shl Doc 2333 Filed 06/28/16 Entered 06/28/16 15:51:23 Main Document Pg 1 of 8

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1 Pg 1 of 8 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 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 FILING OF STIPULATION AND PROPOSED ORDER OF DISMISSAL PLEASE TAKE NOTICE that on April 2, 2012, the the above-captioned debtors and debtors in possession (collectively, the Debtors filed the Motion of MSR Resort Golf Course 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 8 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 ; PLEASE TAKE FURTHER NOTICE that on June 13, 2012, Conlon Group Arizona, LLC ( Conlon filed 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, asserting claims for cure damages pursuant to Section 365 of the Bankruptcy Code; PLEASE TAKE FURTHER NOTICE that the Debtors hereby file the stipulation and agreed order of dismissal attached hereto as Exhibit A (the Stipulation and Order of Dismissal, which seeks to dismiss certain of the claims for cure damages asserted in the Limited Objection with prejudice. The Debtors respectfully request that the Court approve the Stipulation and Order of Dismissal at its earliest convenience. Dated: June 28, 2016 New York, New York /s/ Paul M. Basta 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 2

3 Pg 3 of 8 EXHIBIT A Stipulation and Proposed Order

4 Pg 4 of 8 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 STIPULATION AND ORDER OF DISMISSAL MSR Liquidation Trust (the Liquidation Trust 2 and Conlon Group Arizona, LLC ( Conlon, and, together with the Liquidation Trust, the Parties, by and through their respective counsel, hereby enter into this stipulation and agreed order of dismissal (this Stipulation and Order of Dismissal. WHEREAS, on February 1, 2011, each of the above-captioned debtors (collectively, the Debtors filed a voluntary petition for relief under chapter 11 of title 11 of the United 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 not otherwise defined herein shall have the meanings ascribed to them in the Plan.

5 Pg 5 of 8 States Code in the United States Bankruptcy Court for the Southern District of New York (the Court ; WHEREAS, 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 ; WHEREAS, on June 13, 2012, Conlon filed 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, asserting claims for cure damages pursuant to Section 365 of the Bankruptcy Code; WHEREAS, on November 9, 2012, 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 the majority of Conlon s claims for cure damages based on principles of issue and claim preclusion; WHEREAS, on February 22, 2013, the Court entered the Findings of Fact, Conclusions of Law, and Order Confirming the Second Amended Joint Plan of Reorganization of MSR Resort Golf Course LLC, et al., Pursuant to Chapter 11 of the Bankruptcy Code [Docket No. 2071] confirming the Plan; WHEREAS, on February 28, 2013, the Debtors consummated the Plan [Docket No. 2091] and transferred substantially all of their assets to the Purchaser and the Liquidation Trust;

6 Pg 6 of 8 WHEREAS, on August 7, 2014, the Court issued a Memorandum of Decision [Docket No. 2290] (the Decision, granting the Motion for Summary Judgment except as to a limited portion of the 17 Percent Claims specifically identified in the Decision (the Remaining 17 Percent Claims ; and WHEREAS, in footnote 7 of the Decision, the Court also noted that certain claims set forth in the Limited Objection would survive summary judgment and were not the subject of the Decision (the Surviving Claims ; and WHEREAS, after the Decision was rendered, Conlon duly appealed the Decision to the District Court for the Southern District of New York (the District Court ; and WHEREAS, by Order dated September 3, 2015, the District Court dismissed the appeal on the basis that the Decision was not a final order because the Decision left several aspects of Conlon s claim to be adjudicated, as some of Conlon s claims survived summary judgment and others were not even addressed in the Motion for Summary Judgment and Conlon s cross-motion for summary judgment; and WHEREAS, Conlon desires to voluntarily dismiss the Remaining 17 Percent Claims with prejudice; and WHEREAS, the Parties anticipate that they will resolve the Surviving Claims so that this Court may enter a final order with respect to the Assumption Motion. Now, therefore, it is stipulated by the Parties and HEREBY ORDERED THAT: 1. The Remaining 17 Percent Claims are discontinued and dismissed with prejudice, pursuant to Federal Rule of Bankruptcy Procedure 7041 and Federal Rule of Civil Procedure 41(a.

7 Pg 7 of 8 2. Conlon expressly reserves the right to assert the Surviving Claims, and nothing contained herein shall be construed as a waiver of that right. 3. This Stipulation and Order of Dismissal constitutes an interlocutory order. Conlon expressly reserves the right to appeal the Decision upon entry of a final order resolving all of the claims in the Limited Objection, and nothing contained herein shall be construed as a waiver of that right. 4. The Court retains jurisdiction with respect to all matters arising from or related to the implementation of this Order. /s/ Eric F. Leon Eric F. Leon, P.C. Chad J. Husnick Christian Reigstad KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York Telephone: ( Facsimile: ( /s/ Ethan Ganc Ethan Ganc LAW OFFICE OF ETHAN GANC 99 Madison Avenue Suite 5009 New York, NY Telephone: ( Facsimile: ( Counsel for Conlon Group Arizona, LLC Counsel for MSR Liquidation Trust

8 Pg 8 of 8 SO ORDERED Dated:, 2016 New York, New York THE HONORABLE SEAN H. LANE UNITED STATES BANKRUPTCY JUDGE