shl Doc 2345 Filed 10/12/16 Entered 10/12/16 19:52:41 Main Document Pg 1 of 21

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1 Pg 1 of 21 Hearing Date and Time: November 10, 2016, at 2:00 p.m. (prevailing Eastern Time Objection Deadline: November 3, 2016, at 4:00 p.m. (prevailing Eastern Time James H.M. Sprayregen, P.C. Paul M. Basta, P.C. Chad J. Husnick KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York Telephone: ( Facsimile: ( Counsel to MSR Liquidating Trustee, LLC UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: Chapter 11 MSR RESORT GOLF COURSE LLC, et al., 1 Case No (SHL Debtors. Jointly Administered NOTICE OF MOTION OF MSR LIQUIDATING TRUSTEE, LLC FOR ENTRY OF ORDER DIRECTING ALLOWANCE AND PAYMENT OF ATTORNEYS FEES AND EXPENSES 1 The debtors in these chapter 11 cases that are the subject of the Second Amended Joint Plan of Reorganization of MSR Resort Golf Course LLC, et al., Pursuant to Chapter 11 of the Bankruptcy Code (as amended, modified, and supplemented, along with the last four digits of each debtor s federal tax identification number include: MSR Resort Golf Course LLC (7388; MSR Biltmore Resort, LP (5736; MSR Claremont Resort, LP (5787; MSR Desert Resort, LP (5850; MSR Grand Wailea Resort, LP (5708; MSR Resort Ancillary Tenant, LLC (9698; MSR Resort Biltmore Real Estate, Inc. (8464; MSR Resort Desert Real Estate, Inc. (9265; MSR Resort Hotel, LP (5558; MSR Resort Intermediate Mezz GP, LLC (3864; MSR Resort Intermediate Mezz LLC (7342; MSR Resort Intermediate Mezz, LP (3865; MSR Resort Intermediate MREP, LLC (9703; MSR Resort Lodging Tenant, LLC (9699; MSR Resort REP, LLC (9708; MSR Resort Senior Mezz GP, LLC (9969; MSR Resort Senior Mezz LLC (7348; MSR Resort Senior Mezz, LP (9971; MSR Resort Senior MREP, LLC (9707; MSR Resort Silver Properties, LP (5674; MSR Resort SPE GP II LLC (5611; MSR Resort SPE GP LLC (7349; MSR Resort Sub Intermediate Mezz GP, LLC (1186; MSR Resort Sub Intermediate Mezz, LP (1187; MSR Resort Sub Intermediate MREP, LLC (9701; MSR Resort Sub Senior Mezz GP, LLC (9966; MSR Resort Sub Senior Mezz LLC (7347; MSR Resort Sub Senior Mezz, LP (9968; and MSR Resort Sub Senior MREP, LLC (9705. The location of the debtors service address is: c/o the Trustee, One Post Office Square, Suite 3100, Boston, MA MSR Resort Sub Intermediate Mezz LLC (7341 remains a debtor in possession.

2 Pg 2 of 21 PLEASE TAKE NOTICE that a hearing on the Motion of MSR Liquidating Trustee, LLC for Entry of Order Directing Allowance and Payment of Attorneys Fees and Expenses (the Motion will be held before the Honorable Sean H. Lane, United States Bankruptcy Judge, United States Bankruptcy Court for the Southern District of New York (the Court, One Bowling Green, Courtroom No. 701, New York, New York , on November 10, 2016, at 2:00 p.m., prevailing Eastern Time. PLEASE TAKE FURTHER NOTICE that any responses or objections to the relief requested in the Motion shall: (a be in writing; (b conform to the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules, all General Orders, Local Bankruptcy Rules, and the Amended Order Establishing Certain Notice, Case Management, and Administrative Procedures [Docket No. 514] (the Case Management Order approved by the Court; (c be filed electronically with the Court on the docket of In re MSR Resort Golf Course LLC, No (SHL, by registered users of the Court s electronic filing system and in accordance with the General Order M-399 (which is available on the Court s website at and (d be served so as to be actually received by November 3, 2016, at 4:00 p.m., prevailing Eastern Time, by (i the entities on the Master Service List (as defined in the Case Management Order and available on the Debtors case website at and (ii any person or entity with a particularized interest in the subject matter of the Motion. PLEASE TAKE FURTHER NOTICE that only those responses that are timely filed, served, and received will be considered at the hearing. Failure to file a timely objection may result in entry of a final order granting the Motion as requested by the movant.

