (1) 7:23;8:3;50:2,3,8; Elrod (1) 11:2;64:15 details (4) 14:2 52:21;60:19;61:7;62:8; 3:15 decided (2) 56:8;62:3,12;85:4 doc (2) 87:3,9;89:24;94:4;95:1; else (4) 15:2,4 determined (1) 25:10;66:12 104:14 47:18;97:7,11;98:5 decision (6) 19:9 docketed (1) down (8) e-mail (6) 12:19;52:18;81:8,17; developed (1) 82:21 13:21;47:25;48:4; 36:14;38:17;41:20; 93:12;97:3 93:21 doctrine (2) 54:5;56:14;64:17;91:5; 57:21;68:4,13 decisions (3) D-H (1) 51:12,12 95:20 e-mailed (1) 26:7;93:14;95:9 32:7 document (63) downstairs (1) 36:17 declare (3) dialogue (1) 5:12,24;6:2,3,13,17, 104:23 e-mails (1) 22:3,4,7 21:1 18,19;7:1;8:2;9:5;11:13, drafted (1) 68:16 decree (1) dies (1) 15;12:11;16:20;21:7,8, 35:1 emotional (1) 26:20 93:23 12,13;23:6;24:4;25:14; due (1) 30:18 deeds (1) different (7) 28:19;36:9;38:15;39:6, 9:19 employ (3) 89:11 15:16;16:5;43:24; 9,11,14,17;42:1,2,24; during (2) 23:20;70:6;87:2 deem (1) 44:6;70:16;78:14;97:14 43:1,1,11,13,15,18,19, 35:16;50:15 employed (1) 89:12 difficult (1) 19,21;44:9,11,17,18,21; duties (7) 87:2 default (1) 5:21 57:5,8,14,16;58:12,16; 52:13,14;86:25;90:15, ended (3) 96:9 dire (3) 66:12;68:3,13;70:21; 18,21;98:7 11:11,11;16:5 defaulted (1) 36:22,25;38:22 74:22;94:13,15;96:3; duty (3) ends (1) 61:14 direct (5) 100:25;101:12 78:13,14;94:22 26:25 defend (9) 24:20;34:16;48:23; documents (4) enforcement (1) 7:24;30:13;58:22; 56:24;80:13 68:13;95:21;102:6; E 96:10 60:10,22;61:4;78:13; direction (2) 103:12 engaged (1) 80:5,6 76:1,3 Doe (74) earlier (2) 63:15 defense (3) directly (3) 3:14;6:5;7:5,10;8:19; 7:20;100:13 engineered (1) 10:6,7;80:13 15:5;28:5,11 11:14;12:2;13:21;14:8; early (8) 10:25 delay (2) disagree (5) 17:3,11;21:9;28:1,6,24; 7:6;35:3;49:4;59:4,5; enough (4) 9:1,2 12:18;14:9;15:15; 29:16;45:18;46:23; 67:6,7;89:22 66:17;91:4,17,18 delicate (1) 55:12,13 47:12,13,17;49:1,3,18; easier (1) enrich (1) 97:19 disagreement (2) 50:3,7,19;51:8,13,20,24, 98:13 10:25 deliver (2) 88:13,19 25;52:6,10,17,20;54:23; easy (1) enter (6) 89:11;96:3 Disciplinary (1) 60:9;64:9,18,21;75:8,11, 31:4 23:13;24:5;26:19; demand (4) 33:10 16,18;76:1;77:15,20,23, ECF (3) 69:11;73:5;86:15 8:17;29:25;64:12; disclosure (2) 25;78:6,12,20;80:4; 55:21;56:3,7 entered (4) 98:10 9:13;102:4 81:9;85:5,12,20,24; economics (1) 8:10;10:23;86:17; demanding (1) discovered (1) 92:20,21,24;93:6,10,11, 79:3 104:13 98:9 21:4 13;94:13;97:2,4,5;98:8; effect (1) entire (3) denied (1) discovery (3) 99:12;103:3,21 8:5 37:14,15;48:21 103:6 80:17,19;103:19 Doe's (10) effective (2) entitled (3) denies (2) discuss (1) 7:24;14:12;21:10; 14:18;97:19 6:25;25:2;71:14 21:11;103:4 13:2 28:7,10;35:2;64:4;79:6; effectively (2) equal (1) deny (3) discussed (3) 80:13;100:17 26:25;103:13 91:15 27:2;29:1;103:14 35:18,20;51:2 dog (2) effectuate (2) equitably (1) depends (2) discussing (1) 46:10,12 5:18;29:4 96:12 77:14,19 6:4 dollar (1) effectuated (3) equity (8) depo (1) discussion (4) 96:25 12:1;60:14;63:3 93:18,19,20,25;94:8, 29:19 5:7;27:14;58:20;74:16 dollars (27) egregious (1) 10,23;95:13 depose (2) discussions (4) 5:22;8:14;10:15; 50:13 Erler (10) 13:8,10 11:11;51:6;52:16;54:7 11:24;12:6;15:25;16:2, eighteen-year- (1) 6:4,11,16;8:6;9:5; deposition (1) dismissed (1) 6;20:8;28:8,9;36:2; 29:16 17:17;18:14;35:3,12; 97:14 29:7 40:25;58:23;59:1;60:4, eighteen-year-old (1) 52:8 depositions (1) disparage (1) 13;77:6,7,10,10,24;78:1, 10:17 Erler's (1) 29:17 10:23 4,20;89:17;97:6 either (5) 20:5 describe (1) disparagement (1) done (17) 14:19;22:1;46:25; especially (2) 26:12 10:8 11:21;13:4;14:3; 83:1;84:4 28:22;29:14 designate (2) disputed (2) 18:18;25:10;58:10; eliminate (6) essence (1)

Min-U-Script® eScribers, LLC | (973) 406-2250 (5) debtors - essence operations@escribers.net | www.escribers.net SUPP APP 0844 PASTAZIOS PIZZA, INC. Case No. 14-34324-HDH-11 November 3, 2015

16:20 69:7;72:13;73:3;83:10 faith (2) 104:8 95:23 establish (1) execute (1) 85:14,25 filled-in (2) foremost (1) 17:14 89:11 false (2) 6:13,17 94:22 established (1) executed (6) 10:11;103:24 final (5) forget (1) 19:22 6:13;14:24;31:11,11; familiar (2) 10:4;25:18;26:20; 93:22 establishment (1) 43:3;62:25 34:22;98:7 44:25;45:1 forgot (1) 25:16 exercise (6) family (1) finality (1) 21:12 estate (2) 23:12,13;86:15;90:18, 30:20 102:3 form (9) 19:17;94:22 21;98:7 far (9) finally (4) 18:14,15,16,17;27:19; et (6) exercised (1) 16:10,13;20:2;34:5; 6:15;9:4;16:6,7 63:9,19;93:12;94:25 70:7;79:1;87:2,2; 86:17 61:15;76:8;96:12;98:21, financial (3) formally (1) 89:12,12 exercising (1) 25 59:22,23;96:3 9:6 ethical (1) 90:15 fast (1) find (4) formation (1) 53:5 exhibit (29) 77:16 5:17;28:18;89:20;98:5 29:5 even (12) 22:12,13;23:5,5,5; fault (4) finding (4) formed (6) 10:6,16,17,18,19,20; 31:8,9,12,20,25;36:7,19; 94:11,12,17,18 5:21;48:6,8,11 21:5,15,18;27:14; 21:7;26:23;30:15;42:9; 37:21;38:5,11;43:10,14; favor (2) findings (1) 99:17;101:15 51:23;102:22 57:4;65:13,19;66:19,22; 3:2,3 10:11 forms (1) evening (1) 67:21;82:11,21;84:13, faxed (1) finds (1) 18:17 31:23 21;86:3;96:18 41:20 11:16 forth (2) event (1) Exhibits (2) federal (8) firm (15) 18:15;22:16 41:24 31:5;32:7 7:15;15:5;27:9;55:2, 7:23;12:6;18:14; forward (3) Everybody (6) exist (1) 21;100:3,5;103:1 49:15,21;53:4,14,15; 11:25;92:23;95:7 21:11;33:15;76:14; 6:17 fees (6) 63:2,2;97:3;101:3,3,5; fought (4) 81:13;91:13;98:20 existed (1) 11:23,23;30:5;76:25; 104:20 58:24,24;97:14,16 Everyone (8) 70:21 79:1;104:17 First (15) found (1) 7:13;8:7;10:2;13:2; existence (2) few (4) 10:9;12:16;17:14; 100:16 61:20;90:23;94:6;105:1 63:5,6 7:20;19:11;23:4; 21:25;29:25;31:3,5; four (4) everyone's (1) exists (2) 104:24 53:2;57:20;61:5;65:8, 29:17,22,24;97:13 94:7 11:13;28:14 fiduciary (8) 22;92:9;94:22;99:8 frame (1) evidence (9) expecting (1) 52:13,14;90:13,15,18, five (3) 65:23 3:21;13:17;32:8; 95:23 21;98:7,24 63:18;76:21;92:1 frankly (7) 50:17;81:3;84:20;91:8, expedited (1) fifth (2) five-minute (1) 8:5;19:20;21:1;47:21; 10;100:22 11:5 25:1;71:13 91:11 52:12;96:22;97:7 evidentiary (3) expenses (1) fight (3) fixing (1) fraud (1) 13:6,12;95:24 24:17 46:11,12;59:1 95:25 102:23 exact (1) explain (3) figure (1) flat (1) free (3) 89:18 6:6;40:19;58:12 54:24 103:23 12:12;13:15;80:18 exactly (4) explained (1) figuring (1) Flemish (1) frequently (1) 5:20;13:12;41:22;93:7 27:22 101:1 33:21 58:10 examination (8) extent (5) file (10) flip (1) Friday (4) 33:20;34:16;36:25; 17:11;72:21;73:8; 9:13;20:20;24:2; 36:10 5:3;31:23;33:3,3 47:9;48:23;55:18;56:24; 84:13;85:23 26:11,19;43:4;55:25; focus (4) friend (1) 85:1 62:20;82:18;83:7 16:8;19:1;20:7;40:23 30:20 examine (1) F filed (17) follow (1) front (8) 39:13 4:1;7:14,14;8:21;9:4, 22:12 7:9;9:8;12:22;37:12, examined (1) fact (10) 11;21:19;25:15;27:12; followed (1) 13;80:17;81:12;82:9 39:11 10:12;11:9;26:22; 30:23;31:22;33:3;36:12; 5:16 frustration (1) example (4) 27:6,13;54:11;65:21; 62:18;99:20,22;103:15 following (3) 95:15 16:17;41:3;69:6;78:13 85:19,20;103:22 filing (6) 16:8;40:23;52:13 full (4) excellent (1) facts (4) 23:7;38:7,11;43:6,15, follows (3) 6:17;13:12;66:12; 47:19 12:20;33:11;50:13,15 16 37:19;38:3;92:15 73:22 except (4) factual (1) fill (16) follow-up (2) fully (7) 22:16;30:12;86:25; 14:10 6:7,10;11:22,23; 42:20;47:7 6:12,12,13;21:13; 104:15 failed (1) 16:14;42:5,13;44:18; Fontaine (26) 62:24;101:11,12 exceptionally (1) 62:6 45:4,5,5;95:19,21;101:1, 3:13,13;14:7,7;17:24; fun (1) 9:9 failure (1) 4,6 18:3,6,9;35:3,11;52:8; 33:17 excess (2) 104:6 filled (24) 53:2,9,11;54:16;63:24; fundamentally (1) 77:25;78:3 fair (3) 6:19;7:1;12:25;16:18, 64:1;65:2;90:4,5,7;91:1; 93:17 excluded (1) 13:12;66:17;91:17 19;17:18,20;18:3,4,4; 97:12;98:19;99:1,2 funding (1) 4:3 fairly (6) 20:2;21:13;41:7;42:9; force (1) 96:4 Excuse (8) 21:15;22:19;24:18; 44:15;45:6;63:2;83:23; 93:13 further (11) 3:9;55:2;66:3;67:20; 25:13;26:10;47:3 84:3,5,9;94:20;100:15; forced (1) 38:22;47:5;54:16;

Min-U-Script® eScribers, LLC | (973) 406-2250 (6) establish - further operations@escribers.net | www.escribers.net SUPP APP 0845 PASTAZIOS PIZZA, INC. Case No. 14-34324-HDH-11 November 3, 2015

55:16;65:2;71:14;84:10; 62:20;67:19;100:16; 54:13 honest (1) identify (3) 90:3;91:7,10;101:10 101:2 held (2) 83:19 96:21;101:2,2 guidance (1) 8:9;17:4 honestly (4) ignore (1) G 11:17 help (2) 18:13;42:3;47:16;52:8 21:22 guided (1) 65:17;93:25 Honor (130) III (3) Gainfully (1) 93:11 helping (1) 3:6,9,10,13,17,23;4:5, 48:17;69:12,19 46:10 gun (1) 17:14 7,13,16,21,25;5:13;6:6; important (4) gaining (1) 13:17 hereby (2) 9:11,15;10:23;11:2,3; 22:25;27:21;94:12,14 12:13 gutted (1) 32:7;84:20 12:4,14,16,22;13:6;14:7, impossibility (2) game (1) 22:21 herein (1) 15;15:22;20:13;21:3; 93:19;95:14 20:16 gutting (1) 22:16 22:10;23:7,15;24:1; impossible (2) gamesmanship (1) 25:14 herpes (1) 25:19;26:8,18;29:1,8,10, 93:22;94:1 103:10 guy (2) 29:21 13,16;30:3,6,11,15;31:5, Inc (1) gave (3) 45:10;66:16 Hess (1) 7,8,19,25;32:9,11,16,19, 34:21 18:14;19:2;50:15 86:2 21;33:2,5,16;34:1,4,15; incidentally (1) generally (2) H HESSE (79) 36:4,19,21;38:23;39:12; 99:20 50:16;90:13 3:9,10,23;4:16,18; 41:17;42:16;44:10;47:5, include (1) gentleman (1) hah (3) 14:4;20:12,13,13;23:9; 23;48:1,16;50:21;51:15, 77:2 16:3 93:15,15,15 29:9;30:3,6;31:7,10,13, 18;52:25;53:3,9;54:6,13, included (3) gets (2) Hail (1) 16,25;32:3,11,19,24; 16;55:16;56:10,17; 35:6;36:12;70:13 28:9,10 3:15 33:1,8;34:1;36:21;37:1; 63:22;65:2;72:8,20; including (1) Ginsberg (4) Hale (1) 38:22,25;39:3,12;41:16; 73:7,13,15,19,24;74:7, 71:15 10:9,13,15;59:7 93:15 42:17,19;44:10;47:5; 20;76:8,16,19;78:9; incorporate (1) girl (2) half (1) 50:21,23;51:4,15;53:2,3; 80:14,21;81:1,5,10; 71:20 10:17;29:17 51:10 54:6,13,18,20;55:16; 84:10,12,17,22,25;90:2; incorporated (2) given (2) hand (4) 56:10;65:3,5,12,16; 91:1,6,7;92:11;93:17; 26:4;99:18 28:1,3 30:7;61:9;77:9;78:6 66:22;69:25;73:15; 94:9;95:4,13;96:10,17; Indeed (1) goes (8) handled (1) 76:19;80:20,21;81:5,7; 97:12;98:3,15;99:2,4; 99:8 16:10;21:23;76:8; 35:15 84:10,16,22;86:4;90:3; 103:18;104:2;105:3,5 indemnify (1) 96:16,21;97:1,7,11 handling (1) 91:2,4,9,10,13,17,23,25; Honor's (6) 78:14 good (13) 35:13 97:11;99:3,4,8;103:16; 10:4;12:17,19;24:20; indicated (5) 3:6,9,10;20:13;85:14, handwriting (2) 105:5 97:15;98:20 29:22;68:19;99:11; 24;92:6;97:6;99:4,5; 68:7,8 hey (1) hope (2) 101:16,23 102:3;104:3,4 happen (2) 61:6 21:23;92:12 indirectly (1) good-looking (1) 27:11;96:5 hidden (1) hoped (1) 26:24 48:11 happened (12) 61:19 8:23 individually (1) governance (6) 20:3,6;28:17;30:24, hide (1) horrific (2) 15:13 12:11;22:20;25:10; 25;40:22;41:12;42:22; 60:9 103:3,4 infer (1) 63:20;102:20;103:8 61:3,9;103:3,20 highest (1) hospital (1) 96:15 governed (1) happens (1) 54:4 30:19 inform (2) 93:4 96:2 highlights (1) host (1) 49:23;59:9 granted (2) Hardt (15) 100:2 103:14 information (2) 7:19;11:3 6:24;7:11,20;11:22; highly (1) hot (1) 19:10;74:2 grants (1) 13:1;18:4;56:6;61:15, 11:8 80:17 informed (2) 95:5 16;83:11;84:5,8;94:6, himself (2) hotel (2) 52:18;54:9 great (1) 25;104:17 11:16;88:9 10:19,21 inherent (2) 82:1 Hardt's (2) hire (8) hotly (1) 27:23,24 greater (2) 83:14;104:17 8:7;41:10;58:22;61:6, 97:16 initially (1) 35:23;36:1 hate (2) 10;94:4,6;104:15 hourly (3) 29:22 Greg (2) 48:3,3 hired (12) 83:15,16;97:5 input (8) 3:10;20:13 head (1) 7:11,23;14:21;27:8,8; house (1) 35:14;76:5,6,7,12,15; grounds (1) 17:24 29:23;56:6;62:8,9;80:6; 93:24 92:22;94:2 80:14 header (2) 89:24;104:14 huge (1) insofar (1) group (1) 43:22,23 hiring (1) 16:6 86:25 19:23 hear (4) 18:20 human (1) instance (3) groups (1) 12:4;31:1,12;97:10 hold (3) 96:22 17:14;30:25;72:23 18:23 heard (3) 19:23;41:15;69:9 humble (1) instead (2) Gruber (8) 34:7;103:25;104:1 holders (1) 93:17 11:4;35:6 3:15,15;4:7,8;29:10, hearing (11) 14:13 Hurst (1) insurance (18) 13;30:4,9 4:24;13:6,12;30:14; holes (1) 3:15 6:23;7:11,13,21;9:23; grueling (1) 40:7,9;49:23;80:24; 100:14 20:23;23:16;42:10; 97:13 92:13;95:24;99:7 home (1) I 46:21;49:15,21;52:21; guess (4) hearsay (1) 30:19 53:13,18;61:16;83:14;

Min-U-Script® eScribers, LLC | (973) 406-2250 (7) Gainfully - insurance operations@escribers.net | www.escribers.net SUPP APP 0846 PASTAZIOS PIZZA, INC. Case No. 14-34324-HDH-11 November 3, 2015

84:3;103:5 ironic (1) 19:15,16 80:1 Lindauer (41) insured (1) 93:9 justice (1) Laura (3) 3:17,17;4:2,3;6:2,4,6; 30:13 irony (2) 10:14 3:13;14:7;35:11 8:5;15:22;16:23;17:1, intend (1) 92:12,15 law (9) 19;18:1,5,7,12;20:11; 5:2 irreconcilable (1) K 7:23;10:12;12:6; 33:5,8,12;34:4,7,12,15, intended (4) 10:1 93:18;101:3,3,5;102:10; 18,20;36:6,21;37:2; 39:23;51:25;52:7; issuance (1) keep (3) 103:14 39:17;42:20;47:7,24,25; 93:10 96:4 30:16;46:13;92:10 lawsuit (3) 48:1,3;57:24;68:5,17; intent (1) issue (11) keeping (2) 49:1;50:4;54:2 75:7;100:25 102:3 7:21,25;11:19;12:17, 3:2;23:1 lawyer (17) line (3) intentionally (2) 18;17:6;19:13;51:16; Kevin (1) 9:17;13:23;30:13,14; 25:1;57:22;71:13 9:3;10:13 53:5;60:16,17 3:10 34:10;48:14,25;53:5; liquidating (1) interest (9) issues (11) kicking (1) 54:3;57:25;59:15;72:23, 66:2 10:1;12:10;13:2,11; 5:2;11:1,1,7;13:7,15; 103:22 25;74:16;78:11;80:24; list (3) 20:25;25:7;28:14;30:12; 16:9;19:19;28:18;57:13; kids (1) 104:4 4:1;31:20;32:20 93:4 63:5 30:20 lawyers (4) listed (3) interesting (3) kind (16) 9:14;58:22;59:2; 32:20,25;33:1 88:17;89:10;100:23 J 3:5;4:22;18:18;19:5,6; 104:16 listened (1) interestingly (1) 20:15;21:11;22:24; lead (2) 76:13 24:1 Jane (30) 26:13;76:7;85:23;93:2, 39:18;49:8 listening (2) interests (2) 3:14;7:5;14:8,12;21:9, 3,3,4;100:1 least (2) 21:1;96:12 15:7;88:18 10;28:1,6,7,10,24;35:2; king (1) 5:7;85:11 litigate (1) internal (1) 64:4,18,21;75:8,11; 93:22 leave (2) 27:9 63:20 77:15,20,23,25;78:6,12, knew (12) 11:4,10 litigated (2) internally (1) 20;79:6;80:4,13;81:9; 7:10,20;8:8,8;17:6; leaves (2) 64:5,17 93:4 98:8;103:21 20:1;42:9;50:5;56:6; 11:10;97:18 litigation (16) interpretation (2) Jeff (1) 68:23;70:20;72:17 leaving (2) 11:12;15:5;35:13; 26:13,13 35:11 knowing (1) 17:3,9 59:2;63:15,18;64:13; interpreted (1) job (1) 73:22 led (1) 80:4,5,17;81:3;84:3; 103:12 47:20 knowledge (3) 30:11 92:22;100:3;103:2; intervene (2) Johansen (1) 63:10,11;86:19 left (1) 104:22 15:4;27:8 3:15 known (1) 104:7 little (6) intervention (1) Johnson (5) 102:16 legal (7) 21:2;30:18;35:14; 14:1 12:6;15:12;35:12; knows (5) 48:17;51:15;72:8; 43:21;66:16;84:12 intimate (1) 59:14,17 81:14;93:10,19;94:6; 74:20;78:10,11,15 lives (2) 95:2 Johnson's (1) 98:23 legitimate (1) 94:16,17 into (33) 12:6 12:10 loan (1) 18:23,25;19:4;23:13, jointly (1) L lengthy (1) 16:3 16;24:5,7;26:4;27:9; 50:11 26:10 lodge (1) 29:19;32:7;51:2,6; Joyce (4) lady (1) less (3) 78:15 52:16;54:6;56:8;59:16; 3:17;4:2;33:5;34:20 30:18 25:22;83:2;91:20 logically (1) 60:8;62:3,12;67:11; Judge (45) language (4) letter (1) 85:14 69:11;72:24;73:5,22; 5:6;7:6,15,19;9:8; 8:1;70:16;74:14; 64:12 long (7) 84:20;85:4;86:15,17; 10:9,13,15,22;11:2,3,6,7, 102:16 letters (1) 3:4;48:4;52:13;57:25; 88:25;102:14;103:10; 20,25;13:16;15:5;26:10; largely (1) 30:16 58:2;91:21;104:3 104:13 30:23,23;41:7;50:12,14, 4:23 leverage (1) longer (4) invading (4) 15,16;55:21;56:15; larger (3) 12:13 15:6,19;22:22;58:1 72:21;73:9,17;74:1 58:13;59:7,9,24;80:18; 17:6;18:25;19:3 liability (1) look (18) invalid (1) 81:12;88:9;93:7,14,15; largest (2) 55:10 16:5;39:17;66:5,7,9, 9:23 94:5;96:22;98:14; 12:5;17:4 licensed (3) 10,18;71:4,11;82:11,19; invert (1) 101:23;102:2;104:3,3,23 last (16) 32:14;34:10;48:14 88:17;89:19;93:15;94:9; 23:22 judges (1) 4:21;5:13;19:11; life (1) 95:13,14;96:18 investigate (1) 10:8 20:15;22:15;29:14; 48:21 looked (7) 62:13 judgment (3) 37:22;57:7;62:2;67:1, lifted (2) 10:13;67:7,16;68:15, invitation (1) 8:11,17;15:4 23;82:13;89:19;92:9; 7:7;14:15 22;94:23;96:19 8:18 judicial (1) 100:19;103:17 light (1) looking (2) invoke (2) 65:12 late (4) 74:14 31:16;67:18 3:24;34:2 July (5) 20:16;65:24;67:6; likely (1) loses (1) involved (7) 7:6;14:17;59:4,5,6 89:22 53:16 104:19 5:9;17:14;59:2;61:20; June (8) later (7) limit (1) losing (1) 63:12;84:8;102:18 7:8,14,19;49:9;55:25; 5:21;8:21;9:22,24; 35:25 96:15 involvement (1) 56:5;59:6;89:22 102:9;103:22;104:8 limits (1) lost (7) 35:1 jurisdiction (2) latter (1) 51:20 10:12;33:15;60:24,25;

Min-U-Script® eScribers, LLC | (973) 406-2250 (8) insured - lost operations@escribers.net | www.escribers.net SUPP APP 0847 PASTAZIOS PIZZA, INC. Case No. 14-34324-HDH-11 November 3, 2015

61:1,2;92:13 10:20 50:11;96:25 moved (1) ninety-nine (1) lot (4) mean (13) mind (5) 50:5 7:10 33:2;40:24;66:15; 3:5;18:19;22:9;27:1; 47:12;63:3;69:13; Moving (2) nobody (1) 89:20 35:19;43:3;52:12;66:11; 73:2;79:4 23:21;80:17 98:21 luck (1) 78:10;80:5;102:22,24; minds (5) much (6) nobody's (1) 15:11 103:5 100:24;101:9,13; 6:25;15:11;17:6; 21:13 ludicrous (2) means (5) 104:1,6 62:21;91:20;95:8 nonappealable (1) 93:1,2 11:12,21;21:24;22:25; mine (1) multiple (4) 10:4 100:4 31:16 8:15;41:12;54:1;59:17 None (4) M mechanism (2) ministerial (3) Munsch (18) 17:9,10;56:21;95:17 71:8;83:6 19:21;45:4;104:9 6:24;7:11,20;11:22; nor (1) ma'am (2) mediate (1) minute (1) 13:1;18:4;56:6;61:15, 102:10 90:9;97:7 54:5 80:9 16;83:11,13;84:2,5,8; note (4) makes (1) mediated (1) minutes (3) 94:6,25;104:17,17 26:18;37:15,16;73:18 89:23 61:23 91:12,14;92:2 must (1) noted (3) making (6) mediation (22) miscarriage (1) 13:8 26:11;100:4;102:2 9:22;19:1,3;20:8; 8:18,19,20,24;11:11; 10:14 notice (5) 93:12;100:6 24:3,5,7;62:2,5,22; missing (2) N 9:11;45:6;65:13; manner (1) 73:22;74:10;76:13,16, 42:5;69:25 90:23;105:1 75:22 17,18;85:4;99:21; misstates (1) name (4) Notwithstanding (1) many (8) 102:14,17;103:21 73:24 34:18,20;48:17;95:7 99:11 11:20;13:24;58:4; mediator (2) mistake (2) names (1) number (8) 94:12,13;96:1;99:16; 85:21,21 12:24;13:18 45:5 8:12,13;16:15;22:13; 104:7 meet (1) modification (9) narrow (1) 27:13;35:1;71:3;82:9 March (4) 85:9 26:9,25;29:2,6;72:6, 13:15 numbers (2) 65:10,24,24;67:7 meeting (5) 11;96:1,10;103:13 nature (1) 8:11,12 Marshals (1) 100:23;101:9,13; modified (2) 78:15 13:20 103:25;104:6 7:2;45:24 necessarily (2) O master (1) meetings (1) modify (8) 14:1;51:2 10:2 8:15 21:20;25:2;26:16,23; necessary (5) oath (2) material (19) member (15) 27:16;71:15;101:20,25 52:12;85:15,24;89:12; 32:18;34:14 16:21;19:21;22:20; 17:2,4,15;20:5;21:10; moment (2) 90:5 object (18) 26:3,14,25;29:2,5;33:11; 41:11;45:19;53:23;75:8, 24:21;65:11 need (9) 28:1;30:6;32:2,11; 35:20;45:7;69:24;72:5, 12,15,18,20,23;95:1 money (12) 11:23;15:6;33:24; 33:8,11;38:25;39:5; 11;96:6;100:10;104:1,5, members (5) 5:17,20;16:3,7;24:15; 41:14;72:17;73:4;94:4; 72:8,20;78:10;79:6,8,14, 8 15:1,8;19:17;41:12; 41:1;58:22;60:5;89:3,4, 95:16,17 16;80:14;102:7,7 matter (12) 53:4 5;104:13 needed (7) objecting (2) 30:7;49:10;51:16,16; membership (1) months (6) 14:24;16:16;40:25; 13:9;64:6 53:6,7;88:12,14;93:18; 53:18 9:22,24;12:1;15:24; 45:6;87:8;96:13,13 objection (23) 94:8;95:16;97:9 memory (1) 16:8;102:8 needs (4) 5:3;7:21;9:14;20:17; matters (4) 65:9 more (13) 21:23;47:20;94:6; 26:10;33:4;39:10;49:18, 12:21;24:13;25:17; mention (2) 5:1,19;10:6;13:2; 95:25 20;50:7,23;51:15;53:4; 88:19 11:8;40:6 19:21;28:21,22;58:24, negotiate (2) 54:6,12,13;73:21,24; maxims (1) mentioned (3) 25;60:16;94:12,13; 40:1,9 78:15;81:1,10;84:19; 95:13 5:13;20:15;24:1 96:12 negotiated (6) 101:16 may (50) merely (2) moreover (1) 11:15;14:18;35:7,10, objections (3) 4:12,13,15,16,17;5:23; 26:24;96:10 80:16 11,21 7:12,25;8:8 6:22;9:11;23:12;25:20; merits (1) morning (6) negotiations (3) obtain (1) 32:17;34:13;36:3,5,21, 5:6 3:6,9,10;20:13;92:6; 35:16;50:24;100:16 80:17 24,24;40:6,7,20;41:22; mess (4) 99:5 neighborhood (1) obtained (2) 42:10;44:6;47:25;48:18; 16:6;29:3,3,14 most (4) 8:13 15:4;89:17 55:13;56:14,16,23; messy (1) 30:22;50:13;53:16; net (4) obtains (1) 58:16;67:19;68:5,10; 104:22 90:13 24:17;76:24;77:3,5 76:22 70:9;71:25;73:18;74:21; might (8) motion (24) next (7) obviate (1) 78:12,17,24;79:20;80:3; 5:19;15:12;16:19; 4:23;5:4;7:15,18,19; 15:24;24:11;30:1; 62:23 81:13,14;82:25;89:12, 59:9;65:17;69:23;97:24, 8:21;9:4;21:19;22:1; 56:16;67:17;70:9; obviously (2) 22;91:5;98:16;102:16 25 24:2;25:21;26:12;27:12; 104:24 13:18;65:24 maybe (12) Mike (2) 29:2;31:2;55:25;62:18, nice (1) occupation (1) 19:5;29:5;62:11; 3:14;4:7 21;72:1;76:9;83:1; 10:20 90:11 65:10,24,24;93:14; million (10) 99:20,22;103:14 night (2) occur (2) 95:22,22;100:12,17; 8:14;10:15;28:7,8,9; move (5) 89:19;95:20 14:17;46:6 101:14 77:6,7,23;78:1,4 31:5;34:5;35:4;36:19; nineteen (1) occurred (1) meal (1) million-dollar (2) 96:8 96:24 101:25

Min-U-Script® eScribers, LLC | (973) 406-2250 (9) lot - occurred operations@escribers.net | www.escribers.net SUPP APP 0848 PASTAZIOS PIZZA, INC. Case No. 14-34324-HDH-11 November 3, 2015

October (5) 81:24 19,20;41:21;44:3;57:7,7, 86:8 23:5,6;25:15;26:4,5,9, 6:15;8:18,20;61:25; options (1) 17,22;58:7;67:23;68:20; Pause (3) 13,15,17,21,22;27:25; 62:5 13:25 69:25;70:9;71:3,4,18; 33:14,25;83:20 28:14;29:2,6;30:14; off (6) oral (1) 72:14,15;82:13,21;84:1;pay (3) 34:22;35:1,6;36:12; 16:12,12;18:21;43:8; 4:23 86:2 19:2;24:17;30:4 38:1;39:24;40:2;41:1; 98:12,13 order (27) pages (1) paying (2) 43:8;58:13;60:13;65:14; offense (1) 5:18;6:23;7:3;10:4; 37:24 18:24;30:10 66:4,13;67:7;79:2,17,21; 56:20 13:20;16:15;17:2;20:2; pagination (2) payment (1) 82:8,9;88:12,14,19; offer (6) 22:4,8;25:20;27:8;41:2, 41:17;57:13 30:1 92:17;95:11,19;96:1,2,7, 50:19;51:8,13,20,22; 8;45:24;46:3;64:3; paid (8) payments (1) 10,11;97:17,20;99:18, 64:9 65:13;83:1;96:18;98:4, 6:25;19:1,4;20:9; 19:3 22;100:14,17;101:20,24; offering (1) 4,5,15,17,20;102:24 66:18;76:25;95:8;101:4 people (8) 102:1,2,5,9;103:12,13; 96:3 ordered (1) palatable (1) 21:21;54:4;85:11; 104:5 office (2) 11:5 13:25 93:25;95:11,16,21;99:16 plans (3) 37:4,11 orders (1) papers (3) per (2) 11:20;101:17;104:7 often (1) 98:23 19:12;82:18;83:8 35:18;91:12 play (1) 67:12 originally (2) parade (1) percent (3) 29:19 old (1) 17:22;35:3 93:24 7:10;76:22;97:4 played (1) 29:17 others (1) Paragraph (2) percentage (3) 30:20 omissions (1) 31:18 66:20;67:20 28:2;76:25;77:2 pleading (1) 104:5 otherwise (2) Pardon (4) perfect (2) 30:22 once (8) 13:14;22:16 52:4;70:24;81:5;84:7 104:2,2 pleadings (1) 7:6;19:5;23:4,24;25:5; out (25) part (6) perform (3) 55:23 29:23;77:23;101:24 6:13;17:18,20;19:4; 27:17;28:15;36:12; 23:13;86:15;89:10 please (12) one (66) 21:13;25:13;28:18;31:4, 57:20;93:16,20 performance (2) 11:20;32:12;34:18; 7:3;11:19;12:9,14; 8;32:1;33:22;35:5; participant (2) 93:20;95:15 36:7,10;37:21;41:24; 14:6;15:11,13;16:20; 41:18,18;42:23;54:24; 15:20;17:8 performed (1) 48:10;57:4;86:4;92:6,8 17:2,17,17,19,20,21,21; 66:12;72:2;89:13,20; participate (4) 86:17 pm (1) 19:6;24:24;25:13,18; 92:12;98:2,25;100:16; 8:19;39:20;99:21; permission (1) 92:4 27:13;28:25;31:8,9,25; 102:8 105:1 22:6 point (29) 41:11;43:7,8,23,24;47:7; outside (1) participated (1) person (10) 15:6,10,13,19;25:13, 55:1,5;60:8;61:10,13; 81:2 17:11 7:3,4;16:4;22:2,3; 18;32:3;36:23;39:5,6; 63:1;65:11,16;68:19; over (18) particular (7) 42:6,8;79:13,15;92:19 41:13;42:5,11;52:14,18; 69:9;70:2;72:4;74:8; 8:9;16:7;18:14,19; 27:25;46:11;55:10; personal (1) 54:9;60:6,18;67:16; 77:16;78:18;79:14,25; 19:11,16;21:7;23:21; 64:21;66:18;99:14; 97:19 71:6;92:12;98:3,20; 83:9;84:6,8;87:13; 24:11,25;28:25;32:13; 100:7 personally (3) 99:9;102:3,18;103:9,25; 88:17;89:14;93:10,23; 40:13;41:20;67:22;70:9; parties (13) 7:9;16:3;49:7 104:10 94:2,3,11,16,17;99:8,9, 71:1;90:20 3:25;11:20;12:22,23; persons (2) pointing (1) 25,25;101:10;103:19 overruled (11) 14:1,5;21:7;85:15; 17:12,13 69:13 one-member (1) 4:10;30:8;33:13;51:5; 93:21;96:11;97:8; perspective (1) points (3) 45:18 53:8;54:15;72:10;74:8, 101:17;102:6 22:24 14:10;80:25;103:18 ones (1) 21,21;76:10 parties-in-interest (2) ph (1) point-something (1) 101:20 overruling (2) 4:11;28:23 69:23 96:24 only (16) 31:2;34:3 parties-of-interest (2) phone (4) policy (8) 9:3;12:9;20:22;25:21; overseeing (2) 26:6,6 32:22;40:24;58:24,25 9:23;10:24;20:23,24; 27:12;40:7;73:8;79:14, 22:23;28:16 partner (2) phrased (1) 23:16;46:21;51:20; 15,15;95:18;99:19,22; oversight (7) 4:7,8 11:19 103:5 100:19;102:23;104:14 22:18;26:1;27:19; parts (2) pick (2) position (5) opened (1) 67:3;71:20;82:5;98:8 57:18,19 55:5;99:12 14:11;54:24;92:13; 73:15 owe (1) party (2) piece (2) 94:1;97:19 opening (4) 55:9 56:9;79:5 77:6;80:17 positive (1) 50:15;99:25;100:1,21 own (4) pass (4) Pizza (6) 80:1 opinion (1) 15:7;16:18;47:12; 42:16;52:25;63:22; 3:1;7:16;18:21;34:21; possibly (1) 93:18 95:20 90:2 36:13;46:13 95:4 opportunity (1) owned (1) past (2) plain (1) post-confirmation (4) 39:7 7:17 102:22,24 102:16 20:7;57:2;67:12;96:8 oppose (1) Pastazios (10) plan (93) post-date (1) 14:22 P 3:1;7:16;8:13,14; 5:10,11,12,18;6:23; 95:21 opposed (1) 34:21;35:13;36:13; 7:1;9:13,14,21,25;10:24, posture (1) 41:12 page (39) 54:23;103:6,6 24;12:11;13:9,23;14:11, 9:10 opposition (1) 23:7,9,21;24:11,11; path (1) 13;15:23;16:1;17:22; potential (1) 7:18 25:15,15;36:10;37:13, 93:24 18:22;19:2,5;20:17,21, 28:13 option (1) 18,22;38:1,2,2,5,10,18, patience (1) 25;21:20;22:4,7,13,20; potentially (3)

Min-U-Script® eScribers, LLC | (973) 406-2250 (10) October - potentially operations@escribers.net | www.escribers.net SUPP APP 0849 PASTAZIOS PIZZA, INC. Case No. 14-34324-HDH-11 November 3, 2015

14:25;15:9;27:24 74:1;76:17 providing (1) 98:8,11 89:16 power (1) privileged (1) 97:2 raped (1) record (9) 23:12 59:16 provision (4) 29:20 12:21,21;34:9,18; powers (2) probably (10) 24:21;45:6;67:10; rather (3) 48:13,17;55:20;57:1; 23:10;86:25 16:8;24:24;43:4;52:9; 104:11 40:19;48:11;104:22 90:10 PPI (1) 79:25,25;94:16;98:7; provisions (13) reached (4) recoveries (1) 50:12 100:15;104:25 3:4;12:2;22:4,7;24:18; 8:25;59:20;83:13; 77:3 practice (3) problem (6) 26:16,24;27:17;69:3,10; 85:15 recovery (3) 32:14;34:10;48:14 7:21;27:3;29:23; 70:21;81:22;102:12 read (9) 28:2;76:22;77:1 preclusion (1) 100:6,6,20 public (1) 22:1;54:11;66:12; RECROSS-EXAMINATION (1) 3:24 problems (5) 12:21 71:11,17;72:2;86:25; 90:6 pre-date (1) 7:12;8:8;19:19;41:16; pull (2) 88:9;100:11 REDIRECT (3) 95:21 100:7 30:21;43:7 reading (2) 47:9;55:18;85:1 predating (1) procedurally (1) pulled (1) 19:12;103:11 reemphasize (1) 6:9 9:10 29:24 ready (1) 100:21 pre-engineered (1) proceed (3) purportedly (1) 78:13 reference (3) 10:11 3:21;4:12;98:21 31:11 real (6) 21:25;26:4;99:19 preferred (3) proceeding (5) purpose (3) 27:12;53:9;101:13,13, references (1) 81:21;82:2,4 12:15;59:2;61:12; 15:20;35:16;95:15 14,14 25:24 prejudice (15) 94:15;97:3 purposes (1) realized (1) referring (1) 13:10;15:1;47:18; proceedings (2) 89:13 100:11 55:4 93:3;94:24,24;95:2,4,5, 7:7;105:7 pursuant (5) really (31) reflect (1) 6,6,10,10;97:24;98:2 proceeds (2) 7:3;51:12;56:3;73:3; 3:25,25;4:22;6:15; 65:17 prejudiced (3) 28:8;77:5 99:17 9:17;10:6;11:16;13:16; refresh (2) 52:20;94:25;95:4 process (2) pursue (1) 16:5;17:5,11;18:16; 65:19,21 present (6) 9:19;82:15 46:15 19:5,12,13;20:3;21:14; refreshed (1) 3:7;37:2;80:8;81:11; product (2) Put (7) 29:20;35:18,19,20; 64:11 85:5,7 72:22;73:14 13:14;29:17;33:17; 47:19;52:14;54:4,24; refused (1) presented (4) proffer (1) 37:12,13;97:8;98:10 77:16;93:10;97:13;98:9; 9:24 43:10,14,18;100:22 32:10 100:1,2 regard (1) pressing (1) progressing (1) Q reason (14) 72:1 60:16 61:22 8:22;30:9;41:15; regarding (2) pretty (3) proof (1) quandary (1) 43:12,23;46:5;56:5; 8:16;62:10 41:17;45:10;102:3 20:20 14:17 59:22,23;63:17;93:6,20; regards (3) previous (1) proofs (1) quest (1) 95:18;102:1 23:3;25:11;72:13 99:11 64:6 21:21 reasonably (1) relate (3) previously (1) proper (1) quick (1) 89:12 27:18;72:3;87:1 14:15 77:3 53:9 reasons (2) related (6) prim (1) properly (5) quickly (2) 24:24;93:9 22:5;25:17;54:1;87:5; 81:25 21:18;27:5,8;63:3; 19:9;48:25 recall (15) 88:12,14 primarily (7) 101:15 quit (1) 9:11;15:23;39:22; relates (1) 18:17;20:7;28:3;35:2, proposal (2) 30:10 40:4,6;44:4,7;48:5;50:1; 23:24 12;46:23;53:12 22:21;85:21 quite (9) 53:25;57:18;59:14; relating (6) primary (7) proposed (1) 5:20;21:1,3,17,19; 75:21;86:4;99:7 22:8;25:5;81:22;84:2, 17:12,13;18:15;40:23; 100:14 26:8;29:4;83:18;93:9 receive (2) 2;88:19 46:19,19;90:10 prosecute (1) quote (1) 76:21,25 relations (1) principal (1) 94:7 26:10 received (4) 10:17 15:13 protect (2) quoting (1) 32:7;56:3;68:4;84:20 relevance (11) principles (1) 15:7;94:21 22:3 receives (2) 5:5;8:22;30:7;51:19; 95:14 protection (2) 77:9,24 76:9;80:15,20;81:2,4,6, printed (4) 23:17;27:17 R recently (1) 10 41:18,18;42:23;43:8 protections (1) 15:17 relevant (3) prior (26) 27:18 raise (2) receptive (1) 51:4,17;53:6 23:11,12,19,22;24:11, provide (5) 53:3;96:4 59:13 reliance (1) 14,16;35:12;59:15;64:9, 6:23;7:1;20:24;23:17; raised (6) recess (3) 93:3 12,15;66:2;68:12;69:11, 27:17 5:3,5;9:8;13:7;28:20; 92:1,4;105:4 relied (6) 20;70:3,5,11;73:25; provided (7) 61:9 recitation (1) 26:7;54:10;92:16,17, 86:14,24;87:23;88:11; 6:14;18:13;22:11,16, raises (4) 14:9 17;103:23 89:2,6 18;62:25;71:13 21:15;26:17;29:6; recognize (2) relief (8) private (1) provides (11) 100:22 36:9;57:5 5:4;14:10;15:15; 4:8 17:21;22:15;24:8,22; ramifications (1) recollection (10) 80:15;81:21;82:2,4;95:5 privilege (7) 25:11;27:18,19;70:5; 78:11 44:6;59:5;62:7;65:19, rely (5) 72:22;73:9,14,17,21; 71:6,8;82:25 rape (2) 22;66:1;67:4,18;68:16; 24:4;102:6,7,7,19

Min-U-Script® eScribers, LLC | (973) 406-2250 (11) power - rely operations@escribers.net | www.escribers.net SUPP APP 0850 PASTAZIOS PIZZA, INC. Case No. 14-34324-HDH-11 November 3, 2015

remember (9) responded (1) 37:2,5,7;38:14;91:14 20:19 76:21;84:23;85:3;90:8; 5:19,20;17:1;18:22; 51:23 rooted (2) scheduled (2) 91:5;95:19;98:6,22,23, 23:15;56:7;64:11;69:6; response (5) 94:8,23 14:12;20:18 23;101:1,6,10,11;104:11 83:18 24:2;27:22;33:3; rubberstamped (1) scheduling (1) Seidel's (2) remembered (1) 81:20;84:15 10:10 49:10 41:22;47:19 40:11 responsibility (4) Rukavina (82) scope (1) send (2) remembering (1) 80:2;100:13;101:6,7 3:1,3,6;4:13,21;6:1; 56:11 30:13;64:12 41:21 responsible (10) 29:10;31:1,4,9,12,14,18, Scott (7) sending (1) removal (2) 18:20,24;19:7;30:24; 19,22;32:9,21,25;33:2,5, 3:7;4:2;98:6,22,22,23; 30:12 25:19;82:24 42:6,8;53:12;64:6; 16,20,22;34:6,17;36:3, 101:1 sense (4) remove (3) 87:14,15 19,23;39:15,16;42:16; screaming (1) 65:10;75:13;77:22; 82:17;83:6,8 rest (1) 47:6,7,10,23;48:4,8,19, 103:22 89:23 removed (3) 44:14 24;50:25;51:7,18;52:25; se (1) sent (7) 25:20;82:16,25 restate (1) 55:17,19;56:12,17,25; 35:18 6:1,2;8:17;26:5;40:20; rent (1) 74:3 63:22;69:14,23;70:1; seat (1) 44:2;57:23 93:23 restaurant (1) 72:8,20;73:7,13,24;74:7, 97:21 sentence (4) renting (1) 46:13 20;76:8,16;78:9;80:14; seated (4) 22:15;67:1;82:13,14 3:3 result (2) 81:1,10;84:11,12,25; 48:18;56:23;92:6,8 separate (1) reorganization (6) 27:24;50:10 85:2;90:2;91:7,19,20; second (6) 58:8 20:25;22:14;26:5,9; resulting (1) 92:9,11;96:17,20,24; 12:5,20;33:7;57:21; serious (1) 66:4;101:17 47:18 103:16,18;104:25;105:3 68:20;69:9 92:22 repeat (5) results (2) Rukavina's (1) secondly (2) seriously (1) 52:3;55:6;74:23; 26:14;28:8 90:4 25:9;27:15 9:9 77:16;78:19 retain (5) rule (5) Section (18) serve (1) repeating (1) 6:23;19:8,16;87:9; 3:24;34:2;81:3;93:18, 22:15;23:10;24:25; 15:6 73:2 96:21 18 25:16,20;26:23;27:16; served (1) rephrase (3) retained (7) Rules (4) 66:20;69:7;71:2;72:13; 9:12 44:10;45:13;77:25 49:15,24;60:18;61:3, 33:10;76:18;94:9; 73:3;82:8,13,19;83:21; serving (1) replacement (1) 16;94:25;95:1 103:8 84:1;86:4 10:18 49:24 retaining (4) ruling (2) Sections (6) set (5) report (1) 49:21;50:8;52:21,21 84:13;104:24 25:2;70:2;71:15,20, 18:22;22:16;26:12; 62:15 retention (2) run (3) 23;72:2 50:13;104:25 represent (4) 8:3;61:15 14:24;18:19;33:22 seed (3) settle (19) 9:3;42:12;64:18;88:18 reurge (1) running (1) 5:17;40:25;58:22 23:23;24:5,9;27:19; represented (7) 34:1 18:21 seeing (1) 50:19;51:8,9,20;70:10, 6:5;15:12;26:21;27:6; review (4) runs (1) 67:4 18;72:18;73:23;74:5,19, 48:25;64:24;101:11 66:3,6,8;68:21 17:18 seek (7) 25;87:22;88:2;102:14, representing (2) reviewed (2) 13:8;59:9;76:7,12; 15 49:3;59:18 67:15,16 S 87:11;90:21;94:2 settled (2) represents (1) revoke (1) seeking (8) 87:25;88:4 101:25 102:23 sailed (1) 5:4;11:17;26:24;27:2; settlement (12) request (1) rid (1) 98:16 28:23;52:22;80:16; 8:24;11:11;25:4; 34:1 12:25 sale (1) 81:21 50:23;51:6;54:2,7;73:5; require (1) ridiculous (2) 89:11 seeks (2) 74:9,10;75:2;102:14 24:19 30:22,25 sales (1) 14:10;15:16 sev (1) required (3) right (41) 58:4 seem (1) 70:20 5:17;14:1;69:3 4:10,19;9:14;13:8,10; Sam (3) 67:10 seven (1) requires (1) 15:17;17:25;18:1;19:5; 12:6;15:12;59:14 seemed (2) 102:8 70:3 28:1;31:18,24;32:12,15; same (9) 19:18;66:14 severably (1) requiring (1) 34:5,11;37:20;38:6,24; 4:19;22:6;53:3,4,6; seems (1) 50:12 96:11 39:11;44:20,22;45:4,17, 58:3;74:7;85:21;95:11 78:23 several (2) resignation (1) 23,25;47:14;58:15,17; sat (1) sees (1) 5:16;69:3 82:22 66:23;68:5,9,11;79:7; 93:10 26:2 sexual (1) resolve (2) 85:12,16;87:19;91:9; satisfied (1) Seidel (65) 10:16 14:19,20 92:1;93:24;97:11 85:25 3:7,7;4:2;5:19;6:2,2,3; shaking (1) resort (1) rights (8) saw (3) 7:11;8:2;10:1;11:14,16, 17:24 11:17 15:1;23:14;86:15,17; 17:21;66:12;104:15 19;13:14,22;16:7,11,12, shall (5) respect (4) 88:20;96:2;97:25;98:2 saying (11) 17,17;18:18;19:24; 19:16;22:17;32:21; 5:5;58:18;60:1;88:18 rise (3) 10:10;12:24;27:11; 36:15,17;38:14,17;39:5, 71:14;96:20 respectively (1) 92:3,5;105:6 28:19;54:3;59:25;85:19; 6,7,9;40:21,24;41:4,13, sham (3) 6:5 role (4) 94:11;95:16;96:13; 21;42:4,4,12;44:2,15; 9:25;10:24;13:24 respond (2) 15:2;34:19;79:19,24 98:10 49:12,15,20,24;56:18, Shank (1) 29:25;30:1 room (5) schedule (1) 18,21;64:2;65:6;74:4; 3:15

Min-U-Script® eScribers, LLC | (973) 406-2250 (12) remember - Shank operations@escribers.net | www.escribers.net SUPP APP 0851 PASTAZIOS PIZZA, INC. Case No. 14-34324-HDH-11 November 3, 2015

shape (4) smaller (2) 3:20;12:17;93:3;95:3, subsequently (2) 64:23 63:9,19;93:11;94:25 18:23;19:2 3 7:2;15:3 talking (1) Sharp (3) smoking (1) start (1) substantially (5) 69:13 26:10;101:23;102:2 13:17 49:3 26:15,18,21,22;101:24 talks (1) ship (1) sneak (1) started (3) substitute (4) 23:9 98:16 95:20 3:23;19:11,12 7:15,16,19;56:1 tall (1) shocking (1) sole (5) starting (2) suddenly (1) 90:4 10:7 21:10;28:1;79:5,12,12 24:25;25:16 93:23 targeted (1) shortly (2) solely (1) state (34) sue (2) 5:4 16:4;40:23 44:2 4:9;7:5,9,22,22;8:10; 24:12;88:11 Technically (1) shot (2) Solis (17) 10:22;14:16,16;15:4; sued (1) 8:1 12:12,12 5:6;7:6,16,19;9:8; 28:17;32:15;34:9,10,18; 88:13 telling (1) showed (1) 11:2,3,6,7;13:16;15:5; 38:2;48:14;49:1,9,23; suggest (5) 62:15 30:11 55:21;80:18;81:12;93:7, 50:6,12;53:23;55:2; 12:14,16;21:5;94:8; temporary (1) showing (1) 14;104:23 58:13;59:2,3;60:1,3,18; 103:23 39:8 30:12 Solis' (2) 64:9,13;80:23;94:4 suggested (1) ten (6) Shults (4) 30:23;98:14 statement (4) 99:10 91:12,14,18,18,22; 7:17,18;13:9;103:20 somebody (2) 9:13;99:25;100:1; suggesting (2) 92:10 side (3) 90:13;98:5 102:4 21:21;104:2 term (7) 91:12,13,15 somebody's (1) states (2) summer (1) 22:19,20,25;35:20; sig (1) 46:15 67:1;71:13 56:9 76:24;77:3;96:6 67:25 somehow (10) status (1) summer's (1) terms (19) sign (11) 9:25;10:2,12,13,14,15, 64:4 61:22 16:5,21;19:21;20:21; 16:12;36:14;37:11; 25;12:13;92:25;98:12 stay (2) supervising (1) 21:6,8,20;23:3,4;27:16; 39:6;42:24;44:17,20; someone (3) 7:7;14:15 98:22 41:3;45:7;73:3;74:17; 57:8,10;68:3;100:25 22:25;27:4;61:13 stayed (1) suppose (1) 75:3,5;99:18;100:10; signatories (1) sometime (1) 98:2 98:12 102:9 101:8 65:25 steamrolling (1) supposed (3) testified (4) signature (19) somewhere (3) 61:12 8:2;23:2;58:21 60:19;75:7;79:16; 36:10;37:18,18;38:2, 21:13;97:7;101:12 step (6) sure (30) 101:10 2,18,19,20;41:21,22; soon (1) 47:25;56:14;60:8; 19:1;20:8;21:14;23:1; testify (2) 44:3;57:7,8,17,22,22; 50:5 79:17;91:5;101:10 27:14;32:23;40:15; 74:21;84:23 58:7;67:25;68:20 sooner (1) step-by-step (1) 41:25;42:9,21,22;43:2, testifying (1) signed (41) 62:21 104:12 25;45:11,14;46:2,4,17; 56:19 5:24,25;6:2,16,17,18; sorry (11) still (8) 47:2,8;64:14;65:18; testimony (2) 9:6;16:12;36:17;37:3,4, 16:23;31:16;34:4; 5:25;29:21;42:1,2; 67:14;78:9,23;82:3; 13:15;32:10 4,12;38:14;39:8;40:20; 43:14;59:6;72:14;74:23; 43:2;97:16,17;99:5 85:10;100:14,18;104:23 Texas (5) 41:14,14,19;42:3;43:5, 76:11;78:19;90:4;99:5 stipulate (2) Surety (3) 32:15;33:10;34:10; 11,15,19,20,21,24;44:11, sort (2) 31:7;32:4 3:11;4:1;20:14 48:14;76:18 18,22;57:10,11;58:5; 19:6;40:25 stocked (1) surprised (1) thanks (1) 65:21;68:10,23;70:21; sought (2) 3:4 19:12 20:11 79:22;84:24;94:19; 76:5,5 stood (1) Sustain (1) That'd (1) 100:9 sounds (3) 9:14 33:4 91:13 significant (7) 12:17;68:9,11 stop (1) Sustained (6) thereafter (4) 17:6;21:6,16;24:6,18; speak (5) 59:3 51:19;54:8;73:20,20; 8:16;14:20;19:9;62:2 25:14;26:8 86:10,12,20,23;88:10 stopped (1) 81:4,6 There'd (1) signing (3) speakers (1) 37:11 swear (2) 56:7 37:9;39:9;68:21 99:11 Stowers (4) 34:8;56:19 third (1) simple (1) specifically (2) 8:17;51:1,11,12 swim (1) 13:5 45:10 67:1;71:20 straightforward (1) 66:15 thirty (1) sit (9) spent (1) 19:22 sworn (1) 58:1 13:21;44:1;52:1,7,10; 15:24 stranger (1) 56:22 thirty-minute (1) 54:5;93:13;94:3;95:20 split (1) 95:23 99:6 situation (2) 18:23 strict (1) T Thomas (2) 11:16;93:19 spoke (1) 76:18 3:6;32:10 size (2) 12:5 stuff (1) TAB (1) though (10) 77:13,18 stamp (6) 31:4 98:22 10:16,17,18,19,20; slightly (1) 38:8,12;43:6,15,16; subject (8) tad (1) 33:17;56:20;74:17;81:8; 70:16 57:21 3:21;14:2;19:15; 103:2 91:25 smacks (2) stand (4) 22:17;28:18;51:16;67:2; talk (2) thought (12) 103:2,10 13:14;32:17;33:17; 81:2 16:10;39:7 17:7;19:20;21:9,12; small (1) 64:11 subsequent (1) talked (4) 27:4;68:5;75:16;85:11; 47:3 standing (5) 13:15 16:11;42:14;53:22; 99:16;101:6,11;104:5

Min-U-Script® eScribers, LLC | (973) 406-2250 (13) shape - thought operations@escribers.net | www.escribers.net SUPP APP 0852 PASTAZIOS PIZZA, INC. Case No. 14-34324-HDH-11 November 3, 2015

Thousands (2) 10:2 27:6,7,13,20,25;28:9,22; 77:3;89:7 58:6;63:18 tried (5) 35:5;41:4,10;42:4,7,8; U used (2) threat (1) 14:16;40:9;49:5,6; 45:2;47:20;50:8;52:21; 51:3;89:7 93:13 80:5 56:6,17,19;57:1;58:2,18, ultimately (4) utterly (2) three (9) true (7) 21;62:10;63:17;64:2,6; 8:10,17;26:7;28:17 11:8,9 8:9;12:14;30:1;46:23, 43:10,17;54:21;76:21; 65:8;66:3,3,25;67:2; Um-hum (2) 25;80:9;97:14;103:18; 77:13,18;80:23 71:8,14;79:5,19,24;80:3; 4:10;37:17 V 104:10 trust (294) 82:6,16,25;83:6;90:12; unanimous (4) three-day (1) 5:11,12,24;7:1,2,16, 91:3;94:1,2,3,5,19,21; 25:22,23;83:2,3 valid (1) 29:18 24;8:1,2;9:23;11:13,15, 95:6,7;96:20;98:6,16,18; uncertainty (1) 80:24 threw (2) 22,25;12:3,7,11,23;13:1, 99:20;100:4,9;101:18, 18:9 value (2) 31:8,25 3,11,21;14:13,18,23,24, 22;102:13;103:15; under (21) 28:4,5 thus (2) 25;15:2,7,9,18,19;16:10, 104:17 14:13;20:21;23:14; various (1) 98:21,25 12,13,20,22;17:13,14; trustee's (15) 26:1,23;27:16;28:14,19; 80:11 till (2) 18:3,4,5,13,15,16,20,25; 6:8;14:9;24:2;28:11, 33:10;45:24;69:12; vendors (2) 14:17;98:21 19:4,4,14,15,17,17,17, 25;32:7;37:21;52:13; 70:16;75:3,5;82:15; 46:24,25 times (2) 21,22;20:22;21:4,10,15, 66:19,22;67:21;84:21; 86:15,17;93:13;100:14; verdict (2) 80:11;96:1 18,22;22:5,5,8,9,17,18, 93:12;94:19;101:5 102:10,12 49:6;50:11 tiny (1) 19,21,22,23;23:3,11,13, trusts (1) underlying (2) version (1) 97:1 14,16,19,22;24:12,14,16, 42:7 3:18;4:8 10:22 today (14) 19,22,23,23,25;25:3,8,9, truth (1) underpinning (1) victim (2) 3:14;4:24;5:2;11:1,10; 11,12,16,17,21,23,25; 50:17 9:7 98:8,11 12:15;13:12;52:10;72:1; 26:3,3,14;27:6,15,25; try (14) understood (2) view (1) 88:23;91:21;93:6;95:5; 28:3,6,9,10,14,15,24; 5:2;11:1;13:15;24:5; 6:12;73:4 29:1 100:16 29:5;31:10;34:23;35:6, 27:8;40:1;50:4;77:2; underwear (1) viewed (2) together (1) 7,17,18,21;36:11;37:14, 86:7,7;90:25;92:9; 10:21 19:6;42:6 49:15 15;38:10;39:13,24;40:2, 102:25;104:24 unfair (1) violate (2) told (3) 13,22;41:1,1,3,14,14,19, trying (10) 103:2 104:18,18 16:19;61:20;96:11 20;42:5,7;44:23;45:9,9, 5:16;20:8;26:12; unfortunately (1) violated (1) Tom (1) 15;46:5,14,20;47:11; 40:24;46:1;60:3,4; 8:24 104:11 48:17 50:4;52:1,7,10,22;53:18, 62:22;64:11;83:18 unsecured (3) visited (1) Took (7) 24;54:10,12;57:2,20; turn (7) 12:5;19:2;20:9 73:10 66:5,7,9,10;86:4; 58:13,19,21;59:18; 36:7;37:21;57:4,7; unsecureds (3) visiting (2) 89:20;94:21 60:11,22;61:4,4,5;63:3, 67:20,22;71:1 18:23,24,25 81:16,18 top (9) 6,10,20;64:19,22,25; turning (1) unsigned (1) voice (1) 23:7;25:1;37:16;38:2, 66:8,13,24;67:2,3,7,8,18, 70:9 6:19 50:7 7,11;43:6,22;57:21 22;68:19,21,23,24;69:3, twelve (2) unusual (4) voiced (1) tort (1) 4,7,7,11,21,22;70:3,6; 91:24,24 58:7;66:14,16;67:10 49:20 7:24 71:4,9,21;72:2,3,17; twenty (9) up (30) void (2) towards (1) 73:5;74:5,15,17,18,22, 8:14;10:15;28:7,8; 4:19;7:6;8:7,23;11:7, 22:6,9 61:12 24,25;75:9,12,15,18,20, 50:11;77:6,23,25;78:4 13;12:16,20,25;13:6; voids (1) track (1) 23,23;76:22;77:5,9,13, twenty- (2) 15:2;16:5;18:22;19:11; 10:24 23:1 15,19,21,24,24;78:3,7,7, 63:17;99:6 21:18;26:12,25;29:17; voir (3) trade (2) 21,21;79:2,22;80:4; twenty-five (2) 30:12;33:19;53:23; 36:22,25;38:22 46:24,25 81:22;82:5,19;83:2,3,5, 58:1,5 59:24;71:12;81:16; volunteering (1) transcript (1) 10,10,17;84:20;85:12; twice (1) 97:21;98:21;100:4; 60:8 54:11 86:3,10,12,14,16,18,24; 97:14 103:1,10;104:25 vote (5) transfer (1) 87:8,11,16,18,24;88:3, two (25) update (1) 25:22,23;83:2,3;102:6 9:23 10,11,20;89:2,3,6,13; 3:25;8:9,20;10:8; 4:22 transferred (1) 90:17,18;92:17,18,20; 11:19;16:8;18:23;19:13; upon (24) W 20:22 93:4;95:2,17;97:21,23, 37:24;46:24,25;51:10; 21:8;24:3,4;25:21,22; Trey (4) 24;98:11,24;99:10,13, 57:4,18,19;68:13,16; 26:7;27:1,10,14;28:2; wait (4) 4:2;48:10,19,21 14,17,19,23,23;100:8,8, 71:20,23;79:25;97:1; 54:10;74:17;77:14,20; 9:5;39:5,7;103:19 tri (1) 9,12,15,24;101:2,15; 99:11;100:19;101:8; 79:16,18;83:1,2;86:16, waive (1) 50:22 102:12,13;104:11,16 103:25 18;102:6,15,19;103:11 26:24 trial (29) trustee (104) type (1) ups (1) waived (4) 7:5;8:7,9,10;14:16; 3:25;4:1;5:15;6:7,9,9, 59:13 97:11 12:2,8;15:17;96:6 29:18;49:8,24;50:1,10, 21,22,23;7:8,23;9:2,24; types (1) upstairs (1) waiver (1) 20;51:4,8,9;53:23;56:9; 10:12,25;14:21,21; 45:7 104:23 95:15 59:4,24;60:1,10,18;64:9, 15:15;16:14,17;18:19; typically (1) USC (1) waives (1) 12,16,17;80:8;94:5,15; 19:6,17,25;20:1;21:18, 90:24 9:20 47:17 103:10 25;22:17,21,23;23:1,10, use (5) waiving (2) trick (1) 12,20,23;25:1,19,20,25; 10:10;13:16;24:17; 3:22;96:7

Min-U-Script® eScribers, LLC | (973) 406-2250 (14) Thousands - waiving operations@escribers.net | www.escribers.net SUPP APP 0853 PASTAZIOS PIZZA, INC. Case No. 14-34324-HDH-11 November 3, 2015

wants (5) 11:9;32:17;34:13; 13:13;15:14;29:10; 47:21;52:16;56:8;59:16; Z 82:17;94:3 60:6,13;62:2,12,15;63:7; war (2) 73:9,16;74:1,5,25;85:19, zero (10) 11:12,12 19;98:8;100:10;102:14, 9:19,20;28:10,10,11; wasted (2) 14;104:16 77:9,10;78:6,12,20 24:6;102:17 witness (31) water (1) 3:24;4:1;31:3,20; 66:15 32:17,20;33:9,11,24; way (20) 34:6,13;36:3;39:9,11; 10:14;12:20;13:5; 42:16;47:8;48:2,3; 15:16;18:13,22;22:1; 52:25;53:5;56:15,16,22; 25:10;31:5;42:7;51:18; 63:23;65:15;73:1,8,19; 56:8;60:9;63:9,19;77:8; 78:17;90:2;91:6 79:2;93:11;94:17,25 witnessed (1) ways (2) 37:9 11:19;12:15 word (3) week (2) 10:11;41:18;42:24 20:15;100:19 words (3) weeks (3) 6:16;58:13;60:16 5:16;8:15;9:4 work (6) Welcome (4) 35:5;42:7;45:11; 3:8,12,16,19 72:22;73:14;79:3 weren't (2) working (3) 14:20,23 8:6;15:24;16:9 what's (8) world (1) 5:6;21:4;25:7;36:23; 67:12 58:10;89:14;90:10; writ (1) 100:2 93:13 Whereas (2) writing (1) 38:10;43:15 43:22 Whereupon (1) written (2) 105:7 77:8;79:3 whole (5) wrong (1) 13:23;19:24;57:16; 19:6 66:15;103:13 wholeheartedly (2) X 55:12;74:13 wholesale (1) xi (3) 25:14 24:8;70:16;71:18 wholly (1) xix (1) 99:17 24:16 whoops (2) xviii (1) 6:16;104:20 24:14 who's (2) 98:22,22 Y whose (3) 12:2;35:21;95:11 yachts (2) willing (1) 3:2,3 15:20 year (6) winded (1) 5:10,23;6:22;7:8,14; 91:21 55:25 winning (1) years (7) 96:15 29:17,22,24;51:10; wish (1) 58:1;63:18;97:13 11:1 yell (1) wishes (1) 33:22 12:7 Yep (2) withdraw (3) 71:3;82:12 56:12;76:19;80:21 young (2) within (1) 30:18,21 51:20 without (25)

Min-U-Script® eScribers, LLC | (973) 406-2250 (15) wants - zero operations@escribers.net | www.escribers.net SUPP APP 0854 Exhibit 3

SUPP APP 0855 Case 14-34324-hdh11 Doc 150 Filed 11/19/15 Entered 11/19/15 14:23:03 Page 1 of 3

U.S. BANKRUPTCY COURT

NORTHERN DISTRICT OF TEXAS

ENTERED TAWANA C. MARSHALL, CLERK THE DATE OF ENTRY IS ON THE COURT'S DOCKET

The following constitutes the ruling of the court and has the force and effect therein described.

Signed November 19, 2015 United States Bankruptcy Judge ______________________________________________________________________

IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

In re: § § CASE NO. 14-34324-hdh-11 PASTAZIOS PIZZA, INC. § § (Chapter 1) Debtor. § §

ORDER ON TRUSTEE’S MOTION TO CLARIFY

CAME ON FOR HEARING on the 3rd day of November, 2015 the Trustee’s Expedited

Motion to Clarify Trust Agreement (the “Motion”), filed on October 22, 2015 by Scott M. Seidel,

Trustee (the “Trustee”), the trustee of the Pastazios Pizza, Inc. Creditors Trust (the “Trust”),

whereby the Trustee seeks clarification of certain issues arising under the First Amended Plan of

Reorganization Dated February 11, 2015, (the “Plan”), the Order Confirming Debtor’s First

Amended Plan of Reorganization Dated February 11, 2015 (the “Confirmation Order”), and under

the Creditor Trust Agreement for the Pastazios Pizza, Inc. Creditors Trust (the “Trust

Agreement”). By the Motion, the Trustee sought clarification of three terms of the Trust

Agreement; specifically three blanks in the Trust Agreement at the time of confirmation:

ORDER ON TRUSTEE’S MOTION TO CLARIFY—Page 1

SUPP APP 0856 Case 14-34324-hdh11 Doc 150 Filed 11/19/15 Entered 11/19/15 14:23:03 Page 2 of 3

(i) the identification of the Trust Advisory Board; (ii) the identification of the insurance counsel;

and (iii) compensation available to insurance counsel.

Century Surety Company (“Century”) objected to the Motion. The Trustee objected to

Century participating in the hearing for lack of standing. At the hearing, the Court carried the

issue of Century’s standing and proceeded to consider the evidence and Century’s arguments as

though Century had standing to contest the Motion. The Court took the Motion under advisement

and issued its oral findings of fact and conclusions of law on November 10, 2015, which the Court

incorporates into this Order.

Therefore, finding that the Court has jurisdiction over this matter, that all creditors and

parties-in-interest had due and sufficient notice of the Motion, and based on the evidence at said

hearing, the arguments of counsel, and the Court’s findings of fact and conclusions of law as set

forth on the record on November 10, 2015, it is hereby:

ORDERED that Century’s objection to the Motion is OVERRULED for Century’s lack of

standing; it is further

ORDERED that the Motion is GRANTED IN PART to the extent provided for herein, and

is denied to the extent not provided for herein; it is further

ORDERED that, insofar as the single member “Trust Advisory Board” (as defined in the

Trust Agreement) has not been identified to-date, the Trustee may appoint a member to the Trust

Advisory Board pursuant to section 6.4(d) of the Trust Agreement; it is further

ORDERED that the Court hereby denies the Trustee’s request that the Court determine that

the provisions of the Plan and the Trust Agreement relating to the Trust Advisory Board have been

waived and that the Trust Advisory Board no longer exists; it is further

ORDER ON TRUSTEE’S MOTION TO CLARIFY—Page 2

SUPP APP 0857 Case 14-34324-hdh11 Doc 150 Filed 11/19/15 Entered 11/19/15 14:23:03 Page 3 of 3

ORDERED that, pursuant to the Plan, the Confirmation Order, and the terms of the Trust

Agreement, the Trustee has selected Munsch Hardt Kopf & Harr, P.C. (“Munsch Hardt”) to act as

the Trust’s “Insurance Counsel”; it is further

ORDERED that the Court denies the Trustee’s request for the Court to fill in the blank in

Section 9.2 of the Trust Agreement to determine the compensation of the Trust’s Insurance

Counsel, but pursuant to section 10.1 of the Trust Agreement, the blank in section 9.2 of the Trust

Agreement may be filled in by the Trustee and the Trust Advisory Board promptly after naming

the member of the Trust Advisory Board; it is further

ORDERED that the Court reserves jurisdiction concerning this matter and all other matters

concerning the Plan and the Trust that the Court has jurisdiction over, to the maximum extent

possible, and that nothing in this Order shall prevent the Trustee or any other appropriate party

from seeking additional or further clarification or relief as may be appropriate; and it is further

ORDERED that to the extent any relief requested in the Motion is not expressly granted in

this Order, it is denied.

### END OF ORDER ###

ORDER ON TRUSTEE’S MOTION TO CLARIFY—Page 3

SUPP APP 0858 Exhibit 4

SUPP APP 0859 Case 3:13-cv-02553-P Document 50 Filed 08/25/15 Page 1 of 10 PageID 1849

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

CENTURY SURETY COMPANY § § Plaintiff/Counter Defendant, § § v. § CIVIL ACTION NO. 3:13-cv-2553 § PASTAZIOS PIZZA, INC. § CREDITOR TRUST; § AJREDIN “DANNY” DEARI; and § POST PROPERTIES, INC. § § JURY TRIAL DEMANDED Defendants. §

JANE DOE’S UNOPPOSED MOTION TO INTERVENE

TO THE HONORABLE UNITED STATES DISTRICT JUDGE:

Jane Doe1 (“Doe”) moves this Court to intervene as a right and be included as a necessary

party in the above cause pursuant to FED. R. CIV. P. 24(a)(2). In the alternative, Doe seeks

permissive intervention pursuant to FED. R. CIV. P. 24(b)(1)(B) (“Unopposed Motion”). The

grounds for this motion to intervene are as follows and counsel for the other parties are

unopposed to the relief sought:

I. INTRODUCTION AND THE UNDERLYING LITIGATION

Doe is a necessary party to this action as a result of obtaining a Final Judgment on July

25, 2015 in an underlying lawsuit directly related to this declaratory judgment action and

Defendant Pastazios Pizza Inc. Creditor Trust’s counterclaims against its insurer for breach of

contract, bad faith insurance practices, and violations of the Texas Deceptive Trade Practices

Act. As such, this Unopposed Motion to intervene should be granted.

1 Due to the extremely personal and sensitive nature of the Underlying Litigation as defined herein, Doe is proceeding under the pseudonym of “Jane Doe.”

_____________________________________________________________________________________ JANE DOE’S MOTION TO INTERVENE PAGE 1

SUPP APP 0860 Case 3:13-cv-02553-P Document 50 Filed 08/25/15 Page 2 of 10 PageID 1850

On April 24, 2013, Doe filed a lawsuit against Pastazios Pizza, Inc. (“Pastazios”) and

Adjredin Deari (“Deari”), amongst other parties, in the 193rd Judicial District Court, Dallas

County, Texas, Cause No. DC-13-04564 alleging causes of action against Pastazios for

negligence, premises liability, false imprisonment, and dram shop (“Underlying Litigation”).

After properly Stowerizing Defendant Pastazios and its insurance carrier in May of 2011,

Plaintiff Century Surety Company (“Century”)2, Century initially recognized there was coverage

for Doe’s claims against Pastazios in the Underlying Litigation but two months later inexplicably

denied coverage, denied Pastazios a defense, and brought this declaratory judgment action

seeking a determination that there is no insurance coverage for the causes of action asserted by

Doe against Pastazios in the Underlying Litigation.

The Underlying Litigation was then fully litigated for the next two years and the

Underlying Litigation was tried to the bench on July 7, 2015. On July 25, 2015, after a fully

adversarial three day trial in which all parties were represented by counsel, Honorable Carl

Ginsberg entered a final judgment on the evidence in Doe’s favor in the amount of

$21,911,141.42 against Defendants Pastazios and Deari, jointly and severally (“Final

Judgment”).3 On August 7, 2015, Honorable Carl Ginsberg entered Findings of Fact and

Conclusions of Law in support of the Final Judgment.4

The Final Judgment, as well as the Findings of Fact and Conclusions of Law make clear

that Doe’s claims in the Underlying Litigation are covered under the liability insurance policy

issued by Century that forms the basis of the claims and counterclaims made in this case. Doe

2 It is also worth noting that Doe stowerized Pastazios and its insurance carrier Century on three additional occasions as the Underlying Litigation progressed and even invited Century to participate in the mediation of the Underlying Litigation. Century refused to participate and ignored the last Stower’s demand Doe sent shortly before trial. 3 The Final Judgment is attached as Exhibit A (APP001-APP003) and is incorporated by reference for all purposes. 4 The August 7, 2015 Findings of Fact and Conclusions of Law are attached as Exhibit B (APP004-APP019) and are incorporated by reference for all purposes.

_____________________________________________________________________________________ JANE DOE’S MOTION TO INTERVENE PAGE 2

SUPP APP 0861 Case 3:13-cv-02553-P Document 50 Filed 08/25/15 Page 3 of 10 PageID 1851

now seeks to intervene in this declaratory judgment action to protect her direct rights against

Century for breach of contract; defend her rights and interests as a judgment creditor; and to

protect and pursue her legal rights as the 99% beneficiary of any and all proceeds awarded in

connection with Defendant Pastazios Pizza Inc. Creditor Trust’s counterclaims against Century

for breach of contract, bad faith insurance practices, and deceptive trade practices.5

Through this Unopposed Motion Doe hereby seeks to join in Defendant Pastazios Pizza,

Inc. Creditor Trust’s pleadings in defense of Century’s declaratory judgment action, as well as

join in Defendant Pastazios Pizza, Inc. Creditor Trust’s counterclaims against Century.

Doe is a necessary party, has the most significant stake in the outcome of this matter, and

has a legal right to intervene in this action at this time. After conferring with all counsel of

record, none of the other parties are opposed to Doe’s intervention.

II. ARGUMENTS AND AUTHORITIES

A. DOE IS ENTITLED TO INTERVENE AS A MATTER OF RIGHT.

Federal Rule of Civil Procedure 24(a) provides that the court must grant a timely motion

to intervene if the movant “claims an interest relating to the property or transaction that is the

subject of the action, and is so situated that disposing of the action may as a practical matter

impair or impede the movant’s ability to protect its interest, unless existing parties adequately

represent that interest.” FED. R. CIV. P. 24(a)(2). As the language of the rule directs,

“intervention of right must be measured by a practical rather than technical yardstick,” and the

5 Pastazios filed for Chapter 11 bankruptcy protection on September 2, 2014, mainly as a result of Century’s breach of its obligation to defend Pastazios against Doe’s claims in the Underlying Litigation. See In re Pastazios Pizza, Inc., United States Bankruptcy Court for the Northern District of Texas, Dallas Division, Cause No. 14-34324. Pursuant to Pastazios First Amended Plan of Reorganization in the bankruptcy, Pastazios’ claims and causes of action against Century in this action, as well as all of Pastazios’ interests in the liability insurance policy issued by Century (including the Stowers claim) were assigned to the Pastazios Pizza, Inc. Creditor Trust who has now substituted in as a party for Pastazios. Due to the size of the Final Judgment Doe obtained against Pastazios, Doe is the 99% beneficiary of any and all proceeds of the Creditor’s Trust, including all of the proceeds awarded against Century in this litigation.

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analysis “is a flexible one, which focuses on the particular facts and circumstances surrounding

each application.” Edwards v. City of Houston, 78 F.3d 983, 999 (5th Cir. 1996) (internal

quotation marks and citations omitted). In general, intervention should be allowed when “no one

would be hurt and great justice can be attained.” Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th

Cir. 1994) (internal quotation marks and citations omitted).

In deciding a motion to intervene as of right, courts focus on the following four factors:

(1) whether the motion to intervene is timely; (2) whether the intervener asserts an interest

related to the property or transaction that forms the basis of the controversy into which she seeks

to intervene; (3) whether the disposition of that case may impair or impede the potential

intervener's ability to protect her legal interests; and (4) whether the existing parties adequately

represent the intervener's interest. Saldano v. Roach, 363 F.3d 545, 551 (5th Cir. 2004). Each of

these considerations support Doe’s right to intervene.

1. Doe’s Motion for Intervention is Timely.

The Fifth Circuit has identified four factors to be considered in determining whether a

motion to intervene as of right is timely: (1) the length of time between the movant’s learning of

her interest and the petition to intervene, (2) the extent of prejudice to existing parties from

allowing the intervention, (3) the extent of prejudice to the movant if not allowed to intervene,

and (4) any unusual circumstances. In re Lease Oil Antitrust Litig., 570 F.3d 244, 247-48 (5th

Cir. 2009). Each of these factors support the conclusion that Doe’s Unopposed Motion to

intervene is timely.

First, this Motion to intervene is being filed less than one month after Final Judgment was

entered in Doe’s favor in the Underlying Litigation. Doe could not have moved to intervene

prior to the Final Judgment being entered because, as a third-party beneficiary to the insurance

policy, she did not have standing until she had a monetary judgment against Defendant Pastazios.

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See State Farm Mut. Ins. Co. of Tex. v. Ollis, 768 S.W.2d 722, 723 (Tex. 1989) (per curiam) (“a

party injured by the insured is a third party beneficiary of a liability insurance policy, ... [but] he

cannot enforce the policy directly against the insurer until it has been established, by judgment or

agreement, that the insured has a legal obligation to pay damages to the injured party.”); In re

Essex Ins. Co., 450 S.W.3d 524, 527-28 (Tex. 2014). Once Doe obtained the Final Judgment in

the Underlying Litigation, her interests in this action became ripe, and Doe timely moved to

intervene. Any attempted intervention before the Final Judgment was entered would have been

premature and a waste of judicial resources. See id.; see also Sierra Club, 18 F.3d at 1206.

Second, none of the existing parties to this action are prejudiced by the timing of Doe’s

intervention. See Lease Oil, 570 F.3d at 248; see also Sierra Club, 18 F.3d at 1206 (“prejudice

must be measured by the delay in seeking intervention, not the inconvenience to the existing

parties of allowing the intervenor to participate in the litigation.”). There is no prejudice to the

existing parties because dispositive motions have not yet been heard and no additional discovery

or delay should take place if Doe is rightfully permitted to intervene.

Third, Doe will suffer incredible prejudice if she is denied her right to intervention. If

Doe is denied intervention and Century succeeds in avoiding or excluding coverage under the

policy it issued to Pastazios, Doe is unlikely to recover any of the money damages awarded to

her in the Final Judgment. The Fifth Circuit has found prejudice under such circumstances.

Gaines v. Dixie Carriers, Inc., 434 F.2d 52, 54 (5th Cir.1970); see also United States v. Eastern

Transmission Corp., 923 F.2d 410 (5th Cir.1991). Doe has the highest stake in the outcome of

the claims and counterclaims asserted in this action and a legal right to protect those interests by

directly participating in this case. Failure to grant intervention would relegate Doe’s status to

sitting on the sidelines while other parties litigate their own interests which will necessarily

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impact Doe’s interests. Finally, there are no “unusual circumstances” which suggest that this

Unopposed Motion is untimely. Upon the Final Judgment being entered, Doe promptly moved to

intervene without delay or prejudice to the existing parties. As such, Doe’s intervention is timely

and should be granted.

2. Doe Has a Significant Legally Protectable Interest in the Subject of this Litigation.

A party seeking to intervene in an existing lawsuit must demonstrate a direct, substantial

and legally protectable interest in the litigation. In re Lease Oil, 570 F.3d at 250-51; Ross, 426

F.3d at 757. The interest asserted must “be one that the substantive law recognizes as belonging

to or being owned by the applicant.” Edwards, 78 F.3d at 1004.

Doe now has a direct breach of contract claim against Century, Doe is a judgment

creditor of Pastazios, and is also the 99% beneficiary of any and all proceeds awarded against

Century for Defendant Pastazios Pizza, Inc. Creditor Trust’s counterclaims against Century for

breach of contract, bad faith insurance practices, and violations of the Texas Deceptive Trade

Practices Act.

Under Texas law, once an injured party obtains a judgment against an insured and the

insured has a legal obligation to pay damages to the injured party, the injured party can enforce

the insurance policy directly against the insurer. Ollis, 768 S.W.2d at 723 (citing Murray, 437

S.W.2d at 265); see also Rotella v. Mid-Continent Cas. Co., 2008 WL 5272787, at *3 (N.D. Tex.

Dec. 17, 2008) (“a third party who has obtained a judgment against an insured is an intended

third party beneficiary of the insurance contract and is entitled to enforce the contract.”); Certain

Underwriters at Lloyds, London v. Four J's Cmty. Living Ctr., Inc., 2011 WL 6026689, at *1

(S.D. Tex. Dec. 2, 2011); Puente v. Chicago Ins. Co., 2010 WL 3463253, at *4 (S.D. Tex. Sept.

3, 2010). Doe now has the legal right to recover the damages awarded in the Final Judgment in

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the Underlying Litigation from Century directly through this action. Thus, Doe has a significant

threat of economic injury from the outcome of this action, giving her the requisite interest under

Rule 24(a). Symetra Life Ins. Co. v. Rapid Settlements Ltd., 2006 WL 2382250, at *4 (S.D. Tex.

Aug. 16, 2006). Because Doe has a direct, substantial, and legally protectable interest in this

action, she has the legal right to intervene.

For the avoidance of doubt, Doe is not at this time seeking to recover directly against

Century, instead relying on her right to be paid as a creditor of the Pastazios Pizza, Inc. Creditor

Trust. Doe reserves her right to seek additional relief, including direct relief against Century, by

separate motion or complaint.

3. An Adverse Decision Would Impair Doe’s Interests.

Rule 24(a) requires that an applicant for intervention of right be “so situated that

disposing of the action may as a practical matter impair or impede the movant’s ability to protect

its interest.” FED. R. CIV. P. 24(a). The Fifth Circuit has consistently held that if a court’s ruling

may adversely impact an intervenor’s interest, the third requirement is satisfied. Edwards, 78

F.3d at 1004–05; Espy, 18 F.3d at 1207; Ceres Gulf v. Cooper, 957 F.2d 1199, 1204 (5th Cir.

1992). Rule 24(a) does not require that the intervenor’s interests be legally impaired; it is enough

that the applicant’s ability to protect its interests may be impaired as a practical matter. One

Beacon Ins. Co. v. T. Wade Welch & Associates, 2012 WL 1231750, at *5 (S.D. Tex. 2012).

If Doe is denied her right to intervene, Doe would be denied the right to protect her

legally recognized interests and/or forced to file a separate lawsuit against Century for breach of

contract. Without the ability to legally protect her own interests, Doe would effectively be denied

of her due process rights and would be relegated to having to sit back and watch as other parties

control the outcome of her legally protected interests. Precluding Doe from intervening in this

case will severely impair and impact her legal interests. Thus, this Motion should be granted.

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4. Doe’s Interests May Not Be Adequately Represented by Defendants.

Doe satisfies the final element for intervention because Defendants may not adequately

represent her interests depending on the future conduct of this litigation and any negotiations

related thereto. “The requirement of the Rule is satisfied if the applicant shows that

representation of his [or her] interest ‘may be’ inadequate; and the burden of making that

showing should be treated as minimal.” Trbovich v. United Mine Workers of Am., 404 U.S. 528,

538 n. 10, (1972) (citing 3B J. Moore, Federal Practice 24.09–1(4) (1969)). Doe’s interests in

this action are far superior to Defendants. Although all of the Defendants seek a finding that

Doe’s Final Judgment is covered by the liability policy issued by Century, Doe has much more at

stake in this action, at least $21,911,141 more. Doe also has far superior knowledge of the

relevant facts and evidence that support the Final Judgment and Findings of Fact and

Conclusions of Law than does counsel for Defendants in this action. Counsel for Doe handled

the Underlying Litigation for over two years, developed all of the evidence, and tried the case to

final judgment. Doe is entitled to have counsel of her choosing, and the ones most

knowledgeable about the underlying facts participate in this litigation to protect her legally

recognized interests in the outcome of this litigation. Notably, none of the other parties to this

case disagree. Thus, Doe should be permitted to intervene as a matter of right.

B. IN THE ALTERNATIVE, DOE SHOULD BE PERMITTED TO INTERVENE PERMISSIVELY.

Rule 24(b)(2) permits intervention upon a timely motion when an applicant “has a claim

or defense that shares with the main action a common question of law or fact.” FED. R. CIV. P.

24(b)(2). “[P]ermissive intervention is within a district court's discretion,” Newby v. Enron

Corp., 443 F.3d 416, 424 (5th Cir. 2006), and is “only subject to reversal if extraordinary

circumstances so require,” Trans Chem. Ltd. v. China Nat'l Mach. Import and Export Corp., 332

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F.3d 815, 822 (5th Cir. 2003). Permission intervention should be allowed “where no one would

be hurt and greater justice could be attained.” Sierra Club, 18 F.3d at 1205 (quoting McDonald

v. E.J. Lavino Co., 430 F.2d 1065, 1074 (5th Cir. 1970).

It is also proper to consider whether the intervenor will significantly contribute to the full

development of the underlying factual issues in the suit. First Mercury Ins. Co. v. Rosenboom

Welding & Fabrication, L.L.C., 2013 WL 4804494, at *2 (N.D. Tex. Sept. 9, 2013).

In Lincoln Gen. Ins. Co. v. Aisha's Learning Ctr., the court examined whether an

intervenor’s claim or defense shared common questions of law or fact with the main action.

2004 WL 2533575, at *4 (N.D. Tex. Nov. 9, 2004). The main action centered around whether

the insurance company was obligated to provide coverage under its insurance policy to its

insured. Id. In the complaint to intervene, the movant sought a declaration that the insurance

company was “solely responsible for providing a defense and indemnification” for its insured,

and that any loss by the insured at the expense of the movant is covered under the insurance

policy. Id. The court found that both the intervenor’s claims shared nearly identical questions of

law or fact to the main action, and granted permissive intervention. Id. The Court should

likewise do so here.

III. CONCLUSION

WHEREFORE, PREMISES CONSIDERED, Jane Doe respectfully requests that the

Court grant her Unopposed Motion to intervene as of right pursuant to Rule 24(a), or in the

alternative, permissively intervene pursuant to Rule 24(b), whereby Jane Doe seeks to join in

Defendant Pastazios Pizza, Inc. Creditor Trust’s pleadings in defense of Century’s declaratory

judgment action, as well as join in Defendant Pastazios Pizza, Inc. Creditor Trust’s

counterclaims against Century. Upon the granting of this Unopposed Motion, Doe will file its

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direct claim against Century for breach of contract within ten (10) days of the Order being signed

by this Court. Jane Doe also seeks any and all other and further relief, both at law or in equity, to

which she may show herself to be justly entitled.

Respectfully submitted,

/s/ Trey H. Crawford ROYCE WEST G. MICHAEL GRUBER State Bar No. 21206800 State Bar No. 08555400 royce.w@westllp.com mgruber@ghetrial.com VERETTA FRAZIER TREY CRAWFORD State Bar No. 00793264 State Bar No. 24059623 veretta.f@westllp.com tcrawford@ghetrial.com WEST & ASSOCIATES, L.L.P. BRIAN E. MASON P.O. Box 3960 State Bar No. 24079906 Dallas, Texas 75208-1260 bmason@ghetrial.com Ofc.: (214) 941-1881 GRUBER HURST ELROD JOHANSEN HAIL Fax: (214) 941-1399 SHANK LLP 1445 Ross Avenue, Suite 2500 Dallas, Texas 75202 214.855.6800 (main) 214.855.6808 (facsimile)

ATTORNEYS FOR INTERVENOR JANE DOE

CERTIFICATE OF CONFERENCE

The undersigned hereby certifies that he has conferred with all parties of record concerning the relief sought in this motion and that no parties are opposed to the relief requested.

/s/ Trey H. Crawford TREY H. CRAWFORD

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been served on all counsel of record through ECF in accordance with the Federal Rules of Civil Procedure on this the 25th day of August, 2015.

_____________________________________________________________________________________ JANE DOE’S MOTION TO INTERVENE PAGE 10

SUPP APP 0869 Exhibit 5

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

CENTURY SURETY COMPANY § § Plaintiff, § v. § § AJREDIN “DANNY” DEARI; § DRITAN KREKA; PASTAZIOS § PIZZA, INC. CREDITOR TRUST; and § POST PROPERTIES, INC. § CASE NO. 3:13-cv-2553 § Defendants, § § and § § JANE DOE, § § Intervenor. §

PASTAZIOS PIZZA, INC. CREDITOR TRUST’S AMENDED COUNTERCLAIMS

TO THE HONORABLE JORGE A. SOLIS, UNITED STATES DISTRICT COURT JUDGE:

COMES NOW, Scott M. Seidel, as trustee (the “Trustee”) for the Pastazios Pizza, Inc.

