11-10372-shl Doc 2394 Filed 01/26/18 Entered 01/26/18 14:15:16 MainDate Document Docket #2394 Filed: 01/26/2018 Pg 1 of 9 James H.M. Sprayregen, P.C. Chad J. Husnick, P.C. KIRKLAND & ELLIS LLP KIRKLAND & ELLIS INTERNATIONAL LLP 601 Lexington Avenue New York, New York 10022 Telephone: (212 446-4800 Facsimile: (212 446-4900 Ethan D. Ganc, Esq. LAW OFFICE OF ETHAN GANC 99 Madison Avenue, Suite 5009 New York, New York 10016 Telephone: (212 929-7500 Facsimile: (646 626-6410 Counsel to Conlon Group Arizona LLC Counsel to MSR Liquidating Trustee, LLC, as Trustee for MSR Liquidation Trust UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: MSR RESORT GOLF COURSE LLC, et al.,1 Debtors. Chapter 11 Case No. 11-10372 (SHL Jointly Administered JOINT NOTICE OF FILING OF AGREED ORDER AUTHORIZING ASSUMPTION OF THE ARIZONA BILTMORE RENTAL POOL AGREEMENTS PLEASE TAKE NOTICE that MS Resorts Liquidating Trustee, LLC, as Liquidating Trustee of MSR Liquidation Trust (in such capacity, the Liquidating Trustee, the successor in interest to certain of the above-captioned debtors (collectively, the Debtors, and Conlon Group Arizona LLC ( Conlon hereby file the proposed agreed Order Authorizing Assumption of the Arizona Biltmore Rental Pool Agreements in the form attached hereto as Exhibit A (the Proposed Order. The Proposed Order is acceptable to the Liquidating Trustee and Conlon and resolves the Objection of Conlon Group of Arizona LLC to Notice of Presentment of MSR Liquidating 1 MS Resorts Liquidating Trustee, LLC as Liquidating Trustee of MSR Liquidation Trust, is the successor-ininterest with respect to certain matters involving the above-captioned debtors and debtors in possession. The address of MS Resorts Liquidating Trustee, LLC as Liquidating Trustee of MSR Liquidation Trust, is: c/o Goulston & Storrs, P.C., 400 Atlantic Avenue, Boston, MA 02110-3333. 1 +#h2!:!>«1110372180126000000000001
Pg 2 of 9 Trustee LLC for Entry of Order Authorizing Assumption of the Arizona Biltmore Rental Pool Agreements [Docket No. 2388]. PLEASE TAKE FURTHER NOTICE that attached hereto as Exhibit B is a redline of the Proposed Order reflecting changes to the proposed order filed with the Notice of Presentment of Order Authorizing Assumption of the Arizona Biltmore Rental Pool Agreements [Docket No. 2385]. Dated: January 26, 2018 /s/ Chad J. Husnick James H.M. Sprayregen, P.C. Chad J. Husnick, P.C. KIRKLAND & ELLIS LLP KIRKLAND & ELLIS INTERNATIONAL LLP 601 Lexington Avenue New York, New York 10022 Telephone: (212 446-4800 Facsimile: (212 446-4900 Counsel to MSR Liquidating Trustee, LLC as Trustee for MSR Liquidation Trust Dated: January 26, 2018 /s/ Ethan D. Ganc Ethan D. Ganc, Esq. LAW OFFICE OF ETHAN GANC 99 Madison Avenue, Suite 5009 New York, New York 10016 Telephone: (212 929-7500 Facsimile: (646 626-6410 Counsel to Conlon Group Arizona LLC 2
Pg 3 of 9 Exhibit A Proposed Order DM3\4743576.1
Pg 4 of 9 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: Chapter 11 MSR RESORT GOLF COURSE LLC, et al., 1 Case No. 11-10372 (SHL Debtors. Jointly Administered ORDER AUTHORIZING ASSUMPTION OF THE ARIZONA BILTMORE RENTAL POOL AGREEMENTS Upon the motion dated April 2, 2012 [Docket No. 1114] (the Motion 2 of the above-captioned debtors and debtors in possession (collectively, the Debtors for entry of an order (this Order, pursuant to section 365 of the Bankruptcy Code, authorizing the Debtors to assume the Rental Pool Agreements, 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 venue of this proceeding and the Motion in this district is proper pursuant to 28 U.S.C. 1408 and 1409; and the Court having found that the relief requested in the Motion is in the best interests of the Debtors estates, their creditors, and other parties in interest; and the Debtors and/or the MSR Liquidation Trust having 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 the Pitts Declaration; and the Court having determined that the legal and factual bases set forth in the Motion establish just cause for the relief granted herein; and upon all 1 MS Resorts Liquidating Trustee, LLC as Liquidating Trustee of MSR Liquidation Trust, is the successor-ininterest with respect to certain matters involving the above-captioned debtors and debtors in possession. The address of MS Resorts Liquidating Trustee, LLC as Liquidating Trustee of MSR Liquidation Trust, is: c/o Goulston & Storrs, P.C., 400 Atlantic Avenue, Boston, MA 02110-3333. 2 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Motion. KE 49974485.7