3 Pg 3 of 21 Dated: October 12, 2016 New York, New York /s/ Chad J. Husnick James H.M. Sprayregen, P.C. Paul M. Basta, P.C. Chad J. Husnick KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York Telephone: ( Facsimile: ( Counsel to MSR Liquidating Trustee, LLC

4 Pg 4 of 21 James H.M. Sprayregen, P.C. Paul M. Basta, P.C. Chad J. Husnick KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York Telephone: ( Facsimile: ( Counsel to MSR Liquidating Trustee, LLC UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: Chapter 11 MSR RESORT GOLF COURSE LLC, et al., 1 Case No (SHL Debtors. Jointly Administered MOTION OF MSR LIQUIDATING TRUSTEE, LLC FOR ENTRY OF ORDER DIRECTING ALLOWANCE AND PAYMENT OF ATTORNEYS FEES AND EXPENSES 1 The debtors in these chapter 11 cases that are the subject of the Second Amended Joint Plan of Reorganization of MSR Resort Golf Course LLC, et al., Pursuant to Chapter 11 of the Bankruptcy Code (as amended, modified, and supplemented, along with the last four digits of each debtor s federal tax identification number include: MSR Resort Golf Course LLC (7388; MSR Biltmore Resort, LP (5736; MSR Claremont Resort, LP (5787; MSR Desert Resort, LP (5850; MSR Grand Wailea Resort, LP (5708; MSR Resort Ancillary Tenant, LLC (9698; MSR Resort Biltmore Real Estate, Inc. (8464; MSR Resort Desert Real Estate, Inc. (9265; MSR Resort Hotel, LP (5558; MSR Resort Intermediate Mezz GP, LLC (3864; MSR Resort Intermediate Mezz LLC (7342; MSR Resort Intermediate Mezz, LP (3865; MSR Resort Intermediate MREP, LLC (9703; MSR Resort Lodging Tenant, LLC (9699; MSR Resort REP, LLC (9708; MSR Resort Senior Mezz GP, LLC (9969; MSR Resort Senior Mezz LLC (7348; MSR Resort Senior Mezz, LP (9971; MSR Resort Senior MREP, LLC (9707; MSR Resort Silver Properties, LP (5674; MSR Resort SPE GP II LLC (5611; MSR Resort SPE GP LLC (7349; MSR Resort Sub Intermediate Mezz GP, LLC (1186; MSR Resort Sub Intermediate Mezz, LP (1187; MSR Resort Sub Intermediate MREP, LLC (9701; MSR Resort Sub Senior Mezz GP, LLC (9966; MSR Resort Sub Senior Mezz LLC (7347; MSR Resort Sub Senior Mezz, LP (9968; and MSR Resort Sub Senior MREP, LLC (9705. The location of the debtors service address is: c/o the Trustee, One Post Office Square, Suite 3100, Boston, MA MSR Resort Sub Intermediate Mezz LLC (7341 remains a debtor in possession.