Creditor Trust (the “Trust”), and files this the Pastazios Pizza, Inc. Creditor Trust’s Amended

Counterclaims, and in support thereof respectfully states as follows:

I. PARTIES

1. Plaintiff Century Surety Company (“Century”) filed this lawsuit and has appeared

through counsel of record. Century is a corporation organized under the laws of the State of

Ohio with its principal place of business in the State of Michigan.

2. The Trust is the successor in interest to Pastazios Pizza, Inc. (“PPI”) in all

respects to this litigation and the insurance policy at issue herein pursuant to that certain First

Amended Plan of Reorganization Dated February 2015 and the Order Confirming Debtor’s First

Amended Plan of Reorganization Dated February 11, 2015, as filed and entered in the

PASTAZIOS PIZZA, INC. CREDITOR TRUST’S AMENDED COUNTERCLAIMS —Page 1

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Bankruptcy Case (defined below). Pursuant to the same, the trustee for the Trust is Scott M.

Seidel. Pursuant to this Court’s June 15, 2015 Order,1 the Trust is substituted for PPI in all

respects. PPI is a Texas corporation.

3. On August 25, 2015, Jane Doe filed an Unopposed Motion to Intervene [Doc. 50]

in this lawsuit and has appeared through counsel. The Court granted Jane Doe’s Unopposed

Motion to Intervene on August 26, 2015 [Doc. 52]. Jane Doe is a citizen of the State of Texas.

II. JURISDICTION AND VENUE

4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §

1332(a)(1) because there is complete diversity and the amount in controversy exceeds the

jurisdictional minimum. Venue is proper pursuant to 28 U.S.C. § 1391(a)(2).

III. FACTUAL BACKGROUND

A. JANE DOE SUES PPI, ALLEGING GENERAL NEGLIGENCE, DRAM SHOP, PREMISES LIABILITY, AND FALSE IMPRISONMENT CAUSES OF ACTION

5. This liability insurance dispute concerns a lawsuit (the “Doe Suit”) filed by Jane

Doe, an eighteen year old recent high-school valedictorian when the events made the basis of the

underlying liability suit occurred.

6. In the Doe Suit, Doe alleged that, on the afternoon of April 26, 2011, after

working the lunch shift at the Fox Sports Grill, she met Dritan Kreka at Back Nine Bar and

Grill to discuss potential job opportunities at his restaurant and bar. When she arrived at Back

Nine, Doe was introduced to Danny Deari (“Deari”), who was the owner of another restaurant—

PPI—located in Post Addison Circle. At the time, Deari was 49 years old and Kreka was 33

years old. Deari and Kreka started consuming alcohol at Back Nine bar, and attempted to

1 See docket entry 39.

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order Doe an alcoholic drink. After the Back Nine server asked Doe for identification, Doe

informed the server she did have not her identification and asked for a Dr. Pepper. Deari and

Kreka convinced Doe that the three of them should move the conversation to the pizza

restaurant operated by PPI in Addison Circle. At no point in time on April 26, 2011 was Doe

interviewing for or seeking a job at PPI.

7. Deari and Kreka convinced Doe to drive to PPI. Deari, on his drive to PPI,

stopped at a liquor store to purchase a bottle of 80-proof Crown Royal Black and took it with

him and brought it into PPI.

8. Shortly thereafter, Doe entered onto PPI's premises in Addison Circle as an

invitee of PPI. Upon arriving at PPI at approximately 4:30 p.m., and without Doe asking, Deari

walked inside of PPI, grabbed three beers and three shots of Crown Royal Black that had been

placed into 2-ounce plastic salad dressing cups owned by PPI, placed one of the beers and one of

the 2-ounce shots in front of Doe, and encouraged her to drink it. There were no customers

present that afternoon other than Kreka, Doe and Deari. PPI's manager was on duty.

9. Prior to that day, Doe had very little experience concerning the effects of alcohol.

At no point in time did anyone at PPI ask to see Doe’s identification prior to providing her with

PPI’s alcoholic products. Throughout the course of approximately the next two hours, PPI

continued to provide Doe with more alcoholic products from PPI. After serving Doe with her

second beer from PPI and third 2-ounce shot of Crown Royal Black, Doe became obviously

intoxicated to the point where she had trouble standing. As her condition visibly deteriorated,

PPI failed to “cut off” service. In total, Doe was provided with at least five 2-ounce shots of

Crown Royal Black and three beers.

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10. While still at PPI, Doe expressed concerns about her growing level of intoxication

and her inability to function normally. Prior to leaving PPI, Doe was intoxicated to the point

where she was incapable of caring for or defending herself. Deari then retrieved his vehicle from

PPI’s parking lot and pulled it out in front of PPI. Kreka moved into the driver’s seat and the two

men put Doe in the back seat of the vehicle. While this was taking place, and even though Doe’s

level of intoxication was open and obvious, PPI’s employees did nothing to protect Doe from

unreasonable and foreseeable risks of harm. Doe lost consciousness shortly thereafter.

11. When Doe regained consciousness she was in a hotel room located at 4900 Edwin

Lewis Drive, Addison, Texas 75001 (less than a mile from PPI) wherein she had been

involuntarily disrobed and was actively being sexually assaulted by Deari. Doe repeatedly

insisted that Deari stop the attack and get off of her, but he did not. Deari stopped the sexual

assault after multiple demands made by Doe. Doe locked herself in the bathroom. Deari then left

the hotel, leaving his underwear behind at the scene.

12. On April 24, 2013, and based on the facts above, Doe initiated the Doe Suit by

filing her petition in the 193rd Judicial District Court for Dallas County, Texas (the "State

Court"), alleging that PPI breached its legal duties toward Doe as an invitee, that PPI falsely

imprisoned Doe, and that PPI served alcohol to Doe in violation of the Dram Shop Act when

Doe was visibly and obviously intoxicated to the point where she was a danger to herself or

others, causing her serious bodily injury. Doe further alleged that PPI was negligent in various

respects recognized under Texas law. Doe alleged that PPI’s acts and omissions were a

proximate cause of her bodily injuries.

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B. THE POLICY, TENDERS OF DOE’S PETITIONS, AND STOWERS SETTLEMENT OFFERS

13. At all relevant times to this action, “Pastazios Pizza, Inc.” was the named insured

under a surplus lines policy of liability insurance issued by Century and assigned number CCP

672836, effective from September 21, 2010 to September 21, 2011 (the “Policy”).

14. A true and correct copy of the Policy is attached hereto and incorporated herein as

Exhibit “A”.

15. Throughout the pendency of the Doe Suit, at least three of Doe’s petitions (the

Original, First Amended, and Fourth Amended petitions) were tendered to Century with a

request for defense under the Policy. Said original, first amended, and fourth amended petitions

are attached hereto and incorporated herein as Exhibits “B” through “D,” respectively.

16. On May 24, 2013, Century acknowledged PPI’s claim regarding the Doe Suit and

Doe’s Original Petition. A true and correct copy of the May 24, 2013 letter is attached hereto

and incorporated herein as Exhibit “E”.

17. On May 24, 2013, by letter, Century informed PPI that, pursuant to a full

reservation of rights, the Dallas law firm of Stacy & Condor, LLP would be defending PPI in the

Doe Suit. Despite the fact that the reservation revealed a disqualifying conflict of interest,

Century did not offer a defense through independent counsel or reveal that the insured had a right

to such a defense. Upon information and belief, Century violated the Tilley2 rights of PPI and

the Trust because Century unduly influenced and guided the firm retained to defend PPI under

the Policy to make discovery responses that were beneficial to Century’s position concerning

coverage and detrimental to the defense of PPI. Specifically, said prior counsel responded to a

2 See Employers Cas. Co. v. Tilley, 496 S.W.2d 552 (Tex. 1973).

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discovery request from Doe seeking the legal theories of PPI’s defense by stating only that PPI

denies that the incident and/or injuries in question was the result of any negligence by PPI.

18. On July 2, 2013, thirty-nine days later, Century filed this lawsuit against PPI,

seeking a declaration that Century owed no duty to defend or indemnify PPI.

19. On July 8, 2013, six days after suing its insured, Century wrote to PPI. There,

Century asserted that it had no duty to defend or indemnify PPI in the Doe Suit which was still

pending and had not yet been tried in State Court.

20. On July 29, 2013, Doe sent Century a settlement offer pursuant to Stowers.3

21. On August 15, 2013, Century rejected the offer.

22. On February 27, 2014, Doe sent Century a second settlement offer pursuant to

Stowers.

23. Century failed to respond to this offer and it expired according to its terms.

24. On June 11, 2015, Doe sent the Trust a settlement offer pursuant to Stowers,

which the Trust forwarded to Century on June 17, 2015, with a demand that Century accept the

offer. A true and correct copy of the June 11, 2015 settlement offer is attached hereto and

incorporated herein as Exhibit “F”.

25. Century rejected the settlement offer on June 23, 2015.

C. CENTURY FORCES PPI INTO BANKRUPTCY

26. Following Century’s July 8, 2013 letter stating that Century has no duty to

provide PPI with a defense or indemnity for the Doe Suit pursuant to the issues raised in

Century’s recently filed declaratory judgment action and in Century’s May 24, 2013 letter, PPI

hired counsel in the Doe Suit and in this lawsuit.

3 “Stowers” referring to G.A. Stowers Furniture Co. v. Am. Indem. Co., 15 S.W.2d 544, 544 (Tex. Com. App. 1929), and the doctrine recognized therein.

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27. PPI’s counsel defended PPI at each stage of the Doe Suit until the involvement of

the Trust. PPI’s counsel served and responded to written discovery, attended depositions, filed

motions and responses on PPI’s behalf, designated experts, and participated in hearings all

throughout the pendency of the Doe Suit, at PPI’s own expense.

28. On September 2, 2014, with the mounting burden of financing its own defense—

in light of Century’s refusal to provide a defense to PPI in the Doe Suit—and with the prospect

of a large judgment against PPI in the near future for which Century prematurely announced it

would refuse to indemnify PPI—PPI filed a voluntary petition for relief pursuant to Chapter 11

of Title 11, United States Code. That filing was assigned Case No. 13-32423 (the “Bankruptcy

Case”) pending in the United States Bankruptcy Court for the Northern District of Texas before

the Honorable United States Bankruptcy Judge Harlin D. Hale (the “Bankruptcy Court”).

29. As a corporation, PPI filed and prosecuted its bankruptcy case through counsel,

adding another layer of legal expenses.

D. CENTURY PARTICIPATES IN THE BANKRUPTCY CASE

30. On January 28, 2015, Century filed its Notice of Appearance and Request for

Notices in the Bankruptcy Case.

31. On February 11, 2015, PPI filed its First Amended Plan of Reorganization Dated

February 11, 2015 (the “Plan”) and its First Amended Disclosure Statement Dated February 11,

2015 in the Bankruptcy Case.

32. Century did not object to the Plan.

33. On March 5, 2015, Century filed its Motion for Relief from the Automatic Stay

Pursuant to 11 U.S.C. § 362(d) in the Bankruptcy Case, seeking relief from the automatic stay to

permit the continuation of this litigation. In its motion, Century stated that “all parties to this

proceeding will benefit from an expedient determination as to the applicability of coverage,

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which the Debtor presupposes as part of its First Amended Disclosure Statement Dated February

11, 2015” and that “. . . the determination of applicability of coverage under the Policy is in the

best interest of the Debtor and its creditors to obtain clarity as to its potential sources of funds…”

34. On March 30, 2015, the Bankruptcy Court held a hearing on Century’s motion

for relief from the stay and on confirmation of PPI’s Plan. Century appeared at, and participated

in, the hearings. After being given an opportunity to object and be heard, Century asserted no

objections to the Plan.

35. On March 31, 2015, the Bankruptcy Court entered its Agreed Order on Century’s

motion for relief from the stay, ordering that the automatic stay be modified as to the earlier of

thirty days following the entry of an order confirming the Plan or May 14, 2015.

36. On April 2, 2015, the Bankruptcy Court entered its Order Confirming Debtor’s

First Amended Plan of Reorganization Dated February 11, 2015 (the “Confirmation Order”),

whereby the Plan was confirmed.

37. Pursuant to the Plan and the Confirmation Order, the Trust was created and the

Trustee was appointed as the trustee of the Trust.

38. Article IX of the Plan provided that all causes of action, including any of PPI’s

rights and causes of action related to the Policy, are preserved and retained for enforcement by

the Trustee for the benefit of creditors. Therefore, the Trust owns all rights under or related to

the Policy, all rights related to this litigation, and the Counterclaims asserted herein and all rights

related thereto.

E. TRIAL OF THE DOE SUIT

39. Following his appointment, the Trustee promptly retained counsel in the Doe Suit

to defend PPI.

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40. On June 17, 2015 the Trustee forwarded to Century the above described

settlement offer pursuant to Stowers received by the Trustee from Doe, and urged Century to

accept the offer.

41. The Trust also requested a defense and indemnity in light of Doe’s Fourth

Amended Petition dated June 5, 2015.

42. Century denied the settlement offer.

43. Century denied that it had a duty to defend or indemnify.

44. On July 7, 2015, the State Court called the Doe Suit to trial to the bench. All

parties to the Doe Suit, including PPI, appeared through their respective attorneys of record. On

July 7, 2010, Doe began her case in chief, introduced and admitted evidence to the Court, and

called various witnesses to testify.

45. PPI and Deari vigorously defended the claims brought by Doe against each

defendant, respectively, presented counter-evidence, and cross examined witnesses. On July 9,

2015, after a three-day adversarial trial, all parties rested, the evidence was closed, and closing

arguments were presented by all parties. At the close of the evidence and after closing

arguments, Doe’s claims against PPI and Deari, respectively, as well as PPI and Deari’s

affirmative defenses were submitted to the Court for final determination based on the evidence.

46. On July 9, 2015, after a three-day adversarial trial, the State Court rendered

judgment in favor of Doe against PPI and Deari on all causes of action.

47. The State Court awarded Doe actual damages and prejudgment interest totaling

$16,911,350.42, plus post-judgment interest and court costs, jointly and severally against PPI

and Deari for each and every cause of action alleged by Doe (general negligence, dram shop

liability, and premises liability against PPI). The State Court also rendered judgment against PPI

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for $2,500,000 as exemplary damages. A true and correct copy of the Final Judgment is

attached hereto and incorporated herein as Exhibit “G”.

48. On August 7, 2015, the State Court entered its Findings of Fact and Conclusions

of Law, a true and correct copy of which is attached hereto and incorporated herein as Exhibit

“H”.

49. The State Court’s judgment and findings of fact and conclusions of law constitute

collateral estoppel and res judicata as to the underlying facts that occurred with respect to the

injuries and damages suffered by Doe, the negligence of PPI, proximate cause between that

negligence and Doe’s injuries, new and superseding cause, and all other underlying facts

necessary to determine the scope of the Policy with respect to the Doe Suit.

IV. CAUSES OF ACTION

COUNT 1 - BREACH OF CONTRACT

50. The foregoing allegations are incorporated herein by reference.

51. The Trust seeks damages based on Century’s breach of the Policy.

52. Century agreed to insure PPI against loss or damage caused by a covered peril

arising out of PPI’s business.

53. The plain language of the Policy provides coverage for the Doe Suit and the

judgment.

54. In the alternative, the Policy is ambiguous and must be construed in the light most

favorable to the insured and finding a duty to defend and/or to indemnify.

55. Accordingly, Century has breached the contract by repeatedly denying a duty to

defend and/or indemnify.

56. The facts asserted in the Doe Suit were alleged to have transpired while the Policy

was in effect.

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57. The facts alleged in the Doe Suit fell within Century’s duty to defend PPI and the

Trust. Among other things Doe alleged that she suffered bodily injury because (i) PPI continued

to serve Doe alcohol when she was obviously intoxicated; (ii) PPI did nothing to ensure Doe’s

safety; and (iii) Doe was not free to leave of her own volition due to being intoxicated.

58. The facts as conclusively determined by the State Court confirm that the Doe Suit

at all times fell within Century’s duty to defend PPI and the Trust.

59. The facts as conclusively determined by the State Court fell within Century’s duty

to indemnify PPI and the Trust, including for the amounts awarded to Doe by the State Court.

Among other things, the State Court found that:

(i) Doe was an invitee of PPI;

(ii) PPI did not ask to see Doe’s identification;

(iii) PPI provided Doe with alcoholic beverages;

(iv) Doe became obviously intoxicated;

(v) Prior to leaving PPI, Doe was intoxicated to the point where she was incapable of caring for or defending herself;

(vi) Doe was raped shortly after leaving PPI’s premises; and

(vii) Deari’s acts did not act as a new and superseding cause.

60. The State Court held PPI liable for general negligence, dram shop liability,

premises liability, and false imprisonment as further described in its findings of fact and

conclusions of law.

61. As to each of these theories of liability, the State Court judicially determined that

PPI’s actions and/or inactions were a proximate cause of Doe’s bodily injuries and that, but-for

PPI’s actions and/or inactions, Doe never would have suffered the resulting serious bodily injury.

The State Court judicially determined that PPI’s actions, inactions, or omissions were a

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substantial factor in causing Plaintiff’s damages and bodily injuries, without which Doe would

not have suffered any damage. The State Court judicially determined that PPI was

independently liable for all damages awarded to Doe for each cause of action Doe asserted

against PPI. The State Court judicially determined that any alleged intentional or negligent acts

of any other person that may have caused or contributed to Doe’s injuries did not act to

extinguish PPI’s liability, did not constitute “outside agency”, and are not a new and independent

cause that would extinguish PPI’s liability to Doe. The State Court also judicially determined

that any purported acts or intervening forces PPI alleged to have been a “new and independent

cause” were foreseeable to PPI.

62. Century is estopped from challenging the State Court’s findings of fact and

63. PPI timely notified Century of the claims asserted against it.

64. The Trust timely notified Century of the claims asserted against it.

65. PPI and the Trust suffered monetary damages as a result of Century’s breach.

Among other things, the failure by Century to honor its duty to defend PPI forced PPI to incur

substantial attorney’s fees and, when it could no longer pay the same, to file for bankruptcy. All

of the fees and costs thereof are damages caused by Century. Both PPI and the Trust have had to

incur substantial attorney’s fees as a result of Century’s failure to defend, and then additionally

to defend against this litigation. Finally, both PPI and the Trust are now liable to Doe for the

amount of the State Court judgment, for which Century is liable and which, but for Century’s

wrongful actions and breaches in refusing reasonable settlement offers, would not have been

nearly as large as it now is.

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66. At all relevant times, PPI and the Trust performed all obligations and conditions

under the Policy, the performance of all such obligations and conditions has been excused, or

Century is estopped to assert the performance of such obligations and conditions due to, among

other things, its breach of the Policy and breach of duties owed to PPI and the Trust as its

insureds.

67. Because of Century’s ineffective and wrongful reservation of rights letter and/or

its violations of the Texas Insurance Code regarding the timely denial of claims, Century is

estopped from asserting its policy defenses.

68. The Trust seeks its reasonably attorney’s fees pursuant to TEX. CIV. PRAC. & REM.

CODE § 38.001 et seq.

69. Accordingly, the Trustee seeks judgment against Century for its breaches of

contract in an amount to be proven at trial, but including all of PPI’s and the Trust’s reasonable

attorney’s fees incurred in this litigation, the State Court litigation, and the Bankruptcy Case, and

further including the amount of the Doe judgment, and further including the amount that is

owing to creditors in the Bankruptcy Case.

COUNT 2 - VIOLATION OF THE PROMPT PAYMENT OF CLAIMS PROVISION IN CHAPTER 542 OF THE TEXAS INSURANCE CODE

70. The foregoing allegations are incorporated herein by reference.

71. Defense costs are a “first-party” insurance claim.

72. Century’s failure to fund PPI and the Trust for their defense costs in the Doe Suit

violates the Prompt Payment of Claims provisions in Chapter 542 of the Texas Insurance Code.

See TEX. INS. CODE § 542.051 et seq.

73. As a consequence of its statutory violation, Century is liable to pay the Trust, in

addition to the amount of the defense costs asserted, interest on the amount of said claim at the

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rate of 18 percent per annum, together with reasonable attorney fees, for which amounts the

Trust hereby sues. See TEX. INS. CODE § 542.060.

74. Because of Century’s ineffective and wrongful reservation of rights letter and/or

its violations of the Texas Insurance Code regarding the timely denial of claims, Century is

COUNT 3 - VIOLATIONS OF CHAPTER 542 OF THE TEXAS INSURANCE CODE

75. The foregoing allegations are incorporated herein by reference.

76. Century violated TEX. INS. CODE § 542.055 which provides that, not later than the

30th business day after the date an insurer receives notice of a claim, the insurer shall

acknowledge receipt of the claim; commence any investigation of the claim; and request from

the claimant all items, statements, and forms that the insurer reasonably believes, at that time,

will be required from the claimant.

77. Century failed to investigate the claim related to, or acknowledge receipt of,

Doe’s Fourth Amended Petition or the final judgment in the Doe Suit and/or failed to request

from the Trust within a reasonable and timely fashion items, statements, or forms. Century never

engaged in a full and unbiased investigation which would have made coverage reasonably clear.

Rather, after its initial reservation of rights letter, Century thereafter relied only on its original

complaint filed herein, which asserts coverage positions that are directly in opposition to the

May 24, 2013 reservation of rights letter. Any investigation Century conducted was outcome-

oriented and self-serving.

78. Century violated TEX. INS. CODE § 542.056 which provides that an insurer shall

notify a claimant in writing of the acceptance or rejection of a claim not later than the 15 th

business day after the date the insurer receives all items, statements, and forms required by the

insurer to secure final proof of loss, and that if the insurer rejects the claim, the notice must state

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the reasons for the rejection. Century never engaged in a full and unbiased investigation which

would have made coverage reasonably clear. Rather, after its initial reservation of rights letter,

Century thereafter relied only on its original complaint filed herein, which asserts coverage

positions that are directly in opposition to the May 24, 2013 reservation of rights letter. Any

investigation Century conducted was outcome-oriented and self-serving.

79. Century failed to accept or reject the Trust’s claim in relation to the Doe Suit

within 15 business days after the Trust provided Century with the Fourth Amended Petition.

80. Century failed to accept or reject the Trust’s claim in relation to the Doe Suit

judgment within 15 business days after the Trust provided Century with the final judgment in the

Doe Suit.

81. Century violated TEX. INS. CODE § 542.056 which provides that an insurer, after

receiving all items, statements, and forms reasonably requested and required delays payment of

the claim for a period exceeding the period specified by other applicable statutes, or, if other

statutes do not specify a period, for more than 60 days, the insurer shall pay damages and other

items as provided by Section 542.060.

82. Century failed to make any payments due under the Policy and, moreover,

anticipatorily breached all duties under the Policy and announced that it would make no

payments under the Policy. As a result of Century’s failure to make payments in a timely

manner, PPI and the Trust were prejudiced and damaged. PPI and the Trust were left to defend

the Doe Suit. Century’s withdrawal of the defense, refusal to settle the Doe Suit, and its refusal

to indemnify PPI forced PPI to file its bankruptcy case.

83. Century delayed payment of the claim for a period exceeding 60 days after

receiving all items, statements, and forms reasonably requested and required.

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84. The wrongful denial of PPI and the Trust’s request for a defense in the Doe Suit is

a delay in payment.

85. The wrongful refusal to indemnify the Trust for the Doe judgment is a delay in

payment.

86. As a consequence of its statutory violations, Century is liable to pay the Trust, in

addition to the amount of the defense costs asserted, interest on the amount of said claim at the

rate of 18 percent per annum, together with reasonable attorney’s fees, for which amounts the

87. Because of Century’s ineffective and wrongful reservation of rights letter and/or

its violations of the Texas Insurance Code regarding the timely denial of claims, Century is

COUNT 4 - VIOLATIONS OF CHAPTER 541 OF THE TEXAS INSURANCE CODE

88. The foregoing allegations are incorporated herein by reference.

89. PPI, the Trust, and Century are “persons” as defined by TEX. INS. CODE §

541.002(2).

90. Century violated TEX. INS. CODE § 541.051(1)(a)–(b), (4) which provides that it is

an unfair or deceptive act or practice in the business of insurance to make, issue, or circulate a

statement misrepresenting with respect to a policy issued the terms of the policy; the benefits or

advantages promised by the policy; to use a name or title of a policy that misrepresents the true

nature of the policy; and to make a misrepresentation to a policyholder for the purpose of

inducing or that tends to induce the policyholder to allow an existing policy to lapse or to forfeit

or surrender the policy.

91. Century has made statements misrepresenting the terms of the Policy and the

coverage it provides related to the separation-of-insureds clause. In its May 24, 2013 letter,

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Century stated that “Century will pay those sums the Insured is held liable for as a result of

‘bodily injury’ resulting from the Insured’s causing or contributing to the intoxication of any

person so long as your liquor license was in effect on the date of loss.” Each subsequent denial

of PPI’s and/or the Trust’s demands referred to Century’s July 2, 2013 declaratory judgment

action complaint, where Century stated, “to the extent the Original Petition alleges bodily injury

that result from the provision of liquor to the underage Plaintiff . . . the following policy

language . . . excludes coverage,” and cited the liquor liability coverage form which Century

previously stated provided coverage for liquor liability. Century further stated, “the Policy also

contains a liquor liability coverage endorsement, Form CLL 1902 0306, that provides that there

is no duty to defend or indemnify if the bodily injury is expected or intended from the standpoint

of any insured, or if any proximate or contributing cause of an ‘occurrence’ arises out of ‘liquor

liability.’” Accordingly Century misrepresented the terms of the Policy and both admitted and

denied, without justification, that the Policy was a policy covering liquor liability.

92. The Policy unambiguously covers liquor liability.

93. In its May 24, 2013 letter, Century also misrepresented the terms of the Policy

because it stated that, “The Petition alleges that a number of crimes were committed by Mr.

Deari and Mr. Kreka and we understand that criminal charges are currently pending against both.

As such, Century reserves the right to limit or deny coverage pursuant to this exclusion as well.”

Century misrepresented the Policy because the Policy contains a separation-of-insureds clause

which requires that Century treat PPI and Deari as separate “insureds,” Texas law holds that an

insurer may not impute intent onto PPI, and that, if Deari was not an “insured” under the Policy,

coverage for PPI remained available.

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94. Lastly, Century misrepresented the Policy because it failed to properly or

correctly analyze the coverage provided by the liquor liability endorsement, which provides that

if a claim falls within the products-completed operations hazard coverage, then the liquor

liability “exclusion” does not apply.

95. Century made these statements to induce, or these statements tended to induce

PPI to forego or forfeit its rights under the Policy. Century failed to inform PPI that it had a right

to independent counsel, that PPI could obtain coverage if Deari were not found to be an

“insured,” and that PPI had the option to retain its own counsel, among other things.

96. These violations were a producing cause of actual damages, including but not

limited to PPI’s costs for counsel to defend it in the Doe Suit, PPI’s costs for counsel to defend it

in this suit, the Trust’s costs for counsel to defend it in the Doe Suit, and all damages, expenses,

fees, and costs associated with PPI’s bankruptcy case.

97. Century violated TEX. INS. CODE § 541.060(a)(1), (2), (3), (4), and (7) which

provides that it is an unfair or deceptive act or practice in the business of insurance to engage in

the following unfair settlement practices with respect to a claim by an insured: misrepresenting

to a claimant a material fact or policy provision relating to coverage at issue; failing to attempt in

good faith to effectuate a prompt, fair, and equitable settlement of a claim with respect to which

the insurer’s liability has become reasonably clear; failing to promptly provide to a policyholder

a reasonable explanation of the basis in the policy, in relation to the facts or applicable law, for

the insurer’s denial of a claim or offer of a compromise settlement of a claim; and failing within

a reasonable time to affirm or deny coverage of a claim to a policyholder or submit a reservation

of rights to a policyholder.

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98. As stated above, Century misrepresented to PPI and the Trust the policy

provisions relating to the Doe Suit, including representations and statements related to the

separation-of-insureds clause, liquor liability coverage, and the products-completed operations

hazard coverage and the law related to the same. Century has failed to attempt in good faith to

settle the Doe Suit when PPI’s liability became reasonably clear, has failed to provide a

reasonable explanation of the basis of its denial, and has failed within a reasonable time to affirm

or deny coverage of the Doe Suit in relation to the Fourth Amended Petition and the Doe

99. These violations were a producing cause of actual damages including but not

limited to PPI’s costs for counsel to defend it in the Doe Suit, PPI’s costs for counsel to defend it

in this suit, the Trust’s costs for counsel to defend it in the Doe Suit, and all damages, expenses,

100. Century violated TEX. INS. CODE § 541.061 which provides that it is an unfair or

deceptive act or practice in the business of insurance to misrepresent an insurance policy by

making an untrue statement of material fact; failing to state a material fact necessary to make

other statements made not misleading, considering the circumstances under which the statements

were made; making a statement in a manner that would mislead a reasonably prudent person to a

false conclusion of a material fact; making a material misstatement of law; and failing to disclose

a matter required by law to be disclosed.

101. Among other things, and as stated above, Century misstated the coverage

provided by the Policy as described above, misstated the law applicable to the coverage provided

by the Policy as it relates to the Doe Suit, including but not limited to the law in Texas regarding

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separation-of-insureds, and failed to disclose connections between counsel appointed to defend

PPI in the Doe Suit and Century.

102. These violations were a producing cause of actual damages including but not

limited to PPI’s costs for counsel to defend it in the Doe Suit, PPI’s costs for counsel to defend it

in this suit, the Trust’s costs for counsel to defend it in the Doe Suit, and all damages, expenses,

103. As a result of said violations, PPI and the Trust are entitled to recover actual

damages including the policy limits, all damages associated with the Bankruptcy Case, court

costs and reasonable attorney’s fees and, because Century knowingly committed these acts

complained of, a trebling of the amount of actual damages pursuant to TEX. INS. CODE §§

541.151–152.

104. Because of Century’s ineffective and wrongful reservation of rights letter and/or

its violations of the Texas Insurance Code regarding the timely denial of claims Century is

COUNT 5 – VIOLATIONS OF THE TEXAS DECEPTIVE TRADE PRACTICES ACT

105. The foregoing allegations are incorporated herein by reference.

106. PPI is a consumer under the Texas Business and Commerce Code.

107. The Trust is a consumer under the Texas Business and Commerce Code.

108. Century violated TEX. BUS. COMM. CODE §17.46(b) because it engaged in one or

more acts or practices which violate TEX. INS. CODE §§ 541.001, et seq., as stated above. PPI

and the Trust’s claims against Century under TEX. INS. CODE §§ 541.001, et seq., as set out

above are actionable under TEX. BUS. COMM. CODE §17.50(a)(4).

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109. PPI and the Trust relied on Century’s acts and practices to their detriment because

each relied on the Policy to provide a defense and indemnity in relation to the Doe Suit.

Additionally, Century’s acts and practices caused PPI not to tender amended petition in the Doe

Suit.

110. Century’s acts and practices were a producing cause of damages to PPI and the

Trust, and the Trust is entitled to economic damages, including but not limited to PPI’s and the

Trust’s benefit of the bargain, lost profits, and costs of mitigation, and actual damages including

but not limited to the policy limits, and all damages associated with the Bankruptcy Case,

together with court costs and reasonable attorney’s fees incurred herein.

111. Because Century acted knowingly, PPI and the Trust are entitled to additional

damages pursuant to TEX. BUS. COMM. CODE § 17.50(b)(1).

112. Because Century acted knowingly, PPI and the Trust are entitled to an additional

three times their economic damages. TEX. BUS. COMM. CODE § 17.50(b)(1).

113. The Trust seeks its court costs and pre- and post-judgment interest hereon. TEX.

BUS. COMM. CODE § 17.50(d), (f).

114. Because of Century’s ineffective and wrongful reservation of rights letter and/or

its violations of the Texas Insurance Code regarding the timely denial of claims, Century is

COUNT 6 – VIOLATIONS OF CHAPTER 981 OF THE TEXAS INSURANCE CODE

115. The foregoing allegations are incorporated herein by reference.

116. Chapter 981 of the Texas Insurance Code regulates surplus lines insurers and

surplus lines agents.

117. The Policy is a surplus lines insurance policy.

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118. Pursuant to TEX. INS. CODE § 101.201, an insurance contract effective in this state

and entered into by an unauthorized insurer is unenforceable by the insurer. Any person who in

any manner assisted directly or indirectly in the procurement of the contract is liable to the

insured for the full amount of a claim or loss under the terms of the contract if the unauthorized

insurer fails to pay the claim or loss.

119. Pursuant to TEX. INS. CODE § 981.004, an eligible surplus lines insurer may

provide surplus lines insurance only if the full amount of required insurance cannot be obtained,

after a diligent effort, from an insurer authorized to write and actually writing that kind and class

of insurance in this state, the insurance is placed through a surplus lines agent, and the insurer

meets the eligibility requirements of subchapter B of chapter 981 as of the inception date and

annual anniversary date of each insurance contract. An eligible surplus lines insurer may

provide surplus lines insurance only in the amount that exceeds the amount of insurance

obtainable form authorized insurers.

120. Pursuant to TEX. INS. CODE § 981.005, unless a material and intentional violation

of chapter 981 or 225 exists, an insurance contract obtained from an eligible surplus lines insurer

is valid and enforceable as to all parties and recognized in the same manner as a comparable

contract issued by an authorized insurer. A material and intentional violation of chapter 981 or

chapter 225 does not preclude the insured from enforcing the insured’s right under the contract.

121. Upon information and belief, PPI hired, retained, and/or used the Hutson Group

and/or RISC, Inc. to produce insurance for PPI. Upon information and belief, the Hutson Group

and/or RISC, Inc. failed to use diligent efforts to obtain the full amount of insurance from an

insurer authorized to write, and actually writing, that kind and class of insurance in the State of

Texas.

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122. Upon information and belief, as inducement to PPI purchasing the Policy and

paying premiums, including a premium for liquor liability, the Policy was represented to include

liquor liability coverage for PPI. Upon information and belief, PPI completed application forms

specifically requesting liquor liability coverage.

123. Because, upon information and belief, the Hutson Group and/or RISC, Inc. failed

to use diligent efforts as described above, which is a material and intentional violation of Chapter

981 of the Texas Insurance Code, Century is prohibited from alleging a defense under the Policy

to the claims asserted by the Trust herein.

124. Century violated TEX. INS. CODE § 981.102 which provides that a surplus lines

insurance policy or contract form may not be used unless use of the form is reasonably necessary

for the principal purposes of the insurance coverage.

125. Century’s reservation of rights letter provides that bodily injury arising out of

liquor liability is covered by the Policy. Century’s letter revoking the defense it was providing

PPI and denying any indemnity does not change that position. However, Century’s declaratory

judgment action, which Century subsequently relied on to justify the refusal to defend PPI, states

that the Policy does not provide liquor liability.

126. Upon information and belief, pursuant to Tex. Ins. Code § 981.001 et seq.,

Century is not an “authorized insurer.”

127. Because of these material and intentional violation of Chapter 981 of the Texas

Insurance Code, Century is prohibited from alleging a defense under the Policy to the claims

asserted by the Trust herein.

128. Pursuant to TEX. INS. CODE § 101.202, in an action against an unauthorized

insurer or unauthorized person on a contract of insurance issued or delivered in this state to a

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resident of this state or to a corporation authorized to do business in this state, the court may

award to the plaintiff a reasonable attorney’s fee if the insurer or person failed, for at least 30

days after a demand made before the commencement of the action, to make payment under the

contract’s terms; and the failure to make the payment was vexatious and without reasonable

cause. An insurer’s or person’s failure to defend an action described is prima facie evidence that

the failure to make payment was vexatious and without reasonable cause.

129. The Trust made demands on Century to make payment under the Policy’s terms.

Century refused to make such payments. These actions took place more than thirty days before

the filing of these counterclaims. Century has failed to defend the Doe Suit, which is prima facie

evidence that its failure to make the payments demanded was vexatious and without reasonable

cause.

130. The Trust therefore makes demand for its reasonable attorney’s fees in this action

against an unauthorized insurer.

COUNT 7 – BAD FAITH & BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING

131. The foregoing allegations are incorporated herein by reference.

132. There was an insurance contract between PPI and Century which created a duty of

good faith and fair dealing.

133. There was an insurance contract between the Trust and Century which created a

duty of good faith and fair dealing.

134. Century breached its duty when it denied payment when liability was reasonably

clear. Without investigating, and relying only on its reservation-of-rights letter, Century denied

defense and indemnity.

135. Century violated the Tilley rights of PPI and the Trust because Century unduly

influenced and guided the firm retained to defend PPI under the Policy to make discovery

PASTAZIOS PIZZA, INC. CREDITOR TRUST’S AMENDED COUNTERCLAIMS —Page 24

SUPP APP 0894 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 25 of 258 PageID 2595

responses that were beneficial to Century’s position concerning coverage and detrimental to the

defense of PPI.

136. Century’s breach of the duty of good faith and fair dealing proximately caused

damages to PPI. These breaches caused PPI damage as Century withdrew its defense of PPI,

leaving PPI and the Trust to defend the case. Century’s withdrawal of the defense, refusal to

settle the Doe Suit, and its refusal to indemnify PPI forced PPI to file its bankruptcy case.

137. Century’s breach of the duty of good faith and fair dealing was grossly negligent.

Century briefly defended PPI and, without further investigation or explanation, withdrew the

defense and denied indemnity. Subsequently, Century relied on its complaint filed herein as its

reasons for denying a defense and indemnity, wherein Century misrepresents the coverage

provided by the Policy. Additionally, Century was grossly negligent in accepting premium in

exchange for liquor liability coverage and subsequently denying coverage on the basis that the

Policy does not include liquor liability.

138. Century acted maliciously. Century refused to defend or indemnify PPI or the

Trust, gambling on any liability as to PPI being outside of the scope of coverage and on pushing

PPI into bankruptcy/insolvency to compromise PPI’s ability to fight the coverage suit.

Additionally, counsel provided by Century to defend PPI provided discovery responses that

asserted that PPI only engaged in conduct for which liability in the Doe Suit would not be

covered under the Policy.

139. The Trust is entitled to recover punitive damages.

140. The Trust also seeks pre-and post-judgment interest and court costs and its

attorney’s fees incurred herein.

PASTAZIOS PIZZA, INC. CREDITOR TRUST’S AMENDED COUNTERCLAIMS —Page 25

SUPP APP 0895 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 26 of 258 PageID 2596

141. Even if the liability in the Doe Suit had not been covered under the Policy,

Century’s conduct was extreme and produced damages unrelated to and independent from the

claim on the Policy because Century’s acts and omissions forced PPI into bankruptcy.

142. Because of Century’s ineffective and wrongful reservation of rights letter and/or

its violations of the Texas Insurance Code regarding the timely denial of claims, Century is

COUNT 8 – BREACH OF STOWERS DUTY

143. The foregoing allegations are incorporated herein by reference.

144. PPI was an insured under a contract of insurance issued by Century.

145. Jane Doe asserted a liability claim against PPI that was covered by the Policy.

146. On or about September 13, 2013, Jane Doe offered to settle the claim against PPI

within the limits of the Policy.

147. On or about February 27, 2014, Jane Doe offered to settle the claim against PPI

148. On or about June 11, 2015, Jane Doe offered to settle the claim against the Trust

within the limits of the Policy. On June 17, 2015, the Trust forwarded the offer to Century.

149. Century owed PPI and the Trust a duty to accept reasonable settlement offers

within the policy limits. Pursuant to Stowers, Doe’s offers were reasonable settlement offers

within the Policy limits. Among other things, Doe’s pleadings alleged claims within the Policy

and it was reasonable to foresee that a judgment in the Doe Suit would exceed Policy limits.

150. Century breached the duty of care to PPI and the Trust by not reasonably

evaluating and/or timely accepting the Stowers offers.

151. Century’s breach of duty proximately caused the Trust damages.

PASTAZIOS PIZZA, INC. CREDITOR TRUST’S AMENDED COUNTERCLAIMS —Page 26

SUPP APP 0896 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 27 of 258 PageID 2597

152. As a matter of law, the Trust’s damages include the amount of the judgment. The

judgment amount as to PPI and the Trust is $19,411,141.42 plus pre-judgment interest on the

date the Judgment was entered, which judgment amount continues to accrue post-judgment

interest, for which the Trust also seeks recovery.

153. Century’s breach of duty proximately caused PPI and the Trust damages. Among

other things, had Century complied with its obligations by accepting one of these Stowers

demands, PPI would not have had to file bankruptcy, its creditors would have been paid, and PPI

and the Trust would not now be liable for the judgment rendered in the Doe Suit. The liability in

the Doe Suit could have been settled for much, much less, and within Policy limits, had Century

defended and/or had it acted reasonably in investigating the Doe Suit and reasonably evaluating

each and every settlement offer therein.

154. Because of Century’s ineffective and wrongful reservation of rights letter and/or

its violations of the Texas Insurance Code regarding the timely denial of claims, Century is

COUNT 9 – GROSS NEGLIGENCE

155. The foregoing allegations are incorporated herein by reference.

156. The acts and/or omissions complained of above against Century constitute gross

negligence, malice, or actual fraud, which conduct proximately caused PPI and the Trust’s

injuries herein.

157. The Trust is entitled to exemplary damages under TEX. CIV. PRAC. & REM. CODE

§ 41.003(a).

V. JURY DEMAND

158. The Trust demands a trial by jury on all issues of fact.

PASTAZIOS PIZZA, INC. CREDITOR TRUST’S AMENDED COUNTERCLAIMS —Page 27

SUPP APP 0897 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 28 of 258 PageID 2598

VI. SPECIAL DAMAGES

159. The Trust seeks additional special damages because Century’s actions caused

PPI’s insolvency and bankruptcy. Century’s wrongful refusal to defend and indemnify PPI,

and/or Century’s continual refusal to settle the Doe Suit within policy limits when liability was

reasonably clear, caused PPI to incur significant attorney’s fees and exposed PPI to a large

judgment which it would not be able to satisfy without indemnity from Century. Century took

PPI’s money in exchange for a promise to defend and indemnify PPI for covered suits. When

PPI looked to Century to honor its obligations, Century declined and instead sued PPI. Such

malicious actions warrant special damages- instead of providing a defense and indemnity upon

which PPI relied, Century is the sole reason for PPI’s bankruptcy.

VII. CONDITIONS PRECEDENT

160. All conditions precedent have occurred or have been performed.

VIII. PRAYER

WHEREFORE, PREMISES CONSIDERED, Scott M. Seidel, as trustee for Defendant

Pastazios Pizza, Inc. Creditors Trust, prays this Honorable Court:

a. Enter judgment in favor of the Trust;

b. Award the Trust actual damages;

c. Award the Trust economic damages;

d. Award the Trust special damages;

e. Award the Trust exemplary damages;

f. Award the Trust treble damages pursuant to TEX. INS. CODE § 541.152(b);

g. Award the Trust treble damages pursuant to TEX. BUS. & COM. CODE § 17.50(b)(1);

h. Award the Trust its costs;

i. Grant the Trust its reasonable attorneys’ fees and costs pursuant to TEX. INS. CODE § 541.152(a)(1);

PASTAZIOS PIZZA, INC. CREDITOR TRUST’S AMENDED COUNTERCLAIMS —Page 28

SUPP APP 0898 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 29 of 258 PageID 2599

j. Grant the Trust its reasonable attorney’s fees and costs pursuant to TEX. CIV. PRAC. & REM. CODE § 38.001(8);

k. Grant the Trust its reasonable attorney’s fees and costs pursuant to TEX. INS. CODE § 542.060;

l. Grant the Trust its reasonable attorney’s fees and costs pursuant to TEX. BUS. & COM. CODE § 17.50(d);

m. Grant the Trust its reasonable attorney’s fees and costs pursuant to TEX. INS. CODE § 101.201; and

n. Grant the Trust such other and further legal and/or equitable relief to which it has shown itself justly entitled.

RESPECTFULLY SUBMITTED this 30th day of October, 2015.

MUNSCH HARDT KOPF & HARR, P.C.

By: /s/ Michael W. Huddleston Michael W. Huddleston, Esq. Texas Bar No. 10148415 Davor Rukavina, Esq. Texas Bar No. 24030781 J. Stephen Gibson, Esq. Texas Bar No. 07866000 Thomas D. Berghman, Esq. Texas Bar No. 24082683 3800 Ross Tower 500 N. Akard Street Dallas, Texas 75201 Telephone: (214) 855-7500 Facsimile: (214) 855-4346

COUNSEL FOR SCOTT M. SEIDEL, TRUSTEE OF THE PASTAZIOS PIZZA, INC. CREDITOR TRUST

PASTAZIOS PIZZA, INC. CREDITOR TRUST’S AMENDED COUNTERCLAIMS —Page 29 MHDocs 6646520_2 13229.3

SUPP APP 0899 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 30 of 258 PageID 2600

EXHIBIT A

SUPP APP 0900 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 31 of 258 PageID 2601

@ Century Surety Company 465 Cleveland Avenue Westerville, Ohio 43082 614-895·2000 www.centurysurety.com COMMERCIAL LINES POLICY COMMON POLICY DECLARATIONS POLICY NO.: CCP 672836 New NAMED INSURED AND ADDRESS: CODE N0.:5645A PASTAZIOS PIZZA, INC. INSUREDS AGENT: 5026 ADDISON CIRCLE THE HUTSON GROUP, INC. 710 EAST PARK BLVD, #200 ADDISON TX 75001-3332 PLANO TX 75074- POLICY PERIOD: From:09-21-201 0 To:09-21.-2011 at 12:01 A.M. Standard time at your mailing address shown above. Business Description: PIZZA RESTAURANT. 0 Individual 0 Joint Venture 0 Partnership 0 Umlted liability Company (LlC) @Organization (Other than Partnership, LLC or Joint Venture) IN RETURN FOR THE PAYMENT OF THE PREMIUM, AND SUBJECT TO ALL THE TERMS OF THIS POLICY, WE AGREE WITH YOU TO PROVIDE THE INSURANCE AS STATED IN THIS POLICY. THIS POLICY CONSISTS OF THE FOLLOWING COVERAGE PARTS FOR WHICH A PREMIUM IS INDICATED. THIS PREMIUM MAY BE SUBJECT TO ADJUSTMENT. PREMIUM

Commercial General Liability Coverage Part $3,336.00 Commercial Property Coverage Part $4,364.00

Inspection Fee $150.00 Policy Fee $175.00 State Tax $389.21 S.O. Fee $4.82 25 % of the Policy Premium is fully earned as of the effective TOTAL $8,419.03 date of this policy and is not subject to return or refund. Service of Suit (if form CCP 20 10 is attached} may be made upon: R!SC, Inc. 2001 Bryan St., Bryan Tower, Suite 2900 Dallas TX 75201 orm{s) and Endorsement(s) made a part of this policy at time of issue*: See Attached Schedule of Forms, CIL 15 OOb 02 02 •omits applicable orms an Endorsements if shown in specific Coverage Part/Coverage Form Declarations. Any person who. with intent to defraud or knowing that he is facilitating a fraud against an insurer, subm~"tsapplication or files a claim containing false or deceptive statement is guilty of insurance fraud. ,J.~ ./) ~- ~ COMPANYREPRESENTAT!VE: ~ Jr/~ RISC, Inc. Countersigned By 2001 Bryan St Authorized Represe Bryan Tower, Suite 2900 Dallas TX 75201 10/20/2010 BSI

IN WITNESS WHEREOF, this Company has eXecuted and attested these presents; but this policy shall not be valid unless countersigned by the duly Authorized Agent of this Company at the Agency hereinbefore mentioned.

Secretary President

CSCP 10 01 05 09 Page 1 of 1 SENT TO: AGT/SO 11/01/1 0//LE SUPP APP 0901 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 32 of 258 PageID 2602

TXPN 0003 0409

TEXAS POLICYHOLDER NOTICE

This insurance contract is with an insurer not licensed to transact insurance in this state and is issued and delivered as surplus line coverage under the Texas insurance statutes. The Texas Department of Insurance does not audit the finances or review the .solvency of the surplus lines insurer providing this coverage, and the insurer is not a member of the property and casualty insurance guaranty association created under Chapter 462 Insurance Code. Chapter 225, Insurance Code, requires payment of a 4.85 percent tax on gross premium.

TXPN 0003 0409 Page 1 of 1

SUPP APP 0902 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 33 of 258 PageID 2603

TXPN 0001 0507

TEXAS COMPLAINT NOTICE

IMPORTANT NOTICE AVISO IMPORTANTE 1. To obtain information or make a complaint: Para obtener informacion o para someter una queja: 2. You may contact your agent at telephone number Puede comunicarse con su agente al972-398-9001 972-398-9001

Usted puede llamar a numero de telefono gratis de 3. You may call Century Surety Company's toll- free telephone number for information or to make a Century Surety Company's para informacion o para someter uns queja al: complaint at: 1-800-878-7389 1-800-878-7389

4. You may also write to Century Surety Co. at: Usted tambien puede escribir a Century Surety Co.

Century Surety Co. Century Surety Co. 465 Cleveland Ave. 465 Cleveland Ave. Westerville, OH 43082 Westerville, OH 43082

5. You may contact the Texas Department of Puede comunicarse con el Departmento de Seguros de Insurance to obtain information on companies, Texas para obtener informacion acerda de coverages, rights or complaints at: companieas, coberturas, derechos o quejas al:

1-800-252-3439 1-800-252-3439

6. You may write the Texas Department oflnsurance: Puede escribir al Departmento de Seguros de Texas:

P.O. Box 149104 P.O. Box 149104 Austin, Texas 787i4-9104 Austin, Texas 78714-9104 FAX #(512) 475-1771 FAX# (512) 475-1771 Web: http://www.tdi.state.tx.us Web: http://www.tdi.state.tx.us E-mail: ConsumerProtection@tdi.state.tx.us E-mail: ConsumerProtection@tdi.state.tx.us

7. PREMIUM OR CLAIM DISPUTES: DISPUTAS SOMBRE PRIMAS 0 RECLAMOS: Should you have a dispute concerning your Si tiene una disputa concemiente a su prima o a un premium or about a claim you should contact the reclamo, debe comunicarse con e1 (agente) (la (agent} (company) (agent or the company) first. If campania) (agente o la compania) primero. Sino the dispute is not resolved, you may contact the resulve la disputa, puede entonces comunicarse con el Texas Department of Insurance (TDI). departmento (TDI).

8. ATTACH TffiS NOTICE TO YOUR POLICY: UNA ESTE AVISO A SU POLIZA: This notice is for information only and does not Este aviso es solo para proposito de informacion y no become a part or condition of the attached se conviete en parte o condicion del documento document. adjunto.

SUPP APP 0903 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 34 of 258 PageID 2604

Century -Surety Company 465 CLEVELAND AVENUE WESTERVILLE, OH 43082

A STOCK COMPANY

COMMERCIAL LINES POLICY

THIS POLICY JACKET WITH COMMON POLICY CONDITIONS, THE DECLARATIONS PAGE, COVERAGE PART(S), COVERAGE FORM(S) AND APPLICABLE FORMS AND ENDORSEMENTS COMPLETE THIS POLICY.

CSCP1 000 (02/04)

SUPP APP 0904 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 35 of 258 PageID 2605

Policy Number: CCP 672836 CIL 15 OOb 02 02

SCHEDULE OF FORMS AND ENDORSEMENTS (other than applicable forms and endorsements shown elsewhere in the policy)

Forms and Endorsements applying to the Coverage Parts listed below and made a part of this policy attime of issue:

Form/ Edition Endt. # Date Title Total# of Forms Selected: 47

Forms Applicable to this Coverage part -INTERLINE-ALL COVERAGE PARTS

CCP 2010 05 08 Service of Suit Clause . CIL 15008 02 02 Schedule of Forms and Endorsements CSCP 1000 02 04 Century Insurance Group Policy Jacket CSCP 1001 0509 Century Insurance Group Common Policy Declaration IL 0003 0908 Calculation of Premium IL 0017 1198 Common Policy Conditions PRIV 0001 11 09 Privacy Statement I TRIA 0001 1008 Policyholder Disclosure Notice ofTerrorism TXPN 0001 0507 Texas Complaint Notice TXPN 0003 0409 Texas Policyholder Notice

10 Forms

CIL 15 OOb 02 02 Page 1 of3

SUPP APP 0905 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 36 of 258 PageID 2606

Forms Applicable to this Coverage part- GENERAL LIABILITY

CG 0001 12 07 Commercial General Liability Coverage Form CG 0068 05 09 Recording and Distribution of Material or Information In Violation of Law Exclusion CG 0300 01 96 Deductible Liability Insurance CG 2011 01 96 Additional Insured-Managers or Lessors of Premises CG 2026 0704 Additional Insured-Designated Person or Organization CG. 2146 0798 Abuse or Molestation Exclusion CG 2147 1207 Employment-Related Practices Exclusion Total Pollution Exclusion Wrth A Building Heating, Cooling and Dehumidifying Equipment CG 2165 1204 Exception and A Hostile Fire Exception Exclusion of Certified Acts of Terrorism and Exclusion of Other Acts ofTerrorism Committed CG 2175 0608 Outside the United States CG 2176 0108 Exclusion of Punitive Damages Related to Certified Act of of Terrorism Exclusion of Certified Nuclear, Biological, Chemical or Radiological Acts of Terrorism; Cap CG 2184 0108 on Losses from Certified Acts of Terrorism CG 2196 0305 Silica or Silica-Related Dust Exclusion CG 2404 0509 Waiver Of Transfer Of Rights Of Recovery Against Others To Us CG 2407 0196 Products/Completed Operations Hazard Redefined CGL 1500 0407 Century Insurance Group Commercial General Liability Declarations CGL 1701a 0510 Special Exclusions And Limitations Endorsement CGL 1702 1100 Action Over Exclusion CGL 1711 0406 Limitation of Coverage To Specified Classifications, Operations, Premises or Projects Restaurant, Bar, Tavern & Grocery Store Food Poisoning & Food Contamination Coverage CGL 1742 0310 Endorsement CLL 1902 0306 Liquor liability Coverage Endorsement IL 0021 0908 Nuclear Energy Liability Exclusion Endorsement (Broad Form)

21 Forms

CIL 15 OOb 02 02 Page 2 of3

SUPP APP 0906 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 37 of 258 PageID 2607

Forms Applicable to this Coverctge part· PROPERlY CCF 1500 09 07 Commercial Property Coverage Part Declarations CCF 1503 1001 Exclusion- "Vacant or Unoccupied" Property CCF 1504 0794 · Theft Exclusion - Outside of Building CCF 1512 0506 Multiple Deductible Form CCF 1514 0410 Limited Property Extentions CCF 1515 0410 Equipment Breakdown Enhancement Endt CP 0010 0601 Building and Personal Property Coverage Form CP 0090 0788 Commercial Property Conditions CP 0140 0706 Exclusion of loss Due to Virus or Bacteria CP 1030 0607 Cause of loss ·Special Form CP 1211 1000 Burglary and Robbery Protective Systems CP 1440 1000 Outside Signs CP 1470 0607 Building Glass- Tenant'S Policy IL 0415 0498 Protective Safeguards IL 0935 0702 Exclusion of Certain Computer-Related Losses Exclusion of Certified Acts ofTerrorism Involving Nuclear, Biological, Chemical or IL 0986 0308 Radiological Terrorism; Cap on Covered Certified Acts Losses

16 Forms

CIL 15 OOb 02 02 Page 3of3

SUPP APP 0907 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 38 of 258 PageID 2608

CCP 2010 0508

SERVICE OF SUIT CLAUSE

This endorsement modifies insurance provided by the policy to which this form is attached.

It is agreed that in the event of the failure by us to pay any amount claimed to be due hereunder, we will, at your request, submit to the jurisdiction of a court of competent jurisdiction within the United States of America. Nothing in this clause constitutes or should be understood to constitute a waiver of our rights to commence an action in a court of competent jurisdiction in the United States of America, to remove an action to a United States District Court, or to seek a transfer of a case to another court as permitted by the laws of ·the United States of America or of any state in the United States of America. In any such suit against us, we will abide by the final decision of such court or of any Appellate Court in the event of an appeal.

It is further agreed that service of process in such suit may be made upon the person or organization shown in the Policy Declarations or upon us at the address shown in the policy jacket.

The above named are authorized and directed to accept service of process on behalf of us in any such suit and/or upon your request to give a written undertaking to you that we will enter a general appearance upon our beha~f in the event such a suit shall be instituted.

Further, pursuant to any statute of any state, territory, or district of the United States of America, which makes .provision therefore, we hereby designate the Superintendent, Commissioner, or Directors of Insurance or other officer specified for that purpose in the statute or his successor or successors in office, as their true and lawful attorney upon whom may be served any lawful process in any action, suit, or proceeding instituted by or on your behalf or any beneficiary hereunder arising out of this contract of insurance, and hereby designates the above named as the person to whom the said officer is authorized to mail such process or a true copy thereof.

CCP 20 10 0508 Page 1 of 1

SUPP APP 0908 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 39 of 258 PageID 2609

COMMERCIAL GENERAL LIABILITY CG 21 75 06 08

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

EXCLUSION OF CERTIFIED ACTS OF TERRORISM AND EXCLUSION OF OTHER ACTS OF TERRORISM COMMITTED OUTSIDE THE UNITED STATES This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART LIQUOR LIABILITY COVERAGE PART OWNERS AND CONTRACTORS PROTECTIVE LIABILITY COVERAGE PART POLLUTION LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART RAILROAD PROTECTIVE LIABILITY COVERAGE PART UNDERGROUND STORAGE TANK POLICY

A. The following exclusion is added: b. Protracted and obvious physical disfigure- This insurance does not apply to: ment; or

TERRORISM c. Protracted loss of or impairment of the function of a bodily member or organ; or "Any injury or damage" arising, directly or indirect- ly, out of a "certified act of terrorism'', or out of an 3. The terrorism involves the use, release or "other act of terrorism" that is committed outside of escape of nuclear. materials, or directly or indi- the United States (including its territories and pos- rectly results in nuclear reaction or radiation or sessions and Puerto Rico), but within the "cover- radioactive contamination; or age territory". However, with respect to an "other 4. The terrorism is carried out by means of the act of terrorism", this exclusion applies only when dispersal or application of pathogenic or poi- one or more of the following are attributed to such sonous biological or chemical materials; or act: 5. Pathogenic or poisonous biological or chemical 1. The total of insured damage to all types of materials are released, and it appears that one property exceeds $25,000,000 (valued in US purpose of the terrorism was to release such dollars). In determining whether the materials. $25,000,000 threshold is exceeded, we will in- With respect to this exclusion, Paragraphs 1. and clude all insured damage sustained by"property 2. describe the thresholds used to measure the of all persons and entities affected by the ter- magnitude of an incident of an "other act of terror- rorism and business interruption losses sus- ism" and the circumstances in which the threshold tained by owners or occupants of the damaged will apply for the purpose of determining whether property. For the purpose of this provision, in- this exclusion will apply to that incident. sured damage means damage that is covered by any insurance plus damage that would be B. The following definitions are added: covered by any insurance but for the applica- 1. For the purposes of this endorsement, "any tion of any terrorism exclusions; or injury or damage" means any injury or damage 2. Fifty or more persons sustain death or serious covered under any Coverage Part to which this physical injury. For the purposes of this provi- endorsement is applicable, and includes but is sion, serious physical injury means: not limited to "bodily injury", "property dam- age", "personal and advertising injury'', "injury'' a. Physical injury that involves a substantial or "environmental damagen as may be defined risk of death; or in any applicable Coverage Part.

CG 217506 08 © Insurance Services Office, Inc., 2008 Page 1 of2 D

SUPP APP 0909 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 40 of 258 PageID 2610

2. "Certified act of terrorism" means an act that is c. The act is a violent act or an act that is certified by the Secretary of the Treasury, in dangerous to human life, property or infra- concurrence with the Secretary of State and structure and is committed by an individual the Attorney General of the United States, to or individuals as part of an effort to coerce be an act of terrorism pursuant to the federal the civilian population of the United States Terrorism Risk Insurance Act. The criteria con- · or to influence the policy or affect the con- tained in the Terrorism Risk Insurance Act for a duct of the United States Government by "certified act of terrorism" include the following: coercion. a. The act resulted in insured losses in excess 3. "Other act of terrorism" means a violent act or of $5 million in the aggregate, attributable to an act that is dangerous to human life, property all types of insurance subject to the Terror- or infrastructure that is committed by an indi- ism Risk Insurance Act; vidual or individuals and that appears to be b. The act resulted in damage: part of an effort to coerce a civilian population or to influence the policy or affect the conduct {1) Within the United States (including its of any government by coercion, and the act is territories and possessions and Puerto not a "certified act of terrorism". Rico); or Multiple incidents of an "other act of terrorism" (2) Outside of the United States in the case which occur within a seventy-two hour period of: · and appear to be carried out in concert or to (a) An air carrier (as defined in Section have a related purpose or common leadership 40102 of title 49, United States shall be considered to be one incident. Code) or United States flag vessel C. In the event of any incident of a "certified act of (or a vessel based principally in the terrorism" or an 'iother act of terrorism" that is not United States, on which United subject to this exclusion, coverage does not apply States income tax is paid and whose to any loss or damage that is otherwise excluded insurance coverage is subject to under this Coverage Part. regulation in the United States), re- gardless of where the loss occurs; or (b) The premises of any United States mission; and

Page 2 of2 © Insurance Services Office, Inc., 2008 CG217506 08

SUPP APP 0910 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 41 of 258 PageID 2611

COMMERCIAL GENERAL LIABILITY CG 21 760108

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

EXCLUSION OF PUNITIVE DAMAGES RELATED TO A CERTIFIED ACT OF TERRORISM This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART LIQUOR LIABILITY COVERAGE PART OWNERS AND CONTRACTORS PROTECTIVE LIABILITY COVERAGE PART POLLUTION LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART RAILROAD PROTECTIVE LIABILITY COVERAGE PART UNDE;RGROUND STORAGE TANK POLICY

A. The following exclusion is added: 2. The act is a violent act or an act that is dan- This insurance does not apply to: gerous to human life, property or infrastructure and is committed by an individual or individuals TERRORISM PUNITIVE DAMAGES as part of an effort to coerce the civilian popu- Damages arising, directly or indirectly, out of a lation of the United States or to influence the "certified act of terrorism'' that are awarded as pu- policy or affect the conduct of the United States nitive damages. Government by coercion. B. The following definition is added: "Certified act of terrorism" means an act that is certified by the Secretary of the Treasury, in con- currence with the Secretary of State and the Attor- ney General of the United States, to be an act of terrorism pursuant to the federal Terrorism Risk Insurance Act. The criteria contained in the Terror- ism Risk Insurance Act for a "certified act of terror- ism" include the following: 1. The act resulted in insured losses in excess of $5 million in the aggregate, attributable to all types of insurance subject to the Terrorism Risk Insurance Act; and

CG 2176 01 08 ©ISO Properties, Inc., 2007 Page 1 of 1 []

SUPP APP 0911 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 42 of 258 PageID 2612

COMMERCIAL GENERAL LIABILITY CG 2184 01 08

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

EXCLUSION OF CERTIFIED NUCLEAR, BIOLOGICAL, CHEMICAL OR RADIOLOGICAL ACTS OF TERRORISM; CAP ON LOSSES FROM CERTIFIED ACTS OF TERRORISM This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART LIQUOR LIABILITY COVERAGE PART OWNERS AND CONTRACTORS PROTECTIVE LIABILITY COVERAGE PART POLLUTION LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART RAILROAD PROTECTIVE LIABILITY COVERAGE PART UNDERGROUND STORAGE TANK POLICY

A. The following exclusion is added: 2. "Certified act of terrorism" means an act that is This insurance does not apply to: certified by the Secretary of the Treasury, in concurrence with the Secretary of State and TERRORISM the Attorney General of the United States. to "Any injury or damage" arising, directly or indirect- be an act of terrorism pursuant to the federal ly, out of a "certified act of terrorism". However, Terrorism Risk Insurance Act. The criteria con- this exclusion applies only when one or more of tained in the Terrorism Risk Insurance Act for a the following are attributed to such act: "certified act of terrorism" include the following: 1. The terrorism involves the use, release or a. The act resulted in insured losses in excess escape of nuclear materials, or directly or indi- of $5 million in the aggregate, attributable to rectly results in nuclear reaction or radiation or all types of insurance subject to the Terror- radioactive contamination; or ism Risk Insurance Act; and 2. The terrorism is carried out by means of the b. The act is a violent act or an act that is dispersal or application of pathogenic or poi- dangerous to human life, property or infra- sonous biological or chemical materials; or structure and is committed by an individual 3. Pathogenic or poisonous biological or chemical or individuals as part of an effort to coerce materials are released, and it appears that one the civilian population of the United States purpose of the terrorism was to release such or to influence the policy or affect the con- materials. duct of the United States Government by coercion. B. The following definitions are added: C. In the event of any incident of a "certified act of 1. For the purposes of this endorsement, "any terrorism" that is not subject to this exclusion, cov- injury or damage" means any injury or damage erage does not apply to any loss or damage that is covered under any Coverage Part to which this otherwise excluded under this Coverage Part. endorsement is applicable, and includes but is not limited to "bodily injury'', "property dam- age", "personal and advertising injury", "injury" or "environmental damage" as may be defined in any applicable Coverage Part.

CG 21 84 01 08 ©ISO Properties, Inc., 2007 Page 1 of 2 0

SUPP APP 0912 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 43 of 258 PageID 2613

D. If aggregate insured losses attributable to terrorist acts certified under the federal Terrorism Risk In- surance Act exceed $100 billion in a Program Year (January 1 through December 31) and we have met our insurer deductible under the Terror- ism Risk Insurance Act, we shall not be liable for the payment of any portion of the amount of such losses that exceeds $100 billion, and in such case insured losses up to that amount are subject to pro rata allocation in accordance with procedures es- tablished by the Secretary of the Treasury.

Page2 of2 ©ISO Properties, Inc., 2007 CG 21 84 01 08 [J

SUPP APP 0913 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 44 of 258 PageID 2614

IL 00 03 09 08

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

CALCULATION OF PREMIUM This endorsement modifies insurance provided under the following:

CAPITAL ASSETS PROGRAM (OUTPUT POLICY) COVERAGE PART COMMERCIAL AUTOMOBILE COVERAGE PART COMMERCIAL GENERAL LIABILITY COVERAGE PART COMMERCIAL INLAND MARINE COVERAGE PART COMMERCIAL PROPERTY COVERAGE PART CRIME AND FIDELITY COVERAGE PART EMPLOYMENT~RELATED PRACTICES LIABILlTY COVERAGE PART EQUIPMENT BREAKDOWN COVERAGE PART FARM COVERAGE PART LIQUOR LIABILITY COVERAGE PART MEDICAL PROFESSIONAL LIABILITY COVERAGE PART OWNERS AND CONTRACTORS PROTECTIVE LIABILITY COVERAGE PART POLLUTION LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART RAILROAD PROTECTIVE LIABILITY COVERAGE PART

The following is added: The premium shown in the Declarations was com- puted based on rates in effect at the time the policy was issued. On each renewal, continuation, or anni- versary of the effective date of this policy, we will compute the premium in accordance with our rates and rules then in effect.

IL 00 03 09 08 © ISO Properties, Inc., 2007 Page 1 of 1 [J

SUPP APP 0914 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 45 of 258 PageID 2615

COMMON POLICY CONDITIONS All Coverage parts included in this policy are subject to the following conditions.

A. Cancellation b. Give- you reports on the conditions we 1. The first Named Insured shown in the find; and Declarations may cancel this policy by c. Recommend changes. mailing or delivering to us advanced written 2. We are not obligated to make any notice of cancellation. inspections, surveys, reports or recom- 2. We may cancel this policy by mailing or mendations arid any such actions we do delivering to the first Named Insw-ed written undertake relate only to insurability and the notice of cancellation at least: · premiums to be charged. We do not make a. 10 days before the effective date of safety inspections. We do not undertake to cancellation if we cancel for nonpayment perform the duty of any per.>on or ofpremium; or organization to provide for the health or safety of workers or the public. And we do b. 30 days before the effective date of not warrant that conditions: cancellatio:n if we cancel for any other reason. a. Are safe or healthful; or 3. We will mail or deliver our notice to the first b. Comply with laws, regulations, codes or Named Insured's last mailing address known standards. tous. . 3. Paragraphs 1. and 2. of this condition apply 4. Notice of cancellation will state the effective not only to us, but also to any rating, date of cancellation. The policy period will advisory, rate services or similar organization end on that date. which makes insurance inspections. surveys, reports or recommendations. 5. If this policy is cancelled, we will send the first Named Insured any premium refund due. 4. Paragraph 2. of this condition does not apply If we cancel, the refund will be pro rata. lf to any inspections, surveys, reports or the first Named Insured cancels, the refund recommendations we may make relative to may be less than pro rata. The cancellation certification, under state or ·municipal will be effective even if we have not made or statutes, ordinances or regulations, of boilen;, offered a refund. pressure vessels or elevators. 6. If notice is mailed, proof of mailing will be E. Premiums sufficient proof of notice. The first Named Insured shown m the B. Changes Declarations: This policy contains all the agreements between 1. Is responsible for the payment of all you and us concerning the insurance afforded. premiums; and The first named Insured shown in the 2. Will be the payee for any return premiums Declarations is authorized to make changes in the we pay. terms of this policy with our consent. This F. Transfer Of Your Rights And Duties Under policy's tenns can be amended or waived only by This Policy endorsement issued by us and made a part of this policy. Your rights and duties under this policy may not be transferred without our written consent except C. Examination Of Your Books And Records in the case of death of an individual named We may examine and audit your books and insured. records as they relate to this policy at any time If you die, your rights and duties will be during the policy period and up to three years transferred to your legal representative but only afterward. while acting within the scope of .duties as your D. Inspections And Surveys legal representative. Until your legal repre- 1. We have the right to: sentative is appointed, anyone having proper temporary custody of your property will have a. Make inspections and surveys at any your rights and duties but only with respect to time; that property. ,

1L 00 17 11 98 Copyright, Insurance Services Office, Inc., 1998 Page 1 ofl

SUPP APP 0915 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 46 of 258 PageID 2616

ILOO 21 09 08

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

NUCLEAR ENERGY LIABILITY EXCLUSION ENDORSEMENT (Broad Form)

This endorsement modifies insurance provided under the following:

COMMERCIAL AUTOMOBILE COVERAGE PART COMMERCIAL GENERAL LIABILITY COVERAGE PART FARM COVERAGE PART LIQUOR LIABILITY COVERAGE PART MEDICAL PROFESSIONAL LIABILITY COVERAGE PART OWNERS AND CONTRACTORS PROTECTIVE LIABILITY COVERAGE PART POLLUTION LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART RAILROAD PROTECTIVE LIABILITY COVERAGE PART UNDERGROUND STORAGE TANK POLICY

1. The insurance does not apply: C. Under any Liability Coverage, to "bodily injury" A Under any Liability Coverage, to "bodily injury" or "property· damage" resulting from "hazard- or "property damage": ous properties" of "nuclear material", if: (1) With respect to which an "insured" under (1) The "nuclear material" (a) is at any "nuclear the policy is also an insured under a nuc- facility" owned by, or operated by or on be- lear energy liability policy issued by Nuclear half of, an "insured" or (b) has been dis- Energy Liability Insurance Association, Mu- . charged or dispersed therefrom; tual Atomic Energy Liabifity Underwriters, {2) The "nuclear material" is contained in Nuclear Insurance Association of Canada "spent fuel" or "waste" at any time pos- or any of their successors, or would be an sessed, handled, used, processed, stored, insured under any such policy but for its transported or disposed of, by or on behalf termination upon exhaustion of its limit of of an "insured~; or liability; or (3) The "bodily injury" or "property damage" (2) Resulting from the "hazardous properties" arises out of the furnishing by an Ninsured" of "nuclear material" and with respect to of services, materials, parts or equipment in which (a) any person or organization is re- connection with the planning, construction, quired to maintain financial protection pur- maintenance, operation or use of any "nuc- suant to the Atomic Energy Act of 1954, or lear facility", but if such facility is located any law amendatory thereof, or (b) the "in- within the United States of America, its terri- sured" is, or had this policy not been issued tories or possessions or Canada, this ex- would be, entitled to indemnity from the clusion (3) applies only to "property dam- United States of America, or any agency age" to such "nuclear facility" and any thereof, under any agreement entered into property thereat. by the United States of America, or any 2. As used in this endorsement: agency thereof, with any person or organi- zation. "Hazardous properties• includes radioactive, toxic or explosive properties. B. Under any Medical Payments coverage, to expenses incurred with respect to "bodily in- "Nuclear material" means "source material", "spe- jury" resulting from the "hazardous properties" cial nuclear material" or "by-product material". of "nuclear material" and arising out of the op- eration of a "nuclear facility" by any person or organization.

JL 00 21 09 08 © ISO Properties, Inc., 2007 Page 1 of2 0

SUPP APP 0916 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 47 of 258 PageID 2617

"Source material", "special nuclear material", and (c) Any equipment or device used for the "by-product material" have the meanings given processing, fabricating or alloying of "spe- them in the Atomic Energy Act of 1954 or in any cial nuclear material" if at any time the total law amendatory thereof. amount of such material in the custody of "Spent fuel" means any fuel element or fuel com- the "insured" at the premises where such ponent, solid or liquid, which has been used or ex- equipment or device is located consists of posed to radiation in a "nuclear reactor". or contains more than 25 grams of pluto- nium or uranium 233 or any combination 'Waste" means any waste material (a) containing thereof, or more than 250 grams of uranium "by-product material" other than the tailings or 235; wastes produced by the extraction or concentra- tion of uranium or thorium from any ore processed (d) Any structure, basin, excavation, premises primarily for its "source material" content, and (b) or place prepared or used for the storage or resulting from the operation by any person or or- disposal of "waste"; ganization of any "nuclear facility'' included under and includes the site on which any of the foregoing the first two paragraphs of the definition of "nuc- is located, all operations conducted on such site lear facility". and all premises used for such operations. "Nuclear facility" means: "Nuclear reactor" means any apparatus designed (a) Any "nuclear reactor"; or used to sustain nuclear fission in a self- supporting chain reaction or to contain a critical (b) Any equipment or device designed or used mass of fissionable material. for (1) separating the isotopes of uranium or plutonium, (2) processing or utilizing "spent "Property damage" includes all forms of radioac- fuel", or (3) handling, processing or packag- tive contamination of property. ing "waste";

Page 2 of2 © ISO Properties, Inc., 2007 IL 00 2109 08 0

SUPP APP 0917 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 48 of 258 PageID 2618

Privacy Statement

In applying for insurance products and services with Meadowbrook Insurance Group, Inc.'s subsidiaries, you may have provided us with non-public personal information. Additionally, we may seek additional information, such as your creditworthiness or credit history, from third party reporting agencies. This information allows us to provide you with the best products and customer service. Keeping your personal information private and secure, whether learned directly from you or a third party reporting agency, is our priority.

The categories of non-public personal and financial information that we collect may include your name, address, social security or employer identification number, assets, income, date of birth, motor vehicle driving information and other information that is appropriate or necessary to provide you with the insurance products and services that you request.

We do not disclose any non-public personal or financial information about you, unless permitted or required by law or with your consent.

We may have shared this information with affiliated parties as permitted by law. We refer to and use that information to issue and service your insurance policies, provide insurance services or administer claims. We restrict access to your non-public personal and financial information to those employees who need the information to provide you with products or services.

We maintain physical, electronic and procedural safeguards to protect your non-public personal and financial information. These safeguards comply with federal and state regulations.

If you contact us at our website, "www. Meadowbrook.com" we do not use "cookies", which many organizations use to track visitors' actions on their websites. Cookies are a general mechanism that can store and retrieve information on your computer.

We value the relationship that we have established with current and former customers. Should you have any comments or questions regarding our Privacy Policy, please contact us at 800- 482-2726.

This Privacy Policy applies to the following companies: (1) Meadowbrook Insurance Group, Inc.'s insurance company subsidiaries (Star Insurance Company, Ameritrust Insurance Corporation, Savers Property & Casualty Insurance Company, Williamsburg National Insurance Company, ProCentury Insurance Company, and Century Surety Company}; (2) Crest Financial Corporation's subsidiaries; and (3) Meadowbrook, Inc.'s subsidiaries,

PRIV 0001 1109 PAGE 1 OF 1

SUPP APP 0918 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 49 of 258 PageID 2619

NOTE TO AGENT: It is required by federal law that you provide this document to the insured. POLICYHOLDER DISCLOSURE NOTICE OF TERRORISM INSURANCE COVERAGE Coverage for acts of terrorism is included in your policy. You are hereby notified that under the Terrorism Risk Insurance Act as

amended in 2007, the definition of act of terrorism has changed. As defined in Section 102(1) of the Act The term "act of

terrorism" means any act that is certified by the Secretary of the Treasury-in concurrence with the Secretary of State, and the

Attorney General of the United States-to be an act of terrorism; to be a violent act or an act that is dangerous to human life,

property, or infrastructure; to have resulted in damage within the United States, or outside the United States in the case of certain

air carriers or vessels or the premises of a United States mission; and to have been committed by an individual or individuals as

part of an effort to coerce the civilian population of the United States or to influence the policy or affect the conduct of the United

States Government by coercion. Under your coverage, any losses resulting from certified acts of terrorism may be partially

reimbursed by the United States Government under a formula established by the Terrorism Risk Insurance Act, as amended.

However, your policy may contain other exclusions which might affect your coverage, such as an exclusion for nuclear events.

Under the formula, the United States Government generally reimburses 85% of covered terrorism losses exceeding the statutorily

established deductible paid by the insurance company providing the coverage. The Terrorism Risk Insurance Act, as amended,

contains a $100 billion cap that limits US. Government reimbursement as well as insurers' liability for losses resulting from

certified acts of terrorism when the amount of such losses exceeds $100 billion in any one calendar year. If the aggregate insured

losses for all insurers exceed $100 billion, your coverage may be reduced.

THIS IS NOTIFICATION THAT UNDER THE TERRORISM RISK INSURANCE ACT, AS AMENDED, ANY LOSSES RESULTING FROM

CERTIFIED ACTS OF TERRORISM UNDER THE POLICY COVERAGE MAY BE PARTIALLY REIMBURSED BY THE UNITED STATES

GOVERNMENT, MAY BE SUBJECT TO A $100 BILLION CAP THAT MAY REDUCE THE COVERAGE AND THE POLICYHOLDER HAS BEEN

NOTIFIED OF THE PORTION OF THE PREMIUM ATTRIBUTABLE TO SUCH COVERAGE

The portion of your annual premium that is attributable to coverage for acts of terrorism is:

Property $ 0 Inland Marine $ Crime Excluded General Liability $ 0 Garage Excluded $ Total $ 0

Name of Insurer: Century Surety Company

Policy Number: CCP 672836 TRIA 0001 1008 Page 1 of1

SUPP APP 0919 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 50 of 258 PageID 2620

Century Surety Company COMMERCIAL GENERAL LIABILITY COVERAGE PART DECLARATIONS

Policy No: CCP 672836 Effective Date: 09/21/2010 ** 12:01 A.M. Standard Time NAMED INSURED: PASTAZIOS PIZZA, INC. LIMITS OF INSURANCE: General Aggregate Limit (Other than Product-Completed Operations) $2,000,000

Products-Completed Operations Aggregate Limit $2,000,000

Personal and Advertising Injury Limit $1,000,000

Each Occurrence Limit $1,000,000

Damage to Premises. Rented to You $100,000 Any one Fire/ Occurrence Medical Expense Limit $5,000 Any one Person

RETROACTIVE DATE: (CG 00 02, CGL 0002, CGL 1551 or CGL 1553) Coverage A and B of this insurance does not apply to "bodily injury", "property damage", "personal and advertising injury", "personal injury" or "advertising injury" which occurs before the retroactive date shown here: N/A

DEDUCTIBLE: PER CLAIM $ 500 Bodily Injury Liability & Property Damage Liability Combined (this deductible also applies to Personal and Advertising Injury Liability.) Deductible also applies to Supplementary Payments - Coverages A and 8; Defense Expenses Coverages A and B {form CGL 0002 only) [gj Yes 0 No

...OCATION OF ALL PREMISES YOU OWN, RENT OR OCCUPY:

5026 ADDISON CIRCLE ADDISON, TX 75001-3332

PREMIUM RATE: ADVANCED PREMIUM State Terr Code Classification Prem. Basis Prem. Ops. Pr/Co Pr/Co All Other TX 001 16910 Restaurants-with sale of alcohOlic s) 527,461 3.430 0.373 $197 1,809 beverages that are less than 30% ofthe annual receipts of the restaurants-with table service TX 001 58161 Liquor Liability- Restaurants with alcohol s} 69,000 9.683 668 less than 50% of the total sales Rated As: Restaurants, Taverns, Hotels, Motels, including package sales TX 001 11039CATERERS S) 152,821 4.075 0.258 INCL 662 TX 001 49950ADDITIONAL INSURED- MANAGERS OR T) FLAT INCL LESSORS OF PREMISES - PER CG2011 TX 001 49950ADDJTIONAL INSURED- DESIGNATED PERSON OR ORGANIZATION - PER n FLAT INCL

CG2026 WAIVER OF TRANSFER OR RIGHTS OF Flat INCL RECEOVERY AGAINST US

CGL 1500 04/07 Page 1 of2

SUPP APP 0920 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 51 of 258 PageID 2621 Policy No: CCP 672836

NAMED INSURED: PASTAZIOS PIZZA, INC. PREMIUM RATE: ADVANCED PREMIUM State Terr Code Classification Prem. Basis Prem. Ops. PrfCo Pr/Co NIOther

Audit period is Annual Unless otherwise Stated Total Advance Premium $ 3,336 TRIA Coverage $ 0 Minimum Premium for This Coverage Part $ 3,336 FORMS AND ENDORSEMENTS (other than applicable Forms and Endorsements shown elsewhere in the policy): Forms and Endorsements applying to this Coverage Part and made part of this policy at time of issue: See Attached Forms, GIL 15 008 02 02 "tnctuston of Date Optional THESE DECLARATIONS ARE PART OF THE POLICY DECLARATIONS CONTAINING THE NAME OF THIS INSURED AND THE POLICY PERIOD

CGL 150D 04107 Page 2 of2

SUPP APP 0921 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 52 of 258 PageID 2622

COMMERCIAL GENERAL LIABILITY CG00011207

COMMERCIAL GENERAL LIABILITY COVERAGE FORM Various provisions in this policy restrict coverage. b. This insurance applies to "bodily injury" and Read the entire policy carefully to determine rights, "property damage" only if: duties and what is and is not covered. {1) The ftbodily injury" or "property damage" is Throughout this policy the words "you" and "your" caused by an "occurrence" that takes· place refer to the Named Insured shown in the Declarations, in the "coverage territory"; and any other person or organization qualifying as a (2) The "bodily injury" or "property damage" Named lnsl)red under this policy. The words "we", occurs during the policy period; and "us" and "our'' refer to the company providing this insurance. (3) Prior to the policy period, no insured listed under Paragraph 1. of Section II - Who Is The word "insl.lred" means any person or organization An Insured and no "employee" authorized qualifying as such under Section II -Who Is An In- by you to give or receive notice of an "oc- sured. currence" or claim, knew that the "bodily in- Other words and phrases that appear in quotation jury" or "property damage" had occurred, in marks have special meaning. Refer to Section V - whole or in part. If such a listed insured or Definitions. authorized "employee" knew, prior to the SECTION 1- COVERAGES policy period, that the. "bodily injury" or "property damage" occurred, then any con- COVERAGE A BOOILY INJURY AND PROPERTY tinuation, change or resumption of such DAMAGE LIABILITY "bodily injury" or "property damage" during 1. Insuring Agreement or after the policy period will be deemed to a. We will pay those sums that the insured be- have been known prior to the policy period. comes legally obligated to pay as damages c. "Bodily injury" or "property damage" which because of "bodily injury" or "property damage" occurs during the policy period and was not, to which this insurance applies. We will have prior to the policy perlod, known to have oc- the right and duty to defend the insured against curred by any insured listed under Paragraph any "suit" seeking those damages. However, 1. of Section II - Who Is An Insured or any we will have no duty to defend the insured "employee" authorized by you to give or re- against any "suit" seeking damages for "bodily ceive notice of an "occurrence" or claim, in- injury" or "property damage" to which this in- cludes any continuation, change or resumption surance does not apply. We may, at our discre- of that "bodily injury" or "property damage" af- tion, investigate any "occurrence" and settle ter the end of the policy period. any claim or "suit" that may result. But: d. "Bodily injury" or "property damage" will be (1) The amount we will pay for damages is deemed to have been known to have occurred limited as described in Section Ill - Limits at the earliest time when any insured listed un- Of Insurance; and der Paragraph 1. of Section II- Who Is An In- (2) Our right and duty to defend ends when we sured or any "employee" authorized by you to have used up the applicable limit of insur- give or receive notice of an "occurrence" or ance in the payment of judgments or set- claim: tlements under Coverages A or B or medi- (1) Reports all, or any part, of the "bodily injury" cal expenses under Coverage C. or "property damage" to us or any other in- surer; No other obligation or liability to pay sums or perform acts or services is covered unless ex- (2) Receives a written or verbal demand or plicitly provided for under Supplementary Pay- claim for damages because of the "bodily ments - Coverages A and B. injury" or "property damage"; or {3) Becomes aware by any other means that "bodily injury" or "property damage" has oc- curred or has begun to occur.

CG00011207 · ©ISO Properties, Inc., 2006 Page 1 of16 0

SUPP APP 0922 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 53 of 258 PageID 2623

e. Damages because of "bodily injury" include c. Liquor Liability damages claimed by any person or organiza- "Bodily injury" or "property damage" for which tion for care, loss of services or death resulting any insured may be held liable by reason ot at any time from the "bodily injury". (1) Causing or contributing to the intoxication of 2. Exclusions any person; This insurance does not apply to: (2) The furnishing of alcoholic beverages to a a. Expected Or Intended Injury person under the legal drinking age or un- "Bodily injury" or "property damage" expected der the influence of alcohol; or or intended from the standpoint of the insured. (3) Any statute, ordinance or regulation relating This exclusion does not apply to "bodily injury" to the sale, gift, distribution or use of alco- resulting from the use of reasonable force to holic beverages. protect persons or property. This exclusion applies only if you are in the b. Contractual Liability business of manufacturing, distributing, selling, "Bodily injury" or "property damage" for which serving or furnishing alcoholic beverages. the insured is obligated to pay damages by d. Workers' Compensation And Similar Laws reason of the assumption of liability in a con- Any obligation of the insured under a workers' tract or agreement. This exclusion does not compensation, disability benefits or unem- apply to liability for damages: ployment compensation law or any similar law. (1) That the insured would have in the absence e. E~ployer's Liability of the contract or agreement; or nBodify injury" to: (2) Assumed in a contract or agreement that is an "insured contract", provided the "bodily (1) An Remployee" of the insured arising out of injury" or "property damage" occurs subse- and in the course ot quent to the execution of the contract or (a) Employment by the insured; or agreement. Solely for the purposes of lia- {b) Performing duties related to the conduct bility assumed in an "insured contract", rea- of the insured's business; or sonable attorney fees and necessary litiga- tion expenses incurred by or for a party (2) The spouse, child, parent, brother or sister other than an insured are deemed to be of that "employee" as a consequence of Pa- damages because of "bodily injury" or ragraph (1) above. "property damage", provided: This exclusion applies whether the insured (a) Liability to such party for, or for the cost may be liable as an employer or in any other of, that party's defense has also been capacity and to any obligation to share damag- assumed in the same "insured contract"; es with or repay someone else who must pay and damages because of the injury. (b) Such attorney fees and litigation ex- This exclusion does not apply to liability as- penses are for defense of that party sumed by the insured under an "insured con- against a civil or alternative dispute res- tract". olution proceeding in which damages to which this insurance applies are alleged.

Page 2 of 16 © ISO Properties, Inc., 2006 CG 00 0112 07 Cl

SUPP APP 0923 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 54 of 258 PageID 2624

f. Pollution (d) At or from any premises, site or location (1) "Bodily injury" or "property damage" arising on which any insured or any contractors out of the actual, alleged or threatened dis- or subcontractors working directly or in- charge, dispersal, seepage, migration, re- directly on any insured's behalf are per- lease or escape of "pollutants": forming operations if the "pollutants" are brought on or to the premises, site or lo- (a) At or from any premises, site or location cation in connection with such opera- which is or was at any time owned or tions by such insured, contractor or sub- occupied by, or rented or loaned to, any contractor. However, this subparagraph insured. However, this subparagraph does not apply to: does not apply to: (i) "Bodily injury" or "property damage" (i) "Bodily injury'' if sustained within a arising out of the escap~ of fuels, lu- building and caused by smoke, bricants or other operating fluids fumes, vapor or soot produced by or which are needed to perform the originating from equipment that . is normal electrical, hydraulic ·or me- used to heat, cool or dehumidify the chanical functions necessary for the building, or equipment that is used to operation of "mobile equipment" or heat water for personal use, by the its parts, if such fuels, lubricants or building's occupants or their guests; other operating fluids escape from a (ii) "Bodily injury" or "property damage" vehicle part designed to hold, store for which you may be held liable, if or receive them. This exception does you are a contractor and the owner not apply if the "bodily injury'' or or lessee of such premises, site or "property damage" arises out of the location has been added to your pol- intentional discharge, dispersal or re- icy as an additional insured with re- lease of the fuels, lubricants or other spect to your ongoing operations operating fluids, or if such fuels, lu- performed for that additional insured bricants or other operating fluids are at that premises, site or location and brought on or to the premises, site or such premises, site or location is not location with the intent that they be and never was owned or occupied discharged, dispersed or released as by, or rented or loaned to, any in- part of the operations being per- sured, other than that additional in- formed by such insured, contractor sured; or or subcontractor; (iii) "Bodily injury" or "property damage" (ii) "Bodily injury" or "property damage" arising out of heat, smoke or fumes sustained within a building and from a "hostile fire"; caused by the release of gases, (b) At or from any premises, site or location fumes or vapors from materials which is or was at any time used by or brought into that building in connec- for any insured or others for the han- tion with operations being performed dling, storage, disposal, processing or by you or on your behalf by a con- treatment of waste; tractor or subcontractor; or (c} Which are or were at any time trans- (iii) "Bodily injury" or "property damage" ported, handled, stored, treated, dis- arising out of heat, smoke or fumes posed of, or processed as waste by or from a "hostile fire". for: (e) At or from any premises, site or location {i) Any insured; or on which any insured or any contractors or subcontractors working directly or in- (ii) Any person or organization for whom directly on any insured's behalf are per- you may be legally responsible; or forming operations if the operations are to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the ef- fects of, "pollutants".

