10000005221

Status Conference Date: January 18, 2012 at 10:00 a.m.
(ET)
James H.M. Sprayregen, P.C. Paul M. Basta Stephen E. Hessler Brian S. Lennon KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York 10022-4611 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 and Anup Sathy, P.C. KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, Illinois 60654-3406 Telephone: (312) 862-2000 Facsimile: (312) 862-2200 Counsel to the Debtors and Debtors in Possession UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: INNKEEPERS USA TRUST, et al.,1 Debtors. ) ) ) ) ) ) ) Chapter 11 Case No. 10-13800 (SCC) Jointly Administered
NOTICE OF DEBTORS OBJECTION TO GUARANTY CLAIMS ASSERTED BY TRIMONT REAL ESTATE ADVISORS, INC. AGAINST GRAND PRIX HOLDINGS, LLC
The list of Debtors in these Chapter 11 Cases along with the last four digits of each Debtors federal tax identification number can be found by visiting the Debtors restructuring website at www.omnimgt.com/innkeepers or by contacting Omni Management Group, LLC at Innkeepers USA Trust c/o Omni Management Group, LLC, 16161 Ventura Boulevard, Suite C, PMB 606, Encino, California 91436. The location of the Debtors corporate headquarters and the service address for their affiliates is: c/o Innkeepers USA, 340 Royal Poinciana Way, Suite 306, Palm Beach, Florida 33480.
K&E 19223804
PLEASE TAKE NOTICE that a status conference with respect to the relief requested in the above-referenced objection will be held before the Honorable Shelley C. Chapman, United States Bankruptcy Judge, in Courtroom No. 610 of the United States Bankruptcy Court for the Southern District of New York, Alexander Hamilton Custom House, One Bowling Green, New York, New York 10004-1408, on January 18, 2012 at 10:00 a.m. prevailing Eastern Time or such other time as counsel may be heard. New York, New York Dated: July 13, 2011 /s/ Brian S. Lennon James H.M. Sprayregen, P.C. Paul M. Basta Stephen E. Hessler Brian S. Lennon KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York 10022-4611 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 and Anup Sathy, P.C. KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, Illinois 60654-3406 Telephone: (312) 862-2000 Facsimile: (312) 862-2200 Counsel to the Debtors and Debtors in Possession
James H.M. Sprayregen, P.C. Paul M. Basta Stephen E. Hessler Brian S. Lennon KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York 10022-4611 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 and Anup Sathy, P.C. KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, Illinois 60654-3406 Telephone: (312) 862-2000 Facsimile: (312) 862-2200 Counsel to the Debtors and Debtors in Possession UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: INNKEEPERS USA TRUST, et al.,1 Debtors. ) ) ) ) ) ) ) Chapter 11 Case No. 10-13800 (SCC) Jointly Administered
DEBTORS OBJECTION TO GUARANTY CLAIMS ASSERTED BY TRIMONT REAL ESTATE ADVISORS, INC. AGAINST GRAND PRIX HOLDINGS, LLC
The list of Debtors in these Chapter 11 Cases along with the last four digits of each Debtors federal tax identification number can be found by visiting the Debtors restructuring website at www.omnimgt.com/innkeepers or by contacting Omni Management Group, LLC at Innkeepers USA Trust c/o Omni Management Group, LLC, 16161 Ventura Boulevard, Suite C, PMB 606, Encino, California 91436. The location of the Debtors corporate headquarters and the service address for their affiliates is: c/o Innkeepers USA, 340 Royal Poinciana Way, Suite 306, Palm Beach, Florida 33480.
K&E 19223804
Innkeepers USA Trust and certain of its affiliates, as debtors and debtors in possession (collectively, the Debtors), object (this Objection) to the following proofs of claim filed by TriMont Real Estate Advisors, Inc. (TriMont) against Grand Prix Holdings LLC (Grand Prix Holdings): (a) proof of claim no. 1811 filed on May 10, 2011 on account of Grand Prix Holdings alleged guaranty obligations in connection with the Anaheim Mezzanine Loan (the Anaheim Mezzanine Guaranty Claim) and (b) proof of claim no. 1812 filed on May 10, 2011 on account of Grand Prix Holdings alleged guaranty obligations in connection with the Floating Rate Mezzanine Loan (the Floating Rate Mezzanine Guaranty Claim, and together with the Floating Rate Mezzanine Guaranty Claim, the Guaranty Claims), and seek entry of an order, substantially in the form attached hereto as Exhibit A, disallowing and expunging the Guaranty Claims pursuant to section 502(b) of title 11 of the United States Code (the Bankruptcy Code) and Rule 3007 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules). In support of this Objection, the Debtors respectfully state as follows:2 Jurisdiction 1. The Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and
1334. This matter is a core proceeding within the meaning of 28 U.S.C. 157(b)(2). 2. 3. Venue is proper in this Court pursuant to 28 U.S.C. 1408 and 1409. The bases for the relief requested herein are sections 105(a) and 502(b) of the
Bankruptcy Code and Bankruptcy Rule 3007.
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Debtors Plans of Reorganization Pursuant to Chapter 11 of the Bankruptcy Code [Docket No. 1744] (the Plan).
Preliminary Statement 4. More than seven months after the Court-established October 29, 2010 deadline for
filing proofs of claim in these Chapter 11 Cases, TriMont filed two proofs of claim against Grand Prix Holdings asserting claims in connection with Grand Prix Holdings guaranty of two of the Debtors secured mortgage loans: (a) the $21.3 million Anaheim Mezzanine Loan and (b) the $121 million Floating Rate Mezzanine Loan. Despite the plainly untimely nature of this filing, TriMont did not first seek Court authority to file the proofs of claim. (Nor has TriMont sought leave to file these untimely claims in the ensuing two months.) Especially for a
sophisticated institutional party such as TriMont, in highly complex and at times heavily contested chapter 11 proceedings such as these, there can be no excuse for extreme tardiness in complying with the simple yet essential requirement that creditors timely file proofs of claim. Further, any interpretation by TriMont that the Bar Date Order somehow exempted it from the requirement to file proofs of claim against Grand Prix Holdings because the Debtors scheduled such claims is clearly erroneous because the claims were scheduled as contingent and unliquidated, and TriMonts interpretation would thus contravene Bankruptcy Rule 3003(c)(2) and render key provisions of the Bar Date Order inoperable. As such, the Debtors respectfully submit that the Court should disallow and expunge TriMonts late-filed guaranty claims.3 Relief Requested 5. By this Objection, and pursuant to sections 105(a) and 502(b) of the Bankruptcy
Code and Bankruptcy Rule 3007, the Debtors respectfully request that the Bankruptcy Court enter an order disallowing and expunging the Guaranty Claims in their entirety.