5 Pg 5 of 21 MSR Liquidating Trustee, LLC, as the Trustee for MSR Liquidation Trust (the Trustee, the successor in interest to certain of the above-captioned debtors (collectively, the Debtors, files this motion (this Motion for entry of an order (the Order, substantially in the form attached hereto as Exhibit A, authorizing allowance and payment of certain attorneys fees and expenses incurred by Kirkland & Ellis LLP ( K&E LLP as counsel to the Trustee in connection with the Limited Objection of Conlon Group Arizona, LLC to Motion of MSR Resort Golf Course LLC, et al., for the Entry of an Order Authorizing Assumption of the Arizona Biltmore Rental Pool Agreements and Related Settlement Agreement [Docket No. 1227] (the Limited Objection. In support of this Motion, the Trustee submits the declaration of Chad J. Husnick (the Husnick Declaration attached hereto as Exhibit B. In further support of this Motion, the Trustee respectfully states as follows. Jurisdiction 1. The United States Bankruptcy Court for the Southern District of New York (the Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and This matter is a core proceeding within the meaning of 28 U.S.C. 157(b(2. 2. Venue is proper pursuant to 28 U.S.C and The bases for the relief requested herein are section 105(a of title 11 of the United States Code (the Bankruptcy Code and rule 7054 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules. Background 4. On February 1, 2011 (the Petition Date, each of the Debtors filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. As of the Petition Date, the Debtors owned five iconic luxury resort properties and amenities, including the Arizona Biltmore Resort & Spa (the Arizona Biltmore in Phoenix, Arizona. As of the Petition Date, the Arizona

6 Pg 6 of 21 Biltmore and the Debtors other resort properties were historically managed by third-party managers (the Resort Managers and operated as independent resorts. 5. On February 20, 2013, the Court confirmed the Debtors Second Amended Joint Plan of Reorganization of MSR Resort Golf Course LLC, et al., Pursuant to Chapter 11 of the Bankruptcy Code, dated as of February 21, 2013 [Docket No. 2061] (as the same may have been subsequently modified, supplemented, and amended in accordance with the terms thereof, the Plan. 2 Pursuant to the Plan, the Debtors sold substantially all of their assets to an affiliate of one of their prepetition secured lenders and consummated certain other settlements. On February 22, 2013, the Court entered an order [Docket No. 2071] confirming the Plan, Debtors, other than MSR Resort Sub Intermediate Mezz LLC, subsequently consummated the Plan and emerged from chapter 11. The Arizona Biltmore and the Cure Litigation 6. Built as one of Phoenix s first resorts in 1929, and known throughout the world as the Jewel of the Desert, the Arizona Biltmore consists of 39 acres covered with gardens, swimming pools, and Frank Lloyd Wright-influenced architecture. The Arizona Biltmore includes: 604 guest rooms; eight swimming pools; seven tennis courts; a full-service resort spa, salon, and fitness center; and five dining options. 7. The Arizona Biltmore property also includes 78 one and two bedroom villa-style condominiums (the Villas. These Villas are privately owned by individuals and other entities not associated with the Resort (the Villa Owners. Prior to the Petition Date, certain of the Debtors entered into individual rental pool agreements with certain Villa Owners that allow the Resort to include certain Villas as part of its overall room inventory and offer those Villas to 2 Each Debtor (other than MSR Resort Sub Intermediate Mezz LLC is subject to the Plan.

7 Pg 7 of 21 guests of the Resort (the Rental Pool. Under the Rental Pool Agreements, on days when Villa Owners do not occupy their Villas, guests may be booked into the Villa Owners units by the Resort through its reservations system and the Arizona Biltmore s Resort Manager manages the Rental Pool units. The Debtors receive payment from guests for the use of the Villas and provide monthly payments to the Villa Owners under a profit sharing arrangement set forth in the Rental Pool Agreements. 8. On April 2, 2012, the Debtors filed the Motion of MSR Resort Golf Course LLC, et al., for the Entry of an Order Authorizing Assumption of the Arizona Biltmore Rental Pool Agreements and Related Settlement Agreement [Docket No. 1114] (the Assumption Motion, seeking (among other things entry of an order pursuant to section 365 of the Bankruptcy Code authorizing the Debtors to assume the Rental Pool Agreements. On June 13, 2012, Conlon Group Arizona, LLC ( Conlon, an owner of six Villas (each which participated in the Rental Pool, filed the Limited Objection, asserting cure claims against the Arizona Biltmore pursuant to section 365 of the Bankruptcy Code. Specifically, the Limited Objection alleged that Rental Pool participants have not been paid certain revenues that they should have been and, in addition, have been unjustifiably overcharged certain fees that they shouldn t have, resulting in amounts due to Rental Pool participants. [Docket No. 1227]. The Limited Objection was accompanied a declaration signed by Conlon s accountant, Daniel Martin, claiming that the Villa Owners in the Rental Pool are collectively owed a total of $1,991, [See Martin Decl. 1, 5, 7(C.] No Villa Owners other than Conlon objected to the Assumption Motion. 4 3 The Martin Declaration was filed under seal. [See Docket No. 1228] 4 Although the Limited Objection purports to calculate damages on behalf of all Villa Owners, it admits that Conlon only owns 6 of 66 Villas in the Rental Pool at the time the Limited Objection was filed. [Docket No. 1227] Thus, Conlon s true share of its alleged damages is only about 9% of the aggregate damages estimates alleged by Conlon.