CG 00 0112 07 ©ISO Properties, Inc., 2006 Page 3 of 16 D

SUPP APP 0924 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 55 of 258 PageID 2625

· (2) Any loss, cost or expense arising out of (5) "Bodily injury" or "property damage" arising any: out of: (a) Request, demand, order or statutory or (a) The operation of machinery or equip- regulatory requirement that any insured ment that is attached to, or part of, a or others test for, monitor, clean up, re- land vehicle that would qualify under the move, contain, treat, detoxify or neutral- definition of "mobile equipment" if it were ize, or in any way respond to, or assess not subject to a compulsory or financial the effects of, "pollutants"; or responsibility law or other motor vehicle (b) Claim or "suit" by or on behalf of a go- insurance law in the state where it is li- vernmental authority for damages be- censed or principally garaged; or cause of testing for, monitoring, cleaning (b) the operation of any of the machinery or up, removing, containing, treating, de- equipment listed in Paragraph f.(2) or toxifying or neutralizing, or in any way f.(3) of the definition of "mobile equip- responding to, or assessing the effects ment". of, "pollutants". h. Mobile Equipment However, this paragraph does not apply to "Bodily injury" or "property damage" arising out liability for damages because of "property of: damage" that the insured would have in the absence of such request, demand, order or (1) The transportation of "mobile equipmenf' by statutory or regulatory requirement, or such an "auto" owned or operated by or rented or claim or Nsuit" by or on behalf of a govern- loaned to any insured; or mental authority. (2) The use of "mobile equipment" in, or while g. Aircraft, Auto Or Watercraft in practice for, or while being prepared for, any prearranged racing, speed, demolition, "Bodily injury" or "property damage" arising out or stunting activity. of the ownership, maintenance, use or en- trustment to others of any aircraft, "auto" or wa- i. War tercraft owned or operated by or rented or "Bodily injury" or "property damage'', however loaned to any insured. Use includes operation caused, arising, directly or indirectly, out of: and "loading or unloading". (1) War, including undeclared or civil war; This exclusion applies even if the claims (2) Warlike action by a military force, including against any insured allege negligence or other action in hindering or defending against an wrongdoing in the supervision, hiring, employ- actual or expected attack, by any govern- ment, training or monitoring of others by that ment, sovereign or other authority using insured, if the "occurrence" which caused the military personnel or other agents; or "bodily injury" or "property damage" involved the ownership, maintenance, use or entrust- (3) Insurrection, rebellion, revolution, usurped ment to others of any aircraft, "auto" or water- power, or action taken by governmental au- thority in hindering or defending against any craft that is owned or operated by or rented or loaned to any insured. of these. This exclusion does not apply to: j. Damage To Property (1) A watercraft while ashore on premises you "Property damage" to: · own or rent; (1) Property you own, rent, or occupy, including (2) A watercraft you do not own that is: any costs or expenses incurred by you, or any other person, organization or entity, for (a) Less than 26 feet long; and repair, replacement, enhancement, restora- (b) Not being used to carry persons or tion or maintenance of such property for property for a charge; any reason, including prevention of injury to (3) Parking an "autou on, or on the ways next a person or damage to another's property; to, premises you own or rent, provided the (2) Premises you sell, give away or abandon, if "auto" is not owned by or rented or loaned the "property damage" arises out of any to you or the insured; part of those premises; (4) Liability assumed under any "insured con- (3) Property loaned to you; tract" for the ownership, maintenance or (4) Personal property in the care, custody or use of aircraft or watercraft; or control of the insured;

Page 4 of 16 © ISO Properties, Inc., 2006 CG00011207 D

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(5) That particular part of real property on This exclusion does not apply to the loss of use which you or any contractors or subcontrac- of other property arising out of sudden and ac- tors working directly or indirectly on your cidental physical injury to "your product" or behalf are performing operations, if the "your work" after it has been put to its intended "property damage" arises out of those op- use. erations; or n. Recall Of Products, Work Or Impaired (6) That particular part of any property that Property must be restored, repaired or replaced be- Damages claimed for any loss, cost or ex- cause "your work" was incorrectly per- pense incurred by you or others for the Joss of formed on it. use, withdrawal, recall, inspection, repair, re- Paragraphs {1 ), (3) and (4) of this exclusion do placement, adjustment, removal or disposal of: not apply to "property damage" (other than {1) "Your product"; damage by fire) to premises, including the con- tents of such premises, rented to you for a pa- (2) "Your work"; or riod of 7 or fewer consecutive days. A separate (3) "Impaired property''; limit of insurance applies to Damage To Pre- if such product, work, or property is withdrawn mises Rented To You as described in Section or recalled from the market or from use by any Ill - Limits Of Insurance. person or organization because of a known or Paragraph (2) of this exclusion does not apply suspected defect, deficiency, inadequacy or if the premises are "your work" and were never dangerous condition in it. occupied, rented or held for rental by you. o. Personal And Advertising Injury Paragraphs (3), (4), (5) and (6) of this exclu- "Bodily injury" arising out of ~personal and ad- sion do not apply to liability assumed under a vertising injury". sidetrack agreement. p. Electronic Data · Paragraph (6) of this exclusion does not apply to "property damage" included in the "products- Damages arising out of the loss of, loss of use completed operations hazard". of, damage to, corruption of, inability to access, or inability to manipulate electronic data. k. Damage To Your Product As used in this exclusion, electronic data "Property damage" to "your product" arising out means information, facts or programs stored as of it or any part of it. or on, created or used on, or transmitted to or I. Damage To Your Work from computer software, including systems and "Property damage" to "your work" arising out of applications software, hard or floppy disks, CD- it or any part of it and included in the "products- ROMS, tapes, drives, cells, data processing completed operations hazard". devices or any other media which are used with electronically controlled equipment., This exclusion does not apply if the damaged work or the work out of which the damage aris- q. Distribution Of Material In Violation Of es was perfollTled on your behalf by a subcon- Statutes tractor. "Bodily injury" or "property damage" arising di- m. Dame~geTo Impaired Property Or Property rectly or indirectly out of any action or omission Not Physically Injured that violates or is alleged to violate: "Property damage" to "impaired property" or {1) The Telephone Consumer Protection Act property that has not been physically injured, (TCPA}, including any amendment of or arising out of: addition to such law; or (1) A defect, deficiency, inadequacy or danger- (2) The CAN-SPAM Act of 2003, including any ous condition in "your product" or "your amendment of or addition to such law; or work"; or {3) Any statute, ordinance or regulation, other {2) A delay or failure by you or anyone acting than the TCPA or CAN-SPAM Act of 2003, on your behalf to perform a contract or that prohibits or limits the sending, transmit- agreement in accordance with its terms. ting, communicating or distribution of ma- terial or information.

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Exclusions c. through n. do not apply to damage c. Material Published Prior To Policy Period by fire to premises while rented to you or tempora- nPersonal and advertising injury" arising out of rily occupied by you with permission of the owner. oral or written publication of material whose A separate limit of insurance applies to this cover- first publication took place before the beginning age as described in Section Ill - Limits Of Insur- of the policy period. ance. d. Criminal Acts COVERAGE B PERSONAL AND ADVERTISING INJURY LIABILITY "Personal and advertising injury" arising out of a criminal act committed by or at the direction 1. Insuring Agreement of the insured. a. We will pay those sums that the insured be- e. Contractual Liability comes legally obligated to pay as damages because of "personal and advertising injury" to "Pen;onal and advertising injury" for which the which this insurance applies. We will have the insured has assumed liability in a contract or right and duty to defend the insured against agreement. This exclusion does not apply to any "suit" seeking those damages. However, liability for damages that the insured would we will have no duty to defend the insured have in the absence of the contract or agree- against any "suit" seeking damages for "per- ment. sonal and advertising injury" to which this in- f. Breach Of Contract surance does not apply. We may, at our discre- "Personal and advertising injury" arising out of tion, investigate any offense and settle any a breach of contract, except an implied con- claim or "suit" that may result. But: · tract to use another's advertising idea in your (1) The amount we will pay for damages is "advertisement". limited as described in Section Ill - Limits g. Quality Or Performance Of Goods - Failure Of Insurance; and To Conform To Statements (2) Our right and duty to defend end when we "Personal and advertising injury'' arising out of have used up the applicable limit of insur- the failure of goods, products or services to ance in the payment of judgments or set- conform with any statement of quality or per- tlements under Coverages A or B or medi- formance made in your "advertisement". cal expenses under Coverage C. h. Wrong Description Of Prices No other obligation or liability to pay sums or perform acts or services is covered unless ex- "Personal and advertising injury'' arising out of plicitly provided for under Supplementary Pay- the wrong description of the price of goods, ments - Coverages A and B. products or services stated in your "advertise- ment". b. This insurance applies to "personal and adver- tising injury'' caused by an offense arising out i. Infringement Of Copyright, Patent, of your business but only if the offense was Trademark Or Trade Secret committed in the "coverage territory'' during the "Personal and advertising injury" arising out of policy period. the infringement of copyright, patent, trade- 2. Exclusions mark, trade secret or other intellectual property rights. Under this exclusion, such other intellec- This insurance does not apply to: tual property rights do not include the use of a. Knowing Violation Of Rights Of Another another's advertising idea in your "advertise- "Personal and advertising injury" caused by or ment". at the direction of the insured with the know- However, this exclusion does not apply to in- ledge that the act would violate the rights of fringement, in your "advertisement", of copy- another and would inflict "personal and adver- right, trade dress or slogan. tising injury". j. Insureds In Media And Internet Type b. Material Published With Knowledge Of Businesses Falsity "Personal and advertising injury" committed by "Personal and advertising injury'' arising out of an insured whose business is: oral or written publlcation of material, if done by (1) Advertising, broadcasting, publishing or or at the direction of the insured with know- telecasting; ledge of its falsity. (2) Designing or determining content of web- sites for others; or

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(3) An Internet search, access, content or (3) · Insurrection, rebellion, revolution, usurped service provider. power, or action taken by governmental au- However, this exclusion does not apply to Pa- thority in hindering or defending against any ragraphs 14.a., b. and c. of "personal and ad- of these. vertising injury" under the Definitions Section. p. Distribution Of Material In Violation Of For the purposes of this exclusion, the placing Statutes of frames, borders or links, or advertising, for "Personal and advertising injury" arising direct- you or others anywhere on the Internet, is not ly or indirectly out of any action or omission by itself, considered the business of advertis- that violates or is alleged to violate: ing, broadcasting, publishing or telecasting. {1) The Telephone Consumer Protection Act k. Electronic Chatrooms Or Bulletin Boards (TCPA), including any amendment of or "Personal and advertising injury" arising out of addition to such law; or an electronic chatroom or bulletin board the in- (2) The CAN-SPAM Act of 2003, including any sured hosts, owns, or over which the insured amendment of or addition to such law; or exercises control. {3) Any statute, ordinance or regulation, other I. Unauthorized Use Of Another's Name Or than the TCPA or CAN-SPAM Act of 2003, Product that prohibits or limits the sending, transmit- "Personal and advertising injury" arising out of ting, communicating or distribution of ma- the unauthorized use of another's name or terial or information. product in your e-mail address, domain name COVERAGE C MEDICAL PAYMENTS or metatag, or any other similar tactics to mis- 1. Insuring Agreement lead another's potential customers. a. We will pay medical expenses as described m. Pollution below for "bodily injury" caused by an accident: "Personal and advertising injury" arising out of (1) On premises you own or rent; . the actual, alleged or threatened discharge, dispersal, seepage, migration, release or es- {2) On ways next to premises you own or rent; cape of "pollutants" at any time. or n. Pollution-Related (3) Because of your operations; Any loss, cost or expense arising out of any: provided that: (1) Request, demand, order or statutory or (a) The accident takes place in the "cover- regulatory requirement that any insured or age territory" and during the policy pe- others test for, monitor, clean up, remove, riod; contain, treat, detoxify or neutralize, or in (b) The expenses are incurred and reported any way respond to, or assess the effects to us within one year of the date of the of, "pollutants"; or · accident; and (2) Claim or suit by or on behalf of a govern- {c) The injured person submits to examina- mental authority for damages because of tion, at our expense, by physicians of testing for, monitoring, cleaning up, remov- our choice as often as we reasonably ing, containing, treating, detoxifying or neu- require. tralizing, or in any way responding to, or b. We will make these payments regardless of assessing the effects of, "pollutants". fault. These payments will not exceed the ap- o. War plicable limit of insurance. We will pay reason- "Personal and advertising injury", however able expensl;)s for. caused, arising, directly or indirectly, out of: (1) First aid administered at the time of an (1} War, including undedared or civil war; accident; (2) Warlike action by a military force, including (2). Necessary medical, surgical, x-ray and action in hindering or defending against an dental services, including prosthetic devic- actual or expected attack, by any govern- es; and ment, sovereign or other authority using {3) Necessary ambulance, hospital, profes- military personnel or other agents; or sional nursing and funeral services.

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2. Exclusions f. Prejudgment interest awarded against the We will not pay expenses for "bodily injury": insured on that part of the judgment we pay. If we make an offer to pay the applicable limit of a. Any Insured insurance, we will not pay any prejudgment in- To any insured, except "volunteer workers". terest based on that period of time after the of- fer. b. Hired Person g. All interest on the full amount of any judgment To a person hired to do work for or on behalf of that accrues after entry of the judgment and any insured or a tenant of any insured. before we have paid, offered to pay, or depo- c. Injury On Normally Occupied Premises sited in court the part of the judgment that is To a person injured on that part of premises within the applicable limit of insurance. you own or rent that the person normally occu- These payments will not reduce the limits of insur- pies. ance. d. Workers Compensation And Similar Laws 2. If we defend an insured against a "suit" and an To a person, whether or not an "employee" of indemnitee of the insured is also named as a party any insured, if benefits for the "bodily injury'' to the "suit", we will defend that indemnitee if all of are payable or must be provided under a work- the following conditions are met: ers' compensation or disability benefits law or a a. The "suit" against the indemnitee seeks dam- similar law. ages for which the insured has assumed the e. Athletics Activities liability of the indemnitee in a contract or agreement that is an "insured contract"; To a person injured while practicing .. instructing or participating in any physical exercises or b. This insurance applies to such liability as-· games, sports, or athletic contests. sumed by the insured; f. Products-Completed Operations Haz;ard c. The obligation to defend; or the cost of the defense of, that indemnitee, has also been as- Included within the "products-completed opera- sumed by the insured in the same "insured tions hazard". contract"; · g. Coverage A Exclusions d. The allegations in the Rsuit" and the infonnation Excluded under Coverage A. we know about the "occurrence" are such that SUPPLEMENTARY PAYMENTS- COVERAGES A no conflict appears to exist between the inter- ANOB ests of the insured and the interests of the in- demnitee; 1. We will pay, with respect to any claim we investi- gate or settle, or any "suit" against an insured we e. The indemnitee and the insured ask us to defend: conduct and control the defense of that indem- nitee against such "suit" and agree that we can a. All expenses we incur. assign the same counsel to defend the insured b. Up to $250 for cost of bail bonds required and the indemnitee; and because of accidents or traffic law violations f. The indemnitee: arising out of the use of any vehicle to which the Bodily Injury Liability Coverage applies. We (1) Agrees in writing to: do not have to furnish these bonds. (a) Cooperate with us in the investigation, c. The cost of bonds to release attachments, but seWement or defense of the "suit"; only for bond amounts within the applicable (b) Immediately send us copies of any limit of insurance. We do not have to furnish demands, notices, summonses or legal these bonds. papers received in connection with the d. All reasonable expenses incurred by the in- "suit"; sured at our request to assist us in the investi- (c) Notify any other insurer whose coverage gation or defense of the claim or "suit", ·includ- is available to the indemnitee; and ing actual loss of earnings up to $250 a day (d) Cooperate with us with respect to coor- because of time off from work. dinating other applicable insurance e. All court costs taxed against the insured in the available to the indemnitee; and "suit". However, these payments do not include (2) Provides us with written authorization to: attorneys' fees or attorneys' expenses taxed against the insured. (a) Obtain records and other infonnation related to the "suit"; and

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(b) Conduct and control the defense of the 2. Each of the following is also an insured: indemnitee in such "suit". a. Your "volunteer workers" only while performing So .long as the above conditions are met, attor- duties related to the conduct of your business, neys' fees incurred by us in the defense of that in- or your "employees", other than either your demnitee, necessary litigation expenses incurred "executive officers" {if you are an organization by us and necessary litigation expenses incurred other than a partnership, joint venture or limited by the indemnitee at our request will be paid as liability company) or your managers (if you are Supplementary Payments. Notwithstanding the a limited liability company), but only for acts provisions of Paragraph 2.b.{2) of Section I - within the scope of their employment by you or Coverage A - Bodily Injury And Property Damage while performing duties related to the conduct Liability, such payments will not be deemed to be of your business. However, none of these "em- damages for "bodily injury" and "property damage" ployees" or "volunteer workers" are insureds and will not reduce the limits of insurance. for: Our obligation to defend an insured's indemnitee- {1) "Bodily injury" or "personal and advertising and to pay for attorneys' fees and necessary litiga- injury": tion expenses as Supplementary Payments ends (a) To you, to your partners or members (if when we have used up the appticable limit of in- you are a partnership or joint venture), surance in the payment of judgments or settle- to your members {if you are a limited ments or the conditions set forth above, or the liability company), to a co-"employee" terms of the agreement described in Paragraph f. while in the course of his or her em- above, are no longer met. ployment or performing duties related to SECTION II- WHO IS AN INSURED the conduct of your business, or to your 1. If you are designated in the Declarations as: other "volunteer workers" while perform- ing duties related to the conduct of your a. An indiVidual, you and your spouse are insu- business; reds, but only with respect to the conduct of a business of which you are the sole owner. {b) To the spouse, child, parent, brother or sister of that co-"employee" or "volun- b. A partnership or joint venture, you are an in- teer worker" as a consequence of Para- sured. Your members, your partners, and their graph (1){a) above; spouses are also insureds, but only· with re- spect to the conduct of your business. {c) For which there is any obligation to share damages with or repay someone c. A limited liability company, you are an insured. else who must pay damages because of Your members are also insureds, but only with the injury described in Paragraphs {1)(a) respect to the conduct of your business. Your or (b) above; or managers are insureds, but only with respect ·to. their duties as your managers. (d) Arising out of his or her providing or failing to provide professional health d. An organization other than a partnership, joint care services. venture or limited liability company, you are an insured. Your "executive officers" and directors (2) "Property damage" to property: are insureds, but only with respect to their du- (a) Owned, occupied or used by, ties as your officers or directors. Your stock- (b) Rented to, in the care, custody or con- holders are also insureds, but only with respect trol of, or over which physical control is to their liability as stockholders. being exercised for any purpose by e. A trust, you are an insured. Your trustees are you, any of your "employees", "volunteer also insureds, but only with respect to their du- workers", any partner or member (if you are ties as trustees. a partnership or joint venture), or any mem- ber (if you are a limited liability company).

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b. Any person (other than your "employee" or 3. The Products-Completed Operations Aggregate "volunteer worker"), or any organization while Limit is the most we will pay under Coverage A for acting as your real estate manager. damages because of "bodily injury" and "property c. Any person or . organization having proper damage• included in the "products-completed op- temporary custody of your property if you die, erations hazard". but only: 4. Subject to Paragraph 2. above, the Personal and (1) With respect to liability arising out of the Advertising Injury Limit is the most we will pay un- maintenance or use of that property; and der Coverage B for the sum of all damages be- cause of all "personal and advertising injury'' sus- (2) Until your legal representative has been .tained by any one person or organization. appointed. 5. Subject to Paragraph 2. or 3. above, whichever d. Your legal representative if you die, but only applies, the Each Occurrence Limit is the most we with respect to duties as such. That represent- will pay for the sum of: ative will have all your rights and duties under this Coverage Part. a. Damages under Coverage A; and 3. Any organization you newly acquire or form, other b. Medical expenses under Coverage C than a partnership, joint venture or limited liability because of all "bodily injury" and "property dam· company, and over which you maintain ownership age" arising out of any one "occurrence''. or majority interest, will qualify as a Named In- 6. Subject to Paragraph 5. above, the Damage To sured if there is no other similar insurance availa- Premises Rented To You Limit is the most we will ble to that organization. However:· pay under Coverage A for damages because of a. Coverage under this provision is afforded only "property damage" to any one premises, while until the 90th day after you acquire or form the rented to you, or in the case of damage by fire, organization or the end of the policy period, while rented to you or temporarily occupied by you whichever is earlier; with permission of the owner. b. Coverage A does not apply to "bodily injury" or 7. Subject to Paragraph 5. above, the Medical Ex- "property damage" that occurred before you pense Limit is the most we will pay under Cover- acquired or formed the organization; and age C for all medical expenses because of "bodily c. Coverage B does not apply to "personal and injury" sustained by any one person. advertising injury" arising out of an offense The Limits of Insurance of this Coverage Part apply committed before you acquired or formed the separately to each consecutive annual period and to organization. any remaining period of less than 12 months, starting No person or organization is an insured with respect with the beginning of the policy period shown in the to the conduct of any current or past partnership, joint Declarations, unless the policy period is extended venture or limited liability company that is not shown after issuance for an additional period of less than 12 as a Named Insured in the Declarations. months. In that case, the additional period will be deemed part of the last preceding period for purposes SECTION 111 -LIMITS OF INSURANCE of determining the Limits of Insurance. 1. The Limits of Insurance shown in the Declarations SECTION IV- COMMERCIAL G~NERAL LIABILITY , and the rules below fix the most we will pay re- CONDITIONS gardless of the number of: 1. Bankruptcy a. Insureds; Bankruptcy or insolvency of the insured or of the b. Claims made or "suits" brought; or insured's estate will not relieve us of our obliga- c. Persons or organizations making claims or tions under this Coverage Part. bringing "suits" .. 2. Duties In The Event Of Occurrence, Offense, 2. The General Aggregate Limit is the most we will Claim Or Suit pay for the sum of: a. You must see to it that we are notified as soon a. Medical expenses under Coverage C; as practicable of an "occurrence" or an offense which may result in a claim. To the extent b. Damages under Coverage A, except damages because of "bodily injury" or "property damage" possible, notice should include: included in the "products-completed operations {1) How, when and where the "occurrence" or hazard"; and offense took place; · c. Damages under Coverage B. (2) The names and addresses of any injured persons and witnesses; and

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(3) The nature and location of any injury or 4. Other Insurance damage arising out of the "occurrence" or If other valid and collectible insurance is available offense. to the insured for a loss we cover under Coverag- b. If a claim is made or "suit" is brought against es A or B of this Coverage Part, our obligations any insured, you must: are limited as follows: (1) Immediately record the specifics of the a. Primary Insurance claim or "suit" and the date received; and This insurance is primary except when Para- (2) Notify us as soon as practicable. graph. b. below applies. If this insurance is pri- You must see to it that we receive written no- mary, our obligations are not affected unless tice of the claim or "suit" as soon al) practica- any of the other insurance is also primary. ble. Then, we will share with all that other insur- ance by the method described in Paragraph c. c. You and any other involved insured must: below. (1) Immediately send us copies of any de- b. Excess Insurance mands, notices, summonses or legal pa- pers received in connection with the claim (1) This insurance is excess over: or "suit"; (a) Any of the other insurance, whether (2) Authorize us to obtain records and other primary, excess, contingent or on any information; othe·r basis: (3) Cooperate with us in the investigation or (i) That is Fire, Extended Coverage, settlement of the claim or defense against Builder's Risk, Installation Risk or the "suit"; and · similar coverage for "your work"; {4) Assist us, upon our request, in the en· (ii) That is Fire insurance for premises forcement of any right against any person rented to you or temporarily occu- or organization which may be liable to the pied by you with permission of the insured because of injury or damage to owner; which this insurance may also apply. (iii) That is insurance purchased by you d. No insured will, except at that insured's own to cover your liability as a tenant for cost, voluntarily make a payment, assume any "property damagen to premises obligation, or incur any expense, other than for rented to you or temporarily occu- first aid, without our consent. pied by you with permission of the owner; or 3. Legal Action Against Us (iv) If the loss arises out of the mainten- No person or organization has a right under this ance or use of aircraft, "autos" or wa- Coverage Part: tercraft to the extent not subject to a. To join us as a party or-otherwise bring us into Exclusion g. of Section I - Coverage a "suit" asking for damages from an insured; or A - Bodily Injury And Property Dam- age Liability. b. To sue us on this Coverage Part unless all of its terms have been fully complied with. (b) Any other primary insurance available to you covering liability for damages aris- A person or organization may sue us to recover on an agreed settlement or on a final judgment ing out of the premises or operations, or the products and completed operations, against an insured; but we will not be liable for for which you have been added as an damages that are not payable under the terms of this Coverage Part or that are in excess of the ap- additional insured by attachment of an endorsement. plicable limit of insurance. An agreed settlement means a settlement and release of liability signed (2) When this insurance is excess, we will have by us, the insured and the claimant or the clai- no duty under Coverages A orB to defend mant's legal representative. the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit". If no other insurer de- fends, we will undertake to do so, but we will be entitled to the insured's rights against all those other insurers.

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(3) When this insurance is excess over other c. We have issued this policy in reliance upon insurance, we will pay only our share of the your representations. amount of the loss, if any, that exceeds the 7. Separation Of Insureds sum of: Except with respect to the Limits of Insurance, and {a) The total amount that all such other any rights or duties specifically assigned in this insurance would pay for the loss in the Coverage Part to the first Named Insured, this in- absence of this insurance; and surance applies: (b) The total of all deductible and self- a. As if each Named Insured were the only insured amounts under all that other in- Named Insured; and surance. b. Separately to each insured against whom claim (4) We will share the remaining loss, if any, is made or "suit" is brought. with any other insurance that is not de- scribed in 1his Excess Insurance provision 8. Transfer Of Rights Of Recovery Against Others and was not bought specifically to apply in To Us excess of the Limits of Insurance shown in If the insured has rights to recover all or part of the Declarations of this Coverage Part. any payment we have made under this Coverage c. Method Of Sharing Part, those rights are transferred to us. The in- sured must do nothing after loss to impair them. At If all of the other insurance permits contribution our request, the insured will bring "suit" or transfer by equal shares, we will follow this method al- those rights to us and help us enforce them. so. Under this approach each insurer contri- butes equal amounts until it has paid its appli- 9. When We Do Not Renew cable limit of insurance or none of the loss If we decide not to renew this Coverage Part, we remains. whichever comes first. will mail or deliver to the first Named Insured If any of the other insurance does not permit shown in the Declarations written notice of the contribution by equal shares, we will contribute nonrenewal not less than 30 days before the expi- by limits. Under this method, each insurer's ration date. share is based on the ratio of its applicable lim- If notice is mailed, proof of mailing will be sufficient it of insurance to the total applicable limits of proof of notice. insurance of all insurers. SECTION V- DEFINITIONS 5. Premium Audit 1. "Advertisement" means a notice that is broadcast a. We will compute all premiums for this Cover- or published to the general public or specific mar- age Part in accordance with our rules and ket segments about your goods, products or ser- rates. vices for the purpose of attracting customers or b. Premium shown in this Coverage Part as ad- supporters. For the purposes of this defmition: vance premium is a deposit premium only. At a. Notices that are published include material the close of each audit period we will compute placed on the Internet or on similar electronic the earned premium for that period and send means of communication; and notice to the first Named Insured. The due date b. Regarding web-sites, only that part of a web- for audit and retrospective premiums is the site that is about your goods, products or ser- date shown as the due date on the bill. If the vices for the purposes of attracting customers sum of the advance and audit premiums paid or supporters is considered an advertisement. for the policy period is greater than the earned premium, we will return the excess to the first 2. "Auto" means: Named Insured. a. A land motor vehicle, trailer or semitrailer de- c. The first Named Insured must keep records of signed for travel on public roads, including any the information we need for premium computa- attached machinery or equipment; or tion, and send us copies at such times as we b. Any other land vehicle that is subject to a com- may request. pulsory or financial responsibility law or other 6. Representations motor vehicle insurance law in the state where it is licensed or principally garaged. By accepting this policy, you agree: However, "auto" does not include "mobile equip- a. The statements in the Declarations are accu- ment". rate and complete; b. Those statements are based upon representa- tions you made to us; and

Page 12 of16 © ISO Properties, Inc., 2006 CG 00 0112 07 0

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3. "Bodily injury'' means bodily injury, sickness or 9. "Insured contract" means: disease sustained by a person, including death re- a. A contract for a lease of premises. However, sulting from any of these at any time. that portion of the contract for a lease of pre- 4. "Coverage territory" means: mises that indemnifies any person or organiza- a. The United States of America (including its tion for damage by fire to premises while territories and possessions), Puerto Rico and rented to you or temporarily occupied by you Canada; with permission of the owner is not an "insured contract"; b. International waters or airspace, but only if the injury or damage occurs in the course of travel b. A sidetrack agreement; or transportation between any places included c. Any easement or license agreement, except in in Paragraph a. above; or connection with construction or demolition op- c. All other parts of the world if the injury or dam- erations on or within 50 feet of a railroad; age arises out of: d. An obligation, as required by ordinance, to {1) Goods or products made or sold by you in indemnify a municipality, except in connection the territory described in Paragraph a. with work for a municipality; above; e. An elevator maintenance agreement: (2) The activities of a person whose home is in f. That part of any other contract or agreement the territory described in Paragraph a. pertaining to your business (including an in~ above, but is away for a short time on your damnification of a municipality in connection business; or with work performed for a municipality) under (3) "Personal and advertising injury" offenses which you assume the tort liability of another that take place through the Internet or simi- party to pay for "bodily injury" or "property lar electronic means of communication damage" to a third person or organization. Tort liability means a liability that would be imposed provided the insured's responsibility to pay dam- by law in the absence of any contract or ages is determined in a "suit" on the merits, in the agreement. territory descri~ed in Paragraph a. above or in a settlement we agree to. Paragraph f. does not include that part of any contract or agreement:.. 5. "Employee" includes a "leased worker". "Em- ployee" does not include a "temporary worker". {1) That indemnifies a railroad for "bodily injury" or "property damage" arising out of con- 6. "Executive officer" means a person holding any of struction or demolition operations, within 50 the officer positions created by your charter, con- feet of any railroad property and affecting stitution, by-laws or any other similar governing any railroad bridge or trestle, tracks, road- document. beds, tunnel, underpass or crossing; 7. "Hostile fire" means one which becomes uncon- (2) That indemnifies an architect, engineer or trollable or breaks out from where it was intended surveyor for injury or damage arising out of: to be. (a) Preparing, approving, or failing to pre- 8. "Impaired property" means tangible property, other pare or approve, maps, shop drawings, than "your product" or "your work", that cannot be opinions, reports, surveys, field orders, used or is less useful because: change orders or drawings and specifi- a. It incorporates "your product" or "your work" cations; or that is known or thought to be defective, defi- (b) Giving directions or instructions, or cient, inadequate or dangerous; or failing to give them, if that is the primary b. You have failed to fulfill the terms of a contract cause of the injury or damage; or or agreement; (3) Under which the insured, if an architect, if such property can be restored to use by the re- engineer or surveyor, assumes liability for pair, replacement, adjustment or removal of "your an injury or damage arising out of the in- product" or "your work" or your fulfilling the terms sured's rendering. or failure to render pro- of the contract or agreement. fessional services, including those listed in (2) above and supervisory, inspection, arc- hitectural or engineering activities.

CGOO 0112 07 © ISO Properties, Inc., 2006 Page 13 of16 IJ

SUPP APP 0934 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 65 of 258 PageID 2635

10. "Leased worker" means a person leased to you by However, self-propelled vehicles with the fol- a labor leasing firm under an agreement between lowing types of permanently attached equip- you and the labor leasing firm, to perform duties ment are not "mobile equipmenf' but will be related to the conduct of your business. "Leased considered "autos": worker" does not include a "temporary worker''. (1) Equipment designed primarily for: 11. hloading or unloading" means the handling of (a) Snow removal; property: (b) Road maintenance, but not construction a. After it is moved from the place where it is or resurfacing; or accepted for movement into or onto an aircraft, watercraft or "auto"; (c) Street cleaning; b. While it is in or on an aircraft, watercraft or (2) Cherry pickers and similar devices mounted hauto"; or on automobile or truck chassis and used to raise or lower workers; and c. While it is being moved from an aircraft, water- craft or "auto" to the place where it is finally de- (3) Air compressors, pumps and generators, livered; · including spraying, welding, building clean- ing, geophysical exploration, lighting and but "loading or unloading" does not include the well servicing equipment. movement of property by means of a mechanical device, other than a hand truck, that is not at- However, "mobile equipment" does not include tached to the aircraft, watercraft or "auto". any land vehicles that are subject to a compulsory or financial responsibility law or other motor ve- 12. "Mobile equipment" means any of the following hicle insurance law in the state where it is licensed types of land vehicles, including any attached ma- or principally garaged. Land vehicles subject to a chinery or equipment: compulsory or financial responsibility law or other a. Bulldozers, farm machinery, forklifts and other motor vehicle insurance law are considered "au- vehicles designed for use principally off public tos". roads; 13. "Occurrence" means an accident, including conti- b. Vehicles maintained for use solely on or next to nuous or repeated exposure to substantially the premises you own or rent; same general harmful conditions. c. Vehicles that travel on crawler treads; 14. "Personal and advertising injury" means injury, d. Vehicles, whether self-propelled or not, main- including consequential "bodily injury", arising out tained primarily to provide mobility to perma- of one or more of the following offenses: nently mounted: a. False arrest, detention or imprisonment; (1) Power cranes, shovels, loaders, diggers or b. Malicious prosecution; drills; or c. The wrongful eviction from, wrongful entry into, (2) Road construction or resurfacing equipment or invasion. of the right of private occupancy of such as graders, scrapers or rollers; a room, dwelling or premises that a person oc- e. Vehicles not described in Paragraph a., b., c. cupies, committed by or on behalf of its owner, or d. above that are not self-propelled and are landlord or lessor; maintained primarily to provide mobility to per- d. Oral or written publication, in any manner, of manently attached equipment of the following material that slanders or libels a person or or- types: ganization or disparages a person's or organi- (1) Air compressors, pumps and generators, zation's goods, products or services; including spraying, welding, building clean- e. Oral or written publication, in any manner, of ing, geophysical exploration, lighting and material that violates a person's right of priva- well servicing equipment; or cy; (2) Cherry pickers and similar devices used to f. The use of another's advertising idea in your raise or lower workers; "advertisemenf'; or f. Vehicles not described in Paragraph a., b., c. g. Infringing upon another's copyright, trade dress or d. above maintained primarily for purposes or slogan in your "advertisementd. , other than the transportation of persons or car- go.

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15. "Pollutants" mean any solid, liquid, gaseous or b. Loss of use of tangible property that is not thermal irritant or contaminant, including smoke, physically injured. All such loss of use shall be vapor, soot, fumes, acids, alkalis, chemicals and deemed to occur at the time of the "occur- waste. Waste includes materials to be recy-cled, rence" that caused it. reconditioned or reclaimed. For the purposes of this insurance, electronic data 16. "Products-completed operations hazard": is not tangible property. a. Includes all "bodily injury• and "property dam- As used in this definition, electronic data means age" occurring away from premises you own or information, facts or programs stored as or on, rent and arising out of "your product" or "your created or used on, or transmitted to or from com- work" except: puter software, including systems and applications (1) Products that are still in your physical pos- software, hard or floppy disks, CO-ROMS, tapes, session; or drives, cells, data processing devices or any other media which are used with electronically controlled (2) Work that has not yet been completed or equipment. abandoned. However, "your work" will be deemed completed at the earliest of the fol- 18. "Suit" means a civil proceeding in which damages lowing times: because of "bodily injury", "property damage" or "personal and advertising injury" to which this in- (a) When all of the work called for in your surance applies are alleged. "Suit" includes: contract has been completed. a. An arbitration proceeding in which such dam- (b) When all of the work to be done at the ages are claimed and to which the insured job site has been completed if your con- must submit or does submit with our consent; tract caHs for work at more than one job or site. b. Any other alternative dispute resolution pro- (c) When that part of the work done at a job ceeding in which such damages are claimed site has been put to its intended use by and to which the insured submits with our con- any person or organization other than sent. another contractor or subcontractor working on the same project. 19. "Temporary worker" means a person who is fur- nished to you to substitute for a permanent "em- Work that may need service, maintenance, ployee" on leave or to meet seasanal or short-term correction, repair or replacement. but which workload conditions. is otherwise complete, will be treated as completed. 20. "Volunteer worker" means a person who is not your "employee", and who donates his or her work b. Does not include "bodily injury" or "property and acts at the direction of and within the scope of damage" arising out of: duties determined by you, and is not paid a fee, (1) The transportation of property, unless the salary or other compensation by you or anyone injury or damage arises out of a condition in else for their work performed for you. or on a vehicle not owned or operated by 21. "Your product": you, and that condition was created by the "loading or unloading" of that vehicle by any a. Means: insured; (1) Any goods or products, other than real (2) The existence of tools, uninstalled equip- property, manufactured, sold, handl~d. dis- ment or abandoned or unused materials; or tributed or disposed of by: (3) Products or operations for which the classi- (a) You; fication, listed in the Declarations or in a (b) Others trading under your name; or policy schedule, states that products- (c) A person or organization whose busi- completed operations are subject to the . ness or assets you have acquired; and General Aggregate Umit. (2) Containers (other than vehicles), materials, 17. "Property damage" means: parts or equipment furnished in connection a. Physical injury to tangible property, including with such goods or products. all resulting loss of use of that property. All b. Includes: such Joss of use shall be deemed to occur at the time of the physical injury that caused it; or (1) Warranties or representations made at any time with respect to the fitness, quality, du- rability, performance or use of "your prod- uct"; and

CG00011207 © ISO Properties, Inc., 2006 Page 15 of16 0

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(2) The providing of or failure to provide warn- ings or instructions. c. Does not include vending machines or other property rented to or located for the use of oth- ers but not sold. 22. "Your work": a. Means: (1) Work or operations performed by you or on your behalf; and (2) Materials, parts or equipment furnished in connection with such work or operations. b. Includes: (1}. Warranties or representations made at any time with respect to the fitness, quality, du- rability, performance or use of "your work", and (2) The providing of or failure to provide warn- ings or instructions.

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SUPP APP 0937 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 68 of 258 PageID 2638

COMMERCIAL GENERAL LIABILITY CGOO 68 0509

RECORDING AND DISTRIBUTION OF MATERIAL OR INFORMATION IN VIOLATION OF LAW EXCLUSION . This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART

A. Exclusion q. of Paragraph 2. EXclusions of Sec~ B. Exclusion p. of Paragraph 2. Exclusions of Sec- tion I - Coverage A - Bodily Injury And Proper- tion I - Coverage B - Personal And Advertising ty Damage Liability is replaced by the following: Injury Liability is replaced by the following: 2. Exclusions 2. Exclusions This insurance does not apply to: This insurance does not apply to: q. Recording And Distribution Of Material p. Recording And Distribution Of Material Or Information In Violation Of Law Or Information In Violation Of Law "Bodily injury'' or "property damage" arising "Personal and advertising injury" arising di- directly or indirectly out of any action or rectly or indirectly out of any action or omis· omission that violates or is alleged to vi~ sion that violates or is alleged to violate: alate: (1} The Telephone Consumer Protection (1) The Telephone Consumer Protection Act (TCPA), including any amendment Act {TCPA), including any amendment of or addition to such law; of or addition to such law; (2) The CAN-SPAM Act of 2003, including (2) The CAN-SPAM Act of 2003, including any amendment of or addition to such any amendment of or addition to such law; law; (3) The Fair Credit Reporting Act (FCRA), (3) The Fair. Credit Reporting Act (FCRA), and any amendment of or addition to ·and any amendment of or addition to such law, including the Fair and Accu- such law, including the Fair and Accu~ rate Credit Transaction Act (FACTA}; or · rate Credit Transaction Act (FACTA); or (4) Any federal, state or local statute, ordin- (4) Any federal, state or local statute, ordin- ance or regulation, other than the TCPA, ance or regulation, other than the TCPA, CAN-SPAM Act of 2003 or FCRA and CAN-SPAM Act of 2003 or FCRA and their amendments and additions, that their amendments and additions, that addresses, prohibits, or limits the print- addresses, prohibits, or limits the ptint~ ing, dissemination, disposal, collecting, ing, dissemination, disposal, collecting, recording, sending, transmitting, com- recording, sending, transmitting, com- municating or distribution of material or municating or distribution of material or information. information.

CGOO 68 0509 © Insurance Services Office, Inc., 2008 Page 1 of 1 D

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POLICY NUMBER: CCP 672836 COMMERCIAL GENERAl. LIABILITY· CG 03 00 01 96

THIS ENDORSEMENT CHANGES THE POLJCY. PLEASE READ IT CAREFULLY.

DEDUCTIBLE LIABILITY INSURANCE This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART

SCHEDULE Coverage Amount and Basis of Deductible PER CLAIM or PER OCCURRENCE Bodily Injury Liability $ $ OR Property Damage Liability $ $ OR Bodily Injury Liability and/or $ 500 $ Property Damage Liability Combined

(If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) APPLICATION OF ENDORSEMENT Enter below any limitations on the application of this endorsement. If no limitation Is entered, the deductibles apply to damages for all "bodily injury" and "property damage", however caused):

A. Our obligation under the Bodily Injury Liability and b. Under Property Damage Liability Coverage, to Property Damage Liability Coverages to pay dam- all damages sustained by any one person be- ages on your behalf applies only to the amount of cause of "property damageD; or damages in excess of any deductible amounts c. Under Bodily Injury Liability and/or Property stated in the Schedule above as applicable to Damage Liability Coverage Combined, to such coverages. aU damages sustained by any one person 8. You may select a deductible amount on either a because of: per claim or a per "occurrence" basis. Your se- (1) "Bodily injury''; lected deductible applies to the coverage option (2) "Property damage"; or and to the basis of the deductible indicated by the placement of the deductible amount in the Sched- (3) "Bodily injury~ and "property damageD ule above. The deductible amount stated in the combined as the result of any one "occurrence". If Schedule above applies as follows: damages are claimed for care, Joss of ser- 1. PER CLAIM BASIS. If the deductible amount vices or death resulting at any time from nbodily indicated in the Schedule above is on a per claim injury", a separate deductible amount will be basis, that deductible applies as follows: applied to each person making a claim for such a. Under Bodily Injury Liability Coverage, to all damages. With respect to "property damage", damages sustained by any one person be- person in- cause of nbodily injury"; cludes an organization.

CG0300 0196 Copyright, Insurance Services Office, Inc., 1994 Page 1 of2

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2. PER OCCURRENCE BASIS. If the deductible C. The terms of this insurance, including those with amount indicated in the Schedule above is on respect to: a "per occurrence" basis, that deductible 1. Our right and duty to defend the insured amount applies as follows: against any "suits" seeking those damages; a. Under Bodily Injury Liability Coverage, to all and damages because of "bodily injury''; 2. Your duties in the event of an "occurrence•, b. Under Property Damage Liability Coverage, claim, or "suit" to all damages because of "property dam- apply irrespective of the application of the de- age~; or ductible amount. c. Under Bodily Injury Liability and/or Property D. We may pay any part or all of the deductible Damage Liability Coverage Combined, to amount to effect seWement of any cJaim or "suit" all damages because of: and, upon notification of the action taken, you shall (1) "Bodily injury''; promptly reimburse us for such part of the de- (2) AProperty damage"; or ductible amount as has been paid by us. (3) "Bodily injury" and "property damage" combined as the result of any one "occurrence", regard- less of the number of persons or organizations who sustain damages because of that "occur.:. renee".

CG 03 00 0196 Copyright, Insurance Services Office, Inc., 1994 Page2of2

SUPP APP 0940 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 71 of 258 PageID 2641

POLICY NUMBER: CCP 672836 COMMERCIAL GENERAL LIABILITY

TIDS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULY.

ADDITIONAL INSURED- MANAGERS OR LESSORS OF PREMISES This endorsement modifies insurance provided under the following:

SCHEDULE

1. Designation of Premises (Part Leased to You):

2. Name of Person or Organization (Additional Insured):

. POST PROPERTIES INC 5040 ADDISON CIRCLE, SUITE 200 ADDISON, TX 75001

3. Additional Premium: $ INCLUDED

(If no entry appears above, the information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement) WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you and shown in the Schedule and subject to the following additional exclusions: This insurance does not apply to: 1. Any "occurrence" which takes place after you cease to be a tenant in that premises. 2. Structural altemtions, new construction or demolition operations performed by or on behalf of the person or organization shown in the Schedule.

CG20 110196 Copyright, Insurance Services Office, Inc., 1994 Page I ofl

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COMMERCIAL GENERAL LIABILITY CG 20 26 0704

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following;

Name Of Additional Insured Person(s) Or Organization(s)

TOWN OF ADDISON PO BOX9010 ADDISON, TX 5001·

Section II - Who Is An Insured is amended to in- clude as an additional insured the person{s) or or- ganization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property dam- age" or "personal and advertising injurY' caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: A. In the performance of your ongoing operations; or B. In connection with your premises owned by or rented to you.

CG 202607 04 ©ISO Properties, Inc., 2004 Page 1 of1

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COMMERCIAL GENERAL LIABILITY CG 21 46 07 98

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

ABUSE OR MOLESTATION EXCLUSION This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL UABILITY COVERAGE PART

The following exclusion is added to Paragraph 2., 2. The negligent: Exclusions of Section I - Coverage A - Bodily a. Employment; Injury And Property Damage Liability and Para- graph 2., Exclusions of Section I - Coverage B - b. Investigation; Personal And Advertising Injury Liability: c. Supervision; This insurance does not apply to nbodily injury", d. Reporting to the proper authorities, or failure "property damage" or "personal and advertising to so report; or injury" arising out of: e. Retention; 1. The actual or threatened abuse or molestation by of a person for whom any insured is or ever was ·anyone of any person while in the care, custody legally responsible and whose conduct would be or control of any insured, or excluded by Paragraph 1. above.

CG 214607 98 Copyright, Insurance Services Offic&, Inc., 1997 Page 1 of 1 0

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COMMERCIAL GENERAL LIABILITY CG 21 4712 07

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

EMPLOYMENT-RELATED PRACTICES EXCLUSION This endorsement modifies insurance provided under the following:

A. The following exclusion is added to Paragraph 2., B. The following exclusion is added to Paragraph 2., Exclusions of Section I - Coverage A - Bodily Exclusions of Section I -. Coverage B - Person- Injury And Property Damage Liability: al And Advertising Injury Liability: This insurance does not apply to: This insurance does not apply to: "Bodily injury" to: "Personal and advertising injury'' to: (1) A person arising out of any: (1) A person arising out of any: (a) Refusal to employ that person; (a) Refusal to employ that person; (b) Termination of that person's employment; (b) Termination of that person's employment; or or (c) Employment-related practices, policies, (c) Employment-related practices, policies, acts or omissions, such as coercion, demo- acts or omissions, such as coercion, demo- tion, evaluation, reassignment, discipline, tion, evaluation, reassignment, discipline, defamation, harassment, humiliation, dis- defamation, harassment, humiliation, dis- crimination or malicious prosecution di- crimination or malicious prosecution di- rected at that person; or rected at that person; or (2) The spouse, child, parent, brother or sister of (2) The spouse, child, parent, brother or sister of that person as a consequence of "bodily injury" that person as a consequence of "personal and to that person at whom any of the employment- advertising injury" to that person at whom any related practices described in Paragraphs (a), of the employment-related practices ·described (b), or (c) above is directed. in Paragraphs (a), (b), or (c) above is directed; This exclusion applies: This exclusion applies: (1) Whether the injury-causing event described in (1) Whether the injury-causing event described in Paragraphs (a), {b) or (c) above occurs before Paragraphs (a), (b) or (c) above occurs before employment, during employment or after em· employment, during employment or after em- ployment of that person; ployment of that person; (2) Whether the insured may be liable as an em- (2) Whether the insured may be liable as an em- ployer or in any other capacity; and ployer or in any other capacity; and (3) To any obligation to share damages with or (3) To any obligation to share damages with or repay someone else who must pay damages repay someone else who must pay damages because of the injury. because of the injury. ·

CG21471207 © ISO Properties, Inc., 2006 Page 1 of 1 0

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'COMMERCIAL GENERAL LIABILITY CG 21 6512 04

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

TOTAL POLLUTION EXCLUSION WITH A BUILDING HEATING, COOLING AND DEHUMIDIFYING EQUIPMENT EXCEPTION AND A HOSTILE FIRE EXCEPTION This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABIUTY COVERAGE PART

Exclusion f. under Paragraph 2. Exclusions of Sec- (ii) At any premises, site or location on tion I - Coverage A - Bodily Injury And Property which any insured or any contractors or Damage Liability is replaced by the following: subcontractors working directly or indi- This insurance does not apply to: rectly on any insured's behalf are per- forming operations to test for, monitor, f. Pollution clean up, remove, contain, treat, detox- (1) nBodily injury" or "property damage" which ify, neutralize or in any way respond to, would not have occurred in whole or part but or assess the effects of, "pollutants". for the actual, alleged or threatened discharge, (2) Any loss, cost or expense arising out of any: dispersal, seepage, migration, release or es- cape of "pollutants" at any time. (a) Request, demand, order or statutory or regulatory requirement that any insured or This exclusion does not apply to: others test for, monitor, clean up, remove, (a) "Bodily injury" if sustained within a building contain, treat, detoxify or neutralize, or in which is or was at any time owned or occu- any way respond to, or assess the effects pied by, or rented or loaned to, any insured of, "pollutants"; or and caused by smoke, fumes, vapor or soot (b) Claim or suit by or on behalf of a govern- produced by or originating from equipment mental authority for damages because of that is used to heat, cool or dehumidify the testing for, monitoring, cleaning up, remov- building, or equipment that is used to heat ing, containing, treating, detoxifying or neu- water for personal use, by the building's oc- tralizing, or in any way responding to, or cupants or their guests; or assessing the effects of, "pollutants". (b) "Bodily injury" or "property damage" arising out of heat, smoke or fumes from a "hostile fire" unless that "hostile fire" occurred or originated: (i) At any premises, site or location which is or was at any time used by or for any insured or others for the handling, stor- age, disposal, processing or treatment of waste; or

CG 216512 04 ©ISO Properties, Inc., 2003 Page 1 of1 D

SUPP APP 0945 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 76 of 258 PageID 2646

COMMERCIAL GENERAL LIABILITY CG2196 0305

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

SILICA OR SILICA-RELATED DUST EXCLUSION

This endorsement modifies insurance provided under the following:

A. The foilowing exclusion is added to Paragraph 2., B. The following exclusion is added to Paragraph 2., Exclusions of Section I - Coverage A - Bodily Exclusions of Section I - Coverage B - Per- Injury And Property Damage Liability: sonal And Advertising Injury Liability: 2. Exclusions 2. Exclusions This insurance does not apply to: This insurance does not apply to: Silica Or Silica-Related Dust Silica Or Silica-Related Dust a. "Bodily injury" arising, in whole or in part, a. "Personal and advertising injury" arising, in out of the actual, alleged, threatened or whole or in part, out of the actual, alleged, suspected inhalation of, or ingestion of, "sil- threatened or suspected inhalation of. in- ica" or "silica-related dust". gestion of, contact with, exposure to, exis- ·b. "Property damage" arising, in whole or in tence of, or presence of, "silica" or "silica- part, out of the actual, alleged, threatened related dust". or suspected contact With, exposure to. ex- b. Any loss, cost or expense arising, in whole istence of, or presence of, "silica" or "silica- or in part, out of the abating, testing for, related dust". monitoring, cleaning up, removing, contain- c. Any loss, cost or expense arising, in whole ing, treating, detoxifying, neutralizing, reme- or in part, out of the abating, testing for, diating or disposing of, or in any way re- monitoring, cleaning up, removing, contain- sponding to or assessing the effects of, ing, treating, detoxifying, neutralizing, reme- "silica" or "silica-related dust", by any in- diating or disposing of, or in any way re- sured or by any other person or entfty. sponding to or assessing the effects of, C. The following definitions are added to the Defini- "silica" or "silica-related dust", by any in- tions Section: sured or by any other person or entity. 1. "Silica" means silicon dioxide (occurring in crystalline, amorphous and impure forms), sil- ica particles, silica dust or silica compounds. 2. "Silica-related dust" means a mixture or com- bination of silica and other dust or particles.

CG219603 05 ©ISO Properties, Inc., 2004 Page 1 of1 []

SUPP APP 0946 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 77 of 258 PageID 2647

COMMERCIAL GENERAL LIABILITY CG 240405 09

WAIVER OF TRANSFER RIGHTS OF RECOVERY AGAINST OTHERS TO US

This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART

·~arne of Person or Organization:

TOWN OF ADDISON PO BOX9010 ADDISON, TX 75001

The following is added to Paragraph 8. Transfer Of Rights Of Recovery Against Others To Us of ·Section IV Conditions: M

We waive any right of recovery we may have against the person or organization shown in the Schedule above because of payments we make for injury or damage arising out of your ongoing operations or · ''your work" done under a contract with that person or ()rganization and included in the "products· completed operations hazard". This waiver applies only to the person or organization shown in the Schedule above.

CG240405 09 ©Insurance Services Office, Inc., 2008 ·Page I ofl

SUPP APP 0947 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 78 of 258 PageID 2648

POLICY NUMBER: CCP 672836 COMMERCIAL GENERAL UABILITY

TinS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

PRODUCTS/COMPLETED OPERATIONS HAZARD REDEFINED This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART

Description of Premises and Operations :

PIZZA RESTAURANT 5026 ADDISON CIRCLE ADDISON, TX 75001-3332

(If no entry appears above, infonnation required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.)

With respect to ''bodily injury" or "property damage" Paragraph a. of the definition of"Products- completed arising out of "your products" manufactured, sold, operations hazard" in the DEFINITIONS Section is handled or distributed: · replaced by the following: "Products - completed 1. On, from or in connection with the use of any operations hazard": premises described in the Schedule, or a Includes all "bodily injury" and "property damage" that arises out of "your products" if the 2. In connection with the conduct of any operation "bodily injury" or ''property damage" occurs after descn"bed in the Schedule, when conducted by you have relinquished possession of those you or on your behalf. products.

CG24 07 01 96 Copyright, Insurance Services Office, Inc., 1994 Page 1 of1

SUPP APP 0948 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 79 of 258 PageID 2649

CGL 1701a 0510

TIDS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

SPECIAL EXCLUSIONS AND LIMITATIONS ENDORSEMENT This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABlllTY COVERAGE PART

A. In consideration of the premium charged this policy has been issued subject to the foUowing exclusions being added to Coverages A & B: This insurance does not apply to: 1. Asbestos or Lead "Bodily injury", "property damage", or "personal and advertising injury" arising out of or resulting from the disposal, existence, handling, ingestion, inhalation, removal, sale, storage, transportation or use of: a. Asbestos or any material containing asbestos; or b. Lead, lead based paint, lead compounds or any material containing lead.

2. Athletic or Sports Participants "Bodily injury" to any person while practicing for, participating in or officiating at any sports or athletic contest or exhibition that you sponsor or in which you or your employees or guests participate.

3. Communicable Disease or Diseases ''Bodily injury'' or "personal and advertising injury" arising out of or resulting from the transmission or alleged transmission of any sexually transmitted disease or any other disease transmitted by bodily fluids or excretions.

4. Criminal Acts a. "Bodily injury" or "property damage" arising out of or resulting from a criminal act committed by any insured, including any additional insureds or b: "Bodily injury" or '

CGL 1701a OSlO Page 1 ofS

SUPP APP 0949 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 80 of 258 PageID 2650

CGL 1701a OSlO

S. Mold, Fungi, Vi~ Bacteria, Air Quality, Contaminants, Minerals or Other Harmful Materials a. "Bodily injury", "property damage", or "personal and advertising injury" arising out of, caused by, or contributed to in any way by the eXistence, growth, spread, dispersal, release, or escape of any mold, fungi, lichen, virus, bacteria or other growing organism that has toxic, hazardous, noxious, pathogenic, irritating or allergen qualities or characteristics. This exclusion applies to all such claims or causes of action, including allegations that any insured caused or contributed to conditions that encouraged the growth, depositing or establishment of such colonies of mold, lichen, fungi, virus, bacteria or other living or dead organism or

b. "Bodily injury", ''property damage'', or "personal and advertising injury" arising out of, caused by, or alleging to be contributed to in any way by any toxic, hazardous, noxious, irritating, pathogenic or allergen qualities or characteristics of indoor air regardless of cause or

c. "Bodily injury'', "property damage", or "personal and advertising injury" arising out of, caused by, or alleging to be contributed to in any way by any insured's use, sale, installation or removal of any substance, material, or other product that is either alleged or deemed to be hazardous, toxic, irritating, pathogenic or noxious in any way, or contributes in any way to an allergic reaction.

d. "Bodily injury'', "property damage", or "personal and advertising injury" arising out of, caused by, or alleging to be contributed to in any way by toxic or hazardous properties of minerals or other substances.

6. Work or Premises Specifically Insured Elsewhere

Claims, demands, requests for defense, payment, or any other cost arising out of, caused by, or occurring at premises or "your work" covered under any insurance purchased by you or others on your behalf specifically for that premises or project under a Consolidated Insurance Program (CIP), Owner Controlled Insurance Program (OCIP), Contractor Controlled Insurance Program (CClP), Wrap-Up or similar insurance program.

7. Failure To Complete "Your Work''

"Bodily injury", or "property damage" arising out of, caused by, resulting from, or alleged to be related to any insured's failure to complete "your work".

8. Loss, Cost or Damages Prior To Tendered Claim

Any claim, loss, cost or damages that are projected, estimated, or otherwise assessed or adjudicated to be likely before such claims are actually made against the insured by the claimant, or their representatives, actually suffering the alleged "bodily injury" or "property damage".

CGL 1701a 0510 Page2of5

SUPP APP 0950 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 81 of 258 PageID 2651

B. It is agreed that the following exclusions from Section I Coverages are changed as shown below:

1. Liquor Liability

Exclusion c., Liquor Liability of Section I Coverages, Coverage A 2. Exclusions, is deleted and entirely replaced with the following: c. Liquor Liability

"Bodily injury'' or "property damage" for which any insured may be held liable by reason of: a. Causing or contributing to the intoxication of any person; b. Furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or c. Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages. This exclusion applies only if you: a. Are in the business of manufacturing, distributing, selling, serving or furnishing alcoholic beverages; or b. Sell, otherwise provide, or make available alcoholic beverages as a regular part of your business or operations otherwise covered by this policy.

2. Infringement Of Copyright, Patent, Trademark or Trade Secret

Exclusion i., Infringement of Copyright, Patent, Trademark or Trade Secret, of Section I Coverages, Coverage B. 2. Exclusions, is deleted and entirely replaced with the following: i. Infringement Of Copyright, Patent, Trademark or Trade Secret Claims arising out of the infringement of copyright, patent, trademark, trade name, trade dress, trade secret or other intellectual property rights.

C. It is agreed that SECTION IV- COMMERCIAL GENERAL LIABILITY CONDITIONS is changed as follows: 1. Item 4. Other Insurance is deleted and entirely replaced by the following: 4. Other Insurance If other valid and collectible insurance is available to the insured for a loss we cover under Coverages A orB of this Coverage Part, our obligations are limited as follows: a. This insurance is excess over any other insurance whether the other insurance is stated to be primary, pro rata, contributory, excess, contingent, umbrella, or on any other basis; unless the other insurance is issued to the named insured shown in the Declarations of this Coverage Part and is written explicitly to apply in excess of tpe Limits of Insurance shown in the Declarations of this Coverage Part. · b. When this insurance is excess, we will have no duty under Coverage A orB to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit". If no other insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those other insurers.

CGL 1701a 0510 Page3ofS

SUPP APP 0951 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 82 of 258 PageID 2652

c. When this insurance is excess over other insurance, we will pay only our share of the amount of loss, if any, tbat exceeds the sum of: (1) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (2) The total of all deductible and self insured amounts under all that other insurance.

2. Item 5. Premium Audit is deleted and entirely replaced by the following: 5. Premium Audit a. We will compute all premiums for this Coverage Part in accordance with our rules and rates. b. Premium shown in this Coverage Part as advance premium is a deposit premium only. At the close of each audit period we will compute th~ earned premium for that period. Audit premiums are due and payable on notice to the ftrst Named Insured. If the sum of the advance and audit premiums paid for the policy period is greater than the earned premium, we will return the excess to the flrst Named Insured. c. The fust Named Insured must keep records of the information we need for premium computation, and send us copies at such times as we may request. d. Any premium to be returned under b. above is subject to the minimum premium shown in the Declarations page as applicable to this Coverage Part. 3. Item 9. When We Do Not Renew is deleted in its entirety and is not replaced.

D. It is agreed that the following changes are made to SECTION V- DEFINITIONS: The following definitions are deleted and entirely replaced: 1. Item 5. "Employee" is deleted in its entirety and replaced by the following: 5. "Employee" includes a "leased worker", a "temporary worker" and a "volunteer worker".

2. Item 9. "Insured contract" is deleted in its entirety and replaced by the following: 9. "Insured contract" means: a. A contract for a lease of premises. However, that portion of the contract for a lease of premises that indemnifies any person or organization for damage by ftre to premises while rented to you or temporarily occupied by you with permission of the owner is not an "insured contract"; b. A sidetrack agreement; c. Any easement or license agreement, except in connection with construction or demolition operatio:Qs on or within 50 feet of a railroad; d. An obligation, as required by ordinance, to indemnify a municipality, except in connection with work for a municipality; e. An elevator maintenance agreement; f. That part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality) under which you assume the tort liability of another party to pay for "bodily injury" or "property damage" to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. Paragraph f. does not include that part of any contract or agreement: (1) That indemnifies a railroad for "bodily injury" or "property damage" arising out of construction or demolition operations, within 50 feet of any railroad property and affecting any railroad bridge or trestle, tracks, road-beds, tunnel, underpass or crossing;

CGL 1701a 0510 Page4of5

SUPP APP 0952 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 83 of 258 PageID 2653

(2) That indemnifies an arehitect, engineer or surveyor for injury or damage arising out of: (a) Preparing, approving, or failing to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; or (b) Giving directions or instructions, or failing to give them, if that is the primary cause of the injury or damage; or (3) Under which the insured, if an architect, engineer or surveyor, assumes liability for an injury or damage arising out of the insured's rendering or failure to render professional services, including those listed in (2) above and supervisory, inspection, architectural or engineering activities. (4) That indemnifies another for the sole negligence of such other person or organization.

3. Item 13. "Occurrence.. is deleted in its entirety and replaced with the following: 13. "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions. All ''bodily injury" or "property damage" arising out of an "occurrence" or series of related "occurrences" is deemed to take place at the time of the ftrst such damage or injury even though the nature and extent of such damage or injury may change; and even though the damage may be continuous, progressive, cumulative, changing or evolving; and even though the "'occurrence" causing such "bodily injury" or "property damage'' may be continuous or repeated exposure to substantially the same general harmful conditions.

4. Item 14. "Personal and advertising injury" is deleted in its entirety and replaced with the following: 14. "Personal and advertising injury" means injury, including consequential "bodily injury", arising out of one or more of the followirig offenses: a. False arrest, detention or imprisonment; b. Malicious prosecution; c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor; or -d. Oral or written publication, in any manner, of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services.

5. Item 17. "Property Damage" is deleted in its entirety and replaced with the following. 17. "Property damage'' means: a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the "occurrence" that caused it. For the purposes of this insurance, electronic data is not tangible property. As used in this definition, electronic data means infonnation, facts or programs stored as or on, created or used on, or transmitted to or from computer software, including systems and applications software, hard or floppy disks, CD-ROMS, tapes, drives, cells, data processing devices or any other media which are used with electronically controlled equipment. For the purposes of this insurance, ''property damage" is not physical injury to tangible property, any resultant loss of use of tangible property, nor loss of use of tangible property that is not physically injured that arises out offailure to complete or abandonment of "your work".

6. Item 20. "Volunteer worker" is deleted in its entirety and replaced with the following: 20. "Volunteer worker" means a person who donates his or her work and acts at the direction of and within the scope of duties determined by you, and is not paid a fee, salary or other compensation by you or anyone else for their work performed for you.

CGL 1701a 0510 Page5of5

SUPP APP 0953 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 84 of 258 PageID 2654

CGL 1702 11/00

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

ACTION OVER EXCLUSION This endorsement modifies insurance provided under the following:

It is agreed that the following change is made to Coverage A. 2. Exclusions:

Exclusion e. Employer's Liability is deleted in its entirety and replaced with the following:

e. Employer's Liability "Bodily injury" to: (1) An "employee" of the named insured arising out of and in the course of: (a) Employment by the named insured; or (b) Performing duties related to the conduct of the named insured's business; or (2) The spouse, child, parent, brother or sister of that "employee" as a consequence of Paragraph (1} above. .

This exclusion applies: (1) Whether the named insured may be liable as an employer or in any other capacity; and (2) To any obligation to share damages with or repay someone else who must pay damages because ofthe injury.

CGL 1702 11/00 Page 1 ofl·

SUPP APP 0954 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 85 of 258 PageID 2655

CGL 1711 0406 TillS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

LIMITATION OF COVERAGE TO SPECIFIED CLASSIFICATIONS, OPERATIONS, PREMISES, OR PROJECTS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE

~lassification: Description

Premises: 5026 ADDISON CIRCLE ADDISON, TX 75001-3332

Project:

The following new part is added to Section I- Coverages, Coverage A. Bodily Injury and Property Damage Liability; 1. Insuring Agreement. 1. b. (4) The "bodily injury" or "property damage" arise from: (a) The classifications or openttions shown above; or any operations necessary or incidental to those classifications or operations shown above; (b) The ownership, maintenance or use of .the premises shown above and operations necessary or incidental to those premises; or (c) The projects shown above.

The following new part is added to Section I- Coverages, Coverage B. Personal And Advertising Injury Liability, 1. Insuring Agreement. 1. c. This insurance applies to "personal and advertising injury" caused by an offense arising out of your business but only if the offense arises from: (1) The classifications or operations shown above; or any operations necessary or incidental to those classifications or operations shown above; (2) The ownership, maintenance or use of the premises shown above and operations necessary or incidental to those premises; or (3) The projects shown above. Part 3 . of Section II ~ WHO IS AN INSURED - is deleted in its entirety and does not apply to this insurance. Coverage for classifications, operations, or projects not shown above can only be covered if agreed to~ in writing, by us as evidenced by endorsement to this policy.

CGL 1711 0406 Page 1 of1

SUPP APP 0955 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 86 of 258 PageID 2656

CGL 1742 0310

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

RESTAURANT, BAR, TAVERN & GROCERY STORE FOOD POISONING & FOOD CONTAMINATION COVERAGE ENDORSEMENT

This endorsement modifies insurance provided under the following:

It is understood and agreed that CGL 1701, Special Exclusions and Limitations Endorsement, Exclusion A. 6., Mold, Fungi, VIrus, Bacteria, Air Quality, Contaminants, Minerals or Other Harmful Materials, is amended as follows:

Exclusion A. 6. does not apply if: 1. the "bodily injury", "property damage" or "personal and advertising injury" is caused by food or drink poisoning or contamination; and . 2. the insured is a restaurant, bar, tavern, grocery store, or other entity that sells or serves food or drink directly to consumers; and 3. the poisoned or contaminated food or drink was sold or served by the insured.

CGL1742 0310 Page 1 of 1

SUPP APP 0956 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 87 of 258 PageID 2657

CLL 1902 0306

TillS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

LiQUOR LIABILITY COVERAGE ENDORSEMENT This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY .COVERAGE PART

In consideration of the premium charged this policy has been issued subject to the following changes, additional conditions and exclusions:

1. It is agreed that Section I- Coverages, Coverage A Bodily Injury and Property Damage Liability, 2. Exclusions is changed as follows:

a. Expected or Intended Injury is deleted and entirely replaced by the following: a. Expected or Intended Injury "Bodily injmy" or "property damage" expected or intended from the standpoint of any insured.

c. Liquor Liability as stated in the Commercial General Liability Coverage Part and as amended in CGL 1701 is deleted in its entirety and replaced by the following:

Liquor Liability Exclusion

c. Liquor Liability ''Liquor Liability" is defined as "Bodily injury.. or "property damage" for which any insured may be held liable by reason of: a. Causing or contributing to the intoxication of any person; b. Furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or c. Violation of any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages. We have neither a duty to defend nor a duty to indemnify any insured for any claim or suit, and this insurance does not apply, if any proximate or contributing cause of an "occurrence" arises out of"liquor liability". This exclusion applies to all insureds regardless ofwhether you are in the business of manufacturing, distributing, selling, serving or furnishing alcoholic beverages. However this exclusion does not apply to claims within the "products-completed operations hazard".

2. Additional exclusions: This insurance does not apply to: Liquor License Not In Effect "Bodily injury" or "property damage" arising out of any alcoholic beverage sold, served or furnished while any required license is suspended or after such license expires, is cancelled or revoked.

CLL 1902 0306 Page 1 of2

SUPP APP 0957 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 88 of 258 PageID 2658

Alcohol Related Disease Mental anguish, sickness, disease or any other condition arising out of, caused by or in any way related to the use or consumption over time of alcohol, liquor or any other product containing alcohoL

3. It is agreed that Section I- Coverages, Coverage C. Medical Payments is deleted in its entirety.

4. The following is added to SECTION IV- COMMERCIAL GENERAL LIABILITY CONDITIONS In the event this policy is filed with any governmental entity instead of or as a replacement for a statutory or other legally required Liquor Bond, this policy will not be construed to cover or insure any requirements or obligations of such bond.

5. LIMITS ofiNSURANCE It is a condition precedent to coverage under this endorsement that all such claims arising out of coverage granted here under are covered within and will reduce the products-completed operations aggregate limit shown in the Declarations.

All other terms and conditions of this policy remain in force.

CLL 1902 0306 Page 2 of2

SUPP APP 0958 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 89 of 258 PageID 2659

Cen·tury Surety Company COMMERCIAL PROPERTY COVERAGE PART DECLARATIONS Policy No.: CCP 672836 Effective Date: 09-21-2010 ** NAMED INSURED: PASTAZIOS PIZZA, INC. 12:01 A.M. Standard Time

DESCRIPTION OF PREMISES: PREM BLOG LOCATJON ADDRESS CITY ST ZIP CONST OCCUPANCY PIC NO 1 1 5026 Addison Circle Addison TX 75001 Frame PIZZA RESTAURANT PC-3

· pOVERAGES PROVIDED -Insurance at the described premises applies only for which a limit of insurance is shown PREM BLDG OCC COVERAGE LIMIT INSURED VALUATION COVERED CAUSES OF LOSS COINS RATE NO CODE 1 1 0542 Business Personal Property $457,600 RC Special Form including theft 90% 0.82300 1 1 1190 Signs $8,500 RC Special Form including theft 90% 3.08800 1 1 0542 GLASS $5,000 RC Special Form including theft 90% 2.00000

RC means Replacement Cost, ACV means Actual Cash Value: MP means Minimum Premium OPTIONAL COVERAGES w Applicable only when entries are made in the schedule below PREM BlDG CODE COVERAGE LIMIT INSURED COVERED CAUSE$ OF LOSS COJNS RATE NO 1 1 0542 EQUIPMENT BREAKDOWN- $INCLUDED EQUIPMENT BREAKDOWN N/A O.D1890 PREMIUM- $86 1 1 0542 liMITED PROPERTY EXT- $ SEE CCF1514 FLAT FEE- $150

EB means Equipment Breakdown, Bl means Business Income, EE means Extra Expense

PREM BLDG MONTHLY UMIT OF MAXIMUM PERIOD EXTENDED PERIOD NO INDEMNITY OF INDEMNITY OF INDEMNITY

MORTGAGE HOLDERS PREM BLDG MORTGAGE HOlDER NAME AND MAIUNG ADDRESS NO

DEDUCTIBLE See Attached Form CCF 1512

FORMS AND ENDORSEMENTS (other than applicable Forms and Endorsements shown elsewhere in the policy): Fonns and Endorsements applying to this Coverage Part and made part of this policy at time of issue:

See Attached Schedule of Forms CIL 15 OOB 02 02

PREMIUM Subtotal for this Coverage Part $ 4,364 Minimum Premium for this Coverage Part:$ 300 TRIA Coverage $ 0 Premium for this Coverage Part $ 4,364

THESE DECLARATIONS ARE PART OF THE POLICY DECLARATIONS CONTAINING THE NAME OF THIS INSURED AND THE POLICY PERIOD CCF 15 00 09 07 Page 1 of 1

SUPP APP 0959 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 90 of 258 PageID 2660

COMMERCIAL PROPERTY CP 0010 06 07

BUILDING AND PERSONAL PROPERTY COVERAGE FORM Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what is and is not covered. Throughout this policy the words "you" and "your" refer to the Named Insured shown in the Declarations. The words "we", "us" and "our" refer to the Company providing this insurance. Other words and phrases that appear in quotation marks have special meaning. Refer to Section H., Definitions.

A. Coverage (b) Materials, equipment, supplies and We will pay for direct physical loss of or damage to temporary structures, on or within Covered Property at the premises described in the 100 feet of the described premises, Declarations caused by or resulting from any Cov- used for making additions, altera- . ered Cause of Loss. tions or repairs to the building or structure. 1. Covered Property b. Your Business Personal Property located Covered Property, as used in this Coverage· in or on the building described in the Decla- Part, means the type of property described in rations or in the open (or in a vehicle) within this section, A.1., and limited in A.2., Property 100 feet of the described premises, consist- Not Covered, if a Limit of Insurance is shown in ing of the following unless otherwise speci- the Declarations for that type of property. fied in the Declarations or on the Your a. Building,. meaning the building or structure Business Personal Property - Separation described in the Declarations, including: Of Coverage form: (1) Completed additions; (1) Furniture and fixtures; (2) Fixtures, including outdoor fixtures; (2) Machinery and equipment, (3) Permanently installed: (3) "Stock"; (a) Machinery and (4) All other personal property owned by you and used in your business; (b) Equipment; . (4) Personal property owned by you that is (5) Labor, materials or services furnished or arranged by you on personal property of used to maintain or service the building or structure or its premises, including: others: (6) Your use interest as tenant in improve- (a) Fire-extinguishing equipment; ments and betterments. Improvements (b) Outdoor furniture; and betterments are fiXtures, alterations, (c) Floor coverings; and installations or additions: (d) Appliances used for refrigerating, (a) Made a part of the building or struc- ventilating, cooking, dishwashing or ture you occupy but do not own; and laundering; {b) You acquired or made at your ex- (5) If not covered by other insurance: pense but cannot legally remove; (a) Additions under construction, altera- (7) Leased personal property for which you tions and repairs to the building or have a contractual responsibility to in- structure; sure, unless otherwise provided for un- der Personal Property Of Others.

CP 0010 06 07 © ISO Properties, Inc., 2007 Page 1 of15 [J

SUPP APP 0960 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 91 of 258 PageID 2661

c. Personal Property Of Others that is: n. Electronic data, except as provided under (1) In your care, custody or control; and the Additional Coverage, Electronic Data. Electronic data means information, facts or (2) Located in or on the building described computer programs stored as or on, in the Declarations or in the open (or in created or used on, or transmitted to or a vehicle) within 100 feet of the de- from computer software (including systems scribed premises. and applications software), on hard or flop- However, our payment for loss of or dam- py disks, CD-ROMs, tapes, drives, cells, age to personal property of others will only data processing devices or any other repo- be for the account of the owner of the prop- sitories of computer software which are erty. used with electronically controlled equip- ment. The tenn computer programs, re- 2. Property Not Covered ferred to in the foregoing description of Covered Property does not include: electronic data, means a set of related elec- a. Accounts, bills, · currency, food stamps or tronic instructions which direct the opera- other evidences of debt, money, notes or tions and functions of a computer or device securities. Lottery tickets held for sale are connected to it, which enable the computer not securities; or device to receive, process, store, retrieve or send data. This paragraph, n., does not · b. Animals, unless owned by others and apply to your "stock" of prepackaged .soft- boarded by you, or if owned by you, only as ware; "stock" while inside of buildings; o. The cost to replace or restore the informa- c. Automobiles held for sale; tion on valuable papers and records, includ- d. Bridges, roadways, walks, patios or other ing those which exist as electronic data. paved surfaces; Valuable papers and records include but e. Contraband, or property in the course of are not limited to proprietarY information, illegal transportation or trade; books of account, deeds, manuscripts, ab- stracts, drawings and card index systems. f. The cost of excavations, grading, backfilling Refer to the Coverage Extension for Valua- or filling; ble Papers And Records (Other Than Elec- g. Foundations of buildings, structures, ma- tronic Data) for limited coverage for valua- chinery or boilers ff their foundations are ble papers and records other than those below: which exist as electronic data; (1) The lowest basement floor; or p. Vehicles or self-propelled machines (includ- (2) The surface of the ground, if there is no ing aircraft or watercraft) that: basement; (1) Are licensed for use on public roads; or h. Land (including land on which the property (2) Are operated principally away from the is located), water, growing crops or lawns; described premises. i. Personal property while airborne or water- This paragraph does not apply to; borne; (a) Vehicles or self-propelled machines j. Bulkheads, pilings, piers, wharves or docks; or autos you manufacture, process k. Property that is covered under another or warehouse; coverage form of this or any other policy in (b) Vehicles or self-propelled machines, which it is more specifically described, ex- other than autos, you hold for sale; cept for the excess of the amount due (c) Rowboats or canoes· out of water at (whether you can collect on it or not) from the described premises; or that other insurance; (d) Trailers, but only to the extent pro- 1. Retaining walls that are not part of a build- vided for in the Coverage Extension ing; for Non-owned Detached Trailers; m. Underground pipes, flues or drains;

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SUPP APP 0961 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 92 of 258 PageID 2662

q. The following property while outside of (a) The total of the actual debris removal buildings: expense plus the amount we pay for (1) Grain, hay, straw or other crops; direct physical loss or damage ex- ceeds the Limit of Insurance on the (2) Fences, radio or television antennas Covered Property that has sustained (including satellite dishes) and their loss or damage. lead-in wiring, masts or towers, trees, shrubs or plants (other than "stock" of (b) The actual debris removal expense trees, shrubs or plants), all except as exceeds 25% of the sum of the de- provided in the Coverage Extensions. ductible plus the amount that we pay for direct physical loss or damage to 3. Covered Causes Of Loss the Covered Property that has sus- See applicable Causes Of Loss Form as tained loss or damage. · shown in the Declarations. Therefore, if (4)(a) and/or (4)(b} apply, 4. A~ditional Coverages our total payment for direct physical loss a. Debris Removal or damage and debris removal expense may reach but will never exceed the (1) Subject to Paragraphs (3) and (4), we Limit of Insurance on the Covered Prop- will pay your expense to remove debris erty that has sustained loss or damage, of Covered Property caused by or re- plus $10,000. sulting from a Covered Cause of Loss that occurs during the policy period. The (5) Examples expenses will be paid only if they are The following examples assume that reported to us in writing within 180 days there is no Coinsurance penalty. of the date of direct physical loss or EXAMPLE#1 damage. (2) Debris Removal does not apply to costs Limit of Insurance: $ 90,000 to: Amount of Deductible: $ 500 (a) Extract "pollutants" from land or Amount of Loss: $ 50,000 water; or Amount of Loss Payable: $ 49,500 (b) Remove, restore or replace polluted ($50,000- $500) land or water. Debris Removal Expense: $ 10,000 (3) Subject to the exceptions in Paragraph Debris Removal Expense Payable: $ 10,000 (4), the following provisions apply: ($10,000 is 20% of $50,000.) (a} The most we will pay for the total of direct· physical loss or damage plus The debris removal expense is less than 25% of the debris removal expense is the Limit sum of the loss payable plus the deductible. The sum of Insurance applicable to the Cov- of the loss payable and the debris removal expense ered Property that has . sustained ($49,500 + $10,000 = $59,500} is less than the Limit loss or damage. of Insurance. Therefore the full amount of debris removal expense is payable in accordance with the (b) Subject to (a} above, the amount we terms of Paragraph (3). will pay for debris removal expense is limited to 25% of the sum of the EXAMPLE#2 deductible plus the amount that we pay for direct physical loss or dam- Limit of Insurance: $ 90,000 age to the Covered Property that has Amount of Deductible: $ 500 sustained loss or damage. Amount of Loss: $ 80,000 (4) We will pay up to an additional $1 0;000 Amount of Loss Payable: $ 79,500 for debris removal expense, for each lo- ($80,000- $500) cation, in any one occurrence of physi~ cal loss or damage to Covered Property, Debris Removal Expense: $ 30,000 if one or both of the following circums- Debris Removal Expense Payable tances apply: Basic Amount: $ 10,500 Additional Amount: $ 10,000

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SUPP APP 0962 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 93 of 258 PageID 2663

The basic amount payable for debris removal ex- d. Pollutant Clean-up And Removal pense under the terms of Paragraph (3) is calculated We will pay your expense to extract "pollu- as follows: $80,000 ($79,500 + $500) x 25 =$20,000; tants" from land or water at the described capped at $10,500. The cap applies because the sum premises if the discharge, dispersal, see- of the loss payable ($79,500) and the basic amount page, migration, release or escape of the payable for debris removal expense ($10,500) cannot Npollutants" is caused by or results from a exceed the Limit of Insurance ($90,000). Covered Cause of Loss that occurs during The additional amount payable for debris removal the policy period. The expenses will be paid expense is provided in accordance with the terms of only if they are reported to us in writing Paragraph (4), because the debris removal expense within 180 days of the date on which the ($30,000) exceeds 25% of the loss payable plus the Covered Cause of Loss occurs. deductible ($30,000 is· 37.5% of $80,000), and be- This Additional Coverage does not apply to cause the sum of the loss payable and debris removal costs to test for, monitor or assess the exis- = expense ($79,500 + $30,000 $109,500) wou!~ ex- tence, concentration or effects of "poilu- ceed the Limit of Insurance ($90,000). The add1t1onal . tants". But we will pay for testing which is amount of covered debris removal expense is performed in the course of extracting the $10,000, the maximum payable under Paragraph (4). "pollutants" from the land or water. Thus the total payable for debris removal expense in this example is $20,500; $9,500 of the debris removal The most we will pay under this Additional expense is not covered. Coverage for each described premises is $10,000 for the sum of all covered ex- b. Preservation Of Property penses arising out of Covered Causes of If it is necessary to move Covered Property Loss occurring during each separate 12- from the described premises to preserve it month period of this policy. from loss or damage by a Covered Cause e. Increased Cost Of Construction of Loss, we will pay for any direct physical {1) This Additional Coverage applies only to loss or damage to that property: buildings to which the Replacement (1) While it is being moved or while tempo- Cost Optional Coverage applies. · rarily stored at another location; and (2) In the event of damage by a Covered {2) Only if the loss or damage occurs within Cause of Loss to a building that is Cov- 30 days after the property is first moved. ered Property, we will pay the increased c. Fire Department Service Charge costs incurred to comply with enforce- ment of an ordinance or law in the When the fire department is called to save course of repair, rebuilding or replace- or protect Covered Property from a Cov- ment of damaged parts of that property, ered Cause of Loss, we will pay up to subject to the limitations stated in e.(3) $1,000, unless a higher limit is shown in the through e.(9) of this Additional Cover- Declarations, for your liability for fire de- age. partment service charges: {3) The ordinance or law referred to in e.{2} (1) Assumed by contract or agreement prior of this Additional Coverage is an ordin- to loss; or ance or Jaw that regulates the construc- (2) Required by local ordinance. tion or repair of buildings or establishes No Deductible applies to this Additional zoning or land use requirements at the ·coverage. described premises, and is in force at the time of Joss.

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SUPP APP 0963 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 94 of 258 PageID 2664

(4) Under this Additional Coverage, we will (ii) Unless the repairs or replace- not pay any costs due to an ordinance ment are made as soon as rea- or law that: sonably possible after the loss or (a) You were required to comply with damage, not to exceed two before the loss, even when' the build· years. We may extend this period ing was undamaged; and in writing during the two years. (b) You failed to comply with. {b) If the building is repaired or replaced at the same premises, or if you elect (5) Under this Additional Coverage, we will to rebuitd at another premises, the not pay for: most we will pay for the Increased (a) The enforcement of any ordinance or Cost of Construction, subject to the law which requires demolition, repair, provisions of e.(6) of this Additional replacement, reconstruction, re- Coverage, is the increased cost of modeling or remediation of property construction at the same premises. due to contamination by "pollutants" (c) If the ordinance or Jaw requires relo- or due to the presence, growth, proli- cation to another premises, the most feration, spread or any activity of we will pay ·for the Increased Cost of "fungus", wet or dry rot or bacteria; Construction, subject to the provi- or sions of e.(6) of this Additional Cov- (b) Any costs aS$ociated with the en- erage, is the increased cost of con- forcement of an ordinance or law struction at the new premises. which requires any insured or others (8) This Additional Coverage is not subject to test for, monitor, clean up, re- to the terms of the Ordinance Or Law move, contain, treat, detoxify or neu- Exclusion, to the extent that such Exclu- tralize, or in any way respond to, or sion would conflict with the provisions of assess the effects of "pollutants", this Additional Coverage. "fungus", wet or dry rot or bacteria. (9) The costs addressed in the Loss Pay- (6) The most we will pay under this Addi- ment and Valuation Conditions, and the tional Coverage, for each described Replacement Cost Optional Coverage, building insured under this Coverage in this Coverage Form, do not include Form, is $10,000 or 5% of the Limit of the increased cost attributable to en- Insurance applicable to that building, forcement of an ordinance or law. The whichever is less. If a damaged building amount payable under this Additional is covered under a blanket Limit of In- Coverage, as stated in e.(6) of this Addi- surance which applies to more than one tional Coverage, is not subject to such building or item of property, then the limitation. most we will pay under this Additional Coverage, for that damaged building, is f. Electronic Data the lesser of: $10,000 or 5% times the (1) Under this Additional Coverage, elec- value of the damaged building as of the tronic data has the meaning described time of loss times the applicable Coin- under Property Not Covered, Electronic surance percentage. Data. The amount payable under this Addi- (2) Subject to the provisions of this Addi- tional Coverage is additional insurance. tional Coverage, we will pay for the cost (7) Wrth respect to this Additional Cover- to replace or restore electronic data age: which has been destroyed or corrupted by a Covered Cause of Loss. To the ex~ (a) We will not pay for the Increased tent that electronic data is not replaced Cost of Construction: or restored, the loss will be valued at the (i) Until the property is actually re- cost of replacement of the media on paired or replaced, at the same which the electronic data was stored, or another premises; and with blank media of substantially iden- tical type.

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SUPP APP 0964 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 95 of 258 PageID 2665

(3) The Covered Causes of Loss applicable 5. Coverage Extensions to Your Business Personal Property ap- Except as otherwise provided, the following Ex- ply to this Additional Coverage, Elec- tensions apply to property located in or on the tronic Data, subject to the following: building described in the Declarations or in the (a) If the Causes Of Loss - Special open (or in a vehicle} within 100 feet of the de- Form applies, coverage under this scribed premises. Additional Coverage, Electronic Da- If a Coinsurance percentage of 80% or more, ta, is limited to the "specified causes or a Value Reporting period symbol, is shown of loss" as defined in that form. and in the Declarations, you may extend the insur~ Collapse as set forth in that form. ance provided by this Coverage Part as fol- .(b) If the Causes Of Loss - Broad Form lows: applies, coverage under this Addi- a. Newly Acquired Or Constructed tional Coverage, Electronic Data, in- Property cludes Collapse as set forth in that form. (1) Buildings (c) If the Causes Of Loss Form is en- If this policy covers Building, you may dorsed to add a Covered Cause of extend that insurance to apply to: Loss, the additional Covered Cause (a) Your new buildings while being built of Loss does not apply to the cover- on the described premises; and age provided under this Additional (b) Buildings you acquire at locations, Coverage, Electronic Data. other than the described premises, (d) The Covered Causes of Loss include intended for: a virus, harmful code or similar in- (i) Similar use as the building de- struction introduced into or enacted scribed in the Declarations; or on a computer system (including electronic data) or a network to (ii) Use as a warehouse. which it is connected, designed to The most we will pay for loss or damage damage or destroy any part of the under this Extension is $250,000 at system or disrupt its normal opera- each building. tion. But there is no coverage for (2) Your Business Personal Property loss or damage caused by or result- ing from manipulation of a computer (a) If this policy covers Your Business system (including electronic data) by Personal Property, you may extend any employee, including a temporary that insurance to apply to: or teased employee, or by an entity (i) Business personal property, retained by you or for you to inspect, including such property that you design, install, modify, maintain, re- newly acquire, at any location pair or replace that system. you acquire other than at fairs, {4) The most we will pay under this Addi- trade shows or exhibitions; tional Coverage, Electronic Data, is (ii) Business pers(;mal property, $2,500 for all loss or damage sustained including such property that you In any one policy year, regardless of the newly acquire, located at your number of occurrences of loss or dam- newly constructed or acquired age or the number of premises, loca- buildings at the location de- tions or computer systems involved. If scribed in the Declarations; or loss payment on the first occurrence does not exhaust this amount, then the (iii) Business personal property that · balance is available for subsequent loss you newly acquire, located at the or damage sustained in but not after that described premises. policy year. With respect to an occur- The most we will pay for loss or rence which begins in one policy year damage under this Extension is and continues or results in additional $100,000 at each building. loss or damage in a subsequent policy year(s), all loss or damage is deemed to be sustained in the policy year in which the occurrence began.

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SUPP APP 0965 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 96 of 258 PageID 2666

(b) This Extension does not apply to: c. Valuable Papers And Records (Other (i) Personal property of others that Than Electronic Data) is temporarily in your possession (1) You may extend the insurance that in the course of installing or per- applies to Your Business Personal forming work on such property; or Property to apply to the cost to replace (ii) Personal property of others that or restore the lost information on valua- is temporarily in your possession ble papers and records for which dupli- in the course of your manufactur- cates do not exist. But this Extension ing or wholesaling activities. does not apply to valuable papers and records which exist as electronic data. (3) Period Of Coverage Electronic data has the meaning de- . With respect to insurance on or at each scribed under Property Not Covered, newly acquired or constructed property, Electronic Data. coverage will end when any of the fol- (2) If the Causes Of Loss - Special Form lowing first occurs: applies, coverage under this Extension (a) This policy expires; is limited to the "specified causes of loss" as defined in that form, and Col- (b) 30 days expire after you acquire the lapse as set forth in that form. property or begin construction of that part of the building that would qualify (3} If the Causes Of Loss - Broad Form as covered property; or applies, coverage under this Extension · includes Collapse as set forth in that (c) You report values to us. form. We will charge you additional premium (4) Under this Extension, the most we will for values reported from the date you pay to replace or restore the lost infor- acquire the property or begin construc- mation is $2,500 at each described tion of that part of the building that would premises, unless a higher limit is shown qualify as covered property. in the Declarations. Such amount is ad- b. Personal Effects And Property Of Others ditional insurance. We will also pay for You may extend the insurance that applies the cost of blank material for reproduc- to Your Business Personal Property to ap- ing the records (whether or not dupli- ply to: cates exist), and (when there is a dupli- cate) for the cost of labor to transcribe (1) Personal effects owned by you, your or copy the records. The costs of blank officers, ,your partners or members, your material and labor are subject to the ap- managers or your employees. This Ex- plicable Limit of Insurance on Your tension does not apply to Joss or dam- Business Personal Property and there- age by theft. · fore coverage of such costs is not addi- (2) Personal property of others in your care, tional insurance. custody or control. d. Property Off-premises The most we will pay for loss or damage (1) You may extend the insurance provided under this Extension is $2,500 at each de- by this Coverage Form to apply to your scribed premises. Our payment for loss of Covered Property while it is away from or damage to personal property of others the described premises, if it is: will only be for the account of the owner of the property. (a) Temporarily at a location you do not own, lease or operate; (b) ln storage at a location you tease, provided the lease was executed af- ter the beginning of the current policy term; or (c) At any fair, trade show or exhibition.

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SUPP APP 0966 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 97 of 258 PageID 2667

(2) This Extension does not apply to proper- (2) We will·not pay for any Joss or damage ty: that occurs: (a) In or oh a vehicle; or (a) While the trailer is attached to any (b) In the care, custody or control of motor vehicle or motorized con- your salespersons, unless the prop.. veyance, whether or not the motor erty is in such care, custody or con- vehicle or motorized conveyance is trol at a fair, trade show or exhibition. in motion; (3) The most we will pay for loss or damage (b) During hitching or unhitching opera- under this Extension is $10,000. tions, or when a trailer becomes ac- cidentally unhitched from a motor e. Outdoor Property vehicle or motorized conveyance. You may extend the insurance provided by (3) The most we will pay for loss or damage this Coverage Form to apply to your out- under this Extension is $5,000, unless a door fences, radio and television antennas higher limit is shown in the Declarations. (including satellite dishes), trees, shrubs and plants (other than "stock" of trees, (4) This insurance is excess over the shrubs or plants), including debris removal amount due (whether you can collect on expense, caused by or resulting from any of it or not) from any other insurance cov- the following causes of loss if they are Cov- ering such property. ered Causes of Loss: Each of these Extensions is additional insurance (1) Fire; unless otherwise indicated. The Additional Condi- tion, Coinsurance, does not apply to these Exten- · (2) Lightning; sions. (3) Explosion; B. Exclusions And Limitations · (4) Riot or Civil Commotion; or See applicable Causes Of Loss Form as shown in (5) Aircraft the Declarations. The most we will pay for loss or damage C. Limits Of Insurance under this Extension is $1,000, but not The most we will pay for loss or damage in any more than $250 for any one tree, shrub or one occurrence is the applicable Limit of Insur- plant. These limits apply to any one occur- ance shown in the Declarations . . renee, regardless of the types or number of · items lost or damaged in that occurrence. The most we will pay for loss or damage to out- door signs, whether or not the sign is attached to a f. Non-owned Detached Trailers building, is $2,500 per sign in any one occurrence. (1) You may extend the insurance that The amounts of insurance stated in .the following applies to Your Business Personal Additional Coverages apply in accordance with the Property to apply to loss or damage to . terms of such coverages and are separate from trailers that you do not own, provided · the Limit(s) of Insurance shown in the Declarations that: for any other coverage: (a) The trailer is used in your business; 1. Fire Department Service Charge; (b) The trailer is in your care, custody or 2. Pollutant Clean-up And Removal; control at the premises described in the Declarations; and 3. Increased Cost Of Construction; and (c) You have a contractual responsibility 4. Electronic Data. to pay for loss or damage to the trai- Payments under the Preservation Of Property Ad- ler. ditional Coverage will not increase the applicable Limit of Insurance.