To the extent the Bankruptcy Court finds that the Guaranty Claims were timely filed, the Debtors reserve all rights to argue the Guaranty Claims should be disallowed on substantive or other grounds.
Background 6. On July 19, 2010 (the Petition Date), each of the Debtors filed a petition with
the Bankruptcy Court under chapter 11 of the Bankruptcy Code (collectively, the Chapter 11 Cases). The Chapter 11 Cases have been consolidated for procedural purposes only and are being jointly administered pursuant to Bankruptcy Rule 1015(b). The Debtors are operating their business and managing their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. No request for the appointment of a trustee has been made in the Chapter 11 Cases. On July 28, 2010, the United States Trustee for the Southern District of New York appointed an official committee of unsecured creditors (the Creditors Committee). 7. On September 2, 2010, Debtor Grand Prix Holdings filed its schedules of assets On Schedule F, the Debtors listed the Anaheim Mezzanine
and liabilities [Docket No. 5].
Guaranty Claim as a contingent, unliquidated, unsecured obligation of approximately $22.6 million and the Floating Rate Mezzanine Claim as a contingent, unliquidated, unsecured obligation of approximately $131.3 million. The Debtors listed estimated amounts so as to put other stakeholders on notice of the potential liabilities owing to TriMont. By categorizing the claims as contingent and unliquidated, the Debtors informed the world that there might in fact be no amounts due on owing on account of the claims and put the burden on the claimant to file a liquidated proof of claim. A copy of Grand Prix Holdings Schedule F is attached hereto as Exhibit B. 8. On September 7, 2010, the Debtors filed the Debtors Application for Entry of an
Order Establishing Deadlines and Procedures for Filing Proofs of Claim and Approving the Form and Manner of Notice Thereof [Docket No. 417] (the Bar Date Motion). TriMont did not object to, or raise any issue with respect to, the Bar Date Motion. The Bar Date Motion
specifically stated that any Claim that is listed in the Schedules as contingent, unliquidated, disputed, or any combination thereof shall be subject to the applicable Bar Dates if the Entity holding such Claim desires to participate in any of the Chapter 11 Cases or share in any distribution in the Chapter 11 Cases on account of such Claim . . . . Bar Date Motion, 9. TriMont received notice of the Bar Date Motiona fact it does not dispute. A copy of the Bar Date Motion is attached hereto as Exhibit C. 9. On September 16, 2010, the Court entered an order establishing certain dates and
deadlines for filing proofs of claim in the Chapter 11 Cases [Docket No. 440] (the Bar Date Order). Under the Bar Date Order, the Court established, among other things, October 29, 2010 (the Bar Date) as the deadline for all persons and entities holding or wishing to assert a claim (as defined in section 101(5) of the Bankruptcy Code) against any of the Debtors that arose prior to the Petition Date. Paragraph 8.b of the Bar Date Order made clear that creditors whose claims were scheduled as contingent, unliquidated, or disputed, such as TriMont, were required to file proofs of claim by the Bar Date.4 Paragraph 11 states, in relevant part: Pursuant to Bankruptcy Rule 3003(c)(2), any Entity that is required to file a proof of Claim in the Chapter 11 Cases but that fails to do so by the applicable Bar Date shall be forever barred, estopped, and enjoined from . . . asserting any Claim against any of the Debtors that such Entity has that . . . is in an amount that exceeds the amount, if any, that is set forth in the Schedules . . . . Bar Date Order, 11. As discussed in detail below, paragraph 11 must be read in conjunction with paragraph 8.b, which requires holders of contingent, unliquidated, or disputed claims to file proofs of claim. A copy of the Bar Date Order is attached hereto as Exhibit D.
Paragraph 8.b exempts Holders of any Claim listed in the Debtors Schedules or any amendments thereto, which are not . . . therein listed as contingent, unliquidated, disputed, or any combination thereof from filing proofs of claim. Bar Date Order, 8.b (emphasis added).
10.
On September 17, 2010, the Debtors mailed the Bar Date Order and notice thereof
(the Bar Date Notice) to creditors, including TriMont. Section 5 of the Bar Date Notice, titled Consequences of Failure to File a Proof of Claim by the Applicable Bar Date, states: [a]ny holder of a Claim . . . that is not listed in this notice as an entity excepted from the requirements of the Bar Date Order and that fails to timely file a proof of claim in the appropriate form will be barred from . . . asserting such Claim against the Debtors and their chapter 11 estates . . . . Bar Date Notice, p.6. In addition, Section 6 of the Bar Date Notice states: if you agree with the nature, amount, and status of your Claim as listed in the Debtors Schedules, and if your Claim is not described as disputed, contingent, or unliquidated, you need not file a proof of Claim. Otherwise, or if you decide to file a proof of Claim, you must do so before the applicable Bar Date in accordance with the procedures set forth in this notice. Id. These sections of the Bar Date Notice make clear that, unless a party is exempted from the requirements of the Bar Date Order, it must file a proof of claim in order to have its claim allowed. A copy of the Bar Date Notice is attached hereto as Exhibit E. 11. On October 27, 2010, TriMont filed proofs of claims against Grand Prix Mezz
Borrower Term LLC and Grand Prix Mezz Borrower 2 Floating, LLC on account of the Anaheim Mezzanine Loan and the Floating Rate Mezzanine Loan. TriMont did not, however, file a proof of claim against Grand Prix Holdings on account of the guaranty obligations related to such loans at that time. 12. On May 10, 2011, nearly seven months after the Bar Date had passed, and only
after the close of the Debtors May 2-3 auction that resulted in substantial additional value for the estates, TriMont filed (a) the Anaheim Mezzanine Guaranty Claim, asserting an unsecured claim for $21.3 million plus fees and interest up to a maximum of approximately $22.6 million against Grand Prix Holdings, and (b) the Floating Rate Mezzanine Guaranty Claim, asserting an unsecured claim for approximately $112.2 million plus fees and interest up to a maximum of 6
approximately $131.3 million against Grand Prix Holdings. Notably, TriMont did not file a motion seeking authority from the Court to file a late-filed proof of claim. 13. On June 7, 2011, the Debtors, TriMont, Midland Loan Services, Inc., Lehman
ALI, Inc., SASCO 2008-C2 LLC, CWCapital Asset Management LLC, and C-III Asset Management LLC entered into the Stipulation Providing Certain Guaranty Claimants Ballots and Voting Rights, which the Court so-ordered on June 8, 2011 [Docket No. 1639] (the Voting Stipulation). The Voting Stipulation permitted the parties to vote their guaranty claims in favor or against the Grand Prix Holdings Plan and reserved all parties rights with respect to the amount, validity, and/or allowance of the guaranty claims for purposes of distributions under the Plan or the validity of any dispute regarding any guaranty claim. 14. Upon entry of the Confirmation Order on June 29, 2011, a global confirmation
settlement was approved between the Debtors and the creditors asserting guaranty claims against Grand Prix Holdings (the Global Settlement). Pursuant to the Global Settlement, the parties agreed, among other things, that the Debtors had 14 days from the entry of the Confirmation Order to object to the guaranty claims against Grand Prix Holdings that were expressly preserved for resolution by the Voting Stipulation. Thereafter, the Global Settlement provides that there shall be a six-month abatement period during which no party is authorized to take any action to prosecute or oppose the guaranty claims. The Court has scheduled a status conference for January 18, 2012 to determine next steps with respect to the Debtors objections to the guaranty claims.