8 Pg 8 of In response to the Limited Objection, the Debtors filed the Motion for Summary Judgment on the Conlon Group of Arizona, LLC s Cure Objection [Docket No. 1753] (the Motion for Summary Judgment, seeking summary judgment as to nearly all of Conlon s claims for cure damages based on principles of issue and claim preclusion. On August 7, 2014, the Court issued a memorandum of decision [Docket No. 2290] (the Decision granting the Motion for Summary Judgment, and finding that the vast majority of Conlon s claims for cure damages are barred by the doctrines of issue and claim preclusion, since Conlon had already litigated (or could have litigated the very same claims in prior litigations with the Arizona Biltmore The Decision left two narrow categories of cure damages still pending (such claims, collectively, the Surviving Claims : (a Conlon s claim that the Arizona Biltmore could not pay the Villa Owners less than 17% percent of total Villa revenues, which the Court declined to dismiss on precision grounds, and which Conlon estimated at a total of $64,310 (the 17 Percent Claims ; and (b miscellaneous categories of cure damages which were not the subject of the Motion for Summary Judgment, and which Conlon estimated at a total of $19, [See Docket No at p.7 n.7, 21-22; see also Docket No. 2316] 11. On March 19, 2016, the Trustee filed a letter indicating it intended to file a motion for summary judgment on the merits of the 17 Percent Claim [Docket No. 2325]. Rather than oppose that motion, Conlon opted to voluntarily dismiss the 17 Percent Claim with 5 Conlon filed an appeal of the Court s ruling [Docket No. 2297], which was subsequently dismissed for lack of jurisdiction [Docket No. 2312]. 6 These miscellaneous categories are comprised of Conlon s $16,212 theory that the Arizona Biltmore double-charged villa unit owners for certain adjustments [Martin Decl ], Conlon s theory that the Arizona Biltmore should not have charged the villa unit owners for an $8, portion of a guest s bill which was written off as uncollectable [Martin Decl ], and Conlon s theories regarding credit card fees and travel agent commissions, which net out to a negative $4,942 [Martin Decl ].

9 Pg 9 of 21 prejudice [Docket No. 2334]. The Trustee and Conlon engaged in discussions to consensually resolve the rest of the Surviving Clams, with the parties ultimately reaching an agreement that included dismissal of the Surviving Claims with prejudice. The Court entered an order dismissing the rest of the Surviving Claims with prejudice on September 31, 2016, thereby disposing of the remaining claims for cure damages asserted in the Limited Objection [Docket No. 2342] (the Final Judgment. The Trustee now respectively requests that the Court award it it the fees and expenses incurred by K&E LLP as counsel to the Trustee, as the prevailing party entitled to such relief under the applicable non-bankruptcy law (including, for the avoidance of doubt, the prevailing party clause in the Rental Pool agreements. Basis for Relief 12. This Court may award attorneys fees to the prevailing party in a bankruptcy proceeding where, as here, such a party is entitled to such fees pursuant to an applicable state law contractual obligation. See Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Elec. Co., 549 U.S. 443, 451 (2007; see also In re Gifford, 256 B.R. 661, 663 (Bankr. D. Conn (debtors whose claim objection relating to provisions of mortgage contract was successful was entitled to an award of attorney fees under state law. 13. The Trustee is eligible for an award of attorneys fees under Paragraph 15(f of the Rental Pool Agreements, which provides: In the event of any dispute or litigation relative to this [Rental Pool Agreement], the prevailing party shall be entitled to recover reasonable attorneys fees and costs incurred in such dispute or litigation. [See Docket No at Ex. C.] The Rental Pool Agreement provides that it will be construed in accordance with Arizona law. See RPA 15(b. Under Arizona law, the determination of which party prevailed is based on the totality of circumstances and the relative success of the litigants. McAlister v. Citibank (Ariz.,