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SUPP APP 0967 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 98 of 258 PageID 2668

D. Deductible EXAMPLE#2 In any one occurrence of loss or damage {herei- (This example, too, assumes there is no Coinsurance nafter referred to as loss), we will first reduce the penalty.) amount of loss if required by the Coinsurance The Deductible and Limits of Insurance are the same Condition or the Agreed Value Optional Coverage. as those in Example #1. If the adjusted amount of loss is less than or equal to the Deductible, we will not pay for that loss. If Loss to Building #1: $ 70,000 the adjusted amount of loss exceeds the Deducti- (Exceeds Limit of Insurance plus Deductible) ble, we will then subtract the Deductible from the adjusted amount of loss, and will pay the resulting Loss to Building #2: $ 90,000 amount or the Limit of Insurance, whichever is (Exceeds Limit of Insurance plus Deductible) less. Loss Payable -Building #1: $ 60,000 When the occurrence involves loss to more than (Limit of Insurance) one i~m of Covered PropertY and separate Limits Loss Payable- Building #2: $ 80,000 of Insurance apply, the losses will not be com- bined in determining application of the Deductible. (Limit of Insurance) But the Deductible will be applied only once per Total amount of loss payable: $ 140,000 occurrence. E. Loss Conditions EXAMPLE#1 The following conditions apply in addition to the (This example assumes there is no Coinsurance Common PoOcy Conditions and the Commercial penalty.) · Property Conditions. 1. Abandonment Deductible: $ 250 Limit of Insurance- Building #1: $ 60,000 There can be no abandonment of any property to us. Limit of Insurance- Building #2: $ 80,000 2. Appraisal Loss to Building #1: $ 60,100 If we and you disagree on the value of the Loss to Building #2: $ 90,000 property or the amount of loss, either may The amount of loss to Building #1 ($60, 100) is less make written demand for an appraisal of the than the sum {$60,250) of the Limit of Insurance ap- loss. In this event, each party will select a plicable to.Building #1 plus the Deductible. competent and impartial appraiser. The two The Deductible will be subtracted from the amount of appraisers will select an umpire. If they cannot loss in calculating the loss payable for Building #1: agree, either may request that selection be made by a judge of a court having jurisdiction. $ 60,100 The appraisers will state separately the value 250 of the property and amount of loss. If they fail to agree, they will submit their differences to $ 59,850 Loss Payable - Building #1 the umpire. A decision agreed to by any two The Deductible applies once per occurrence and will be binding. Each party will: therefore is not subtracted in determining the amount a. Pay its chosen appraiser; and of loss payable for Building #2. Loss payable for Building #2 is the Limit of Insurance of $80,000. b. Bear the other expenses of the appraisal and umpire equally. Total amount of loss payable: If there is an appraisal, we will still retain our $59,850 + $80,000 =$139,850 right to deny the claim.

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SUPP APP 0968 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 99 of 258 PageID 2669

3. Duties In The Event Of Loss Or Damage 4. Loss Payment a. You must see that the following are done in a. In the event of loss or damage covered by the event of loss or damage to Covered this Coverage Form, at our option, we will Property: either: (1) Notify the police if a law may have been (1) Pay the value of lost or damaged prop- broken. · · erty; (2) Give us prompt notice of the loss or (2) Pay the cost of repairing or replacing the damage. Include a description of the lost or damaged property, subject to b. property involved. below; (3) As soon as possible, give us a descrip- (3) Take all or any part of the property at an tion of how, when and where the loss or agreed or appraised value; or damage occurred. (4) Repair, rebuild or replace the property (4) Take all reasonable steps to protect the with other property of like kind and quali- Covered Property from further damage, ty, subject to b. below. and keep a record of your expenses ne- We will determine the value of lost or dam- cessary to protect the Covered Property, aged property, or the cost of its repair or for consideration in the settlement of the replacement, in accordance with the appli- claim. This will not increase the Limit of cable terms of the Valuation Condition in Insurance. However, we will not pay for this Coverage Form or any applicable pro· any subsequent loss or damage result- vision which amends or supersedes the ing from a cause of loss that is not _a Valuation Condition. · Covered Cause of Loss. Also, if feasi- ble, set the damaged property aside and b. The cost to repair, rebuild or replace does in the best possible order for examina- not include the increased cost attributable tion. to enforcement of any ordinance or law re- gulating the construction, use or repair of {5) At our request, give us complete. inven- any property. tories of the damaged and undamaged property. Include quantities, costs, val- c. We will give notice of our intentions within · ues and amount of loss claimed. 30 days after we receive the sworn proof of loss. . (6) As often as may be reasonably required, permit us to inspect the property proving d. We will not pay you more than your finan- the loss or damage and examine your cial interest in the Covered Property. books and records. e. We may adjust losses with the owners of Also permit us to take samples of dam- lost or damaged property if other than you. aged and undamaged property for in- If we pay the owners, such payments will spection, testing and analysis, and per- satisfy your claims against us for the own- mit us to make copies from your books ers' property. We will not pay the owners and records. more than their financial interest in the Covered Property. (7) Send us a signed, sworn proof of loss containing the information we request to f. We may elect to defend you against suits investigate the claim. You must do this arising from claims of owners of property. within 60 days after our request. We will We will do this at our expense. supply you with the necessary forms. g. We will pay for covered loss or damage (8) Cooperate with us in the investigation or within 30 days after we receive the sworn settlement of the claim. proof of loss, if you have complied with all of the terms of this Coverage Part and: b. We may examine any insured under oath, while not in the presence of any other in- (1) We have reached agreement with you sured and at such times as may be reason- on the amount of loss; or ably required, about any matter relating to (2) An appraisal award has been made. this insurance or the claim, including an in- sured's books and records. In the event of an examination, an insured's answers must be signed.

Page 10 of15 © ISO Properties, Inc., 2007 CP 0010 06 07 [J

SUPP APP 0969 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 100 of 258 PageID 2670

h. A party wall is a wall that separates and is {b) When this policy is issued to the common to adjoining buildings that are owner or general lessee of a build- owned by different parties. In settling cov- ing, building means the entire build- ered losses involving a party wall, we will ing. Such building is vacant unless at pay a proportion of the loss to the party wall least 31 % of its total square footage based on your interest in the wall in propor- is: tion to the interest of the owner of the ad- (i) Rented to a lessee or sub-lessee joining building. However, if you elect to re- and used by the lessee or sub- pair or replace your building and the owner lessee to conduct its customary of the adjoining building elects not to repair operations; and/or or replace that building, we will pay you the full value of the loss to the party wall, sub- (ii) Used by the building owner to ject to all applicable policy provisions in- conduct customary operations. cluding Limits of Insurance, the Valuation (2) Buildings under construction or renova- and Coinsurance Conditions and all other tion are not considered vacant. provisions of this Loss Payment Condition. b. Vacancy Provisions Our payment under the provisions of this paragraph does not alter any right of subro- If the building where loss or damage occurs gation we may have against any entity, in- has been vacant for more than 60 consecu- cluding the owner or insurer of the adjoining . tive days before that loss or damage oc- building, and does not alter the terms of the curs: Transfer Of Rights Of Recovery Against (1) We will not pay for any loss or damage Others To Us Condition in this policy. caused by any of the following even if 5. Recovered Property they are Covered Causes of Loss: If either you or we recover any property after · (a) Vandalism; loss settlement, that party must give the other (b) Sprinkler leakage, unless you have prompt notice. At your option, the property will protected the system against freez- be returned to you. You must then return to us ing; the amount we paid to you for the property. We (c) Building glass breakage; will pay recovery expenses and the expenses to repair the recovered property, subject to the (d) Water damage;. Limit of Insurance. (e) Theft; or 6. Vacancy (f) Attempted theft. a. Description Of Terms (2) With respect to Covered Causes of Loss (1) As used in this Vacancy Condition, the other than those listed in b.{1)(a) term building and the term vacant have through b.(1)(f) above, we will reduce the meanings set forth in (1}(a) and the amount we would otherwise pay for (1)(b} below: the loss or damage by 15%. (a) When this policy is issued to a te- 7. Valuation nant, and with respect to that te- We will determine the value of Covered Prop- nanfs interest in Covered Property, erty in the event of loss or damage as follows: building means the unit or suite rented or leased to the tenant. Such a. At actual cash value as of the time of loss building is vacant when it does not or damage, except as provided in b., c., d. contain enough business personal and e. below. property to conduct customary oper- b. If the Limit of Insurance for Building satis- ations. fies the Additional Condition, Coinsurance, and the cost to repair or replace the dam- aged building property is $2,500 or less, we will pay the cost of building repairs or re- placement.

CP 0010 06 07 © ISO Properties, Inc., 2007 Page 11 of 15 CJ

SUPP APP 0970 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 101 of 258 PageID 2671

The cost of building repairs or replacement 1. Coinsurance does not include the increased cost attri- If a· Coinsurance percentage is shown in the butable to enforcement of any ordinance or Declarations, the following condition applies. law regulating the construction, use or re- pair of any property. a. We will not pay the full amount of any loss if the value of Covered Property at the time of However, the following property wfll be va- loss times the Coinsurance percentage lued at the actual cash value even when at- shown for it in the Declarations is greater tached to the building: than the Limit of Insurance for the property. (1) Awnings or floor coverings; Instead, we will determine the most we will (2) Appliances for refrigerating, ve~tilating, pay using the following steps: cooking, dishwashing or laundenng; or (1) Multiply the value of Covered Property {3) Outdoor equipment or furniture. at the time of loss by the Coinsurance c. "Stock" you have sold but not delivered at percentage; the selling price less discounts and ex- . (2) Divide the Limit of Insurance of the penses you otherwise would have had. property by the figure determined in d. Glass at the cost of replacement with safe- Step (1); ty-glazing material if required by law. (3) Multiply the total amount of loss, before e. Tenants' Improvements and Betterments at: the application of any deductible, by the figure determined in Step (2); and (1) Actual cash value of the lost or dam- aged property if · you make repairs (4) Subtract the deductible from the figure promptly. determined in Step (3). {2) A proportion of your original cost if you We will pay the amount determined in Step do not make repairs promptly. We will (4) or the limit of insurance, whichever is determine the proportionate value as fol- less. For the remainder, you will either have lows: to rely on other insurance or absorb the loss yourself. (a} Multiply the original cost by the num- ber of days from the loss or damage EXAMPLE #1 (UNDERINSURANCE} to the expiration of the lease; and When: The value of the property is: $250,000 (b) Divide the amount determined in (a) The Coinsurance percentage above by the number of days from for it is: 80% the installation of improvements to the expiration of the lease. The Limit of Insurance for it is: $100,000 The Deductible is: $ 250 If your lease contains a renewal option, the expiration of the renewal option pe- The amount of loss is: $ 40,000 riod will replace the expiration of the Step (1): $250,000 X 80% = $200,000 lease in this procedure. (the minimum amount of insurance to (3) Nothing if others pay for repairs or re- meet your Coinsurance requirements) placement. Step (2): $100,000 + $200,000 .SO = F. Additional Conditions = Step (3): $40,000 X .50 $20,000 The following conditions apply in addition to t~e Step (4): $20,000-$250 = $19,750 Common Policy Conditions and the Commerctal Property Conditions. We will pay no more than $19,750. The remaining $20,250 is not covered.

Page 12of15 © ISO Properties, Inc., 2007 CP 0010 06 07 0

SUPP APP 0971 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 102 of 258 PageID 2672

EXAMPLE #2 (ADEQUATE INSURANCE) 2. Mortgageholders When: The value of the property is: $250,000 a. The term mortgageholder includes trustee. The Coinsurance percentage b. We will pay for covered Joss of or damage for it is: 80% to buildings or structures to each mort- gageholder shown in the Declarations in The Limit of Insurance for it is: $200,000 their order of precedence, as interests may The Deductible is: $ 250 appear. The amount of Joss is: $ 40,000 c. The mortgageholder has the right to receive The minimum amount of insurance to. meet your loss payment even if the mortgageholder Coinsurance requirement is $200,000 ($250,000 x has started foreclosure or similar action on 80%). Therefore, the Limit of Insurance in this exam- the building or structure. ple is adequate and no penalty applies. We will pay d. If we deny your claim because of your acts no more than $39,750 ($40,000 amount of loss minus or because you have failed to comply with the deductible of $250). the terms of this Coverage Part, the mort- b. If one Limit of Insurance applies to two or gageholder will still have the right to receive more separate items, this condition will ap- loss payment if the mortgageholder: ply to the total of all property to which the (1) Pays any premium due under this Cov- limit applies. erage Part at our request if you have failed to do so; EXAMPLE#3 (2) Submits a signed, sworn proof of Joss When: ihe value of the property is: within 60 days after receiving notice Building at Location #1: $ 75,000 from us of your failure to do so; and Building at Location #2: $100,000 (3) Has notified us of any change in owner- Personal Property ship, occupancy or substantial change at Location #2: $ 75,000 in risk known to the mortgageholder. $250,000 All of the terms of this Coverage Part will . then apply directly to the mortgageholder. The Coinsurance. percentage for it is: 90% e. If we pay the mortgageholder for any loss The Limit of Insurance for or damage and deny payment to you be- cause of your acts or because you have Buildings and Personal Property failed to comply with the terms of this Cov- at Locations #1 and #2 is: $180,000 erage Part: The Deductible is: $ 1,000 (1) The mortgageholder's rights under the The amount of loss is: mortgage will be transferred to us to the Building at Location #2: $ 30,000 extent of the amount we pay; and Personal Property (2) The mortgageholder's right to recover at Location #2: $ 20,000 the full amount of the mortgageholder's $ 50,000 claim will not be impaired. Step (1 ): $250,000 x 90% = $225,000 At our option, we may pay to the mortgage- {the minimum amount of insurance to holder the whole principal on the mortgage meet your Coinsurance requirements plus any accrued interest. In this event, and to avoid the penalty shown below) your mortgage and note will be transferred to us and you will pay your remaining mort- Step {2): $18p,ooo + $225,000 .80 = gage debt to us. = Step (3): $50,000 X .80 $40,000 f. If we cancel this policy, we will give written Step (4}: $40,000- $1,000 = $39,000 notice to the mortgageholder at least: We will pay no more than $39,000. The remaining (1) 10 days before the effective date of $11,000 is not covered. cancellation if we cancel for your non- payment of premium; or (2) 30 days before the effective date of cancellation if we cancel for any other reason.

CP 0010 06 07 © ISO Properties, Inc., 2007 Page 13 of 15 D

SUPP APP 0972 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 103 of 258 PageID 2673

g. If we elect not to renew this policy, we will EXAMPLE give written notice to the mortgageholder at least 10 days before the expiration date of lf: The applicable Limit of Insurance is: $ 100,000 this policy. The annual percentage increase is: 8% G. Optional Coverages The number of days since the beginning of the policy year If shown as applicable in the Declarations, the fol- (or last policy change) is: 146 lowing Optional Coverages apply separately to each item. The amount of increase is: $100,000 X .08 X 146 + 365 = $ 3,200 1. Agreed Value a. The Additional Condition, Coinsurance, 3. Replacement Cost does not apply to Covered Property to a. Replacement Cost (without deduction for which this Optional Coverage applies. We depreciation) replaces Actual Cash Value in will pay no more for loss of or damage to the Valuation Loss Condition of this Cover- that property than the proportion that the age Form. Limit of Insurance under this Coverage Part b. This Optional Coverage does not apply to: for the property bears to the Agreed Value shown for it in the Declarations. (1) Personal property of others; b. If the expiration date for this Optional Cov- (2) Contents of a residence; erage shown in the Declarations is not ex- (3) Wor!

Page 14 of15 © ISO Properties, Inc., 2007 CPOO 100607 [J

SUPP APP 0973 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 104 of 258 PageID 2674

With respect to tenants' improvements and 4. Extension Of Replacement Cost To betterments, the following also apply: Personal Property Of Others (3) If the conditions in d.(1) and d.(2) above a. If the Replacement Cost Optional Coverage are not met, the value of tenants' im- is shown as applicable in the Declarations, provements and betterments will be de- then this Extension may also be shown as termined as a proportion of your original applicable. If the Declarations show this Ex- cost, as set forth in the Valuation Loss tension as applicable, then Paragraph Condition of this Coverage Fonn; and 3.b.(1) of the Replacement Cost Optional (4) We will not pay for loss or damage to Coverage is deleted and all other provisions tenants' improvements and betterments of the Replacement Cost Optional Cover- if others pay for repairs or replacement. age apply to replacement cost on personal property of others. e. We will not pay more for loss or damage on a replacement cost basis than the least of b. With respect to replacement cost on the (1), (2) or (3), subject to f. below: personal property of others, the following limitation applies: {1) The Limit of Insurance applicable to the lost or damaged property; If an item{s) of personal property of others is subject to a written contract which go- (2) The cost to replace the lost or damaged verns your liability for Joss or damage to · property with other property: that item(s), then valuation of that item(s) (a} Of comparable material and quality; will be based on the amount for which you and are liable under such contract, but not to exceed the lesser of the replacement cost (b) Used for the same purpose; or of the property or the applicable Limit of In- (3) The amount actually spent that is ne- surance. cessary to repair or replace the lost or H. Definitions damaged property. If a building is rebuilt at a new premises, the 1. "Fungus" means any type or form of fungus, cost described in e.(2) above is limited to including mold or mildew, and any mycotoxins, the cost which would have been incurred if spores. scents or by-products produced or re- leased by fungi. the building had been rebuilt at the original premises. 2. "Pollutants" means any solid, liquid. gaseous or f. The cost of repair or replacement does not thermal irritant or contaminant, including include the increased cost attributable to smoke, vapor, soot, fumes, acids, alkalis, enforcement of any ordinance or law regu- chemicals and waste. Waste includes materials lating the construction, use or repair of any to be· recycled, reconditioned or reclaimed. property. 3. "StockH means merchandise held in sto~age or for sale, raw materials and in-process or fi- nished goods, including supplies used in their packing or shipping.

CPOO 10 0607 © ISO Properties, Inc., 2007 Page 15 of15 CJ

SUPP APP 0974 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 105 of 258 PageID 2675

COMMERCIAL PROPERTY CONDITIONS This Coverage Part is subject to the following conditions, the Common Policy Conditions and applicable Loss Conditions and Additional Conditions in Commercial Property Coverage Fonns.

A. CONCEALMENT, MISREPRESENTATION OR Limits of Insurance of all insurance covering on the FRAUD same basis. This Coverage Part is void in any case of fraud by you as 2. If there is other insurance covering the same loss or it relates to this Coverage Part at any time. It is also void damage, other than that described in 1. above, we if you or any other insured, at any time, intentionally will pay only for the amount of covered loss or conceal or misrepresent a material fact concerning: damage in excess of the amount due from that other insurance, whether you can collect on it or not. But 1. This Coverage Part; we will not pay more than the applicable Limit of 2. The Covered Property; Insurance. 3. Your i.nterest in the Covered Property; or H. POLICY PERIOD, COVERAGE TERRITORY 4. A claim under this Coverage Part. Under this Coverage Part: B. CONTROL OF PROPERTY 1. We cover loss or damage commencing: Any act or neglect of any person other than you beyond a. During the policy period shown in the your direction or control wiU not affect this insurance. Declarations; and The breach of any condition of this Coverage Part at any b. Within the coverage territory. one or more locations will not affect coverage at any .2. The coverage territory is: location where, at the time of loss or damage, the breach of condition does not exist. a. The United States of America (including its territories and possessions); C. INSURANCE UNDER TWO OR MORE COVERAGES b. Puerto Rico; and If two or more of this policy's coverages apply to the c. Canada. same loss or damage. we will not pay more than the · I. TRANSFER OF RIGHTS OF RECOVERY . actual amount of the loss or damage. AGAINST OTHERS TO US D. LEGAL ACTION AGAINST US If any person or organization to or for whom we make No one may bring a legal action against us under this payment under this Coverage Part bas rights to recover Coverage Part unless: damages from another, those rights are transferred to us to the extent of our payment. That person or organization 1. There bas~ full compliance with all of the terms must do everything necessary to secure our rights and of this Coverage Part; and must do nothing after loss to impair them. But you may · 2. The action is brought within 2 years after the date on waive your rights against another party in writing: which the direct physical loss or damage occurred. 1. Prior to a loss to your Covered Property or Covered E. LffiERALIZATION Income. If we adopt any revision that would broaden the coverage 2. After a loss to your Covered Property or Covered under this Coverage Part without additional premium Income only if, at time of loss, that party is one of within 45 days prior to or during the policy period, the the following: broadened coverage will immediately apply to this Coverage Part. a. Someone insured by this insurance; b. A business firm: F. NO BENEFIT TO BAILEE No person or organization, other than you, having (1) Owned or controlled by you; or custody of Covered Property will benefit from this (2) That owns or controls you; or insurance. c. Your tenant. G. OTHER INSURANCE This will not restrict your insurance. 1. You may have other insurance subject to the same plan, terms, conditions and provisions as the insurance under this Coverage Part. If you do, we will pay our share of the covered loss or damage. Our share is the proportion that the applicable Limit of Insurance under this Coverage Part bears to the

CP0090 07 88 Copyright, ISO Commercial Risk Services, Inc., 1983, 1987 Page 1 ofl

SUPP APP 0975 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 106 of 258 PageID 2676

CCF 1503 10/01

TffiS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

EXCLUSION ... "VACANT" OR "UNOCCUPIED" PROPERTY

This endorsement modifies insurance provided under the following:

BUILDING AND PERSONAL PROPERTY COVERAGE FORM

It is agreed that subpart 6. VACANCY of part E. Loss Conditions ofJSO form CPOOlO is deleted and replaced by the following:

6. VACANCY

a. Description of Terms (1) As used in this Vacancy Condition, the term building and the term vacant have the meanings set forth in (l)(a) and (l)(b) below; (a) When this policy is issued to a tenant, and with respect to that tenant's interest in Covered Property, building means the unit or suite rented or leased to the tenant. Such building is vacant when it does not contain enough business personal property to conduct customary operations. (b) When this policy is issued to the owner of a building, building means the entire building. Such building is vacant when 70% or more of its square footage: (i) Is not rented; or (ii) Is not used to conduct customary operations. (2) Buildings under construction or renovation are not considered vacant.

b. Vacancy Provisions

We will not pay for any loss or damage if the building where loss or damage occurs has been vacant or unoccupied for more than: (1) 30 consecutive days before that loss or damage if caused by Vandalism (if it is Covered Cause of Loss); or (2) 60 consecutive days before that loss or damage if caused by any other Covered Cause ofLoss; whether or not such vacancy or unoccupancy begins before the inception of this policy. But we will pay if the building is unoccupied due to circumstances that are usual or incidental to the described occupancy. This condition does not apply if the Vacancy Permit endorsement is attached.

SUPP APP 0976 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 107 of 258 PageID 2677

CCF 1504 07 94

TillS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

THEFT EXCLUSION - OUTSIDE OF BUILDING This endorsement modifies insurance provided under the following:

CAUSES OF LOSS -SPECIAL FORM

The following is added to the EXCLUSIONS Section:

We will not pay for loss or damage caused by or resulting from theft of personal property while located in the open (or in a vehicle) or anytime it is located outside of the confines of the building described in the Commercial Property Declarations.

SUPP APP 0977 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 108 of 258 PageID 2678 CCF 1512 0506

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

MANDATORY PROPERTY DEDUCTIBLE FORM (FIXED DOLLAR DEDUCTIBLES)

This endorsement modifies insurance provided under the following:

BUILDING AND PERSONAL PROPERTY COVERAGE FORM BUILDERS' RISK COVERAGE FORM

The Deductibles applicable to any one occurrence are shown below and the Deductibles apply as indicated by · checking one of the boxes below:

Each Building (regardless of the number of premises) Each Premises (regardless ofthe number of buildings on the premises)

Prem. Bldg. Coverage Type Deductible Covered Causes No. No. of loss** 1 1 BPP, SIGNS, GLASS 1000 2 1 1 BPP, SIGNS, GLASS 2500 6

** For each deductible listed in this Schedule, enter the number corresponding to the Covered Cause(s) of Loss to which that deductible applies (or enter the description): (1) All Covered Causes of Loss (2) All Covered Causes of Loss except Windstorm or Hail (3) All Covered Causes of Loss except Theft (4) All Covered Causes of Loss except Windstorm or Hail and Theft (5) All Covered Causes of Loss except Water Damage ·(6) Windstorm or Hail (7) Theft (8) Water Damage

Section D. Deductible is deleted in its entirety including the Examples and replaced with the following: A. In any one occurrence of loss or damage (hereinafter referred to as loss), we will first reduce the amount of loss if required by the Coinsurance Condition or the Agreed Value Optional Coverage. If the adjusted amount of loss is Jess than or equal to the Deductible, we will not pay for that loss. If the adjusted amount of loss exceeds the Deductible, we will then subtract the Deductible from the adjusted amount of loss, and will pay the resulting amount or the Limit of Insurance, whichever is less. B. In the event that Joss or damage occurs to Covered Property at more than one building location as a result of one occurrence, the schedule above will determine how the deductible will apply, either to each premises or to each building. C. When the occurrence involves loss to more than one item of Covered Property and separate Limits of Insurance apply, the losses will not be combined in determining application of the Deductible. But the Deductible will be applied only once per occurrence for that Covered Property. D. The terms of this endorsement do not apply to any Earthquake Deductible or to any Windstorm or Hail Percentage Deductible provided elsewhere in this policy.

CCF 1512 0506 Page 1 of 1 Includes copyrighted material of Insurance Services Office,lnc. with its permission. c;opyright, Insurance Services Office, Inc., 1998

SUPP APP 0978 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 109 of 258 PageID 2679

CCF 1514 0410

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

LIMITED PROPERTY EXTENSIONS This endorsement modifies insurance provided under the following:

BUILDING AND PERSONAL PROPERTY COVERAGE FORM, CP 001 0 CONDOMINIUM ASSOCIATION COVERAGE FORM, CP 0017 CONDOMINIUM UNIT-OWNERS COVERAGE FORM, CP 0018 CAUSES OF LOSS- SPECIAL FORM, CP 1030

Schedule of Coverage Extensions and Urn its

Coverage l:imlt of Insurance Accounts Receivable $25,000 per occurrence Arson Reward $5,000 per occurrence Electronic Data Processing Equipment- Off Premises $5,000 per occurrence Electronic Data Processing Equipment- On Premises $10,000 per occurrence Employee Theft $5,000 per occurrence Fine Arts $5,000 per occurrence Fire Department Service Charge $5,000 per occurrence Fire Protection Device Recharge $1,000 per occurrence Money and Securities $5,000 per occurrence Personal Effects and Property of Others $7,500 per occurrence Property in Transit $10,000 per occurrence Sewer, Drain, or Sump Backup or Overflow $5,000 per occurrence Spoilage or Contamination $5,000 per occurrence Valuable Papers and Records other than Electronic $25,000 per occurrence Data

The Coverage Extensions identified in the Schedule above are granted by the Company as additions to your insurance policy. The Limit of Insurance for each Coverage Extension applies separately for each of your premises described in the Declarations. Unless otherwise noted these Limits of Insurance apply per occurrence. If you purchase additional Limits of Insurance for any Coverage already provided by this form, the Limits of Insurance stated in the Declarations will be in addition to what the Company has granted in the Schedule shown above.

CCF 1514 0410 Page 1 of9 Includes copyrighted material of Insurance Services Office, Inc. and MIS with its permission. Copyright, Insurance Services OffiCe, Inc., 1998, 2004

SUPP APP 0979 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 110 of 258 PageID 2680 CCF 1514 0410

1. Deductible For the purposes of this endorsement, the deductible per occurrence is $500 per coverage, subject to a maximum of $1 ,000 any one occurrence. If this deductible, and one or more of the deductibles listed in the policy Declarations apply on the same occurrence, this deductible will apply separately. 2. Coinsurance For the purposes of this endorsement, the Additional Condition, Coinsurance does not apply when a loss is evaluated under any of these property Coverage Extensions. The insurance provided by this form is only applicable to the premises described in the Declarations. 3. The following revision is made to CP 0010, CP 0017 or CP 0018, Section A. Coverage, paragraph 4, Additional Coverages: c. Fire Department Service Charge The limit of $1,000 is deleted and replaced with the amount shown in the Schedule above. 4. The following revisions are made to CP 0010, CP 0017, or CP 0018, Section A., Coverage; paragraph 5., Coverage Extensions shown below: b. Personal Effects and Property of Others The amount of $2,500 is deleted and replaced with the amount shown in the Schedule above for Personal Effects and Property of Others. c. Valuable Papers and Records other than Electronic Data The amount of $2,500 is deleted ,and replaced by the amount shown in the Schedule above for Valuable Papers and Records other than Electronic Data. 5. The following Extended Coverages are added to CP 0010, CP 0017 or CP 0018, Section A., Coverage; paragraph 5., Coverage Extensions: Accounts Receivable (1) You may extend the insurance provided by this endorsement to apply to direct physical damage resulting from a Covered Cause of Loss to your records of accounts receivable at the described "premises". (2) We will pay: (a) All amounts due from your customers that you are unable to collect; (b) Interest charges on any loan required to offset amounts you are unable to collect pending our payment of these amounts; · (c) Collection expenses in excess of normal collection expenses and that are made necessary because of the loss or damage; and (d) Other reasonable expenses that you incur to reestablishing records of accounts receivable; that result from Covered Causes of Loss to your records of accounts receivable. (3) If you give us written notice within 10 days of removal of your records of accounts receivable because of imminent danger of Joss or damage, we will pay for loss or damage while they are: (a) At a safe place away from your "premises" or (b) Being taken to and returned from that place, for a period of not more than 30 days. (4} We will not pay for loss or damage caused by or resulting from: (a) Delay, loss of use, loss of market or any other consequential loss; (b) Alteration, falsification, concealment or destruction of records of accounts receivable done to conceal the wrongful giving, taking or withholding of money, securities or other property; (c) Bookkeeping, accounting or billing errors or omissions;

CCF 1514 0410 Page2of 9 Includes copyrighted material of Insurance Services Office, Inc. and AAIS with its permission. Copyright, Insurance Services Office; Inc., 1998, 2004

SUPP APP 0980 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 111 of 258 PageID 2681

(d) Electrical or magnetic injury, disturbance or erasure of electronic recordings that is caused by or results from: (i} Programming errors or faulty machine instructions {ii} Faulty installation or maintenance of data processing equipment or component parts; (iii} An occurrence that took place more than 1oo feet from your "premises" or (iv) Interruption of electrical power supply, power surge, blackout or brownout if the cause of such occurrence took place more than 100 feet from your "premises"; (e) Unauthorized instructions to transfer property to any person or place; {f) Acts or decisions, including the failure to act or decide, of any person, group, organization or governmental body. (5} We will not pay for loss or damage that requires any audit of records or any inventory computation to prove its factual existence. {6) Determination of Receivables: (a) When there is proof that a covered loss has occurred but you cannot accurately establish the amount of accounts receivable outstanding as of the date of the loss, the amount shall be based on . your latest statement of monthly receivables and shall be computed as follows: ·{i) Determine the amount of all outstanding accounts receivable at the end of the same fiscal month in the year immediately preceding the year in which the loss occurs; (il} Calculate the percentage of increases or decreasein your gross sales of goods and services for the 12 fiscal months immediately preceding the month in which the loss occurred against the 12 fiscal months prior to the above period; (iii) The amount determined under i., above, increased or decreased by the percentage calculated in ii., above, shall be the agreed total amount of accounts receivable as of the last day of the fiscal month in which the loss occurs; (iv} The monthly amount of accounts receivable thus established sha11 be further adjusted in accordance with the normal fluctuations in the amount of accounts receivable within the fiscal month involved. (b) We will deduct an amount to allow for probable bad debts which you would normally have been unable to collect from the amount of accounts receivable as destroyed or lost. ·(7} The most we wilf pay for loss or damage under this Extension is the amount shown in the Schedule above. Arson Reward We will provide a reward for information which leads to the arrest and conviction of any person(s) responsible for an act of arson. The most we ~ill pay under this Coverage Extension for all rewards for information in any one arson, is the amount shown in the Schedule above. Electronic Data Processing Equipment and Media (1) You may extend the insurance provided by this Coverage Form to your "electronic data processing equipmenr' and "electronic data processing media" which you own, lease, or rent from others or for which you are legally responsible. · (2} We will pay for loss or damage resulting from or caused by: (a) Mechanical breakdown, or machinery malfunction: (b) Short circuit, blowout or other electrical damage or disturbance; (c) Faulty construction, error in design, or actual work upon property covered. (This coverage does not apply to electronic data processing media). (3) We will not pay for loss or damage resulting from: (a) Loss to property loaned, leased or rented to others while away from the premises listed in the Dedarations. (b) Media which cannot be replaced with others of the same kind and quality. (c) Accounts, bills, evidences of debt, valuable papers, records, abstracts, deeds, manuscripts or other documents.

CCF 1514 0410 Page3 of9 Includes copyrighted material of Insurance Services Offtee, Inc. and AAIS with its pennission. Copyright, Insurance Services Office, Inc., 1998, 2004

SUPP APP 0981 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 112 of 258 PageID 2682

(d) Error or omission in machine programming or incorrect instruction to a machine. (4) The Causes of Loss -Special Form, Section B., Exclusions, applies to this coverage with the exception of exclusions B.2a. and 8.2.d. (6). (5) The most we will pay for loss in any one occurrence is the amount shown in the Schedule above, but if . the "electronic data processing equipment" or "electronic data processing media:· is lost or damaged while in transit, off premises, or on a vehicle the most we will pay is the amount shown in the Schedule above for Property in Transit. Fine Arts You may extend the coverage that applies to Your Business Personal Property to Fine Arts. Fine Arts means paintings, etchings, pictures, tapestries, rare or art glass, art glass windows, valuable rugs, statuary, sculptures•. "antique" furniture, "antique" jewelry, bric-a-brac, porcelains; and similar property of rarity, historical value or artistic merit. "Antique" means an object ha:ving value because its (a) Craftsmanship is in the style or fashion of former times; and (b) Age is 100 years old or older. The most we will pay from a Covered Cause of Loss as a result of direct loss or damage to Fine Arts is the ·amount shown in the Schedule above. Fire Prote.ction Device Recharge We will pay to cover the expenses incurred to recharge a fire protection device when it has been used to combat a covered fire. The most that we will pay under this Coverage Extension is the amount shown in the Schedule above. Food Spoilage (1) We will pay for loss or damage to "perishable stock" caused by or resulting from adulteration, spoilage or change in temperature. However. this Coverage Extension will not apply if the loss or damage is caused by Wind or Hail and Wind or Hail is excluded as a Covered Cause of Loss. (2) The most we will pay in any one occurrence is the amount shown in the Schedule above. 6. The following Crime Coverages are added to CP 0010, CP 0017, or CP 0018, .Section A., paragraph 4., Additional Coverages: a. Employee Theft We will pay for loss or damage to "money, "securities" and "other property" resulting directly from "theft" committed by an "employee" whether identified or not, acting alone or in collusion with other persons. For the purposes of this Extension "theft" shall also include "forgery". b. Money and Securities (1) Inside the Premises (a) We will pay for loss of "money" and "securities" inside the "premises" or "banking premises": i. Resulting directly from "theft" committed by a person present inside such "premises" or "banking premises"; or ii. Resulting directly from disappearance or destruction. (b} We will pay for loss from damage to the "premises" or its exterior resulting directly from an actual or attempted "theft" of "money'' and "securities" if you are the owner of the "premises" or are liable for damage to the "premises". (c} We wilt pay for loss of or damage to a locked safe, vault, cash register, cash box, or cash drawer, located inside the "premises", resulting directly from an actual or attempted 1heft" of or unlawful entry into those containers. (2} Outside the Premises (a) We will pay for loss of "money" and "securities" outside the "premises", in the care and custody of a "messenger" or an armored motor vehicle company, resulting directly from ''theft", disappearance or destruction.

CCF 1514 0410 Page 4 of9 Includes copyrighted material of Insurance Services Office, Inc. and MJS with its permission. Copyright, Insurance Services Office, Inc., 1998, 2004

SUPP APP 0982 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 113 of 258 PageID 2683 CCF 1514 0410

(b) We will pay for loss of or damage to "other property" outside the "premises", in the care and custody of a "messenger" or an armored motor vehicle company, resulting directly from an actual or attempted "robbery". However, these Additional Coverages, 6.a. and 6.b., above do not apply to: a. Loss resulting from "theft'' or any other dishonest act committed by: (1) You; or (2) Any of your partners or "members" whether acting alone or in collusion with other persons. b. Loss caused by an "employee" if the "employee" had also committed "theft" or any other dishonest act prior to the effective date of this endorsement and you or any of your partners, "members", "managers", officers, directors or trustees, not in collusion with the "employee", learned of that "theft" or dishonest act prior to the effective date of this endorsement. c. loss resulting from: (1) The unauthorized disclosure of your confidential information including but not limited to, patents, trade secrets, processing methods or customer lists; or (2) The unauthorized use or disclosure of confidential information of another person or entity which is held by your including, but not limited to, financial information, personal information, credit card information or similar non-public information. d. Loss that is an indirect result of an "occurrence" covered by this policy including, but not limited to, loss resulting from: (1) Your inability to realize income that you would have realized had there been no loss of or damage to "money", "securities" or "other property". (2) Payment of damages of any type for which you are legally liable. But, we will pay compensatory damages arising directly from a loss covered under this policy. {3) Payment of costs, fees, or other expenses you incur in establishing either the existence or the amount of loss under this policy. e. Fees costs and expenses incurred by you which are related to any legal action. The following exclusions apply only to Employee Theft: a. Loss or 'that part of any loss, the proof of which as to its existence or amount is dependent upon: (1) An inventory computation; or {2) A profit and loss computation. However, where you establish wholly apart from such computations that you have sustained a loss, then you may offer your inventory records and actual physical count of inventory in support of the amount of loss claimed. b. Loss resulting from trading, whether in your name or in a genuine or fictitious account. c. Loss resulting from the fraudulent or dishonest signing, issuing, cancelling or failing to cancel, a warehouse receipt or any papers connected with it. The following exclusions apply only to Money and Securities: a. Loss resulting from "theft" or any other dishonest act committed by any of your "employees", "managers", directors, trustees, or authorized representatives: (1} Whether acting alone or in collusion with other persons; or (2) While performing services for you or otherwise. b. loss resulting from accounting or arithmetical errors or omissions. c. Loss resulting from the giving or surrendering of property in any exchange or purchase. d. Loss or damage resulting from fire, however caused, except: (1} Loss of or damage to "money" and "securities"; and (2) loss from damage to a safe or vault. e. Loss of property contained in any money operated device unless the amount of amoney" deposited in it is recorded by a continuous recording instrument in the device. f. Loss of or damage to motor vehicles, trailers or semi-trailers or equipment and accessories attached to them. CCF 1514 0410 Page 5 of 9 Includes copyrighted material of Insurance Services OHice, Inc. and AAIS with its permission. Copyright, Insurance Services Office, Inc., 1998, 2004

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g. Loss of or damage to property after it has been transferred or surrendered to a person or place outside the "premises" or "banking premises": (1} On the basis of unauthorized instructions; (2) As a result of a threat to do bodily harm to any person; (3) As a result of a threat to do damage to any property; (4) As a result of a threat to introduce a denial of service attack to your computer. system; (5} As a result of a threat to introduce a virus or other malicious instruction into your computer system which is designed to damage, destroy or corrupt data or computer programs stored within your computer system; (6) As a result of a threat to contaminate, pollute or render substandard your products or goods; or (7) As a result of a threat to disseminate, divulge, or utilize (a) Your confidential information; or (b) Weaknesses in the source code within your computer system. But, this exclusion does not apply to loss of umoney", "securities", or "other property" while outside the "premises" in the care and custody of a "messenger" if you: (a) Had no knowledge of any threat at the time the conveyance began; or (b) Had knowledge of a threat at the time the conveyance began, but the loss was not related to the threat. h. Loss from damage to the "premises" or its exterior, or to any safe, vault, cash register, cash box, cash drawer or "other property" by vandalism or malicious mischief. i. Loss resulting from your, or any one acting on your express or implied authority, being induced by any dishonest act to voluntarily part with title to or possession of any property. The most that we will pay for loss or direct physical damage to "money'', "securities" or "other property'' resulting from Employee Theft or Money and Securities is the limit shown for each in the Schedule above. 7. Causes of Loss -Special Form, CP 1030; Section F., Additional Coverage Extensions, paragraph 1. of Property in Transit, is deleted in its entirety and replaced with the following: Property in Transit 1. This Extension applies only to your personal property to which this form applies. a. You may extend the insurance provided by this Coverage Part to apply to your personal property (other than property in the care, custody, or control of your sales person) in transit more than 100 feet from the described premises: (1) This Extension only applies to property in transit in the coverage territory; (2) Property in transit includes property in the custody of: (a) Any railroad (including while on ferries or in cars, transfers or lighters); (b) Public truck-men, private truck-men or land transportation companies; (c) You or anyone else while in or on vehicles you own, lease or hire; (d) Any air transportation company; (e) Any water transportation company while on inland waters of the continental United States, the Great Lakes or the St. Lawrence Seaway; or (f) Any other person authorized by you to have the care and custody of your property outside your premises (including your salespeople); (3) This Extension does not include: (a) Shipments through the US Postal Service; (b) Property covered under import or export Ocean Cargo policies; (c) Inter-coastal water shipments via the Panama Canal; or (d) Coastwise water shipments to Alaska. b. Loss or damage must be caused by or result from a Covered Cause of Loss.

CCF 1514 0410 Page6of9 Includes copyrighted material of Insurance Services Office, Inc. and AAIS with its permission. Copyright, Insurance Services Office, Inc., 1998,2004

SUPP APP 0984 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 115 of 258 PageID 2685 CCF 1514 0410

However, the following limitation will apply to all theft losses: Coverage for theft of an entire bale, case or package by forced entry into a securely locked body or compartment of the vehicle requires that there must be visible marks of the forced entry. c. The most that we will pay for direct physical loss or damage for Personal Property in Transit is the amount shown in the Schedule above. 8. Exclusion g., Water, of CP 1030, Causes of Loss- Special Form, is deleted in its entirety and replaced with the following: g. Water (1) Flood, surface water, waves, tides, tidal waves, overflow of any body of water, or their spray, all whether driven by wind or not; (2) Mudslide or mudflow; But if Water as described in g.(1) or g.(2) above results in fire, explosion or sprinkler leakage, we will pay for the loss or damage caused by that fire, explosion or sprinkler leakage. 9. The following is added to the Causes of Loss - Special Form, CP 1030, item F., Additional Coverage Extensions: Sewer, Drain, or Sump Backup or Overflow You may extend the insurance provided by this Coverage Part to include loss, whether it originates on or off the described premises caused by: (1) Water that backs up or overflows from a sewer, drain or sump; or (2) Water under the ground surface pressing on, or flowing or seeping through: (a) Foundations, walls, floor, or paved surfaces; (b) Basements whether paved or not; or (c) Doors, windows, or other openings. However, we will not pay for direct physical loss or damage to Covered Property caused by or resulting from continued or repeated back up or overflow of water over a period 14 days. The most we will pay under this Coverage Extension is shown in the Schedule above. 10. For the purposes of this endorsement, the following Definitions are added to CP 0010, CP 0017, or CP 0018, Section H: Electronic Data Processing Equipment "EI~tronic Data Processing Equipment" means data processing systems, components parts and related peripheral equipment including air conditioning and fire protection equipment used solely for data processing operations. But electronic data processing equipment does not include electronic systems that control production machinery nor the production machinery itself. Electronic Data Processing Media "Electronic Data Processing Media" means punch cards, tapes, discs, drums, cells or other magnetic recording or storage devices, including the information recorded on the media. It also included the original source material used to enter data and/or programs. Banking Premises "Banking premises" means the interior of that portion of any building occupied by a banking institution or similar safe depository. Employee "Employee" means: a. Any natural person: (1) While in your service and for the first 30 days immediately after tennination of service, unless such termination is due to "theft" or any other dishonest act committed by the "employee"; (2) Who you compensate directly by salary, wages or commissions; and (3) Who you have the right to direct and control while performing services for you;

CCF 1514 0410 Page 7 of 9 Includes copyrighted material of Insurance Services Office, Inc. and MIS with its permission. Copyright, Insurance Services Offk)e, Inc., 1998, 2004

SUPP APP 0985 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 116 of 258 PageID 2686 CCF 1514 0410

b. Any natural person who is furnished temporarily to you: (1) To substitute for a permanent "employee" as defined in a. above who is on leave; or (2) To meet seasonal or short-term work load conditions; while that person is subject to your direction and control and performing services for you , excluding, however, any such person while having care and custody of property outside the "premises" c. Any natural person who is leased to you under a written agreement between you and a labor leasing firm, to perform duties related to the conduct of your business, but does not mean a temporary employee as defined in b. above. d. A natural person who is: (1) A trustee, officer, employee, administrator or manager, except an administrator or manager who is an independent contractor, of any "employee benefit plan"; and (2) A director or trustee of yours while that person is engaged in handling "funds" or "other property" of any "employee benefit plan''; e. Any natural person who is a former "employee", partner, "member", "manager" director or trustee retained as a consultant while performing services for you; f. Any natural person who is a guest student or intern pursuing studies or duties excluding, however, any such person while having care and custody of property outside the "premises"; g. Any "employee" of an entity merged or consOlidated with you prior to the effective date of this policy; or h. Any of your "managers", directors or trustees while: (1) Performing acts within the scope of the usual duties of an "employee"; or (2) Acting as a member of any committee duly elected or appointed by resolution of your board of directors or board of trustees to perform specific, as distinguished from general directorial acts on your behalf. However, "employee" does not mean any agent, broker, factor, commission merchant, consignee, independent contractor or representative of the same general character not specified in a. above. Employee Benefit Plan "Employee benefit plan" means any welfare or pension benefit plan shown in the Declarations that you sponsor and which is subject to the Employee Retirement Income Security Act of 1974 {ERISA) and any amendments thereto. · Forgery "Forgery" means the signing of the name of another person or organization with intent to deceive, it does not mean a signature on which consists in whole or in part of one's own name signed with or without authority, in ariy capacity, for any purpose. Funds "Funds" means "money" and "securities". Manager "Manager" means a person serving in a directorial capacity for a limited liability company. Member "Member'' means an owner of a limited liability company represented by its membership interest, who also may serve as a "manager". · Messenger "Messenger'' means you, or a relative of yours or any of your partners or "members", or any "employee" while having care and custody of property outside of the premises. Money "Money" means: a. Currency, coins and bank notes in current use and having a face value; and b. Travelers checks, register checks and money orders held for sale to the public.

CCF.1514 0410 Page 8 of 9 Includes copyrighted material of Insurance Services Office, Inc. and AAIS with its permission. Copyright, Insurance Services Office, Inc., 1998, 2004

SUPP APP 0986 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 117 of 258 PageID 2687 CCF 1514 0410

Occurrence "Occurrence" means: a. An individual act; b. The combined total of all separate acts whether or not related; or c. A series of acts whether or not related; · committed by an "employee" acting alone or in collusion with other persons, during the Policy Period shown in the Declarations, before such Policy Period or both. Other Property "Other property" means any tangible property other than "money'' and "securities" that has intrinsic value. "Other property" does not include computer programs, electronic data or any property specifically excluded under this policy. Perishable Stock "Perishable stock" means personal property: a. Maintained under controlled conditions for its preservation; and b. Susceptible to loss or damage if the controlled conditions change. Premises "Premises" means the interior of that portion of any building you occupy in conducting your business. Robbery "Robbery'' means the unlawful taking of property from the care and custody of a person by one who has: a. Caused or threatened to cause that person bodily harm; or b. Committed an obviously unlawful act witnessed by that person. Securities "Securities" mean negotiable and nonnegotiable instruments or contracts representing either "money" or ·property and includes: a. Tokens, tickets, revenue and other stamps (whether represented by actual stamps or unused value in a meter) in current use and b. Evidences of debt issued in connection with credit or charge cards, which cards are not issued by you; but does not Include "money". Theft "Theft" means the unlawful taking of property to the deprivation of the insured.

All other terms and conditions of this policy remain unchanged.

CCF 1514 0410 Page9 of 9 Includes copyrighted material ot Insurance Services Office, Inc. and AAIS with its permission. Copyright, Insurance Services Office, Inc., 1998, 2004

SUPP APP 0987 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 118 of 258 PageID 2688

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THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. EQUIPMENT BREAKDOWN ENHANCEMENT ENDORSEMENT COMMERCIAL PROPERTY COVERAGE PART This endorsement modifies insurance provided under the following:

BUILDING AND PERSONAL PROPERTY COVERAGE FORM- CP 0010 CONDOMINIUM ASSOCIATION COVERAGE FORM- CP 0017 CONDOMINIUM UNrf-OWNERS COVERAGE FORM- CP 0018 CAUSES OF LOSS- BASIC FORM- CP 1010 CAUSES OF LOSS- BROAD FORM -'- CP 1020 CAUSES OF LOSS- SPECIAL FORM- CP 1030 COMMON POLICY CONDITIONS -IL 0017

A. The following changes apply to CP 0010, CP 0017, or CP 0018, Section A- Coverage: 1.- The following sub-paragraphs under paragraph 4., Additional Coverages, are revised as follows: a. The following is added to item d., Pollutant Clean-up and Removal: We will pay for the pollutant clean up and removal for loss resulting from an "equipment breakdown". The most we will pay for loss or damage under this coverage is $25,000 unless a higher limit for Pollutant Clean Up ·and Removal is provided by an endorsement to this policy. If this policy is endorsed with a higher Pollutant Clean Up and Removal limit then we will pay the higher limit. b. The following is added to item f., Electronic Data, of CP 0010 or CP 0017: We will pay for your reasonable and necessary cost to research, replace, and restore the lost information on electronic media and records as a result of an "equipment breakdown". c. The following is added to item e., Electronic Data, of CP 0018: We will pay for your reasonable and necessary cost to research, replace, and restore the lost information on electronic media and records as a result of an "equipment breakdown". 2. The following coverages are added to paragraph 4., Additional Coverages: Expediting Expenses We will pay for the expediting expense loss resulting from an "equipment breakdown" with respect to your damaged Covered Property. We will pay the reasonable extra cost to: a. Make temporary repairs; b. Expedite permanent repairs; c. Expedite permanent replacement Reasonable extra cost shall mean the extra cost of temporary repair and of expediting the repair of the damaged Covered Property, including overtime and the extra cost of express or other rapid means of transportation which will be a part of and not an addition to the limit per loss. Refrigerant Contamination We will pay for the loss of Covered Property including "perishable stock" and loss to refrigerating, cooling or humidity control equipment due to contamination by a refrigerant resulting from an "equipment breakdown". The most we will pay for loss or damage under this coverage is $25,000 unless a higher limit for Refrigerant Contamination is provided by an endorsement to this policy. If this policy is endorsed with a higher Refrigerant Contamination limit then we will pay the higher limit. -

CCF 1515 0410 Page 1 of6

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Spoilage Coverage We will pay for loss of ''perishable stock" due to spoilage that results from Jack of power, light, heat, steam or refrigeration caused by an "equipment breakdown" that is: a. Located on or within 100 feet of your described premises, b. owned by the building owner at your described premises, or owned by a public utility However, we will not pay for any loss, damage, cost or expense directly caused by, contributed to by, resulting from or arising out of the following causes of loss: Fire, lightning, combustion explosion, windstorm or hail, weight of snow, ice or sleet, falling objects, smoke, aircraft or vehicles, riot or civil commotion, vandalism, sinkhole collapse, volcanic action, leakage from fire extinguishing equipment, water damage, earth movement and flood.

The most we will pay for loss or damage under this coverage is $25,000 unless a higher limit for Spoilage Coverage is provided by an endorsement to this policy. If this policy is endorsed with a higher Spoilage Coverage limit then we will pay the higher limit. "perishable stock" means personal property: a. Maintained under controlled conditions for its preservation; and b. Susceptible to loss or damage if the controlled conditions change. Computer Equipment We will pay for direct physical Joss or damage to you~ computers as a result of an "equipment breakdown".

3. The following coverage extensions are added to paragraph 5., Coverage Extensions: Environmental, Safety and Efficiency Improvements If the Covered Property requires replacement due to an uequipment breakdown," we will pay your additional cost to replace with equipment that is better for the environment, safer or more efficient than the equipment being replaced. However, we will not pay more than 125% of what the cost would have been to repair or replace with like kind and quality. This condition does not increase any of the applicable limits. This condition does not apply to any property to which Actual Cash Value applies. Green Environmental and Efficiency Improvements If Covered Property requires repair or replacement due to an ''equipment breakdown", we will pay: a. The lesser of the reasonable and necessary additional cost incurred by the insured to repair or replace physically damaged Covered Property with equipment of like kind and quality which qualifies as "green". Like, kind and quality includes similar size and capacity. b. The additional reasonable and necessary fees incurred by the Insured for an accredited professional certified by a "green authority" to participate in the repair or replacement of physically damaged Covered Property as "green". c. The additional reasonable and necessary cost incurred by the insured for certification or recertification of the repaired or replaced Covered Property as Mgreen". d. The additional reasonable and necessary cost incurred by the Insured for "green" in the removal, disposal or recycling of damaged Covered Property. · · e. The business interruption (if covered within the Policy to which this Equipment Breakdown Enhancement Endorsement Is attached) loss during the additional time required for repair or replacement of Covered Property, consistent with "green", in the coverages above. We will not pay more than 125%, to a maximum limit of $100,000, of what the cost would have been to repair or replace with equipment of like kind and quality inclusive of fees, costs, and any business interruption loss incurred as stated above. These limits will be a part of, and not an addition to, the limit of liability per loss or any other sub-limits of liability of this Policy.

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SUPP APP 0989 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 120 of 258 PageID 2690

Green Environmental and Efficiency Improvements does not cover any of the following: a. Stock, raw materials, finished goods, b. "production machinery", c. merchandise, d. electronic data processing equipment not used in the functional support of the real property, e. process water, molds and dies, f. property in the open, property of others for which the Insured is legally liable, or personal property of others; g. Any loss adjusted on any valuation basis other than a repair or replacement basis as per the Valuation section of this policy. h. Any loss covered under.any other section of this policy. i. Any cost incurred due to any law or ordinance with which the Insured was legally obligated to comply prior to the time of the "equipment breakdown".

B. The following is added toIL 0017, Common Policy Conditions: Suspension Whenever Covered Property is found to be in, or exposed to, a dangerous condition, any of our representatives may immediately suspend the insurance against loss to that Covered Property for the Cause of Loss covered by this endorsement. Coverage can be suspended by delivering or mailing a written notice of coverage suspension to: a. Your last known address; or b. The address where the property is located. If we suspend your insurance-under this endorsement, you will get a pro rata refund of the "equipment breakdown" premium. But the suspension will be effective even if we have not yet made or offered a refund. Coverage may be reinstated, by any of our representatives, once the dangerous condition to the Covered Property has been corrected and inspected, by delivering or mailing a written notice of reinstatement to: a. Your last known address; or b. The address where the property is located.

C. CP 1010, Causes of Loss- Basic Form; CP 1020. Causes of Loss- Broad Form, and CP 1030, Causes of Loss- Special Form, are revised as follows: 1. Section A- Covered Causes of Loss is revised to included "equipment breakdown" 2. Section B - Exclusions, are revised as follows: a. The following exclusions are removed from CP 1010, Causes of Loss- Basic Form, and not replaced: 2.a. Artificially generated electrical, magnetic or electromagnetic energy that damages, disturbs, disrupts or otherwise interferes with any: (1) Electrical or electronic wire, device, appliance, system or network; or (2) Device, appliance, system or network utilizing cellular or satellite technology. For the purpose of this exclusion, electrical, magnetic or electromagnetic energy includes but is not limited to: (a) Electrical current, including arcing; (b) Electrical charge produced or conducted by a magnetic or electromagnetic field; (c) Pulse of electromagnetic energy; or (d) Electromagnetic waves or microwaves. But if fire results, we will pay for the loss or damage caused by that fire.

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SUPP APP 0990 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 121 of 258 PageID 2691

2.d. Explosion of steam boilers, steam pipes, steam engines or steam turbines owned or leased by you, or operated under your control. But if explosion of steam boilers, steam pipes, steam engines or steam turbines results in fire or combustion explosion, we will pay for the loss or damage caused by that fire or combustion explosion. 2.e. Mechanical breakdown, including rupture or bursting caused by centrifu~al force. But if mechanical breakdown results in a Covered Cause of Loss, we will pay for the loss or damage caused by that Covered Cause of Loss.

b. The following exclusions are removed from CP 1020, Causes of Loss~ Broad Form and not replaced: 2.a. Artificially generated electrical, magnetic or electromagnetic energy that damages, disturbs, disrupts or otherwise interferes with any: (1) Electrical or electronic wire, device, appliance, system or network; or {2) Device, appliance, system or network utilizing cellular or satellite technology. For the purpose of this exclusion, electrical, magnetic or electromagnetic energy includes but is not limited to: (a) Electrical current, including arcing; (b) Electrical charge produced or conducted by a magnetic or electromagnetic field; (c) Pulse of electromagnetic energy; or (d) Electromagnetic waves or microwaves. But if fire results, we will pay for the loss or damage caused by that fire. 2.b. Explosion of steam boilers, steam pipes, steam engines or steam turbines owned or leased by you, or operated under your control. But if explosion of steam boilers, steam pipes, steam engines or steam turbines results in fire or combustion explosion, we will pay for the Joss or damage caused by that fire or combustion explosion. 2.c. Mechanical breakdown, including rupture or bursting caused by centrifugal force. But if mechanical breakdown results in a Covered Cause of Loss, we will pay for the loss or damage caused by that Covered Cause of Loss.

c. The following exclusions are removed from CP 1030, Causes of Loss- Special Form, and not replaced: 2.a. Artificially generated electrical, magnetic or electromagnetic energy that damages, disturbs, disrupts or otherwise interferes with any: (1) Electrical or electronic wire, device, appliance, system or network; or (2) Device, appliance, system or network utilizing cellular or satellite technology. For the purpose of this exclusion, electrical, magnetic or electromagnetic energy includes but is not limited to: (a) Electrical current, including arcing; (b) Electrical charge produced or conducted by a magnetic or electromagnetic field; (c) Pulse of electromagnetic energy; or (d) Electromagnetic waves or microwaves. But if fire results, we will pay for the loss or damage caused by that fire. 2. d. (6) Mechanical breakdown, including rupture or bursting caused by centrifugal force. But if mechanical breakdown results in elevator collision, we will pay for the loss or damage caused by that elevator collision.

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SUPP APP 0991 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 122 of 258 PageID 2692

CCF 1515 0410"

2. e. Explosion of steam boilers, steam pipes, steam engines or steam turbines owned or leased by you, or operated under your control. But if explosion of steam boilers, steam pipes, steam engines or steam turbines results in fire or combustion explosion, we will pay for the loss or damage caused by that fire or combustion explosion. We will also pay for loss or damage caused by or resulting from the explosion of gases or fuel within the furnace of any fired vessel or within the flues or passages through which the gases of combustion pass.

D. The following are deleted from Section C., Limitations of CP 1030, Covered Causes of Loss- Special Form and not replaced: 1. a. Steam boilers, steam pipes, steam engines, or steam turbines caused by or resulting from any condition or event inside such equipment. But we will pay for loss of or damage to such equipment caused by or resulting from an explosion of gases or fuel within the furnace of any fired vessel or within the flues or passages through which the gases of combustion pass. 1. b. Hot water boilers or other water heating equipment caused by or resulting from any condition or event inside such boilers or equipment: other than any explosion.

E. For the purposes of this endorsement the following definitions are added: 1. The following definition is added to CP 1010, Section E, Definitions; CP 1020, Section F, Definitions and CP 1030, Section G., Definitions: "Equipment breakdown" as used herein means: a. Physical loss or damage both originating within: {1) Boilers, fired or unfired pressure vessels, vacuum vessels, and pressure piping, all normally subject to vacuum or internal pressure other than static pressure of contents, excluding: (a) Waste disposal piping; (b) Any piping forming part of a fire protective system; (c) Furnaces; and (d) Any water piping other than: i. Boiler feed water piping between the feed pump and the boiler; ii. Boiler condensate return piping; or . iii. Water piping forming part of a refrigerating or air conditioning system used tor cooling, humidifying or space heating purposes. {2} Mechanical, electrical, electronic or fiber optic equipment; and b. Caused by, resulting from, or consisting of: {1} Mechanical breakdown; {2) Electrical or electronic breakdown; or (3) Rupture, bursting, bulging, implosion, or steam explosion.

However, "Equipment Breakdown" will not mean: Physical loss or damage caused by or resulting from any of the following; however if loss or damage not otherwise excluded results, then we will pay for such resulting damage: · a. Wear and Tear; b. Rust or other corrosion, decay, deterioration, hidden or latent defect, mold or any other quality in property that causes it to damage or destroy itself; c. Smog; d. Settling, cracking, shrinking or expansion e. Nesting or infestation, or discharge or release of waste products or secretions, by birds, rodents or other animals;

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f. Any accident, loss, damage, cost, claim, or expense, whether preventative, remedial, or otherwise, directly or indirectly arising out of or relating to the recognition, interpretation, calculation, comparison, differentiation, sequencing or processing of data by any computer system including any hardware, programs or software; g. Scratching or marring; h. Any loss, damage, cost or expense directly caused by, contributed to by, resulting from or arising out of the following causes of loss: Fire, lightning, combustion explosion, windstorm or hail, weight of snow, ice or sleet, freezing, falling objects, smoke, aircraft or vehicles, riot or civil commotion, vandalism, sinkhole collapse, volcanic action, leakage from fire extinguishing equipment, water damage, earth movement and flood; i. The following Causes of Loss to Personal Property: (1) Dampness or dryness of atmosphere, (2) Marring or scratching. 2. The following definitions are added to CP 0010, CP 0017, CP 0018, Section H- Definitions: "Green" means products, materials, methods and processes certified by a "green authority'' that conserve natural resources, reduce energy or water consumption, avoid toxic or other polluting emissions or otherwise minimize environmental impact. aGreen authority'' means an authority on "green" buildings, products, materials, methods or processes certified and accepted by Leadership in Energy and Environmental Design (LEED®), "Green" Building Initiative Green Globes®, Energy Star Rating System or any other recognized "green" rating system. "Production machinery'' means any machine which processes, forms, shapes, or transports raw materials, materials in process, waste materials or finished products. ·

All other terms and conditions of this policy remain unchanged.

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COMMERCIAL PROPERTY CP 01 40 07 06

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

EXCLUSION OF LOSS DUE TO VIRUS OR BACTERIA This endorsement modifies insurance provided under the following:

COMMERCIAL PROPERTY COVERAGE PART STANDARD PROPERTY POLICY

A. The exclusion set forth in Paragraph B. applies to D. The following provisions in this Coverage Part or all coverage under all forms and endorsements Policy are hereby amended to remove reference that comprise this Coverage Part or Policy, includ- to bacteria: ing but not limited to forms or endorsements that 1. Exclusion of "Fungus", Wet Rot, Dry Rot And cover property damage to buildings or personal Bacteria; and property and. forms or endorsements that cover business income, extra expense or action of civil 2. Additional Coverage - Limited Coverage for .authority. "Fungus&, Wet Rot, Dry Rot And Bacteria, in- Cluding any endorsement increasing the scope B .. We will not pay for loss or damage caused by or or amount of coverage. resulting from any Virus, bacterium or other micro- organism that induces or is capable of inducing E. The terms of the exclusion in Paragraph B., or the physical distress, illness or disease. inapplicability of this exclusion to a particular loss, do not serve to create coverage for any loss that However, this exc!usion does not apply to loss or would otherwise be excluded under this Coverage damage caused by or resulting from "fungus", wet Part or Policy. rot or dry rot. Such loss or damage is addressed in a separate exclusion in this Coverage Part or Poli- cy. c. With respect to any loss or damage subject to the exclusion in Paragraph B., such exclusion super- sedes any exclusion relating to "pollutants".

CP014007 06 © ISO Properties, Inc., 2006 Page 1 of1 D

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COMMERCIAL PROPERTY CP 10 30 06 07

CAUSES OF LOSS - SPECIAL FORM Words and phrases that appear in quotation marks have special meaning. Refer to Section G., Definitions.

A. Covered Causes Of Loss {4) Earth sinking (other than sinkhole col- When Special is shown in the Declarations, Cov- lapse), rising or shifting including soil ered Causes of Loss means Risks Of Direct Phys- conditions which cause settling, crack- ical Loss unless the loss is: ing or other disarrangement of founda- tions or other parts of realty. Soil condi- 1. Excluded in Section B., Exclusions; or tions include contraction, expansion, 2. Limited in Section C., Limitations; freezing, thawing, erosion, improperly compacted soH and the action of water that follow. underthe ground surface. B. Exclusions But if Earth Movement, as described in 1. We will not pay for loss or damage caused b.(1) through (4) above, results in fire or directly or indirectly by any of the following. explosion, we will pay for the loss or dam- Such loss or damage is excluded regardless of age caused by that fire or explosion. any other cause or event that contributes con- currently or in any sequence to the loss. (5) Volcanic eruption, explosion or effusion. But if volcanic eruption, explosion or ef- a. Ordinance Or Law fusion results in fire, building glass The enforcement of any ordinance or law: breakage or Volcanic Action, we will pay for the loss or damage caused by that (1) Regulating the construction, use or .fire, building glass breakage or Volcanic repair of any property; or Action. (2) Requiring the tearing down of any prop- Volcanic Action means direct loss or erty, including the cost of removing its damage resulting from the eruption of a debris. volcano when the loss or damage is This exclusion, Ordinance Or Law, applies caused by: whether the loss results from: (a) Airborne volcanic blast or airborne (a) An ordinance or law that is enforced shock waves; even if the property has not been (b) Ash, dust or particulate matter; or damaged; or (c) Lava flow. (b) The increased costs incurred to comply with an ordinance or law in All volcanic eruptions that occur within the course of construction, repair, any 168-hour period will constitute a renovation, remodeling or demolition single occurrence. of property, or removal of its debris, Volcanic Action does not include the following a physical loss to that cost to remove ash, dust or particulate property. matter that does not cause direct physi- b. Earth Movement cal loss or damage to the described property. (1) Earthquake, including any earth sinking, rising or shifting related to such event; c. Governmental Action (2) Landslide, including any earth sinking, Seizure or destruction of property by order rising or shifting related to such event; of governmental authority. (3) Mine subsidence, meaning subsidence But we will pay for loss or damage caused of a man-made mine, whether or not by or resulting from acts of destruction or- mining activity has ceased; dered by governmental authority and taken at the time of a fire to prevent its spread, if the fire would be covered under this Cover- age Part.

CP 10 3006 07 ©ISO Properties, Inc., 2007 Page 1 of10 [J

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d. Nuclear Hazard g. Water Nuclear reaction or radiation, or radioactive (1) Flood, surface water, waves, tides, tidal contamination, however caused. waves, overflow of any body of water, or But if nuclear reaction or radiation, or ra- their spray, all whether driven by wind or dioactive contamination, results in fire, we not; will pay for the loss or damage caused by (2) Mudslide or mudflow; that fire. (3) Water that backs up or overflows from a e. Utility Services sewer, drain or sump; or The failure of power, communication, water (4) Water under the ground surface press- or other utility service supplied to the de- ing on, or flowing or seeping through: scribed premises, however caused, if the (a) Foundations, walls, floors or paved failure: surfaces; (1) Originates away from the described (b) Basements, whether paved or not; or premises; or (c) Doors, windows or other openings. (2) Originates at the described premises, but only if such failure involves equip- But if Water, as described in g.(1) through ment used to supply the utility service to g.(4) above, · results in fire, explosion or the described premises from a source sprinkler leakage, we will pay for the loss or away from the described premises. damage caused , by that fire, explosion or sprinkler leakage. Failure of any utility service includes lack of sufficient capacity and reduction in supply.. h. "Fungus", Wet Rot, Dry Rot And Bacteria Loss or damage caused by a surge of pow- er is also excluded, if the surge would not Presence, growth, proliferation, spread or have oceurred but for an event causing a any activity of "fungus", wet or dry rot or failure of power. bacteria. But if the failure or surge of power, or the But if ''fungus", wet or dry rot or bacteria re- failure of communication, water or other util- sults in a "specified cause of loss", we will ity service, results in a Covered Cause of pay for the Joss or damage caused by that Loss, we will pay for the loss or damage "specified cause of loss". caused by that Covered Cause of Loss. This exclusion does not apply: · Communication services include but are not 1. When "fungus", wet or dry rot or bacteria limited to service relating to Internet access results from fire or lightning; or · or access to any electronic, cellular or satel- lite network. 2. To the extent that coverage is provided in the Additional Coverage - Limited f. War And Military Action Coverage For "Fungus", Wet Rot, Dry {1) War, including undeclared or civil war; Rot And Bacteria with respect to loss or damage by a· cause of Joss other than (2) Warlike action by a military force, includ- fire or lightning. ing action in hindering or defending against an actual or expected attack, by Exclusions B.1.a. through B.1.h. apply whether any government, sovereign or other au- or not the loss event results in widespread thority using military personnel or other damage or affects a substantial area. agents; or 2. We will not pay for loss or damage caused by (3) Insurrection, rebellion, revolution, or resulting from any of the following: usurped power, or action taken by go- a. Artificially generated electrical, magnetic or vernmental authority in hindering or de- electromagnetic energy that damages, dis- fending against any of these. turbs, disrupts or otherwise interferes with any: (1) Electrical or electronic wire, device, appliance, system or network; or (2) Device, appliance, system or network utilizing cellular or satellite technology.

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For the purpose of this exclusion, electrical, e. Explosion of steam boilers, steam pipes, magnetic or electromagnetic energy in- steam engines or steam turbines owned or cludes but is not limited to: leased by you, or operated under your con- (a) Electrical current, including arcing; trol. But if explosion of steam boilers, steam pipes, steam engines or steam turbines re- (b) Electrical charge produced or con- sults in fire or combustion explosion, we will ducted by a magnetic or electromag- pay for the loss or damage caused by that netic field; fire or combustion explosion. We will also (c) Pulse of electromagnetic energy; or pay for loss or damage caused by or result- ing from the explosion of gases or fuel with- (d) Electromagnetic waves or micro- in the furnace of any fired vessel or within waves. the flues or passages through which the But if fire results, we will pay for the loss or gases of combustion pass. damage caused by that fire. f. Continuous or repeated seepage or lea- b. Delay, loss of use or loss of market. kage of water, or the presence or conden- c. Smoke, vapor or gas from agricultural sation of humidity, moisture or vapor, that smudging or industrial operations. occurs over a period of 14 days or more. d. (1) Wear and tear; g. Water, other liquids, powder or molten material that leaks or flows from plumbing, (2) Rust or other corrosion, decay, deteri- heating, air cOnditioning or other equipment oration, hidden or latent defect or any (except fire protective systems} caused by quality in property that causes it to dam- or resulting from freezing, unless: age or destroy itself; (1) You do your best to maintain heat in the (3) Smog; building or structure; or (4) Settling, cracking, shrinking or expan- (2) You drain the equipment and shut off sion; the supply if the heat is not maintained. (5) Nesting or infestation, or discharge or h. Dishonest or criminal act by you, any of release of waste products or secretions, your partners, members, officers, manag- by insects, birds, rodents or other ani- ers, employees (including leased em- mals. ployees), directors, trustees, authorized (6) Mechanical breakdown, including rup- representatives or anyone to whom you en- ture or bursting caused by centrifugal trust the property for any purpose: force. But if mechanical breakdown re- (1) Acting alone or in collusion with others; sults in elevator collision, we will pay for or the loss or damage caused by that ele- vator collision. (2) Whether or not occurring during the hours of employment. (7) The following causes of loss to personal property: This exclusion does not apply to acts of de- struction by your employees (including (a) Dampness' or dryness of atmos- leased employees); but theft by employees phere; (including leased employees) is not cov- (b) Changes in or extremes of tempera- ered. ture; or i. Voluntary parting with any property by you (c) Marring or scratching. or anyone else to whom you have entrusted But if an excluded cause of loss that is the property if induced to do so by any listed in 2.d.(1) through (7) results in a fraudulent scheme, trick, device or false "specified cause of loss" or building glass pretense. breakage, we will pay for the loss or dam- j. Rain, snow, ice or sleet to personal proper- age caused by that "specified cause of ty in the open. loss" or building glass breakage.

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k. Collapse, including any of the following a. Weather conditions. But this exclusion only conditions of property or any part of the applies if weather conditions contribute in property: any way with a cause or event excluded in (1) An abrupt falling down or caving in; Paragraph 1. above to produce the loss or damage. (2) Loss of structural integrity, including separation of parts of the property or b. Acts or decisions, including the failure to act property in danger of falling down or or decide, of any person, group, organiza- caving in; or tion or governmental body. · (3) Any cracking, bulging, sagging, bending, c. Faulty, inadequate or defective: leaning, settling, shrinkage or expansion (1) Planning, zoning, development, survey- as such condition relates to (1) or (2) ing, siting; above. (2) Design, specifications, workmanship, But if collapse results in a Covered Cause repair, construction, renovation, re- of Loss at the described premises, we will modeling, grading, compaction; pay for the loss or damage caused by that {3) Materials used in repair, construction, Covered Cause of Loss. renovation or remodeling; or · This exclusion, k., does not apply: (4) Maintenance; (a) To the extent that coverage is pro- of part or all of any property on or off the vided under the Additional Coverage described premises. - Collapse; or 4. Special Exclusions (b) To collapse caused by one or more of the following: The following provisions apply only to the spe- cified Coverage Forms. (i) The "specified causes of loss"; a. Business Income (And Extra Expense) (li) Breakage of building glass; Coverage Form, Business Income (iii) Weight of rain that collects on a (Without Extra Expense) Coverage Fonn, roof; or Or Extra Expense Coverage Form (iv) Weight ·of people or personal We will not pay for. property. (1) Any loss caused by or resulting from: I. Discharge, dispersal, seepage, migration, (a) Damage or destruction of ''finished release or escape of "pollutants" unless the stock"; or discharge, dispersal, seepage, migration, release or escape is itself caused by any of (b) The time required to reproduce "fi- the "specified causes of loss". But if the dis- nished stock". charge, dispersal, seepage, migration, re- This exclusion does not apply to Extra lease or escape of "pollutants" results in a Expense. "specified cause of loss", we will· pay for the (2) Any loss caused by or resulting from loss or damage caused by that "specified direct physical loss or damage to radio cause of Joss". or television antennas (including satellite This exclusion, 1., does not apply to dam- dishes} and their lead-in wiring, masts or age to glass caused by chemicals applied towers. to the glass. (3) Any increase of loss caused by or re- m. Neglect of an insured to use all reasonable sulting from: means to save and preserve property from (a) Delay in rebuilding, repairing or further damage at and after the time of loss. replacing the property or resuming 3. We will not pay for loss or damage caused by AoperationsN, due to interference at or resulting from any of the following, 3.a. the location of the rebuilding, repair through 3.c. But if an excluded cause of loss or replacement by strikers or other that is listed in 3.a. through 3.c. results in a persons; or Covered Cause of Loss, we will pay for the Joss or damage caused by that Covered Cause of Loss.

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{b) Suspension, lapse or cancellation of {2) The following additional exclusions any license, lease or contract. But if apply to insurance under this Coverage the suspension, lapse or cancellation Form: is directly caused by the "suspen- {a) Contractual Liability sion" of noperations"' we will cover such loss that affects your Business We will not defend any claim or Income during the "period of restora- "suit", or pay damages that you are tion" and any extension of the "pe- legally liable to pay, solely by reason riod of restoration" in accordance of your assumption of liability in a with the terms of the Extended Busi- contract or agreement. But this ex- ness Income Additional Coverage clusion does not apply to a written and the Extended Period Of Indem- lease agreement in which you have nity Optional Coverage or any varia- assumed liability for building damage tion of these. resulting from an actual or attempted burglary or robbery, provided that: (4) Any Extra_Expense caused by or result- ing from suspension, lapse or cancella- (i) Your assumption of liability was tion of any license, lease or contract executed prior to the accident; beyond the "period of restoration". and (5) Any other consequential loss. (ii) The building is Covered Property under this Coverage Form. b. Leasehold Interest Coverage Form (b) Nuclear Hazard (1) Paragraph B.1.a., Ordinance Or Law, does not apply to insurance under this We will not defend any claim or Coverage Form. "suit", or pay any damages, loss, expense or obligation, resulting from (2} We will not pay for any loss caused by: nuclear reaction or radiation, or {a) Your cancelling the lease; radioactive contamination, however (b) The suspension, lapse or cancella- caused. tion of any license; or 5. Additional Exclusion (c) Any other consequential loss. The following provisions apply only to the spe- c. Legal Liability Coverage Form cified property. {1) The following exclusions do not apply to LOSS OR DAMAGE TO PRODUCTS insurance under this Coverage Form: We will not pay for loss or damage to any mer- (a} Paragraph B.1.a., Ordinance Or chandise, goods or other product caused by or Law; resulting from error or omission by any person or entity (including those having possession (b) Paragraph B.1.c., Governmental under an arrangement where work or a portion Action; of the work is outsourced) in any stage of the (c) Paragraph B.1.d., Nuclear Hazard; development, production or use of the product, including planning, testing, processing, pack- (d) Paragraph B.1.e., Utility Services; aging, installation, maintenance or repair. This and exclusion applies to any effect that compro- (e) Paragraph B.1.f., War And Military mises the form, substance or quality of the Action. product. But if such error or omission results in a Covered Cause of Loss, we will pay for the loss or damage caused by that Covered Cause of Loss.

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C. Limitations 2. We will not pay for loss of or damage to the following types of property unless caused by The following limitations apply to all policy forms and endorsements, unless otherwise stated. the "specified causes of loss" or building glass breakage: 1. We will not pay for loss of or damage to prop- erty, as described and limited in this section. In a. Animals, and then only if they are killed or addition, we will not pay for any loss that is a their destruction is made necessary. consequence of loss or damage as described b. Fragile articles such as statuary, marbles, and limited in this section. chinaware and porcelains, if broken. This restriction does not apply to: a. Steam boilers, steam pipes, steam engines or steam turbines caused by or resulting (1) Glass; or from any condition or event inside such (2) Containers of property held for sale. equipment. But we will pay for loss of or damage to such equipment caused by or c. Builders' machinery, tools and equipment resulting from an explosion of gases or fuel owned by you or entrusted to you, provided within the furnace of any fired vessel or such property is Covered Property. within the flues or passages through which However, this limitation does not applY: the gases of combustion pass. (1) If the property is located on or within b. Hot water boilers or other water heating 100 feet of the described premises, un- equipment caused by or resulting from any less the premises is insured under the condition or event inside such boilers or Builders Risk Coverage Form; or equipment, other than an explosion. (2) To Business Income Coverage or to c. The interior of any building or structure, or Extra Expense Coverage. to personal property in the building or struc- 3. The special limit shown for each category, a. ture, caused by or resulting from rain, snow, through d., is the total limit for loss of or dam- sleet, ice, sand or dust, whether driven by age to all property in that category. The special wind or not, unless: limit applies to any one occurrence of theft, re- (1) The building or structure first sustains gardless of the types or number cif articles that · damage by a Covered Cause of Loss to are lost or damaged in that occurrence. The its roof or walls through which the rain, special limits are: snow, sleet, ice, sand or dust enters; or a. $2,500 for furs, fur garments and garments (2) The loss or damage is caused by or trimmed with fur. results from thawing of snow, sleet or b. $2,500 for jewelry, watches, watch move- ice on the building or structure.. ments, jewels, pearls, precious and semi- d. Building materials and supplies not at- precious stones, bullion, gold, silver, plati- tached as part of the building or structure. num and other precious alloys or metals. caused by or resulting from theft. This limit does not apply to jewelry and However, this limitation does not apply to: watches worth $100 or less per item. (1) Building materials and supplies held for c. $2,500 for patterns, dies, molds and forms. sale by you, unless they are insured un- d. $250 for stamps, tickets, including lottery der the Builders Risk Coverage Form; or tickets held for sale, and letters of credit. (2} Business Income Coverage or Extra These special limits are part of, not in addition Expense Coverage. to, the Limit of Insurance applicable to the e. Property that is missing, where the only Covered Property. evidence of the loss or damage is a short- This limitation, C.3., does not apply to Busi- age disclosed on taking inventory, or other ness Income Coverage or to Extra Expense instances where there is no physical evi- Coverage. dence to show what happened to the prop- erty. f. Property that has been transferred to a person or to a place outside the described premises on the basis of unauthorized in- structions.

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4. We will not pay the cost to repair any defect to 3. This Additional Coverage - Collapse does a system or appliance from which water, other not apply to: · liquid, powder or molten material escapes. But a. A building or any part of a building that is in we will pay the cost to repair or replace dam- danger of falling down or caving in; aged parts of fire-extinguishing equipment if the damage: · b. A part of a building that is standing, even if it has separated from another part of the a. Results in discharge of any substance from building; or an automatic fire protection system; or c. A building that is standing or any part of a b. Is directly caused by freezing. building that is standing, even if it shows However, this limitation does not apply to Busi- evidence of cracking, bulging, sagging, ness Income Coverage or to Extra Expense bending, leaning, settling, shrinkage or ex- Coverage. pansion. D. Additional Coverage - Collapse 4. With respect to the following property: The coverage provided under this Additional Cov- a. Outdoor radio or television antennas (in- erage - Collapse applies only to an abrupt col- cluding satellite dishes) and their lead-in lapse as described and limited in 0.1. through 0.7. wiring, masts or towers; 1. For the purpose of this Additional Coverage- b. Awnings, gutters and downspouts; Collapse, abrupt collapse means an abrupt fall- c. Yard fixtures; ing down or caving in of a building or any part of a building with the result that the building or d. Outdoor swimming pools; part of the building cannot be occupied for its e. Fences; intended purpose. f. Piers, wharves and docks; 2. We will pay for direct physical loss or damage g. Beach or diving platforms or appurten- to Covered Property. caused by abrupt col- ances; lapse of a building or any part of a building that is insured under this Coverage Form or that · h. Retaining walls; and contains Coverad Property insured under this i. Walks, roadways and other paved surfaces; Coverage Form, if such collapse is caused by if an abrupt collapse is caused by a cause of one or more of the following: loss listed in 2.a. through 2.d., we will pay for loss or damage to that property only if: a. Building decay that is hidden from view, (1) Such Joss or damage is a direct result of unless the presence of such decay is the abrupt collapse of a building insured known to an insured prior to collapse; under this Coverage Form; and b. Insect or vermin damage that is hidden (2) The property is Covered Property under from view, unless the presence of such this Coverage Form. damage is known to an insured prior to col- lapse; 5. If personal property abruptly falls down or caves in and such collapse is not the result of c. Use of defective material or methods in abrupt collapse of a building, we will pay for construction, remodeling or renovation if the loss or damage to Covered Property caused by abrupt collapse occurs during the course of such collapse of personal property only if: the construction. remodeling or renovation. a. The collapse of personal property was d. Use of defective material or methods in caused by a cause of loss listed in 2.a. construction, remodeling or renovation if the through 2.d.; abrupt collapse occurs after the construc- tion, remodeling or renovation is complete, b. The personal property which collapses is inside a building; and but only if the collapse is caused in part by: (1) A cause of loss listed in 2.a. or 2.b.; c. The property which collapses is not of a kind listed in 4., regardless of whether that (2) One or more of the "specified causes of kind of property is considered to be person- loss"; al property or real property. (3) Breakage of building glass; The coverage stated in this Paragraph 5. does (4) Weight of people or personal property; not apply to personal property if marring and/or or scratching is the only damage to that personal property caused by the collapse. (5) Weight of rain that collects on a roof.

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6. This Additional Coverage - Collapse does not . 3. The coverage described under E.2. of this apply to personal property that has not abruptly Limited Coverage is limited to $15,000. Re- fallen down or caved in, even if the personal gardless of the number of claims, this limit is property shows evidence of cracking, bulging, the most we will pay for the total of all loss or sagging, bending, leaning, settling, shrinkage damage arising out of all occurrences of "spe- or expansion. cified causes of loss" {other than fire or 7. This Additional Coverage - Collapse will not lightning) and Flood which take place in a 12- increase the Limits of Insurance provided in month period (starting with the beginning of the this Coverage Part. present annual policy period). With respect tQ a particular occurrence of loss which results in 8. The term Covered Cause of Loss includes the "fungus", wet or dry rot or bacteria, we will not Additional Coverage - Collapse as described pay more than a total of $15,000 even if the and limited in 0.1. through 0.7. ''fungus", wet or dry rot or bacteria continues to E. Additional Coverage - Limited Coverage For be present or active, or recurs, in a later policy "Fungus .., Wet Rot, Dry Rot And Bacteria period. 1. The coverage described in E.2. and E.6. only 4. The coverage provided under this Limited applies when the "fungus~, wet or dry rot or Coverage does not increase the applicable bacteria is the result of one or more of the fol- Limit of Insurance on any Covered Property. If lowing causes that occurs during the policy pe- a particular occurrence results in loss or dam- riod and only if all reasonable means were age by "fungus", wet or dry rot or bacteria, and used to save and preserve the property from other loss or damage, we will not pay more, for further damage at the time of and after that oc- the total of all loss or damage, than the appli- currence. cable Limit of Insurance on the affected Cov- ered Property. a. A "specified cause of loss" other than fire or lightning; or If there is covered loss or damage to Covered Property, not caused by "fungus", wet or dry rot b. Flood, if the Flood Coverage Endorsement or bacteria, loss payment will not be limited by applies to the affected premises. the terms of this Limited Coverage, except to 2. We will pay for loss or damage by "fungus", the extent that "fungus", wet or dry rot or bacte- wet or dry rot or bacteria. As used in this .Li- ria causes an increase in the loss. Any such mited Coverage, the term loss or damage increase in the loss will be subject to the terms means: of this Limited Coverage. a. Direct physical loss or damage to Covered 5. The terms of this Limited Coverage do not ·Property caused by "fungus", wet or dry rot increase or reduce th~ coverage provided un- or bacteria, including the cost of removal of der Paragraph F.2. (Water Damage, Other Liq- the "fungus", wet or dry rot or bacteria; uids, Powder Or Molten Material Damage) of b. The cost to tear out and replace any part of this Causes Of Loss Form or under the Addi- the building or other property as needed to tional Coverage - Collapse. gain access to the "fungus", wet or dry rot 6. The following, 6.a. or 6.b., applies only if Busi- or bacteria; and ness Income and/or Extra Expense Coverage c. The cost of testing performed after removi;tl, applies to the described premises and only if repair, replacement or restoration of the the "suspension" of "operations" satisfies all damaged property is completed, provided terms and conditions of the applicable Busi- there is a reason to believe that "fungus", ness Income and/or Extra Expense Coverage wet or dry rot or bacteria are present. Form.

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SUPP APP 1002 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 133 of 258 PageID 2703

a. If the loss which resulted in nfimgus", wet or This Coverage Extension is additional insur- dry rot or bacteria does not in itself necessi· ance. The Additional Condition, Coinsurance, tate a "suspension" of noperations", but does not apply to this Extension. such "suspension" is necessary due to loss 2. Water Damage, Other Liquids, Powder Or or damage to property caused by "fungus", Molten Material Damage wet or dry rot or bacteria, then our payment . under Business Income and/or Extra Ex· If Joss or damage caused by or resulting from pense is limited to the amount of loss covered water or other liquid, powder or molten and/or expense sustained in a period of not material damage Joss occurs, we will.aJso pay more than 30 days. The days need not be the cost to tear out and replace any part of the consecutive. building or structure to repair damage to the system or appliance from which the water or b. lf a covered "suspension" of "operations" other substance escapes. This Coverage Ex- was caused by loss or damage other than tension does not increase the Limit of Insur- "fungus", wet or dry rot or bacteria but ra. ance. mediation of ''fungus", wet or dry rot or bac- teria prolongs the "period of restoration", we 3. Glass will pay for loss and/or expense sustained a. We will pay for expenses incurred to put up during the delay (regardless of when such a temporary plates or board up openings if delay occurs during the "period of restora- repair or replacement of damaged glass is tion"), but such coverage is limited to 30 delayed. days. The days need not be consecutive. b. We will pay for expenses incurred to re- F. Additional Coverage Extensions move or replace obstructions when repair- 1. PrOperty In Transit ing or replacing glass that is part of a build- ing. This does not include removing or ra. This Extension applies only to your personal placing window displays. property to which this form applies. This Coverage Extension, F.3., does not in~ · a. You may extend the insurance provided by crease the Limit of Insurance. this Coverage Part to apply to your person- al property (other than property in the care, G. Definitions custody or control of your salespersons) in 1. "Fungus" means any type or form of fungus, transit more than 100 feet from the de. including mold or mildew, and any mycotoxins, scribed premises. Property must be in or on spores, scents or by-products produced or ra. a motor vehicle you own, lease or operate leased by fungi. while between points in the coverage terri- 2. "Specified causes of Joss" means the following: tory. fire; lightning; explosion; windstorm or hail; b. Loss ·or damage must be caused by or smoke; aircraft or vehicles; riot or civil commo- result from one of the following causes of tion; vandalism; leakage from fire-extinguishing loss: equipment; sinkhole collapse; volcanic action; (1) Fire, lightning, explosion, windstorm or falling objects; weight of snow, ice or sleet; wa- hail, riot or civil commotion, or vandal- ter damage. ism. a. Sinkhole collapse means the sudden sink- (2) Vehicle collision, upset or overturn. ing or collapse of land into underground Collision means accidental contact of empty spaces created by the action of wa- your vehicle with another vehicle or ob- ter on limestone or dolomite. This cause of ject. It does not mean your vehicle's loss does not include: contact with the roadbed. (1) The cost of filling sinkholes; or (3) Theft of an entire bale, case or package (2) Sinking or collapse of land into man- by forced entry into a securely locked made underground cavities. body or compartment of the vehicle. There must be visible marks of the forced entry. c. The most we will pay for loss or damage under this Extension is $5,000.

CP 1030 06 07 ©ISO Properties, Inc., 2007 Page 9 of10 0

SUPP APP 1003 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 134 of 258 PageID 2704

b. Falling objects does not include loss or c. Water damage means accidental discharge damage to: or leakage of water or steam as the direct (1) Personal property in the open; or result of the breaking apart or cracking of a plumbing, heating, air conditioning or other (2) The interior of a building or structure, or. system or appliance (other than a sump property inside a building or structure, system including its related equipment and unless the roof or an outside wall of the parts), that is located on the described building or structure is first damaged by premises and contains water or steam. a falling object.

Page 10 of10 © ISO Properties, Inc., 2007 CP 10 30 06 07 0

SUPP APP 1004 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 135 of 258 PageID 2705

POLICY-NUMBER: CCP 672836 COMMERCIAL PROPERTY CP 121110 00

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BURGLARY AND ROBBERY PROTECTIVE SAFEGUARDS This endorsement modifies insurance provided under the following:

COMMERCIAL PROPERTY COVERAGE PART

SCHEDULE*

Premises Building Protective Safeguards No. No. Symbols Applicable 1 1 BR-4 Description

Fully functional, actively engaged Burglar Alarm System with interior Motion Detection Devices protecting the entire building that signals directly to an outside Central Station or Police Department.

*Information required to complete this Schedule, if not shown on this endorsement, will be shown in the Declara- lions.