Argument A. TriMont Was Required to File Proofs of Claim for the Guaranty Claims Under Bankruptcy Rule 3003(c)(2) and Under the Bar Date Order. 15. Bankruptcy Rule 3003(c)(2) requires that [a]ny creditor or equity holder whose
claim or interest is not scheduled or is scheduled as disputed, contingent or unliquidated shall file a proof of claim or interest within the time prescribed by [the Court]. Fed. R. Bankr. P. 3003(c)(2) (emphasis added). The Bar Date Order carries out Bankruptcy Rule 3003(c)(2) through paragraph 8.b. Specifically, paragraph 8.b of the Bar Date Order exempts from the requirement to file a proof of claim holders of any Claim listed in the Debtors Schedules or any amendments thereto, which are not . . . therein listed as contingent, unliquidated, disputed, or any combination thereof. Bar Date Order, 8.b (emphasis added). Moreover, the Bar Date Motion specifically states that any Claim that is listed in the Schedules as contingent, unliquidated, disputed, or any combination thereof shall be subject to the applicable Bar Dates if the Entity holding such Claim desires to participate in any of the Chapter 11 Cases or share in any distribution in the Chapter 11 Cases on account of such Claim . . . . Bar Date Motion, 9. The Debtors clearly listed Grand Prix Holdings guaranty obligations to TriMont on Schedule F in amounts that are contingent and unliquidated. See Schedule F, p.3. Therefore, TriMont does not fall into the paragraph 8.b exception of the Bar Date Order and was required to file proofs of claim of account of the Guaranty Claims by the Bar Date consistent with the Bar Date Order. 16. Despite TriMonts decision to ultimately file proofs of claim nearly seven months
after the Bar Date had passed, language in the filed proofs of claim nevertheless suggest that TriMont believes such proofs of claim did not have to be filed under the Bar Date Order. Specifically, TriMont suggests that paragraph 11 of the Bar Date Order authorized TriMont to 8
disregard the Bar Date even though its Guaranty Claims were scheduled as contingent, unliquidated, and disputed so long as TriMont was willing to cap its Guaranty Claims at the amount given to such claims in Schedule F, or such higher amount as may be contained in any amendment to the Debtors Schedules filed with the Bankruptcy Court . . . . Floating Rate Mezzanine Guaranty Claim, 9; Anaheim Mezzanine Guaranty Claim, 9. 17. TriMonts interpretation of paragraph 11 cannot be correct as it would contravene
Bankruptcy Rule 3003(c)(2) and render paragraph 8.b of the Bar Date Order inoperable. Paragraph 11 was intended to address situations where the Debtors schedule a claim in an amount that was not contingent, unliquidated, or disputed and the creditor holding such claim decides not to file a proof of claim on account thereof because it agrees with the scheduled amount as the time of the bar date only to later decide that a different amount was in fact due and owing to the claimant. In that instance, the creditor would be forever enjoined from asserting a claim against the Debtors in an amount that exceeds the scheduled amount. The purpose of paragraph 11 is to prevent prejudice to the Debtors and other parties that rely on the Schedules and the Debtors claims register when making decisions regarding the Chapter 11 Cases. Paragraph 11 was not intended to override Bankruptcy Rule 3003(c)(2) and write paragraph 8.b out of the Bar Date Order, thereby excusing a creditor from filing a proof of claim on account of a claim that the Debtors flagged for the world as contingent, unliquidated, or disputed in their Schedules. 18. Further, TriMonts argument that paragraph 11 authorized it to wait to file the
Guaranty Claims is undermined by the fact that TriMont timely filed proofs of claims against Grand Prix Mezz Borrower Term LLC and Grand Prix Mezz Borrower 2 Floating, LLC on account of the Anaheim Mezzanine Loan and the Floating Rate Mezzanine Loan. The Debtors
included those claims on Schedule F in the exact same manner as the related guaranty claims that is, they were marked as contingent, unliquidated, unsecured claims in the amounts of approximately $22.6 million and $131.3 million, respectively. TriMont offers no explanation as to why it filed proofs of claims against the borrowers but not the guarantor. 19. Second Circuit case law is in accord. In In re Enron Corp., 419 F.3d 115, 122 (2d
Cir. 2005), a creditor attempted to argue on appeal that the bar date order did not specifically require creditors to file separate proofs of claim against each debtor, despite such requirement being clear in the debtors bar date notice. Id. at 126. Although the Second Circuit would not consider such arguments because they were not raised in the bankruptcy court below, the Court did note that the inclusion of clear instructions vis--vis proof of claim filing requirements in the bar date notice left no room for the creditor to argue that such requirements were unclear or not properly communicated. Id. at 127 ([W]hile the bar date order did not mention the multiplefiling requirement, not only the bar date notice but also the instructions for filing a proof of claim explicitly required separate claims for different Enron entities . . . . This case thus involves no ambiguity . . . .) (emphasis in original). Similarly, the Bar Date Notice provided TriMont with clear instructions that it was required to file the Guaranty Claims prior to the Bar Date, and TriMont has no room to argue that such requirements were unclear. B. TriMont Cannot Demonstrate Excusable Neglect to Justify Its Untimely Filing. 20. While Courts may allow the filing of late-filed proofs of claim when the claimant
demonstrates that its failure to file a timely claim was the result of excusable neglect, Fed. R. Bankr. P. 9006(b)(1), the burden is on TriMont to prove that it did not timely file its proofs of claim because of excusable neglect. In re Andover Togs, Inc., 231 B.R. 521, 549 (Bankr. S.D.N.Y. 1999). TriMont has not even attempted to demonstrate excusable neglect here.