10 Pg 10 of 21 a Subsidiary of Citicorp, 829 P.2d 1253, 1262 (Ariz. Ct. App. 1992; Schwartz v. Farmers Ins. Co. of Ariz., 800 P.2d 20, 25 (Ariz. Ct. App Here, the Limited Objection sought the recovery of cure damages from the Trustee, which, by Conlon s estimation, totaled $1,991,262. [See Martin Decl. 1, 5, 7(C.] The Court granted summary judgment in favor of the Trustee with respect to over 95 percent of claimed damages in the Decision, holding that they were barred by the doctrines of issue and claim preclusion [Docket No. 2334]. The only claim not barred on preclusion grounds, the Court held, was Conlon s 17 Percent claim, which Conlon estimated at $64,318 (or approximately three percent of Conlon s claimed damages [Docket No. 2334]. But, rather than face a motion for summary judgment on the merits of its 17 Percent claim, Conlon abandoned it, choosing to voluntarily dismissing the claim with prejudice [Docket No. 2334]. That left a sliver of Conlon s claims, totaling approximately one percent of Conlon s claimed damages, which the Trustee settled and Conlon proceeded to dismiss with prejudice. [Docket No. 2342] Because the Trustee obtained dismissal with prejudice with respect to 99 percent of the claimed damages in the Limited Objection (and settled the rest, there can be no doubt that the Trustee was the prevailing party in opposing the Limited Objection as measured by the totality of circumstances and the relative success of the litigants. McAlister, 829 P.2d at 1262; see also Schwartz, 800 P.2d at 25 (awarding prevailing party attorney fees to defendant light of the substantial disparity between the relief requested by plaintiff and the ultimate outcome. 15. The Trustee seeks an award of attorneys fees in the amount of $347, and expenses in the amount of $5, This amount is reasonable in light of all of the effort that went into the Trustee obtaining the Final Judgment. When Conlon filed the Limited Objection, on June 13, 2012, it employed a kitchen-sink approach, seeking numerous categories of cure

11 Pg 11 of 21 damages, including alleged damages relating to Resort Fees, Cancellation Fees, Guaranteed No-Show Fees, Early Departure Fees, Other Room Revenue, Telephone Overcharges, Adjustments, Bad Debt Expense, Travel Agent Commissions and Credit Card Fees, and socalled 17 Percent rule damages. [See Docket No ] The Final Judgment was the culmination of a four-year effort by Trustee (with K&E LLP s assistance to obtain dismissal of a wide variety of contract claims that were either meritless, or had already been (or could have been litigated in prior litigations between the parties. During this time, among other things, K&E LLP, as counsel to the Trustee: (a prepared and filed a 35 page reply brief in further support of the Motion to Assume, explaining why the claims in the Limited Objection were precluded or meritless [Docket No. 1524]; (b responded and objected to Conlon s written discovery requests, including requests for admissions, interrogatories, and demands for the production of documents; (c engaged in multiple meet-and-confers regarding the scope of discovery and produced thousands of pages of documents to Conlon; (d took the deposition of Conlon s principal, Mark Finney, and defended the deposition of a former Arizona Biltmore executive, Russell Pruitt; (e prepared and filed over 50 pages of briefing on the Motion for Summary Judgment [Docket Nos & 1797]; (f participated in an oral argument on the Motion for Summary Judgment before this Court; and (g filed a brief opposing Conlon s appeal of the Decision, which was ultimately dismissed for lack of jurisdiction. [See Docket No ] As set forth above, these efforts paid dividends: the Trustee obtained dismissal with prejudice with respect to 99 percent of the claimed damages in the Limited Objection (and settled the rest. 16. The fees sought here are reasonable and documented. The hours spent on this case by each attorney at K&E LLP supporting the amount claimed above are appended to this Motion. Moreover, the rates charged by K&E LLP in this case are market-based and appropriate