A. The following is added to the Commercial c. nBR-3" Security Service, with a recording Property Conditions: system or watch clock, making hourly ·BURGLARY AND ROBBERY PROTECTIVE rounds covering the entire building, when SAFEGUARDS the premises are not in actual operation. 1. As a condition of this insurance, you are re- d. "BR-4" The protective safeguard described in quired to maintain the protective devices and/or the Schedule. services listed in the Schedule above. B. The following is added to the Exclusions section 2. The protective safeguard{s) to which this en- of the Causes Of Loss- Special Form: dorsement applies are identified by the follow- BURGLARY AND ROBBERY PROTECTIVE ing symbols: SAFEGUARDS a. "BR-1" Automatic Burglary Alarm, protect- We will not pay for loss or damage caused by or ing the entire building, that signals to: resulting from theft if, prior to the theft, you: (1) An outside central station; or 1. Knew of any suspension or impairment in any (2) A police station. protective safeguard listed in the Schedule above and failed to notify us of that fact; or b. "BR-2" Automatic Burglary Alarm, protecting 2. Failed to maintain any protective safeguard the entire building, that has a loud sounding listed in the Schedule above, and over which gong or siren on the outside of the building. you had control, in complete working order.

CP 121110 00 Copyright, Insurance Services Office, Inc., 1999 Page 1 of1

SUPP APP 1005 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 136 of 258 PageID 2706

POLICY NUMBER: CCP672836 COMMERCIAL PROPERTY CP14401000

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

OUTSIDE SIGNS

This endorsement modifies insurance provided under the foflowing:

BUILDING AND PERSONAL PROPERTY COVERAGE FORM CONDOMINIUM ASSOCIATION COVERAGE FORM CONDOMINIUM COMMERCIAL UNIT-OWNERS COVERAGE FORM STANDARD PROPERTY POLICY

SCHEDULE*·

Construction Of Sign Causes Of Prem. Bldg. Entirely Limit of Loss Form. Coinsurance · Additional No. No. Metal other Insurance Applicable Percentage Premium 1 D $8,500 Special Form including theft 90% $ 262

*Information required to complete this Schedule, if not shown on this endorsement, will be shown in the Declarations.

With respect to outside signs described in the 1. Dampness or dryness of atmosphere; Schedule: 2. Changes in or extremes of temperature; A. "Signs (other than signs attached to buildings)" is 3. Marring or scratching; or deleted from Property Not Covered. 4. Rain, snow, ice or sleet B. In the Limits Of Insurance section, the provision which pertains to signs attached to buildings However, if the sign is attached to the building and C does not apply. The limit applicable to each sign is covered under the Causes Of Loss- Special • is shown in the Schedule. Form, then Exclusions C.1. through C.4. do not Outside signs are subject to all applicable provi- apply. sions of the Causes Of Loss Form indicated in the Schedule. In addition, we will not pay for loss or damage caused by or resulting from any of the following:

CP 144010 00 Copyright, Insurance Services Office, Inc., 1999 Page 1 of1

SUPP APP 1006 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 137 of 258 PageID 2707

POLICY NUMBER: CCP 672836 COMMERCIAL PROPERTY CP14700607

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

BUILDING GLASS -TENANT'S POLICY

This endorsement modifies insurance provided under the following:

. BUILDING AND PERSONAL PROPERTY COVERAGE FORM STANDARD PROPERTY POLICY

SCHEDULE Location Of Building: 5026 ADDISON CIRCLE ADDISON, TX 75001

Description Of Building Glass: STORE FRONT, DOUBLE DOORS AND SINGLE DOOR

Causes Of Loss Form: Special Form including theft (And Related Endorsements, If Any)

Limit Of Insurance: $5,000

nformation required to complete this Schedule, if not shown above , will be shown in the Declarations.

A. Under this endorsement, building glass means the c::. The value of property covered under this en- building glass described in the Schedule. dorsement will be determined in accordance with B. We will pay for direct physical loss of or damage to the Valuation Condition applicable under this Cov- building glass at the building shown in the Sche- erage Form or Policy, or at the amount for which dule caused by or resulting from a Covered Cause you are liable under contract, whichever is less. If of Loss shown in the Schedule, provided that: required by law, glass is covered at the cost of re- 1. You are a tenant of the building shown in the placement with safety glazing material. However, Schedule; and the most we will pay for the coverage provided 2. You have a contractual responsibility to insure under this endorsement is the Limit of Insurance · the building glass, or a contractual responsibili- shown in the Schedule. ty to pay for loss or damage to that property.

CP14700607 © IS 0 Properties, Inc., 2007 Page 1 of1

SUPP APP 1007 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 138 of 258 PageID 2708 INTERLrNE IL 0415 0498

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

PROTECTIVE SAFEGUARDS This endorsement modifies insurance provided under the following:

COMMERCIAL PROPERTY COVERAGE PART FARM COVERAGE PART

Protective Safeguards Prem. No.

1 I Bldg. No.

1 Symbols Applicable P-9

Describe any "P-9": Fully functional and actively engaged fire Extinguishing System over the entire cooking area with an automatic shut off for the heat source with a semi-annual service contract.

A. The following is added to the: (3) Tanks, their component parts and supports; Commercial Property Conditions and General Conditions in the (4) Pumps and private fire protection mains. Farm Property - Other Farm Provisions Form -Additional Coverages, b. When supplied from an automatic fire protective Conditions, Definitions system: General Conditions in the Mobile Agricultural Machinery and Equipment Coverage Fonn (1} Non-automatic fire protective systems; and General Conditions in the Livestock Coverage (2) Hydrants, standpipes and outlets. Form PROTECTIVE SAFEGUARDS "P-2" Automatic Fire Alarm, protecting the 1. As a condition of this insurance, you are entire building, that is: required to maintain the protective devices a. Connected to a central station; or or services listed in the Schedule above. 2. The protective safeguards to which this b. Reporting to a public or private fire endorsement applies are identified by the alann station. following symbols: "P-3" Security Service, with a recording "P-1" Automatic Sprinkler System, including system or watch clock, making hourly rounds related supervisory services. covering the entire building, when the premises Automatic Sprinkler System means: are not in actual operation. a. Any automatic fire protective or ex- "P-4" Service Contract with a privately tinguishing system, including con- owned fire department providing fire protection nected: service to the described premises. (1) Sprinklers and discharge noz- "P-9" The protective system described in the zles; Schedule. . (2) Ducts, pipes, valves and fittings;

IL 0415 0498 Copyright, Insurance Services Office, Inc., 1997 Page 1 of4

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B. The following is added to the EXCLUSIONS sec- We will not pay for loss or' damage caused by · tion of: or resulting from fire if, prior to the fire, you: CAUSES OF LOSS- BASIC FORM 1. Knew of any suspension or impairment in CAUSES OF LOSS- BROAD FORM any protective safeguard listed in the CAUSES OF LOSS- SPECIAL FORM Schedule above and failed to notify us of MORTGAGE HOLDERS ERRORS AND that fact; or OMISSIONS COVERAGE FORM 2. Failed to maintain any protective safeguard STANDARD PROPERTY POLICY listed in the Schedule above, and over CAUSES OF LOSS FORM - FARM which you had control, in complete working PROPERTY order. MOBILE AGRICULTURAL MACHINERY AND If part of an Automatic Sprinkler System is shut EQUIPMENT COVERAGE FORM off due to breakage, leakage, freezing condi- LIVESTOCK COVERAGE FORM tions or opening of sprinkler heads, notification to us will not be necessary if you can restore full protection within 48 hours.

JL04150498 Copyright, Insurance Services Office, Inc., 1997 Page 2 of4

SUPP APP 1009 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 140 of 258 PageID 2710 INTERLINE IL0415 0498

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

PROTECTIVE SAFEGUARDS This endorsement modifies insurance provided under the following:

Prem. No.

1 I Protective Safeguards Symbols Applicable P-1

Describe any "P~9"; Automatic Sprinkler System

A. The following is added to the: (3) Tanks, their component p~rts and supports; Commercial Property Conditions and General Conditions in the (4) Pumps and private fire protection malns. Farm Property - Other Farm · Provisions Form - Additional Coverages, b. When supplied from an automatic fire protective Conditions, Definitions system: General Conditions in the Mobile Agricultural Machinery and Equipment Coverage Form (1) Non-automatic fire protective systems; and General Conditions in the Livestock Coverage (2) Hydrants, standpipes and outlets. Form PROTECTIVE SAFEGUARDS "P-2" Automatic Fire Alarm, protecting the 1. As a condition of this insurance, you are entire building, that is: required to maintain the protective devices a. Connected to a central station: or or services listed in the Schedule above. 2. The protective safeguards to which this b. Reporting to a public or private fire endorsement applies are identified by the alarm station. . following symbols: "P-3.. Security Service, with a recording "P-1" Automatic Sprinkler System, including system or watch clock, making hourly rounds related supervisory services. covering the entire building, when the premises Automatic Sprinkler System means: are not in actual operation. a. Any automatic fire protective or ex- "P-4" Service Contract with a privately tinguishing system, including con- owned fire department providing fire protection ·nected: service to the described premises. (1) Sprinklers and discharge noz- .. p_g.. The protective system described in the zles; Schedule. (2) Ducts, pipes, valves and fittings;

IL 04150498 Copyright, Insurance Services Office, Inc., 1997 Page 3of 4

SUPP APP 1010 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 141 of 258 PageID 2711

B. The following is added to the EXCLUSIONS sec- We will not pay for loss or damage caused by tion of: or resulting from fire if, prior to the fire, you: CAUSES OF LOSS -BASIC FORM 1. Knew of any suspension or impairment in CAUSES OF LOSS - BROAD FORM any protective safeguard listed in the CAUSES OF LOSS- SPECIAL FORM Schedule above and failed to notify us of MORTGAGE HOLDERS ERRORS AND that fact; or OMISSIONS COVERAGE FORM 2. Failed to maintain any protective safeguard STANDARD PROPERTY POLICY listed in the Schedule above, and over CAUSES OF LOSS F.ORM- FARM which you had control, in complete working PROPERTY order. MOBILE AGRICULTURAL MACHINERY AND If part of an Automatic Sprinkler System is shut EQUIPMENT COVERAGE FORM off due to breakage, leakage, freezing condi- LIVESTOCK COVERAGE FORM tions or opening of sprinkler heads, notification to us will not be necessary if you can restore full protection within 48 hours.

IL0415 0498 Copyright, Insurance Services Office, Inc., 1997 Page4of4

SUPP APP 1011 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 142 of 258 PageID 2712

IL 09 35 07 02

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

EXCLUSION OF CERTAIN COMPUTER-RELATED LOSSES This endorsement modifies insurance provided under the following:

COMMERCIAL INLAND MARINE COVERAGE PART COMMERCIAL PROPERTY COVERAGE PART CRIME AND FIDELITY COVERAGE PART STANDARD PROPERTY POLICY

A. We will not pay for loss ("loss") or damage caused 2. Any advice, consultation, design, evaluation, directly or indirectly by the following. Such Joss inspection, installation, maintenance, repair, ("loss~) or damage is excluded regardless of any replacement or supervision provided or done ·other cause or event that contributes concurrently by you or for you to determine, rectify or test or in any sequence to the loss ("loss") or damage. for, any potential or actual problems described 1. The failure, malfunction or inadequacy of: in Paragraph A.1. of this endorsement. a. Any of the following, whether belonging to B. If an excluded Cause of Loss as described in any insured or to others: Paragraph A. of this endorsement results: (1) Computer hardware, including micro- 1. In a Covered Cause of Loss under the Crime processors; and Fidelity Coverage Part, the C(,)mmercial Inland Marine Coverage Part or the Standard {2) Computer application software; Property Policy; or (3) Computer operating systems and re- 2. Under the Commercial Property Coverage lated software; Part: (4) Computer networks; a. In a "Specified Cause of Loss", or in eleva- {5) MicroproCessors (computer chips) not tor collision resulting from mechanical part of any computer system; or breakdown, under the Causes of loss - Special Form; or {6) Any other computerized or electronic equipment or components; or b. In a Covered. Cause of Loss under the b. Any other products, and any services, data Causes Of Loss - Basic Form or the Causes Of Loss - Broad Form; or functions that directly or indirectly use or rely upon, in any manner, any of the items we will pay only for the Joss rross") or damage listed in Paragraph A.1.a. of this endorse- caused by such "Specified Cause of loss", eleva- ment; tor collision, or Covered Cause of Loss. due to the inability to correctly recognize, proc- C. We will not pay for repair, replacement or modifi- ess, distinguish, interpret or accept one or cation of any items in Paragraphs A.1.a. and more dates or times. An example is the inability A.1.b. of this endorsement to correct any deficien- of computer .software to recognize the year cies or change any features. 2000.

IL 09 35 07 02 © ISO Properties, Inc., 2001 Page 1 of 1 D

SUPP APP 1012 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 143 of 258 PageID 2713

IL0986 0308 POLICY NUMBER: CCP 672836

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ·EXCLUSION OF CERTIFIED ACTS OF TERRORISM INVOLVING NUCLEAR, BIOLOGICAL, CHEMICAL OR RADIOLOGICAL TERRORISM; CAP ON COVERED CERTIFIED ACTS LOSSES

This endorsement modifies insurance provided under the following:

BOILER AND MACHINERY COVERAGE PART COMMERCIAL INLAND MARINE COVERAGE PART COMMERCIAL PROPERTY COVERAGE PART CRIME AND FIDELITY COVERAGE PART EQUIPMENT BREAKDOWN COVERAGE PART FARM COVERAGE PART STANDARD PROPERTY POLICY SCHEDULE

The Exception Covering Certain Fire Losses (Paragraph C) applies to property located in the following state{s), if covered under the indicated Coverage Form, Coverage Part or Policy:

State(s) Coverage Form, Coverage Part Or Policy

Information required to. complete this Schedule, if no~ shown above, will be shown in the Declarations.

A. The following definition is added with respect to 1. The act resulted in insured losses in excess of the provisions of this endorsement: $5 million in the aggregate, attributable to all "Certified act of terrorism" means an act that is types of insurance subject to the Terrorism certified by the Secretary of the Treasury, in con- Risk Insurance Act; and currence with the Secretary of State and the Attor- 2. The act is a violent act or an act that is dan- ney General of the United States, to be an act of gerous to human life, property or infrastructure terrorism pursuant to the federal Terrorism Risk and is committed by an individual or individuals Insurance Act. The criteria contained in the Terror- as part of an effort to coerce the civilian popu- ism Risk Insurance Act for a "certified act of terror- lation of the United States or to influence the ism" include the following: policy or affect the conduct of the United States Government by coercion.

IL 09 86 03 08 © ISO Properties, Inc., 2005 Page 1 of2

SUPP APP 1013 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 144 of 258 PageID 2714

B. The following exclusion is added: C. Exception Covering Certain Fire Losses UMJTED EXCLUSION OF CERTIFIED ACTS OF The following exception to the exclusion in Para- TERRORISM graph B. applies only if indicated and as indicated Ws will not pay for loss or damage caused directly in the Schedule of this endorsement. or indirectly by a "certified act of terrorism". Such If a "certified act of terrorism" excluded under Pa- loss or damage is excluded regardless of any oth- ragraph B. results in fire, we will pay for the loss or er cause or event that contributes concurrently or damage caused by that tire, subject to all applica- in any sequence to the loss. But this exclusion ap- ble policy provisions including the Limit of Insur- plies only when one or more of the following are ance on the affected property. Such coverage for attributed to such act: fire applies only to direct loss or damage by fire to 1. The terrorism is carried out by means of the ·Covered Property. Therefore, for example, the dispersal or application of radioactive material, coverage does not apply to insurance provided or through the use of a nuclear weapori or de- under Business Income and/or Extra Expense vice that involves or produces a nuclear reac- coverage forms or endorsements that apply to tion, nuclear radiation or radioactive contami- those coverage forms, or to the Legal Liability natlon;or Coverage Form or the Leasehold Interest Cover- 2. Radioactive material is released, and it ap- age Form. pears that one purpose of the terrorism was to D. Cap On Certified Terrorism losses release such material; or The following limitation applies to coverage for any 3. The terrorism is carried out by means of the dispersal or application of pathogenic or poi- one or more "certified acts of terrorism" that are not excluded by the terms of the exclusion in Pa- sonous biological or chemical material; or ragraph B. and to any loss or damage that is cov- 4. Pathogenic or poisonous biological or chemical material is released, and it appears that one ered and to which the exception in Paragraph C. applies:· · purpose of the terrorism was to release such If aggregate insured losses attributable to terrorist material. acts certified under the Terrorism Risk Insurance When this terrorism exclusion applies in accor- Act exceed $100 billion in a Program Year (Janu- dance with the terms of Paragraph B.1. or 8.2., the terrorism exclusion applies without regard to ary 1. through December 31) and we have met our the Nuclear Hazard Exclusion in this Coverage . insurer deductible under the Terrorism Risk Insur- Part or Policy. ance Act, we shall not be liable for the payment of any portion of the amount of such losses that ex- ceeds $100 billion, and in such case insured losses up to that amount are subject to pro rata al- location in accordance with procedures estab- lished by the Secretary of the Treasury. This Paragraph, D.l does not apply to insurance provided under the Crime And Fidelity Coverage Part. E. Application Of Exclusions The terms and limitations of any terrorism exclu- sion, or the non-applicability or omission of a ter- rorism exclusion, do not serve to create coverage for: any Joss which would otherwise be excluded under this Coverage Part or Policy, such as losses excluded by the War And Military Action Exclu- sion.

IL09 8603 08 ©ISO Properties, Inc., 2005 Page 2 of2

SUPP APP 1014 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 145 of 258 PageID 2715

EXHIBIT B

SUPP APP 1015 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 146 of 258 PageID 2716 •'

Cause Number:

JANE DOE,

Plaintiff, ..• v.

AJREDIN "DANNY" DEARI; DRITAN KREKA; PASTAZIOS PIZZA, INC.; ISLAND HOSPITALITY MANAGEMENT, INC.; HYATT HOTELS CORPORATION; and DOES 1-25,

Defendants. DALLAS COUNTY, TEXAS

PLAINTIFF'S ORIGINAL PETITION

Plaintiff JANE DOE 1 ("Plaintiff'') file Plaintiff's Original Petition ("Petition") against

Defendants AJREDIN "DANNY" DEARI; DRITAN KREKA; PASTAZIOS PIZZA, INC.;

ISLAND HOSPITALITY MANAGEMENT, INC.; HYATT HOTELS CORPORATION; and

DOES 1-25 (collectively referred to herein as "Defendants"), and for causes of action

respectfully shows this Court as follows:

I. DISCOVERY CONTROL PLAN

1. Pursuant to TEX. R. CIV. P. 190.1, 190.3, Plaintiff intends to conduct discovery

under a Level 2 Discovery Control Plan.

II. PARTIES

2. Plaintiff is a natural person who resides in Collin County, Texas.

1 Due to the extremely personal and sensitive nature of this lawsuit, Plaintiff is proceeding under the pseudonym of "Jane Doe"; however, Defendants have full knowledge of Plaintiff's identity due to Defendants' involvement in the underlying acts and omissions that form the basis of this Petition. To the extent that Defendants or Defendants' counsel are genuinely unaware of Plaintiff's identity (which would likely be impossible due to criminal proceedings against at least one Defendant in Dallas County, Texas, Case No. Flllll06), Plaintiff's counsel is happy to state Plaintiff's identity to this Court and Defendants' counsel in papers that are (1) filed under seal with this Court, and/or (2) not filed with this Court and, thus, not subject to public inspection.

PLAINTIFF'S ORIGINAL PETITION PAGE 1 OF 19

SUPP APP 1016 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 147 of 258 PageID 2717

3. Defendant AJREDIN "DANNY" DEARI (hereinafter, "Deari") is a natural

person who resides-and may be served with service of process-at 15750 Spectrum #2211,

-- Addison, Texas 750.,01.

4. Defendant DRITAN KREKA (hereinafter, "Kreka") is a natural person who ~

resides~and may be served with ser~:~e ~f proc~ss-at 5549 Bj River Drive, The Colon~,

Texas 75056.

5. Defendant PASTAZIOS PIZZA, INC. (hereinafter, "Pastazios") is a Texas

corporation that maintains its principal place of business in Dallas County, Texas. Pastazios may

be served with service of process by serving its registered agent, Ajredin Deari, located at 1416

Tree Farm Drive, Plano, Texas 75093.

6. Defendant ISLAND HOSPITALITY MANAGEMENT, INC (hereinafter,

"Island Hospitality") is a Florida corporation with its principal place of business in Palm Beach,

Florida. Island Hospitality may < be served with service of process bV, 1§erving . its registered agent,

C T Corporation System, located at 350 N. Paul Street, Suite 2900, Dallas, Texas 75201.

7. Defendant HYATT HOTELS CORPORATION (hereinafter, "Hyatt") ts a

Delaware corporation with its principal place of business in Chicago, Illinois. Hyatt may be

...__ se,.rv~e:d:_::w~it::h:_s:,:e:_rv..:_I~·c~e__:o~f:..Jp!::r~o:::;:c~es::,:s:...b~yl.......::?.s~erv~in~g~it~s_:r:,:e~g:is:te::r,:::ed:::_::a~g~en::t~,_:U~n~i_:::te:d~St:a::;:te::,::s:._C~o!lrp~o!!.r~at'-!.:io~n.r....o.C~o._,

located at 211 East 7th Street, Suite 620, Austin, Texas 78701.

8. Upon information and belief, Plaintiff alleges that the true identities and

residences of Defendants JOHN DOE 1-25, respectively, are currently unknown to Plaintiff at

this time. Plaintiff shall proceed with due diligence to discover the identities of Defendants

JOHN DOE 1-25, respectively and, after said Defendants' true identities have been discovered,

will amend this Petition accordingly.

PLAINTIFF'S ORIGINAL PETITION PAGE2 OF19

SUPP APP 1017 <' Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 148 of 258 PageID 2718

9. Upon information and belief, Plaintiff alleges that, at all material times, all

Defendants were the agents, servants, employees, partners, authorized agents and/or joint

venturers of every other Defendant and the acts of each Defendant were within the course and

scope of the agency, employment, partnership, and/or joint venture such that each Defendant is

jointly and severally liable for the damages alleged by Plaintiff herein.

III. JURISDICTION

10. This Court has subject matter jurisdiction over this lawsuit because the amount in

controversy exceeds the minimum jurisdictional requirements.

11. In accordance with TEx. R. CIV. P. 47, Plaintiff seeks monetary relief in excess of

$1,000,000.00 due to Defendants' tortious conduct.

12. This Court has personal jurisdiction over Defendant Deari and Defendant Kreka

because said Defendants (1) are individuals and residents of the State of Texas, (2) transact

business within the State of Texas, (3) maintain continuous and systematic contacts with the

State of Texas, (4) purposefully avails themselves to the laws of the State of Texas, and (5) a

substantial part of the events or omissions giving rise to Plaintiffs claims occurred in Texas and

involved Defendant Deari and Defendant Kreka.

13. This Court has personal jurisdiction over Defendant Pastazios because said

Defendant (1) is a Texas corporation that maintains its principal place of business in Texas, (2)

transacts business within the State of Texas, (3) maintains continuous and systematic contacts

with the State of Texas, (4) purposefully avails itselfto the laws of the State of Texas, and (5) a

substantial part of the events or omissions giving rise to Plaintiffs claims occurred in Texas and

involved Defendant Pastazios.

14. This Court has personal jurisdiction over Defendant Island Hospitality because (1)

PLAINTIFF'S ORIGINAL PETITION PAGE3 OF 19

SUPP APP 1018 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 149 of 258 PageID 2719

it transacts business within the State of Texas, (2) it has continuous and systematic contacts with

the State of Texas, (3) it maintains multiple offices in Texas, owns property in Texas, and

maintains bank accounts (used for the purpose of transacting business within the State of Texas

and elsewhere) within the State of Texas, (4) it purposefully avails itselfto the laws of the State

of Texas, and (5) a substantial part of the events or omissions giving rise to Plaintiffs claims

occurred in Texas and involved Defendant Island Hospitality.

15. This Court has personal jurisdiction over Defendant Hyatt because (1) it transacts

business within the State of Texas, (2) it has continuous and systematic contacts with the State of

Texas, (3) it maintains multiple offices and bank accounts (used for the purpose of transacting

business within the State of Texas and elsewhere) within the State of Texas, (4) it purposefully

avails itselfto the laws ofthe State of Texas, and (5) a substantial part ofthe events or omissions

giving rise to Plaintiffs claims occurred in Texas and involved Defendant Hyatt.

16. Removal of this case to a federal court is inappropriate and statutorily

unauthorized because ( 1) complete diversity of parties is lacking, (2) at least one Defendant is a

forum-state defendant by virtue of its Texas incorporation and/or principal place of business

being in Texas, and (3) Plaintiff has not alleged a federal question, federal cause of action, or

alleged facts that would give rise to a federal question or federal cause of action; therefore, any

attempt to remove this case to a federal court is frivolous and gives rise to sanctionable conduct.

IV. VENUE

17. Pursuant to TEX. CIV. PRAC. & REM. CODE§ 15.002(a), venue is proper in Dallas

County, Texas because (1) all or a substantial part of the events or omissions giving rise to

Plaintiffs claims occurred in Dallas County, Texas, and (2) some or all of the Defendants

resided in Dallas County, Texas at the time Plaintiffs causes of action accrued.

PLAINTIFF'S ORIGINAL PETITION PAGE40F19

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• Page 150 of 258 PageID 2720

18. Pursuant to TEX. CIV. PRAC. & REM. CODE§ 15.005, because venue is proper in

Dallas County, Texas against at least one Defendant, venue is proper in Dallas County, Texas as

to all Defendants.

v. FACTUAL BACKGROUND

19. In early 2011, Plaintiff was 18 years old and a recent graduate from high school.

Plaintiff excelled in school academically, graduating as the valedictorian ofher class.

20. Like many young adults, Plaintiff was in search of an entry-level job at a local

business in order to earn disposable income and garner working experience. During her search,

Plaintiff was introduced to Defendant Deari and Defendant Kreka. Plaintiff was told that Deari

and Kreka were the owners of two local bar/restaurants, and would be willing to meet with her to

discuss potential employment opportunities.

21. On or about April 26, 2011, Plaintiff met Deari and Kreka at a restaurant in

Dallas, Texas. Deari asked Plaintiff how old she was and Plaintiff informed both men that she

was 18 years old. At the time, Defendant Deari was approximately 49 years old and Defendant

Kreka was approximately 33 years old. The two Defendants subsequently tried to order Plaintiff

an alcoholic beverage; however, the restaurant's server refused to bring the beverage because

Plaintiff was underage.

22. Undeterred, the two Defendants decided that it would be easiest to order Plaintiff

beverages at "Pastazios's Pizza" in Addison, Texas. On information and belief, Plaintiff alleges

that "Pastazios' s Pizza" is the assumed name of Defendant Pastazios and, additionally, the alter

ego of Defendant Deari who holds himself out to the public and Texas Secretary of State as the

registered agent, director, and president ofPastazios.

23. As planned, Defendant Deari and Defendant Kreka convinced Plaintiff to drive to

PLAINTIFF'S ORIGINAL PETITION PAGE 5 OF 19

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Pastazios. Prior to their arrival, Defendants purchased hard liquor from a store with the intention

of serving the alcohol to Plaintiff.

24. Upon arrival at Pastazios, Defendants Kreka, Deari, and Pastazios (through its

employees, director, and president) began serving, selling, retrieving, and otherwise giving

Plaintiff multiple "shots" of hard liquor and servings of beer. Defendants repeatedly and

aggressively pressured Plaintiff into consuming-and Plaintiff, indeed, consumed-these

beverages despite Defendants' knowledge that Plaintiff was not of the legal age to drink. Just as

Defendants Deari, Kreka, and Pastazios planned, Plaintiff became intoxicated and she was, in

fact, obviously intoxicated.

25. After Plaintiff had consumed multiple shots of hard liquor and servings of beer

that Defendants served, sold, retrieved, and otherwise gave to Plaintiff, Deari and Kreka decided

that their next stop should be a local adult entertainment dance club. Deari retrieved his vehicle

from Pastazios's parking lot and told Kreka and Plaintiff to get into the vehicle. Kreka moved

into the driver's seat and Plaintiff, who was highly intoxicated, sat in the back of the vehicle.

Plaintiff then lost consciousness.

26. Plaintiffs next memory is vomiting in a gas station parking lot before losing

consciousness again. Shortly thereafter, Plaintiff awoke in a hotel room located 4900 Edwin

Lewis Drive, Addison, Texas 75001-a premise that is owned, operated, and otherwise

possessed by Island Hospitality and Hyatt (hereinafter, "the Premises Defendants")-wherein

she had been involuntarily disrobed and was actively being raped by Defendant Deari.

27. Plaintiff repeatedly insisted that Defendant Deari stop the attack, but he did not. It

was only after Plaintiff made multiple demands for Defendant Deari to stop did the sexual

assault eventually end. Fearful of another attack, Plaintiff locked herself in the bathroom.

PLAINTIFF'S ORIGINAL PETITION PAGE60F19

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28. While still in the hotel room, Defendant Deari called Defendant Kreka on the

telephone and told him that Plaintiff was "really freaking out, dude", and asked for Kreka to

retrieve him from the Premises Defendants' property. With the knowledge that a sexual assault

had just occurred (one in which Defendant Kreka conspired to commit, facilitated, aided, and

abetted), Kreka retrieved Deari from the crime scene (unimpeded by the Premises Defendants)

thereby assisting Deari's evasion oflaw enforcement.

29. Plaintiff alleges that the Premises Defendants knew, or reasonably should have

known, of the reasonably foreseeable, unreasonable risks of harm from criminal activity at its

premises to Plaintiff taking into account the history, frequency, proximity, regularity, publicity,

and similarity of criminal conduct on or near the Premises Defendants' property. The Premises

Defendants allowed Defendant Deari and Defendant Kreka to reserve a room at its hotel, enter it

with an unconscious 18 year-old woman, rape her, and come and go from its property in an

unimpeded fashion such that Defendants could evade a police investigation without resistance.

30. After the attack on Plaintiff ceased and Deari and Kreka left the Premises

Defendants' property, a friend of Plaintiffs arrived at the hotel to help. After learning what

happened, the friend immediately notified the Addison Police Department. While investigating

the crime scene, Defendant Deari came back to the hotel (presumably to retrieve the underwear

he left, which was taken into evidence by the police department), and Deari was arrested,

charged with the crime of sexual assault, indicted, and has a criminal trial pending. At this point

in time, Defendant Kreka has not been charged for the crimes he aided, abetted, facilitated, and

conspired to commit.

31. Plaintiff was immediately transmitted to the hospital and underwent a series of

examinations, tests, and administered massive quantities of treatments for the injuries she

PLAINTIFF'S ORIGINAL PETITION PAGE 70F 19

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incurred during the rape.

32. Within a matter of days following the sexual assault, Plaintiff went back to the

hospital after she experienced severe pain in her pubic region. Upon information and belief, the

doctors informed Plaintiff that she had contracted herpes, an incurable sexually-transmitted

disease, during the rape. The doctors conducted a blood test on Plaintiff wherein the specific

strand of herpes was identified. It has recently been discovered that the results of a mandatory

blood/sexually-transmitted disease test ordered by the Court in "The State of Texas v. Danny

Deari" has confirmed that Plaintiffs attacker (who did not utilize latex contraception during the

attack), Defendant Deari, is infected with the same derivation of the herpes virus.

33. As a proximate result of the criminal, despicable, extreme, outrageous, and

tortious acts of Defendants alleged herein, Plaintiff has foreseeably suffered through, and will

continue to suffer through, extreme emotional distress, pain and suffering, and mental anguish as

the sexual assault is constantly replayed in her mind and the aftermath displayed on her body.

Plaintiff is forced to shoulder the burden of Defendants' criminal and tortious acts for the rest of

her life which, according to the federal government's "National Vital Statistics Reports", is

expected to be another 61.6 years? Plaintiff has incurred, and will continue to incur, substantial

damages proximately caused by Defendants.

VI. CAUSES OF ACTION

COUNT 1: ASSAULT- THREAT OF BODILY INJURY

34. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19

through 33 of Plaintiffs Petition.

35. On or about April 26, 2011, Defendants intentionally or knowingly threatened

2 See U.S. Department of Health and Human Service, NATIONAL VITAL STATISTICS REPORTS Vol. 61, No.3, September 24, 2012 at 20.

PLAINTIFF'S ORIGINAL PETITION PAGE80F 19

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Plaintiff with imminent bodily injury. Defendants' threat of imminent bodily injury caused

Plaintiff to be apprehensive, which was a foreseeable result ofDefendants' actions.

36. Each and every Defendant is liable for the threat of bodily injury committed

against Plaintiff because each and every Defendant participated in the tortious act themselves or,

alternatively, assisted the tortious act against Plaintiff in furtherance of the civil conspiracy to do

so or, alternatively, aided and abetted each other to allow the ultimate threat of bodily injury

against Plaintiff to take place.

37. Defendants' threat of imminent bodily injury to Plaintiff was a cause of the

damages alleged herein.

COUNT 2: ASSAULT (BATTERY) -BODILY INJURY AND OFFENSIVE CONTACT

38. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19

through 37 ofPlaintiffs Petition.

39. Plaintiff incorporates by reference, as if fully set forth herein, the statutory

language of TEX. PENAL CODE § 22.011 describing the felony of "Sexual Assault". Plaintiff

alleges that Plaintiff was the victim of the crime, Sexual Assault, which Defendants committed

against Plaintiff (as described in TEX. PENAL CODE § 22.011(a),(b),(f)) on or about April 26,

2011, and that the sexual assault has caused Plaintiffs damages alleged herein.

40. Defendants intentionally, knowingly, and/or recklessly made physical contact

with Plaintiffs person causing bodily injury-that is, physical pain, illness, or impairments of

Plaintiffs physical condition-and Plaintiff did not, and could not, consent to the harmful

physical contact.

41. Alternatively, Defendants intentionally or knowingly caused to be made physical

contact with Plaintiff when Defendants knew, or reasonably should have believed, that Plaintiff

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would regard the contact as offensive or provocative. Indeed, said physical contact was

offensive, provocative, and committed by Defendants despite never having consent from

Plaintiff.

42. As a causal result of Defendants' battery of Plaintiffs person, Plaintiff suffered

immediate, consequential, and subsequent injuries-including pain, illness, and physical

impairment-that were foreseeable to Defendants. The assault committed by Defendants on

Plaintiffs person was a cause of the damages alleged by Plaintiff herein.

43. Each and every Defendant is liable for the crimes, assault, battery, and sexual

assault of which Plaintiff is a victim because each and every Defendant participated in the

tortious and felonious acts themselves or, alternatively, assisted the crimes, assault, battery, and

sexual assault against Plaintiff in furtherance of the civil conspiracy to do so or, alternatively,

aided and abetted the crimes, assault, battery, and sexual assault by providing intoxicating

substances to Plaintiff, a mode of transportation for the crimes, assault, battery, and sexual

assault to occur, and/or a location-which was foreseeably unsafe and unreasonably

dangerous-for the crimes, assault, battery, and sexual assault to take place.

44. In addition to committing, conspiring to commit, or aiding and abetting assault,

battery, and/or sexual assault against Plaintiff, the investigation is still ongoing as to whether or

not Defendants individually---{)r collectively in furtherance of a conspiracy and/or whilst aiding

and abetting each other-should be charged with, criminally prosecuted for, and civilly held

liable for the felony of "Aggravated Sexual Assault", as defined by TEx. PENAL CODE § 22.021

and fully incorporated by reference herein.

COUNT 3: SEXUAL ASSAULT-TEX. PENAL CODE§ 22.01

45. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19

PLAINTIFF'S ORIGINAL PETITION PAGE 10 OF 19

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through 44 of Plaintiffs Petition.

COUNT 4: FALSE IMPRISONMENT

46. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19

through 45 ofPlaintiffs Petition.

4 7. Without legal authority or justification, Defendants willfully detained or

participated in the detainment of Plaintiff without Plaintiffs consent. Defendants accomplished

the unlawful detainment of Plaintiff with violence, threats that were calculated to inspire-and,

in fact, inspired-a reasonable fear of injury to Plaintiff, intoxicating substances, and/or other

means that were intended to cause-and, in fact, caused-Plaintiff to be unable to exercise her

will in going anywhere she was lawfully allowed to go. Said false imprisonment took place at the

hotel owned and operated by the Premises Defendants.

48. The false imprisonment committed by Defendants against Plaintiff was a

proximate cause of the damages alleged by Plaintiff herein.

COUNT 5: NEGLIGENCE

49. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19 through 48

of Plaintiffs Original Petition.

50. Defendants owed Plaintiff legal duties that Defendants breached thereby

proximately causing Plaintiffs damages.

51. For example, Defendants Pastazios and Deari-as the individual who holds

himself out as the registered agent, director, and president of Pastazios-had a duty to control its

employees, a duty to supervise its employee's activities, a duty to prevent an employee from

causing an unreasonable risk of harm to Plaintiff, a duty to use ordinary care in hiring and

retaining its employees, a duty to not place Plaintiff in harm's way of foreseeable criminal

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activity, and a duty to treat Plaintiff in a manner that would not subject her to physical or mental

injury. Said Defendants breached those duties it owed Plaintiff by, amongst other things,

negligently providing intoxicating substances to Plaintiff and placing here in harm's way.

Defendant Kreka, by way of example, owed Plaintiff a legal duty to protect Plaintiff from harm

when the danger was caused, in part, by Kreka and the harm was apparent to Kreka such that he

was in a position to protect Plaintifffrom the harm, a duty to not place Plaintiff in harm's way of

foreseeable criminal activity, a duty to not operate a vehicle when legally intoxicated thereby

placing Plaintiff in danger and, ultimately, causing her to arrive at the location where she was

sexually assaulted, and a duty to treat Plaintiff in a manner that would not subject her to physical

or mental injury. Defendant Kreka breached each and every one of these duties as detailed in this

Petition. The Premises Defendants, for example, owed Plaintiff a duty to use ordinary care in

maintaining its premises in a safe condition and to inspect the premises to ensure the safety of its

occupants, a duty to protect Plaintiff against unreasonable and foreseeable risks of harm from the

criminal acts of third parties due to the Premises Defendants' status (as landowner) and ability to

control the security and safety of the premises, a duty not to injure Plaintiff in a willful, wanton,

or grossly negligent manner or allow another to do so on its premises when it knew, or

reasonably should have known, such conduct would take place, a duty to make safe conditions

on its property in order to protect Plaintiff, and a duty to treat Plaintiff in a manner that would

not subject her to physical or mental injury. As the owner and operator of the location where

Plaintiff was sexually assaulted, falsely imprisoned, and subjected to extreme and outrageous

intentional infliction of emotional distress, there can be no dispute that the Premises Defendants

breached each and every one of the duties it owed Plaintiff.

52. Defendants breached the duties it owed to Plaintiff (as set forth in this Petition)

PLAINTIFF'S ORIGINAL PETITION PAGE 12 OF 19

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thereby proximately causing Plaintiffs injuries and the damages alleged herein.

COUNT 6: PREMISES LIABILITY

53. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19

through 52 of Plaintiffs Petition.

54. Plaintiffs cause of action for Premises Liability is alleged against the Premises

Defendants, only. Plaintiff reserves the right to supplement and amend this cause of action.

55. The Premises Defendants facilitated the assault and tortious conduct on Plaintiff

through the use or misuse of the property-located at 4900 Edwin Lewis Drive, Addison, Texas

75001--owned, operated, controlled by, franchised by, licensed by, and/or otherwise possessed

by the Premises Defendants.

56. The Premises Defendants owed Plaintiff a duty to exercise ordinary care in

protecting Plaintiff from unreasonable and reasonably foreseeable risks of harm (including

criminal activity at its premises considering the history, frequency, proximity, regularity,

publicity, and similarity of criminal conduct on or near the Premises Defendants' property)

especially in light of the Premises Defendants' status as landowner and ability to control the

security and safety of the premise. The Premises Defendants had a duty to inspect and make safe

any dangerous conditions or situations on its property or give Plaintiff an adequate warning of

the dangerous conditions or situations.

57. The Premises Defendants breached the legal duties it owed Plaintiff thereby

proximately causing Plaintiffs damages alleged herein.

COUNT 7: DRAM SHOP LIABILITY

58. Plaintiffs cause of action for Dram Shop Liability is alleged against Defendant

Deari-in his capacity as registered agent, director, and president of Pastazios-and Pastazios,

PLAINTIFF'S ORIGINAL PETITION PAGE 13 OF 19

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only. As used within Section VI(Count 8) of Plaintiffs Original Petition, said Defendants shall

be referred to as the "Dram Shop Defendants." Plaintiff reserves the right to supplement and

amend this cause of action.

59. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19

through 58 of Plaintiffs Petition.

60. On or about April 26, 2011, the Dram Shop Defendants held Texas Alcoholic

Beverage Commission licenses for the sale or service of alcoholic beverages and did, in fact, sell

or serve multiple alcoholic beverages to Plaintiff who, at the time, was an 18 year-old "adult

recipient" of said beverages.

61. To the extent that the Dram Shop Defendants did not hold Texas Alcoholic

Beverage Commission licenses for the sale or service of alcoholic beverages on or about April

26, 2011, Plaintiff alternatively alleges that the Dram Shop Defendants did not have said licenses

yet still sold Plaintiff, an 18 year-old "adult receipt", alcoholic beverages.

62. After the Dram Shop Defendants provided the alcoholic beverages to Plaintiff, it

was apparent, or readily became apparent, to the Dram Shop Defendants that Plaintiff was

obviously intoxicated.

63. Plaintiffs intoxication-as a result of Defendants' actions-was one of the

proximate causes of the injuries incurred and the damages alleged by Plaintiff herein.

COUNT 8: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS [ALTERNATIVE REMEDY]

64. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19

through 63 of Plaintiffs Petition.

65. As an alternative remedy to Plaintiffs claims detailed in this Petition at Section

(VI)(Count 1-Count7 ), Plaintiff alleges that no alternative cause of action would provide

PLAINTIFF'S ORIGINAL PETITION PAGE 14 OF 19

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Plaintiff with a remedy for the severe emotional distress incurred by Plaintiff which was

proximately caused by Defendants' tortious conduct.

66. Plaintiff-an individual-was and is a victim of Defendants' intentional or

reckless actions that were calculated to cause severe emotional distress to Plaintiff.

67. Defendants' intentional or reckless actions towards Plaintiff were extreme and

outrageous and, ultimately, proximately caused Plaintiff to suffer severe emotional distress.

COUNT 9: PARTICIPATORY LIABILITY-AIDING AND ABETTING AND CONCERT OF ACTION

68. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19

through 67 of Plaintiffs Petition.

69. Among the Defendants was a primary actor/actors who committed an underlying

tort, or torts, against Plaintiff. Defendants had knowledge that the primary actor's conduct

constituted a tort and Defendants gave the primary actor assistance, substantial assistance, and/or

encouragement to commit the tort against Plaintiff. Defendants' assistance, substantial

assistance, and/or encouragement was a substantial factor in causing the tort to be completed and

a substantial factor in the damages incurred by Plaintiff as alleged herein.

70. Alternatively, Defendants' own conduct-separate and apart from the primary

actor-was a breach of duty to Plaintiff and a substantial factor in causing Plaintiffs injuries.

71. Due to Defendants' joint assistance, encouragement, aiding and abetting, and/or

concert of action, Plaintiff alleges that Defendants should be held jointly and severally

responsible for the whole of damages incurred by Plaintiff.

COUNT 10: PARTICIPATORY LIABILITY-CONSPIRACY

72. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19

through 71 of Plaintiffs Petition.

PLAINTIFF'S ORIGINAL PETITION PAGE 15 OF 19

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73. As fully described in this Petition, Defendants are, and were, individuals or

individual entities that acted together as a combination of two or more individuals or entities.

74. Throughout Defendants' interactions with Plaintiff on or about April 26, 2011, the

object of Defendants' combination was to accomplish an unlawful purpose and/or a lawful

purpose by unlawful means.

75. Defendants had a meeting of the minds on the object or course of action of its

conspiracy, and at least one Defendant committed an unlawful, overt act in furtherance of

Defendants' object or course of action.

76. Plaintiff suffered the damages alleged herein as a proximate result of Defendants'

wrongful act or acts.

COUNT 11: EXEMPLARY DAMAGES

77. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19

through 76 of Plaintiffs Original Petition.

78. Defendants' tortious conduct was malicious, fraudulent, and/or grossly negligent.

79. Defendants' malicious, fraudulent, and/or grossly negligent was carried out by

Defendants personally, through Defendants' authorized agents, managers, officers, directors,

vice-principals, and/or principals of the Defendants who were acting within the course and scope

of their agency, employment, partnership, and/or joint venture. Alternatively, Defendants'

malicious, fraudulent, and/or grossly negligent conduct was subsequently approved by or ratified

by Defendants.

80. Defendants intentionally breached the legal duties it owed Plaintiff such that it

could take undue advantage of Plaintiff and/or otherwise maliciously treat Plaintiff. The acts or

omissions of Defendants, when viewed objectively from the Defendants' standpoint, involved an

PLAINTIFF'S ORIGINAL PETITION PAGE 16 OF 19

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extreme degree of risk when considering the probability and magnitude of the potential harm to

Plaintiff and others.

81. Additionally, Defendants had actual, subjective awareness of the risk to Plaintiff

and others but proceeded anyway with a conscience indifference to the rights, safety, or welfare

of Plaintiff and others.

82. Defendants' conduct was performed and/or designed with a specific intent to

cause substantial injury or harm to Plaintiff. As alleged fully herein, Defendants' conduct is an

example of why punitive damages exist, and Plaintiff alleges that Defendants' conduct rises to

the level warranting the imposition of exemplary damages against Defendants at trial of this

matter.

VII. DAMAGES

83. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19

through 82 of Plaintiff's Petition.

84. Plaintiff has incurred significant damages due to Defendants' criminal, tortious,

and outrageous conduct. Plaintiff seeks all losses sustained as a natural, probable, foreseeable,

and/or proximate result of Defendants' wrongful conduct, including:

a. General damages;

b. Actual damages;

c. Physical pain and suffering incurred in the past and future;

d. Mental anguish incurred in the past and future;

e. Disfigurement incurred in the past and future;

f. Physical impairment incurred in the past and future;

g. Medical expenses incurred in the past and future;

PLAINTIFF'S ORIGINAL PETITION PAGE 17 OF 19

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h. Loss of earning capacity incurred in the past and future;

1. Lost wages incurred in the past and future;

J. All reasonable and necessary attorneys' fees that Plaintiff is forced to incur

pursuant to Texas common law and equity;

k. Exemplary damages;

I. Costs of court;

m. Pre-judgment interest;

n. Post-judgment interest; and

o. All other relief, in law and in equity, to which Plaintiff may be justly entitled.

VIII. DEMAND FOR JURY

85. Plaintiff demands a jury trial and tenders the appropriate fee.

IX. REQUEST FOR DISCLOSURE

86. Under TEX. R. Crv. P. 194, Plaintiff hereby makes the demand that Defendants

disclose, within the timeframe provided by the TEXAS RULES OF CIVIL PROCEDURE, the

information and material described in TEX. R. Crv. P. 194.2(a)-(l).

X. PRAYER

87. WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendants be

cited to appear and answer herein. Plaintiff further prays that, upon trial by jury, she have

judgment against Defendants for the damages enumerated herein, as well as all other relief, in

law and in equity, to which Plaintiff may show herself to be justly entitled.

PLAINTIFF'S ORIGINAL PETITION PAGE 18 OF 19

SUPP APP 1033 ~· Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 164 of 258 PageID 2734 . '

~~ State Bar No. 08555400 mgruber@ghjhlaw.com ERIC POLICASTRO State Bar No. 24068809 epolicastro@ghjhlaw.com TREYH.CRAWFORD State Bar No. 24059623 tcrawford@ghjhlaw.com

GRUBER HURST JOHANSEN HAIL SHANK LLP 1445 Ross A venue, Suite 2500 Dallas, Texas 75202 214.855.6800 (main) 214.855.6808 (facsimile)

ATTORNEYS FOR PLAINTIFF

PLAINTIFF'S ORIGINAL PETITION PAGE 190F19

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EXHIBIT C

SUPP APP 1035 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 166 of 258 PageID 2736 Filed 13 August 13 P5:14 Gary Fitzsimmons District Clerk Dallas District Cause Number: DC-13-04564

JANE DOE, § IN THE DISTRICT COURT § Plaintiff, § § v. § 193rd JUDICIAL DISTRICT COURT § AJREDIN ―DA NNY‖ DEARI; DRITAN § KREKA; PASTAZIOS PIZZA, INC.; § ISLAND HOSPITALITY MANAGEMENT, § INC.; HYATT HOTELS CORPORATION; § HYATT HOUSE FRANCHISING, L.L.C.; § GRAND PRIX FLOATING LESSEE, LLC; § INK ACQUISITION, LLC; INK § ACQUISITION II, LLC; INK § ACQUISITION III, LLC; INK LESSEE, § LLC; INK LESSEE HOLDING, LLC; § CHATHAM TRS HOLDING, INC.; § CHATHAM LODGING, L.P.; JEFFREY § H. FISHER, Individually; POST § PROPERTIES, INC.; and DOES 1-25, § § Defendants. § DALLAS COUNTY, TEXAS

PLAINTIFF’S FIRST AMENDED PETITION

Plaintiff JANE DOE1 (― Plaintiff‖) files Plaintiff’s First Amended Petition (― Petition‖)

against Defendants AJREDIN ― DANNY‖ DEARI; DRITAN KREKA; PASTAZIOS PIZZA,

INC.; ISLAND HOSPITALITY MANAGEMENT, INC.; HYATT HOTELS CORPORATION;

HYATT HOUSE FRANCHISING, L.L.C.; GRAND PRIX FLOATING LESSEE, LLC; INK

ACQUISITION, LLC; INK ACQUISITION II, LLC; INK ACQUISITION III, LLC; INK

LESSEE, LLC; INK LESSEE HOLDING, LLC; CHATHAM TRS HOLDING, INC.;

CHATHAM LODGING, L.P.; JEFFREY H. FISHER, Individually; POST PROPERTIES INC.; 1 Due to the extremely personal and sensitive nature of this lawsuit, Plaintiff is proceeding under the pseudonym of ―Jane Doe‖; however, Defendants have full knowledge of Plaintiff’s identity due to Defendants’ involvement in the underlying acts and omissions that form the basis of this Petition. To the extent that Defendants or Defendants’ counsel are genuinely unaware of Plaintiff’s identity (which would likely be impossible due to criminal proceedings against at least one Defendant in Dallas County, Texas, Case No. F1111106), Plaintiff’s counsel is happy to state Plaintiff’s identity to this Court and Defendants’ counsel in papers that are (1) filed under seal with this Court, and/or (2) not filed with this Court and, thus, not subject to public inspection.

PLAINTIFF’S FIRST AMENDED PETITION PAGE 1 OF 27

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and DOES 1-25 (unless otherwise noted herein, ― Defendants‖ refers to all named Defendants,

collectively), and for causes of action respectfully shows this Court as follows:

1. Pursuant to TEX. R. CIV. P. 190.1, 190.3, Plaintiff intends to conduct discovery

2. Plaintiff is a natural person who resides in Collin County, Texas.

3. Defendant AJREDIN ― DANNY‖ DEARI (hereinafter, ― Deari‖) is a natural

person who has generally appeared in this case.

4. Defendant DRITAN KREKA (hereinafter, ― Kreka‖) is a natural person who has

generally appeared in this case.

5. Defendant PASTAZIOS PIZZA, INC. (hereinafter, ― PPI‖) is a Texas corporation

that has generally appeared in this case.

6. Defendant ISLAND HOSPITALITY MANAGEMENT, INC. (hereinafter,

― Island Hospitality‖) is a Florida corporation that has generally appeared in this case.

7. Defendant HYATT HOTELS CORPORATION (hereinafter, ― Hyatt‖) is a

Delaware corporation with its principal place of business in Chicago, Illinois and has generally

appeared in this case.

8. Defendant HYATT HOUSE FRANCHISING, L.L.C. (hereinafter, ― Hyatt

House‖)—named in Plaintiff’s Original Petition as JOHN DOE 1 but whose identity, after a

diligent and reasonable search and investigation by Plaintiff, has become known to Plaintiff—is

a Kansas limited liability company with its principal place of business in Chicago, Illinois.

PLAINTIFF’S FIRST AMENDED PETITION PAGE 2 OF 27

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Defendant Hyatt House can be served with service of process by serving its registered agent,

Corporation Service Company d/b/a CSC – Lawyers Incorporating Service Company, located at

211 E. 7th Street, Suite 260, Austin, Texas 78707.

9. Defendant GRAND PRIX FLOATING LESSEE, LLC (hereinafter, ― Grand

Prix‖)—named in Plaintiff’s Original Petition as JOHN DOE 2 but whose identity, after a

diligent and reasonable search and investigation by Plaintiff, has become known to Plaintiff—is

a Delaware limited liability company with its principal place of business in Palm Beach, Florida.

Defendant Grand Prix can be served with service of process by serving its registered agent, C T

Corporation System, located at 350 North Saint Paul Street, Dallas, Texas 75201.

10. Defendant INK ACQUISITION, LLC (hereinafter, ― Ink Acquisition‖)—named in

Plaintiff’s Original Petition as JOHN DOE 3 but whose identity, after a diligent and reasonable

search and investigation by Plaintiff, has become known to Plaintiff—is a Florida limited

liability company with its principal place of business in Florida. Defendant Ink Acquisition

regularly engages or, alternatively, engaged in business in the State of Texas because it contracts

or contracted by mail or otherwise with a Texas resident or residents regarding a contract that is

performable in whole or in part in the State of Texas and because it committed a tort in whole or

in part in the State of Texas; however, despite engaging in business in the State of Texas,

Defendant Ink Acquisition has not designated or maintained a resident agent for service of

process in the State of Texas nor does it maintain a regular place of business in the State of

Texas. Thus, pursuant to TEX. CIV. PRAC. & REM. CODE §§ 17.042 and 17.044, Ink Acquisition

may be served with process by serving the Texas Secretary of State, 1019 Brazos Street, Austin,

Texas 78701 who may forward said process to Defendant Ink Acquisition’s foreign registered

agent, C T Corporation, at 1200 South Pine Island Road, Plantation, Florida 33324.

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11. Defendant INK ACQUISITION II, LLC (hereinafter, ― Ink Acquisition II‖)—

named in Plaintiff’s Original Petition as JOHN DOE 4 but whose identity, after a diligent and

reasonable search and investigation by Plaintiff, has become known to Plaintiff—is a Florida

limited liability company with its principal place of business in Florida. Defendant Ink

Acquisition II regularly engages or, alternatively, engaged in business in the State of Texas

because it contracts or contracted by mail or otherwise with a Texas resident or residents

regarding a contract that is performable in whole or in part in the State of Texas and because it

committed a tort in whole or in part in the State of Texas; however, despite engaging in business

in the State of Texas, Defendant Ink Acquisition II has not designated or maintained a resident

agent for service of process in the State of Texas nor does it maintain a regular place of business

in the State of Texas. Thus, pursuant to TEX. CIV. PRAC. & REM. CODE §§ 17.042 and 17.044,

Defendant Ink Acquisition II may be served with process by serving the Texas Secretary of

State, 1019 Brazos Street, Austin, Texas 78701 who may forward said process to Defendant Ink

Acquisition II’s foreign registered agent, C T Corporation, located at 1200 South Pine Island

Road, Plantation, Florida 33324.

12. Defendant INK ACQUISITION III, LLC (hereinafter, ― Ink Acquisition III‖)—

named in Plaintiff’s Original Petition as JOHN DOE 5 but whose identity, after a diligent and

reasonable search and investigation by Plaintiff, has become known to Plaintiff—is a Florida

limited liability company with its principal place of business in Florida. Defendant Ink

Acquisition III regularly engages or, alternatively, engaged in business in the State of Texas

because it contracts or contracted by mail or otherwise with a Texas resident or residents

regarding a contract that is performable in whole or in part in the State of Texas and because it

committed a tort in whole or in part in the State of Texas; however, despite engaging in business

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in the State of Texas, Defendant Ink Acquisition III has not designated or maintained a resident

agent for service of process in the State of Texas nor does it maintain a regular place of business

in the State of Texas. Thus, pursuant to TEX. CIV. PRAC. & REM. CODE §§ 17.042 and 17.044,

Defendant Ink Acquisition III may be served with process by serving the Texas Secretary of

State, 1019 Brazos Street, Austin, Texas 78701 who may forward said process to Defendant Ink

Acquisition III’s foreign registered agent, C T Corporation, located at 1200 South Pine Island

13. Defendant INK LESSEE, LLC (hereinafter, ― Ink Lessee‖)—named in Plaintiff’s

Original Petition as JOHN DOE 6 but whose identity, after a diligent and reasonable search and

investigation by Plaintiff, has become known to Plaintiff—is a Delaware limited liability

company with its principal place of business in Florida. Defendant Ink Lessee can be served with

service of process by serving its registered agent, National Corporate Research, Ltd., located at

800 Brazos Street, Suite 400, Austin, Texas 78701.

14. Defendant INK LESSEE HOLDING, LLC (hereinafter, ― Ink Lessee Holding‖)—

named in Plaintiff’s Original Petition as JOHN DOE 7 but whose identity, after a diligent and

reasonable search and investigation by Plaintiff, has become known to Plaintiff—is a Delaware

limited liability company with its principal place of business in Florida. Defendant Ink Lessee

Holding regularly engages or, alternatively, engaged in business in the State of Texas because it

contracts or contracted by mail or otherwise with a Texas resident or residents regarding a

contract that is performable in whole or in part in the State of Texas and because it committed a

tort in whole or in part in the State of Texas; however, despite engaging in business in the State

of Texas, Defendant Ink Lessee Holding has not designated or maintained a resident agent for

service of process in the State of Texas nor does it maintain a regular place of business in the

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State of Texas. Thus, pursuant to TEX. CIV. PRAC. & REM. CODE §§ 17.042 and 17.044,

Defendant Ink Lessee Holding may be served with process by serving the Texas Secretary of

State, 1019 Brazos Street, Austin, Texas 78701 who may forward said process to Defendant Ink

Lessee Holding’s foreign registered agent, National Corporate Research, Ltd., located at 615

South DuPont Highway, Dover, Delaware 19901.

15. Defendant CHATHAM TRS HOLDING, INC. (hereinafter, ― Chatham

Holding‖)—named in Plaintiff’s Original Petition as JOHN DOE 8 but whose identity, after a

diligent and reasonable search and investigation by Plaintiff, has become known to Plaintiff—is

a Florida limited liability company with its principal place of business in Florida. Defendant

Chatham Holding regularly engages or, alternatively, engaged in business in the State of Texas

because it contracts or contracted by mail or otherwise with a Texas resident or residents

regarding a contract that is performable in whole or in part in the State of Texas and because it

committed a tort in whole or in part in the State of Texas; however, despite engaging in business

in the State of Texas, Defendant Chatham Holding has not designated or maintained a resident

agent for service of process in the State of Texas nor does it maintain a regular place of business

in the State of Texas. Thus, pursuant to TEX. CIV. PRAC. & REM. CODE §§ 17.042 and 17.044,

Defendant Chatham Holding may be served with process by serving the Texas Secretary of

State, 1019 Brazos Street, Austin, Texas 78701 who may forward said process to Defendant

Chatham Holding’s foreign registered agent, Corporation Service Company, located at 1201

Hays Street, Tallahassee, Florida 32301.

16. Defendant CHATHAM LODGING, L.P. (hereinafter, ― Chatham Lodging‖)—

named in Plaintiff’s Original Petition as JOHN DOE 9 but whose identity, after a diligent and

reasonable search and investigation by Plaintiff, has become known to Plaintiff—is a Delaware

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limited partnership with its principal place of business in Florida. Defendant Chatham Lodging

regularly engages or, alternatively, engaged in business in the State of Texas because it contracts

or contracted by mail or otherwise with a Texas resident or residents regarding a contract that is

performable in whole or in part in the State of Texas and because it committed a tort in whole or

in part in the State of Texas; however, despite engaging in business in the State of Texas,

Defendant Chatham Lodging has not designated or maintained a resident agent for service of

process in the State of Texas nor does it maintain a regular place of business in the State of

Texas. Thus, pursuant to TEX. CIV. PRAC. & REM. CODE §§ 17.042 and 17.044, Defendant

Chatham Lodging may be served with process by serving the Texas Secretary of State, 1019

Brazos Street, Austin, Texas 78701 who may forward said process to Defendant Chatham

Lodging’s foreign registered agent located at The Corporation Trust Company, Corporation

Trust Center, 1209 Orange Street, Wilmington, Delaware 19801.

17. Defendant JEFFREY H. FISHER (hereinafter, ― Fisher‖)—named in Plaintiff’s

Original Petition as JOHN DOE 10 but whose identity, after a diligent and reasonable search and

investigation by Plaintiff, has become known to Plaintiff—is a natural person who is believed to

be a resident of, and domiciled in, the State of Florida and believed to be located at 252 El Bravo

Way, Palm Beach, Florida 33480. Defendant Fisher engages or engaged in business in the State

of Texas because he contracts or contracted by mail or otherwise with a Texas resident or

residents regarding a contract that is performable in whole or in part in the State of Texas and

because he committed a tort in whole or in part in the State of Texas; however, despite engaging

in business in the State of Texas, Defendant Fisher has not designated or maintained a resident

agent for service of process in the State of Texas nor does he maintain a regular place of business

in the State of Texas. Thus, pursuant to TEX. CIV. PRAC. & REM. CODE §§ 17.042 and 17.044,

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Defendant Fisher may be served with process by serving the Texas Secretary of State, 1019

Brazos Street, Austin, Texas 78701 who may forward said process to Defendant Fisher at his

home address located at 252 El Bravo Way, Palm Beach, Florida 33480.

18. Defendant POST PROPERTIES, INC. (hereinafter, ― Post Properties‖)—named in

Plaintiff’s Original Petition as JOHN DOE 11 but whose identity, after a diligent and reasonable

search and investigation by Plaintiff, has become known to Plaintiff—is a Georgia corporation

with its principal place of business in Georgia. Defendant Post Properties can be served with

service of process by serving its registered agent, C T Corporation System, located at 350 North

Saint Paul Street, Dallas, Texas 75201.

19. Upon information and belief, Plaintiff alleges that the true identities and

residences of Defendants JOHN DOE 12-25, respectively, are currently unknown to Plaintiff at

this time. Plaintiff shall proceed with due diligence to discover the identities of Defendants

JOHN DOE 12-25, respectively, and after said Defendants’ true identities have been discovered,

Plaintiff will amend this Petition accordingly.

20. Upon information and belief, Plaintiff alleges that, at all material times,

Defendants Hyatt, Hyatt House, Island Hospitality Management, Grand Prix, Ink Acquisition,

Ink Acquisition II, Ink Acquisition III, Ink Lessee, Ink Lessee Holding, Chatham Holding,

Chatham Lodging, and Fisher (collectively referred to herein as ― Alter Ego Defendant‖ or ― Alter

Ego Defendants‖) were the agents, servants, employees, partners, authorized agents and/or joint

venturers of every other Alter Ego Defendant and the acts of each Alter Ego Defendant was

within the course and scope of the agency, employment, partnership, and/or joint venture such

that each Alter Ego Defendant is jointly and severally liable for the damages Alter Ego

Defendants caused Plaintiff as alleged herein and, further, that each Alter Ego Defendant is

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jointly and severally responsible for the acts and/or omissions of every other Alter Ego

Defendant. Plaintiff specifically alleges and asserts the alter ego theory of liability against the

Alter Ego Defendants because the Alter Ego Defendants are simply the alter ego of each other

due to such a unity of interest and ownership between the business entities and its equitable

owner or owners that the separate personalities of the business entities and shareholder/equitable

owner or owners do not, in reality, exist, and because if the acts complained of herein are those

of the business entities themselves than an inequitable result to Plaintiff would occur. Thus,

Plaintiff specifically alleges that any and all acts or omissions taken by any of the Alter Ego

Defendants, indeed, acts or omissions taken by all Alter Ego Defendants.

21. This Court has subject matter jurisdiction over this lawsuit because the amount in

22. In accordance with TEX. R. CIV. P. 47, Plaintiff seeks monetary relief in excess of

$1,000,000.00 due to Defendants’ tortious, outrageous, and grossly negligent conduct.

23. This Court has personal jurisdiction over Defendants Deari, Kreka, PPI, Hyatt,

and Island Hospitality because the foregoing Defendants have generally appeared in this case.

24. This Court has personal jurisdiction over Defendants Hyatt House, Grand Prix,

Ink Acquisition, Ink Acquisition II, Ink Acquisition III, Ink Lessee, Ink Lessee Holding,

Chatham Holding, Chatham Lodging, Fisher, and Post Properties because each of the

aforementioned Defendants (1) engage in, and transact business within, the State of Texas, (2)

maintain continuous and systematic contacts with the State of Texas, (3) purposefully avail, or

availed, itself to the laws of the State of Texas, (4) committed a tort or torts, in whole or in part,

in the State of Texas against a Texas resident, and (5) a substantial part of the events or

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omissions giving rise to Plaintiff’s claims occurred in Texas and involved said Defendants.

25. Removal of this case to a federal court is inappropriate and statutorily

unauthorized because (1) complete diversity of parties is lacking, (2) at least one Defendant is a

forum-state defendant by virtue of its status as a Texas business entity and/or principal place of

business being located in Texas, and (3) Plaintiff has not alleged a federal question, federal cause

of action, or alleged facts that would give rise to a federal question, federal cause of action,

and/or ― federal officer‖ removal jurisdiction; therefore, any attempt to remove this case to a

federal court is frivolous and gives rise to sanctionable conduct.

26. Pursuant to TEX. CIV. PRAC. & REM. CODE § 15.002(a), venue is proper in Dallas

County, Texas because (1) all or a substantial part of the events or omissions giving rise to

Plaintiff’s claims occurred in Dallas County, Texas, and (2) some or all of the Defendants

resided in Dallas County, Texas at the time Plaintiff’s causes of action accrued.

27. Pursuant to TEX. CIV. PRAC. & REM. CODE § 15.005, because venue is proper in

Dallas County, Texas as to at least one Defendant, venue is proper in Dallas County, Texas as to

all Defendants.

28. Plaintiff expressly incorporates by reference, as if fully set forth herein,

paragraphs 1 through 27 of Plaintiff’s Petition.

29. In early 2011, Plaintiff was 18 years old and a recent graduate from high school.

Plaintiff excelled in school academically, graduating as the valedictorian of her class.

30. Like many young adults, Plaintiff was in search of an entry-level job at a local

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business in order to earn disposable income and garner working experience. While networking

for such a job, Plaintiff was introduced to Defendant Deari and Defendant Kreka. Plaintiff was

told that Deari and Kreka were the owners of two local bar/restaurants, and would be willing to

meet with her to lend any insight they may have.

31. On or about April 26, 2011, Plaintiff met Deari and Kreka at a restaurant in

Dallas, Texas. Although this meeting was not employment-related, Plaintiff met with said

Defendants merely to continue networking.

32. Deari asked Plaintiff how old she was and Plaintiff informed both men that she

was 18 years old. At the time, Defendant Deari was approximately 49 years old and Defendant

Kreka was approximately 33 years old. The two Defendants subsequently tried to order Plaintiff

an alcoholic beverage; however, the restaurant’s server refused to bring the beverage because

33. Undeterred, Deari and Kreka decided that it would be easiest to order Plaintiff

beverages at Defendant PPI’s Addison, Texas location. Indeed, Defendant Deari was, and is, the

registered agent, director, and president of PPI. On information and belief, Plaintiff alleges that

PPI, as lessor, leases the physical space for its Addison, Texas location from Defendant Post

Properties, as lessee (as confirmed by Century Surety Company, CCP672836).

34. As the two men had planned, Defendant Deari and Defendant Kreka convinced

Plaintiff to drive to PPI. Prior to their arrival, Defendant Deari purchased hard liquor from a store

with the intention of personally serving the alcohol to Plaintiff. Neither Deari nor PPI were

licensed by the Texas Alcoholic Beverage Commission to sell or serve hard liquor.

35. Upon arrival at PPI, Defendants Kreka and Deari began serving, retrieving, and

otherwise giving Plaintiff multiple ― shots‖ of hard liquor. Defendant PPI’s other employees—

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who were acting within the course and scope of their employment—also negligently served

Plaintiff beer without ever asking for identification. Defendants Deari and Kreka repeatedly and

aggressively pressured Plaintiff into consuming—and Plaintiff, indeed, consumed—alcoholic

beverages despite their knowledge that Plaintiff was not of legal age to drink. Just as Defendants

Deari and Kreka planned, Plaintiff became intoxicated and she was, in fact, obviously

intoxicated. PPI’s other employees negligently failed to identify Plaintiff’s over-service.

36. After Plaintiff had consumed multiple shots of hard liquor and servings of beer,

Deari and Kreka decided that their next stop should be to take Plaintiff to a local adult

entertainment establishment. Deari retrieved his vehicle from PPI’s parking lot and told Kreka

and Plaintiff to get into the vehicle. Kreka moved into the driver’s seat and Plaintiff, who was

highly intoxicated, sat in the back of the vehicle. Plaintiff then lost consciousness.

37. Plaintiff’s next memory is vomiting in a gas station parking lot before losing

consciousness again. Sometime thereafter, Plaintiff regained consciousness in a hotel room

located at 4900 Edwin Lewis Drive, Addison, Texas 75001 wherein she had been involuntarily

disrobed and was actively being raped by Defendant Deari. Said hotel is a premise that was, and

is, owned, operated, controlled, managed, and/or otherwise possessed by the Alter Ego

Defendants as owner, franchisor, franchisee, assignor, assignee, lessor, lessee, transferor,

transferee, manager, and as the alter egos of each other and/or Hyatt and/or Fisher. Said premises

lacked any reasonable degree of security that could have, and would have, prevented or mitigated

the reasonably foreseeable attack on Plaintiff.

38. Plaintiff repeatedly insisted that Defendant Deari stop the attack, but he did not. It

was only after Plaintiff made multiple demands for Defendant Deari to stop did the sexual

assault eventually end. Fearful of another attack, Plaintiff locked herself in the bathroom.

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39. While still in the hotel room—and without ever being impeded by the Alter Ego

Defendants—Defendant Deari called Defendant Kreka on the telephone and told him that

Plaintiff was ― really freaking out, dude‖, and asked for Kreka to retrieve him from the Alter Ego

Defendants’ premises. With the knowledge that a sexual assault had just occurred (one in which

Defendant Kreka conspired to commit, facilitated, aided, and abetted), Kreka retrieved Deari

from the crime scene (again, unimpeded by the Alter Ego Defendants) thereby assisting Deari’s

evasion of law enforcement.

40. Plaintiff alleges that the Alter Ego Defendants knew, or reasonably should have

known, of the reasonably foreseeable, unreasonable risks of harm from criminal activity at its

premises to Plaintiff taking into account the history, frequency, proximity, regularity, publicity,

and similarity of criminal conduct on or near the Alter Ego Defendants’ property. The Alter Ego

Defendants negligently and grossly negligently allowed Defendant Deari and Defendant Kreka

to reserve a room at its hotel, enter it with an unconscious 18 year-old woman, rape her, and

come and go from its property in an unimpeded fashion such that Defendants could evade a

police investigation without resistance.

41. After the attack on Plaintiff ceased and Deari and Kreka left the Alter Ego

Defendants’ premises, a friend of Plaintiff’s arrived at the hotel to help. After learning what

happened, the friend immediately notified the Addison Police Department. While investigating

the crime scene, Defendant Deari—while smoking a cigar—came back to the hotel (presumably

to retrieve the underwear he left, which was taken into evidence by the police department), and

Deari was arrested, charged with the crime of sexual assault, indicted, and has a criminal trial

pending. At this point in time, Defendant Kreka has not been charged for the crimes he aided,

abetted, facilitated, and conspired to commit; however, on information and belief Plaintiff

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alleges that the State of Texas is well within the statute of limitations for such a crime to arrest,

charge, and indict Kreka for his involvement in the attack on Plaintiff.

42. Plaintiff was immediately transmitted to the hospital and underwent a series of

examinations, tests, and administered massive quantities of treatments for the injuries she

43. Within a matter of days following the sexual assault, Plaintiff went back to the

hospital after she experienced severe pain in her pubic region. Upon information and belief, the

doctors informed Plaintiff that she had contracted herpes, an incurable sexually-transmitted

disease, during the rape. The doctors conducted a blood test on Plaintiff wherein the specific

strand of herpes was identified. It has recently been discovered that the results of a mandatory

blood/sexually-transmitted disease test ordered by the Court in ― The State of Texas v. Danny

Deari‖ has confirmed that Plaintiff’s attacker (who did not utilize latex contraception during the

attack), Defendant Deari, is infected with the same derivation of the herpes virus and

undoubtedly infected Plaintiff.

44. As a proximate result of the despicable, extreme, outrageous, tortious, and grossly

negligent acts and omissions by Defendants alleged herein, Plaintiff has foreseeably suffered,

and will continue to suffer, through extreme emotional distress, pain, mental anguish, and

suffering as the sexual assault is constantly replayed in her mind and the aftermath displayed on

her body. Plaintiff is forced to shoulder the burden of Defendants’ horrible acts for the rest of her

life which, according to the federal government’s ― National Vital Statistics Reports‖, is expected

to be another 61.6 years.2 Plaintiff has incurred, and will continue to incur, substantial damages

that were all proximately caused by Defendants.

2 See U.S. Department of Health and Human Service, NATIONAL VITAL STATISTICS REPORTS Vol. 61, No.3, September 24, 2012 at 20.

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COUNT 1: ASSAULT – THREAT OF BODILY INJURY

45. Plaintiff’s first cause of action is alleged against Defendants Deari and Kreka,

only. As used in this cause of action, ― Defendants‖ refers to Defendant Deari and Defendant

Kreka.

46. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1

through 45 of Plaintiff’s Petition.

47. On or about April 26, 2011, Defendants intentionally or knowingly threatened

Plaintiff with imminent bodily injury. Defendants’ threat of imminent bodily injury caused

Plaintiff to be apprehensive, which was a foreseeable result of Defendants’ actions.

48. Defendants are liable for the threat of bodily injury committed against Plaintiff

because Defendants participated in the tortious acts themselves or, alternatively, assisted the

tortious act against Plaintiff in furtherance of the civil conspiracy to do so or, alternatively, aided

and abetted each other to allow the ultimate threat of bodily injury against Plaintiff to take place.

49. Defendants’ threat of imminent bodily injury to Plaintiff was a cause of the

COUNT 2: ASSAULT (BATTERY) –BODILY INJURY AND OFFENSIVE CONTACT

50. Plaintiff’s second cause of action is alleged against Defendants Deari and Kreka,

only. As used in this cause of action, ― Defendants‖ refers to Defendant Deari and Defendant

51. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1

through 50 of Plaintiff’s Petition.

52. Plaintiff incorporates by reference, as if fully set forth herein, the statutory

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language of TEX. PENAL CODE § 22.011 describing the felony of ― Sexual Assault‖. Plaintiff

alleges that Plaintiff was the victim of the crime, Sexual Assault, which Defendants committed

against Plaintiff (as described in TEX. PENAL CODE § 22.011(a),(b),(f)) on or about April 26,

2011, and that the sexual assault has caused Plaintiff’s damages alleged herein.

53. Defendants intentionally, knowingly, and/or recklessly made physical contact

with Plaintiff’s person causing bodily injury—that is, physical pain, illness, or impairments of

Plaintiff’s physical condition—and Plaintiff did not, and could not, consent to the harmful

54. Alternatively, Defendants intentionally or knowingly caused to be made physical

contact with Plaintiff when Defendants knew, or reasonably should have believed, that Plaintiff

would regard the contact as offensive or provocative. Indeed, said physical contact was

offensive, provocative, and committed by Defendants despite never having consent from

55. As a causal result of Defendants’ battery of Plaintiff’s person, Plaintiff suffered

immediate, consequential, and subsequent injuries—including pain, illness, and physical

impairment—that were foreseeable to Defendants. The assault committed by Defendants on

Plaintiff’s person was a cause of the damages alleged by Plaintiff herein.

56. Defendants are liable for the crimes, assault, battery, and sexual assault of which

Plaintiff is a victim because Defendants participated in the tortious and felonious acts themselves

or, alternatively, assisted the crimes, assault, battery, and sexual assault against Plaintiff in

furtherance of the civil conspiracy to do so or, alternatively, aided and abetted the crimes,

assault, battery, and sexual assault by providing intoxicating substances to Plaintiff, a mode of

transportation for the crimes, assault, battery, and sexual assault to occur, and/or a location—

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which was foreseeably unsafe and unreasonably dangerous—for the crimes, assault, battery, and

sexual assault to take place.

57. In addition to committing, conspiring to commit, or aiding and abetting assault,

battery, and/or sexual assault against Plaintiff, the investigation is still ongoing as to whether or

not Defendants individually—or collectively in furtherance of a conspiracy and/or whilst aiding

and abetting each other—should be charged with, criminally prosecuted for, and civilly held

liable for the felony of ― Aggravated Sexual Assault‖, as defined by TEX. PENAL CODE § 22.021

COUNT 3: SEXUAL ASSAULT—TEX. PENAL CODE § 22.01

58. Plaintiff’s third cause of action is alleged against Defendants Deari and Kreka,

only. As used in this cause of action, ― Defendants‖ refers to Defendant Deari and Defendant

59. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1

through 58 of Plaintiff’s Petition.

60. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1

through 59 of Plaintiff’s Petition.

61. Without legal authority or justification, Defendants willfully detained or

participated in the detainment of Plaintiff without Plaintiff’s consent. Defendants accomplished

the unlawful detainment of Plaintiff with violence, threats that were calculated to inspire—and,

in fact, inspired—a reasonable fear of injury to Plaintiff, intoxicating substances, and/or other

means that were intended to cause—and, in fact, caused—Plaintiff to be unable to exercise her

will in going anywhere she was lawfully allowed to go. Said false imprisonment took place at the

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hotel owned and operated by the Alter Ego Defendants and restaurant—due to Plaintiff’s

physical inability and/or lawful ability to leave in such an unconscious and/or intoxicated state—

possessed, owned and/or controlled by Post Properties and PPI.

62. The false imprisonment committed by Defendants against Plaintiff was a

63. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1

through 62 of Plaintiff’s Original Petition.

64. Defendants owed Plaintiff legal duties that Defendants breached thereby

proximately causing Plaintiff’s damages.

65. For example, Defendant PPI had a duty to control its employees, a duty to

supervise its employee’s activities, a duty to prevent an employee from causing an unreasonable

risk of harm to Plaintiff, a duty to use ordinary care in hiring and retaining its employees, a duty

to not place Plaintiff in harm’s way of foreseeable criminal activity, and a duty to treat Plaintiff

in a manner that would not subject her to physical or mental injury. PPI breached those duties it

owed Plaintiff by, amongst other things, negligently providing intoxicating substances to

Plaintiff, negligently hiring its employees, negligently supervising its employees, and/or placing

her in harm’s way. Defendant Kreka, by way of example, owed Plaintiff a legal duty to protect

Plaintiff from harm when the danger was caused, in part, by Kreka and the harm was apparent to

Kreka such that he was in a position to protect Plaintiff from the harm, a duty to not place

Plaintiff in harm’s way of foreseeable criminal activity, a duty to not operate a vehicle when

legally intoxicated thereby placing Plaintiff in danger and, ultimately, causing her to arrive at the

location where she was sexually assaulted, and a duty to treat Plaintiff in a manner that would

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not subject her to physical or mental injury. Defendant Kreka breached each and every one of

these duties as detailed in this Petition. Defendants PPI and Post Properties, for example, had a

duty to ensure that invitees at the PPI Addison, Texas location would be safe, secure, and that the

normal and lawful activities that would otherwise take place at the restaurant would not harm its

invitees. Defendants PPI and Post Properties breached these duties owed to Plaintiff. Post

Properties also had a duty to protect Plaintiff, and the public as a whole, from unlawful lessees of

its property by conducting a reasonable investigation into its lessees and/or terminate a lease

upon the happening of an unlawful event (such as PPI’s citation from the Texas Alcoholic

Beverage Commission in 2002 for serving a minor alcohol); however, Post Properties clearly

breached these duties. The Alter Ego Defendants, for example, owed Plaintiff a duty to use

ordinary care in maintaining its premises in a safe and secure condition and to inspect the

premises to ensure the safety of its occupants, a duty to protect Plaintiff against unreasonable and

foreseeable risks of harm from the criminal acts of third parties due to the Alter Ego Defendants’

status (as landowner and, further, the heightened duty owed by an innkeeper) and ability to

control the security and safety of the premises, a duty not to injure Plaintiff in a willful, wanton,

or grossly negligent manner or allow another to do so on its premises when it knew, or

reasonably should have known, such conduct would take place, a duty to make safe conditions

on its property in order to protect Plaintiff, and a duty to treat Plaintiff in a manner that would

not subject her to physical or mental injury. As alleged fully herein, there can be no dispute that

the Alter Ego Defendants breached each and every one of the duties it owed Plaintiff.

66. Defendants breached the duties it owed to Plaintiff (as set forth in this Petition)

thereby proximately causing Plaintiff’s injuries and the damages alleged herein.

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67. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1

through 66 of Plaintiff’s Petition.

68. Plaintiff’s cause of action for Premises Liability is alleged against the Alter Ego

Defendants, PPI, and Post Properties, only. Plaintiff reserves the right to supplement and amend

this cause of action. As used in this cause of action, ― Defendants‖ refers to the Alter Ego

Defendants, PPI, and Post Properties.

69. The Alter Ego Defendants facilitated the assault and tortious conduct on Plaintiff

through the use or misuse of the property—located at 4900 Edwin Lewis Drive, Addison, Texas

75001—owned, operated, controlled by, franchised by, licensed by, managed, leased, assigned,

and/or otherwise possessed by the Alter Ego Defendants and, further, PPI and Post Properties

facilitated the assault and tortious conduct on Plaintiff through the use or misuse of PPI’s

Addison, Texas location that was owned, operated, controlled by, franchised by, licensed by,

managed, leased, assigned, and/or otherwise possessed by PPI and Post Properties.

70. Defendants owed Plaintiff a duty to exercise ordinary care in protecting Plaintiff

from unreasonable and reasonably foreseeable risks of harm (including criminal activity at its

premises considering the history, frequency, proximity, regularity, publicity, and similarity of

criminal conduct on or near the Alter Ego Defendants’ property) especially in light of

Defendants’ status as landowner and/or innkeeper that possessed the ability to control the

security and safety of the premise and its employees. Defendants had a duty to inspect and make

safe any dangerous conditions or situations on its property or give Plaintiff an adequate warning

of the dangerous conditions or situations; however, Defendants failed to do so.

71. Defendants breached the legal duties it owed Plaintiff thereby proximately

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causing Plaintiff’s damages alleged herein.

72. Plaintiff’s cause of action for Dram Shop Liability is alleged against Post

Properties, PPI, and Deari—in his capacity as registered agent, director, and president of PPI—,

only. As used in this cause of action, ― Dram Shop Defendants‖ refers to PPI, Post Properties, and

Deari. Plaintiff reserves the right to supplement and amend this cause of action.

73. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1

through 72 of Plaintiff’s Petition.

74. On or about April 26, 2011, the Dram Shop Defendants held Texas Alcoholic

Beverage Commission licenses for the sale or service of alcoholic beverages and did, in fact, sell

or serve multiple alcoholic beverages to Plaintiff who, at the time, was an 18 year-old ― adult

recipient‖ of said beverages. However, Dram Shop Defendants were not authorized to sell hard

liquor at PPI’s Addison, Texas location.

75. To the extent that the Dram Shop Defendants did not hold Texas Alcoholic

Beverage Commission licenses for the sale or service of alcoholic beverages on or about April

26, 2011, Plaintiff alternatively alleges that the Dram Shop Defendants did not have said licenses

yet still sold Plaintiff, an 18 year-old ― adult receipt‖, alcoholic beverages.

76. After the Dram Shop Defendants provided the alcoholic beverages to Plaintiff, it

was apparent, or readily became apparent, to the Dram Shop Defendants that Plaintiff was

77. Plaintiff’s intoxication—as a result of the Dram Shop Defendants’ acts or

omissions—was one of the proximate causes of the injuries incurred and the damages alleged by

Plaintiff herein.

PLAINTIFF’S FIRST AMENDED PETITION PAGE 21 OF 27

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COUNT 8: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS [ALTERNATIVE REMEDY]

78. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1

through 77 of Plaintiff’s Petition.

79. As an alternative remedy to Plaintiff’s claims detailed in this Petition at Section

(VI)(Count 1—Count 7), Plaintiff alleges that no alternative cause of action would provide

Plaintiff with a remedy for the severe emotional distress incurred by Plaintiff which was

proximately caused by Defendants’ tortious conduct.

80. Plaintiff—an individual—was and is a victim of Defendants’ intentional or

reckless actions that were calculated to cause severe emotional distress to Plaintiff.

81. Defendants’ intentional or reckless actions towards Plaintiff were extreme and

outrageous and, ultimately, proximately caused Plaintiff to suffer severe emotional distress.

COUNT 9: PARTICIPATORY LIABILITY—AIDING AND ABETTING AND CONCERT OF ACTION

82. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1

through 81 of Plaintiff’s Petition.

83. Among the Defendants was a primary actor, or primary actors, who committed an

underlying tort, or torts, against Plaintiff. Defendants had knowledge that the primary actor’s

conduct constituted a tort and Defendants gave the primary actor assistance, substantial

assistance, and/or encouragement to commit the tort against Plaintiff. Defendants’ assistance,

substantial assistance, and/or encouragement was a substantial factor in causing the tort to be

completed and a substantial factor in the damages incurred by Plaintiff as alleged herein.

84. Alternatively, Defendants’ own conduct—separate and apart from the primary

actor—was a breach of duty to Plaintiff and a substantial factor in causing Plaintiff’s injuries.

85. Due to Defendants’ joint assistance, encouragement, aiding and abetting, and/or

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concert of action, Plaintiff alleges that Defendants should be held jointly and severally

COUNT 10: PARTICIPATORY LIABILITY—CONSPIRACY

86. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1

through 85 of Plaintiff’s Petition.

87. As fully described in this Petition, Defendants are, and were, individuals or

individual entities that acted together as a combination of two or more individuals or entities.

88. Throughout Defendants’ interactions with Plaintiff on or about April 26, 2011, the

object of Defendants’ combination was to accomplish an unlawful purpose and/or a lawful

89. Defendants had a meeting of the minds on the object or course of action of its

conspiracy, and at least one Defendant committed an unlawful, overt act in furtherance of

Defendants’ object or course of action.

90. Plaintiff suffered the damages alleged herein as a proximate result of Defendants’

91. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1

through 90 of Plaintiff’s Original Petition.

92. Defendants’ tortious conduct was malicious, fraudulent, and/or grossly negligent.

93. Defendants’ malicious, fraudulent, and/or grossly negligent was carried out by

Defendants personally, through Defendants’ authorized agents, managers, officers, directors,

vice-principals, and/or principals of the Defendants who were acting within the course and scope

of their agency, employment, partnership, and/or joint venture. Alternatively, Defendants’

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malicious, fraudulent, and/or grossly negligent conduct was subsequently approved by or ratified

94. Defendants intentionally breached the legal duties it owed Plaintiff such that it

could take undue advantage of Plaintiff and/or otherwise maliciously treat Plaintiff. The acts or

omissions of Defendants, when viewed objectively from the Defendants’ standpoint, involved an

extreme degree of risk when considering the probability and magnitude of the potential harm to

95. Additionally, Defendants had actual, subjective awareness of the risk to Plaintiff

and others but proceeded anyway with a conscience indifference to the rights, safety, or welfare

96. Defendants’ conduct was performed and/or designed with a specific intent to

cause substantial injury or harm to Plaintiff. As alleged fully herein, Defendants’ conduct is an

example of why punitive damages exist, and Plaintiff alleges that Defendants’ conduct rises to

the level warranting the imposition of exemplary damages against Defendants at trial of this

97. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1

through 96 of Plaintiff’s Petition.

98. Plaintiff has incurred significant damages due to Defendants' criminal, tortious,

and outrageous conduct. Plaintiff seeks all losses sustained as a natural, probable, foreseeable,

and/or proximate result of Defendants' wrongful conduct, including:

PLAINTIFF’S FIRST AMENDED PETITION PAGE 24 OF 27

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c. Physical pain and suffering incurred in the past and future;

i. Lost wages incurred in the past and future;

j. All reasonable and necessary attorneys' fees that Plaintiff is forced to incur

l. Costs of court;

o. All other relief, in law and in equity, to which Plaintiff may be justly entitled.

99. Plaintiff demands a jury trial and tenders the appropriate fee.

100. In Plaintiff’s Original Petition, Plaintiff made the demand that all then-named

Defendants make the disclosures required by TEX. R. CIV. P. 194 and, without waiving Plaintiff’s

right to compel further responses, if necessary, Plaintiff states that those Defendants have served

disclosure responses.

101. Plaintiff hereby makes the demand that Defendants Hyatt House, Grand Prix, Ink

PLAINTIFF’S FIRST AMENDED PETITION PAGE 25 OF 27

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Acquisition, Ink Acquisition II, Ink Acquisition III, Ink Lessee, Ink Lessee Holding, Chatham

Holding, Chatham Lodging, Fisher, and Post Properties disclose, within the timeframe provided

by the TEXAS RULES OF CIVIL PROCEDURE, the information and material described in TEX. R.

CIV. P. 194.2(a)-(l).

102. WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendants be

cited to appear and answer herein. Plaintiff further prays that, upon trial by jury, she have

judgment against Defendants for the damages alleged herein, as well as all other relief, in law

and in equity, to which Plaintiff may show herself to be justly entitled.

___________________________________ ROYCE WEST G. MICHAEL GRUBER State Bar No. 21206800 State Bar No. 08555400 royce.w@westllp.com mgruber@ghjhlaw.com VERETTA FRAZIER ERIC POLICASTRO State Bar No. 00793264 State Bar No. 24068809 veretta.f@westllp.com epolicastro@ghjhlaw.com NIGEL REDMOND TREY CRAWFORD State Bar No. 24058852 State Bar No. 24059623 nigel.r@westllp.com tcrawford@ghjhlaw.com WEST & ASSOCIATES, L.L.P. GRUBER HURST JOHANSEN HAIL SHANK LLP P.O. Box 3960 1445 Ross Avenue, Suite 2500 Dallas, Texas 75208-1260 Dallas, Texas 75202 Ofc.: (214) 941-1881 214.855.6800 (main) Fax: (214) 941-1399 214.855.6808 (facsimile)

PLAINTIFF’S FIRST AMENDED PETITION PAGE 26 OF 27

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In addition to serving a copy of Plaintiff’s First Amended Petition along with the citation and summons to all Defendants that have yet to make an appearance in this case, the undersigned hereby certifies that, pursuant to TEX. R. CIV. P. 21, 21a, a true and correct copy of the foregoing was served in the manner indicated below on August 13, 2013 to the following individuals: Via Facsimile Via Facsimile

Ramona Martinez James. R. Nelson Cobb Martinez Woodward PLLC Eliot T. Burriss 1700 Pacific Avenue, Suite 3100 DLA Piper LLP (US) Dallas, TX 75201 1717 Main Street, Suite 4600 Facsimile: (214) 220-5252 Dallas, Texas 75201 rmartinez@cobbmartinez.com Facsimile: (214) 743-4545 Attorneys for Defendant Island Hospitality jr.nelson@dlapiper.com Management, Inc. eli.burriss@dlapiper.com Attorneys for Defendant Hyatt Hotels Corporation Via Facsimile Via Certified Mail

Lisa Songy Pastazios Pizza, Inc. Shannon, Gracey, Ratliff & Miller, LLP Pro se, c/o Registered Agent Ajredin Deari 901 Main Street, Suite 4600 2519 N. Fitzhugh Avenue Dallas, Texas 75202 Dallas, Texas 75204 Facsimile: (214) 245-3097 lsongy@shannongracey.com Attorneys for Defendant Dritan Kreka

Via Certified Mail

Ajredin ―D anny‖ Deari Pro se 2519 N. Fitzhugh Avenue Dallas, Texas 75204

_______________________________________ Eric Policastro

PLAINTIFF’S FIRST AMENDED PETITION PAGE 27 OF 27

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EXHIBIT D

SUPP APP 1063 FILED DALLAS COUNTY Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 194 of 258 PageID 27646/5/2015 4:50:53 PM FELICIA PITRE DISTRICT CLERK

Cause Number: DC-13-04564

JANE DOE, § IN THE DISTRICT COURT § Plaintiff, § § v. § 193rd JUDICIAL DISTRICT COURT § PASTAZIOS PIZZA, INC.; AJREDIN § “DANNY” DEARI; and DRITAN KREKA § § Defendants. § DALLAS COUNTY, TEXAS

PLAINTIFF’S FOURTH AMENDED PETITION

Plaintiff JANE DOE1 (“Plaintiff”) files Plaintiff’s Fourth Amended Petition (“Petition”)

against Defendants PASTAZIOS PIZZA, INC.; AJREDIN “DANNY” DEARI; and DRITAN

KREKA (unless otherwise noted herein, “Defendants” refers to all named Defendants,

collectively), and for causes of action respectfully shows this Court as follows:

1. Pursuant to this Court’s uniform Scheduling Order, discovery in this case is being

conducted under a Level 3 Discovery Control Plan.