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21.
Neither the Bankruptcy Code nor the Bankruptcy Rules define the term
excusable neglect. It is well established, however, that Congress did not draft the excusable neglect provision of Bankruptcy Rule 9006 with the intention that claimants could willfully ignore clearly established bar dates and simply rely upon the flexibility of the excusable neglect provision to allow untimely filing of claims. See In re Musicland Holding Corp., 356 B.R. 603, 607 (Bankr. S.D.N.Y. 2006) (observing that [t]he bar date is akin to a statute of limitations, and must be strictly observed and disallowing a late-filed proof of claim where creditor failed to satisfy its burden of showing that its admitted neglect was excusable). To that end, the Supreme Court has identified the following factors that courts should consider in determining whether the claimant has met its burden to warrant the filing of a late-filed proof of claim: (1) the danger of prejudice to the debtor; (2) the length of the delay and its potential for impact on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the claimant; and (4) whether the claimant acted in good faith. Pioneer Inv. Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380, 395 (1993). 22. The Second Circuit has taken a hard line in applying the Pioneer test. In re
Enron Corp., 419 F.3d at 122 (quoting Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 368 (2d Cir. 2003)).5 In Enron, approximately six months after expiration of the applicable bar date, a creditor sought to amend its timely-filed proof of claim against a debtor-subsidiary to include guaranty claims against the debtor-parent or, in the alternative, to file a new proof of claim
Indeed, courts in the Second Circuit expect that a party claiming excusable neglect will, in the ordinary course, lose under the Pioneer test. Silivanch, 333 F.3d at 36667; accord In re Enron, 419 F.3d at 122-23. When applying the Pioneer test, courts in the Second Circuit place the most weight on the reason-for-the delay factor. Enron, 419 F.3d at 122 ([W]e and other circuits have focused on the third factor: the reason for delay, including whether it was within the reasonable control of the movant.) (internal quotations omitted). As a result, the excuse given for the late filing must have the greatest import. While prejudice, length of delay, and good faith might have more relevance in a close[] case, the reason-for-delay factor will always be critical to the inquiry. Silivanch, 333 F.3d at 367 n.7.
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against the debtor-parent. Enron, 419 F.3d at 118. The bankruptcy court applied the Pioneer test for excusable neglect, found that the creditor had not met the standard, and barred the creditor from taking either action with respect to its claims against the debtor-parent. The Second Circuit affirmed. 23. In ruling against the creditor, the Enron court focused on two primary facts:
(a) the complaining creditors primary explanation for missing the deadline was nothing more than inadvertence caused by distraction with other activity in the case; and (b) such creditors delay of more than six months after the applicable bar date was substantial. Id. at 125. On the first point, the Enron court concluded that inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute excusable neglect . . . . Similarly, preoccupation or an excessive workload does not typically render a mistake excusable. Id. at 126 (citations omitted). Likely recognizing that its inadvertence argument was weak, the Enron creditor attempted to argue on appeal that the bar date order did not specifically require creditors to file separate proofs of claim against each debtor, despite such requirement being clear in both the debtors bar date motion and the related notices. Id. Although the Second Circuit would not consider this argument because it was not raised in the bankruptcy court below, the Court did note that (a) the bar date order specifically authorized and approved the relief requested in the bar date motion and (b) the inclusion of clear instructions vis--vis proof of claim filing requirements in the bar date notice left no room for the creditor to argue that such requirements were unclear or not properly communicated. Id. at 127. 24. TriMont cannot credibly assert any reason for delay that warrants a finding of
excusable neglect. This reason alone is enough to disallow the claims under the Pioneer test. Further, TriMonts lateness was entirely within its own controlnothing has occurred in these
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Chapter 11 Cases that has prevented TriMont from timely filing the Guaranty Claims. In addition, the delay in filing such claims was substantialnearly seven months after the Bar Date had passed. And yet another two months have passed since TriMont filed the proofs of claim and they have taken no action to seek the Courts authority to file them. 25. The Enron court also analyzed whether the lateness of an untimely filed proof of
claim would adversely impact the chapter 11 proceedings. To that end, the Enron court observed that the lateness of a claim must be considered in the context of the proceeding as a whole, and that while proceedings are in full swing a late-filed proof of claim has a greater chance of threaten[ing] to upset the entire process. Id. at 128. In addition, the Enron court stated that where an explanation is nonexistent, or not credible, both the reason for the delay and the length of the delay factors might weigh in favor of the debtors . . . . Id. at 129. Ultimately, the Second Circuit determined that even though the creditor submitted its proof of claim before a plan had been filed, the proof of claim came long after the negotiations required to develop the plan had begun, and the belated introduction of a multimillion-dollar claim would have enough of a disruptive effect to warrant enforcing the bar date. Id. at 12930. 26. TriMont filed the Guaranty Claims well after the Bar Dateafter the Debtors
conducted their extensive marketing process, after the Debtors had filed their plan and disclosure statement, and just days before the hearing on the adequacy of the Debtors disclosure statement and solicitation materials. The Guaranty Claims assert, in the aggregate, claims of over $150 million, which is certainly large enough to upset the process if they are allowed. Because TriMont failed to file proofs of claim on account of its Guaranty Claims, the approximately $150 million claims were not reflected in the Debtors claims register, which the Debtors (and likely other parties) relied on in making key decisions throughout the cases. Specifically, if the
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Guaranty Claims are allowed, they would prejudice other holders of allowed (and potentially allowed) claims against Grand Prix Holdings.6 In addition, allowance of the Guaranty Claims would eliminate the possibility that Apollo Investment Corporation (Apollo) would receive any recovery on account of its preferred and common equity interests in Grand Prix Holdings.7 Accordingly, the Guaranty Claim should be disallowed in its entirety. 27. In sum, TriMont cannot meet its burden of proof with respect to the stringent
standard for allowing late filed proofs of claim. As discussed above, TriMont cannot credibly seek allowance of its late filed claims based on a misunderstanding of the Bar Date Order. The Bar Date Order, read together with the Bar Date Motion and the Bar Date Notice, is clear as to who was required to file a proof of claim. Indeed, if TriMont had any question as to whether it was required to file proofs of claim on account of the Guaranty Claims, it could have asked the Debtors or the Claims Agent. It did not. Moreover, the fact that TriMont filed the Guaranty Claims only after it believed that the Debtors auction had resulted in substantial value that it could collect on account of such claims further suggests that TriMont simply overlooked these claims until after the Bar Date passed. Finally, TriMont timely filed proofs of claim on account of its direct claims against the Debtor-borrowers even though those Debtors scheduled the borrower claims in the same manner as did Grand Prix Holdings with respect to the Guaranty Claims. 28. Accordingly, TriMont cannot demonstrate excusable neglect to justify its late-
filed Guaranty Claims, and such claims should be disallowed in their entirety and expunged.