12 Pg 12 of 21 for the type of work. K&E LLP s fees were charged on an hourly basis, and the fees sought are simply the lodestar of the hours worked multiplied by the negotiated, market-based, rates charged. See, e.g., Leavey v. UNUM/Provident Corp., No. cv , 2006 WL , at *23 (D. Ariz. May 26, 2006 (awarding lodestar figure calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate; Sanborn v. Brooker & Wake Prop. Mgmt., Inc., 874 P.2d 982, 987 (Ariz. Ct. App (same. Accordingly, the Trustee respectfully requests that the Court grant the Motion. Motion Practice 17. This Motion includes citations to the applicable rules and statutory authorities upon which the relief requested herein is predicated and a discussion of their application to this Motion. Accordingly, the Trustee submits that this Motion satisfies Rule (a of the Local Bankruptcy Rules for the Southern District of New York. Notice 18. The Trustee has provided notice of this Motion to: (a the entities on the Master Service List (as defined in the Case Management Order and available on the Debtors case website at and (b any person or entity with a particularized interest in the subject matter of the Motion. In light of the nature of the relief requested herein, the Trustee respectfully submits that no further notice is necessary. No Prior Request 19. No prior request for the relief sought in this Motion has been made to this or any other court.

13 Pg 13 of 21 WHEREFORE, the Trustee respectfully requests that the Court enter an order, substantially in the form attached hereto as Exhibit A, granting the relief requested herein and granting such other relief as is just and proper. Dated: October 12, 2016 New York, New York /s/ Chad J. Husnick James H.M. Sprayregen, P.C. Paul M. Basta, P.C. Chad J. Husnick KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York Telephone: ( Facsimile: ( Counsel to MSR Liquidation Trust

14 Pg 14 of 21 EXHIBIT A Proposed Order

15 Pg 15 of 21 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: Chapter 11 MSR RESORT GOLF COURSE LLC, et al., 1 Case No (SHL Debtors. Jointly Administered ORDER DIRECTING ALLOWANCE AND PAYMENT OF ATTORNEYS FEES AND EXPENSES Upon the motion (the Motion 2 of MSR Liquidating Trustee, LLC, as trustee for MSR Liquidation Trust (the Trustee, for entry of an order (this Order directing allowance and payment of certain attorneys fees and expenses incurred in connection with opposing the Limited Objection, all as more fully set forth in the Motion; and the Court having found that it has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334; and the Court having found that this is a core proceeding pursuant to 28 U.S.C. 157(b(2; and the Court having found that venue of this proceeding and the Motion in this district is proper pursuant to 28 U.S.C. 1 The debtors in these chapter 11 cases that are the subject of the Second Amended Joint Plan of Reorganization of MSR Resort Golf Course LLC, et al., Pursuant to Chapter 11 of the Bankruptcy Code (as amended, modified, and supplemented, along with the last four digits of each debtor s federal tax identification number include: MSR Resort Golf Course LLC (7388; MSR Biltmore Resort, LP (5736; MSR Claremont Resort, LP (5787; MSR Desert Resort, LP (5850; MSR Grand Wailea Resort, LP (5708; MSR Resort Ancillary Tenant, LLC (9698; MSR Resort Biltmore Real Estate, Inc. (8464; MSR Resort Desert Real Estate, Inc. (9265; MSR Resort Hotel, LP (5558; MSR Resort Intermediate Mezz GP, LLC (3864; MSR Resort Intermediate Mezz LLC (7342; MSR Resort Intermediate Mezz, LP (3865; MSR Resort Intermediate MREP, LLC (9703; MSR Resort Lodging Tenant, LLC (9699; MSR Resort REP, LLC (9708; MSR Resort Senior Mezz GP, LLC (9969; MSR Resort Senior Mezz LLC (7348; MSR Resort Senior Mezz, LP (9971; MSR Resort Senior MREP, LLC (9707; MSR Resort Silver Properties, LP (5674; MSR Resort SPE GP II LLC (5611; MSR Resort SPE GP LLC (7349; MSR Resort Sub Intermediate Mezz GP, LLC (1186; MSR Resort Sub Intermediate Mezz, LP (1187; MSR Resort Sub Intermediate MREP, LLC (9701; MSR Resort Sub Senior Mezz GP, LLC (9966; MSR Resort Sub Senior Mezz LLC (7347; MSR Resort Sub Senior Mezz, LP (9968; and MSR Resort Sub Senior MREP, LLC (9705. The location of the debtors service address is: c/o the Trustee, One Post Office Square, Suite 3100, Boston, MA MSR Resort Sub Intermediate Mezz LLC (7341 remains a debtor in possession. 2 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Motion.