2. Plaintiff is a natural person who resides in Collin County, Texas.

3. Defendant PASTAZIOS PIZZA, INC. (hereinafter, “PPI” or “Pastazios”) is a

Texas corporation that has generally appeared in this case.

4. Defendant AJREDIN “DANNY” DEARI (hereinafter, “Deari”) is a natural

1 Due to the extremely personal and sensitive nature of this lawsuit, Plaintiff is proceeding under the pseudonym of “Jane Doe”; however, Defendants have full knowledge of Plaintiff’s identity due to Defendants’ involvement in the underlying acts and omissions that form the basis of this Petition.

PLAINTIFF’S FOURTH AMENDED PETITION PAGE 1 OF 28

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5. Defendant DRITAN KREKA (hereinafter, “Kreka”) is a natural person who has

6. This Court has subject matter jurisdiction over this lawsuit because the amount in

7. In accordance with TEX. R. CIV. P. 47, Plaintiff seeks monetary relief in excess of

$1,000,000.00 due to Defendants’ tortious and grossly negligent conduct.

8. This Court has personal jurisdiction over Defendants PPI, Deari, and Kreka

because the foregoing Defendants have generally appeared in this case. This Court also has

personal jurisdiction over Defendants PPI, Deari, and Kreka because each of the aforementioned

Defendants (1) engage in, and transact business within, the State of Texas, (2) maintain

continuous and systematic contacts with the State of Texas, (3) purposefully avail themselves to

the laws of the State of Texas, (4) committed torts in the State of Texas against a Texas resident,

and (5) a substantial part of the events giving rise to Plaintiff’s claims occurred in Texas.

9. Pursuant to TEX. CIV. PRAC. & REM. CODE § 15.002(a), venue is proper in Dallas

County, Texas because (1) all or a substantial part of the events or omissions giving rise to

Plaintiff’s claims occurred in Dallas County, Texas, and (2) some or all of the Defendants

resided in Dallas County, Texas at the time Plaintiff’s causes of action accrued.

10. Pursuant to TEX. CIV. PRAC. & REM. CODE § 15.005, because venue is proper in

Dallas County, Texas as to at least one Defendant, venue is proper in Dallas County, Texas as to

PLAINTIFF’S FOURTH AMENDED PETITION PAGE 2 OF 28

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11. In early 2011, Plaintiff was 18 years old and a recent graduate from high school.

Plaintiff excelled in school academically, graduating as the valedictorian of her class.

12. Like many young adults, Plaintiff was in search of an entry-level job at a local

business in order to earn disposable income and garner working experience. At the time, Plaintiff

was an employee of Fox Sports Grill and was in the process of seeking another job in the same

industry that would provide her with more disposable income.

13. April 26, 2011 started out like any other day for Plaintiff. She woke up around 10

am and went to work the lunch shift at Fox Sports Grill. She got off work early that afternoon

and went to get ready for a pre-planned interview that was set to take place around 3pm at

Ringo’s Pub. Earlier that day, Defendant Kreka, whom Plaintiff had met a few times prior,

contacted Plaintiff to see if she would be interested in meeting him later that afternoon to

potentially interview for a position at his restaurant, or at least discuss other possible networking

opportunities that may assist Plaintiff in finding a higher paying job. Thus, when Plaintiff

concluded her 3pm interview, Kreka suggested that she come meet him to discuss potential

opportunities. Plaintiff drove to meet Defendant Kreka who then suggested that they go sit down

at Back Nine bar and grill to continue their discussions. When they arrived at Back Nine that

afternoon, Plaintiff was introduced to Defendant Deari, who also owned a restaurant—Defendant

Pastazios Pizza—located in Post Addison Circle.

14. While at Back Nine, Deari asked Plaintiff how old she was and Plaintiff informed

both men that she was 18 years old. At the time, Defendant Deari was approximately 49 years

old and Defendant Kreka was approximately 33 years old. The two Defendants subsequently

tried to order Plaintiff an alcoholic beverage; however, the restaurant’s server refused to bring

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the beverage because Plaintiff was underage. Defendants Deari and Kreka continued drinking

alcohol even while at Back Nine. Plaintiff would later discover that the two men had been

drinking alcohol a good portion of the day. Plaintiff had not consumed any alcohol that day and

had only been intoxicated “maybe once” prior in her life.

15. Deari and Kreka then suggested that the three of them should move the

conversation to Pastazios. Defendant Deari and Defendant Kreka was successful in convincing

Plaintiff to drive to Pastazios. At no point in time could this meeting be fairly characterized as a

“job interview” with Defendant Pastazios or with Defendant Deari. Prior to their arrival,

Defendant Deari stopped at a liquor store and purchased a bottle of 80-proof hard liquor (Crown

Royal Black) and took it with him and brought it into Pastazios, even though Deari was not

officially scheduled to work that day. Neither Deari nor Pastazios were licensed by the Texas

Alcoholic Beverage Commission to sell or serve hard liquor. Nonetheless, Pastazios’ agents and

even its manager knowingly allowed Deari to bring the hard liquor onto and inside the premises.

16. Upon arriving at Pastazios at approximately 4:45pm, and without Plaintiff asking,

Defendant Deari proceeded to walk inside of Pastazios, grab a round of beers, and placed one of

the beers in front of Plaintiff and encouraged her to drink it. Plaintiff had not had anything to

drink that day and was not looking to drink alcohol with someone more than twice her age. All

of this took place out in the open and obviously for all to see, including all of the employees and

agents of Pastazios.

17. Deari then went back inside Pastazios and came out with a round of shots of

Crown Royal Black that had been placed into 2-ounce plastic salad dressing cups from Pastazios

and encouraged Plaintiff to drink it. Prior to that day, Plaintiff had very little experience

concerning the effects of alcohol. Again, all of this took place out in the open and with the

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knowing consent and approval of Defendant Pastazios and its other employees. At no point in

time did anyone at Pastazios ask to see Plaintiff’s identification prior to providing her with

Pastazios’ alcoholic products and goods.

18. Throughout the course of approximately the next two hours, Pastazios and Deari

continued to encourage and provide Plaintiff with more and more alcoholic products from within

and owned by Pastazios, despite Plaintiff telling them she did not want anymore. Once again, all

of this taking place out in the open and with the seeming approval of Pastazios and their

employees. After serving Plaintiff with her second beer from Pastazios and third 2-ounce shots

of Crown Royal Black, things “started getting fuzzy” for Plaintiff. Pastazios then proceeded to

provide plaintiff with yet another 2-ounce shot of 80 proof hard liquor. According to all eye

witnesses, Plaintiff became extremely and obviously intoxicated to the point where she had

trouble even standing. In total, Defendants provided Plaintiff with 5-6 shots of Crown Royal

Black and 3 beers. In fact, Defendants provided Plaintiff with alcohol to the point that she “was

intoxicated to a level where she was unaware of what was going on around her” and at many

points completely non-responsive. Defendant Deari, although an agent of Pastazios, was never

acting in the course and scope of his employment with Pastazios while Pastazios continued to

provide Plaintiff with alcoholic products to Plaintiff. Defendant Deari was not on duty, he was

not acting in furtherance of Pastazios’ business, he was acting in any managerial or supervisory

capacity, he was not serving any customers, and he was not performing any of his normal job

duties or administrative functions.

19. Plaintiff began expressing grave concerns about her growing level of intoxication

and her inability to function normally. Despite her desire to go home safely, Plaintiff was

effectively detained as a direct result of being provided intoxicating products by Pastazios.

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Defendants’ Deari and Kreka were likewise obviously intoxicated at this point and any

reasonably prudent restaurant operator would be able to tell that they posed a danger to

themselves as well as others. Instead of Pastazios calling Plaintiff a cab, her parents, or a friend,

instead, Pastazios allowed Defendants to try and load Plaintiff into a car where Defendants Deari

and Kreka had decided that their next stop should be to take Plaintiff to a local all nude adult

entertainment establishment. At this point, Plaintiff’s memory begins to fade, as she starts going

into and out of consciousness as a result of her open and obvious intoxication. Deari retrieved his

vehicle from PPI’s parking lot and told Kreka and Plaintiff to get into the vehicle. Kreka moved

into the driver’s seat and Plaintiff, who was obviously intoxicated, sat in the back of the vehicle.

Plaintiff then lost consciousness. All of this taking place out in the open and with the express, or

at the very least, tacit approval of Pastazios and its agents and employees. Simply put, prior to

leaving Pastazios, Plaintiff was intoxicated to the point where she was incapable of caring for or

even defending herself from further risks of foreseeable harm.

20. Plaintiff’s next memory is vomiting in a gas station parking lot before losing

consciousness again. Sometime thereafter, Plaintiff regained consciousness in a hotel room

located at 4900 Edwin Lewis Drive, Addison, Texas 75001 (less than a half mile from Pastazios)

wherein she had been involuntarily disrobed and was actively being raped by Defendant Deari.

21. When Plaintiff regained consciousness and realized that she was actively being

raped by someone more than twice her age that she barely knew, she repeatedly insisted that

Defendant Deari stop the attack and “get off of her”, but he did not. It was only after Plaintiff

made multiple demands for Defendant Deari to stop did the sexual assault eventually end.

Fearful of another attack, Plaintiff locked herself in the bathroom. Deari then left the hotel and

went back to Pastazios.

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22. Plaintiff immediately called a friend to report what had happened and asked her

friend for help. Shortly thereafter, a friend of Plaintiff’s arrived at the hotel to help and at 8:32

pm called 911. The Addison Police were immediately dispatched to the scene. Plaintiff would

later discover through this lawsuit that she was taken from Pastazios at approximately 6:45pm,

Deari checked into the Hyatt House hotel (less than a half mile away) and Plaintiff was taken up

to Room 221 by approximately 7:00 pm – less than 15 minutes after leaving Pastazios.

23. While investigating the crime scene, Defendant Deari—while smoking a cigar—

came back to the hotel at approximately 10:30pm (presumably to retrieve the underwear he left,

which was taken into evidence by the police department), and Deari was arrested, charged with

the crime of sexual assault and was subsequently indicted. At the scene, Deari told the police that

he did not even have sex with Plaintiff, nor did he leave his underwear. Defendant Deari’s story

would drastically change over time as the investigation and discovery in this lawsuit unfolded.

24. Plaintiff was immediately transmitted to the hospital and underwent a series of

examinations, tests, and administered massive quantities of treatments for the injuries she

25. Within a matter of days following the sexual assault, Plaintiff went back to the

hospital after she experienced severe pain in her pubic region. The doctors informed Plaintiff that

she had contracted herpes, an incurable sexually-transmitted disease, during the rape. The

doctors conducted a blood test on Plaintiff wherein the specific strand of herpes was identified.

The results of a mandatory blood/sexually-transmitted disease test ordered by the Court in “The

State of Texas v. Danny Deari” has confirmed that Plaintiff’s attacker (who did not utilize latex

contraception during the attack), Defendant Deari, is infected with the same derivation of the

herpes virus and undoubtedly infected Plaintiff. The examination that Plaintiff underwent at

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Parkland hospital who submitted blood and urine samples taken of Plaintiff at approximately

11:30 pm that evening also revealed that Plaintiff’s blood alcohol level was taken was 0.102

g/100mL –this is in spite of the fact that Plaintiff had previously vomited out even more alcohol

that would otherwise have been in her system. The results of her urine test, as determined by the

Southwestern Institute of Forensic Sciences at Dallas, also showed that Plaintiff had

unknowingly been given the drug flunitrazepam metabolite (aka “Rohypnol”) to Plaintiff which

contributed to Plaintiff’s virtual unconsciousness and inability to protect herself from

unreasonable and foreseeable risks of serious bodily injury.

26. On August 22, 2014, Defendant Deari judicially admitted, confessed and

stipulated to committing the offense of aggravated assault, to wit: unlawfully, intentionally,

recklessly and knowingly causing Plaintiff serious bodily injury on April 26, 2011. This crime

was not committed by Deari in the course and scope of his employment with Pastazios.

However, the bodily injuries Plaintiff sustained unquestionably arise out of Pastazios’ negligent

and grossly negligent acts alleged herein and, but for said negligence, Plaintiff would not have

been injured at all.

27. As a proximate result of the tortious, and grossly negligent acts and omissions by

Defendants alleged herein, Plaintiff has foreseeably suffered, and will continue to suffer, through

extreme emotional distress, pain, mental anguish, and suffering for the rest of her life which,

according to the federal government’s “National Vital Statistics Reports”, is expected to be

another 61.6 years.2 Plaintiff has incurred, and will continue to incur, substantial damages and

bodily injuries arising out of the acts and omissions alleged herein.

2 See U.S. Department of Health and Human Service, NATIONAL VITAL STATISTICS REPORTS Vol. 61, No.3, September 24, 2012 at 20.

PLAINTIFF’S FOURTH AMENDED PETITION PAGE 8 OF 28

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COUNT 1: ASSAULT – THREAT OF BODILY INJURY (DEFENDANTS DEARI AND KREKA)

28. Plaintiff incorporates by reference, as if fully set forth herein, all of the preceding

paragraphs. Plaintiff’s first cause of action is alleged against Defendants Deari (while he was not

acting in the course and scope of his employment with Pastazios) and Kreka, only. As used in

this cause of action, “Defendants” refers to Defendant Deari and Defendant Kreka.

29. As further alleged herein, on or about April 26, 2011, Defendants intentionally

and/or knowingly threatened Plaintiff with imminent bodily injury. Defendants’ threat of

imminent bodily injury caused Plaintiff to be apprehensive, which was a foreseeable result of

Defendants’ actions.

30. Defendants are liable for the threat of bodily injury committed against Plaintiff

because Defendants participated in the tortious acts themselves or, alternatively, assisted the

tortious act against Plaintiff in furtherance of the civil conspiracy to do so or, alternatively, aided

and abetted each other to allow the ultimate threat of bodily injury against Plaintiff to take place.

31. Defendants’ threat of imminent bodily injury to Plaintiff was a cause of the

32. Under Texas law, the elements of assault are the same in civil and criminal suits

and it is the law of this State that an assault is both an offense against the peace and dignity of

the State, as well as an invasion of private rights. For that reason, the definition of assault,

whether in a criminal or civil trial, is the same. On August 22, 2014, Defendant Deari judicially

admitted, confessed and stipulated to committing the offense of aggravated assault, to wit:

unlawfully, intentionally, recklessly and knowingly causing Plaintiff serious bodily injury on

April 26, 2011. Thus, Plaintiff hereby pleads that Defendant Deari is hereby barred and judicially

estopped from challenging liability under this cause of action and the only element to be proven

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under this cause of action at trial is the issue of damages.

COUNT 2: ASSAULT (BATTERY) –BODILY INJURY AND OFFENSIVE CONTACT (DEFENDANTS DEARI AND KREKA)

33. Plaintiff incorporates by reference, as if fully set forth herein, all of the preceding

paragraphs.

34. Plaintiff’s second cause of action is alleged against Defendants Deari,

individually, and Kreka, only. As used in this cause of action, “Defendants” refers only to

Defendants Deari (while acting outside the course and scope of his employment) and Kreka.

35. Plaintiff incorporates by reference, as if fully set forth herein, the statutory

language of TEX. PENAL CODE §§ 22.01, 22.011 describing the felonies of “Assault” and “Sexual

Assault”. Plaintiff alleges that Plaintiff was the victim of the aforementioned crimes that

Defendants committed against Plaintiff on or about April 26, 2011, and that said crimes have

caused Plaintiff’s damages alleged herein.

36. Defendants intentionally, knowingly, and/or recklessly made physical contact

with Plaintiff’s person causing bodily injury—that is, physical pain, illness, or impairments of

Plaintiff’s physical condition—and Plaintiff did not, and could not, consent to the harmful

37. Alternatively, Defendants intentionally or knowingly caused to be made physical

contact with Plaintiff when Defendants knew, or reasonably should have believed, that Plaintiff

would regard the contact as offensive or provocative. Indeed, said physical contact was

offensive, provocative, and committed by Defendants despite never having consent from

38. As a causal result of Defendants’ battery of Plaintiff’s person, Plaintiff suffered

immediate, consequential, and subsequent injuries—including pain, illness, and physical

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impairment—that were foreseeable to Defendants. The assault committed by Defendants on

Plaintiff’s person was a cause of the damages alleged by Plaintiff herein.

39. Under Texas law, the elements of assault are the same in civil and criminal suits

and it is the law of this State that an assault is both an offense against the peace and dignity of

the State, as well as an invasion of private rights. For that reason, the definition of assault,

whether in a criminal or civil trial, is the same. On August 22, 2014, Defendant Deari judicially

admitted, confessed and stipulated to committing the offense of aggravated assault, to wit:

unlawfully, intentionally, recklessly and knowingly causing Plaintiff serious bodily injury on

April 26, 2011. Thus, Plaintiff hereby pleads that Defendant Deari is barred and judicially

estopped from challenging liability under this cause of action and the only element to be proven

COUNT 3: SEXUAL ASSAULT—TEX. PENAL CODE § 22.011 (DEFENDANT DEARI)

40. Plaintiff incorporates by reference, as if fully set forth herein, all of the preceding

41. Plaintiff’s third cause of action is alleged against Defendant Deari, individually,

only. As used in this cause of action, “Defendant” refers to Defendant Deari, while acting outside

the course and scope of his employment.

42. Plaintiff incorporates by reference, as if fully set forth herein, the statutory

language of TEX. PENAL CODE § 22.011 describing the felony of “Sexual Assault”. Plaintiff

alleges that Plaintiff was the victim of the aforementioned crime that Defendant Deari committed

against Plaintiff on or about April 26, 2011, while acting outside the course and scope of his

employment with Defendant Pastazios and that said crimes have caused Plaintiff’s damages

alleged herein.

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43. Plaintiff further pleads and incorporates by reference, as if fully set forth herein,

the statutory language of TEX. PENAL CODE § 22.011(b) describing the circumstances under

which a person cannot legally consent which apply to this case. These include when: (1) the

other person has not consented and the actor knows the other person is unconscious or physically

unable to resist; (2) the other person has not consented and the actor knows the other person is

unaware that the sexual assault is occurring; or (3) the actor has intentionally impaired the other

person's power to appraise or control the other person's conduct by administering any substance

without the other person's knowledge. As further alleged herein, Plaintiff never gave Defendant

Deari consent, nor was she capable of consenting under the above reference provisions set forth

herein.

44. Moreover, under Texas law in sexual assault cases, a jury is to be instructed that a

defendant’s own intoxicated state may not be considered as a defense to the commission of a

sexual assault. Thus, Plaintiff hereby pleads and invokes said provision and requests that the jury

be instructed accordingly.

COUNT 4: NEGLIGENCE (DEFENDANT PASTAZIOS)

45. Plaintiff incorporates by reference, as if fully set forth herein, all of the preceding

paragraphs. This cause of action applies to Defendant Pastazios, only.

46. As further alleged herein, Pastazios owed Plaintiff various legal duties that

Pastazios breached thereby proximately causing Plaintiff’s damages and serious bodily injuries.

47. For example, based upon the special relationship between Plaintiff, an invitee to

the premises, and Pastazios that is created under the Restatement of Torts § 314A, Pastazios

owed Plaintiff a duty to protect her against unreasonable risks of harm, as well as to render aid

and care until she could be cared for by others. Pastazios also had a duty created under

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Restatement of Torts § 318 to exercise reasonable care so as to control the conduct of its

customers and invitees from harming others, including Plaintiff. Pastazios had the right, ability

and responsibility to control the conduct occurring on its property, knew or had reason to know

of the necessity of taking appropriate action to prevent foreseeable harm to its invitees, including

Plaintiff, had the opportunity to prevent such foreseeable harm, yet consciously chose not to

intervene. Pastazios also had a duty pursuant to Restatement of Torts § 319 to prevent tortfeasors

from committing torts at its restaurant which it had the right and ability to control and prevent.

Pastazios further had a duty to exercise reasonable care so as to control its employees,

representatives and agents’ actions and inactions while on Pastazios’ premises (regardless of

whether said individuals were acting in the course and scope of their employment with Pastazios)

to prevent them from intentionally or negligently causing bodily injury or otherwise harming

others, including Plaintiff. Pastazios further owed Plaintiff a duty to use the appropriate legal

standard of care in maintaining its premises in a safe and secure condition and to inspect the

premises to ensure the safety of its occupants from foreseeable risks of harm. Pastazios likewise

had a legal duty to take reasonable steps to protect its invitees, including Plaintiff, from

unreasonable and foreseeable risks of harm—including risks of harm from the criminal or

grossly negligent acts of third parties. Pastazios had a duty not to injure Plaintiff in a willful,

wanton, or grossly negligent manner or allow another to do so on Pastazios’ premises when it

knew, or reasonably should have known of an unreasonable risk of harm to its invitees, including

Plaintiff. Pastazios had a legal duty to treat its invitees, including Plaintiff, in a manner that

would not unreasonably subject her to physical or mental bodily injury, or other unreasonable

and foreseeable risks of harm. Pastazios also had a duty to use ordinary care in the hiring of

competent employees, a duty to reasonable train its employees, and a duty to use ordinary care in

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supervising its employees. In light of the risks of unreasonable harm present on April 26, 2011,

the foreseeability of such risks of harm, and the likelihood of bodily injury to Plaintiff—weighed

against the social utility of Pastazios’ actions and inactions and the minimal burden of Pastazios

in guarding against such foreseeable and unreasonable risks of harm, there is no question that

Pastazios had a multitude of legal duties that it owed to Plaintiff.

48. As further alleged herein, Pastazios breached each and every one of these duties it

owed Plaintiff. By way of example, Pastazios knowingly and negligently put Plaintiff in harm’s

way on April 26, 2011; Pastazios knowingly and negligently allowed tortfeasors to use Pastazios

premises and property as instrumentalities in committing torts inflicted upon Plaintiff; Pastazios

failed to exercise ordinary care by allowing third parties to furnish Plaintiff with inordinate

amounts of alcohol and liquor to the point where she was virtually unconscious and lacking the

ability to protect herself from unreasonable and foreseeable risks of serious bodily injury; in the

alternative, Pastazios failed to exercise ordinary care by allowing its agents to furnish Plaintiff

with inordinate amounts of alcohol and liquor to the point where she was virtually unconscious

and lacking the ability to protect herself from unreasonable and foreseeable risks of serious

bodily injury; Pastazios failed to exercise ordinary care by allowing third parties to supply

flunitrazepam metabolite (aka “Rohypnol”) to Plaintiff without her knowledge which contributed

to Plaintiff’s virtual unconsciousness and inability to protect herself from unreasonable and

foreseeable risks of serious bodily injury; in the alternative, Pastazios failed to exercise ordinary

care by negligently monitoring agents under its control, thus, allowing Plaintiff to unknowingly

be provided flunitrazepam metabolite (aka “Rohypnol”) which contributed to Plaintiff’s virtual

unconsciousness and inability to protect herself from unreasonable and foreseeable risks of

serious bodily injury; Pastazios failed to exercise ordinary care by failing to take reasonable steps

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to render aid and care for Plaintiff until such time as she could reasonably be expected to be

cared for by herself or by others; Pastazios failed to exercise ordinary care by failing to contact a

taxi, a friend, or parents who would be able to ensure that Plaintiff was taken out of harm’s way

when she was clearly incapable of doing so herself due to the state Pastazios allowed her to be in

prior to leaving the premises; Pastazios failed to exercise ordinary care by negligently

monitoring the premises to ensure her safety and security when, under the circumstances existing

at the time, she was clearly within the zone of foreseeable and unreasonable risks of harm;

Pastazios failed to exercise ordinary care by negligently monitoring and controlling the conduct

of its other customers and invitees while they were on Pastazios’ property and still under

Pastazios’ control, and knew or had reason to know of the necessity of taking appropriate action

to prevent foreseeable and unreasonable risks of harm to Plaintiff; Pastazios failed to exercise

ordinary care in controlling its employees, representatives and agents’ actions and inactions

while on Pastazios’ premises (regardless of whether said individuals were acting in the course

and scope of their employment with Pastazios) to prevent them from intentionally or negligently

causing bodily injury or otherwise harming others, including Plaintiff, when such risks were

readily apparent under the circumstances existing at the time; Pastazios failed to exercise

ordinary care in maintaining its premises in a safe and secure condition and by failing to exercise

ordinary care in inspecting the premises to ensure the safety of its occupants from foreseeable

risks of harm; Pastazios failed to exercise ordinary care by failing to take any reasonable steps to

protect its invitees, including Plaintiff, from unreasonable and foreseeable risks of harm—

including risks of harm from the criminal or grossly negligent acts of third parties; Pastazios

failed to exercise ordinary care by failing to treat its invitees, including Plaintiff, in a manner that

would not unreasonably subject her to physical or mental bodily injury, or other unreasonable

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and foreseeable risks of harm; and Pastazios failed to exercise ordinary care by in the hiring of

competent employees, reasonably training them, and reasonably supervising them.

49. Said breaches set forth above constitute gross negligence on the part of Pastazios

because, when viewed objectively from the standpoint of Pastazios at the time of their

occurrence involved an extreme degree of risk, considering the probability and magnitude of the

potential harm to others, including Plaintiff, and of which Pastazios had actual, subjective

awareness of the risk involved, but nevertheless proceeded with conscious indifference to the

rights, safety, or welfare of others, including Plaintiff. In the alternative, Pastazios is grossly

negligent because of the acts of other Defendants to the extent any other grossly negligent

Defendant was a vice principal of Pastazios and was acting in the course and scope of that

Defendant’s employment, or to the extent Pastazios ratified said Defendant’s grossly negligent

conduct.

50. As a proximate cause of Pastazios’ breaches of these legal duties, Plaintiff

suffered and will continue to suffer damage and serious bodily injuries that will remain with her

for the rest of her adult life. But for said breaches, Plaintiff never would have suffered the serious

bodily injuries complained of herein. Pastazios’ breaches, acts and omissions were a substantial

factor in causing Plaintiff’s damages and bodily injuries complained of herein, without which,

such harm would not have occurred. Under the circumstances that existed at the time, a

restaurant operator of ordinary intelligence would have reasonably anticipated the dangers

Pastazios’ negligent and grossly negligent acts and omissions created for others, including

Plaintiff, as well as the general character of the damages and bodily injuries Plaintiff suffered as

a result of said negligence and gross negligence. It is undeniable that Plaintiff’s damages and

bodily injuries complained of herein arose out of the inherent nature of Pastazios’ negligent and

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grossly negligent acts and omissions.

51. Moreover, any alleged intentional or negligent acts of any other person or

Defendant that contributed to Plaintiff’s injuries did not act to extinguish Pastazios’ liability for

its own negligence and gross negligence and do not constitute an “outside agency,” and do not

rise to the level of a new and independent cause that would extinguish Pastazios’ liability. Any

purported acts or intervening forces Pastazios may allege to be a “new and independent cause”

fails said acts were foreseeable to Pastazios under the circumstances that existed at the time. In

the alternative, even if said intervening forces were unforeseeable, the chain of causation flowing

from Pastazios’ negligence was continuous and unbroken. See Biaggi v. Patrizio Restaurant Inc.,

149 S.W.3d 300, 306 (Tex. App.—Dallas 2004); see also S&A Beverage Co. of Beaumont v.

DeRouen, 753 S.W2d 507 (Tex. App. – Beaumont 1988, pet. denied). Stated differently,

Plaintiff’s damages and bodily injuries complained of herein did not solely arise out of or result

from any criminal acts of other Defendants.

52. All of Plaintiff’s damages and bodily injuries complained of herein arise out of

Pastazios’ breaches of its legal duties owed to Plaintiff—without which, Plaintiff never would

have been injured. Any alleged new and independent cause alleged by Pastazios is legally and

necessarily dependent on Pastazios’ own prior and contemporaneous negligence and gross

negligence. See S&A Beverage Co. of Beaumont, 753 S.W2d 507.

COUNT 5: DRAM SHOP LIABILITY (DEFENDANT PASTAZIOS)

53. Plaintiff incorporates by reference, as if fully set forth herein, all of the preceding

54. Plaintiff’s cause of action for Dram Shop Liability is alleged against Pastazios

only.

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55. As further alleged herein, on or about April 26, 2011, Pastazios held a Texas

Alcoholic Beverage Commission license for the sale, service or provision of alcoholic goods or

products and did, in fact, sell, serve, provide, or otherwise distribute multiple alcoholic products

to Plaintiff when, at the time, it was apparent, obvious, and evident to Pastazios that Plaintiff was

obviously intoxicated. As further alleged herein, it was it is visible, evident, and easily

observable to Pastazios that Plaintiff was obviously intoxicated at the time she was provided

such alcoholic products by Pastazios.

56. Such signs of obvious intoxication of Plaintiff were self-evident from the

circumstances and observations that any ordinary person could see throughout the course of the

approximate 2 hours in which Pastazios was providing Plaintiff with its alcoholic products while

on the premises. The testimony and admissions from multiple eye witnesses, the fact that

Plaintiff was sometimes non-responsive, in and out of consciousness, the physical clues that an

ordinary person could observe, the shear amount of alcoholic products Pastazios distributed to

Plaintiff, the changes in her behavior, clearly manifested the fact that Plaintiff was a danger to

herself and others. Moreover, Plaintiff’s blood alcohol levels taken several hours after she was

last provided alcoholic products by Pastazios, statements and observations made by the Addison

Police Department and treating medical providers at Parkland hospital, testimony that Plaintiff

has virtually no memory after the time she left Pastazios until she woke up while actively being

raped, as well as the testimony of the multiple instances of vomiting likewise show that Pastazios

had provided Plaintiff with alcoholic products at a time when she was obviously intoxicated and

a danger to herself and dangers from others.

57. Plaintiff’s intoxication—as a result of the provision and/or distribution of

alcoholic products by Pastazios was a proximate cause of Plaintiff’s damages and bodily injuries

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complained of herein. In fact, all of Plaintiff’s damages and bodily injuries arise out of the

products provided and/or distributed to her by Pastazios. But for Plaintiff’s intoxication at the

hands of Pastazios, Plaintiff would not have suffered the damages and serious bodily injuries

complained of herein. As such, Pastazios provision and/or distribution of alcoholic products to

Plaintiff while she was obviously intoxicated was a “substantial factor in bringing about the

injury and without which no harm would have been incurred.” See El Chico Corp. v. Poole, 732

S.W.2d 306, 313 (Tex. 1987). A restaurant of ordinary intelligence should have anticipated the

dangers that its negligent acts created for others, including Plaintiff, and would reasonably

anticipate the general character of the bodily injury suffered by Plaintiff which arose out of such

negligence. See S&A Beverage Co., 753 S.W2d 507.

58. Moreover, any alleged intentional or negligent acts of any other person or

Defendant that contributed to Plaintiff’s injuries did not act to extinguish Pastazios’ liability for

its own negligence and gross negligence, do not constitute an “outside agency,” and do not rise

to the level of a new and independent cause that would extinguish Pastazios’ liability. Any

purported acts or intervening forces Pastazios may allege to be a “new and independent cause”

fails said acts were foreseeable to Pastazios under the circumstances that existed at the time. In

the alternative, even if said intervening forces were unforeseeable, the chain of causation flowing

from Pastazios’ negligence was continuous and unbroken. See Biaggi v. Patrizio Restaurant Inc.,

149 S.W.3d 300, 306 (Tex. App.—Dallas 2004); see also S&A Beverage Co. of Beaumont v.

DeRouen, 753 S.W2d 507 (Tex. App. – Beaumont 1988, pet. denied). Stated differently,

Plaintiff’s damages and bodily injuries complained of herein did not solely arise out of or result

59. All of Plaintiff’s damages and bodily injuries complained of herein arise out of

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and/or result from Plaintiff’s intoxication at the hands of Pastazios’—without which, Plaintiff

never would have been injured. Any alleged new and independent cause alleged by Pastazios is

legally and necessarily dependent on Pastazios’ own prior and contemporaneous negligence and

gross negligence. See S&A Beverage Co. of Beaumont, 753 S.W2d 507. This is so even though

the physical act of being raped occurred a half mile away from the premises. See id. Thus,

Plaintiff hereby pleads that Pastazios is barred as a matter of Texas law from submitting the issue

of “new and independent cause” to the Court or jury in these proceedings. See id.; see also

Biaggi, 149 S.W.3d at 304-305 (Tex. App. – Dallas 2004).

60. Pleading in the alternative, to the extent Pastazios claims that other Defendants—

namely Defendant Deari—is responsible for the provision of alcoholic products to Plaintiff,

Defendant Deari was acting under the actual and/or apparent authority of Pastazios and, thus, the

provision of alcohol by Defendant Deari is imputed to Pastazios as a matter of Texas law. This is

the case irrespective of whether Defendant Deari was acting in the course and scope of his

employment with Pastazios.

61. Under Texas proportionate responsibility law, to the extent that the jury

apportions responsibility to anyone other than Pastazios, Plaintiff is entitled to fully recover from

Pastazios “without assuming the risk of [Defendant Deari’s] insolvency. See Biaggi, 149 S.W.3d

at 304-305 (Tex. App. – Dallas 2004). In such instances, Texas law makes clear that Plaintiff is

entitled to fully recover from Pastazios, and it is Pastazios “who may then recover from [other

Defendants] based upon the percentages of responsibility that the jury assessed between them.”

Plaintiff hereby pleads and invokes said rights recognized under Texas law.

COUNT 6: FALSE IMPRISONMENT/DETENTION (DEFENDANT PASTAZIOS)

62. Plaintiff incorporates by reference, as if fully set forth herein, all of the preceding

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paragraphs. This cause of action only applies to Defendant Pastazios.

63. Without legal authority or justification, Defendant Pastazios willfully detained or

participated in the detainment of Plaintiff without Plaintiff’s consent and without the authority of

law. Pastazios willfully accomplished the detainment of Plaintiff by virtue of providing her with

intoxicating products and substances handled and/or distributed by Pastazios to the point where

Plaintiff was virtually unconscious and/or incapable of freely moving herself from one place to

another. Such detention was willful, was without Plaintiff’s consent, and placed her in a position

where she could not exercise her will in going where she could otherwise lawfully go. Pastazios’

actions, combined with Plaintiff’s vulnerabilities and the oppressive circumstances surrounding

these events had the effect of unlawfully detaining Plaintiff in a manner which ultimately caused

her to suffer serious bodily injuries and consequential damages arising out of said detainment.

64. The false imprisonment and detainment committed by Pastazios was a proximate

cause of the damages and serious bodily injury suffered by Plaintiff as alleged herein.

COUNT 7: PREMISES LIABILITY (DEFENDANT PASTAZIOS)

65. Plaintiff incorporates by reference, as if fully set forth herein, all of the preceding

paragraphs. Plaintiff’s cause of action for Premises Liability is alleged against Defendant

Pastazios only.

66. Under Texas law, a premises-liability defendant may be held liable for a

dangerous condition on the property if it assumed control over and responsibility for the

premises. As further alleged herein, Pastazios exercised actual and contractual control over the

premises. Thus, Pastazios, owed Plaintiff, as an invitee, a legal duty to avoid risks of harm that

are unreasonable and foreseeable. Pastazios also had a duty to inspect and make safe any

dangerous conditions or situations on its property or give Plaintiff an adequate warning of the

PLAINTIFF’S FOURTH AMENDED PETITION PAGE 21 OF 28

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dangerous conditions or situations; however, Pastazios failed to do so.

67. Pastazios failed to exercise ordinary care by, among other things, failing to take

any reasonable steps to protect its invitees, including Plaintiff, from unreasonable and

foreseeable risks of harm—including risks of harm from the criminal or grossly negligent acts of

third parties.

68. Said breaches set forth above constitute gross negligence on the part of Pastazios

because, when viewed objectively from the standpoint of Pastazios at the time of their

occurrence involved an extreme degree of risk, considering the probability and magnitude of the

potential harm to others, including Plaintiff, and of which Pastazios had actual, subjective

awareness of the risk involved, but nevertheless proceeded with conscious indifference to the

rights, safety, or welfare of others, including Plaintiff. In the alternative, Pastazios is grossly

negligent because of the acts of other Defendants to the extent any other grossly negligent

Defendant was a vice principal of Pastazios and was acting in the course and scope of that

Defendant’s employment, or to the extent Pastazios ratified said Defendant’s grossly negligent

69. As a proximate cause of Pastazios’ breaches of these legal duties, Plaintiff

suffered and will continue to suffer damage and serious bodily injuries that will remain with her

for the rest of her adult life. But for said breaches, Plaintiff never would have suffered the serious

bodily injuries complained of herein. Pastazios’ breaches, acts and omissions were a substantial

factor in causing Plaintiff’s damages and bodily injuries complained of herein, without which,

such harm would not have occurred. Under the circumstances that existed at the time, a

restaurant operator of ordinary intelligence would have reasonably anticipated the dangers

Pastazios’ negligent and grossly negligent acts and omissions created for others, including

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Plaintiff, as well as the general character of the damages and bodily injuries Plaintiff suffered as

a result of said negligence and gross negligence. It is undeniable that Plaintiff’s damages and

bodily injuries complained of herein arose out of the inherent nature of Pastazios’ negligent and

70. Moreover, any alleged intentional or negligent acts of any other person or

Defendant that contributed to Plaintiff’s injuries did not act to extinguish Pastazios’ liability for

its own negligence and gross negligence and do not constitute an “outside agency,” and do not

rise to the level of a new and independent cause that would extinguish Pastazios’ liability. Any

purported acts or intervening forces Pastazios may allege to be a “new and independent cause”

fails said acts were foreseeable to Pastazios under the circumstances that existed at the time. In

the alternative, even if said intervening forces were unforeseeable, the chain of causation flowing

from Pastazios’ negligence was continuous and unbroken. See Biaggi v. Patrizio Restaurant Inc.,

149 S.W.3d 300, 306 (Tex. App.—Dallas 2004); see also S&A Beverage Co. of Beaumont v.

DeRouen, 753 S.W2d 507 (Tex. App. – Beaumont 1988, pet. denied). Stated differently,

Plaintiff’s damages and bodily injuries complained of herein did not solely arise out of or result

71. All of Plaintiff’s damages and bodily injuries complained of herein arise out of

Pastazios’ breaches of its legal duties owed to Plaintiff—without which, Plaintiff never would

have been injured. Any alleged new and independent cause alleged by Pastazios is legally and

necessarily dependent on Pastazios’ own prior and contemporaneous negligence and gross

72. As further alleged herein, Pastazios breached its legal duties owed to Plaintiff, and

those breaches proximately caused Plaintiff’s damages and bodily injuries alleged herein.

PLAINTIFF’S FOURTH AMENDED PETITION PAGE 23 OF 28

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COUNT 8: PARTICIPATORY LIABILITY—AIDING AND ABETTING AND CONCERT OF ACTION (ALL DEFENDANTS)

73. Plaintiff incorporates by reference, as if fully set forth herein, all of the preceding

74. Among the Defendants was a primary actor, or primary actors, who committed an

underlying tort, or torts, against Plaintiff. Defendants had knowledge that the primary actor’s

conduct constituted a tort and Defendants gave the primary actor assistance, substantial

assistance, and/or encouragement to commit the tort against Plaintiff. Defendants’ assistance,

substantial assistance, and/or encouragement was a substantial factor in causing the tort to be

completed and a substantial factor in the damages incurred by Plaintiff as alleged herein.

75. Alternatively, Defendants’ own conduct—separate and apart from the primary

actor—was a breach of duty to Plaintiff and a substantial factor in causing Plaintiff’s injuries.

76. Due to Defendants’ joint assistance, encouragement, aiding and abetting, and/or

concert of action, Plaintiff alleges that Defendants should be held jointly and severally

COUNT 9: EXEMPLARY DAMAGES (ALL DEFENDANTS)

77. Plaintiff incorporates by reference, as if fully set forth herein, all of the preceding

78. Defendants’ tortious conduct was not only negligent, it was malicious and/or

grossly negligent.

79. Defendants’ malicious and/or grossly negligent acts and omissions were carried

out by Defendants personally, through Defendants’ authorized agents, managers, employees,

vice-principals, and/or principals of Defendant Pastazios. Alternatively, Defendants Deari and

Kreka’ malicious and/or grossly negligent conduct was subsequently approved by or ratified by

PLAINTIFF’S FOURTH AMENDED PETITION PAGE 24 OF 28

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Defendant Pastazios.

80. Defendants intentionally breached the legal duties it owed Plaintiff such that it

could take undue advantage of Plaintiff and/or otherwise maliciously treat Plaintiff. The acts or

omissions of Defendants, when viewed objectively from the Defendants’ standpoint, involved an

extreme degree of risk when considering the probability and magnitude of the potential harm to

81. Additionally, Defendants had actual, subjective awareness of the risk to Plaintiff

and others but proceeded anyway with a conscience indifference to the rights, safety, or welfare

82. Defendants’ conduct was performed and/or designed with a specific intent to

cause substantial injury or harm to Plaintiff. As alleged herein, Defendants’ conduct is an

example of why punitive damages exist, and Plaintiff alleges that Defendants’ conduct rises to

the level warranting the imposition of exemplary damages against Defendants at trial.

83. Pursuant to TEX. CIV. PRAC. & REM. CODE § 41.008(c), there is no cap on the

amount of exemplary damages that may be awarded by the jury.

84. Plaintiff incorporates by reference, as if fully set forth herein, all of the preceding

85. Plaintiff has incurred significant damages due to Defendants' tortious and grossly

negligent conduct. Plaintiff seeks all losses sustained as a natural, probable, foreseeable, and/or

proximate result of Defendants' wrongful conduct, including:

PLAINTIFF’S FOURTH AMENDED PETITION PAGE 25 OF 28

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c. Physical pain and suffering incurred in the past and future;

j. Out of pocket costs;

k. Loss of consortium;

l. Loss of companionship and society in the past and future;

m. Loss of enjoyment of life in the past and future;

n. Injury to reputation in the past and future;

o. All reasonable and necessary attorneys' fees that Plaintiff is forced to incur

p. Exemplary damages;

q. Costs of court;

r. Pre-judgment interest;

s. Post-judgment interest; and

t. All other relief, in law and in equity, to which Plaintiff may be justly entitled.

86. Plaintiff demands a jury trial and has tendered the appropriate fee.

IX. PRAYER

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87. WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendants be

cited to appear and answer herein. Plaintiff further prays that, upon trial by jury, she have

judgment against Defendants for the damages alleged herein, as well as all other relief, in law

and in equity, to which Plaintiff may prove herself to be justly entitled.

___________________________________ ROYCE WEST G. MICHAEL GRUBER State Bar No. 21206800 State Bar No. 08555400 royce.w@westllp.com mgruber@ghjhlaw.com VERETTA FRAZIER TREY CRAWFORD State Bar No. 00793264 State Bar No. 24059623 veretta.f@westllp.com tcrawford@ghjhlaw.com NIGEL REDMOND BRIAN E. MASON State Bar No. 24058852 State Bar No. 24079906 nigel.r@westllp.com bmason@ghjhlaw.com WEST & ASSOCIATES, L.L.P. GRUBER HURST JOHANSEN HAIL SHANK LLP P.O. Box 3960 1445 Ross Avenue, Suite 2500 Dallas, Texas 75208-1260 Dallas, Texas 75202 Ofc.: (214) 941-1881 214.855.6800 (main) Fax: (214) 941-1399 214.855.6808 (facsimile)

PLAINTIFF’S FOURTH AMENDED PETITION PAGE 27 OF 28

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The undersigned hereby certifies that, pursuant to TEX. R. CIV. P. 21, 21a, a true and correct copy of the foregoing was filed on June 5, 2015 and was served on June 5, 2015 to the following individuals: Via Facsimile and E-mail Via Certified Mail, Return Receipt Requested

Ajredin “Danny” Deari Dritan Kreka, pro se Pastazios Pizza, Inc. 5549 Big River Drive Samuel H. Johnson The Colony, Texas 75056 Rosenberg & Johnson, P.C. Facsimile: (972) 918-5274

_______________________________________ Trey Crawford

PLAINTIFF’S FOURTH AMENDED PETITION PAGE 28 OF 28

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EXHIBIT E

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CENTURY INSURANCE GROUP~~~ DIVISION OF MEADOWBROOK INSURANCE GROUP~

May 24,2013 /" Via Certified and Regular Mail 91 7108 2133 3936 4102 0982

)'astazios Pizza, Inc. / 5026 Addison Circle Addison, TX 75001-3332

RE: Doe v. Pastazios Pizza, Inc., eta/. Named Insured: Pastazios Pizza, Inc. Policy No.: CCP672836 Policy Period: Ssptember 21, 2010- September 21, 2011 Date of Loss: April 26, 2011 Claim No.: 01-088423

I am a Claims Attorney for Century Insurance Group, a division of Meadowbrook Insurance Group, assigned to oversee this claim on behalf of Century Surety Company ("Century"). As you know, Century is in receipt of the Petition filed on behalf of Jane Doe against Ajredin "Danny'' Deari, Dritan Kreka, and Pastazios Pizza, Inc, as well as others, in the District Court for Dallas County, TX as Suit No. 13-04564 (hereinafter "the Doe Action"). Upon review of the petition and the above-referenced policy, Century has determined that coverage may be available for this claim. As such, Century agrees to provide a defense and indemnity to Pastazios Pizza, Inc. subject to a full and complete reservation of rights.

Please read this letter carefully for a more detailed explanation of Century's coverage position.

I. FACTUAL BACKGROUND

The following facts are based largely upon the allegations contained in the Petition. The Petition's allegations are reviewed here, simply for the purpose of explaining Century's coverage position. Century's review of those allegations should not be construed as a comment on their truthfulness, as Century does not mean to assert that any, or all, of the allegations contained in the Petition are true. That said, please promptly advise us if you believe we have misconstrued, or misunderstood, those allegations.

The Doe Action, filed April 24, 2013, alleges that on April 26, 2011, Jane Doe came to interview for a job at your establishment. Ms. Doe, a minor, alleges that she was provided alcoholic beverages to the point of unconsciousness. She alleges that while unconscious she was driven by Dritan Kreka and Ajredin "Danny" Deari to a hotel where she was raped by Mr. Deari. As a result of this incident, the Doe Action brings claims of assault, battery, sexual assault, false imprisonment, negligence, premises liability, dram shop liability, intentional infliction of emotional distress, participatory liability - aiding and abetting, and participatory liability - conspiracy. Specifically, the Doe Action alleges that you had a duty to use ordinary care in hiring and retaining employees, a duty to control your employees, a duty to supervise your employees' activities, and a duty to prevent an employee from causing an unreasonable risk of Shana M. Bereche Claims Attorney SBereche@centurysurety.com 1602-216-6568 Mailing Address: P ..O. Box 163340 Columbus, Ohio 43216-3340 Physical Address: 23733 N. Scottsdale Rd., Suite 100, Scottsdale, AZ 85255 Phone: 888-651-6424 Fax: 614-895-7040 Website: www.centurysurety.com

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harm to Ms. Doe. The Doe Action alleges you violated these duties by providing intoxicating substances to Ms. Doe and placing her in harms way. The Doe Action seeks to recover for medical expenses, pain and suffering, disfigurement, physical impairment, attorneys' fees and punitive damages.

II. POLICY LANGUAGE

Century issued policy number CCP672836 to Named Insured, Pastazios Pizza, Inc., for the period spanning September 21, 2010 to September 21, 2011. The policy provides Commercial General Liability coverage subject to liability limits of $1,000,000 per Occurrence, $2,000,000 products completed operations limit, and $2,000,000 in the aggregate, and a deductible of $500 per claim.

Pertinent portions of the policy read as follows:

SECTION I- COVERAGES COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY 1. Insuring Agreement a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply. We may, at our discretion, investigate any "occurrence" and settle any claim or "suit" that may result. But: (1) The amount we will pay for damages is limited as described in Section Ill- Limits Of Insurance; and (2) Our right and duty to defend ends when we have used up the applicable limit of insurance in the payment of judgments or settlements under Coverages A or B or medical expenses under Coverage C. No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under Supplementary Payments - Coverages A and B. b. This insurance applies to "bodily injury" and "property damage" only if: (1) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory"; (2) The "bodily injury" or "property damage" occurs during the policy period; and (3} Prior to the policy period, no insured listed under Paragraph 1. of Section II - Who Is An Insured and no "employee" authorized by you to give or receive notice of an "occurrence" or claim, knew that the "bodily injury" or "property damage" had occurred, in whole or in part. If such a listed insured or authorized "employee" knew, prior to the policy period, that the "bodily injury" or "property damage" occurred, then any continuation, change or resumption of such "bodily injury" or "property damage" during or after the policy period will be deemed to have been known prior to the policy period.

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COVERAGE B PERSONAL AND ADVERTISING INJURY LIABILITY 1. Insuring Agreement a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "personal and advertising injury" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "personal and advertising injury" to which this insurance does not apply. We may, at our discretion, investigate any offense and settle any claim or "suit" that may result. But: (1) The amount we will pay for damages is limited as described in Section Ill- Limits Of Insurance; and (2) Our right and duty to defend end when we have used up the applicable limit of insurance in the payment of judgments or settlements under Coverages A or B or medical expenses under Coverage C. No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under Supplementary Payments - Coverages A and B. b. This insurance applies to "personal and advertising injury" caused by an offense arising out of your business but only if the offense was committed in the "coverage territory" during the policy period.

2. Exclusions This insurance does not apply to: a. Knowing Violation Of Rights Of Another "Personal and advertising injury" caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict "personal and advertising injury".

SECTION II -WHO IS AN INSURED 1. If you are designated in the Declarations as:

d. An organization other than a partnership, joint venture or limited liability company, you are an insured. Your "executive officers" and directors are insureds, but only with respect to their duties as your officers or directors. Your stockholders are also insureds, but only with respect to their liability as stockholders. e. A trust, you are an insured. Your trustees are also insureds, but only with respect to their duties as trustees. 2. Each of the following is also an insured: a. Your "volunteer workers" only while performing duties related to the conduct of your business, or your "employees", other than either your "executive officers" (if you are an organization other than a partnership, joint venture or limited liability company) or your managers (if you are a limited liability company), but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business. However, none of these "employees" or "volunteer workers" are insureds for: (1) "Bodily injury" or "personal and advertising injury":

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(a) To you, to your partners or members (if you are a partnership or joint venture), to your members (if you are a limited liability company), to a co-"employee" while in the course of his or her employment or performing duties related to the conduct of your business, or to your other "volunteer workers" while performing duties related to the conduct of your business; (b) To the spouse, child, parent, brother or sister of that co-"employee" or "volunteer worker" as a consequence of Paragraph (1 )(a) above; (c) For which there is any obligation to share damages with or repay someone else who must pay damages because of the injury described in Paragraphs (1 )(a) or (b) above; or (d) Arising out of his or her providing or failing to provide professional health care services. (2) "Property damage" to property: (a) Owned, occupied or used by, (b) Rented to, in the care, custody or control of, or over which physical control is being exercised for any purpose by you, any of your "employees", "volunteer workers", any partner or member (if you are a partnership or joint venture), or any member (if you are a limited liability company). b. Any person (other than your "employee" or "volunteer worker"), or any organization while acting as your real estate manager. c. Any person or organization having proper temporary custody of your property if you die, but only: (1) With respect to liability arising out of the maintenance or use of that property; and (2) Until your legal representative has been appointed. d. Your legal representative if you die, but only with respect to duties as such. That representative will have all your rights and duties under this Coverage Part. 3. Any organization you newly acquire or form, other than a partnership, joint venture or limited liability company, and over which you maintain ownership or majority interest, will qualify as a Named Insured if there is no other similar insurance available to that organization. However: a. Coverage under this provision is afforded only until the 90th day after you acquire or form the organization or the end of the policy period, whichever is earlier; b. Coverage A does not apply to "bodily injury" or "property damage" that occurred before you acquired or formed the organization; and c. Coverage 8 does not apply to "personal and advertising injury" arising out of an offense committed before you acquired or formed the organization. No person or organization is an insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations.

SECTION V- DEFINITIONS

3. "Bodily injury" means bodily InJury, sickness or disease sustained by a person, including death resulting from any of these at any time.

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CLL 1902 (03/06)

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

LIQUOR LIABILITY COVERAGE ENDORSEMENT

This endorsement modifies insurance provided under the following:

In consideration of the premium charged this policy has been issued subject to the following changes, additional conditions and exclusions:

1. It is agreed that Section I- Coverages, Coverage A Bodily Injury and Property Damage Liability, 2. Exclusions is changed as follows: a. Expected or Intended Injury is deleted and entirely replaced by the following: a. Expected or Intended Injury "Bodily injury" or "property damage" expected or intended from the standpoint of any insured.

c. Liquor Liability as stated in the Commercial General Liability Coverage Part and as amended in CGL 1701 is deleted in its entirety and replaced by the following:

c. Liquor Liability "Liquor Liability" is defined as "Bodily injury" or "property damage" for which any insured may be held liable by reason of: a. Causing or contributing to the intoxication of any person; b. Furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or c. Violation of any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages. We have neither a duty to defend nor a duty to indemnify any insured for any claim or suit, and this insurance does not apply, if any proximate or contributing cause of an "occurrence" arises out of "liquor liability". This exclusion applies to all insureds regardless of whether you are in the business of manufacturing, distributing, selling, serving or furnishing alcoholic beverages. However this exclusion does not apply to claims within the "products- completed operations hazard".

2. Additional exclusions: This insurance does not apply to:

Liquor License Not In Effect "Bodily injury" or "property damage" ansmg out of any alcoholic beverage sold, served or furnished while any required license is suspended or after such license expires, is cancelled or revoked.

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Alcohol Related Disease Mental anguish, sickness, disease or any other condition arising out of, caused by or in any way related to the use or consumption over time of alcohol, liquor or any other product containing alcohol.

3. It is agreed that Section I - Coverages, Coverage C. Medical Payments is deleted in its entirety.

4. The following is added to SECTION IV - COMMERCIAL GENERAL LIABILITY CONDITIONS In the event this policy is filed with any governmental entity instead of or as a replacement for a statutory or other legally required Liquor Bond, this policy will not be construed to cover or insure any requirements or obligations of such bond.

5. LIMITS of INSURANCE It is a condition precedent to coverage under this endorsement that all such claims arising out of coverage granted here under are covered within and will reduce the products-completed operations aggregate limit shown in the Declarations.

All other terms and conditions of this policy remain in force.

CGL 1701 (05/10)

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

SPECIAL EXCLUSIONS AND LIMITATIONS ENDORSEMENT

This endorsement modifies insurance provided under the following:

A. In consideration of the premium charged this policy has been issued subject to the following exclusions being added to Coverages A & B: This insurance does not apply to:

4. Criminal Acts a. "Bodily Injury" or "property damage" arising out of or resulting from a criminal act committed by any insured, including any additional insureds or b. "Bodily Injury" or "property damage" arising out of or resulting from a criminal act at the direction of any insured, including any additional insureds.

5. Punitive, Exemplary, Treble Damages or Multipliers of Attorneys' Fees Claims or demands for payment of punitive, exemplary or treble damages whether arising from the acts of any insured or by anyone else for whom or which any insured or additional insured is legally liable; including any multiplier of attorney's fees statutorily awarded to the prevailing party.

D. It is agreed that the following changes are made to SECTION V- DEFINITIONS:

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The following definitions are deleted and entirely replaced:

3. Item 13. "Occurrence" is deleted in its entirety and replaced with the following: 13. "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions. All "bodily injury" or "property damage" arising out of an "occurrence" or series of related "occurrences" is deemed to take place at the time of the first such damage or injury even though the nature and extent of such damage or injury may change; and even though the damage may be continuous, progressive, cumulative, changing or evolving; and even though the "occurrence" causing such "bodily injury" or "property damage" may be continuous or repeated exposure to substantially the same general harmful conditions. 4. Item 14. "Personal and advertising injury" is deleted in its entirety and replaced with the following: 14. "Personal and advertising injury" means injury, including consequential "bodily injury", arising out of one or more of the following offenses: a. False arrest, detention or imprisonment; b. Malicious prosecution; c. The wrongful eviction from, wrongful entry into, or invasion of the right of privacy occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor; or d. Oral or written publication, in any manner, of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services.

5. Item 17. "Property Damage" is deleted in its entirety and replaced with the following. 17. "Property damage" means: a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the "occurrence" that caused it. For the purposes of this insurance, electronic data is not tangible property. As used in this definition, electronic data means information, facts or programs stored as or on, created or used on, or transmitted to or from computer software, including systems and applications software, hard or floppy disks, CD-ROMS, tapes, drives, cells, data processing devices or any other media which are used with electronically controlled equipment. For the purposes of this insurance, "property damage" is not physical injury to tangible property, any resultant loss of use of tangible property, nor loss of use of tangible property that is not physically injured that arises out of failure to complete or abandonment of "your work".

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CGL 2146 (07/98)

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

ABUSE OR MOLESTATION EXCLUSION

This endorsement modifies insurance provided under the following:

The following exclusion is added to Paragraph 2., Exclusions of Section I - Coverage A - Bodily Injury And Property Damage Liability and Paragraph 2., Exclusions of Section I -Coverage B - Personal And Advertising Injury Liability: This insurance does not apply to "bodily injury", "property damage" or "personal and advertising injury" arising out of: 1. The actual or threatened abuse or molestation by anyone of any person while in the care, custody or control of any insured, or 2. The negligent: a. Employment; b. Investigation; c. Supervision; d. Reporting to the proper authorities, or failure to so report; or e. Retention; of a person for whom any insured is or ever was legally responsible and whose conduct would be excluded by Paragraph 1. above.

While we have quoted specific portions, Century reserves its right to rely on other portions of the policy's language as well. We encourage you to read the policy in its entirety so you are familiar with the coverage available.

Ill. CENTURY'S COVERAGE POSITION

Please refer to the Insuring Agreement for Coverage A, quoted above for easy reference. That part of the policy indicates that Century will pay those sums the Insured is held liable for as a result of "bodily injury" caused by an "occurrence" during the policy period. While the Petition clearly contains allegations of bodily injury, we reserve the right to deny coverage under this portion of the policy to the extent that the injuries were not caused by an "occurrence" as that term is defined by the policy.

Note that the Liquor Liability Coverage Endorsement, also quoted above, removes the policy's Liquor Liability exclusion and indicates that Century will pay those sums the Insured is held liable for as a result of "bodily injury" resulting from the Insured's causing or contributing to the intoxication of any person so long as your liquor license was in effect on the date of loss. However, a number of other policy provisions may act to limit or preclude coverage entirely.

First, please note that the policy's Expected or Intended Injury exclusion will act to bar all coverage for "bodily injury" expected or intended from the standpoint of any insured. The

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Petition clearly alleges that the injuries to Ms. Doe were the result of a series of intentional acts perpetrated by the owners and/or employees of Pastazio's. Century therefore reserves the right to limit or deny coverage pursuant to the Expected or Intended Injury exclusion.

Second, please review the policy's exclusion entitled "Abuse or Molestation Exlusion," also quoted above. That exclusion bars coverage for claims of "bodily injury" arising out of or resulting from any actual or threatened abuse or molestation by anyone of any person while in the care, custody or control of any insured. It further indicates that coverage is barred for claims of negligent employment, investigation, supervision, reporting to authorities or retention of a person for whom any insured is or ever was legally responsible for whose conduct included actual or threatened. The Petition centers on allegations that Mr. Deari, with the aid and assistance of Mr. Kreka, raped Ms. Doe and thereby caused a number of injuries. Century therefore reserves the right to deny all coverage pursuant to this exclusion as well.

Third, please also review the Criminal Acts exclusion quoted above. If the "bodily injury" alleged arose out of a criminal act committed by any insured or at the direction of any insured, there is no coverage for this claim. The Petition alleges that a number of crimes were committed by Mr. Deari and Mr. Kreka and we understand that criminal charges are currently pending against both. As such, Century reserves the right to limit or deny coverage pursuant to this exclusion as well.

Please also refer to the Insuring Agreement for Coverage B, also quoted above. That part of the policy indicates that Century will pay those sums the Insured is held liable for as a result of "personal and advertising injury" caused by an offense arising out of your business during the policy period. "Personal and advertising injury" is defined to include a number of offenses, including false imprisonment. As such, some coverage may be available under this portion of the policy as well. However, this part of the policy is subject to the same Criminal Acts exclusion discussed above. Century reserves its right to deny coverage pursuant to this exclusion. Additionally, the exclusion quoted above and entitled "Knowing Violation Of Rights Of Another" acts to bar coverage for claims of "personal and advertising injury" caused with the knowledge that the act would violate the rights of another. Century reserves the right to deny coverage pursuant to this exclusion as well.

Please carefully review the "Who Is An Insured" provision of your policy, also quoted above. As an organization your "executive officers" and directors are insureds, but only with respect to their duties as your officers or directors. Similarly, your stockholders are insureds but only with respect to their liability as stockholders. Employees pre also insureds, but only for acts within the scope of their employment by you or while performing duties related to the conduct of the business. To the extent that Danny Deari and Dritan Kreka were not acting within their duties as officers or directors and were not acting within the scope of their employment with Pastazio's, they will not qualify as insureds under the policy and there may be no coverage. Century reserves the right to deny coverage for this reason as well.

Lastly, please note that the exclusion for Punitive, Exemplary Treble Damages or Multipliers' of Attorney's Fees will act to bar all coverage for any punitive damages sought. Century reserves the right to deny coverage pursuant to this exclusion.

There may be other reasons why coverage does not apply. As such, this letter should not be construed as waiving any of Century's rights under the policy, or applicable law, to limit and/or deny coverage. Century reserves the right to rely on any additional facts, policy provisions, or

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other relevant information that may affect coverage to alter its position in the future. Similarly, Century does not waive its right to disclaim coverage for any other valid reason which may arise.

Century hereby specifically reserves the right to pursue a declaratory judgment action to seek an order finding no coverage. Additionally, we reserve the right to recoup any fees and expenses incurred in your defense if, in fact, no coverage is available for this claim.

IV. ASSIGNMENT OF DEFENSE

As Pastazio Pizza, Inc.'s insurance carrier, Century has assigned its defense to:

Roy Stacy Stacy & Conder, LLP 901 Main Street, Suite 6220 Dallas, TX 75202-3790 Phone: {214)7 48-5000 Fax: (214)748-1421 Email: stacy@stacyconder.com

We ask that Pastazios Pizza, Inc's representative(s) not discuss this matter with anyone except Mr. Stacy, someone from his law firm, or a representative from Century Insurance. We also request that Pastazios Pizza, Inc's representative(s) provide Mr. Stacy with all information and cooperation needed to fully defend it in this case. This may include, but is not limited to, the representative's assistance with responding to discovery requests and time needed to complete a deposition and attend trial, if necessary.

V. CONCLUSION

Century trusts that you understand its coverage position, but if you have any questions or concerns please do not hesitate to contact us. Further, if you believe we have omitted any relevant information, or are aware of, or become aware of, any additional information that you believe could affect Century's coverage position, please contact us immediately. Century reserves its right to consider additional information and reassess its coverage position should the circumstances so warrant.

Very truly yours,

CENTURY INSURANCE GROUP

/At- ~-t-?\:;..-"'V""---. '~l ,.\, ·1' ;1-. 0 J /I :JI ,'• '-\/ •/ \ I ' l, ) •....._ ___ /

'~- Shana M. Bereche Claims Attorney

SMB/jt

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Pastazios Pizza, Inc. May 24, 2013 Page 11 of 11

cc: Roy Stacy Stacy & Conder, LLP via email to: stacy@stacyconder.com

The Hutson Group, Inc. via email to: kim@thehutsongroup.com

RISC, Inc. via email to: learl@gorisc.com

- WARNING "Any person who knowingly and with intent to defraud any insurance company files an application for insurance or statement of claim containing any materially false information or conceals for the purpose of misleading, information concerning any fact material thereto commits a fraudulent insurance act, which is a crime and subjects such person to criminal and civil penalties." Revised 01/2013

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EXHIBIT F

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GRUBER I HURST I ELROD I JOHANSEN I HAIL I SHANK AttorneysiCounselors A Limited Li ability Partnership 1445 Ross Avenue Suite 2500 Dallas, Texas 75202-2711 214.855.6800 main 214.855.6808 fax Trey H. Crawford 214.855-6866 (direct) 214.855.6808 (facsimile) lcn!~Y.fQrQ@glletri?J&Qll!

June 11,2015

V IAE-MAIL: Y.W. Peter Chen David R. Dotson Chen Dotson, PLLC 10455 N. Central Expressway Suite 109-348 Dallas, Texas 75231 Email: peter@chendotson.com david@chendotson.com

Re: Jane Doe v. Pastazios Pizza, Inc., et al., Dallas County, TX Cause No. DC-13- 04564 Century's Insured - Pastazios Pizza, Inc. ("Pastazios") Century's Policy No. - CCP672836 Century's Claim No.- 01-088675

CONFIDENTIAL SETTLEMENT COMMUNICATION PER TEX. R. EVID. 408

Dear Mr. Chen and Mr. Dotson: Pursuant to TEX. R. EVID. 408 and FED. R. EVID. 408, please be advised that this letter is intended to be, and should only be treated as, an inadmissible and confidential settlement communication.

I write you on behalf of my client, Plaintiff Jane Doe (hereinafter, "Plaintiff'), in the above- entitled action (hereinafter, "Litigation"). As you know, Plaintiff has asserted various causes of action against Pastazios including, negligence, dram shop liability, premises liability, and false imprisonment. The factual and legal basis for these claims is more fully set forth in Plaintiff's Fourth Amended Petition that was filed in the Litigation on June 5, 2015. As you are aware Pastazios is an "insured" under the "Commercial Lines Policy, CCP672836" (hereinafter, "Policy") between Century and Pastazios. Plaintiff has been demanding tender of the policy limits under the Policy in exchange for a full and final release of all "insured(s)" under the Policy since as early as July 29, 2013. Specifically, Plaintiff"stowerized" Century and its insureds on July 29, 2013 and again on February 27, 2014. Plaintiff even invited Century to participate in the

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June I 1, 2015 Page - 2

mediation of this Litigation in Plaintiff's correspondence dated June 24, 2014. It is our understanding that Century has (wrongfully) denied coverage and even denied a defense of the claims filed against Pastazios in this case in a blatant and bad faith breach of Century's obligations under the Policy. Moreover, Century refused to even participate in the mediation of this Litigation, despite the fact that its insured's liability and coverage has been reasonably clear since the inception ofthe Litigation. This letter is Plaintiff's final attempt for Pastazios and its insurer to accept responsibility for Pastazios' negligent and grossly negligent acts and omissions that were a proximate cause of Plaintiff's significant damages and serious bodily injuries arising out ofthe events of April26, 2011. As has been previously communicated to Pastazios and its insurer, and as more fully set forth in Plaintiff's Fourth Amended Petition, liability against Century's insured(s) is reasonably clear and, indeed, liability has only become clearer as discovery in this Litigation has unfolded over the last several years. Moreover, Plaintiff's damages and serious bodily injuries arising out of Pastazios' negligent and grossly negligent acts and omissions far exceed the policy limits tmder the Policy. Pursuant to G.A. Stowers Furniture v. The American Indemnity Company, 15 S.W.2d 544 (Tex. Comm. App. 1929, holding approved) and TEX. TNS. CODE§ 54L060(a)(2)(A), Plaintiff once again demands payment ofthe policy limits under the Policy in exchange for a full and final release of liability of all claims and causes of action, known or unknown, asserted or yet to be asserted, by Plaintiff against Century's insw-ed(s), including Pastazios. This includes a full and final release from liability for any and all of Plaintiff's hospital or medical liens as a result of the incident that fonns the basis ofPlaintifPs claims in the Litigation. Tender of the policy limits under the Policy shall be made payable to "Gruber Hurst Elrod Johansen Hail Shank LLP, on behalf of Plaintiff Jane Doe in Case No. DC1 3-04564". This offer shall expire and automatically be revoked at 5:01p.m. CST on Monday, June 22, 2015. Iftender of the policy limits under the Policy is not received by this time, there will be no further settlement discussions and Plaintiff shall proceed to trial on July 7, 2015 and obtain a final judgment against Pastazios in an amount that far exceeds the policy limits under the Policy. If you have any questions or comments regarding Plaintiffs final offer, please do not hesitate to contact me directly attcrawford@ghetrial.com or (214) 855-6866.

Sincerely,

~ Trey H. Crawford

SUPP APP 1106 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 237 of 258 PageID 2807

Junell ,20 15 Page - 3

cc: VIA E-MAIL: Scott M. Seidel as Trustee for Pastazios Pizza, Inc., Creditor Trust c/o Davor Rukavina Thomas Berghman Munsch Hardt Kopf & Harr, P.C. Email: drukavina@mtmsch.com tberglunan@munsch.com

SUPP APP 1107 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 238 of 258 PageID 2808

EXHIBIT G

SUPP APP 1108 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 239 of 258 PageID 2809

$3<61-- 000352 Cause Number: DC-13-04564

JANE DOE, § IN THE DISTRICT COURT § Plaintiff, § § v. § 193nt JUDICIAL DISTRICT COURT § PASTAZIOS PIZZA, INC.; and § AJREDIN "DANNY" DEARI, § § Defendants. § DALLASCOUNTY,TEXAS

FINAL JUDGMENT

On July 7, 2015, the Court called this case to trial. Plaintiff JANE DOE ("Plaintiff')

appeared personally and through her attorneys of record and announced ready for trial.

Defendant PASTAZIOS PIZZA, INC. ("PASTAZIOS") appeared through its corporate

representative and attorneys of record and announced ready for trial. Defendant AJREDIN

"DANNY" DEAIU ("DEARI")~ individually, appeared personally and through his attorney of

record and announced ready for trial. All parties agreed to try this case to the bench in front of

Honorable Carl Ginsberg and all three parties proceeded accordingly.

On July 7, 2015, Plaintiff began her case in chief, introduced and admitted evidence to

the Court, and called various witnesses to testify. Pastazios and Deari defended the claims

brought by the Plaintiff against each Defendant respectively, presented counter--evidence. and

cross examined witnesses. On July 9, 2015, after a three-day adversarial trial, all parties rested,

the evidence was closed, and all parties presented closing arguments to the Court. At the close of

the evidence and closing arguments, Plaintitrs claims against Pastazios and Deari, respectively,

as well as Defendants' affinnative defenses were submitted to the Court for final determination

based on the evidence presented by all parties at trial.

FINAL JUDGMENT PAGE10F3

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Having heard the evidence and closing arguments from all counsel of record, the Court

announced its decision on the record.

It is~ therefore, ORDERED as follows~

L Plaintiff shall have and recover from PASTAZIOS and DEARI, jointly and

severally, the following actual damages, which the Court fmds are recoverable under Texas law

and are supported by the evidence presented at trial:

a. Physical pain and mental anguish (past) = $2,000,000.00

b. Physical pain and mental anguish (future) = $5,000,000.00

c. Loss of earnings capacity (past)= $500.00

d. Loss of earnings capacjty (future)= .$1,300,000.00

e. Disfigurement (past) = $250,000.00

f. Disfigurement (future)= $500,000.00

g. Physical Impairment (past)= $2,000,000.00

h. Physical Impairment (future)= $5,000,000.00

i. Reasonable and necessary medical care expenses (past) = $6,836.83

j. Reasonable and necessary medical care expenses (future)= $375,000.00

TOTAL= $16,432,336.83;

2 Plaintiff shall have and recover from PASTAZIOS and DEARI, jointly and

severally, pre~judgment interest on the above·referenced damages in the past only in the amount

of $478,804.59, calculated as simple. interest at the rate of 5% per annum from April24, 2013

until July 24, 2015 (821 days) plus an additional $583.20 per day in pre.judgment interest from

July 25y 2015 until the day before this Final Judgment is signed;

FINAL JUDGMENT PAGE20F3

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3. Plaintiff shall have and recover from PASTAZIOS $2,500~000.00 in exemplary

damages, which the Court finds are recoverable under Texas law and are supported by clear and

convincing evidence presented at trial;

4. Plaintiff shall have and recover from DEARI $2,500,000.00 in exemplary

damages, which the Court finds are recoverable under Texas law and are supported by clear and

5. Post-judgment interest shall be awarded on all sums awarded to Plaintiff at the

rate of 5% per annum, compounded annually, from and after the date of this Final Judgment until

it is satisfied in full;

6. Plaintiff shall have and recover all of her costs of court in the amount of

$6A84.28 from PASTAZIOS and DEARI,.jointly and severally; and

7. All writs and processes necessary or appropriate for the enforcement or collection

of this Final Judgment or the costs of court may be issued as necessary.

All relief not expressly granted herein is denied. This Final Judgment finally disposes of

all claims and all parties and is an appealable final judgment.

Signed this 2t-h day of July, 2015.

FINAL JUDGMENT PAGE30F3

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EXHIBIT H

SUPP APP 1112 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 243 of 258 PageID 2813

JANE DOE, § IN THE DISTRICT COURT § Plaintiff, § § v. § 193rd JUDICIAL DISTRICT COURT § PASTAZIOS PIZZA, INC.; and § AJREDIN "DANNY" DEARI, § § Defendants. § DALLASCOUNTY,TEXAS

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case was originally filed by Plaintiff on April 24, 2013. On July 7, 2015, the Court

called this case to trial. Plaintiff JANE DOE ("Plaintiff') appeared personally and through her

attorneys of record and announced ready for trial. Defendant PASTAZIOS PIZZA, INC.

("Pastazios") appeared through its corporate representative and attorneys of record and

announced ready for trial. Defendant AJREDJN "DANNY" DEARI ("Deari"), individually,

appeared personally and through his attorney of record and announced ready for trial. The parties

agreed to try this case to the bench in front of Honorable Carl Ginsberg and all three parties

proceeded accordingly.

On July 7, 2015, Plaintiff began her case in chief, introduced and admitted evidence to

the Court, and called various witnesses to testify. Pastazios and Deari vigorously defended the

claims brought by the Plaintiff against each Defendant, respectively, presented counter-evidence,

and cross examined witnesses. On July 9, 2015, after a three-day adversarial trial, all parties

rested, the evidence was closed, and closing arguments were presented by all parties. At the close

of the evidence and after closing arguments, Plaintiffs claims against Pastazios and Deari,

respectively, as well as Defendants' affirmative defenses were submitted to the Court for final

determination based on the evidence. Having heard the evidence and closing arguments from all

FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE 1 OF 16

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counsel of record, the Court hereby makes the following findings of fact and conclusions of law:

FINDINGS OFFACT

1. In April 2011, Plaintiff was a recent graduate from high school. Plaintiff excelled

in school academically, graduating as the valedictorian of her high school class. As of April 26,

2011, Plaintiff was an employee of Fox Sports Grill and was in the process of seeking another

job in the same industry that would provide her with more income.

2. On the afternoon of April 26, 2011, Plaintiff met Dritan Kreka at Back Nine Bar

and Grill to discuss potential job opportunities at his restaurant and bar. When she arrived at

Back Nine, Plaintiff was introduced to Deari, who was the owner of another restaurant-

Defendant Pastazios Pizza-located in Post Addison Circle. At the time, Deari was 49 years old

and Kreka was 33 years old. Shortly thereafter, Deari and Kreka convinced Plaintiff that the

three of them should move the conversation to Pastazios. At no point in time on April 26, 2011

was Plaintiff interviewing for or seeking a job at Pastazios. Prior to their arrival, Deari stopped

at a liquor store and purchased a bottle of 80-proof hard liquor (Crown Royal Black) and took it

with him and brought it into Pastazios.

3. Plaintiff was an invitee of Pastazios. Upon arriving at Pastazios at approximately

4:30pm, and without Plaintiff asking, Deari walked inside of Pastazios, grabbed three beers and

three shots of Crown Royal Black that bad been placed into 2-ounce plastic salad dressing cups

owned by Pastazios, placed one of the beers and one of the 2-ounce shots in front of Plaintiff,

and encouraged her to drink it. Prior to that day, Plaintiff had very little experience concerning

the effects of alcohol. At no point in time did anyone at Pastazios ask to see Plaintiffs

identification prior to providing her with Pastazios' alcoholic products. Throughout the course of

approximately the next two hours, Pastazios continued to provide Plaintiff with more alcoholic

FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGEl OF 16

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products from Pastazios. After serving Plaintiff with her second beer from Pastazios and third 2-

ounce shot of Crown Royal Black, Plaintiff became obviously intoxicated to the point where she

had trouble standing. In total, Plaintiff was provided with at least five 2-ounce shots of Crown

Royal Black and three beers.

4. While still at Pastazios, Plaintiff expressed concerns about her growing level of

intoxication and her inability to function normally. Prior to leaving Pastazios, Plaintiff was

intoxicated to the point where she was incapable of caring for or defending herself. Deari then

retrieved his vehicle from Pastazios• parking lot and pulled it out in front of Pastazios. Kreka

moved into the driver•s seat and the two men put Plaintiff in the back seat of the vehicle.

Plaintiff lost consciousness shortly thereafter.

5. Plaintiff's next memory is vomiting in what she believed to be a gas station

parking lot before losing consciousness again. When Plaintiff regained consciousness she was in

a hotel room located at 4900 Edwin Lewis Drive, Addison, Texas 75001 (less than a mile from

Pastazios) wherein she had been involuntarily disrobed and was actively being sexually assaulted

by Deari. Plaintiff repeatedly insisted that Deari stop the attack and get off of her, but he did not.

Deari stopped the sexual assault after multiple demands made by Plaintiff. Plaintiff locked

herself in the bathroom. Deari then left the hotel leaving his underwear behind at the scene.

6. Plaintiff called a friend to report what had happened and the Addison Police were

dispatched to the scene. Plaintiff was immediately transmitted to the hospital and underwent a

series of examinations, tests, and administered massive quantities of drugs.

7. Within a matter of days following the sexual assault, Plaintiff went back to the

hospital after she experienced severe pain in her pubic region. The doctors informed Plaintiff that

she had contracted herpes during the assault.

FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE3 OF 16

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8. To the extent necessary, each of these findings of fact shall be treated as a

conclusion of law.

CONCLUSIONS OF LAW

GENERAL NEGLIGENCE {DEFENDANT PASTAZIOS ONLY)

1. Pastazios owed Plaintiff various legal duties that Pastazios breached, thereby

proximately causing Plaintiff damages and serious bodily injuries. Based upon the evidence

presented at trial concerning the facts and circumstances surrounding the occurrence, the Court

hereby finds the following:

a. Based upon the special relationship between Plaintiff, an invitee to Pastazios' premises, Pastazios owed Plaintiff a duty pursuant to Restatement of Torts § 314A to protect her against unreasonable risks of harm, as well as to render aid and care until she could be cared for by others;

b. Pastazios owed Plaintiff a legal duty created under Restatement of Torts § 318 to exercise reasonable care so as to control the conduct of its customers and invitees from harming others, including Plaintiff;

c. Pastazios had the right, ability and responsibility to control the conduct occurring on its premises, knew or had reason to know of the necessity of taking appropriate action to prevent foreseeable harm to its invitees, including Plaintiff, had the opportunity to prevent such foreseeable harm, yet consciously chose not to intervene;

d. Pastazios owed a legal duty to Plaintiff pursuant to Restatement of Torts § 319 to prevent tortfeasors from committing torts on its premises which it had the right and ability to control and prevent;

e. Pastazios owed Plaintiff a legal duty to exercise reasonable care so as to control its employees, representatives and agents' actions and inactions while on Pastazios' premises to prevent them from causing bodily injury or otherwise harming others, including Plaintiff;

f. Pastazios owed Plaintiff a legal duty to follow the applicable legal standard of care in maintaining its premises in a safe and secure condition and to inspect the premises to ensure the safety of its occupants from foreseeable risks of harm;

g. .Pastazios owed Plaintiff a legal duty to take reasonable steps to protect Plaintiff from unreasonable and foreseeable risks of harm-including risks of harm from

FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE40F 16

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criminal or grossly negligent acts of third parties;

h. Pastazios owed Plaintiff a duty not to injure Plaintiff in a grossly negligent manner or allow another to do so on Pastazios• premises when it knew, or reasonably should have known of an unreasonable risk of harm to its invitees, including Plaintiff;

t. Pastazios owed Plaintiff a legal duty to treat its invitees, including Plaintiff, in a manner that would not unreasonably subject her to physical or mental bodily injury, or other unreasonable and foreseeable risks of harm; and

j. In light of the risks of unreasonable harm present on April 26, 2011, the foreseeability of such risks of harm, and the likelihood of bodily injury to Plaintiff--weighed against the social utility of Pastazios' actions and inactions and the minimal burden of Pastazios in guarding against such foreseeable and unreasonable risks of harm, Pastazios owed Plaintiff a legal duty to use ordinary care in the hiring of competent employees, a duty to reasonably train its employees, and a duty to use ordinary care in supervising its employees.

2. On April 26, 2011, Pastazios breached each one of the duties set forth in

Paragraph 1, above. Further, on April 26, 2011, Pastazios negligently put Plaintiff in harm's

way; Pastazios negligently allowed tortfeasors to use Pastazios• premises and property as

instrumentalities in committing torts inflicted upon Plaintiff causing her serious bodily injury;

Pastazios failed to exercise ordinary care by allowing third parties to furnish Plaintiff with

excessive amounts of alcohol to the point where she was virtually unconscious and lacking the

ability to protect herself from unreasonable and foreseeable risks of serious bodily injury;

Pastazios failed to exercise ordinary care by negligently monitoring agents and third-parties on

its premises; Pastazios failed to exercise ordinary care by not taking reasonable steps to render

aid and care for Plaintiff until such time as she could reasonably be expected to be cared for by

herself or by others; Pastazios failed to exercise ordinary by not contacting a taxi, a friend, or

Plaintiffs parents who would be able to ensure that Plaintiff was taken out of harm's way when

she was clearly incapable of doing so herself due to the state Pastazios allowed her to be in prior

to leaving the premises; Pastazios failed to exercise ordinary care by negligently monitoring the

FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE 5 OF 16

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premises to ensure her safety and security when, under the circumstances existing at the time,

she was clearly within the zone of foreseeable and unreasonable risks of harm; Pastazios failed to

exercise ordinary care by negligently monitoring and controlling the conduct of its other

customers and invitees while they were on Pastazios' premises and/or under Pastazios' control,

and knew or had reason to know of the necessity of taking appropriate action to prevent

foreseeable and unreasonable risks of harm to Plaintiff; Pastazios failed to exercise ordinary care

by not controlling its employees, representatives and agents' actions and inactions while on

Pastazios' premises (regardless of whether said individuals were acting in the course and scope

of their employment with Pastazios) to prevent them from causing bodily injury to others,

including Plaintiff, when such risks were readily apparent under the circumstances existing at the

time; Pastazios failed to exercise ordinary care by not maintaining its premises in a safe and

secure condition and by not exercising ordinary care in inspecting the premises to ensure the

safety of its occupants, including Plaintiff, from foreseeable risks of harm; Pastazios failed to

exercise ordinary care by not taking reasonable steps to protect its invitees, including Plaintiff,

from unreasonable and foreseeable risks of harm-including risks of harm from the criminal or

grossly negligent acts of third parties; Pastazios failed to exercise ordinary care by not treating its

invitees, including Plaintiff, in a manner that would not unreasonably subject her to physical or

mental bodily injury, or other unreasonable and foreseeable risks of harm; and Pastazios failed to

exercise ordinary care by not hiring competent employees, by not reasonably training them, and

by not reasonably supervising them.

3. Pastazios' breaches set forth in Paragraph 2 above constitute gross negligence on

the part of Pastazios because, when viewed objectively from the standpoint of Pastazios at the

time of their occurrence, involved an extreme degree of risk, considering the probability and

FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE60F16

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magnitude of the potential harm to others, including Plaintiff, and of which Pastazios had actual,

subjective awareness of the risk involved, but nevertheless proceeded with conscious

indifference to the rights, safety, or welfare of others, including Plaintiff.

4. Pastazios' breaches of its legal duties set forth in Paragraphs 1-2 above were a

proximate cause of serious bodily injuries to Plaintiff and the damages set forth in Paragraph 31,

below. Further, but for such breaches of Pastazios' legal duties, Plaintiff never would have

suffered the serious bodily injuries and damages set forth in Paragraph 31, below. Additionally,

Pastazios' breaches set forth in Paragraphs 1-2, above, were a substantial factor in causing

Plaintiff's damages and bodily injuries, without which such damages and bodily injury would not

have occurred. Under the circumstances that existed at the time, a restaurant operator of ordinary

prudence would have reasonably anticipated the dangers that Pastazios' negligent acts and

omissions created for others, including Plaintiff, as well as the general character of the damages

and bodily injuries Plaintiff suffered as a proximate cause of said negligence. As such, Plaintiffs

bodily injuries and the damages found in Paragraph 31 below, all arose out of Pastazios'

negligence on April 26, 2011.

5. Any alleged intentional or negligent acts of any other person or Defendant that

may have caused or contributed to cause Plaintiff's injuries did not act to extinguish Pastazios'

liability for its own negligence, do not constitute an "outside agency," and are not a new and

independent cause that would extinguish Pastazios' liability. Any purported acts or intervening

forces Pastazios alleged to have been a "new and independent cause" were foreseeable to

Pastazios under the circumstances that existed at the time and, as such, the chain of causation

flowing from Pastazios' negligence was continuous and unbroken.

6. All ofPiaintiffs bodily injuries and the damages awarded in Paragraph 31 below,

FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE 7 OF 16

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were a proximate cause and arose out of Pastazios' breaches of its legal duties owed to

Plaintiff-- without which, Plaintiff never would have been injured.

DRAM SHOP LIABILITY (DEFENDANT PASTAZIOS ONLY)

7. As of April 26, 2011, Pastazios held a valid Texas Alcoholic Beverage

Commission license for the sale, service or provision of alcoholic goods or products to its

customers and invitees.

8. On April 26, 2011, Pastazios provided alcohol products to Plaintiff on Pastazios'

premises while it was apparent to Pastazios that Plaintiff was obviously intoxicated. All of the

alcoholic products provided to and consumed by Plaintiff, on April 26, 20 11, occurred on

Pastazios' premises and were products that were sold, handled, distributed and/or disposed of by

Pastazios to the Plaintiff. As such, Pastazios was a "provider" pursuant to TEXAS ALCOHOLIC

BEVERAGE CODE § 2.02(b).

9. On April 26, 20 11, Pastazios sold, served, provided, or otherwise distributed

multiple alcoholic products to Plaintiff when, at the time, it was readily apparent to Pastazios that

Plaintiff was already obviously intoxicated to the extent that it was readily apparent that Plaintiff

presented a clear danger to herself and others.

10. Plaintiff's intoxication-as a result of the provision and/or distribution of

alcoholic products by Pastazios-was a proximate cause of Plaintiffs bodily injuries and the

damages awarded in Paragraph 31 below. But for Plaintiffs intoxication due to the negligence of

Pastazios, Plaintiff would not have suffered the serious bodily injuries and damages awarded in

Paragraph 31 below. Pastazios' provision and/or distribution of alcoholic products to Plaintiff

while she was obviously intoxicated was a substantial factor in bringing about the damages and

bodily injuries that Plaintiff sustained and without which no harm would have been incurred by

FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE80F16

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Plaintiff. A restaurant of ordinary prudence should have anticipated the dangers that its

negligent acts created for others, including Plaintiff, and would reasonably anticipate the general

character of the bodily injury suffered by Plaintiff that arose out of such negligence. As such, on

April 26, 20 II, Pastazios violated Section 2.02(b) of the TEXAS ALCOHOL & BEVERAGE CODE,

and as a proximate cause of Pastazios' violation, Plaintiff sustained bodily injuries away from

the premises and the damages awarded in Paragraph 31, below.

11. Any alleged acts of any other person or other Defendant do not extinguish or

diminish any of Pastazios' liability for its own negligence, do not constitute an "outside agency,"

and are not a new and independent cause that would extinguish or diminish Pastazios' liability.

Any purported acts or intervening forces Pastazios alleges to be a "new and independent cause"

do not extinguish or diminish Pastazios' liability because such acts were foreseeable to Pastazios

under the circumstances that existed at the time, and the chain of causation flowing from

Pastazios' negligence was continuous and unbroken.

12. All of Plaintiffs bodily injuries and the damages awarded in Paragraph 31 below,

were proximately caused by, and arose out of, Pastazios' violations of Section 2.02(b) of the

TEXAS ALCOHOL & BEVERAGE CODE without which, Plaintiff never would have been injured.

NEGLIGENCE- PREMISES LIABILITY (DEFENDANT PASTAZIOS ONLY)

13. On April 26, 2011, Pastazios exercised actual and contractual control over the

premises, including the patio area where Plaintiff was sitting on the occurrence in question.

Plaintiff was not on a job interview with Pastazios at the time of the occurrence in question, but

rather was an invitee of Pastazios. As such, Pastazios owed Plaintiff a legal duty to avoid risks of

harm that are unreasonable and foreseeable. Pastazios also owed Plaintiff a legal duty to inspect

and make safe any dangerous conditions or situations on Pastazios' premises or give Plaintiff an

FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE90F 16

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adequate warning of the dangerous conditions or situations. Based on the frequency, similarity,

proximity, recency, and publicity of prior crimes in the immediate vicinity of Pastazios, as well

as the general nature and characteristics of the premises and the surrounding circumstances, the

general nature of the harm inflicted on Plaintiff on April 26, 20 II was reasonably foreseeable to

Pastazios.

14. Pastazios breached its legal duties owed to Plaintiff set forth in Paragraph 13

above, by failing to exercise ordinary care by, and by failing to take any reasonable steps to

protect its invitees, including Plaintiff, from unreasonable and foreseeable risks of harm,

including risks of harm from the criminal or grossly negligent acts of third parties.

15. The breaches set forth in Paragraph 14 above, constitute gross negligence on the

part of Pastazios because, when viewed objectively from the standpoint of Pastazios at the time

of their occurrence, involved an extreme degree of risk, considering the probability and

magnitude of the potential harm to others, including Plaintiff, and of which Pastazios had actual,

subjective awareness of the risk involved, but nevertheless proceeded with conscious

indifference to the rights, safety, or welfare of others, including Plaintiff.

16. Pastazios' breaches of these legal duties were a proximate cause of serious bodily

injuries and damages to Plaintiff in the amounts awarded in Paragraph 31 below. But for these

breaches, Plaintiff never would have suffered serious bodily injuries and never would have

sustained the damages awarded to Plaintiff in Paragraph 31 below. Pastazios' acts and omissions

were a substantial factor in causing Plaintiffs serious bodily injuries and the damages awarded

to Plaintiff herein. Under the circumstances that existed at the time, a restaurant of ordinary

prudence would have reasonably anticipated the dangers Pastazios' negligent acts and omissions

created for others, including Plaintiff, as well as the general character of the damages and bodily

FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE 10 OF 16

SUPP APP 1122 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 253 of 258 PageID 2823

injuries Plaintiff suffered as a result of such negligence. As such, Plaintiff's bodily injuries and

the damages awarded to Plaintiff in Paragraph 31 below all arose out Pastazios' negligent acts

and omissions.

17. Any alleged acts of any other person or other Defendant do not extinguish or

diminish any of Pastazios' liability for its own negligence for premises liability, do not constitute

an "outside agency," and are not a new and independent cause that would extinguish or diminish

Pastazios' liability. Any purported acts or intervening forces Pastazios alleges to be a "new and

independent cause" do not extinguish or diminish Pastazios' premises liability because such acts

were foreseeable to Pastazios under the circumstances that existed at the time, and the chain of

causation flowing from Pastazios' negligence was continuous and unbroken.

