shl Doc 1376 Filed 08/02/12 Entered 08/02/12 18:53:50 Main Document Pg 1 of 8

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1 Pg 1 of 8 James H.M. Sprayregen, P.C. Paul M. Basta Edward O. Sassower Chad J. Husnick KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York Telephone: (212) Facsimile: (212) Counsel to the Debtors and Debtors in Possession 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 ) FOURTH SUPPLEMENTAL DECLARATION OF PAUL M. BASTA IN SUPPORT OF APPLICATION OF MSR RESORT GOLF COURSE LLC, ET AL., FOR ENTRY OF AN ORDER AUTHORIZING THE EMPLOYMENT AND RETENTION OF KIRKLAND & ELLIS LLP AS ATTORNEYS FOR THE DEBTORS AND DEBTORS IN POSSESSION EFFECTIVE NUNC PRO TUNC TO THE PETITION DATE 1 The debtors in these chapter 11 cases, 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 LLC (7341); 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 CNL-AB LLC, 1251 Avenue of the Americas, New York, New York

2 Pg 2 of 8 I, Paul M. Basta, being duly sworn, state the following under penalty of perjury: 1. I am a partner in the law firm of Kirkland & Ellis LLP ( K&E ), located at 601 Lexington Avenue, New York, New York I am a member in good standing of the Bars of the States of New York, Rhode Island, and Massachusetts, and I have been admitted to practice in the United States District Court for the Southern District of New York. There are no disciplinary proceedings pending against me. 2. On February 1, 2011 (the Petition Date ), each of the above-captioned debtors and debtors in possession (collectively, the Debtors ) filed a petition with this Court under chapter 11 of title 11 of the United States Code (the Bankruptcy Code ). On February 11, 2011, the Debtors filed an application to employ and retain Kirkland & Ellis LLP as counsel for the Debtors [Docket No. 51] (the Application ) pursuant to sections 327(a) and 330 of the Bankruptcy Code, Rules 2014(a) and 2016 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ), and Rules and of the Local Bankruptcy Rules for the Southern District of New York. 3. My initial declaration in support of the Application (the Original Declaration ) was attached to the Application as Exhibit B. On March 2, 2011, the Court entered the Order Authorizing the Employment and Retention of Kirkland & Ellis LLP as Attorneys for the Debtors and Debtors in Possession Effective Nunc Pro Tunc to the Petition Date [Docket No. 101] (the Retention Order ). On July 26, 2011, I filed the Supplemental Declaration of Paul M. Basta in Support of Application of MSR Resort Golf Course LLC, et al., for Entry of an Order Authorizing the Employment and Retention of Kirkland & Ellis LLP as Attorneys for the Debtors and Debtors in Possession Effective Nunc Pro Tunc to the Petition Date [Docket No. 525] (the First Supplemental Declaration ). On February 7, 2012, I filed the Second Supplemental 2

3 Pg 3 of 8 Declaration of Paul M. Basta in Support of Application of MSR Resort Golf Course LLC, et al., for Entry of an Order Authorizing the Employment and Retention of Kirkland & Ellis LLP as Attorneys for the Debtors and Debtors in Possession Effective Nunc Pro Tunc to the Petition Date [Docket No. 1000] (the Second Supplemental Declaration ). On March 23, 2012, I filed the Third Supplemental Declaration of Paul M. Basta in Support of Application of MSR Resort Golf Course LLC, et al., for Entry of an Order Authorizing the Employment and Retention of Kirkland & Ellis LLP as Attorneys for the Debtors and Debtors in Possession Effective Nunc Pro Tunc to the Petition Date [Docket No. 1098] (together with the Original Declaration, the First Supplemental Declaration, and the Second Supplemental Declaration, the Previous Declarations ). 4. In connection with the Application and the Retention Order, I submit this fourth supplemental declaration (this Fourth Supplemental Declaration ) to provide additional disclosures in accordance with Rules 2014(a) and 2016(b) of the Bankruptcy Rules. Unless otherwise stated in this Fourth Supplemental Declaration, I have personal knowledge of the facts set forth herein. Updated Conflicts Review 5. I stated in the Previous Declarations that K&E would periodically review its files during the pendency of these chapter 11 cases and use its reasonable efforts to ensure that no conflicts or other disqualifying circumstances exist or arise. Consistent with these statements, K&E has reviewed its files for connections to any interested parties in these chapter 11 cases not already searched in connection with the filing of the Previous Declarations (collectively, the Additional Interested Parties ). K&E has conducted a comprehensive conflicts search of all Additional Interested Parties against its database of clients and matters dating back to three years before the Petition Date. The Additional Interested Parties, set forth on Schedule 1 attached 3