16 Pg 16 of and 1409; and the Court having found that the Trustee provided appropriate notice of the Motion and the opportunity for a hearing on the Motion under the circumstances; and the Court having reviewed the Motion and having heard the statements in support of the relief requested therein at a hearing before the Court (the Hearing ; and the Court having determined that the legal and factual bases set forth in the Motion and at the Hearing establish just cause for the relief granted herein; and upon all of the proceedings had before the Court; and after due deliberation and sufficient cause appearing therefor, it is HEREBY ORDERED THAT: 1. The Motion is granted as set forth herein. 2. Conlon is ordered to pay $352, to the Trustee on account of K&E LLP s fees and expenses in connection with the Limited Objection. 3. The Trustee and Kirkland & Ellis LLP are authorized to take all actions necessary to effectuate the relief granted pursuant to this Order in accordance with the Motion. 4. The Court retains exclusive jurisdiction with respect to all matters arising from or related to the implementation of this Order. Dated:, 2016 New York, New York THE HONORABLE SEAN H. LANE UNITED STATES BANKRUPTCY JUDGE 2

17 Pg 17 of 21 EXHIBIT B Husnick Declaration

18 Pg 18 of 21 James H.M. Sprayregen, P.C. Paul M. Basta, P.C. Chad J. Husnick KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York Telephone: ( Facsimile: ( Counsel to MSR Liquidating Trustee, LLC UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: Chapter 11 MSR RESORT GOLF COURSE LLC, et al., 1 Case No (SHL Debtors. Jointly Administered DECLARATION OF CHAD J. HUSNICK IN SUPPORT OF MOTION OF MSR LIQUIDATING TRUSTEE, LLC FOR ALLOWANCE AND PAYMENT OF ATTORNEYS FEES AND EXPENSES I, Chad J. Husnick, being duly sworn, state the following under penalty of perjury: 1. I am a partner in the law firm of Kirkland & Ellis LLP, located at 300 North LaSalle, Chicago, Illinois ( Kirkland. 2 I am a member in good standing of the Bar of 1 The debtors in these chapter 11 cases that are the subject of the Second Amended Joint Plan of Reorganization of MSR Resort Golf Course LLC, et al., Pursuant to Chapter 11 of the Bankruptcy Code (as amended, modified, and supplemented, along with the last four digits of each debtor s federal tax identification number include: MSR Resort Golf Course LLC (7388; MSR Biltmore Resort, LP (5736; MSR Claremont Resort, LP (5787; MSR Desert Resort, LP (5850; MSR Grand Wailea Resort, LP (5708; MSR Resort Ancillary Tenant, LLC (9698; MSR Resort Biltmore Real Estate, Inc. (8464; MSR Resort Desert Real Estate, Inc. (9265; MSR Resort Hotel, LP (5558; MSR Resort Intermediate Mezz GP, LLC (3864; MSR Resort Intermediate Mezz LLC (7342; MSR Resort Intermediate Mezz, LP (3865; MSR Resort Intermediate MREP, LLC (9703; MSR Resort Lodging Tenant, LLC (9699; MSR Resort REP, LLC (9708; MSR Resort Senior Mezz GP, LLC (9969; MSR Resort Senior Mezz LLC (7348; MSR Resort Senior Mezz, LP (9971; MSR Resort Senior MREP, LLC (9707; MSR Resort Silver Properties, LP (5674; MSR Resort SPE GP II LLC (5611; MSR Resort SPE GP LLC (7349; MSR Resort Sub Intermediate Mezz GP, LLC (1186; MSR Resort Sub Intermediate Mezz, LP (1187; MSR Resort Sub Intermediate MREP, LLC (9701; MSR Resort Sub Senior Mezz GP, LLC (9966; MSR Resort Sub Senior Mezz LLC (7347; MSR Resort Sub Senior Mezz, LP (9968; and MSR Resort Sub Senior MREP, LLC (9705. The location of the debtors service address is: c/o the Trustee, One Post Office Square, Suite 3100, Boston, MA MSR Resort Sub Intermediate Mezz LLC (7341 remains a debtor in possession.