FALSE IMPRISONMENT/DETENTION (DEFENDANT PASTAZIOS ONLY)

18. Without legal authority or justification, Pastazios negligently detained and/or

imprisoned Plaintiff without Plaintiff's consent and without the authority of law. Pastazios

accomplished the detainment and/or imprisonment of Plaintiff by virtue of providing her with

intoxicating products handled and/or distributed by Pastazios to Plaintiff to the point where

Plaintiff was virtually unconscious and/or incapable of freely moving herself from one place to

another. Pastazios' detention of Plaintiff was without Plaintiffs consent, and placed her in a

position where she could not exercise her will in going where she could otherwise lawfully go.

Pastazios' actions, combined with Plaintiff's vulnerabilities and the circumstances surrounding

these events, had the effect of negligently detaining Plaintiff in a manner that proximately caused

Plaintiff to suffer serious bodily injuries and the damages awarded in Paragraph 31 below, all of

which arose out of such detainment.

19. The false imprisonment and detainment committed by Pastazios was a proximate

FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE 11 OF 16

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cause of the serious bodily injury suffered by Plaintiff as well as all of the damages awarded to

Plaintiff in Paragraph 31 below. But for Pastazios' false imprisonment and detainment, Plaintiff

never would have sustained series bodily injuries and the damages awarded in Paragraph 31.

20. Any alleged acts of any other person or other Defendant do not extinguish or

diminish any of Pastazios' liability for false imprisonment and detainment, do not constitute an

"outside agency," and are not a new and independent cause that would extinguish or diminish

Pastazios' liability. Any purported acts or intervening forces Pastazios alleges to be a "new and

independent cause" do not extinguish or diminish Pastazios' liability for false imprisonment and

detainment because such acts were foreseeable to Pastazios under the circumstances that existed

at the time, and the chain of causation flowing from Pastazios' false imprisonment and

detainment was continuous and unbroken.

AsSAULT- THREAT OF BODILY INJURY {DEFENDANT DEARI, INDIVIDUALLY, ONLY)

21. On April 26, 20 II, Deari, individually, and while acting outside of the course and

scope of his employment with Pastazios, intentionally and/or knowingly threatened Plaintiff with

imminent bodily injury. Deari's threat of imminent bodily injury to Plaintiff caused Plaintiff to

be apprehensive, which was a foreseeable result ofDeari's actions.

22. Deari is liable for the threat of bodily injury committed against Plaintiff because

Deari committed the tortious acts himself and did so while he was not acting in the course and

scope of his employment with Pastazios, and while Deari was not acting in fulfillment of any of

his duties as an executive, officer or director of Pastazios.

23. Deari's threat of imminent bodily injury to Plaintiff was a cause of the damages

awarded to Plaintiff herein.

24. Deari's liability for assault was not a result of any actions or omissions made at

FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE 12 OF 16

SUPP APP 1124 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 255 of 258 PageID 2825

the direction of Pastazios, but rather resulted from Deari 's individual conduct that was separate

and distinct from Pastazios' negligent conduct.

ASSAULT (BATTERY)-BODILY INJURY AND OFFENSIVE CONTACT (DEFENDANT DEARI, INDIVIDUALLY, ONLY)

25. On April26, 2011, Deari, individually, and while acting outside ofthe course and

scope of his employment with Pastazios, committed an aggravated assault of Plaintiff away from

Pastazios' premises in violation of TEX. PENAL CODE §§ 22.0 1. Deari, individually, intentionally,

knowingly, and/or recklessly made physical contact with Plaintiffs person causing bodily

injury-that is, physical pain, sickness, or impairments of Plaintiffs physical condition-and

Plaintiff did not, and could not, legally consent to the harmful physical contact.

26. Deari's violation of TEX. PENAL CODE §§ 22.01 was a cause of the damages

27. Deari violated TEX. PENAL CODE §§ 22.01 in his individual capacity while not

acting in the course and scope of his employment with Pastazios, and while not acting in

fulfillment of any of his duties as an executive, officer or director of Pastazios. Deari's liability

for assault and battery was not a result of any actions or omissions made at the direction of

Pastazios, but rather resulted from Deari's individual conduct that was separate and distinct from

Pastazios' negligent conduct.

SEXUAL ASSAULT- TEX. PENAL CODE§ 22.011 (DEFENDANT DEARI, INDIVIDUALLY, ONLY)

28. On April26, 2011, Deari, individually, and while acting outside of the course and

scope of his employment with Pastazios, sexually assaulted Plaintiff away from Pastazios'

premises in violation of TEX. PENAL CODE §§ 22.011. On April 26, 2011, Deari, individually,

intentionally, knowingly, and/or recklessly sexually assaulted Plaintiff, and Plaintiff did not, and

could not, legally consent to the sexual contact. Deari, individually, did so when Plaintiff had

FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE 13 OF 16

SUPP APP 1125 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 256 of 258 PageID 2826

not consented and when Deari knew Plaintiff was unconscious or physically unable to resist, and

did so while Deari knew Plaintiff was unaware that the sexual assault was occurring.

29. Deari's violation of TEX. PENAL CODE §§ 22.011 was a cause of the damages

30. Deari violated TEX. PENAL CODE §§ 22.011 in his individual capacity while not

acting in the course and scope of his employment with Pastazios, and while not acting in

fulfillment of any of his duties as an executive, officer or director of Pastazios. Deari's liability

for sexual assault was not a result of any actions or omissions made at the direction of Pastazios,

but rather resulted from Deari's individual conduct that was separate and distinct from Pastazios'

negligent conduct found above.

DAMAGES (EXCLUDING COURT COSTS AND PRE-JUDGMENT INTEREST)

31. Plaintiff sustained each of the following categories and amounts of damages,

which are recoverable under Texas law and are supported by a preponderance of the evidence:

a. Physical pain and mental anguish (past)= $2,000,000.00

b. Physical pain and mental anguish (future)= $5,000,000.00

c. Loss of earnings capacity (past) = $500.00

d. Loss of earnings capacity (future)= $1,300,000.00

f. Disfigurement (future) = $500,000.00

g. Physical Impairment (past) = $2,000,000.00

1. Reasonable and necessary medical care expenses (past) = $6,836.83

J. Reasonable and necessary medical care expenses (future) = $375,000.00

FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE 140F 16

SUPP APP 1126 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 257 of 258 PageID 2827

TOTAL= $16,432,336.83

32. Each category and amount of damage set forth in Paragraph 31 above is

recoverable by Plaintiff for each and every cause of action that is the subject of these Findings of

Facts and Conclusions of Law. Plaintiff is entitled to recover from Pastazios and Deari, jointly

and severally, each category and each amount of the actual damages set forth in Paragraph 31.

33. In addition to the damages set forth in Paragraph 31 above, Plaintiff shall have

and recover from Defendant Pastazios $2,500,000.00 in exemplary damages which the Court

finds is recoverable under Texas law and is supported by clear and convincing evidence

presented at trial.

34. In addition to the damages set forth in Paragraph 31 above, Plaintiff shall have

and recover from Defendant Deari $2,500,000.00 in exemplary damages which the Court fmds is

recoverable under Texas law and is supported by clear and convincing evidence presented at

trial;

PRE-JUDGMENT INTEREST, POST JUDGMENT INTEREST, AND COURT COSTS

35. Plaintiff is entitled to recover from Defendants, jointly and severally, pre-

judgment interest on the above referenced damages in the past in the amount of $478,804.59,

calculated as simple interest at a rate of five-percent (5%) per annum from April 24, 2013

through July 24, 2015 (821 days) plus an additional $583.20 per day in pre-judgment interest

from July 25,2015 until the day before this Final Judgment is signed.

36. Plaintiff is entitled to recover post judgment interest from Defendants, jointly and

severally, on all sums at the rate of 5% per annum, compounded annually, from and after the date

the Final Judgment is signed until it is satisfied in full.

FINDINGS OF FACT AND CONCLUSIONS OF LAW PAGE150F16

SUPP APP 1127 Case 3:13-cv-02553-P Document 64 Filed 10/31/15 Page 258 of 258 PageID 2828

37. Plaintiff shall have and recover all of her costs of court from Defendants, jointly

and severally.

38. To the extent necessary, each of these conclusions of law shall be treated as a

fmding of fact.

Signed on this the 7m day of August, 2015.

FINDINGS OF FACf AND CONCLUSIONS OF LAW PAGE160F16

SUPP APP 1128 Exhibit 6

SUPP APP 1129 U.S. Bankruptcy Court- Northern District of Texas Page 1 of 11

REFORM, EXHIBITS

U.S. Bankruptcy Court Northern District of Texas (Dallas) Bankruptcy Petition #: 14-34323-hdh13 Date filed: 09/02/2014 Assigned to: Harlin DeWayne Hale Date Plan Confirmed: 03/09/2015 Chapter 13 Plan confirmed: 03/09/2015 Voluntary 341 meeting: 10/20/2014 Asset Deadline for filing claims: 01120/2015

Debtor represented by Joyce W. Lindauer Danny Deari Joyce W. Lindauer Attorney, 15750 Spectrum Drive #2211 PLLC Addison, TX 75001 12720 Hillcrest Road DALLAS-TX Suite 625 SSN I ITIN: xxx-xx-2928 Dallas, TX 75230 aka Ajredin Deari (972) 503-4033 Fax : (972) 503-4034 Email: joyce@joycelindauer.com TERMINATED: 11/03/2014

Gregory Wayne Mitchell The Mitchell Law Firm, L.P. 12720 Hillcrest Road Suite 625 Dallas, TX 75230 972-463-8417 Fax: 972-432-7540 Email: greg@mitchellps.com

Trustee represented by Thomas Dwain Powers4 Thomas Powers 125 E. John Carpenter Frwy., 125 E. John Carpenter Frwy., Suite 1100 Suite 1100 Irving, TX 75062-2288 Irving, TX 75062-2288 214-855-9200 (214) 855-9200 Fax: (214) 965-0758 Email: cmecf@dallasch 13 .com

U.S. Trustee United States Trustee 1100 Commerce Street Room 976 Dallas, TX 75242 214-767-8967

I Filing Date Docket Text

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09/02/2014 l (13 pgs) Chapter 13 voluntary petition. Fee Amount $310. Filed by Danny Deari (Lindauer, Joyce)

J (1 pg) Certificate of credit counseling dated 8/31/2014 . Filed by Debtor Danny Deari. 09/02/2014 (Lindauer, Joyce)

.1 (2 pgs) First Meeting of Creditors with 341(a) meeting to be held on 10/20/2014 at 09/02/2014 08:30AM at Dallas Ch13 Ofc. Proof of Claim due by 01/20/2015. (Admin,) (autoassign)

.2. (2 pgs) Notice of deficiency. Schedule A due 9/16/2014. Schedule B due 9/16/2014. Schedule C due 9/16/2014. ScheduleD due 9/16/2014. Schedule E due 9/16/2014. Schedule F due 9/16/2014. Schedule G due 9/16/2014. Schedule H due 9/16/2014. Schedule I due 9/16/2014. Schedule J due 9/16/2014. Summary of Schedules and Statistical Summary of Certain Liabilities and Related Data 28 USC sec. 159 due 9/16/2014. Statement of Financial Affairs due 9/16/2014.Statement oflncome/Means Test Form due 9/16/2014. Chapter 13 Plan due by 9/16/2014. Employee Income Records due 09/03/2014 9116/2014. (Rueter, Karyn)

Receipt of filing fee for Voluntary petition (chapter 13)(14-34323-13) [misc,volp13a] 09/03/2014 ( 310.00). Receipt number 19561843, amount$ 310.00 (re: Doc# l). (U.S. Treasury)

§. (3 pgs) BNC certificate of mailing. (RE: related document(s).2. Notice of deficiency. Schedule A due 9/16/2014. Schedule B due 9/16/2014. Schedule C due 9/16/2014. ScheduleD due 9/16/2014. Schedule E due 9/16/2014. Schedule F due 9/16/2014. Schedule G due 9/16/2014. Schedule H due 9/16/2014. Schedule I due 9/16/2014. Schedule J due 9/16/2014. Summary of Schedules and Statistical Summary of Certain Liabilities and Related Data 28 USC sec. 159 due 9/16/2014. Statement of Financial Affairs due 9/16/2014.Statement oflncome/Means Test Form due 9/16/2014. Chapter 13 Plan due by 9/16/2014. Employee Income Records due 9/16/2014.) No. ofNotices: 1. 09/05/2014 Notice Date 09/05/2014. (Admin.)

1 (3 pgs) BNC certificate ofmailing- meeting of creditors. (RE: related document(sH First Meeting of Creditors with 341(a) meeting to be held on 10/20/2014 at 08:30AM at Dallas Ch13 Ofc. ProofofClaim due by 01/20/2015. (Admin,) (autoassign)) No. of 09/05/2014 Notices: 11. Notice Date 09/05/2014. (Admin.)

~ (2 pgs) Notice of Appearance and Request for Notice for Jeffrey R. Erler and Laura M 09/08/2014 Fontaine by Laura Marie Fontaine filed by Creditor Jane Doe. (Fontaine, Laura)

.2 (159 pgs; 16 docs) Motion for relief from stay Fee amount $176, Filed by Creditor Jane Doe Objections due by 9/23/2014. (Attachments:# l Exhibit 1 #~Exhibit 2 # J Exhibit 3 # .1 Exhibit 4 # .2. Exhibit 5 Part 1 of 2 # §. Exhibit 5 Part 2 of 2 # 1 Exhibit 6 # ~ Exhibit 7 # .2 Exhibit 8 # lQ Exhibit 9 # ll Exhibit 10 # 11. Exhibit 11 # ll Exhibit 12 # H 09/08/2014 Exhibit 13 # 1..2. Exhibit 14) (Fontaine, Laura)

lQ (8 pgs; 2 docs) Motion for expedited hearing(related documents .2 Motion for relief from stay) Filed by Creditor Jane Doe (Attachments:# l Exhibit A- Declaration of Eric 09/08/2014 Policastro) (Fontaine, Laura)

Receipt of filing fee for Motion for relief from stay(14-34323-hdh13) [motion,mrlfsty] 09/08/2014 ( 176.00). Receipt number 19584606, amount$ 176.00 (re: Doc# .2). (U.S. Treasury)

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09/09/2014 11 (3 pgs) Notice of hearing filed by Creditor Jane Doe (RE: related document(s)2 Motion for relief from stay Fee amount $176, Filed by Creditor Jane Doe Objections due by 9/23/2014. (Attachments:# 1 Exhibit 1 # 2 Exhibit 2 # 3 Exhibit 3 # 4 Exhibit 4 # 5 Exhibit 5 Part 1 of 2 # 6 Exhibit 5 Part 2 of 2 # 7 Exhibit 6 # 8 Exhibit 7 # 9 Exhibit 8 # 10 Exhibit 9 # 11 Exhibit 10 # 12 Exhibit 11 # 13 Exhibit 12 # 14 Exhibit 13 # 15 Exhibit 14)). Hearing to be held on 9/22/2014 at 09:30AM Dallas Judge Hale Ctrm for 2, (Fontaine, Laura)

ll (1 pg) Order granting motion for expedited hearing (Related Doc# J.Q)(document set for hearing: 2 Motion for relief from stay) Entered on 9/11/2014. Hearing to be held on 09/1112014 9/22/2014 at 09:30AM Dallas Judge Hale Ctrm for 2. (Rielly, Bill)

ll (2 pgs) BNC certificate of mailing- PDF document. (RE: related document(s)12 Order granting motion for expedited hearing (Related DocJ.Q)(document set for hearing: 2 Motion for relief from stay) Entered on 9/11/2014. Hearing to be held on 9/22/2014 at 09:30AM Dallas Judge Hale Ctrm for 2.,) No. ofNotices: 1. Notice Date 09/13/2014. 09/13/2014 (Admin.)

.H. (4 pgs; 2 docs) Motion to extend time to file schedules or new case deficiencies, excluding matrix Filed by Debtor Danny Deari (Attachments: # 1 Matrix) (Lindauer, 09/16/2014 Joyce)

li (3 pgs) Witness and Exhibit List filed by Creditor Jane Doe (RE: related document(s) 09/17/2014 2 Motion for relief from stay Fee amount $176,). (Erler, Jeffrey) .!§. (2 pgs) Witness and Exhibit List filed by Debtor Danny Deari (RE: related document 09/17/2014 (s)2 Motion for relief from stay Fee amount $176,). (Lindauer, Joyce) l1 (18 pgs) Objection to (related document(s): 2 Motion for relief from stay Fee amount $176, filed by Creditor Jane Doe)/Debtor's Objection to Motion for Relieffrom the 09/19/2014 Automatic Stay filed by Debtor Danny Deari. (Lindauer, Joyce)

_lli (1 pg) Order granting .H. Motion to extend time to file deficient documents. (Re: related document(s) .2. Notice of deficiency) Chapter 13 Plan due by 9/26/2014 for .2,, Employee Income Records due 9/26/2014 for .2., Schedule A due 9/26/2014 for .2., Schedule B due 9/26/2014 for .2,, Schedule C due 9/26/2014 for .2,, Schedule D due 9/26/2014 for .2,, Schedule E due 9/26/2014 for .2,, Schedule F due 9/26/2014 for .2,, Schedule G due 9/26/2014 for .2,, Schedule H due 9/26/2014 for .2,, Schedule I due 9/26/2014 for .2,, Statement of Income/Means Test Form due 9/26/2014 for .2,, Statement of Financial Affairs due 9/26/2014 for .2,, Summary of Schedules and Statistical Summary of Certain Liabilities and Related Data 28 USC sec. 159 due 9/26/2014 for .2,, Entered on 9/19/2014. (Tello, 09/19/2014 Chris)

09/21/2014 12. (2 pgs) BNC certificate of mailing- PDF document. (RE: related document(s)ll. Order granting .H. Motion to extend time to file deficient documents. (Re: related document(s) .2. Notice of deficiency) Chapter 13 Plan due by 9/26/2014 for .2., Employee Income Records due 9/26/2014 for .2,, Schedule A due 9/26/2014 for .2,, Schedule B due 9/26/2014 for .2,, Schedule C due 9/26/2014 for .2,, ScheduleD due 9/26/2014 for .2,, Schedule E due 9/26/20 14 for .2,, Schedule F due 9/26/2014 for .2., Schedule G due 9/26/2014 for .2,, Schedule H due 9/26/2014 for .2,, Schedule I due 9/26/2014 for .2,, Statement of Income/Means Test Form due 9/26/2014 for .2,, Statement of Financial Affairs due 9/26/20 14 for .2,, Summary of Schedules and Statistical Summary of Certain Liabilities

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and Related Data 28 USC sec. 159 due 9/26/2014 for .2_, Entered on 9/19/2014.) No. of Notices: 1. Notice Date 09/21/2014. (Admin.)

20 (1 pg) Court admitted exhibits date of hearing 9/22/2014. CREDITOR JANE DOE EXHIBITS EXHIBITS 1-9, and 11-16 ADMITTED (EXHIBITS 3 AND 5 NOT FOR THE TRUTH OF THE MATTERS ASSERTED THEREIN.) (RE: related document(s).2. 09/22/2014 Motion for relief from stay Filed by Creditor Jane Doe.) (Whittington, Nicole)

Hearing held on 9/22/2014. (RE: related document(s)2. Motion for relief from stay Fee amount $176, Filed by Creditor Jane Doe ADVISEMENT (Baird, Dennis) (Entered: 09/22/2014 09/24/2014)

ll (2 pgs) Order granting motion for relief from stay by Creditor Jane Doe (related 09/23/2014 document# 2.) Entered on 9/23/2014. (Tello, Chris)

22 Request for transcript regarding a hearing held on 9/22/2014. The requested tum- 09/24/2014 around time is ordinary 30 day (Baird, Dennis)

23 (3 pgs) BNC certificate of mailing- PDF document. (RE: related document(s).ll Order granting motion for relief from stay by Creditor Jane Doe (related document 2.) 09/25/2014 Entered on 9/23/2014.) No. ofNotices: 1. Notice Date 09/25/2014. (Admin.)

24 (20 pgs) Schedules A through J. Filed by Debtor Danny Deari (RE: related document 09/26/2014 (s)~ Notice of deficiency). (Lindauer, Joyce)

25 (7 pgs) Statement of financial affairs. Filed by Debtor Danny Deari (RE: related 09/26/2014 document(s).2. Notice of deficiency). (Lindauer, Joyce)

26 (8 pgs) Chapter 13 statement of current monthly and disposable income . Filed by 09/26/2014 Debtor Danny Deari (RE: related document(s).2. Notice of deficiency). (Lindauer, Joyce)

27 (13 pgs) Chapter 13 plan and motion for valuation dated: 9/2/2014 for 60 months with 09/26/2014 objection to claims filed by Debtor Danny Deari. (Lindauer, Joyce)

28 (2 pgs) Employee income records. Debtor is filing copies of pay stubs from 60 days prior to petition date. Filed by Debtor Danny Deari (RE: related document(s).2. Notice of 09/29/2014 deficiency). (Lindauer, Joyce)

29 (5 pgs) Exhibit D with Amended petition filed for the following: To Include Alias and Pending Bankruptcy for Pastazio's Pizza . filed by Debtor Danny Deari (RE: related 10/02/2014 document(s)l Voluntary petition (chapter 13)). (Lindauer, Joyce)

30 (1 pg) Disclosure of compensation of attorney for debtor (Amended). Filed by Debtor 10/03/2014 Danny Deari. (Lindauer, Joyce)

Jl (1 pg) Trustee's Notice of intent to dismiss case for failure to make the first payment 10/09/2014 due to the Trustee (Powers, Thomas)

10/14/2014 32 (2 pgs) INCORRECT ENTRY: WRONG EVENT CODE USED. SEE DOC. 35.Support/supplemental document(Summary ofSchedules) filed by Debtor Danny Deari

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(RE: related document(s).2. Notice of deficiency, 24 Schedules). (Lindauer, Joyce) MODIFIED text on 10/15/2014 (Rueter, Karyn).

33 (2 pgs) Trustee's Notice of hearing on debtor's final chapter 13 plan with Certificate of Service Pre-Hearing conference set for 11/25/2014 at 8:30A.M at 125 E. John Carpenter 10/14/2014 Frwy, Suite 1100, Irving, Texas (Powers, Thomas)

34 (82 pgs) Transcript regarding Hearing Held 09/22114 RE: DEFENDANT'S MOTION FOR RELIEF FROM STAY. THIS TRANSCRIPT WILL BE MADE ELECTRON!CALLY AVAILABLE TO THE GENERAL PUBLIC 90 DAYS AFTER THE DATE OF FILING. TRANSCRIPT RELEASE DATE IS 01/12/2015. Until that time the transcript may be viewed at the Clerk's Office or a copy may be obtained from the official court transcriber. Court Reporter/Transcriber eScribers, Telephone number 973- 406-2250. (RE: related document(s) Hearing held on 9/22/2014. (RE: related document(s) 2 Motion for relief from stay Fee amount $176, Filed by Creditor Jane Doe ADVISEMENT). Transcript to be made available to the public on 01/12/2015. (Kurtzer, 10/14/2014 Benjamin)

35 (2 pgs) Summary of Schedules. Filed by Debtor Danny Deari . (Rueter, Karyn) 10/14/2014 (Entered: 10/15/2014)

36 (7 pgs) Statement of financial affairs (Amended). Filed by Debtor Danny Deari. 10/19/2014 (Lindauer, Joyce)

10/19/2014 37 (5 pgs) Amended Schedules: I J. Filed by Debtor Danny Deari. (Lindauer, Joyce)

10/19/2014 38 (7 pgs) Amended Schedules: B C. Filed by Debtor Danny Deari. (Lindauer, Joyce)

39 (6 pgs) INCORRECT ENTRY. FILER TO REFILE. Notice ofSubstitution of Counsel filed by Debtor Danny Deari. (Mitchell, Gregory) Modified on 10/22/2014 10/20/2014 (Bibbs, P.).

40 (3 pgs) Continuance of meeting of creditors to 11/06/2014 at 9:00a.m. Meeting to be 10/2112014 held at 125 E. John Carpenter Frwy, Suite 1100, Irving, Texas (Powers, Thomas)

41 (6 pgs; 2 docs) Motion to substitute attorney Joyce Lindauer with Gregory W. Mitchell Filed by Debtor Danny Deari (Attachments: # 1 Proposed Order) (Mitchell, 10/22/2014 Gregory)

42 (2 pgs) Trustee's Notice of intent to dismiss caseJor failure to Cooperate as necessary to enable the Trustee to perform his duties under the Bankruptcy Code as 10/22/2014 required by Section 521(a)(3). (Powers, Thomas)

43 (2 pgs) Order granting motion to substitute attorney adding Gregory Wayne Mitchell for Danny Deari, terminating Joyce W. Lindauer. (related document# ill Entered on 11/03/2014 11/3/2014. (Tello, Chris)

11/05/2014 44 (3 pgs) BNC certificate of mailing- PDF document. (RE: related document(s)43 Order granting motion to substitute attorney adding Gregory Wayne Mitchell for Danny Deari, terminating Joyce W. Lindauer. (related document ill Entered on 11/3/2014.) No. ofNotices: 2. Notice Date 11/05/2014. (Admin.)

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45 (3 pgs) Continuance of meeting of creditors to II/I3/20I4 at 9:00a.m. Meeting to be 11107/2014 held at I25 E. John Carpenter Frwy, Suite II 00, Irving, Texas (Powers, Thomas)

46 (2 pgs) Trustee's Notice of intent to dismiss caseJor failure to appear the 34I 11110/2014 Meeting of Creditors and/or to provide identification to the Trustee (Powers, Thomas)

47 (1 pg) Trustee's Notice of withdrawal of ofJor Failure to Cooperate with the Trustee as necessary to enable the Trustee to perform his duties under the Bankruptcy Code as required by Section 52 I (a)(3). filed by (RE: related document(s)42 Notice of intent to 11113/2014 dismiss case) (Powers, Thomas)

11114/2014 48 (3 pgs) Meeting of creditors chapter 13 (held) and concluded (Powers, Thomas)

49 (1 pg) Financial management course certificate filed by Trustee Thomas Powers. 11117/2014 (Powers, Thomas)

50 (5 pgs) Objection to confirmation of plan (RE: related document(s)27 Chapter 13 11118/2014 Plan) filed by Creditor Jane Doe. (Fontaine, Laura)

it (4 pgs) Notice of hearing on confirmation filed by Debtor Danny Deari (RE: related document(s)27 Chapter 13 plan and motion for valuation dated: 9/2/2014 for 60 months with objection to claims filed by Debtor Danny Deari.). Hearing to be held on 12116/2014 at 02:00PM Dallas Judge Hale Ctrm for 27, Confirmation hearing to be held on 11125/2014 12/16/2014 at 02:00PM at Dallas Judge Hale Ctrm. (Mitchell, Gregory)

52 (1 pg) Trustee's Notice of withdrawal of ofJor Failure to appear at the 34I meeting ofcreditors and/or to provide identification to the Trustee filed by (RE: related document 11/26/2014 (s)46 Notice of intent to dismiss case) (Powers, Thomas)

53 (1 pg) Trustee's Notice of continuance of Confirmation set on Confirmation Docket. Continued hearing to be held on I2/30/2014 at 8:30a.m. at I25 E. John Carpenter Frwy, Suite II 00, Irving, Texas (RE: related document(s)33 Notice of confirmation hearing on 12/03/2014 final plan 13 (batch))

54 (13 pgs) Amended Schedules: B C G. Filed by Debtor Danny Deari. (Mitchell, 12/03/2014 Gregory)

55 (13 pgs) Changing an existing creditor on the matrix. Amended Schedules E. Filed by 12/03/2014 Debtor Danny Deari. (Mitchell, Gregory)

56 (16 pgs) Amended chapter 13 plan without objection to claims filed by Debtor Danny 12/03/2014 Deari (RE: related document(s)27 Chapter 13 Plan). (Mitchell, Gregory)

57 (7 pgs; 2 docs) Application to employ Samuel Johnson as Special Counsel Filed by Debtor Danny Deari (Attachments: # 1 Exhibit A- Affidavit of Samuel Johnson) 12/04/2014 (Mitchell, Gregory)

59 (9 pgs) Adversary case 14-03151. Complaint by Jane Doe against Danny Deari. Fee Amount $350. Nature(s) of suit: 68 (Dischargeability - 523(a)(6), willful and malicious 12/05/2014 injury). (Fontaine, Laura)

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12/11/2014 60 (2 pgs) Witness and Exhibit List filed by Debtor Danny Deari (RE: related document (s)27 Chapter 13 Plan, 50 Objection to confirmation of plan, 56 Chapter 13 Plan). (Mitchell, Gregory)

.Ql (3 pgs) Witness and Exhibit List filed by Creditor Jane Doe (RE: related document(s) 12/12/2014 50 Objection to confirmation of plan). (Fontaine, Laura)

62 (2 pgs) Withdrawal ofObjection to Confirmation of Plan filed by Creditor Jane Doe 12/15/2014 (RE: related document(s)50 Objection to confirmation of plan). (Fontaine, Laura)

63 (2 pgs) Trustee's Objection to confirmation of Chapter 13 plan with Certificate of 12/17/2014 Service (Powers, Thomas)

64 (4 pgs) Certificate ofNo Objection filed by Debtor Danny Deari (RE: related document(s)57 Application to employ Samuel Johnson as Special Counsel). (Mitchell, 12/31/2014 Gregory)

65 (2 pgs) Trustee's Notice of hearing on debtor's final chapter 13 plan with Certificate of Service Pre-Hearing conference set for 2/26/15 at 8:30A.M at 125 E. John Carpenter 01/05/2015 Frwy, Suite 1100, Irving, Texas (Powers, Thomas)

66 (2 pgs) Trustee's motion to dismiss chapter 13 case for failure to Obtain Confirmation and/or Reduce Attorney Fees. Pre-hearing conference to be held on 2/26/15 at 8:30A.M at 01/06/2015 125 E. John Carpenter Freeway Suite 1100 Irving Texas (Powers, Thomas)

67 (2 pgs) Order denying confirmation of chapter 13 plan Entered on 1/13/2015 (RE: 01/13/2015 related document(s)27 Chapter 13 Plan filed by Debtor Danny Deari). (Tello, Chris)

68 (3 pgs) BNC certificate of mailing- PDF document. (RE: related document(s)67 Order denying confirmation of chapter 13 plan Entered on 1/13/2015 (RE: related document(s)27 Chapter 13 Plan filed by Debtor Danny Deari).) No. ofNotices: 2. Notice 01115/2015 Date 01/15/2015. (Admin.) (Entered: 01/16/2015)

69 (2 pgs) Order granting application to employ Samuel Johnson of Johnson Law, PLLC as Special Counsel for Danny Deari, debtor. (related document# 57) Entered on 01/21/2015 1/21/2015. (Tello, Chris)

70 (3 pgs) BNC certificate of mailing- PDF document. (RE: related document(s)69 Order granting application to employ Samuel Johnson of Johnson Law, PLLC as Special Counsel for Danny Deari, debtor. (related document 57) Entered on 1/21/2015.) No. of 01/23/2015 Notices: 3. Notice Date 01/23/2015. (Admin.)

11 (2 pgs) Notice of Appearance and Request for Notice by Century Surety Company by Benjamin Warren Kadden filed by Interested Party mp Century Surety Company. 01/28/2015 (Kadden, Benjamin)

72 (6 pgs; 2 docs) Motion for leave to Proceed Without Local Counsel Filed by Interested Party mp Century Surety Company Objections due by 2/23/2015. (Attachments: 01/28/2015 # 1 Proposed Order) (Kadden, Benjamin)

02/06/2015

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73 (2 pgs) Order granting motion for leave to proceed without local counsel (related document# 7JJ Entered on 2/6/2015. (Tello, Chris)

74 (23 pgs; 4 docs) INCORRECT ENTRY; WRONG EVENT CODE USED. ATTY TO RE-FILE PLEADING. Motion for leave To File Formal Proof of Claim After Deadline Filed by Creditor Johnson Broome, P.C. Objections due by 3/2/2015. (Attachments:# 1 Exhibit 1 #~Exhibit 2 # J Proposed Order) (Johnson, Samuel) Modified on 2/10/2015 02/06/2015 (Luna, G).

77 (23 pgs; 4 docs) Motion to file formal proof of claim after deadline Filed by Creditor Johnson Broome, P.C. Objections due by 3/2/2015. (Attachments:# 1 Exhibit 1 # ~ 02/06/2015 Exhibit 2 # J Proposed Order) (Brown, D.) (Entered: 02/19/2015)

75 (3 pgs) BNC certificate of mailing- PDF document. (RE: related document(s)73 Order granting motion for leave to proceed without local counsel (related document ]JJ 02/08/2015 Entered on 2/6/2015.) No. ofNotices: 2. Notice Date 02/08/2015. (Admin.)

76 (2 pgs) Trustee's Amended Objection to confirmation of Chapter 13 plan with 02/09/2015 Certificate ofService (Powers, Thomas)

78 (2 pgs) Notice of Withdrawal filed by Creditor Johnson Broome, P.C. (RE: related document(s)77 Motion to file formal proof of claim after deadline Filed by Creditor Johnson Broome, P.C. Objections due by 3/2/2015. (Attachments:# 1 Exhibit 1 # 2 02/26/2015 Exhibit 2 # 3 Proposed Order) (Brown, D.)). (Johnson, Samuel)

79 (12 pgs; 4 docs) Application for compensation for Samuel Harris Johnson, Special Counsel, Period: 12/3/2014 to 1/31/2015, Fee: $3165, Expenses: $37.27. Filed by Attorney Samuel Harris Johnson Objections due by 3/13/2015. (Attachments:# 1 Exhibit Invoices# 02/27/2015 ~ Exhibit Fee Application Cover Sheet # J Proposed Order) (Johnson, Samuel)

80 (13 pgs; 2 docs) INCORRECT ENTRY: Incorrect event code used, see doc. 81 for correction: Motion for relief from stay- agreed Filed by Interested Party mp Century Surety Company (Attachments: # 1 Proposed Order) (Kadden, Benjamin) Modified on 03/05/2015 3/6/2015 (Brown, D.).

ll (13 pgs; 2 docs) Motion for relief from stay Fee amount $176, Filed by Interested Party Century Surety Company Objections due by 3/19/2015. (Attachments:# 1 Proposed 03/05/2015 Order) (Brown, D.) (Entered: 03/06/2015)

82 (1 pg) Clerk's notice of fees due in the amount of $176.00 for Motion for relief from stay filed by Century Surety Company. (RE: related document(s),ll Motion for relief from stay Fee amount $176, Filed by Interested Party Century Surety Company Objections due 03/06/2015 by 3/19/2015. (Attachments:# 1 Proposed Order) (Brown, D.)) (Brown, D.)

83 (4 pgs) Order confirming chapter 13 plan Entered on 3/9/2015 (RE: related document 03/09/2015 (s)56 Chapter 13 Plan filed by Debtor Danny Deari). (Morales, D.)

03/09/2015 84 (2 pgs) Notice of hearing filed by Interested Party Century Surety Company (RE: related document(s),ll Motion for relief from stay Fee amount $176, Filed by Interested Party Century Surety Company Objections due by 3/19/2015. (Attachments:# 1 Proposed

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Order) (Brown, D.)). Hearing to be held on 3/30/2015 at 10:30 AM Dallas Judge Hale Ctrm for ll, (Kadden, Benjamin)

03/10/2015 Receipt of Lift Stay Filing Fee- $176.00 by BR. Receipt Number 334024. (admin)

85 (2 pgs) Trustee's Response opposed to (related document(s): 79 Application for compensation for Samuel Harris Johnson, Special Counsel, Period: 12/3/2014 to 1/31/2015, Fee: $3165, Expenses: $37.27. filed by Spec. Counsel Samuel Johnson) filed 03/11/2015 by Trustee Thomas Powers. (Powers4, Thomas)

86 (2 pgs) Notice ofprehearing conference hearing. Prehearing conference to be held on 4/30/2015 at 8:30AM in the Dallas Ch. 13 Office. If unresolved at the prehearing conference, a hearing will be held before the court as noted on the PDF document. filed by Spec. Counsel Samuel Johnson (RE: related document(s)79 Application for compensation for Samuel Harris Johnson, Special Counsel, Period: 12/3/2014 to 1/31/2015, Fee: $3165, Expenses: $37.27. Filed by Attorney Samuel Harris Johnson Objections due by 3/13/2015. (Attachments: # 1 Exhibit Invoices # 2 Exhibit Fee Application Cover Sheet# 3 Proposed 03/11/2015 Order)). (Johnson, Samuel)

87 (5 pgs) BNC certificate of mailing- PDF document. (RE: related document(s)83 Order confirming chapter 13 plan Entered on 3/9/2015 (RE: related document(s)56 Chapter 13 Plan filed by Debtor Danny Deari). (Morales, D.)) No. of Notices: 1. Notice 03/11/2015 Date 03/11/2015. (Admin.)

Announcement of AGREED ORDER regarding hearing scheduled for 3/30/2015. Agreed order to be uploaded by Benjamin Warren Kadden, filed by Interested Party Century Surety Company, Trustee Thomas Powers (RE: related document(s)ll Motion for relief from stay Fee amount $176, Filed by Interested Party Century Surety Company Objections due by 3/19/2015. (Attachments:# 1 Proposed Order) (Brown, D.)). (Kadden, 03/22/2015 Benjamin)

88 (2 pgs) Agreed Order granting motion for relief from stay by Interested Party Century 04/10/2015 Surety Company (related document# ill Entered on 4/10/2015. (Rebecek, B)

89 (5 pgs) Trustee's recommendation concerning claims, objection to claims and plan modification if required with COS. Pre-Hearing conference to be held on 6/25/2015 at 8:30 04/15/2015 A.M at 125 E. John Carpenter Frwy, Suite 1100, Irving, Texas. (Powers, Thomas)

Hearing held on 4/30/2015. (RE: related document(s)79 Application for compensation for Samuel Harris Johnson, Special Counsel, Period: 12/3/2014 to 1/31/2015, Fee: $3165, Expenses: $37.27. Filed by Attorney Samuel Harris Johnson) (ALLOWED; FEES TO BE DIVIDED BETWEEN THIS CASE AND CHAPTER 11 CASE) (Adams-Williams, Erica) 04/30/2015 (Entered: 05/01/20 15)

90 (1 pg) Order granting application for compensation (related document# 1!l) granting for Samuel Harris Johnson, fees awarded: $1582.50, expenses awarded: $18.63 Entered on 06/02/2015 6/2/2015. (Tello, Chris)

06/04/2015 91 (2 pgs) BNC certificate of mailing- PDF document. (RE: related document(s)90 Order granting application for compensation (related document 1!l) granting for Samuel

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Harris Johnson, fees awarded: $1582.50, expenses awarded: $18.63 Entered on 6/2/2015.) No. ofNotices: 2. Notice Date 06/04/2015. (Admin.)

92 (2 pgs) Order on trustee's recommendations concerning claims, objection to claims and plan modification (If required) Entered on 7/2/2015 (RE: related document(s)89 07/02/2015 Trustee's recommendation concerning claims/plan). (Tello, Chris)

93 (3 pgs) BNC certificate of mailing- PDF document. (RE: related document(s)92 Order on trustee's recommendations concerning claims, objection to claims and plan modification (If required) Entered on 7/2/2015 (RE: related document(s)89 Trustee's recommendation concerning claims/plan).) No. ofNotices: 1. Notice Date 07/04/2015. 07/04/2015 (Admin.)

94 (2 pgs) Trustee's notice of additional claims filed by JANE DOE (TT Clm 31) 08/07/2015 Objections due by 9/9/2015. (Powers, Thomas)

95 (12 pgs) Objection to (related document(s): 94 Trustee's notice of additional claims 09/09/2015 filed) filed by Creditor Jane Doe. (Fontaine, Laura)

96 (2 pgs) Objection to (related document(s): 94 Trustee's notice of additional claims filed) 95 Jane Doe's Objection to Trustee's Notice ofProposed Treatment of Claim filed 09/09/2015 by Debtor Danny Deari. (Mitchell, Gregory)

97 (3 pgs) Reply to (related document(s): 95 Objection filed by Creditor Jane Doe) filed 09/10/2015 by Creditor Jane Doe. (Fontaine, Laura)

98 (1 pg) Notice ofwithdrawal of filed by (RE: related document(s)94 Trustee's notice 09/15/2015 of additional claims filed) (Powers, Thomas)

99 (3 pgs) Trustee's motion to dismiss chapter 13 case RE: Failure to provide tax return The pre-hearing will be held on 10/29/2015 at 8:30A.M at 125 E. John Carpenter Freeway Suite 1100, Irving, Texas. Any unresolved matter will be heard on 10/29/2015 at 2:00P.M Objections due 10/26/2015. Pre-hearing conference to be held on 10/29/2015 at 10/02/2015 8:30A.M at. (Powers, Thomas)

100 (1 pg) Trustee's Notice of withdrawal of ofTrustee's Motion to Dismiss for Failure to Cooperate set on Motion to Dismiss re Tax Return on 10/29/2015 filed by (RE: related document(s)99 Motion to dismiss case RE: Failure to provide tax return by 13 trustee with 11/05/2015 prehrg conf (batch)) (Powers, Thomas)

101 (115 pgs; 2 docs) Motion for relief from stay Fee amount $176, Filed by Creditor Post Addison Circle Limited Partnership Objections due by 12/4/2015. (Attachments:# 1 11/20/2015 Exhibit Exhibits) (DApice, Peter)

102 (3 pgs) Notice of hearing on Motion ofPost Addison Circle Limited Partnership for Relieffrom the Automatic Stay Pursuant to 11 U.S. C. 362(d) filed by Creditor Post Addison Circle Limited Partnership (RE: related document(s) I 01 Motion for relief from stay Fee amount $176, Filed by Creditor Post Addison Circle Limited Partnership Objections due by 12/4/2015. (Attachments:# 1 Exhibit Exhibits)). Preliminary hearing to 11/20/2015 be held on 12/9/2015 at 01:30PM at Dallas Judge Hale Ctrm. (DApice, Peter)

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11/20/2015 Receipt of filing fee for Motion for relief from stay(14-34323-hdh13) [motion,mrlfsty] ( 176.00). Receipt number 21460490, amount$ 176.00 (re: Doc# .!Ql). (U.S. Treasury)

103 (3 pgs) (Kadden, Benjamin) has withdrawn from the case filed by Interested Party 11/23/2015 Century Surety Company. (Kadden, Benjamin)

104 (3 pgs) Amended Notice of hearing filed by Creditor Post Addison Circle Limited Partnership (RE: related document(s)lOl Motion for relief from stay Fee amount $176, Filed by Creditor Post Addison Circle Limited Partnership Objections due by 12/4/2015. (Attachments:# 1 Exhibit Exhibits)). Preliminary hearing to be held on 12/9/2015 at 01:30 11/24/2015 PM at Dallas Judge Hale Ctrm. (DApice, Peter)

I PACER Service Center I Transaction Receipt I 11/30/2015 12:35:11 PACER Login: lwf0013:2661254:~ Client Code: 199999.000001-10918

14-34323-hdhB Fil or Ent. filed From: 11/16/2012 To: 11/30/2015 Doc From: 0 Search Description: Docket Report Doc To: 99999999 Term: Criteria: included Headers: included Format: html Page counts for documents: included Billable Pages: 110 181l.OO I

https://ecf.txnb.uscourts.gov/cgi-bin/DktRpt.pl?524104765587523-L_1_0-l 11/30/2015 SUPP APP 1140 Exhibit 7

SUPP APP 1141 1

1 IN THE UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF TEXAS (DALLAS) 2 3 ) Case No. 14-34324-HDH-11 4 In re ) Dallas, Texas ) 5 PASTAZIOS PIZZA, INC., ) ) November 24, 2015 6 Debtor. ) 9:01 AM ) 7 _______________________________) 8 TRANSCRIPT OF HEARING [145] EXPEDITED MOTION TO ENFORCE CONFIRMED PLAN 9 BEFORE THE HONORABLE HARLIN D. HALE, UNITED STATES BANKRUPTCY JUDGE 10 11

18 19 20 Transcription Services: eScribers 21 700 West 192nd Street Suite #607 22 New York, NY 10040 (973) 406-2250 23 24 PROCEEDINGS RECORDED BY ELECTRONIC SOUND RECORDING. 25 TRANSCRIPT PRODUCED BY TRANSCRIPTION SERVICE.

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SUPP APP 1142 2

1 APPEARANCES: 2 For the Plan Trustee: DAVOR RUKAVINA, ESQ. DEBORAH M. PERRY, ESQ. 3 THOMAS D. BERGHMAN, ESQ. MUNSCH, HARDT, KOPF & HARR P.C. 4 500 North Akard Street Suite 3800 5 Dallas, TX 75201 6 For Century Surety GREGORY G. HESSE, ESQ. 7 Company: JAMES W. BOWEN, ESQ. HUNTON & WILLIAMS LLP 8 1445 Ross Avenue Suite 3700 9 Dallas, TX 75202 10 For Jane Doe: TRICIA R. DELEON, ESQ. 11 LAURA M. FONTAINE, ESQ. TREY H. CRAWFORD, ESQ. 12 MICHAEL GRUBER, ESQ. GRUBER HURST ELROD JOHANSEN 13 HAIL SHANK LLP 1445 Ross Avenue 14 Suite 2500 Dallas, TX 75202 15 16 17

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SUPP APP 1143 Colloquy 3

1 THE CLERK: All rise. 2 THE COURT: Good morning. Please be seated. Thank 3 you very much. 4 I'll take appearances in Pastazios. 5 MR. RUKAVINA: Your Honor, good morning. Davor 6 Rukavina for the trustee. With me I have Ms. Deborah Perry 7 and Thomas Berghman. The trustee is also present. 8 THE COURT: Welcome. 9 MR. HESSE: Good morning, Your Honor. Greg Hesse, 10 and I've got my partner, James Bowen. We're here on behalf of 11 Century Surety Company.

12 THE COURT: Good morning. 13 MS. DELEON: Good morning, Your Honor. Tricia DeLeon 14 with the law firm of Gruber Hurst Elrod Johansen Hail Shank. 15 I've also got my partners here with me, Mr. Gruber, Mr. 16 Crawford, and Laura Fontaine. 17 THE COURT: Welcome to our court.

18 We spent a significant amount of time on this. Do 19 you want to make an opening statement or do you just want to 20 move into the record? 21 MR. HESSE: Your Honor, if I may approach -- if I may 22 ask the Court. In light of -- wait, let me again -- in light 23 of your order on our last motion for continuance that you 24 entered yesterday, that you want to focus narrowly on the 25 issue of whether the actions of Century violate the plan, I

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SUPP APP 1144 Colloquy 4

1 would suggest the following, because the concern that Century 2 has on this hearing today is that there's going to be a 3 full-blown evidentiary hearing on whether the plan went 4 effective and was substantially consummated, because one of 5 the issues that -- the fact issues on whether the plan was 6 substantially consummated is whether the trust was duly 7 formed, because that was the transaction that was 8 contemplated. 9 With regard to that, Century hasn't had an ample 10 opportunity to do discovery. And so we would object to this 11 hearing going forward on that standpoint. My suggestion, on

12 the other hand, to get to your narrow issue, would be to treat 13 Century's objection as, effectively, a motion for summary 14 judgment. We could rely upon the pleadings and the 15 transcripts that have been filed in this case, the schedules, 16 the plan, the order confirming the plan, and other pleadings, 17 as well as the notice of appeal and other pleadings that have

18 been filed in the Court of Appeals, which I think we can 19 identify specifically what they are in the notebooks. And 20 then you can decide whether making the assumption that the 21 plan was effective, and assuming the plan was substantially 22 consummated, whether those actions violated the plan. And 23 then we would reserve our rights to a full evidentiary 24 hearing, after having a chance to do full discovery, on 25 whether the trust was duly formed, that resulted in the plan

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SUPP APP 1145 Colloquy 5

1 going effective and the plan being substantially consummated. 2 That would be our suggestion on how to proceed today, 3 just on the motion for summary judgment, assuming, for 4 purposes of today only, that the plan went effective and was 5 substantially consummated. 6 THE COURT: Mr. Rukavina? 7 MR. RUKAVINA: Pardon me. Your Honor, we would 8 object to that. It is high time to put to bed or to put to 9 rest these issues about whether the plan was consummated, 10 whether there is a trust. The trustee sat for a deposition 11 yesterday. The trustee produced, I think, over 16,000 pages

12 of documents. Ms. Lindauer produced documents. Century has 13 known of this issue since our prior hearing, some three or 14 four weeks ago, when they alleged that the trust was not duly 15 formed. Century examined both Ms. Lindauer and Mr. Seidel on 16 that date, and we are prepared to go forward, with minimal 17 evidence, on the issue that is before Your Honor today with

18 respect to what Century is purporting to do. And I would ask 19 for a brief opening -- brief, because I understand that the 20 Court has spent a lot of time preparing for today. 21 THE COURT: We have. I will say you can make 22 whatever record you want to make. It's not my intention to do 23 by a motion a declaratory judgment, though, so be warned of 24 that. All right? 25 MR. RUKAVINA: Okay.

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SUPP APP 1146 Colloquy 6

1 THE COURT: You may proceed. 2 MR. HESSE: If I can understand then correctly, Your 3 Honor, then you're not going to make any findings that the 4 trust was duly formed? 5 THE COURT: It's not my intention to go into that. 6 That's done by declaratory judgment, not by motion. 7 MR. RUKAVINA: Your Honor, let me just cover a few 8 brief topics then, that we will go over today. The first one 9 is: what is Century trying to do? And really here I was 10 concerned, when we started filing this motion, that we were 11 overreacting, that perhaps Century was not in fact trying to

12 appeal for the trust. 13 Now, immediately we offered a stipulation on an 14 agreed order that clarified that, that Century was not trying 15 to appeal for the trust. We've offered that since; it has 16 been rejected. Century, in none of its objections before Your 17 Honor, has said, no, we're not trying to appeal for the trust.

18 Century has contested every motion to continue. And of course 19 Century's pleadings speak for themselves, before the appellate 20 court, where Century is, in fact, seeking relief for 21 Pastazios, relief for the trust. 22 So to the extent that there are any concerns about 23 what Century is trying to do, the Court can certainly ask Mr. 24 Hesse, Century can clarify, but I don't think we're wrong. I 25 don't think we've overreacted. Century's pleadings speak for

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SUPP APP 1147 Colloquy 7

1 themselves, and it has rejected every attempt at a compromise. 2 As I made it clear in my pleadings, we are not trying 3 to speak, in any way, to prevent Century today from appealing 4 in its own right, to the extent it has that right. I want 5 Your Honor to understand why Century is doing what it is 6 doing. Of course there's been a judgment; October 26th was 7 the appeal deadline. The trustee did not appeal. On November 8 10th, Century tries to intervene and tries to get an extension 9 of time to appeal. It filed its own extension motion late. 10 But Texas law does permit a carrier, in instances 11 such as these, to intervene in an appeal. The requirement,

12 however, is that the carrier must admit that the judgment is 13 binding upon it. This is the theory that Century has of 14 virtual representation. Century has made that argument before 15 the appellate court, but it has denied that the judgment is 16 binding upon it. Century wants to have its cake and eat it 17 too.

18 So Century, the only thing it can do, therefore, is 19 to appeal for the trust. And it's told you, in its response 20 filed yesterday, that according to its view of the policy, it 21 has the right to defend the insured. Never mind the 22 obligation to do that for the last two and a half years, which 23 it has not done, it is saying to Your Honor we have the right 24 to appeal for the insured, and never mind that the policy 25 doesn't define "suit" or "defense" in any which way whatsoever

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SUPP APP 1148 Colloquy 8

1 relating to an appeal. 2 So this is why Century is trying to hijack the 3 trust's rights, so that it can nominally pursue an appeal, in 4 its own name, without having to admit that the judgment and 5 the findings from Judge Ginsberg are binding upon it, and 6 somehow tried, therefore, to appeal in the name of the trust. 7 And then we'll talk about prejudice today, but the 8 prejudice will be manifest and obvious in that, amongst other 9 things. Someone other than the trustee, other than the 10 fiduciary, will be speaking for this trust. That someone will 11 be making decisions that, frankly, could lead to a larger

12 judgment, because there will be a cross-appeal, and because 13 some sixty million dollars was sought from the state court, 14 not twenty. That someone will make decisions as to what 15 issues will be appealed and pursued or not. That someone will 16 have a vested interest -- because they've sued us in front of 17 Judge Solis -- to channel that appeal in such a way as to

18 attack findings that go directly to coverage. That someone is 19 not a fiduciary, and it has no obligations to the trust. And 20 of course we'll talk about the language of the plan, the trust 21 agreement. 22 But we are asking the Court for three things today. 23 The first thing we're trying to understand, and we're asking 24 for a finding from this Court, is that Ms. Doe's claim has 25 been allowed pursuant to the terms of this plan. If her claim

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SUPP APP 1149 Colloquy 9

1 has been allowed, pursuant to the terms of this plan, then 2 really what Century wants to do is no longer of that much 3 significance to the trustee. The trustee needs to understand 4 whether Ms. Doe's claim has been allowed. And we will walk 5 Your Honor through the plan documents, and we believe that her 6 claim has been allowed. If her claim has not been allowed, 7 then we are requesting either a determination or a prohibition 8 from Your Honor to the effect that Century has no right or 9 ability to speak for the trust or to seek any judicial relief 10 for the trust. 11 And we will argue about the Rule 7001 implications.

12 I'll take that up at closing. But we are seeking, again, 13 limited relief today; to the effect that the Doe claim is 14 allowed as against the trust, we don't need any kind of 15 determination or declaratory relief here -- that it's allowed 16 as against the trust, and that Century has no ability, because 17 the trustee has the exclusive ability, pursuant to this

18 Court's order, in a plan confirmation in which Century 19 participated, to pursue any appeal of the Doe trust. 20 THE COURT: Thank you. Before Mr. Hesse, let's see 21 if Ms. DeLeon -- did you want to -- I know that Doe joined in. 22 Do you have anything? That way Mr. Hesse can address both of 23 you. 24 MS. DELEON: Thank you, Your Honor. Tricia DeLeon on 25 behalf of Jane Doe.

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SUPP APP 1150 Colloquy 10

1 Your Honor, we agree with the relief that the trustee 2 is seeking, specifically that the Jane Doe claim is allowed. 3 As the Court is aware, our firm is counsel for Ms. Doe, the 4 rape victim whose case was tried before the district court, 5 and thankfully resulted in justice for. And we appreciate 6 Your Honor's order, last night, denying the motion for a 7 continuance, because we think it properly sets the tone for 8 the very narrow scope of this hearing. 9 From our perspective, we don't believe any live 10 testimony or deposition testimony is needed from the 30(b)(6) 11 deposition that Century and the trustee took yesterday of Ms.

12 Fontaine, who represented our firm. Nor do we believe any 13 live testimony is needed today, simply because that testimony 14 is not going to bear or be relevant on this Court's 15 determination on if the plan or the confirmation order were 16 violated by Century in this case. 17 Ms. Fontaine made herself available for several hours

18 yesterday, and the trustee and Century did in fact depose her 19 for about an hour, so they had that opportunity. 20 We also believe that this Court has jurisdiction, of 21 course, to interpret its own orders, under Travelers Indemnity 22 Company v. Bailey, from the U.S. Supreme Court. But based on 23 some of the questions that Century's counsel asked our firm, 24 via Ms. Doe's counsel yesterday, we fear that Century's desire 25 of discovery, into irrelevant and pre-confirmation matters,

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SUPP APP 1151 Colloquy 11

1 could touch upon matters that would take this Court out of 2 jurisdiction. So therefore, we echo this Court's concern, and 3 agree that your order denying the motion for continuance, 4 stating that this hearing should be very narrow in scope, is 5 exactly what we're here to do, and of course to object if 6 there's any type of irrelevant testimony that's attempted to 7 be coming in today through Century's counsel, via either the 8 30(b)(6) deposition or live testimony of any of the witnesses 9 from Ms. Doe's counsel. 10 Thank you, Your Honor. 11 THE COURT: Thank you. Mr. Hesse?

12 MR. HESSE: Your Honor, I'll address the last 13 comments first. Since you're not going to take up the issue 14 of whether the trust was duly formed, then there's no need to 15 go into any of the questions that were raised at the 16 deposition yesterday. I dispute that it was done, because I 17 think actually the issues that were raised prior to March 30

18 would be relevant to that declaratory judgment action, but 19 since we're not going to be addressing those issues, that's 20 not going to be an issue. 21 Let me now address Mr. Rukavina's comment with regard 22 to the allowance of the Jane Doe claim. 23 THE COURT: Okay. 24 MR. HESSE: I'm not certain, candidly, Your Honor, 25 that you have jurisdiction to do that, in that, under

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SUPP APP 1152 Colloquy 12

1 28 U.S.C., Section 157(b)(2), Congress did not provide for 2 your jurisdiction, as an accommodation to the plaintiff's 3 party, for you to make determinations on the allowance of 4 personal injury claims. So I'm not sure that you have 5 jurisdiction to enter that order, number one. 6 Number two, I'm not sure that I have standing to 7 object to that order, because that is an issue that comes 8 pursuant to the trust agreement, and as we had a hearing on 9 November 3rd about that issue, and you -- and Mr. Rukavina was 10 standing right here, saying that my client was not scheduled, 11 didn't file a claim, was not a creditor, it did not have

12 standing, I thought I made a brilliant argument to say why we 13 might have standing. You disagreed, and you found that 14 Century did not have standing. 15 That being the case, I don't think we have standing 16 to object to it. And to the extent that you're going to make 17 a finding with regards to that, then I would ask that you

18 include in your order that it's not binding upon Century, 19 because it does not have standing to object to that. And I 20 think that would -- if that's agreeable, I believe that would 21 put that particular issue to bed. 22 We then get onto the issue of really what is going on 23 here today, which is, in the trustee's motion, it is not a 24 mere simple motion to enforce or interp -- enforce the terms 25 of a plan or a confirmation order. What the trustee is

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SUPP APP 1153 Colloquy 13

1 seeking is actually both a -- is an injunction. They're 2 asking the Court to enjoin Century from acting on its own 3 rights in the Court of Appeals. 4 The reason this is not your typical motion to enforce 5 is there are some provisions of this plan that are not typical 6 or what you would -- what I would actually -- would expect. 7 Most notably, the plan of reorganization that was confirmed -- 8 you know, I should -- if I may, could I provide you with a 9 copy of our exhibits -- 10 THE COURT: Sure. 11 MR. HESSE: -- so that you have them handy?

12 May I approach? 13 THE COURT: Thank you. 14 MR. HESSE: It would be -- now, these have not been 15 admitted yet, but I would ask the Court to take judicial 16 notice of Century's Exhibit A, which is the first plan of 17 reorganization that was filed. The plan of reorganization --

18 now, you can look at your own leisure. And I've looked and 19 I've scoured it, and I've been trying to find it, but it 20 doesn't exist. There is not a plan injunction. The debtor 21 did not receive a discharge. There is not a discharge 22 injunction. The discharge provision, Your Honor, is Section 23 10.01. 24 So under the terms of the plan, there is no 25 injunction that you're being asked to enforce. Rather, you're

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SUPP APP 1154 Colloquy 14

1 being asked to issue a new injunction, a new injunction 2 against Century to require it to comply with the terms of this 3 plan of reorganization. That requires an adversary 4 proceeding, Your Honor, under Rule 7001. Now, the provisions 5 of the plan do provide for the Court to retain jurisdiction to 6 issue injunctions, and that would be Section 13.07 of the 7 plan. But Section 13.07 of the plan does not alter the 8 procedural due process rights that a creditor -- or that -- 9 excuse me, that -- we're not a creditor; I'm sorry -- that a 10 party would have in order to be subject to this Court's 11 jurisdiction for issuing an injunction. So the procedural due

12 process rights have not been altered. And similarly, there's 13 not a change in the substantive rights that any party would 14 have. 15 So adversary proceeding; they did not file an 16 adversary proceeding, which also requires service of process. 17 Century would file a motion to -- or has filed -- has included

18 in its pleading a request that the Court dismiss the motion 19 for failure to provide service of process. Under Fifth 20 Circuit law, under Zale, it's very clear that if the trustee 21 is seeking to enjoin a party, they have to go through the 22 adversary proceeding process. They have not done so. 23 So that's point number one: they're seeking a real 24 live injunction; they're not seeking to enforce or interpret 25 this injunction.

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SUPP APP 1155 Colloquy 15

1 Secondly, Your Honor, the plan's not binding upon 2 Century. First of all, I'll point out to you that, under 3 Section 1141, the Bankruptcy Code is very specific as to what 4 parties are bound by a plan of reorganization. Section 1141 5 specifically says that the plan shall "bind the debtor" -- 6 that would be Ms. Lindauer's client -- "any entity issuing 7 securities under the plan" -- Century did not issue 8 securities -- "any entity acquiring property" -- that would be 9 the trust -- "any creditor" -- which is not Century -- "equity 10 security holder" -- which is not Century -- "or general 11 partner of the debtor". It's very specific.

12 I'll address the creditor issue. Again, Mr. Rukavina 13 stood here on November -- well, on October 28th, and I think 14 again on November 3rd, and told this Court: Century was not 15 scheduled, Century did not file a proof of claim, Century is 16 not a creditor. We agree. We agreed with him at the hearing, 17 and we've gotten in our -- and I think the Court can take

18 judicial notice of the schedules. Century was not listed as a 19 creditor. It was not even listed as a party to an executory 20 contract. You can look at the claims register; Century did 21 not file a proof of claim. So we're not a creditor, and so, 22 under 1141, we're not bound by the plan. 23 Now, interestingly, a couple of years ago, Judge 24 Houser had this exact issue come up, and I think this kind of 25 ties into a number of the other comments or requests from the

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SUPP APP 1156 Colloquy 16

1 trustee. And in the -- and this is cited in our pleadings, In 2 re: Vallecito Gas, which is 440 B.R. 457. Judge Houser had 3 the ability to -- or had the opportunity to address whether an 4 individual was bound by the confirmation order. In the 5 Vallecito Gas case, the individual, a gentleman by the name of 6 Pugh, was the representative of a creditor. Mr. Pugh is not 7 listed on the schedules. He did not file a proof of claim. 8 But he had notice of a plan. He had notice of a confirmation 9 order. And he also -- and under the terms of the plan that 10 was confirmed, the debtor sold a mineral interest free and 11 clear of all liens, claims and encumbrances. It just so

12 happened that Mr. Pugh owned an overriding royalty interest in 13 that same mineral lease. 14 The trustee tried to establish that Mr. Pugh is bound 15 by the terms of the plan because that -- it would avoid his 16 overriding royalty interest because he had notice of the plan, 17 he was on the creditors' list, and he didn't object or appeal

18 from the confirmation order. Judge Houser noted -- or said 19 that there was a dispute amongst the parties as to whether 20 Pugh actually had notice of the confirmation order. And she 21 thought that that was just a -- while there was a factual 22 dispute, she said it's simply immaterial to the motion. So 23 even though Pugh had notice, it was irrelevant. And the Court 24 agreed with Pugh that Section 1141 of the Bankruptcy Code 25 doesn't apply since Pugh, individually, was not a creditor of

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SUPP APP 1157 Colloquy 17

1 Vallecito. 2 It's very remarkably similar to this case, Your 3 Honor. Century is not a creditor. It was not listed on the 4 schedules. It did not file a proof of claim. It is not a 5 creditor. 6 Now, the trustee is going to stand up and say, well, 7 but Century's lawyer was at the confirmation hearing. Well, 8 Century's lawyer was at the confirmation hearing, if you look 9 at that transcript, because its motion for relief from the 10 automatic stay, in order to proceed with this declaratory 11 judgment action, was also heard that day. But the fact that

12 Century was at the -- would have knowledge of the plan and 13 confirmation order is really immaterial, because even if it 14 did have knowledge, Section 1141 doesn't bind it unless it's a 15 creditor. 16 Additionally, Your Honor, the very terms of the plan 17 provide that Century is not bound by it. And I direct Your

18 Honor to Section 10.02 of the plan. It's on page 16 of the 19 plan, Your Honor. 20 THE COURT: Of Exhibit 8? 21 MR. HESSE: Of Exhibit 8, yes. 22 THE COURT: Excuse me. I'm not sure my copy has 23 10.02 here. 24 MR. HESSE: It does not have -- 25 THE COURT: I mean, I have 8, but I don't see 10.02

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SUPP APP 1158 Colloquy 18

1 in it. 2 MR. HESSE: You don't have page 16? 3 THE COURT: I do have page 16, but I don't -- did you 4 say 10.02? 5 MR. HESSE: 10.01 -- 10.02; I'm sorry. Are you 6 looking at Exhibit 8? 7 THE COURT: No. 8 MR. HESSE: The first amended plan. 9 THE COURT: I'm in 9. 10 MR. HESSE: Okay. 11 THE COURT: It was my bad. Hold on just a second.

12 What page now? 13 MR. HESSE: Page 16. 14 THE COURT: I have it now. 15 MR. HESSE: Section 10.02 provides: "The provision 16 of this plan, pursuant to the Bankruptcy Code, Section 1141, 17 shall bind Pastazios and all creditors, whether or not they

18 accept this plan." We've already gone through 1141, but to 19 reconfirm, Century is not Pastazios and Century is not a 20 creditor. So under the express terms of the plan of 21 reorganization, the plan is not binding upon Century. And I 22 think to the extent that, you know, we have this particular 23 provision, I think that deals with all the res judicata 24 arguments that the debtor has, that we're bound by the terms 25 of the plan. If the terms of the plan are binding, well,

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SUPP APP 1159 Colloquy 19

1 Section 10.02 also is specifically binding, but it's not 2 binding on Century, because it is not the debtor or a 3 creditor. 4 So I think that we can dispose of this motion fairly 5 quickly, Your Honor, by looking at the terms of the plan and 6 whether or not it is binding upon Century. And so if you're 7 looking at the injunctive provisions that the trustee is able 8 to show success on the merits, I don't believe they could even 9 show success on the merits based upon just the documents 10 itself, which, to a certain extent, Your Honor, goes to my 11 point that we could resolve this as a motion for summary

12 judgment, based upon just the pleadings that were filed. 13 Finally, Your Honor, with regard to whether the 14 actions in the Court of Appeals, whatever they are, the 15 pleadings are here; you can look at the pleadings. I mean, 16 we're filing on behalf of Century. We're trying to protect 17 Century's rights. One of the provisions that will come up in

18 the context of the Court of Appeals is the judgment that is 19 being appealed from is the judgment against Pastazios. If 20 we're going to go into the Court of Appeals to protect our own 21 rights, it's relating to that judgment. And so I don't know 22 how to really -- you know, we can't -- I cannot come up with a 23 way to fashion a stipulation, that would carve out anything 24 that would be satisfactory to Mr. Rukavina, that would also 25 provide -- or would allow Century to step in, protect its

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SUPP APP 1160 Colloquy 20

1 rights in the Court of Appeals, because the judgment in fact 2 is the judgment from the state court. 3 So consequently, Your Honor, I think that we can 4 dispense with this by noting that the plan doesn't bind us 5 based upon its express terms and based on the express terms of 6 1141. Additionally, there's not an injunction that is here 7 that you're seeking to be enforced, but they're actually 8 asking the Court to issue a new injunction which requires an 9 adversary proceeding, after notice, and a full opportunity for 10 discovery and a hearing. And since your Court already said 11 we're not going to make a determination as to whether the

12 trust was formed, that really dispenses with a lot of the 13 evidence that would have been at issue. 14 Thank you, Your Honor. 15 THE COURT: Thank you, Mr. Hesse. 16 You may call your first witness, Mr. Rukavina. 17 MR. RUKAVINA: Before that, Your Honor, I'd ask to

18 admit certain exhibits that I hope are of no controversy. 19 THE COURT: Okay. 20 MR. RUKAVINA: And if we can look at my exhibit list, 21 it would be exhibits -- first it would be Exhibits A through 22 N, as in Nancy, which are documents filed of record with this 23 Court. So I move for A through N, Your Honor. 24 MR. HESSE: No objection for A through N, Your Honor. 25 (Documents were hereby received into evidence as Debtor's

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SUPP APP 1161 Colloquy 21

1 Exhibits A through N, as of this date.) 2 THE COURT: A through N admitted. 3 MR. RUKAVINA: Then also what I hope is going to be 4 noncontroversial, YY, ZZ, AAA, BBB, CCC, DDD, all the way 5 through KKK, again, filings before the appeal court and Judge 6 Solis and the state court judgment. 7 MR. HESSE: Your Honor, we object to Exhibit YY, and 8 that's the pleading in the state court action. I don't 9 believe it has any relevance today. 10 MR. RUKAVINA: I'll remove YY. 11 THE COURT: Any problem with all but YY on the range

12 from -- the range was from YY through KK. 13 MR. HESSE: Through KK? 14 MR. BOWEN: KKK, Your Honor. 15 THE COURT: Or KKK. Sorry. 16 MR. HESSE: No objection to ZZ. Sorry. 17 MR. BOWEN: No objection to BBB, CCC, or DDD.

18 Was there anything else, Mr. Rukavina, that I missed? 19 MR. RUKAVINA: Yes, the last page, EEE through KKK. 20 And I apologize about the numbering. It's not the clearest. 21 MS. DELEON: And AAA; I don't think that was -- 22 THE COURT: AAA? 23 MR. BOWEN: Yes, AAA. 24 THE COURT: And I don't think you said one way or on 25 AAA, which is the findings of the state court.

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SUPP APP 1162 Colloquy 22

1 MR. BOWEN: Sorry, Your Honor. I'm struggling a bit 2 here. 3 THE COURT: It's okay. 4 MR. BOWEN: Yes, Your Honor. No. No objection to 5 AAA. 6 Tell me again; I'm sorry. Mr. Rukavina? 7 MR. RUKAVINA: Sure. So EEE through KKK. 8 MR. BOWAN: No objection to EEE, FFF -- correct me if 9 I'm doing something wrong -- GGG, HHH, III, JJJ, or KKK. 10 THE COURT: Then ZZ through KKK -- is that right? 11 MR. RUKAVINA: Yes, Your Honor.

12 THE COURT: -- are admitted. 13 (Documents were hereby received into evidence as Debtor's 14 Exhibits ZZ through KKK, as of this date.) 15 MR. RUKAVINA: Your Honor, I will call -- 16 MR. HESSE: Your Honor, while we're going through 17 exhibits, why don't we go ahead and also include O --

18 MR. RUKAVINA: You're on my list? 19 MR. HESSE: I'm on your list: O, P -- 20 THE COURT: Hold on just a second, Mr. Hesse. Let me 21 catch up with you. All right, O. 22 MR. HESSE: O, P, Q, R, S, T, and V. 23 MR. RUKAVINA: Your Honor, no objection, except I 24 don't think we have R. I don't think we were able to get it 25 on time.

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SUPP APP 1163 Colloquy 23

1 MR. HESSE: R would be -- 2 MR. RUKAVINA: R is blank; we were not able to get 3 that transcript. 4 MR. HESSE: Your Honor, R would be Century's Exhibit 5 52. 6 MR. RUKAVINA: If counsel's representing that's the 7 same, then no objection to Century 52. 8 MR. HESSE: Century 52 is the transcript of hearing 9 on November 3, 2015 on the motion to clarify trust agreement. 10 THE COURT: R, though, I think is the October 28th 11 transcript.

12 MR. HESSE: Oh, Your Honor, that would be Century 13 Exhibit 49, transcript of hearing of motion for leave, 14 trustee's expedited motion to clarify trust agreement, October 15 28th, 2005, 9 a.m. 16 THE COURT: Okay. Mr. Rukavina, the exhibits that 17 have been listed you're okay with? They're on your list?

18 MR. RUKAVINA: Okay. I have no problem with that, 19 but here's -- I have no problem with my -- I believe it 20 started at O. I have no problem with my O through V. I'm 21 telling Your Honor that there is no R. R is a 2013 22 transcript. 23 THE COURT: Yeah. So we will -- 24 MR. RUKAVINA: Mr. Hesse was referring to the 2015 25 transcript. So again, we were not able to get all of the --

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SUPP APP 1164 Colloquy 24

1 MR. HESSE: No -- no, that would be -- that would 2 make no sense, because that's document number 142 in a 3 bankruptcy court. That has to be a 2015. 4 MR. RUKAVINA: Yeah, you're probably correct about 5 that. 6 MR. HESSE: And so I think the 2013 is a 7 typographical error. That would be Century's Exhibit -- what 8 did I say? 9 THE COURT: 49, I think. 10 MR. HESSE: 49. 11 MR. RUKAVINA: No objection to Century 49, Your

12 Honor. 13 THE COURT: Okay. Century 49 is in. 14 (Document was hereby received into evidence as Century's 15 Exhibit 49, as of this date.) 16 THE COURT: And O, P, Q, S, T, V of the trustee are 17 in.

18 (Documents was hereby received into evidence as Trustee's 19 Exhibits O, P, Q, S, T, V, as of this date.) 20 MR. RUKAVINA: Your Honor, I'll call Trey Crawford 21 for purpose of authentication, and I hope I can proffer his 22 testimony. 23 THE COURT: Okay. 24 MR. RUKAVINA: It's Exhibit QQ. 25 MR. BOWEN: Your Honor, we have no objection to

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SUPP APP 1165 Colloquy 25

1 authenticity. Our objection to QQ is just relevance. It's a 2 piece of discovery from the state court action, and we don't 3 believe it has any relevance today, Your Honor. 4 THE COURT: Response on relevance? 5 MR. RUKAVINA: I'll make the relevance -- I'd ask the 6 Court to carry the relevance objection. 7 THE COURT: Okay. 8 MR. RUKAVINA: I was going to call Mr. Crawford only 9 to authenticate the document. 10 THE COURT: Okay. Mr. Crawford? 11 MR. RUKAVINA: May I proffer his testimony?

12 (Witness sworn) 13 THE COURT: You may be seated. 14 Yeah, you can proffer and then be subject to cross- 15 examination. 16 MR. RUKAVINA: Okay. If you'll look at QQ while I'm 17 proffering your testimony, please.

18 THE COURT: Let me switch books just a minute. 19 MR. RUKAVINA: It's in volume 1. 20 Your Honor, if called to testify, Mr. Crawford would 21 testify that he was lead counsel for Ms. Doe in the underlying 22 state court lawsuit. Exhibit QQ is a true and correct copy of 23 certain disclosures served upon Mr. Crawford and his firm by 24 insurance defense counsel hired for Pastazios Pizza at that 25 time, prior to Century denying coverage and denying a defense.

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SUPP APP 1166 Colloquy 26

1 And that would close his direct proffer. 2 THE COURT: Any questions of this witness? 3 MR. BOWEN: You're finished with this witness 4 completely? 5 MR. RUKAVINA: Yes. 6 MR. BOWEN: No questions, Your Honor. 7 THE COURT: You want to make your relevance 8 objection? 9 MR. BOWEN: I do assert the relevance objection to QQ 10 just because it's an unsworn piece of discovery in the state 11 court lawsuit. I can't imagine how it has any relevance to

12 the questions the Court's being asked to address today. 13 THE COURT: Mr. Rukavina, I think you addressed this 14 a little bit in one of your pleadings, but go ahead. 15 MR. RUKAVINA: Your Honor, it is Century that is 16 arguing that there is no prejudice to the trust by proceeding 17 as it has in the appeal. We will show Your Honor that when

18 Century controlled anything to do in this lawsuit, their 19 counsel, their chosen counsel chose to answer discovery in 20 such a way as to give them an excuse to deny coverage. That 21 goes to the heart of the reason why we're here today, the 22 heart of why this Court should not allow someone else to speak 23 for this trust 24 THE COURT: Anything else on the relevance objection? 25 MR. BOWEN: Your Honor, I don't understand -- the

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SUPP APP 1167 Seidel - Direct 27

1 question today is whether the Court is going to enforce the 2 plan and make us file something in the Court of Appeals. So 3 yes, we assert the relevance objection. I have nothing 4 further to say. 5 THE COURT: QQ is admitted. 6 (Certain disclosures served upon Mr. Crawford were hereby 7 received into evidence as Debtor's Exhibit QQ, as of this 8 date.) 9 MR. RUKAVINA: Your Honor, I have nothing further for 10 Mr. Crawford. 11 THE COURT: You did a good job, Mr. Crawford.

12 MR. CRAWFORD: Thank you. I even wore contacts. 13 MR. RUKAVINA: Your Honor, I'll call Mr. Seidel. 14 THE COURT: Mr. Seidel? 15 (Witness sworn) 16 THE COURT: You may be seated. 17 DIRECT EXAMINATION

18 BY MR. RUKAVINA: 19 Q. Sir, if you'll please identify yourself for the record. 20 A. Yes, sir. My name is Scott Seidel. 21 Q. Okay. Do you know Mr. Hesse from before? 22 A. Yes. 23 Q. How so? 24 A. He had called me with regard to a fee application for his 25 firm in a case that I'd hired his firm in to be -- when I was

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SUPP APP 1168 Seidel - Direct 28

1 the trustee. 2 Q. What case was that? 3 A. It was called Tagnet (ph.). 4 Q. And was he with Hunton & Williams? 5 A. Yes. 6 Q. And did they do a lot of work? 7 A. Yeah, I paid him hundreds of thousands of dollars. 8 Q. All right. So -- 9 A. Paid the firm. 10 Q. -- Hunton is your former lawyer? 11 A. Yes, Your Honor -- yes, sir.

12 Q. And what does it feel like today having Hunton examine -- 13 MR. HESSE: I'm going to object to relevance, Your 14 Honor. 15 THE COURT: Relevance? 16 MR. RUKAVINA: Your Honor, it's again that his former 17 counsel is now going after him, purporting to add for the

18 trust benefit in the Court of Appeals, again, to the prejudice 19 issues. 20 THE COURT: Um-hum. Sustained. 21 MR. RUKAVINA: Okay. 22 Q. If you'll turn to Exhibit M, Mr. Seidel? 23 A. Yes. 24 Q. This is the order confirming the plan? 25 A. Yes.

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SUPP APP 1169 Seidel - Direct 29

1 Q. Okay. If you'll turn to page 3, the first ordered 2 paragraph "defines creditor trust agreement", do you see that, 3 sir? 4 A. Yes, sir. 5 Q. Have you signed a creditor trust agreement -- 6 A. Yes, sir. 7 Q. -- with Pastazios? 8 A. Yes, sir. 9 MR. HESSE: Your Honor, we're not trying this issue 10 today, so I would object to this being relevant. We'll 11 stipulate that Mr. Seidel will testify that he signed the

12 trust agreement and that they're -- for purposes of today's 13 hearing, that the plan is effective, and that it's 14 substantively consolidated, and that the trust -- and just so 15 we -- that we're not -- only for purposes of today. 16 THE COURT: Well, the question was just whether he 17 had signed. Overruled.

18 Q. And if we go a page further, you'll see that there's a 19 provision on page 4 about the debtor paying 50,000 dollars to 20 reacquire equity in the reorganized Pastazios Pizza. Do you 21 see that, sir? 22 A. Yes, sir. 23 Q. Was that 50,000 dollars paid? 24 A. Yes, sir, finally. 25 Q. Okay. Approximately what time?

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SUPP APP 1170 Seidel - Direct 30

1 A. In May. 2 Q. Okay. And Exhibit M, it's already been admitted, but 3 just if you'll confirm for the Court that that is the trust 4 agreement that Mr. Deari and you signed? 5 A. Yes, sir, it is. 6 Q. Okay. Now, are you familiar with the Jane Doe litigation 7 and the judgment entered in January -- I'm sorry, in July of 8 this year? 9 A. Yes, sir. 10 Q. And how so? 11 A. I was involved. I was at the litigation. I spoke with

12 my counsel that I employed in the matter, and was there for 13 not every minute of the trial but for the vast majority and 14 for the decision that was made by the judge. 15 Q. Okay. And did you request Century to provide a defense 16 against that claim? 17 A. Yes, sir.

18 Q. And did Century -- how did Century respond? 19 A. They refused. 20 Q. What did you do then to defend against that claim? 21 A. I hired counsel. 22 Q. Who did you hire? 23 A. Chen Dawson (ph.). 24 Q. And what did you have that counsel do? 25 A. Anything and everything they could to defeat the claim.

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SUPP APP 1171 Seidel - Direct 31

1 Q. You were trying to get a zero claim against the trust? 2 A. I was trying to get a zero claim against the trust. 3 Q. In your opinion, did they do everything that they could 4 have? 5 A. Yes, sir, and the judge in the state court even commented 6 they had done a -- a good job. 7 Q. Did we seek any kind of continuance from Judge Ginsberg 8 prior to proceeding? 9 A. Yes, sir. 10 Q. What did he say? 11 A. He said that he never says never, but in this instance,

12 the Jane Doe suit, there was 99.9 percent chance there would 13 not be a continuance; that matter had been pending too long. 14 A. And ultimately a judgment was entered against the trust, 15 correct? 16 A. Yes, sir. 17 Q. Were you surprised?

18 A. I was surprised by the amount, yes, sir. 19 Q. Were you surprised about the liability? 20 A. Yes, sir. 21 Q. Very briefly, did Mr. Deari admit to getting Ms. Doe 22 drunk? 23 A. Yes. 24 MR. BOWEN: Objection, Your Honor. Hearsay. 25 Relevance.

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SUPP APP 1172 Seidel - Direct 32

1 MR. RUKAVINA: Your Honor, we'll let the findings of 2 fact speak for themselves. The question goes to what is going 3 on with the appeal, so I do think that there is some relevance 4 to the trustee's decision making. But I heard Your Honor 5 yesterday, in his order, say that this is going to be a narrow 6 hearing today, and so I'm just going to ask for some guidance 7 from the Court. I really -- I agree that the discussions with 8 Century that were had about whether to fund an appeal or not 9 are not relevant for today. It's only to the extent that 10 Century makes them relevant. So if Your Honor will apply the 11 goose and gander rule, I don't need to ask these questions.

12 THE COURT: I will. 13 Q. What was the appeal deadline? 14 A. October 26th. 15 Q. Did you appeal? 16 A. No, sir. 17 Q. Now, are you familiar with Century's pleadings, as they

18 filed in the appeal court, seeking leave to appeal and seeking 19 to intervene to appeal? 20 A. Yes. 21 Q. Okay. And do you have a problem with what Century was 22 trying to do in the appeals court? 23 A. Yes. 24 Q. And why do you have a problem with that? 25 A. Well, because they're speaking on behalf of Pastazios in

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SUPP APP 1173 Seidel - Direct 33

1 that appeal process, and I think it's confusing. And Century 2 obviously is answerable only to itself and only has its 3 motivations at heart, rather than a trustee of a trust that 4 has fiduciary duties to creditors, et cetera. 5 Q. How long have you been a bankruptcy trustee? 6 A. Many years, twenty years. 7 Q. Approximately how many bankruptcy estates have you 8 administered? 9 A. Thousands. 10 Q. Can you administer a bankruptcy estate or a 11 post-confirmation estate when someone else is purporting to

12 act for you? 13 A. No. 14 Q. Have you ever seen such a thing before? 15 A. No, but it was a tremendously unusual circumstance, so I 16 thought it was necessary to bring this to the Court's 17 attention. You have an insurance company denying coverage yet

18 trying to wrestle away and assert appeal -- appellate rights 19 for the debtor. 20 Q. When did Century first become interested, to your 21 knowledge, and what all was going on with the lawsuit? 22 A. Once we contacted them and made them aware of the large 23 judgment that was entered; otherwise they ignored this 24 completely. 25 Q. Now, who's the fiduciary in this case?

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SUPP APP 1174 Seidel - Direct 34

1 A. Me. 2 Q. What do you understand your duties to be and to who? 3 A. My duties are to my creditors, and narrow fiduciary 4 duties. 5 Q. And to the -- to the Court, with some oversight? 6 A. Yes. 7 Q. Okay. Does Century have any duties, to your knowledge, 8 fiduciary or otherwise, to this Court or to any of your 9 beneficiaries? 10 A. Absolutely not. 11 Q. Now, if you'll look at Exhibit QQ, and if you'll look at

12 the third page, in particular. Do you see the answer to 13 request number three? 14 A. I do. 15 Q. Okay. And it asks Pastazios to state the factual basis 16 of your claim. Was Pastazios making a claim in that lawsuit? 17 A. Not that I recall.

18 Q. Do you have any idea for why an attorney would even 19 answer this request? 20 A. No. 21 Q. Do you have any concern about how this request was 22 answered by the insurance counsel hired for Pastazios by 23 Century? 24 A. Yes, it appears to be geared to vitiate coverage. 25 Q. Because if it's not the result of negligence, then it's

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SUPP APP 1175 Seidel - Direct 35

1 the result of intentional, which is excluded, correct? 2 MR. BOWEN: Objection. Leading, Your Honor. 3 THE COURT: Sustained. 4 Q. Why is it geared towards excluding coverage? 5 A. Because of the negligence issue you mentioned. And if 6 it's intentional then there would be no coverage. 7 Q. And if you look at response -- a little bit later, 8 response number 7, "Please disclose any insuring agreements of 9 which you are aware". You see the answer is, "Defendants will 10 supplement". 11 A. Yes.

12 Q. Do you see that? Does that cause you any concern, the 13 nondisclosure of the insurance policy? 14 A. Yes, it does. 15 Q. Okay. Does this Exhibit QQ relate, in any way, to your 16 concerns about what Century is trying to do before the 17 appellate court?

18 A. It does. It -- to me, it shows the motivations and the 19 way that they will act in an appeal to vitiate coverage and 20 not in the best interests of creditors of the estate, 21 obviously. 22 Q. Okay. And will they have an opportunity to do so if 23 they're appealing for the trust? 24 A. I believe so. 25 Q. Do you think they have a motive to do so?

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SUPP APP 1176 Seidel - Direct 36

1 A. I believe they have a strong motive to do so. 2 Q. Are we engaged with other litigation with Century right 3 now anywhere regarding coverage? 4 A. Yes. 5 Q. And where is that? 6 A. Federal district court. 7 Q. Judge Solis? 8 A. Judge Solis. 9 Q. And how would you characterize that litigation? 10 A. Tremendously contentious. 11 Q. Okay. Now, how much money did Ms. Doe seek from Judge

12 Ginsberg at the state court trial -- or not how much money; 13 what size of judgment did she ask for? 14 A. They -- they were asking -- is that what you're saying? 15 Q. Yes. 16 A. That they were -- I think they were asking for sixty 17 million dollars.

18 Q. And ultimately a judge awarded some twenty million 19 dollars; it goes up and down depending -- 20 A. Yes, Your Honor -- yes, sir, twenty -- twenty-ish. 21 Q. Now, did you discuss with counsel for Ms. Doe, prior to 22 making a decision whether to appeal or not, the potential that 23 you might appeal? 24 A. Yes. 25 Q. Okay. Was there any federal cross-appeal made?

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SUPP APP 1177 Seidel - Direct 37

1 A. Yes. 2 Q. Okay. Does that give you any concern about allowing 3 Century to appeal for the trust? 4 A. Yes, it could expose the trust to greater damages and 5 expense and delay, obviously. 6 Q. Because of the potential for a cross-appeal? 7 A. Yes. 8 Q. Okay. Any other issues that -- so we've identified 9 concern that Century will be motivated by its self-interest. 10 We've identified the potential that their appeal could go 11 haywire and actually have a higher liability against the

12 trust. We've identified the concern that you're the fiduciary 13 and that Century has no obligation to this Court or anyone. 14 Any other concerns about what Century's trying to do with the 15 appeals court? 16 A. No. 17 Q. Let me ask you this: how long will an appeal last?

18 A. I don't -- it could last forever, I mean, years. The 19 delay that I mentioned earlier. 20 Q. Is a a remand a potential? 21 A. Remand is a potential, and then they could bring it back, 22 and then we've got more expense starting over, and the trust 23 doesn't have any funds to speak of. We've got 40 -- 30, 24 40,000 dollars. We can't afford another trial. 25 Q. And how much of that 30 or 40,000 dollars is geared

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SUPP APP 1178 Seidel - Direct 38

1 towards paying what's owed Chen Dawson? 2 A. A portion. 3 Q. Okay. And have you paid my firm anything? 4 A. No, I haven't paid your firm one penny. 5 Q. Have you paid yourself anything? 6 A. No, of course not. 7 Q. So if a remand happens, who's going to pay for -- 8 A. There's no money. 9 Q. Not to mention the years of delay. 10 A. Yes. 11 Q. Okay. Now, can you see your role as an effective

12 fiduciary and trustee in this case being compatible with 13 Century speaking for the trust on appeal? 14 A. No. 15 Q. Would you have any control over what Century might do? 16 A. No, I wouldn't. 17 Q. And who would face the potential liability if something

18 went haywire with what Century was doing? 19 A. Conceivably, me. 20 Q. Has Century offered, in any way, to indemnify you, 21 personally, or your counsel, or the trust? 22 A. No, sir. 23 Q. Okay. As far as the allowance of Ms. Doe's claim, just 24 so I understand, the appeal deadline has run and you did not 25 appeal?

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SUPP APP 1179 Seidel - Direct 39

1 A. Correct. 2 Q. And are you asking the Court to find that her claim is 3 allowed? 4 A. Yes, sir. 5 Q. And why are you asking that? 6 A. So that we can know where everyone lies in terms of 7 rights, et cetera, duties. 8 MR. RUKAVINA: Your Honor, I'll pass the witness. 9 Thank you. 10 THE WITNESS: Yes. 11 THE COURT: Does debtor's counsel have any questions

12 of the witness? 13 MS. DELEON: No, Your Honor. 14 THE COURT: I think it makes sense for both of you to 15 go before Century goes. 16 MR. HESSE: Thank you, Your Honor. 17 THE COURT: Your turn.

18 MR. BOWEN: Your Honor, before I begin asking 19 questions I want to see if we can get some stipulations on 20 pre-admitting some of our exhibits. The list is a lot shorter 21 now, Your Honor, in light of the Court's ruling yesterday, so 22 what we're offering is Exhibits 58, 59, 60, 61, 67, 33, 47, 23 11. 24 UNIDENTIFIED SPEAKER: Hold on. One moment. 25 MR. BOWEN: 47, 11. 68 and 42.

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SUPP APP 1180 Seidel - Direct 40

1 THE COURT: Let me switch books. 2 MR. BOWEN: It's going to take me a bit, Your Honor. 3 MR. RUKAVINA: Let me start with the easy ones. 4 THE COURT: All right. Let me switch books just for 5 a minute. 6 UNIDENTIFIED SPEAKER: Is there another book? 7 MR. RUKAVINA: Your Honor, may I? 8 THE COURT: Um-hum. 9 MR. RUKAVINA: Your Honor, we have no objection to 10 Century's 58, 59, 60, 61, 67 or 68. Let me just take a look 11 at 68 real quick to make sure that's the executed one. Yes,

12 it is. It is. Yeah, it is. I'll stick it on the last page. 13 It is. 14 Now, Your Honor, 42, 47, 33, and 11 go to issues 15 which I believe Your Honor is excluding from consideration 16 today. And if those are going to come in then all of mine 17 need to come in, and I need to be able to go ask the trustee

18 some more questions. These are communications regarding the 19 purpose of the Trust, the conduct of the potential appeal. So 20 I would object to those based on the scope of this hearing as 21 Your Honor has phrased it. 22 MR. BOWEN: May I respond, Your Honor? 23 THE COURT: You may. 24 MR. BOWEN: I'm going to start with 33. You 25 understand I'm doing this out of order.

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SUPP APP 1181 Seidel - Direct 41

1 THE COURT: All right. Let me get to 33. 2 MR. BOWEN: I mean, it might make more sense if we 3 carried this, but, I mean, we'll explain it to the Court. 4 The witness was asked about why he chose not to 5 appeal. Exhibit 33 is his request asking Century to pay his 6 appeal. 7 MR. RUKAVINA: Your Honor, I don't recall asking Mr. 8 Seidel why he chose not to appeal. I recall asking him did he 9 appeal. 10 MR. BOWEN: Well, he also asked him, Your Honor, if 11 there was a concern the judgement would get larger and delay

12 and those kind of things, so -- 13 MR. RUKAVINA: Well, Your Honor, that relates not to 14 his decision not to appeal. That relates to his decision to 15 contest Century's attempt to appeal. 16 MR. BOWEN: Also, Your Honor, in Exhibit 33 the Trust 17 states, and this is from Munsch, Hardt. This would be Mr.