6
As the Court is aware, C-III Asset Management LLC is the holder of an allowed claim against Grand Prix Holdings. Regardless of statements made by various parties throughout these Chapter 11 Cases in opposition to any recovery that Apollo might receive in these Chapter 11 Cases, the Debtors nonetheless owe a fiduciary duty to Apollo, especially if it appears that there may be value for Apollo to recover on account of its equity interests.
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Motion Practice 29. This Objection 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 Objection. Accordingly, the Debtors submit that this Objection satisfies Rule 9013-1(a) of the Local Rules of Bankruptcy Procedure for the Southern District of New York. Notice 30. The Debtors have provided notice of this Objection consistent with the
Confirmation Order [Docket No. 1804], which is available at www.omnimgt.com/innkeepers, the website maintained by Omni Management Group, LLC, the Debtors notice and claims agent. The Debtors respectfully submit that no further notice is necessary.
[Concluded on Following Page]
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WHEREFORE, for the reasons stated in the Objection, the Debtors respectfully request that the Bankruptcy Court grant the relief requested in the Objection and such other relief as the Bankruptcy Court deems just and proper.
New York, New York Dated: July 13, 2011
/s/ Brian S. Lennon James H.M. Sprayregen, P.C. Paul M. Basta Stephen E. Hessler Brian S. Lennon KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York 10022-4611 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 and Anup Sathy, P.C. KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, Illinois 60654-3406 Telephone: (312) 862-2000 Facsimile: (312) 862-2200 Counsel to the Debtors and Debtors in Possession
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EXHIBIT A Proposed Order
James H.M. Sprayregen, P.C. Paul M. Basta Stephen E. Hessler Brian S. Lennon KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York 10022-4611 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 and Anup Sathy, P.C. KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, Illinois 60654-3406 Telephone: (312) 862-2000 Facsimile: (312) 862-2200 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: INNKEEPERS USA TRUST, et al.,1 Debtors. ) ) ) ) ) ) ) Chapter 11 Case No. 10-13800 (SCC) Jointly Administered
ORDER GRANTING DEBTORS OBJECTION TO GUARANTY CLAIMS ASSERTED BY TRIMONT REAL ESTATE ADVISORS, INC. AGAINST GRAND PRIX HOLDINGS, LLC Upon the Debtors Objection to Guaranty Claims Asserted by TriMont Real Estate Advisors, Inc. Against Grand Prix Holdings, LLC (the Objection)2 filed by Innkeepers USA
The list of Debtors in these Chapter 11 Cases along with the last four digits of each Debtors federal tax identification number can be found by visiting the Debtors restructuring website at www.omnimgt.com/innkeepers or by contacting Omni Management Group, LLC at Innkeepers USA Trust c/o Omni Management Group, LLC, 16161 Ventura Boulevard, Suite C, PMB 606, Encino, California 91436. The location of the Debtors corporate headquarters and the service address for their affiliates is: c/o Innkeepers USA, 340 Royal Poinciana Way, Suite 306, Palm Beach, Florida 33480. Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Objection.
K&E 19223804
Trust and certain of its affiliates, as debtors and debtors in possession (collectively, the Debtors) requesting entry of an order disallowing and expunging the Guaranty Claims pursuant to section 502(b) of title 11 of the United States Code (the Bankruptcy Code) and Rule 3007 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules), all as more fully described in the Objection; it appearing that the relief requested is in the best interests of the Debtors estates, their creditors, and other parties in interest; the Court having jurisdiction to consider the Objection and the relief requested therein pursuant to 28 U.S.C. 157 and 1334; consideration of the Objection and the relief requested therein being a core proceeding pursuant to 28 U.S.C. 157(b); venue being proper before this court pursuant to 28 U.S.C. 1408 and 1409; notice of the Objection having been adequate and appropriate under the circumstances; and after due deliberation and sufficient cause appearing therefor, it is HEREBY ORDERED THAT: 1. 2. The Objection is granted to the extent set forth herein. Claim Nos. 1811 and 1812 are hereby disallowed and expunged in their entirety
pursuant to section 502(b) of the Bankruptcy Code. 3. Omni Management Group, LLC, the Debtors notice and claims agent, is hereby
authorized to update the Claims register to reflect the relief granted in this Order. 4. The terms and conditions of this Order shall be immediately effective and
enforceable upon its entry. 5. All time periods set forth in this Order shall be calculated in accordance with
Bankruptcy Rule 9006(a). 6. The Debtors are authorized to take all actions necessary to effectuate the relief
granted pursuant to this Order in accordance with the Objection.
7.