19 Pg 19 of 21 the State of Illinois and the Bar of the State of New York, and I have been admitted to practice in the Supreme Court of Illinois, the United States District Courts for the Northern District of Illinois and Southern District of New York, and the United States Court of Appeals for the Seventh Circuit. There are no disciplinary proceedings pending against me. 2. I have read the foregoing Motion of MSR Liquidating Trustee, LLC for Allowance and Payment of Attorneys Fees and Expenses (the Motion. To the best of my knowledge, information and belief, the statements contained in the Motion are true and correct. 3. In connection therewith, I hereby certify that: a. to the best of my knowledge, information, and belief, formed after reasonable inquiry, the fees and disbursements sought in the Motion are reasonable under the facts and circumstances and, furthermore, are permissible under the relevant Bankruptcy Rules, court orders, Bankruptcy Code provisions, and applicable non-bankruptcy law; b. the fees and disbursements sought in the Motion, which are summarized on Exhibit C to the Motion, were billed at rates customarily employed by Kirkland and generally accepted by Kirkland s clients; and c. in providing a reimbursable expense, Kirkland does not make a profit on that expense, whether the service is performed by Kirkland in-house or through a third party.

20 Pg 20 of 21 Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Dated: October 12, 2016 Respectfully submitted, /s/ Chad J. Husnick Chad J. Husnick as Partner of Kirkland & Ellis LLP

21 Pg 21 of 21 EXHIBIT C Summary of Fees and Expenses Fees Timekeeper Name Total Hours Total Fees Adam Grant 0.50 $ Beth Friedman 6.25 $2, Carrie Oppenheim $9, Chad J. Husnick 9.75 $8, Cheryl Wilson-Griffin 8.00 $2, Christian Reigstad $95, David Schlaifer 7.00 $2, Eric F. Leon, P.C $114, Gregory F. Pesce 9.50 $6, Hunter R. Murdock $101, John Nedeau 1.50 $ Laura Saal 0.50 $ Library Factual Research 2.00 $ Michelle T. Denny 1.00 $ Robert Orren 1.00 $ Steven Serajeddini 5.50 $3, Grand Total $348, Expenses Description Amount Third Party Telephone Charges Total $36.53 Standard Copies or Prints Total $ Tabs/Indexes/Dividers Total $33.80 Scanned Images Total $16.96 CD-ROM Duplicates/Master Total $7.00 Color Prints Total $ Overnight Delivery Total $71.85 Local Transportation Total $64.64 Transportation to/from airport Total $80.75 Calendar/Court Services Total $ Outside Retrieval Service Total $ Computer Database Research Total $2, Westlaw Research Total $ Overtime Transportation Total $29.37 Overtime Meals - Attorney Total $72.26 Secretarial Overtime Total $13.23 Document Services Overtime Total $ Grand Total $5,471.77