18 Seidel's lawyer. It states: 19 "Not only does the Trust request that Century fund an 20 appeal but also that the Trust believes there may be valid 21 appellate points." 22 MR. RUKAVINA: Your Honor, again, I am prepared to 23 respond to all of this, but then I need to include additional 24 exhibits, and I need to ask Mr. Seidel additional questions. 25 THE COURT: Why don't we take the other three

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SUPP APP 1182 Seidel - Direct 42

1 exhibits that are still outstanding? That's 47, 11 and 42. 2 MR. BOWEN: Okay. Turning to 47, Your Honor, 47 is a 3 response to 33 some months later. It's from counsel Hunton & 4 Williams for Century, and it attaches a stipulation that 5 Century's offering to enter into, in which Century agrees to 6 pay for an appeal. The trustee would agree to appeal. 7 Trustee alone would select qualified and appropriate counsel, 8 and trustee would control the appeal, and that the trustee 9 would not waive any coverage rights. 10 So, I believe, Your Honor, this goes also directly to 11 Mr. Seidel's testimony about how he didn't appeal because he

12 was afraid the judgment was going to get larger and that it 13 would cause delay and expense. And he was worried about 14 expense. 15 The fact is, Your Honor, that Century, at his 16 request, offered to pay for the appeal and acceded to every 17 one of his demands.

18 THE COURT: Ms. Rukavina? 19 MR. RUKAVINA: Well, Your Honor, there's two sides to 20 every story, and I think that counsel -- I would like this 21 exhibit to come in. I would like Your Honor to know what 22 happened. I think Mr. Seidel would like Your Honor to know 23 what happened. We have no cause for concern before Your Honor 24 or any judge that what we did was absolutely correct and that 25 Century was negotiating with us in bad faith.

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SUPP APP 1183 Seidel - Direct 43

1 I want all this to come in. It's up to Your Honor. 2 So long as, if it comes in, I get a chance to ask Mr. Seidel 3 about this. 4 THE COURT: I'll admit the exhibits, and you can have 5 a second pass at him and take an opportunity to offer to it. 6 MR. RUKAVINA: Thank you, Your Honor. 7 THE COURT: Just for the record, I guess I'll just 8 say in the end 58, 59, 60, 61, 67, 33, 47, 11, 68 and 42 are 9 now in. 10 (Notice of appeal filed by Century in the court of appeals was 11 hereby received into evidence as Century's Exhibit 58, as of

12 this date.) 13 (Motion to intervene filed by Century in the court of appeals 14 was hereby received into evidence as Century's Exhibit 59, as 15 of this date.) 16 (Motion for extension filed by Century in the court of appeals 17 was hereby received into evidence as Century's Exhibit 60, as

18 of this date.) 19 (Supplement filed by Century in the court of appeals was 20 hereby received into evidence as Century's Exhibit 61, as of 21 this date.) 22 (Response filed on behalf of Mr. Seidel in the court of 23 appeals objecting to Century's efforts to intervene was hereby 24 received into evidence as Century's Exhibit 67, as of this 25 date.)

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SUPP APP 1184 Seidel - Cross 44

1 (Letter sent to Century by Mr. Seidel's lawyers shortly after 2 judgment was entered in the Doe action was hereby received 3 into evidence as Century's Exhibit 33, as of this date.) 4 (Letter from Hunton & Williams to Mr. Seidel's counsel was 5 hereby received into evidence as Century's Exhibit 47, as of 6 this date.) 7 (Creditor trust agreement was hereby received into evidence as 8 Century's Exhibit 68, as of this date.) 9 (Document was hereby received into evidence as Century's 10 Exhibit 42, as of this date.) 11 MR. RUKAVINA: Your Honor, we haven't discussed 11.

12 Just one second, please. 13 THE COURT: Oh, I'm sorry. I thought you were saying 14 for the rest of it -- you said 11 -- 15 MR. RUKAVINA: No, that's fine. 11 is the same. I 16 would give the same responses I did to the other ones. 17 THE COURT: All right.

18 MR. RUKAVINA: Is 11 admitted? 19 THE COURT: You may proceed. 11 is in. 20 (E-mail exchange between Mr. Seidel and Mr. Erler from 21 February, 2015 was hereby received into evidence as Century's 22 Exhibit 11, as of this date.) 23 CROSS-EXAMINATION 24 BY MR. BOWEN: 25 Q. Mr. Seidel?

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SUPP APP 1185 Seidel - Cross 45

1 A. Yes, sir. 2 Q. If I understand correctly, you have no objection in this 3 court to Century appealing in its own name. You just don't 4 want there to be any confusion that Century is appealing for 5 you. Is that a correct summary? 6 A. That's fair. 7 Q. Okay. You have a witness notebook there in front of you? 8 A. I do now. 9 Q. Would you please look at Exhibit 58? Exhibit 58 is the 10 notice of appeal that Century filed in the court of appeals. 11 Isn't that correct?

12 A. Yes, sir. 13 Q. It states very plainly that it's filed on behalf of 14 Century Surety Company. Right? 15 A. Yes. 16 Q. There's no indication, hint or any type of implication 17 that Century is acting with your permission or in your stead,

18 right? 19 A. It says Century. 20 Q. Well, it also does not say that -- 21 A. It does not say. 22 Q. -- that Century is appealing for you, right? 23 A. Correct. 24 Q. If you'd look at Exhibit 59, please. 25 A. Yes, sir.

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SUPP APP 1186 Seidel - Cross 46

1 Q. This is Century's motion to intervene filed in the 2 appellate court, right? 3 A. Yes. 4 Q. If I turn you -- turn to the page 1 -- she doesn't have a 5 number on it, but it, not surprising, is the one before page 6 2. 7 A. Yes. 8 Q. Okay. And it states right there at the top that it's 9 being filed by Century Surety Company. Right? 10 A. It does. 11 Q. Does not state that it's being filed by Century Surety

12 Company for you or with your permission. Right? 13 A. Yes. 14 Q. And, if you would, turn to page 6. You see on paragraph 15 13 there the sentence that begins with the word "however"? 16 "However, the trustee later refused to authorize an 17 appeal, even though Century had agreed to its stated terms

18 under a full reservation of right." 19 I'm not asking you whether you agree with that whole 20 statement, but wouldn't you agree that it's plainly apparent 21 from this document that Century filed in the court of appeals 22 that you oppose -- that you chose not to appeal on behalf of 23 the Trust? 24 A. It says that. 25 Q. I'm sorry?

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SUPP APP 1187 Seidel - Cross 47

1 A. It says that the trustee refused to authorize the appeal. 2 Q. Okay. Exhibit 60. This is the motion for extension of 3 time that Century filed in the court of appeals. 4 A. Yes. 5 Q. It states again on page 1 that it's being filed by 6 Century Surety Company. No indication that it's being filed 7 by you or with your permission. Right? 8 A. Correct. 9 Q. Again, if you'd turn to page 6. Paragraph 11, same 10 sentence from the other document. Painfully apparent 11 that -- from Century's papers filed in the court of appeals

12 that you do not -- you have not chosen to appeal the judgment. 13 Right? 14 A. It says the same sentence, trustee refused to authorize 15 this -- the appeal. 16 Q. Exhibit 61. This is a supplement that Century filed in 17 the court of appeals. Let me ask you first, are Exhibit 58,

18 59, 60, and 61, are they all the documents that Century has 19 filed in the court of appeals to date? 20 A. My understanding. I'm not positive. 21 Q. Okay. 22 A. If you say so, I believe you. 23 Q. Turn to the page, page 1 on this one as well. 24 A. Yes, sir. 25 Q. It plainly states it's being filed by Century Surety

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SUPP APP 1188 Seidel - Cross 48

1 Company, right? 2 A. It says Century Surety Company. 3 Q. Doesn't say anything about filing it with your permission 4 or on your behalf, right? 5 A. Correct. 6 Q. Now, Exhibit 67. This is a response that your lawyers 7 filed on your behalf in the court of appeals objecting to 8 Century's efforts to intervene. Right? 9 A. Yes, sir. 10 Q. Now, you would agree with me, wouldn't you, sir, that 11 there's absolutely no confusion or could be absolutely no

12 confusion in the court of appeals as to whether or not you 13 chose to appeal this judgment? 14 A. This makes it -- this response of the trustee obviously 15 alerts anyone to that fact. 16 Q. Yes. And it makes it painfully obvious that you object 17 in the court of appeals to Century being able to intervene in

18 the appeal, right? 19 A. Yes. 20 Q. And that's an issue that's joined right now in the Dallas 21 Court of Appeals. 22 A. My understanding. Yes, sir. 23 Q. Now, you'd agree, sir, that one of your jobs as trustee 24 is to defend contested claims? 25 A. Yes.

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SUPP APP 1189 Seidel - Cross 49

1 Q. Now, you made the decision, if I understand your prior 2 testimony, not to appeal this twenty million dollar judgment. 3 Right? 4 A. Yes. 5 Q. And that is true even though you believed that there were 6 valid appeal points. Right? 7 A. No. 8 Q. If you'd look at Exhibit 33, please. Exhibit 33 is a 9 letter that your lawyers sent to Century shortly after the 10 judgment was entered in the Doe action, right? 11 A. Yes.

12 Q. In the next to the last paragraph on page 2, first, 13 you're requesting Century to provide for an appeal. 14 A. Yes. 15 Q. That's right? 16 A. Yes. 17 Q. And in the next sentence you're saying the trustee

18 believes that there may be valid appeal points. Right? 19 A. It says there may be valid appeal points. 20 Q. And that's a true statement, right? You believe there 21 may be valid appeal points. 22 A. There may be valid appeal points. You have a twenty-one 23 million dollar judgment. There may be valid appellate. 24 Q. And obtaining a reversal of that judgment against the 25 Trust, that twenty million dollar judgment, that'd be a

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SUPP APP 1190 Seidel - Cross 50

1 positive thing, wouldn't it? 2 A. Yes. 3 Q. Okay. 4 A. If you can assure me that that's the only thing that can 5 happen here. 6 Q. Well, what Century has asked -- is going to ask the Court 7 to do, as far as you understand it, is to get the judgment 8 reversed. Right? 9 MR. HESSE: Objection, Your Honor. That's 10 speculation. How could this man known what Century will ask 11 in the future? objection

12 MR. BOWEN: Fair enough. I withdraw that question, 13 Your Honor. 14 THE COURT: Okay. 15 Q. Now, you testified that, I believe, if I heard you 16 correctly, you were concerned about a remand and maybe it had 17 to be tried again.

18 A. That is a concern. 19 Q. Okay. Now, you understand, sir, don't you, that before 20 there could be a remand there would have to be a reversal of 21 this twenty million dollar judgment, right? 22 A. Yes. 23 Q. Okay. And in the event of a remand, your concern is that 24 it would be tried again. Right? 25 A. It would be. Yes.

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SUPP APP 1191 Seidel - Cross 51

1 Q. How much did you pay the law firm you hired to try this 2 lawsuit? 3 A. I believe it was twenty-five. 4 Q. Twenty-five thousand dollars? 5 A. Thousand. Right. A lot less than twenty million. 6 Q. A whole lot less than twenty million dollars, right? 7 A. Yes, sir. 8 Q. Now, if Century were allowed to appeal this judgment, it 9 wouldn't cost you a dime, would it? 10 MR. HESSE: Objection. Speculation. 11 THE COURT: Overruled.

12 A. If Century were allowed, yeah, it would not. It should 13 not cost me any money. 14 Q. If Century were allowed to appeal would it, as far as you 15 know, jeopardize any of your coverage arguments that you're 16 making in the Dallas Federal District Court? 17 A. Could you repeat that question? I'm sorry.

18 Q. Fine. If Century were allowed to appeal -- 19 A. Yes. 20 Q. -- without your consent, without your agreeing, would it, 21 as far as you know, jeopardize any of your coverage arguments 22 in the Dallas Federal District Court 23 A. I'm not sure of that. 24 THE COURT: If we could -- I know you're -- this is a 25 critical area, but if we could take just a short recess? We

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SUPP APP 1192 Seidel - Cross 52

1 have two matters on our 10 o'clock docket that -- 2 MR. BOWEN: Okay. 3 THE COURT: -- that one's telephonic and one is 4 short. I think both are short. Y'all could leave the 5 courtroom if you want to for, I would think, less than ten 6 minutes, all right? 7 MR. BOWEN: All right. 8 THE COURT: Mr. Seidel, during the recess do not 9 speak with anyone about your testimony, including your 10 attorneys. Do you understand that? 11 THE WITNESS: Yes, Your Honor.

12 THE COURT: Okay. We'll do a CourtCall for the 10 13 o'clock, and if y'all could just be back in a few minutes. 14 (Recess from 10:01 a.m. until 10:17 a.m.) 15 THE COURT: Sorry about that. 16 MR. BOWEN: Oh. We're not the only case on the 17 Court's docket, are we?

18 THE COURT: Ready? 19 MR. BOWEN: I am, Your Honor. 20 THE COURT: You may proceed. Wait. One unusual 21 move, I couldn't see Mr. Rukavina, he's so tall. But he's 22 back there. 23 You may proceed. 24 BY MR. BOWEN: 25 Q. Mr. Seidel.

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SUPP APP 1193 Seidel - Cross 53

1 A. Yes, sir. 2 Q. After you requested Century to pay for your appeal and 3 told them that you believe there may be meritorious grounds, 4 if I understand correctly, there was a period of several weeks 5 there where the parties went back and forth and discussed that 6 topic. Right? 7 A. It would -- yes. Many, many times. 8 Q. Okay. And if you'd look at Exhibit 47, please? 9 A. 47. I have it. 10 Q. Just to put this in context, this is a letter from Hunton 11 & Williams to your counsel talking about that issue of whether

12 or not you're going to appeal. Right? 13 A. Yes, sir. 14 Q. And this is after, I want to say, three months of 15 discussions on the topic? 16 A. Yes, sir. 17 Q. And this is on the appellate deadline. Right?

18 A. Yes, sir. . 19 Q. Okay. And then attached to that is a stipulation. Just 20 so we're clear. This is a stipulation that counsel for 21 Century wrote up and sent to you for your agreement that sets 22 forth the terms under which they were offering to fund the 23 appeal if you would appeal the judgment. Right? 24 A. And at 5 o'clock on the deadline date Century sent us 25 this proposal that didn't incorporate all our demands.

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SUPP APP 1194 Seidel - Cross 54

1 Q. Okay. You gave your deposition yesterday, right? 2 A. I did. 3 Q. And would you agree with me that your decision not to 4 appeal had nothing to do with the time of day that this letter 5 came in. Is that a fair statement? 6 A. That's a fair statement. 7 Q. All right. I mean, if it had come in on the 25th or at 8 8 a.m. on the 26th, your decision not to appeal would have been 9 the same. Right? 10 A. Yeah. Under these circumstances. 11 Q. Okay. And if you look at the stipulation -- I want to

12 make sure it's clear what Century's willing to do -- point 1, 13 Century's offering -- part of Century's offer is that you'll 14 pursue an appeal of this twenty million dollar judgment on 15 behalf of the Trust under a full reservation of your rights. 16 Do you see that, point 1? 17 A. I do.

18 Q. Point 2, Century agreed to be the sole source of funds. 19 They were going to pay one hundred percent of the costs of the 20 appeal. Right? 21 A. Right. 22 Q. Point 3, you would accept Century's offer to fund the 23 appeal under a full reservation of its rights. Right? 24 A. That's what it says. 25 Q. So basically everybody's going to keep their powder dry.

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SUPP APP 1195 Seidel - Cross 55

1 They're going to argue -- everybody's going to keep their 2 arguments that they have at the time, argue about it later. 3 Right? 4 A. I don't know about that. 5 Q. Well, that's what they're offering. Both sides offer 6 under a full reservation of rights. 7 A. That's what -- that -- 8 Q. That's the point, right? 9 A. It says full reservation of rights. 10 Q. Goes on to say that you, and you alone, will get to 11 select qualified and appropriate independent appellate

12 counsel. Right? 13 A. It says that. 14 Q. In point 5, trustee and independent appellate counsel 15 will direct the appeal. So you would get the chance of not 16 only picking counsel but telling them what arguments to make 17 and what arguments not to make on appeal. Right?

18 A. It says direct the appeal. 19 Q. Solely up to you. Right? 20 A. It says direct appeal. Yes, sir. 21 Q. So if you chose -- if it were your wish to tell them to 22 argue only reverse and render points as opposed to reverse and 23 remand points, that'd be something that you could control. 24 Right? 25 A. Yes.

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SUPP APP 1196 Seidel - Cross 56

1 Q. If it was your desire to have them not attack specific 2 findings of fact that you thought were so important, something 3 you could have controlled, right? 4 A. It says "direct the appeal", yes. 5 Q. All right. You're familiar with the Gruber Hurst law 6 firm, right? 7 A. Yes, sir. 8 Q. Gruber Hurst is the law firm who obtained the twenty 9 million dollar judgment against Pastazios? 10 A. Yes, sir. 11 Q. Gruber Hurst is the law firm who brought you in as

12 trustee. 13 A. Yes. That's fair. I mean, they interviewed me. 14 Q. Gruber Hurst is the one -- 15 A. The judge is the one that brought me in as trustee, in 16 other words. 17 Q. Gruber Hurst is the one who first identified you and

18 brought you into this case, right? 19 A. Yes. 20 Q. Isn't it true that three days before you made your 21 decision not to appeal Gruber Hurst threatened to sue you if 22 you filed a notice of appeal? 23 A. I get threatened all the time, but yes, they did, and -- 24 Q. Look at Exhibit 43, please. The top of page 2. 25 "If the trustee appeals the state court" --

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SUPP APP 1197 Seidel - Cross 57

1 A. I'm sorry. I lost you. 2 Q. All right. Top of page 2, the first full sentence. It 3 starts with the word -- 4 A. On what exhibit? 5 Q. Oh. 6 A. I thought you said 43. 7 Q. It is 43. 8 A. 43. 9 Q. Page 2. 10 A. Yes. The letter from Gruber. 11 Q. Right. Page 2.

12 A. Okay. 13 Q. Top of the page. 14 "If the trustee appeals the state court judgment he would 15 be breaching his fiduciary duties to the Trust beneficiaries, 16 including Ms. Doe." 17 See that?

18 A. I see that. 19 Q. So on the one hand, you have Century offering to pay for 20 the appeal. You reserve your rights, and you get to choose to 21 direct the appeal. On the other hand, you have the firm who 22 brought you into this thing threatening to sue you if you do 23 appeal. Right? 24 A. Yes. I get threatened all the time. I don't pay 25 attention to it.

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SUPP APP 1198 Seidel - Cross 58

1 Q. You didn't answer my question, sir. 2 A. Um-hum. 3 Q. Is it correct to say that Gruber Hurst brought you into 4 this bankruptcy proceeding, before you were ever appointed 5 trustee, for the purpose of suing Century, as opposed to 6 defending the claims that they were bringing against 7 Pastazios? 8 A. No, sir. 9 MR. HESSE: Objection, Your Honor. That would be 10 speculation. 11 MS. DELEON: I'll join the objection.

12 THE COURT: Sustained. 13 Q. If you would look at Exhibit 11, please, sir. This is an 14 e-mail exchange between you and Jeff Erler at Gruber Hurst way 15 back in February of this year. Is that right? 16 A. Yes. 17 Q. It's before you were appointed trustee. Is that correct?

18 A. Yes. 19 Q. It was months before Gruber Hurst was able to obtain a 20 judgment against Pastazios. Right? 21 A. Yes. 22 Q. So as you understood it at the time, after you got your 23 hands around it, Gruber Hurst's client was a claimant, was a 24 proposed creditor of the estate, bankruptcy estate. Right? 25 A. Yes, sir.

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SUPP APP 1199 Seidel - Cross 59

1 Q. And the first e-mail that Gruber Hurst sent to you on 2 February 18th is Mr. Erler saying we anticipate appointing a 3 litigation trustee, and he'd like to visit with you 4 potentially about serving in that role. You see that? 5 A. I see it. 6 Q. Then you asked him for information on that a couple of 7 days later if she could run your conflicts. 8 A. Yes, sir. 9 Q. And his response to you is the primary litigation target 10 for the litigation trust is Century Surety Company. Right? 11 A. It says that. Yes, sir.

12 Q. So before you were ever hired and appointed, Gruber Hurst 13 contacted you, brought you on to sue Century to cover a 14 judgment that they planned to get against Pastazios. That sum 15 it up? 16 A. No. The way I take this is that there's a potential that 17 there's a claim. If things go the way that it may go, Century

18 may be an adverse party, and so that's what I was running a 19 conflict check on. 20 Q. Well, they don't tell you Jane Doe's name. Right? 21 A. Right. 22 Q. She's clearly an adverse party at that point. She's 23 their client, right? 24 A. Correct. 25 Q. They don't say your initial adverse party will be Jane

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SUPP APP 1200 Seidel - Cross 60

1 Doe, do they? 2 A. They do not. 3 Q. But that was the reality of the situation. When you were 4 hired your first job was to defend Jane Doe's claims against 5 Pastazios. Right? 6 A. Yes. 7 Q. And it's your job as a trustee. 8 A. Yes. 9 Q. Right? Now, -- 10 A. I did that. 11 Q. Exhibit 68, sir.

12 A. Yes. 13 Q. Now that's the creditor trust agreement that you talked 14 about earlier. 15 A. Hold on a second. Okay. 16 Q. And this is the one that was signed. Right? 17 A. Yes.

18 Q. And you didn't have anything to do with drafting this, 19 did you? 20 A. I did not, sir. 21 Q. All right. But you do understand that this trust 22 agreement includes the concept of a trust advisory board. 23 Right? 24 A. Yes. We've talked about that at length. 25 Q. Okay. And then we also talked about -- and if you'd turn

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SUPP APP 1201 Seidel - Cross 61

1 to page 17 of it, there's a blank as to who the trust advisory 2 board is to be. Right? 3 A. Right. We've been -- 4 MR. RUKAVINA: Your Honor, I object to relevance 5 grounds. And hear me out for a moment. 6 This is the second time now that Century comes to 7 Your Honor and says that there are standing issues with this 8 Trust, but we shouldn't try them today, so don't make a 9 finding, Judge. And then they go into evidence on this. So 10 either they can play by the rules and interject the issue, and 11 Your Honor can make a ruling, and we'll live by it, or this

12 has no relevance to today's hearing. 13 THE COURT: Response on relevance? 14 MR. BOWEN: Your Honor, make no mistake about it. 15 What's going on today is they're asking the Court help them, 16 essentially, uphold this judgment. And this document requires 17 Mr. Seidel to only move forward under the guidance and review

18 of a trust advisory board that was never appointed. 19 The obvious fact from looking at this is that the 20 idea in this situation is to have an independent third-party 21 professional serve on the trust advisory board. What the 22 evidence is going to show in a minute is that Godwin Gruber, 23 Jeff Erler, the same man who hired him to be trustee, 24 considered himself to be the sole member of this trust 25 advisory board.

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SUPP APP 1202 Seidel - Cross 62

1 So what the evidence is going to show is if it worked 2 out the way Godwin Gruber wanted, Godwin Gruber would have 3 been the plaintiff, sued Pastazios, and the sole member of the 4 advisory board overseeing and guiding the trustee, who had the 5 right to fire the trustee. I believe that's plainly relevant 6 to their efforts today to try to interfere with Century's 7 appeal of this judgment. 8 THE COURT: Help me on how it's relevant on the 9 narrow issue that's in front of the Court today. 10 MR. BOWEN: Well, Your Honor, I believe they've come 11 into this court and they've essentially asked the Court -- the

12 Court's not considering whether the plan's valid. I 13 understand that. What they're asking the Court to do is, 14 essentially, I believe, enter an injunction either stopping 15 Century from or limiting Century's rights on appeal or forcing 16 Century to file something that says it does not seek this. It 17 does not move for the benefit of the trustee.

18 The trustee's filed this motion asking for that 19 relief. And he's self-interested. He gets five percent of 20 the recovery. And this was all prewired by the Gruber Hurst 21 law firm. 22 THE COURT: Mr. Rukavina? 23 MR. RUKAVINA: Your Honor, again I have no problem 24 trying that fully and fairly, but then Century can't say oh, 25 and, Judge, whatever your ruling, it's not binding on us.

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SUPP APP 1203 Seidel - Cross 63

1 THE COURT: Sustained on relevance. 2 MR. BOWEN: All right. I'm going to ask a question, 3 and I'm not sure if this was covered by your objection. 4 BY MR. BOWEN: 5 Q. Am I correct, sir, that whenever you made the decision 6 not to appeal you were not acting under the guidance and 7 supervision of a Trust or trust advisory board that's in this 8 agreement approved by the Court? 9 MR. RUKAVINA: Your Honor, I would object to 10 relevance, to legal conclusion, and also mischaracterizing 11 what happened. There was no trust advisory board. Moreover,

12 the trust agreement doesn't require him to consult with the 13 trust advisory board regarding the Doe claim. 14 THE COURT: Sustained on relevance. 15 Q. You are going to recover five percent of whatever 16 judgment you get against Century, right? You personally. 17 A. I will recover five percent of any dollars I touch, which

18 at this point is de minimis, and we've spent hundreds of 19 thousands of dollars. 20 Q. Right. But if you get a twenty million dollar judgment 21 against Century, based on this twenty million dollar judgment 22 that you have against you, you get five percent of that. 23 A. If twenty million dollars comes into the Trust, I would 24 get five percent. 25 Q. Okay.

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SUPP APP 1204 Seidel - Redirect 64

1 MR. BOWEN: I pass the witness, Your Honor. 2 THE COURT: Mr. Rukavina? 3 REDIRECT EXAMINATION 4 BY MR. RUKAVINA: 5 Q. Has your desire or hope for a commission motivated any 6 single action that you have taken in this -- 7 A. Absolutely not. It's disgusting that that's even being 8 asserted. 9 Q. And if you had defeated the Doe claim in front of Judge 10 Ginsberg that means zero dollars, would you have been paid a 11 lick in this case?

12 A. I would have gotten 5 percent on 50,000 dollars, and I've 13 had a little time in the case, and that'd be it. 14 Q. So in -- 15 A. But the fifty -- 16 Q. So in -- 17 A. This five percent commission is not driving what I'm

18 doing here. 19 Q. In fact, you were jeopardizing your own commission by 20 litigating the Doe claim in front of Judge Ginsberg. 21 A. Absolutely, but that's what trustees do. 22 Q. Now, you were asked about this Exhibit 11. You don't 23 have to look at it again. But did Mr. Erler ever tell you not 24 to contest the Doe claim? 25 A. No, sir, he did not.

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SUPP APP 1205 Seidel - Redirect 65

1 Q. Did Mr. Erler ever try to influence on how you would 2 contest the Doe claim? 3 A. No, sir, he did not. 4 Q. Other than Exhibit 43, which we'll get to in a moment, 5 did Gruber Hurst ever give you any input on how you should 6 defend the Doe claim on behalf of the Trust? 7 A. No. 8 Q. With respect to Exhibit 43, the one where they allege 9 that you're breaching your fiduciary duty if you appeal, did 10 you have me go do something about this? 11 A. I had you slap him down.

12 Q. And were they slapped down? 13 A. They were slapped down. 14 Q. Did you consider it in your decision -- 15 THE COURT: Is that a legal term, Mr. Seidel? 16 THE WITNESS: It's a legal term, Your Honor. 17 Q. Did you consider their threat in this letter in any way,

18 shape or form in ultimately deciding not to appeal? 19 A. No. I was threatened by both sides in this matter no 20 matter what I did. Century said I would vitiate coverage if 21 we did this or didn't do that. Jane Doe said they'd sue me if 22 I did this or didn't do that. That rolls off my back. 23 Q. Mr. Seidel, why don't we look at their motion to 24 intervene, please, that counsel asked you about in my 25 exhibits? It is going to be DDD, Davor, Davor, Davor. The

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SUPP APP 1206 Seidel - Redirect 66

1 Davor cube. 2 A. Must be a good one. 3 THE COURT: Did you say triple D? 4 MR. RUKAVINA: Triple D as in David, Your Honor. 5 A. DDD. I have it, sir. 6 Q. Go back to that page 1, which doesn't have a page number 7 on it. 8 A. Okay. 9 Q. Do you see where it talks about Pastazios and Century 10 will suffer prejudice if Century is not permitted to intervene 11 and pursue reversal of the final judgment against Pastazios?

12 A. You keep using the name Pastazios, our debtor. 13 Q. And on page 7 -- if we go to page 7, paragraph 15, 14 "With the deadline to file a notice of appeal having 15 passed, Century is now compelled to participate in the appeal 16 in order to protect Pastazios' interest". 17 Is that what it says?

18 A. That's what it says, sir. 19 Q. And if we go to page 8 and 9. 20 "Without Century's participation in this appeal Pastazios 21 will face joint and several liability that is incompatible 22 with Texas law." 23 Do you see that? 24 A. I see that, and that's what it says, sir. 25 Q. And on page 9,

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SUPP APP 1207 Seidel - Redirect 67

1 "If the improper judgment against Pastazios stands, 2 Pastazios will suffer extreme prejudice." 3 Do you see that? 4 A. I see that, and that's what it says, Pastazios. 5 Q. Who gets to decide whether the Trust suffers prejudice or 6 not? 7 A. I do. 8 Q. Who gets to decide who controls the defense of the Doe 9 claim? 10 A. I do. 11 Q. If you go to page 12 it talks about how it would be

12 inequitable to allow the Doe judgment, et cetera, et cetera. 13 Then it says, 14 "Such a result will prejudice Pastazios while increasing 15 the trustee's potential compensation, which raises the 16 question of whether the trustee has a conflict of interest." 17 Do you see that?

18 A. I see that. 19 Q. On page 17, if we go forward on page 17, where it begins 20 with "On the other hand", "Pastazios would suffer prejudice if 21 Century does not appeal". 22 Do you see that? 23 A. I see -- that's exactly what it says. 24 Q. And finally, it talks about, in the middle of the 25 paragraph or the page there,

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SUPP APP 1208 Seidel - Redirect 68

1 "Century's intervention under these circumstances will 2 serve to protect Pastazios." 3 A. Pastazios. 4 Q. So do you feel like we're being unreasonable, or that 5 we're just way out there in cuckoo land by reading this to be 6 an appeal for Pastazios? 7 A. No, I don't. And I think this is a tremendously unusual 8 circumstance, and I think we were compelled to bring this to 9 the Court's attention, and that's what we're doing. 10 Q. Yes. Have we asked Century to clarify that it is not 11 seeking appellate relief for the Trust?

12 A. Yes. A very simple one sentence would do it. 13 Q. Has Century ever given us anything like that? 14 A. Not to my knowledge. In fact, they refused. 15 Q. Okay. Do you have any explanation for why they would 16 refuse to give you that if they were not, in fact, trying to 17 appeal for the Trust?

18 A. I don't. 19 Q. Okay. Now, I'm going to take you through some other 20 documents, and I'm going to try to be brief, so we're not 21 going to go through all of them. 22 A. Okay. 23 Q. But we're going to study my exhibits this time. Okay? 24 A. Yes, sir. 25 Q. Exhibit Z, as in zebra. This is the same July 14th

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SUPP APP 1209 Seidel - Redirect 69

1 document that counsel had you look at where you notified 2 Century of the judgment -- 3 A. Right. 4 Q. -- and requested a defense. 5 A. Right. 6 Q. Here. Now let's go to Exhibit AA. 7 A. AA. I'm with you. 8 MR. RUKAVINA: I'll move to admit Exhibit AA, Your 9 Honor. It's my letter. I can authenticate it. 10 MR. BOWEN: I thought it had already been admitted, 11 but there's no objection.

12 THE COURT: AA is in. 13 (Mr. Rukavina's letter was hereby received into evidence as 14 Trustee's Exhibit AA, as of this date.) 15 Q. Now, you'll see that I'm writing there a paragraph that 16 says, 17 "As an initial matter, let me make clear that we will

18 provide all reasonable cooperation to Century concerning a 19 potential appeal." 20 A. Yes. 21 Q. "As we previously informed you, the trustee lacks the 22 resources to prosecute an appeal." 23 Were both of those sentences true and correct? 24 A. Yes, sir. 25 Q. Do you believe that we provided all reasonable

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SUPP APP 1210 Seidel - Redirect 70

1 cooperation to Century concerning an appeal? 2 A. Yes. 3 Q. Is it true that the Trust lacked the funds to prosecute 4 an appeal? 5 A. Yes. 6 Q. How much would an appellate lawyer have cost the Trust? 7 A. Anywhere from 30 to 100,00 dollars. 8 Q. And did the -- 9 A. Probably more. 10 Q. Did the Trust have those funds? 11 A. No.

12 Q. Okay. Now we'll skip a couple of these others to try to 13 focus on what's relevant for today. And go to Exhibit DD, 14 David, David. This a letter sent by Century to you? Have you 15 seen this letter before? 16 A. I see DD, the letter to Davor. 17 Q. Yes.

18 A. I've seen it. 19 Q. Okay. And it says right there, 20 "Century Surety Company has decided to participate in the 21 ongoing defense of Pastazios, the insured, subject to a full 22 reservation of rights of all coverage issue." 23 Do you see that? 24 A. I do. 25 Q. Okay. "This will be subject to the reservation of rights

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SUPP APP 1211 Seidel - Redirect 71

1 previously sent and a supplemental reservation of rights to be 2 supplied later." 3 Do you see that? 4 A. I see that. 5 Q. Anywhere in there does Century talk about funding an 6 appeal? 7 A. No. 8 Q. Did you have any problem with Century reserving its 9 rights on the coverage issues? That means that Century would 10 say notwithstanding our funding for you, we deny coverage and 11 reserve all of our rights to litigate coverage. Would you

12 have any problem with that? 13 A. Yes. 14 Q. What problems did you have? 15 A. Well, not -- with the reservation of rights we're okay. 16 Q. Okay. So, in other words, you didn't have a problem with 17 Century reserving --

18 A. Not with the reservation of rights. 19 Q. What problem did you have? 20 A. What I had -- what one of the lawyers at your firm 21 pointed out is we had to be -- 22 MR. BOWEN: Objection, Your Honor. Hearsay. 23 THE COURT: Sustained on that. 24 MR. RUKAVINA: Don't talk about what -- 25 THE WITNESS: Okay. I'm done.

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SUPP APP 1212 Seidel - Redirect 72

1 MR. RUKAVINA: -- what someone told you. 2 Q. What problem did you personally have with respect to what 3 Century was talking about? 4 A. What we had to make sure here is that we weren't allowing 5 Century to escape liability for previous breaches and/or 6 revive any rights and obligations by virtue of getting this 7 appeal done. 8 Q. Do you have an understanding of what a duty to cooperate 9 is in the insurance world? 10 A. A vague one. 11 Q. What is your understanding?

12 A. That Century can, kind of, call the shots on what's being 13 appealed and appellate points, et cetera. 14 Q. Okay. And was it your position that that duty existed or 15 didn't exist any longer as of this time? 16 A. Yes. That they had breached, and so their duty had 17 lapsed or evaporated.

18 Q. And is that the duty that you were worried about reviving 19 if Century now -- 20 A. Yes. 21 Q. -- funded an appeal? 22 A. Very much. Very much so, because I was 23 worried -- concerned that they would try to vitiate coverage. 24 MR. RUKAVINA: Okay. Your Honor, I'll move to admit 25 DD.

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SUPP APP 1213 Seidel - Redirect 73

1 MR. BOWEN: No objection, Your Honor. 2 THE COURT: DD's in. 3 (Letter from Century Surety Company to Mr. Seidel was hereby 4 received into evidence as Trustee's Exhibit DD, as of this 5 date.) 6 Q. Now, let's go to Exhibit EE. 7 MR. RUKAVINA: Again, this is a letter from me, which 8 I'll authenticate and I'll ask to admit. Edward, Edward. 9 MR. BOWEN: No objection, Your Honor. 10 THE COURT: EE is in. 11 (Letter from Mr. Rukavina to Century Surety Company was hereby

12 received into evidence as Trustee's Exhibit EE, as of this 13 date.) 14 Q. Now, the judge can read this letter for himself, but 15 explain to me what prompted us to send this letter to Century? 16 A. It was -- time was running out. We had a month or so to 17 either appeal or not appeal, and we'd been playing around with

18 this. So we wanted a definitive agreement, which had the 19 offer that the trustee could accept for Century to fund an 20 appeal. 21 Q. Okay. 22 A. And this articulated the require -- 23 Q. And you gave Century two alternative offers. Correct? 24 A. Correct. 25 Q. And the first one speaks for itself. It's just Century

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SUPP APP 1214 Seidel - Redirect 74

1 admits liability and can do what it wants on the appeal. Did 2 Century accept that offer? 3 A. No. They've always denied liability, which is such an 4 interesting thing that we're all here. 5 Q. The second offer contains five conditions. And the judge 6 can read them for himself, but explain to the judge the point 7 of these five conditions. 8 A. We had to be extremely cautious that we were not 9 prejudicing creditors' rights with regard to any ability to 10 recover. So what we were doing was putting that all in 11 writing and getting it all down so that if there was a funding

12 of an appeal there was to be no tricks. There was to be no 13 revival of rights, duties, et cetera. We were just going to 14 do an appeal. 15 Q. With your independent counsel? 16 A. With my independent counsel. 17 Q. And you alone would make the determination?

18 A. Only me. 19 Q. And then point one, I think, is the key, that the 20 trustee's agreement would in no way revise any alleged 21 obligation under the policy or law, including any alleged duty 22 to cooperate with Century. 23 Now, if there was a duty to cooperate, and Century wanted 24 the appeal pursued in a particular way, and you said no, I 25 don't want to do that, were you concerned about what the

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SUPP APP 1215 Seidel - Redirect 75

1 result would be? 2 A. Yes. I was concerned that they could control the trustee 3 of the Trust on those issues. 4 Q. And if you didn't do what they want then they'd say no 5 coverage. 6 A. That's exactly right. 7 Q. Okay. And the last sentence of this paragraph reads, 8 "The Rule 11 agreement would also contain provisions 9 agreeable to the trustee that Century would want to protect 10 its position and ensure that it is not prejudiced." 11 What was the point of that?

12 A. It's a two-way deal. I understand that they have to 13 protect themselves too, so we put that sentence in there. 14 Q. Okay. Prior to October 26th, the letter that counsel 15 asked you about, did Century ever send us a proposed 16 agreement? 17 A. No, they never did.

18 Q. Okay. Now, we can again skip some of these. I do want 19 to talk to you about Exhibit HH, but actually I want to talk 20 to you about it with respect to Century's Exhibit 38. Do you 21 have Century's Exhibit 38 anywhere handy? 22 A. Yeah, I can find it. 23 Q. Century's Exhibit 38 includes a memorandum to Mr. Meyer 24 Acentury (ph.) from Charlie Frazier, Century's appellate 25 counsel.

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SUPP APP 1216 Seidel - Redirect 76

1 A. Yes. 2 Q. Did you review this memorandum? 3 A. I did. 4 Q. And in this memorandum Century's appellate lawyer is 5 providing several possibilities on how the judgment could be 6 attacked. Correct? 7 A. Correct. 8 Q. What is, in your opinion, the result on coverage if any 9 of these five potential attacks are made? 10 A. To be -- 11 MR. BOWEN: Objection, Your Honor. Lacks foundation.

12 THE COURT: Response? 13 MR. RUKAVINA: Your Honor, it's just his opinion. 14 THE COURT: Overruled. Goes to the weight to give 15 it. 16 A. Could be harmed. 17 Q. Do you believe that these five appellate points were

18 geared more towards denial of coverage than a reversal of the 19 judgment? 20 A. I do. 21 Q. Okay. Now let's go back to my exhibits, please. 22 A. Yes, sir. 23 Q. And we'll go to Exhibit KK. 24 MR. RUKAVINA: This is my letter. I can authenticate 25 it. I move to admit Exhibit KK.

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SUPP APP 1217 Seidel - Redirect 77

1 MR. BOWEN: No objection, Your Honor. 2 THE COURT: KK is in. 3 (Letter from Mr. Rukavina was hereby received into evidence as 4 Trustee's Exhibit KK, as of this date.) 5 Q. This is three days before the appeal deadline, correct? 6 A. Three days before the appeal deadline. 7 Q. Okay. And we still -- we write that we are confused by 8 your letter. Were we confused? 9 A. We were totally confused. We didn't know what they're 10 doing. 11 Q. So ultimately in this letter we conclude if Century has a

12 firm offer to make and to avoid any confusion, the trustee 13 requests that Century promptly send a proposed Rule 11 14 agreement that would contain the definitive terms of Century's 15 proposal. The trustee will be available all weekend to review 16 and consider the same. 17 What was the point of sending that communication?

18 A. You -- time was out. We had to make a call now. 19 Q. This was a Friday? 20 A. This was a Friday. 21 Q. Were you and I available all weekend? 22 A. We made ourselves. We weren't, but we made ourselves. 23 Q. And did we conclude Century should not rely on or 24 interpret this letter to suggest that the trustee will appeal. 25 Do you see that?

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SUPP APP 1218 Seidel - Redirect 78

1 A. I see that. 2 Q. Had you made a decision by then to appeal or not? 3 A. I had not. 4 Q. Okay. LL is the same document. I apologize. MM is the 5 same document that counsel asked you to looked at. 6 A. The Rule 11 agreement? 7 Q. No. Hold on. I'm wrong about that. I apologize. There 8 were two October 26th letters. Let's go to NN, Nancy, Nancy. 9 This is the same that counsel had you look at. Let's just 10 look at it here, because we don't have to shuffle binders that 11 way.

12 A. Okay. 13 Q. Three days later, after this letter -- was that the first 14 time that Century sent a proposed document? 15 A. Yes. 16 Q. Okay. And what time did we get that? 17 A. It was 5 o'clock. People had left the offices for the

18 day. 19 Q. And this is the appeal deadline itself? 20 A. This is the deadline. 21 Q. Did you ignore this letter, or did you do anything about 22 it? 23 A. I absolutely didn't. We scrambled every -- we found 24 people out at dinner, interrupted dinners and things. At 7 25 o'clock at night we got four lawyers on the phone talking

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SUPP APP 1219 Seidel - Redirect 79

1 about this. 2 Q. Did you consider the stipulation attached here too to be 3 a proposed defendant of the document? 4 A. I did not. 5 Q. Why? 6 A. Because it has this footnote about an agreement where 7 they're going to -- 8 Q. Read that footnote on the first page of the letter, sir. 9 A. Footnote on page 1 says, 10 "We can continue working on the stipulation language 11 after the notice of appeal is filed."

12 Q. And how did you view that? 13 A. I took that as an agreement to agree in the future that 14 if we can come to an agreement, which -- 15 Q. And do you have -- 16 A. It's been -- that's -- 17 Q. -- an understanding as to whether an agreement to agree

18 is enforceable? 19 A. It's -- not when I was in law school. 20 Q. Was the stipulation signed? 21 A. It was not signed. 22 Q. Was that a concern for you? 23 A. Yes, it was, because now I would -- they would have me 24 sign it, and be binding on me but not on them. 25 Q. Okay. And let's look at point 6 of their proposed

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SUPP APP 1220 Seidel - Redirect 80

1 stipulation. 2 A. Yes, sir. 3 Q. And let's read this, and I'm going to interject little by 4 little, and I'm going to ask you questions. So bear with me. 5 A. Yes, sir. 6 Q. So "Century and PPI Creditor Trust each fully reserve and 7 retain their respective rights, if any, under the Century 8 insurance policy at issue in this action and any potentially 9 applicable law." 10 No problems there, right? 11 A. Right.

12 Q. "This agreement will in no way modify or revise any 13 alleged duty or obligation under the policy or law." 14 Exactly what you want, right? 15 A. Yup. 16 Q. "As it exists on the date of this agreement, October 26, 17 2015."

18 Do you recall that? 19 A. I had a tremendous problem with that? 20 Q. Why? 21 A. Because on October 27th if they funded then everything is 22 off. All bets are off, and we're right back. We're stepping 23 right into the trap we were so concerned about. 24 Q. Do you feel like you were being set up? 25 A. I do.

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SUPP APP 1221 Seidel - Redirect 81

1 Q. Can you think of any reason why they would insert that 2 date there other than to revive the duty to cooperate on 3 October 27th? 4 A. No. 5 Q. After you've gone through this experience with Century, 6 do you have a view as to whether you believe that they were 7 negotiating with you in good faith or not? 8 A. I do have such a view. 9 Q. And what is your view? 10 A. I do not believe they were negotiating in good faith. 11 Q. And does that view also color your desire that they not

12 control a potential appeal on behalf of the Trust? 13 A. Yes. 14 Q. And do you have any doubt that they will channel that 15 appeal, as their lawyers' memorandum to you says, to destroy 16 coverage? 17 A. I have no doubt.

18 Q. What is the largest asset, if only asset of this estate? 19 A. It's the ability to recover from Century at this point. 20 Q. And do you intend to prosecute that for the benefit of 21 your beneficiaries? 22 A. Yes, sir. 23 MR. RUKAVINA: Pass the witness. 24 THE COURT: Recross? 25 MR. BOWEN: Yes, Your Honor. Thank you.

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SUPP APP 1222 Seidel - Recross 82

1 RECROSS-EXAMINATION 2 BY MR. BOWEN: 3 Q. I don't want to go back through it, sir, but you spoke 4 about some of the passages in the papers that we filed in the 5 court of appeals say extreme prejudice and judgment, reversal 6 of the judgment would benefit the Trust. Remember going 7 through that? 8 A. A little bit. Yes, sir. 9 Q. Isn't it true that a twenty million dollar judgment 10 against you is extreme prejudice? 11 A. Twenty million dollar judgment is a big judgment, yes.

12 Q. Yes. And wouldn't you agree that obtaining the reversal 13 of a twenty million dollar judgment is to your benefit, to a 14 judgment debtor's benefit? 15 A. To have no judgment there would be a benefit to the Trust 16 by virtue of not having that obligation. 17 Q. Okay. You mentioned this issue about revising a duty or

18 some such like that. 19 A. Yes, sir. 20 Q. Is it your testimony that your decision not to appeal 21 this twenty million dollar judgment was based, at least in 22 part, on an effort to preserve insurance coverage? 23 A. There was many aspects that went into the decision. 24 Q. But one of them, was it based on preserving coverage 25 arguments, right?

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SUPP APP 1223 Seidel - Recross 83

1 A. Well, you had -- you had to protect any potential 2 recovery for the Trust, and if that is insurance proceeds then 3 it is insurance proceeds. 4 Q. My question is was one of the reasons -- I understand 5 your testimony there were more than one -- was one of the 6 reasons why you decided not to appeal was based on your desire 7 to not run into coverage problems in the federal district 8 court? 9 A. What was it -- not to revive any duties to cooperate, et 10 cetera. 11 Q. On coverage. Yes, sir?

12 A. Yeah, on coverage so that -- 13 Q. I'm sorry. Were you finished? 14 A. So that this Century couldn't be directing any of the 15 appeal, et cetera. 16 Q. Now, I don't know if you recall this, but you've listed a 17 number of reasons why you chose not to appeal. Not one of the

18 reasons why you chose not to appeal was based on the merits of 19 the appeal, was it? 20 A. Century made it easy. We never had to reach that, 21 because they wouldn't get to the deal. 22 Q. Sir, my question is of all the things you considered 23 about whether or not to appeal, none of them was based on 24 whether or not an appeal had merit. 25 A. No, I wouldn't say that's true.

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SUPP APP 1224 Seidel - Recross 84

1 Q. Did you analyze the merits of the appeal? 2 A. I spoke with -- I spoke with counsel concerning the 3 potentials of an appeal. 4 Q. Now, you saw the memo that Mr. Charlie Frazier, the 5 appellate counsel hired by Century, raised about possible 6 arguments that could be made on appeal, right? 7 A. Yes, sir. 8 Q. Now, if you controlled counsel in the appeal, you could 9 instruct counsel what arguments to make, what arguments not to 10 make, right? 11 A. That's correct.

12 Q. You testified about how this stipulation came in from 13 Century at 5 o'clock in the afternoon, right? 14 A. Yes. 15 Q. Now, I want to make sure that we're clear on this. Does 16 it make a -- did it make a difference in your decision to 17 appeal whether it came in at 5 o'clock or 8 a.m. or the day

18 before? It wasn't a matter of timing, was it? 19 A. It shows their callousness with regard to all this. But 20 in terms of where you -- 21 Q. I'm not asking you whether they were callous or not, sir. 22 A. Right. 23 Q. I'm asking you whether -- you made a decision after 24 receiving that stipu -- 25 A. I --

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SUPP APP 1225 Seidel - Recross 85

1 Q. Let me finish please. 2 A. Yes, sir. 3 Q. You made a decision after receiving that stipulation not 4 to appeal? 5 A. Correct. 6 Q. It wasn't because you ran out of time? 7 A. Correct. 8 Q. You could have gotten an appeal filed in the next seven 9 hours if you wanted to, right? 10 A. Correct. 11 Q. You could have filed a notice of appeal, if for no other

12 reason, to preserve the appellate court's jurisdiction, and 13 just withdrawn it later, right? 14 A. I don't know about withdrawing it later, if there was 15 going to be cross appeals, and I don't know if you can just 16 withdraw it once a cross-appeal is -- 17 Q. Okay. Well, you certainly could have -- you know for a

18 fact, you could have filed a notice of appeal if for no other 19 reason, to preserve the appellate jurisdiction, right? 20 A. I could have. 21 Q. Well, let me ask you this. Did you ever look into the 22 possibility of whether there was a period, say, of fifteen 23 days, after October 26th, where you still could have filed a 24 notice of appeal with the permission of the appellate court? 25 A. I'm not sure about that, sir.

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SUPP APP 1226 Seidel - Recross 86

1 Q. You never looked into that possibility, did you? 2 A. I talked to my lawyers. They said -- 3 Q. Did you ever look into that possibility, sir? 4 A. Of whether there was additional time after October 26th? 5 Q. Yeah, whether you could have, in fact, perfected an 6 appeal up to November 10th, with the approval of the Court of 7 Appeals. Is that something you analyzed or looked into back 8 on October 26th? 9 A. It was discussed. I discussed it with my lawyers. 10 Q. Okay. So even though -- did you understand at the time 11 that there was a mechanism by which you possibly could get

12 another fifteen days to appeal? 13 A. I'm not sure I did. 14 Q. All right. 15 MR. BOWEN: Pass the witness, Your Honor. 16 THE COURT: Any other questions of your witness? 17 MR. RUKAVINA: A few follow-up, Your Honor.

18 I forgot to move to admit Century Exhibit 38. That's 19 the letter with the memorandum from lawyers. I'd ask to admit 20 Exhibit 38 right now. 21 MR. BOWEN: No objection. 22 THE COURT: Century 38 is admitted. 23 (Letter with memorandum from lawyers was hereby received into 24 evidence as Century's Exhibit 38, as of this date.) 25 REDIRECT EXAMINATION

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SUPP APP 1227 Seidel - Redirect 87

1 BY MR. RUKAVINA: 2 Q. There was this question of timing. Approximately what 3 time did you round up your lawyers on the evening of October 4 26th to discuss Century's proposal? 5 A. I think by the time we got all the lawyers on the 6 conference call, it was 7 o'clock that night. 7 Q. Was that a -- 8 A. People were out to dinner. People were at various 9 places. 10 Q. Was that a short or a long call? 11 A. It was a long call.

12 Q. By that time, how much time had gone by while you were 13 discussing with Century the potential mechanism of an appeal? 14 A. A month. 15 Q. Was there any point in responding at 8 p.m. that night? 16 A. Not that I could see. 17 Q. Okay. You concluded that they were not negotiating in

18 good faith? 19 A. That's what we decided. 20 Q. Did you ever have the wherewithal, or did you ever retain 21 an appellate counsel to give you a thorough analysis of 22 whether there were meritorious grounds for appeal? 23 A. This estate had no funds to do that. I can't spend all 24 the money on this. There's a few dollars left, but that's for 25 creditors. I can't spend it all on lawyers.

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SUPP APP 1228 Seidel - Redirect 88

1 Q. So any discussion about the merits of an appeal is 2 largely academic? 3 A. Yes. 4 Q. Do you make it a practice to file a court document just 5 to unfile it later? 6 A. No, I do not. 7 Q. Is that something that you would consider doing, just to 8 preserve an appellate court's jurisdiction when you have no 9 ability to fund that? 10 A. I don't play games like that, no. 11 MR. RUKAVINA: Thank you.

12 THE COURT: Any other questions of this witness? 13 MR. BOWEN: No further questions, Your Honor. 14 THE COURT: You may step down, Mr. Seidel. Thank 15 you. 16 THE WITNESS: Thank you, Your Honor. 17 MR. RUKAVINA: Your Honor, we have no further

18 evidence, and we're prepared for argument. 19 THE COURT: All right. Let's see. Does Doe have any 20 evidence? 21 MS. DELEON: No, we do not, Your Honor. 22 THE COURT: Okay, Mr. Hesse? 23 MR. HESSE: No, we do not, Your Honor. 24 THE COURT: All right. Why don't we take about a 25 five-minute recess for y'all to visit among yourselves and get

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SUPP APP 1229 Colloquy 89

1 your thoughts together. How much time do you think you need 2 in closing? 3 MR. RUKAVINA: I think ten minutes, Your Honor. 4 THE COURT: Okay. And will Doe have a closing 5 argument also? 6 MS. DELEON: We may. It depends. 7 THE COURT: Okay. You match their time -- 8 MR. HESSE: I could match that -- 9 THE COURT: -- Mr. Hesse. Yes. 10 MR. HESSE: -- thank you. 11 THE COURT: All right. We'll be in recess for about

12 five minutes. 13 (Recess from 10:56 a.m. until 11:02 a.m.) 14 THE CLERK: All rise. 15 THE COURT: Please be seated, thank you. 16 MR. HESSE: I guess they capitulated. I'll go get 17 them.

18 THE COURT: Mr. Hesse, you do some of your best work 19 when nobody's here. You better do it. 20 Ready? 21 MR. RUKAVINA: I apologize, Your Honor. 22 THE COURT: Not a problem. Not a problem. 23 I'm not going to hold everybody to the minute, but do 24 try to conclude by noon, just because we have to get the 25 Chapter 13 docketed and prepare for that over the lunch hour.

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SUPP APP 1230 Colloquy 90

1 MR. RUKAVINA: Your Honor, I guess sometimes when you 2 live a hot and heavy and fast-moving case in front of multiple 3 courts, you might not see the forest for the trees, or you 4 might not see the tree for the forest, depending on your 5 perspective and your native language. 6 And I hope Your Honor doesn't think that we're just 7 here whining. You're our home court; you're the one that we 8 owe our duties to. And what should be a routine coverage 9 action has exploded. And the reason why it's exploded, in our 10 humble view, is that Century is doing everything it can to 11 undermine what this Court did in April.

12 Now, we're not here today to have the final and 13 definitive trial on whether the plan is necessarily binding, 14 but shame on anyone for telling Your Honor that they can file 15 motions before you, have hearings before you, have a plan 16 served on them, and that what Your Honor ruled is not binding, 17 nah, nah, nah, nah, nah, nah.

18 Shame on anyone for coming to any court and accusing 19 a judge of entering a sham plan. Shame on anyone for accusing 20 Judge Ginsberg, who orally ruled that defense counsel did an 21 exceptional job, and that these were the first -- the worst 22 facts he'd ever seen, for alleging that he entered a sham 23 judgement. 24 Shame on anyone for alleging that the trustee here is 25 conspiring for personal monetary benefit, especially when that

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SUPP APP 1231 Colloquy 91

1 someone rejected Stowers demand after Stowers demand, and 2 could have settled this case for peanuts, and left its insured 3 out to hang and dry for years, and only got upset or only got 4 involved after the judgment came down. 5 I don't envy Ms. Doe her position. Here was a 6 pizzeria that had some value, and here was the man who raped 7 her, in charge of that pizzeria. What does a creditor do? 8 Liquidate the pizzeria, convert the case and get nothing from 9 that business? Well, that's not in her interest. Does she 10 negotiate a confirmed plan where the man who raped her and 11 gave her herpes is in charge of her recovery? Of course not.

12 She negotiates a plan that puts an independent third- 13 party trustee in there to act for the benefit of everyone, 14 knowing that that trustee is very likely to defend against her 15 claim and put her to the test of her claim. And of course, as 16 by far the largest creditor, she has input on who the trustee 17 will be. And of course the trustee's compensated on a

18 commission. 19 None of this is unknown, none of this is secret, none 20 of this is outside the ordinary course of Chapter 11 21 confirmation. None of this is nefarious. We come to you, 22 again, open kimono. 23 We come to you, saying, Judge, we don't know what's 24 going on anymore. We need someone to say, stop; respect my 25 orders. Don't interfere with your trustee. Don't take trust

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SUPP APP 1232 Colloquy 92

1 assets. We've come here, open kimono, prepared for whatever 2 Your Honor will rule. Certainly, today is not the end, nor is 3 it the beginning of the end. I guess, as Churchill says, 4 maybe it's the end of the beginning. 5 But they can't even tell Your Honor that, yes or no, 6 we are or we're not appealing for this trust. No, they play 7 word games. They take the trustee through documents. They 8 can't even look at Your Honor, in full candor, and say, you 9 know what, Judge? There really is no dispute. We're not 10 seeking appeal relief for the trust. Boom. Mr. Rukavina's 11 motion is gone. Thank you, gentlemen. I'll see you in the

12 court of appeals. Have a good day. 13 Nor they can come and tell Your Honor, actually, we 14 are seeking relief for the trust, and we're entitled to do so, 15 and here's why. They're playing a game and they're hiding 16 their true intentions. And those true intentions are most 17 revealed by Exhibit QQ.

18 And I will have a talk with that lawyer. I will have 19 a talk with that lawyer under oath, and I will ask him, how 20 dare you answer a discovery request that you don't have to 21 even respond to in such a way as to kill coverage? And I will 22 have a talk with their appellate lawyer, who sent me that 23 memorandum. And I will get all their documents about why each 24 of those appeal points is geared towards killing coverage. 25 So the trustee, like any trustee, is in a very

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SUPP APP 1233 Colloquy 93

1 strange position, like in any case. On the one hand, he has 2 to litigate against Ms. Doe, but on the other hand, he has to 3 preserve trust assets for the benefit of everyone. And the 4 trustee simply was not going to let himself get set up. 5 If Century funded the appeal with a reservation of 6 rights, with no prejudice, then the result would have been 7 that there would be no prejudice to Century. The result would 8 have been that the duty to cooperate would have been revived. 9 Now, does the trustee have a problem with cooperating with 10 Century? Of course not. 11 What the trustee has a problem with is Century either

12 using that duty to cooperate to insist on how the trustee -- a 13 fiduciary, who is charged by this plan with making independent 14 decisions -- guides the appeal, or Century would say, hey, 15 trustee, you're not doing what we want. Breach of duty to 16 cooperate, breach of policy, goodbye, there goes your dollars, 17 there goes your recovery for your beneficiaries. It was as

18 simple as that. 19 And if Century had, in good faith, tried to have a 20 good faith appeal without tying the trustee's hand, we 21 wouldn't be here right now. Another situation, Judge, of 22 Century's own making. And now Century, when it didn't get its 23 way there, is trying to appeal for the benefit of this trust. 24 Some of these procedural questions, I guess, we don't 25 have to decide today, definitively, whether Century is bound

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SUPP APP 1234 Colloquy 94

1 by the provisions of this plan. I will note, and Your Honor 2 has the pleadings, that Century has alleged that it's not, 3 that Century has alleged that the assignment of the policy to 4 the trust is void, that Century has alleged that the plan is a 5 sham designed to enrich the trustee. 6 All of these issues are before Judge Solis. We have 7 asked Judge Solis to indicate whether we should go to Your 8 Honor on those issues or whether Judge Solis will rule on 9 them, and hopefully, Judge Solis will give us some guidance. 10 We don't have to decide that today. 11 But I ask Your Honor a simple question, a very, very

12 simple analogy: pretend we're just in a plain Chapter 7 case, 13 and a stranger to the bankruptcy -- no, not a creditor to the 14 bankruptcy -- goes and takes a bar of gold from the estate, 15 something that you have in rem jurisdiction for. Is Your 16 Honor powerless to do anything about that? Or Your Honor 17 learns that someone's about to go steal that bar of gold. Is

18 Your Honor powerless to do something about that? 19 This is no different. Your Honor doesn't have to 20 decide, necessarily, whether the plan is binding on Century or 21 not to see that an outsider, a stranger, is usurping rights 22 that this Court ordered be exclusive to the trustee. And I do 23 not believe that Your Honor is powerless about that. I find 24 it impossible to believe that Your Honor has no power to grant 25 the trustee some relief.

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SUPP APP 1235 Colloquy 95

1 On the Rule 7001 issue, it's always an issue, and 2 it's always a problem. And in this case, the problem is 3 magnified by the fact that we have an existing lawsuit in 4 front of Judge Solis. Should I really have filed another 5 lawsuit? Maybe I should have. Maybe I will. But I believe 6 that I have a duty to minimize burden on the courts. 7 I provided immediate service on Century. They took 8 extensive discovery. We're here today. Your Honor certainly 9 has the ability to sua sponte convert this into an adversary 10 proceeding, and Your Honor can apply the four elements of an 11 injunction: the irreparable injury, the likelihood of

12 success, the no injury to Century, and the public interest, 13 which certainly supports, I think, this Court's intention, 14 even if not literal order, be complied with. 15 I've walked Your Honor, in my motion, through the 16 governing plan and trust agreement provisions. I'm not going 17 to repeat that. Your Honor said that you worked on this. I

18 believe Your Honor has. 19 There is no injunction in this plan. Good God, I 20 wish there were. I would have put one in there. Okay, 21 there's no injunction in this plan. But Your Honor said, Mr. 22 Seidel, you're my trustee. You have the sole 23 authority -- exclusive authority -- to litigate contested 24 claims. You have exclusive authority over trust assets, which 25 are included as the -- which are defined so as to include

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SUPP APP 1236 Colloquy 96

1 cause of action, which is defined so as to include any 2 litigation right, not just affirmative or offensive rights. 3 And Your Honor said no one can claim an interest in the trust 4 assets or trust revs, which Century is doing. 5 I'm not asking Your Honor to do any mental 6 gymnastics. I'm not asking Your Honor to go out on a limb. 7 I'm asking Your Honor to look at it and say, okay, I gave the 8 trustee this exclusive authority; Century is invading that 9 exclusive authority. You can do that today. And I'm hoping 10 Your Honor will then also say, Century, stop. 11 I'm also asking that the Court decide whether the

12 Jane Doe claim is allowed, because the appeal deadlines have 13 run. 14 THE COURT: Now, how does that help you or what does 15 that do for the trustee? 16 MR. RUKAVINA: It makes it clear that -- that really 17 resolves everything, because then, Century can go and do what

18 it wants before the court of appeals, subject to objections, 19 and we no longer have to worry that what Century is doing is 20 vitiating the provisions of the plan that govern the allowance 21 of claims. In other words, it basically means that we no 22 longer have to be terrified about Century doing something up 23 there that's going to somehow come back and prejudice us as 24 the trust. 25 And Century says, well, Judge, we don't have a

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SUPP APP 1237 Colloquy 97

1 problem with that, but don't make it binding on us. At some 2 point, Your Honor, I say put your foot down and say to 3 Century: stop having these hearings, stop taking discovery, 4 stop asking questions, stop going way out afield on what's 5 really before me, or live with the consequences. Your Honor 6 doesn't have to decide whether such a finding is binding or 7 not on Century. That can be adjudicated or looked at in the 8 future. But I think that everyone benefits, especially the 9 trustee, by having some certainty on that. 10 The plan could not be clearer: the appellate 11 deadline has expired. Now, Mr. Deari did appeal. I need to

12 mention that to you. However, Texas law is black and white, 13 and I can send you the case law -- I have it here 14 somewhere -- that even if Mr. Deari succeeds on his appeal, 15 it's not going to reverse the judgment as against us. There 16 are some exceptions that wouldn't apply. So it's not 17 technically correct that there has been no appeal filed, but

18 the trustee has not appealed, and the deadline for a trustee 19 to appeal under any circumstance, including that fifteen-day 20 possibility to appeal later, has passed. 21 And on the issue of 157(b)(5), Congress is clear that 22 Your Honor cannot liquidate a personal injury claim, but 23 Congress is also clear that only Your Honor can allow that 24 claim. So Your Honor ordered that the liquidation of it would 25 happen in state court, as it did, but it's still always to the

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SUPP APP 1238 Colloquy 98

1 bankruptcy court under 502(b) to allow or disallow a claim. 2 And Your Honor has predetermined how this claim will 3 be allowed. It has been allowed. It has already been 4 allowed. And that finding really would help everyone as we 5 proceed forward in this litigation, so that they can protect 6 whatever rights they think they have without having -- without 7 us having to always be paranoid about that they're trying to 8 somehow scramble the eggs or do away with the plan that Your 9 Honor confirmed. 10 As your trustee, how do we do our job when someone 11 else is appealing for the trust? Who are we answerable to?

12 Who takes the consequences? Thank you, Judge. 13 THE COURT: You get to go last, too. 14 Ms. DeLeon. 15 MS. DELEON: Your Honor, we won't have a closing 16 today, thank you. 17 THE COURT: Okay. I assume you're still in favor of

18 having your client claim be deemed allowed, is that right? 19 MS. DELEON: Correct, Your Honor. 20 THE COURT: Okay. 21 MR. HESSE: Your Honor, after Mr. Rukavina's 22 argument, I'm not sure what we're doing here. They can say 23 that we're not -- that you -- they don't want you to -- that 24 there's no injunction in the plan, so we're really not seeking 25 to enforce the injunction -- an injunction that's there. So

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SUPP APP 1239 Colloquy 99

1 we're not seeking to enforce that particular provision of the 2 plan. 3 If I understood correctly, there was a concession 4 that you don't have to find that the plan is binding upon 5 Century, so I'm not sure what we're doing here. So there's a 6 re -- I guess a reque -- I'm not sure what we're being 7 requested to enjoin from doing. If they want to allow -- I 8 mean, candidly, if you really want to play the game as to how 9 the bankruptcy rules work, if I'm not mistaken -- and I'll 10 point Your Honor to Century Exhibit 6, which is the claims 11 register -- a copy of the claims register, Jane Doe filed an

12 amended proof of claim around August 6th in 2015 in the amount 13 of 19,417,625. There is no pending objection to it, so 14 really, it's allowed as filed at this point in time. So I'm 15 not sure that we really even need an order that it's allowed. 16 But that's fine. 17 But I guess more to the point, to the extent that we

18 wanted to come in and object to the claim, you've already 19 found that we don't have standing, and that we don't have 20 standing to object to it. So to the extent that you want to 21 enter an order that it's allowed, I think it has to also be 22 noted, because that order is going to be taken somewhere else, 23 that Century does not have standing to object to it. The 24 natural consequence of that, it's not binding upon Century 25 because we wouldn't have the ability to say yay or nay about

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SUPP APP 1240 Colloquy 100

1 it. 2 And so I guess if that's what we're going to do and 3 that resolves everything, we can just get up and leave, but 4 I'm not sure that that's really -- I'm not sure that's really 5 what they're wanting. 6 I -- the question as to why we wouldn't enter into a 7 one-pa -- a one-sentence stipulation in the court of appeals? 8 It's really, I think, if you read through the -- if you think 9 about it, Century intervenes on -- to protect its own rights. 10 It is seeking a reversal of the judgment that was entered at 11 the state court. The court of appeals will either allow us to

12 do that or they won't. 13 Pastazios, through the trustee, has already made it 14 abundantly clear that they don't consent to it, but if Century 15 is successful on its appeal, one thing will happen -- it will 16 result in a reversal of the judgment. Just the way it is. 17 That's just the way it is. And so there's really no way to

18 freight -- to put together a one-line stipulation that says 19 we're not doing anything on behalf of Pastazios, because it's 20 the judgments that's there. We're taking the actions on 21 behalf of Cen -- of Century, but the effect of which is going 22 to be a reversal -- it would be a reversal of the judgment or 23 affirmation of the judgment, either one. 24 I think one thing should be also abundantly clear, is 25 that since the trustee has not appealed or participated in the

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SUPP APP 1241 Colloquy 101

1 appeal, that allowing Century to go forward will make it 2 abundantly clear that there is no waiver by the trustee of any 3 of its rights. So to the extent that there's a concern of a 4 waiver by allowing Century to go forward, I think that that's 5 very abundantly been resolved that they are not waiving any 6 rights that they have. They've not agreed to anything. I 7 don't think there's any con -- I don't think there's any way 8 to argue that. 9 But going back to the -- kind of the technical 10 things, if they're asking for an injunction against Century, 11 we have procedural infirmities. We didn't -- they didn't

12 initiate an adversary proceeding, they didn't serve us with 13 process. This is not a motion to enforce, there's not a plan 14 injunction. The plan -- and I'm with Mr. Rukavina, had I 15 drafted this plan, there'd be a plan injunction. 16 Candidly, if I had drafted this plan, there'd be a 17 better section 10.002 to make it clear as to who it's binding

18 on it and who it's not binding on it, but that would've also 19 provided people with notice. The notice that was given to 20 Century is that it's not binding upon it because it's not a 21 creditor. It's not scheduled, it didn't file a proof of 22 claim. Everyone agrees it's not a creditor. So if the plan's 23 not binding on it, there's no injunction that we're violating. 24 I'm not sure what we're -- what you're being asked to enforce. 25 And that's, I guess, where my -- my problem I have

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SUPP APP 1242 Colloquy 102

1 from a real theoretical standpoint. I'm also not sure I 2 understand what the issue with regard to harm is, that we'd 3 have to prove under an injunction. As the evidence has come 4 out, they have asked Century to participate in an appeal. 5 They are -- they said -- they advised us that they thought 6 there were valid appellate points. For whatever reason, 7 couldn't come to an agreement as to the terms on the appeal, 8 but they did ask us to step in, so I'm not sure what the harm 9 is for us stepping in after they've decided to waive their 10 appeal rights. 11 And I think -- and it's something I'm going to note

12 here, from a -- from a personal standpoint: I am not -- a 13 number of these -- I'm not -- I didn't -- I wasn't the one who 14 came in here and asked for the hearing. I think I asked two 15 or three times that we continue it so we would have a chance 16 to fully handle the issue. 17 THE COURT: We were working on one, and --

18 MR. HESSE: I kept saying -- 19 THE COURT: -- thought you'd filed a third one. 20 MR. HESSE: I can -- and I apologize. I apologize 21 for that, Your Honor. 22 THE COURT: No, no, no. We weren't offended at all 23 by that -- 24 MR. HESSE: But -- 25 THE COURT: -- you're just representing your client.

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SUPP APP 1243 Colloquy 103

1 MR. HESSE: This was done on seven days' notice over 2 my objection before it was even filed and requested. And so 3 you'll have to forgive us for thinking that there's an attempt 4 to shove something down our throats. And that we're -- we 5 should be given a chance to present our -- preserve and 6 present our case, and preserve and present our rights. 7 This is not my motion. I'm not the one who keeps 8 coming back to court. But these are the -- these are the 9 motions that are being filed by the trustee, which minds can 10 differ as to whether they're well-founded or not, or the basis 11 that they are arguing are justified. But I'm not the one who

12 keeps coming back to court. 13 We have a bigger case up in the federal district 14 court. There's concerns by both sides, I think, that there 15 are things that are going -- being done in other courts that 16 are going to effect that, and I think that's the concern that 17 everybody has.

18 But I don't believe that what they're asking for you 19 to do is allowed under the plan documents. And as a 20 consequence, we would request that you deny the motion. 21 THE COURT: Thank you, Mr. Hesse. 22 Mr. Rukavina, you get to go last. 23 MR. RUKAVINA: Will Century appeal the liability 24 number and argue that twenty million is too much; four million 25 is reasonable? Will Century argue that, yes, the debtor was

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SUPP APP 1244 Colloquy 104

1 negligent, but the finding of punitive damages is wrong, and 2 therefore judgment should be less? Or will Century argue that 3 some of the findings of fact supported by the evidence should 4 be set aside? Those findings of fact that prove that this 5 claim was always within the policy? 6 Century will have every motivation to steer the 7 appeal in such a way as to use the exclusions in the 8 policy -- criminality, for example, superseding cause, 9 whatever those exclusions may be -- to attack the findings 10 that go to those, so that we get no coverage, no defense 11 costs, and they couldn't care about the size of the judgment

12 against the trust. That's cynical. And we've shown you that 13 a clever insurance defense lawyer serving two masters knows 14 what they're doing, and that's what they're going to do here. 15 And Your Honor appointed an independent fiduciary, 16 answerable to Your Honor precisely to ensure that everyone's 17 rights are properly protected and preserved. That's all we're

18 trying to do. 19 THE COURT: Thank you. I know this is important to 20 everyone. We won't stop to write something up. We'll give 21 you a ruling as soon as we can. We'll set up a CourtCall and 22 have everyone, then, call back in for their CourtCall. But it 23 won't be today, obviously. We'll be in recess. 24 THE CLERK: All rise. 25 (Whereupon these proceedings were concluded at 11:24 AM)

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SUPP APP 1245 105

1 2 I N D E X 3 4 WITNESSES: DIRECT CROSS REDIRECT RECROSS 5 FOR THE DEBTOR: 6 Scott M. Seidel 27 44 64, 87 82 7 8 EXHIBITS: DESCRIPTION I.D. EVID 9 For the Debtor: 10 A - N Documents 20 11 ZZ - KKK Documents 22

12 QQ Certain disclosures served 27 13 upon Mr. Crawford 14 15 For Century: 16 49 Document 24 17 58 Notice of appeal filed by 43

18 Century in the court of 19 appeals 20 59 Motion to intervene filed by 43 21 Century in the court of 22 appeals 23 60 Motion for extension filed by 43 24 Century in the court of 25 appeals

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SUPP APP 1246 106

1 61 Supplement filed by Century in 44 2 the court of appeals 3 67 Response filed on behalf of 43 4 Mr. Seidel in the court of 5 appeals objecting to Century's 6 efforts to intervene 7 33 Letter sent to Century by Mr. 44 8 Seidel's lawyers shortly after 9 47 Letter from Hunton & Williams 44 10 to Mr. Seidel's counsel 11 judgment was entered in the

12 Doe action 13 68 Creditor trust agreement 44 14 42 Document 44 15 11 E-mail exchange between Mr. 44 16 Seidel and Mr. Erler from 17 February, 2015

18 38 Letter with memorandum from 86 19 lawyers 20 21 22 23 24 25

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SUPP APP 1247 107

1 2 For the Trustee: 3 O, P, Q, Documents 24 4 S, T, V 5 AA Mr. Rukavina's letter 69 6 DD Letter from Century Surety 72 7 Company to Mr. Seidel 8 EE Letter from Mr. Rukavina to 73 9 Century Surety Company 10 KK Letter from Mr. Rukavina 76 11

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SUPP APP 1248 108

1 2 C E R T I F I C A T I O N 3 4 I, Sharona Shapiro, the court approved transcriber, 5 do hereby certify the foregoing is a true and correct 6 transcript from the official electronic sound recording of the 7 proceedings in the above-entitled matter. 8 9 10 November 25, 2015

12 SHARONA SHAPIRO DATE 13 AAERT Certified Electronic Transcriber CET**D 492 14 15 16 17

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SUPP APP 1249 Exhibit 8

SUPP APP 1250 Case 14-34324-hdh11 Doc 133 Filed 11/02/15 Entered 11/02/15 11:29:12 Page 1 of 7

Davor Rukavina, Esq. Texas Bar No. 24030781 Thomas D. Berghman, Esq. Texas Bar No. 24082683 MUNSCH HARDT KOPF & HARR, P.C. 3800 Ross Tower 500 North Akard Dallas, Texas 75201 Telephone: (214) 855-7500 Facsimile: (214) 978-4346

COUNSEL FOR SCOTT M. SEIDEL, TRUSTEE

IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

In re: § § CASE NO. 14-34324-hdh-11 PASTAZIOS PIZZA, INC.. § § (Chapter 1) Debtor. § §

TRUSTEE’S REPLY IN SUPPORT OF MOTION TO CLARIFY TRUST AGREEMENT

TO THE HONORABLE HARLIN D. HALE, U.S. BANKRUPTCY JUDGE:

COMES NOW, Scott M. Seidel (the “Trustee”), the duly appointed trustee of the

Pastazios Pizza, Inc. Creditors Trust (the “Trust”), and files this his Reply (the “Reply”) in

support of his Expedited Motion to Clarify Trust Agreement (the “Motion”) and in reply to the

Amended Objection of Century Surety Company to Trustee’s Expedited Motion to Clarify Trust

Agreement (the “Objection”), filed by Century Surety Company (“Century”), respectfully stating

as follows:

I. CENTURY’S LACK OF STANDING

1. Century lacks standing to assert its Objection because it lacks standing regarding

any matter involving the “governance” of the Trust, as Century itself phrases the issue.

Generally, constitutional standing requires that a party has suffered some actual or threatened

TRUSTEE’S REPLY IN SUPPORT OF MOTION TO CLARIFY TRUST AGREEMENT—Page 1

SUPP APP 1251 Case 14-34324-hdh11 Doc 133 Filed 11/02/15 Entered 11/02/15 11:29:12 Page 2 of 7

injury, which can be fairly traced to the challenged action, and which is likely to be redressed by

a favorable decision. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 542 (1986). More

specifically, in the bankruptcy context, one has standing under the “person aggrieved” test if he

is “directly and adversely affected pecuniarily by the order of the bankruptcy court.” Gibbs &

Bruns LLP v. Coho Energy Inc. (In the Matter of Coho Energy Inc.), 395 F.3d 198, 203 (5th Cir.

2004).

2. Century is not scheduled as a creditor, and Century never filed a proof of claim.

Century is not a beneficiary of the Trust. The Motion seeks relief concerning solely an internal

governance matter between the Trust and its beneficiaries, of no interest, pecuniary or otherwise,

to Century. Moreover, Century did not vote on the confirmed plan, so any alleged deviance from

the terms of the confirmed plan does not affect any right on which Century may have relied. In

short, there is no “challenged action” affecting Century which can be redressed by a “favorable

decision,” and there is no “direct” and “adverse” “pecuniary interest” of Century affected by the

Motion. There is nothing but an attempt by Century to interject itself into matters of no concern

to it, for the clear and sole purpose of somehow bolstering its litigation position in the pending

coverage action; in other words, to divert attention from its own gross breaches of its duties and

its multi-million dollar liability by meddling in the internal governance of its litigation adversary.

3. Furthermore, even if Century was a “party-in-interest” in the Bankruptcy Case,

that does not confer standing on every issue. The Trust is a postconfirmation entity, and

different rules apply in the postconfirmation world. Without being in any way, shape, or form a

beneficiary of the Trust, Century simply has no role or say in its governance. Century bears the

burden of proving its standing. See, e.g., Croft v. Texas, 562 F.3d 735, 746 (5th Cir. 2009). This

it has not done, and this it cannot do.

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II. SUBSTANTIVE REPLY

4. Substantively, Century confuses the issue by alleging that the Motion seeks a

modification of the Confirmed Plan, which the Trustee lacks standing to seek and which the

Court lacks authority to grant. The issue is not one of modification. The Trustee is not asking

this Court to rewrite something previously written. Rather, the Trustee is asking the Court to

either compel the necessary parties (the Debtor and Ms. Doe) to do what they were supposed to

have done (by filling in blanks), or the Court is asking the Court to find waiver of certain

provisions because they were never effectuated. Neither of these avenues is novel and neither

should be of any controversy, given that the Court’s intervention is frequently requested even

after confirmation because certain parties do not do what they were supposed to do, or because a

debtor or plan proponent does not effectuate a provision of a confirmed plan. The question is

therefore one of enforcement or waiver; not modification. There is no question that this Court

has full authority over the issue, see 11 U.S.C. § 1142, that the Trustee has standing to file the

Motion because the plan documents say so, and because the Trustee, as much as anyone, is

entitled to clarification and certainly as to what his responsibilities are.

5. As between the two remedies—enforcement or waiver—both the Debtor and Ms.

Doe support the conclusion of waiver. These were the two parties who negotiated the Confirmed

Plan. Ms. Doe is the 99% Trust beneficiary. As the Court will hear, one additional sizable plan

beneficiary also supports waiver, while the Trustee continues to attempt to contact the remaining

Trust beneficiaries, who have very small claims as compared to the others. Insofar as a plan and

trust document are contracts, and parties are generally free to waive protections afforded to them

under a contact, and are generally free to amend their contract, the Trustee submits that this

Court should follow the expressed wishes of the parties to the contract in finding waiver.

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III. NO UNREASONABLE DELAY

6. Century alleges that the Trustee delayed in seeking appropriate relief. To the

extent that the Trustee delayed, the delay was caused first and foremost by his belief that there

was a fully filled-in trust agreement that had simply not been provided to him. He has been in

communications with the key parties for some time on that issue, being at times informed that

there was such an agreement but that it could not be located. It must be remembered that the

Trustee came in after the fact and of necessity had to rely on the work of others concerning the

finalization of the trust’s governance. The Trustee reasonably waited, rather than rushing to this

Court, until it finally became clear that there was no signed agreement with blanks filled-in, at

which point he sought and obtained a consensual resolution of the issues. At the same time, the

Trustee was forced to “hit the ground running” on two fast-moving cases, including one that was

going to trial in a matter of weeks (and after weeks of delay as the Debtor sought the $50,000.00

in funding required by the Confirmed Plan). In other words, there were more pressing issues at

that time. And, with mediation with Century only concluding on October 20, 2015, the Trustee

had good reason to believe that all outstanding issues would be resolved by agreement without

the need to burden the Trust with the costs of the Motion, or this Court with holding a potentially

unnecessary hearing. The Court can note that the Motion was filed only two (2) days after the

failed mediation.

7. With respect to Munsch Hardt, for example, Century would have this Court

believe that the Trustee somehow hid that fact from everyone even as he unreasonably delayed.

Yet, at the confirmation hearing, the Debtor informed the Court that the Trustee had retained

insurance counsel, although the name “Munsch Hardt” was not mentioned. On June 8, 2015, the

undersigned appeared as counsel for the Trustee before the State Court, at which Ms. Doe was

present. The undersigned informed the State Court that the Trustee was in the process of

TRUSTEE’S REPLY IN SUPPORT OF MOTION TO CLARIFY TRUST AGREEMENT—Page 4

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retaining substitute trial counsel. On June 12, 2015, the Trustee filed his motion in the coverage

action to substitute in for the Debtor. Ms. Doe—the beneficiary who apparently should have

been on the trust advisory board—therefore knew immediately that the Trustee had retained

Munsch Hardt as insurance coverage counsel, and separate state court trial counsel. Ms. Doe

made no objection.

8. Perhaps most importantly, even if there has been delay, it has not been prejudicial.

It has certainly not been prejudicial to Century, unless Century believes that the Trustee having

qualified counsel to represent the Trust against Century rises to the level of legal prejudice.

After all, that is what Century really aims at through its Objection.

9. With respect to Century’s argument concerning nunc pro tunc relief, the Trustee

has used that term in the Motion to easily convey the relief requested, but that relief is not nunc

pro tunc in the usual way seen in bankruptcy cases. If the parties never filled in a blank or

constituted the trust advisory board, then again it is a question of waiver and not one of seeking

relief after the fact. If the parties are now compelled to fill in the blank, the Trust agreement says

nothing of timing. In other words, the Trust agreement nowhere provides that the Trust will have

counsel only after the blank is filled in or approval from the non-existent trust advisory board is

obtained. The blank can be filled in now, or the trust advisory board can make a decision in the

nature of ratification, without in any way affecting any work or compensation provided or

incurred prior to such action.

IV. MISCELLANEOUS CONTEMPTUOUS ARGUMENTS

10. Century alleges multiple other things, of no relevance to the Motion. Some are

flat incorrect, such as Century’s statement that the Trustee informed Century that “valid appeal

points existed,” while others concerning alleged collusion between the Trustee and Ms. Doe are

without any basis in fact, are made without any reasonable investigation, and are actually proven

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false by the clear record. It is worth noting that Century did nothing to protect its insured at trial.

If Century had had its way, the Debtor and the Trust would have been wholly unrepresented at

that trial (no doubt then using that as some defense to coverage). It was the Trustee, who took a

sizable portion of the meager funds of the Trust, who retained defense counsel. That counsel did

his job effectively and professionally, and the State Court disagreed with his position. That is

what Century now refers to as “collusion,” again diverting attention from the simple fact that it

was Century who denied its insured a defense and that it was the Trustee, who took money from

the creditors of the Trust, to provide that defense.

11. Century makes more serious and contemptuous arguments, however, in the nature

of a collateral attack on the Confirmed Plan. Century at all times had actual notice of the

Confirmed Plan and the confirmation hearing, even appearing at the hearing. Century did not

object. Yet Century now argues that the transfer of the underlying policy to the Trust is void as

it violates an anti-assignment provision; that the Trustee has a conflict of interest with respect to

the Trust; that the Trust represents a form of collusion designed to enrich the Trustee; and that

the Trust and underlying documents have somehow prejudiced Century’s rights. In fact, Century

has sought leave in the coverage action to make precisely these kinds of arguments, again to

divert attention from its own gross breaches of its duties.

12. All of these arguments are nothing but an attempt to collaterally attack this

Court’s orders, binding on Century pursuant to 11 U.S.C. § 1141. The Trustee has previously

cautioned Century against making such contemptuous arguments. The Trustee takes such

arguments most seriously, and he will vigorously defend the Trust against such baseless,

contemptuous, after-the-fact arguments. The Trustee will seek all available remedies, including

fees and expenses for having to defend the Trust against these arguments.

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V. PRAYER

WHEREFORE, PREMISES CONSIDERED, the Trustee respectfully requests that the

Court strike the Objection based on a lack of standing, and that the Court grant the Trustee the

relief requested in the Motion.

RESPECTFULLY SUBMITTED this 2d day of November, 2015.

By: /s/ Davor Rukavina Davor Rukavina, Esq. Texas Bar No. 24030781 Thomas D. Berghman, Esq. Texas Bar No. 24082683 3800 Ross Tower 500 N. Akard Street Dallas, Texas 75201 Telephone: (214) 855-7500 Facsimile: (214) 855-4346

The undersigned hereby certifies that, on this the 2d day of November, 2015, true and correct copies of this document were electronically served by the Court’s ECF system on parties entitled to notice thereof, including on counsel for Century.

By: /s/ Davor Rukavina Davor Rukavina, Esq.

TRUSTEE’S REPLY IN SUPPORT OF MOTION TO CLARIFY TRUST AGREEMENT—Page 7 MHDocs 6644150_1 13229.3

SUPP APP 1257 Exhibit 9

SUPP APP 1258 Case 14-34324-hdh11 Doc 171 Filed 11/23/15 Entered 11/23/15 16:38:19 Page 1 of 2

ENTERED TAWANA C. MARSHALL, CLERK THE DATE OF ENTRY IS ON THE COURT'S DOCKET

The following constitutes the ruling of the court and has the force and effect therein described.

Signed November 23, 2015 United States Bankruptcy Judge ______________________________________________________________________

UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

In re: § § Case No. 14-34324-hdh11 Pastazios Pizza, Inc., § Chapter 11 § Debtor. §

ORDER DENYING CENTURY SURETY COMPANY’S MOTION FOR CONTINUANCE

On November 23, 2015, Century Surety Company (“Century”) filed a motion1 to continue

the hearing on the Trustee’s Expedited Motion to Enforce Plan and Confirmation Order Against

Century Surety Company [Docket No. 145] (the “Motion to Enforce”). Scott M. Seidel, the trustee

of the Pastazios Pizza, Inc. Creditor Trust (the “Trustee” of the “Trust”) filed an objection to the

1 Century Surety Company’s Motion for Continuance of Expedited Hearing on Trustee’s Motion to Enforce Plan and Confirmation Order Against Century or, in the Alternative, Request for Status Conference [Docket No. 163] (the “Motion to Continue”).

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Motion to Continue,2 and Century filed a reply.3 The hearing on the Motion to Enforce is currently

set for November 24, 2015 (the “Hearing”). The Motion to Enforce seeks compliance with the

above-captioned debtor’s confirmed plan of reorganization (the “Plan”), which the Trustee claims

Century is violating in its filings with a state appellate court.

Century seeks a continuance of the Hearing, in large part, because it claims the need to

depose all of the witnesses listed by the Trustee for the Hearing. The Court notes, as the Trustee

points out in his objection, that four of the witnesses are listed to authenticate exhibits. It would

not be necessary for Century to depose such witnesses. This Court further notes that the allegations

in the Motion to Enforce are that Century has violated certain parts of the Plan and the confirmation

order in this case. The Court does not expect a lot of testimony at the Hearing, as a comparison of

what Century has filed in the state appellate court with this Court’s orders and the Plan, will not

require a great deal of testimony.

In their pleadings regarding the continuance, both sides seem to intend to draw this Court

into a larger dispute about matters that may be before the state appellate court or the United States

District Court. This Court intends to address the narrow inquiry of whether the confirmed Plan

and this Court’s orders have been violated by Century’s filings in the state appellate court.

Accordingly, the Motion to Continue will be denied. The parties should be prepared to put on a

straightforward case as to whether the actions of Century violate the Plan or this Court’s

confirmation order.

IT IS THEREFORE ORDERED that the Motion to Continue is denied.

###END OF ORDER###

2 Docket No. 166. 3 Docket No. 167.

SUPP APP 1260 Dated: December 4, 2015 Respectfully submitted,

/s/ Charles T. Frazier, Jr. State Bar No. 07403100 cfrazier@adjtlaw.com ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP 4925 Greenville Avenue, Suite 510 Dallas, Texas 75206-4026 Telephone: (214) 369-2358 Telecopier: (214) 369-2359

Roger D. Townsend State Bar No. 20167600 rtownsend@adjtlaw.com ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP 1844 Harvard Street Houston, Texas 77008 Telephone: (713) 523-2358 Telecopier: (713) 522-4553

Dana Livingston State Bar No. 12437420 dlivingston@adjtlaw.com ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP 515 Congress Avenue, Suite 2350 Austin, Texas 78701 Telephone: (512) 482-9300 Telecopier: (512) 482-9303

COUNSEL FOR INTERVENOR/ APPELLANT IN INTERVENTION CENTURY SURETY COMPANY

SUPPLEMENTAL APPENDIX IN SUPPORT OF CENTURY’S REPLIES TO THE TRUSTEE’S AND JANE DOE’S RESPONSES TO MOTIONS TO INTERVENE AND FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL Page 1261 CERTIFICATE OF SERVICE

I certify that the foregoing document was electronically filed with the Clerk

of the Court using the electronic case filing system of the Court which will send

notification of such filing to the following counsel of record on December 4, 2015.

Gregory W. Mitchell Michael W. Huddleston greg@mitchellps.com mhuddleston@munsch.com THE MITCHELL LAW FIRM, L.P. J. Stephen Gibson 12720 Hillcrest Road, Suite 625 sgibson@munsch.com Dallas, Texas 75230 Thomas D. Berghman (972) 463-8417 tberghman@munsch.com (972) 432-7540 Fax MUNSCH, HARDT, KOPF & HARR, P.C. Attorneys for Ajredin “Danny” Deari 500 North Akard Street, Suite 3800 Tom “Trey” Crawford III Dallas, Texas 75201 tcrawford@ghjhlaw.com (214) 855-7500 GRUBER HURST ELROD JOHANSEN (214) 855-7584 Fax HAIL SHANK LLP 1445 Ross Avenue, Suite 2500 Royce West Dallas, Texas 75202 royce.w@westllp.com (214) 855-6866 Veretta Frazier (214) 855-6808 Fax veretta.f@westllp.com Attorneys for Jane Doe WEST & ASSOCIATES, L.L.P. P.O. Box 3960 Y.W. Peter Chen Dallas, Texas 75208-1260 peter@chendotson.com (214) 941-1881 CHEN DOTSON PLLC (214) 941-1399 Fax 10455 N. Central Expressway Jeffrey S. Levinger Suite 109-348 jlevinger@levingerpc.com Dallas, Texas 75231 LEVINGER PC (972) 251-2436 1445 Ross Avenue, Suite 2500 (972) 476-1080 Fax Dallas, Texas 75202 Attorneys for Pastazios Pizza, Inc. (214) 855-6817 (214) 855-6808 Fax Attorneys for Trustee

/s/ Charles T. Frazier, Jr. Charles T. Frazier, Jr.

SUPPLEMENTAL APPENDIX IN SUPPORT OF CENTURY’S REPLIES TO THE TRUSTEE’S AND JANE DOE’S RESPONSES TO MOTIONS TO INTERVENE AND FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL Page 1262