Pg 5 of 9 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. Pursuant to section 365 of the Bankruptcy Code, all Rental Pool Agreements not previously assumed are hereby assumed by the MSR Liquidation Trust and assigned to the Biltmore Owner. 3. The MSR Liquidation Trust has demonstrated adequate assurance of future performance of the Rental Pool Agreements and has satisfied the requirements of section 365(b(1(C of the Bankruptcy Code related thereto. 4. There are no defaults related to the Rental Pool Agreements assumed pursuant to this Order that the MSR Liquidation Trust, any Debtor, or any other entity is required to cure for purposes of assumption and assignment of those Rental Pool Agreements. 5. All time periods set forth in this Order shall be calculated in accordance with Bankruptcy Rule 9006(a. 6. The MSR Liquidation Trust and the Biltmore Owner are authorized to take all actions necessary to effectuate the relief granted pursuant to this Order in accordance with the Motion. 7. Notwithstanding Bankruptcy Rule 6004(h, the terms and conditions of this Order shall be immediately effective and enforceable upon its entry. 8. The Court retains exclusive jurisdiction with respect to all matters arising from or related to the implementation of this Order. Dated: New York, New York THE HONORABLE SEAN H. LANE UNITED STATES BANKRUPTCY JUDGE 2 KE 49974485.7
Pg 6 of 9 Exhibit B Redline
Pg 7 of 9 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: Chapter 11 MSR RESORT GOLF COURSE LLC, et al., 1 Case No. 11-10372 (SHL Debtors. Jointly Administered ORDER AUTHORIZING ASSUMPTION OF THE ARIZONA BILTMORE RENTAL POOL AGREEMENTS Upon the motion dated April 2, 2012 [Docket No. 1114] (the Motion 2 of the above-captioned debtors and debtors in possession (collectively, the Debtors for entry of an order (this Order, pursuant to section 365 of the Bankruptcy Code, authorizing the Debtors to assume the Rental Pool Agreements, 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 venue of this proceeding and the Motion in this district is proper pursuant to 28 U.S.C. 1408 and 1409; and the Court having found that the relief requested in the Motion is in the best interests of the Debtors estates, their creditors, and other parties in interest; and the Debtors and/or the MSR Liquidation Trust having 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 the Pitts Declaration; and the Court having determined that the legal and factual bases set forth in the Motion establish just cause for the relief granted herein; upon the 1 MS Resorts Liquidating Trustee, LLC as Liquidating Trustee of MSR Liquidation Trust, is the successor-ininterest with respect to certain matters involving the above-captioned debtors and debtors in possession. The address of MS Resorts Liquidating Trustee, LLC as Liquidating Trustee of MSR Liquidation Trust, is: c/o Goulston & Storrs, P.C., 400 Atlantic Avenue, Boston, MA 02110-3333. 2 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Motion. KE 49974485.47
Pg 8 of 9 Order [Docket No. 2296], dated October 17, 2014; the So Ordered Stipulation Of Dismissal [Docket No. 2334], dated July 1, 2016; the So Ordered Stipulation Of Dismissal [Docket No. 2344], dated September 26, 2016; and upon the Order [Docket No. 2384], dated October 23, 2017, of the United States District Court for the Southern District of New York dismissing Conlon s appeal with prejudice; 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. Pursuant to section 365 of the Bankruptcy Code, theall Rental Pool Agreements not previously assumed are hereby assumed by the MSR Liquidation Trust and assigned to the Biltmore Owner. 3. The MSR Liquidation Trust has demonstrated adequate assurance of future performance of the Rental Pool Agreements and the Settlement Agreement and has satisfied the requirements of section 365(b(1(C of the Bankruptcy Code related thereto. 4. Pursuant to Article VIII.I of the 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 (the Plan, MSR Liquidation Trust is authorized to set off the the Settlement Payment (as defined in the Settlement Agreement, dated as of September 19, 2016, between the Biltmore Owner, MSR Liquidation Trust, ABR Property LLV, and Conlon Group Arizona, LCC (such agreement, the Settlement Agreement in full satisfaction of any Cure Obligations (as defined under the Plan with respect to the Rental Pool Agreements. Thereafter, no entity shall be required to pay any cure claim or other amount for the MSR Liquidation Trust to assume and assign the Rental Pool Agreements to the Biltmore Owner pursuant to this Order or otherwise. KE 49974485.47 2
Pg 9 of 9 5.4. There are no defaults related to the Rental Pool Agreements assumed pursuant to this Order that the MSR Liquidation Trust, any Debtor, or any other entity is required to cure for purposes of assumption and assignment of those Rental Pool Agreements as set forth in this Order. 6.5. All time periods set forth in this Order shall be calculated in accordance with Bankruptcy Rule 9006(a. 7.6. The MSR Liquidation Trust and the Biltmore Owner are authorized to take all actions necessary to effectuate the relief granted pursuant to this Order in accordance with the Motion. 8.7. Notwithstanding Bankruptcy Rule 6004(h, the terms and conditions of this Order shall be immediately effective and enforceable upon its entry. 9.8. The Court retains exclusive jurisdiction with respect to all matters arising from or related to the implementation of this Order. Dated: New York, New York THE HONORABLE SEAN H. LANE UNITED STATES BANKRUPTCY JUDGE KE 49974485.47 3