This Court retains jurisdiction with respect to all matters arising from or related to
the implementation of this Order. New York, New York Dated: _________________, 2011
Honorable Shelley C. Chapman United States Bankruptcy Judge
EXHIBIT B Grand Prix Holdings LLC Schedule F
SCHEDULE F NOTES Creditors Holding Unsecured Nonpriority Claims The Debtors have used their reasonable efforts to list all general unsecured claims against the Debtors on Schedule F based upon the Debtors existing books and records. Schedule F does not include certain deferred credits, deferred charges, deferred liabilities, accruals, or general reserves. Such amounts are general estimates of liabilities and do not represent specific claims as of the Petition Date; however, such amounts are reflected on the Debtors books and records as required in accordance with GAAP. Such accruals are general estimates of liabilities and do not represent specific claims as of the Petition Date. Schedule F does not include certain reserves for potential unliquidated contingencies that historically were carried on the Debtors books as of the Petition Date; such reserves were for potential liabilities only and do not represent actual liabilities as of the Petition Date. The claims listed in Schedule F arose or were incurred on various dates. In certain instances, the date on which a claim arose is an open issue of fact. Although reasonable efforts have been made to identify the date of incurrence of each claim, determining the date upon which each claim in Schedule F was incurred or arose would be unduly burdensome and cost prohibitive and, therefore, the Debtors do not list a date for each claim listed on Schedule F. Schedule F contains information regarding potential and pending litigation involving the Debtors. In certain instances, the Debtor that is the subject of the litigation is unclear or undetermined. To the extent that litigation involving a particular Debtor has been identified, however, such information is contained in the Schedule for that Debtor. Schedule F reflects the prepetition amounts owing to counterparties to executory contracts and unexpired leases. Such prepetition amounts, however, may be paid in connection with the assumption, or assumption and assignment, of an executory contract or unexpired lease. In addition, Schedule F does not include rejection damage claims of the counterparties to the executory contracts and unexpired leases that have been or may be rejected, to the extent such damage claims exist. Except in certain limited circumstances, the Debtors have not scheduled contingent and unliquidated liabilities related to guaranty obligations on Schedule F. Such guaranties are, instead, listed on Schedule H. The claims of individual creditors for, among other things, goods, services, or taxes listed on the Debtors books and records may not reflect credits or allowances due from such
creditors. The Debtors reserve all of their rights in respect of such credits or allowances. The dollar amounts listed may be exclusive of contingent or unliquidated amounts. Certain creditors owe amounts to the Debtors and, as such, may have valid setoff and recoupment rights with respect to such amounts. Although the Debtors may have taken setoffs into account when scheduling the amounts owed to creditors, the Debtors have not independently accounted for or reviewed the validity of any such setoff rights and hereby reserve all rights to challenge such setoff and recoupment rights. Nevertheless, in listing the claims of such creditors in the Schedules, the Debtors may have factored in the amounts owed by such creditors to the Debtors and have reduced the claims listed in the Schedules accordingly. In other cases, the Debtors have not reduced the claims in the Schedules to reflect any such right of setoff or recoupment, although, where practicable, the Debtors have indicated that the claims in the Schedules are contingent in recognition of a potential setoff or recoupment. The listing of any claim in the Schedules or amount owed at a net value is not a waiver of any right to challenge the creditors right to setoff, recoup, or net amounts owed against amounts that may be owed to any Debtor. Trade Payables listed on Schedule F contain the prepetition liability information available to the Debtors as of the Petition Date and reflect payments made to vendors subsequent to the Petition Date related to prepetition obligations per the First Day Orders. In the ordinary course of their business, the Debtors may be involved in pending or threatened litigation and claims arising in the ordinary course of their business. These matters may involve multiple plaintiffs and defendants, some or all of whom, including the Debtors, may assert cross claims and counter claims against other parties. Because all such claims are contingent, disputed or unliquidated, such claims have not been marked as co-debtor on Schedule F-3. The information contained in Schedule F is broken into sub-sections, F1-F6, which represents the following categories: F-1 F-2 F-3 F-4 F-5 F-6 Claims of unsecured creditors that are not contingent, unliquidated or disputed Claims of unsecured creditors that are contingent, unliquidated or disputed Claims based upon pending or threatened litigation Unsecured claims of secured creditors listed on Schedule D Claims related to hotel franchise agreements that are contingent or unliquidated Claims of creditors that also may assert such claims against another debtor (codebtor claims)
Each Debtor may not have claims in every sub-section, in which case one or more subsections may be omitted.
B6F (Official Form 6F) (12/07)
Grand Prix Holdings LLC

Debtor
10-13793
Case No. (If known)
SCHEDULE F - CREDITORS HOLDING UNSECURED NONPRIORITY CLAIMS

State the name, mailing address, including zip code, and last four digits of any account number, of all entities holding unsecured claims without priority against the debtor or the property of the debtor, as of the date of filing of the petition. The complete account number of any account the debtor has with the creditor is useful to the trustee and the creditor and may be provided if the debtor chooses to do so. If a "minor child" is a creditor, state the child's initials and the name and address of the child's parent or guardian, such as "A.B., a minor child, by John Doe, guardian." Do not disclose the child's name. See, 11 U.S.C. 112 and Fed. R. Bankr. P. 1007(m). Do not include claims listed in Schedules D and E. If all creditors will not fit on the page, use the continuation sheet provided. If any entity other than a spouse in a joint case may be jointly liable on a claim, place an "X" in the column labeled "Codebtor," include the entity on the appropriate schedule of creditors, and complete Schedule H - Codebtors. If a joint petition is filed, state whether the husband, wife, both of them, or the marital community may be liable on each claim by placing a "H," "W," "J," or "C," in the column labeled "Husband, Wife, Joint or Community." If the claim is contingent, place an "X" in the column labeled "Contingent." If the claim is unliquidated, place an "X" in the column labeled "Unliquidated." If the claim is disputed, place an "X" in the column labeled "Disputed." (You may need to place an "X" in more than one of these three columns.) Report the total of all claims listed on this schedule in the box labeled "Total" on the last sheet of the completed schedule. Report this total also on the Summary of Schedules and, if the debtor is an individual with primarily consumer debts, report this total also on the Statistical Summary of Certain Liabilities and Related Data. Check this box if debtor has no creditors holding general unsecured claims to report on this Schedule F.
F6: Codebtors
CODEBTOR HWJC CONTINGENT UNLIQUIDATED DISPUTED CREDITOR'S NAME AND MAILING ADDRESS, INCLUDING ZIP CODE, AND ACCOUNT NUMBER (See instructions above.)
ACCOUNT NO. C-III ASSET MANAGEMENT, LLC 5221 NORTH O'CONNOR BLVD. IRVING, TX 75039 Y $35M CAPMARK CMBS MORTGAGE LOAN X X $36,855,689.47
DATE CLAIM WAS INCURRED, AND CONSIDERATION FOR CLAIM. IF CLAIM SUBJECT TO SETOFF, SO STATE.