4 Pg 4 of 8 hereto, are parties that have filed requests for notice pursuant to Bankruptcy Rule K&E s searches of the Additional Interested Parties did not return any client connections to K&E. In addition to searching the Additional Interested Parties, K&E ran updated searches of all previously-disclosed parties in interest. Schedule 2 attached hereto discloses client connections for parties that are or Former K&E clients listed in the Previous Declarations that require updates. 2 Specific Disclosure 7. K&E currently represents Paulson & Company, Inc. ( Paulson ) for matters unrelated to K&E s representation of the Debtors in the chapter 11 cases. Paulson is one of the Debtors indirect equity owners. Moreoever, certain Paulson representatives, including Michael Barr, Jonathan Shumaker, and Daniel Kamensky, are members of the Debtors boards of directors and officers of the Debtors. In addition, CNL DIP Recovery Acquisition, LLC, a Paulson affiliate, is one of the Debtors debtor-in-possession lenders. K&E does not believe that its representation of Paulson presents a conflict but has disclosed it out of an abundance of caution. No Conflicts or Other Disqualifying Circumstances 8. Based on the conflicts searches conducted to date and described herein, to the best of my knowledge, neither I, K&E, nor any partner, of counsel, or associate thereof, insofar as I have been able to ascertain, have any connection with the Debtors, their creditors, or any other parties in interest, their respective attorneys and accountants, the Office of the United States 2 On Schedule 2, refers to clients to whom time was posted in the 12 months prior to the filing of these chapter 11 cases and Former refers to clients for whom time was posted between 36 and 12 months before the Petition Date. As a general matter, K&E discloses connections with Former clients for whom time was posted in the last 36 months, but does not disclose connections if time was billed beyond 36 months before the Petition Date. Other than those listed on Schedule 2, parties in interest previously searched and connections previously disclosed in the Previous Declarations have not been re-identified on the schedules attached hereto. 4

5 Pg 5 of 8 Trustee (the U.S. Trustee ), or any person employed by the U.S. Trustee, except as disclosed or otherwise described in the Previous Declarations and this Fourth Supplemental Declaration. 9. None of the representations described herein are materially adverse to the interests of the Debtors estates. Moreover, pursuant to section 327(c) of the Bankruptcy Code, K&E is not disqualified from acting as the Debtors counsel merely because it represents the Debtors creditors, equity security holders, or other parties in interest in matters unrelated to these chapter 11 cases. K&E does not, and will not, represent such clients in any matters related to the Debtors. 10. K&E will continue to review its files periodically during the pendency of these chapter 11 cases to ensure that no conflicts or other disqualifying circumstances exist or arise. If any new relevant facts or relationships are discovered or arise, K&E will use its reasonable efforts to identify any such further developments and will file promptly a supplemental declaration as required by Rule 2014(a) of the Bankruptcy Rules. Dated: August 2, 2012 Respectfully submitted, /s/ Paul M. Basta Paul M. Basta Partner, Kirkland & Ellis LLP 5

6 Pg 6 of 8 SCHEDULE 1 Parties that have Filed Pursuant to Bankruptcy Rule Pack Mortgage Loan Midland Bottling Group LLC (Pepsi) Citrus Club Advisory Board of Governors, The Conlon Group Arizona LLC Halperns Steak & Seafood Co. Hilton Worldwide Inc. LA Specialty Produce Co. Inc. PGA West Ad Hoc Bankruptcy Committee PGA West Advisory Board of Governors PGA West Members Association Board Professional Golfers Association of America, The Securities and Exchange Commission Headquarters Securities and Exchange Commission NY Regional Office Sedgwick CMS US Foodservice Inc. Wyndham Vacation Resorts Inc.

7 Pg 7 of 8 Name of Entity Searched SCHEDULE 2 Name of Entity and/or Affiliate of Entity, that is a K&E Client Status Allied Barton Security Services LLC Blackstone Capital Partners VI L.P. Hilton Chicago Blackstone Energy Partners L.P. Hilton Hawaiian Village Blackstone Management Associates VI L.L.C. Hilton Hotels Corp. Hilton Portland & Executive Tower Hilton San Francisco Hilton Systems Solutions LLC Hilton Worldwide Inc. Orbitz Orbitz Worldwide Inc. Pointe Hilton Squaw Peak Resort Blackstone Management Energy Associates L.L.C. The Blackstone Group International Partners LLP AT&T AT&T Corp. AT&T Corp. AT&T Inc. AT&T Global Customer Care Center AT&T Mobility LLC AT&T Mobility AT&T Services, Inc. Bellsouth Telecommunications Inc. David Krantz SBC Internet Services, Inc. Citigroup Citigroup Dow Jones & Co Inc. Col Allan HarperCollins Publishers E-Z-Go Division of Textron Bell Helicopter Textron Inc. Textron Innovations Inc. Textron, Inc. Florida Power & Light Co. Florida Power & Light Company FPL Energy Services NextEra Energy Resources, LLC Graybar Electric Co. Inc. Graybar Electric Company, Inc. JPMorgan Chase J.P. Morgan Securities Asia Pacific Limited NCO Financial Systems Inc. Paymentech Oneida Ltd. EveryWare, Inc. Stephen Presser

8 Pg 8 of 8 Name of Entity Searched Otis Elevator Co. Name of Entity and/or Affiliate of Entity, that is a K&E Client Integrated Products and Services Incorporated Robert Wu Status Paulson & Co. Paulson & Company, Inc. Resnick, Eric KSL Capital Partners Shannon, Mike Trugreen Landcare The Terminix International Company, L.P. Former TruGreen Landcare LLC Uline Inc. Brian Uihlein Former Richard E. Uihlein, Jr. Former Stephen Ellis Uihlein Former Wachovia Dealer Services Wells Fargo Bank, N.A. Wells Fargo Wells Fargo Bank Wells Fargo Business Credit Inc. Wells Fargo Capital Services Inc. Wells Fargo Financial Leasing Wells Fargo Financial Leasing Inc Wells Fargo Trade Capital Services Inc. Wyndham South Pacific Wingate by Wyndham Schaumburg Wyndham Vacation Resorts Wyndham Vacation Resorts Inc. Wyndham Worldwide