AMOUNT OF CLAIM
ACCOUNT NO. CWCAPITAL ASSET MANAGEMENT, LLC 1919 PENNSYLVANIA AVENUE NW WASHINGTON DC, 20006
$13.7M ANAHEIM CMBS MORTGAGE LOAN
$13,172,577.13
ACCOUNT NO. DENNIS M. CRAVEN 340 ROYAL POINCIANA WAY SUITE 306 PALM BEACH, FL 33480 Y CONTRACT\AGREEMENT SUBSCRIPTION AGREEMENT X X $0.00
ACCOUNT NO. DENNIS M. CRAVEN 340 ROYAL POINCIANA WAY SUITE 306 PALM BEACH, FL 33480 Y CONTRACT\AGREEMENT SHAREHOLDERS AGREEMENT X X $0.00
ACCOUNT NO. LEHMAN ALI, INC. 1271 AVENUE OF THE AMERICAS, 39TH FLOOR ATLANTA, GA 30320
$238M FLOATING RATE LEHMAN SENIOR MORTGAGE LOAN
$218,504,023.12
Page 1 of 3
Subtotal (Total of this page)
$268,532,289.72
B6F (Official Form 6F) (12/07) - Cont.

Debtor
10-13793
Case No. (If known)

(Continuation Sheet)
F6: Codebtors
ACCOUNT NO. LNR PARTNERS, INC. 1601 WASHINGTON AVENUE, SUITE 800 MIAMI BEACH, FL 33139 Y $24.2M MERRILL LYNCH CMBS MORTGAGE LOAN X X $24,501,463.21
AMOUNT OF CLAIM
ACCOUNT NO. LNR PARTNERS, INC. 1601 WASHINGTON AVENUE, SUITE 800 MIAMI BEACH, FL 33139 Y $25.2M MERRILL LYNCH CMBS MORTGAGE LOAN X X $25,513,920.38
ACCOUNT NO. LNR PARTNERS, INC. 1601 WASHINGTON AVENUE, SUITE 800 MIAMI BEACH, FL 33139
$25.6M MERRILL LYNCH CMBS MORTGAGE LOAN
$25,918,903.29
ACCOUNT NO. LNR PARTNERS, LLC 1601 WASHINGTON AVENUE, SUITE 700 MIAMI BEACH, FL 33139 Y $37.6M CAPMARK CMBS MORTGAGE LOAN X X $38,080,751.09
ACCOUNT NO. LNR PARTNERS, LLC 1601 WASHINGTON AVENUE, SUITE 700 MIAMI BEACH, FL 33139
$47.4M CAPMARK CMBS MORTGAGE LOAN
$48,006,053.25
ACCOUNT NO. MARK A. MURPHY 340 ROYAL POINCIANA WAY SUITE 306 PALM BEACH, FL 33480 Y CONTRACT\AGREEMENT SUBSCRIPTION AGREEMENT X X $0.00
ACCOUNT NO. MARK A. MURPHY 340 ROYAL POINCIANA WAY SUITE 306 PALM BEACH, FL 33480 Y CONTRACT\AGREEMENT SHAREHOLDERS AGREEMENT X X $0.00
ACCOUNT NO. MARRIOTT INTERNATIONAL, INC. ATTN: FRANCHISE ATTORNEY, LAW DEPARTMENT 52/923.25 10400 FERNWOOD ROAD BETHESDA, MD 20817
CONTRACT\AGREEMENT CONSENT AND AGREEMENT
$0.00
Page 2 of 3
$162,021,091.22
B6F (Official Form 6F) (12/07) - Cont.

Debtor
10-13793
Case No. (If known)

(Continuation Sheet)
F6: Codebtors
ACCOUNT NO. MIDLAND LOAN SERVICES, INC. P.O. BOX 25965 SHAWNEE MISSION, KS 66225 Y $825M FIXED RATE CMBS POOL LB-UBS 2007-C7 X X $419,780,817.38
AMOUNT OF CLAIM
ACCOUNT NO. MIDLAND LOAN SERVICES, INC. P.O. BOX 25965 SHAWNEE MISSION, KS 66225 Y $825M FIXED RATE CMBS POOL LB-UBS 2007 C-6 X X $419,780,817.38
ACCOUNT NO. TIMOTHY WALKER 340 ROYAL POINCIANA WAY SUITE 306 PALM BEACH, FL 33480
CONTRACT\AGREEMENT SUBSCRIPTION AGREEMENT
$0.00
ACCOUNT NO. TIMOTHY WALKER 340 ROYAL POINCIANA WAY SUITE 306 PALM BEACH, FL 33480 Y CONTRACT\AGREEMENT SHAREHOLDERS AGREEMENT X X $0.00
ACCOUNT NO. TRIMONT REAL ESTATE ADVISORS, INC. 3424 PEACHTREE ROAD NE, SUITE 2200 ATLANTA, GA 30320
$121M FLOATING RATE MEZZANINE LOAN
$131,345,438.26
ACCOUNT NO. TRIMONT REAL ESTATE ADVISORS, INC. 3424 PEACHTREE ROAD NE, SUITE 2200 ATLANTA, GA 30320 Y $21.3M ANAHEIM MEZZANINE LOAN X X $22,640,833.27
F6: Codebtors Total Total
$1,424,101,287.23 $1,424,101,287.23
Page 3 of 3
$993,547,906.29
EXHIBIT C Bar Data Motion
Presentment Date: September 17, 2010 at 10:00 a.m. (Eastern Time) Objection Deadline: September 14, 2010 at 4:00 p.m. (Eastern Time)
James H.M. Sprayregen, P.C. Paul M. Basta Jennifer L. Marines KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York 10022-4611 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 and Anup Sathy, P.C. (admitted pro hac vice) Marc J. Carmel (admitted pro hac vice) KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, Illinois 60654-3406 Telephone: (312) 862-2000 Facsimile: (312) 862-2200 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: INNKEEPERS USA TRUST, et al.,1 Debtors. ) ) ) ) ) ) ) Chapter 11 Case No. 10-13800 (SCC) Jointly Administered
NOTICE OF PRESENTMENT OF DEBTORS APPLICATION FOR ENTRY OF AN ORDER ESTABLISHING DEADLINES AND PROCEDURES FOR FILING PROOFS OF CLAIM AND APPROVING THE FORM AND MANNER OF NOTICE THEREOF1
1
The Debtors in these Chapter 11 Cases, along with the last four digits of each Debtors federal tax identification number, are: GP AC Sublessee LLC (5992); Grand Prix Addison (RI) LLC (3740); Grand Prix Addison (SS) LLC (3656); Grand Prix Albany LLC (3654); Grand Prix Altamonte LLC (3653); Grand Prix Anaheim Orange Lessee LLC (5925); Grand Prix Arlington LLC (3651); Grand Prix Atlanta (Peachtree Corners) LLC (3650); Grand Prix Atlanta LLC (3649); Grand Prix Atlantic City LLC (3648); Grand Prix Bellevue LLC (3645); Grand Prix Belmont LLC (3643); Grand Prix Binghamton LLC (3642); Grand Prix Bothell LLC (3641); Grand Prix Bulfinch LLC (3639); Grand Prix Campbell / San Jose LLC (3638); Grand Prix Cherry Hill LLC (3634); Grand Prix Chicago LLC (3633); Grand Prix Columbia LLC (3631); Grand Prix Denver LLC (3630); Grand Prix East Lansing LLC (3741); Grand Prix El Segundo LLC (3707); Grand Prix Englewood / Denver South LLC (3701); Grand Prix Fixed Lessee LLC (9979); Grand Prix Floating Lessee LLC (4290); Grand Prix Fremont LLC (3703); Grand Prix Ft. Lauderdale LLC (3705); Grand Prix Ft. Wayne LLC (3704); Grand Prix Gaithersburg LLC (3709); Grand Prix General Lessee LLC (9182); Grand Prix Germantown LLC (3711); Grand Prix Grand Rapids LLC (3713); Grand Prix Harrisburg LLC (3716); Grand Prix Holdings LLC (9317); Grand Prix Horsham LLC (3728); Grand Prix IHM, Inc. (7254); Grand Prix Indianapolis LLC (3719); Grand Prix Islandia (continued on next page)
K&E 17556092
PLEASE TAKE NOTICE that, in accordance with Rule 9074-1(a) of the Local Bankruptcy Rules for the United States Bankruptcy Court for the Southern District of New York (the Local Bankruptcy Rules), the Debtors will present the above-referenced application (the Application) and proposed order approving the relief in the Application,2 to the Honorable Shelley C. Chapman, United States Bankruptcy Judge, in Courtroom No. 610 of the United States Bankruptcy Court for the Southern District of New York (the Court), Alexander Hamilton Custom House, One Bowling Green, New York, New York 10004-1408, for signature on September 17, 2010 at 10:00 a.m. prevailing Eastern Time. PLEASE TAKE FURTHER NOTICE that any responses or objections to the Application: (a) must be in writing; (b) shall conform to the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules), all General Orders, the Local Bankruptcy Rules, and the Notice, Case Management, and Administrative Procedures [Docket No. 56] approved by the Court; (c) shall be filed with the Court electronically by registered users of the Courts case filing
LLC (3720); Grand Prix Las Colinas LLC (3722); Grand Prix Lexington LLC (3725); Grand Prix Livonia LLC (3730); Grand Prix Lombard LLC (3696); Grand Prix Louisville (RI) LLC (3700); Grand Prix Lynnwood LLC (3702); Grand Prix Mezz Borrower Fixed, LLC (0252); Grand Prix Mezz Borrower Floating, LLC (5924); Grand Prix Mezz Borrower Floating 2, LLC (9972); Grand Prix Mezz Borrower Term LLC (4285); Grand Prix Montvale LLC (3706); Grand Prix Morristown LLC (3738); Grand Prix Mountain View LLC (3737); Grand Prix Mt. Laurel LLC (3735); Grand Prix Naples LLC (3734); Grand Prix Ontario Lessee LLC (9976); Grand Prix Ontario LLC (3733); Grand Prix Portland LLC (3732); Grand Prix Richmond (Northwest) LLC (3731); Grand Prix Richmond LLC (3729); Grand Prix RIGG Lessee LLC (4960); Grand Prix RIMV Lessee LLC (4287); Grand Prix Rockville LLC (2496); Grand Prix Saddle River LLC (3726); Grand Prix San Jose LLC (3724); Grand Prix San Mateo LLC (3723); Grand Prix Schaumburg LLC (3721); Grand Prix Shelton LLC (3718); Grand Prix Sili I LLC (3714); Grand Prix Sili II LLC (3712); Grand Prix Term Lessee LLC (9180); Grand Prix Troy (Central) LLC (9061); Grand Prix Troy (SE) LLC (9062); Grand Prix Tukwila LLC (9063); Grand Prix West Palm Beach LLC (9065); Grand Prix Westchester LLC (3694); Grand Prix Willow Grove LLC (3697); Grand Prix Windsor LLC (3698); Grand Prix Woburn LLC (3699); Innkeepers Financial Corporation (0715); Innkeepers USA Limited Partnership (3956); Innkeepers USA Trust (3554); KPA HI Ontario LLC (6939); KPA HS Anaheim, LLC (0302); KPA Leaseco Holding Inc. (2887); KPA Leaseco, Inc. (7426); KPA RIGG, LLC (6706); KPA RIMV, LLC (6804); KPA San Antonio, LLC (1251); KPA Tysons Corner RI, LLC (1327); KPA Washington DC, LLC (1164); KPA/GP Ft. Walton LLC (3743); KPA/GP Louisville (HI) LLC (3744); KPA/GP Valencia LLC (9816). The location of the Debtors corporate headquarters and the service address for their affiliates is: c/o Innkeepers USA, 340 Royal Poinciana Way, Suite 306, Palm Beach, Florida 33480.
2
All capitalized terms used but otherwise not defined herein shall have the meanings set forth in the Application.
2
K&E 17556092
system (the Users Manual for the Electronic Case Filing System can be found at www.nysb.uscourts.gov, the official website for the Court); and (d) shall be served so as to be actually received no later than September 14, 2010 at 4:00 p.m. prevailing Eastern Time, by: (i) the Debtors and their counsel; (ii) the Office of the United States Trustee for the Southern District of New York; (iii) counsel to the Creditors Committee; (iv) counsel to the Debtors prepetition secured lenders; (v) counsel to Apollo Investment Corporation; (vi) the Debtors franchisors or their counsel, if known; (vii) the attorneys general for each of the States in which any of the Debtors conducts a substantial amount of its business operations; (viii) the Internal Revenue Service; and (ix) entities who have formally requested notice by filing a written request for notice, pursuant to Bankruptcy Rule 2002. Only those responses that are timely filed, served, and received will be considered.
3
K&E 17556092
PLEASE TAKE FURTHER NOTICE that, if no objections to the Application are timely filed and served in accordance with this notice, the Court may enter an order granting some or all of the relief requested in the Application as requested by the Debtors without further notice or hearing. New York, New York Dated: September 7, 2010 /s/ Paul M. Basta James H.M. Sprayregen, P.C. Paul M. Basta Jennifer L. Marines KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York 10022-4611 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 and Anup Sathy, P.C. (admitted pro hac vice) Marc J. Carmel (admitted pro hac vice) KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, Illinois 60654-3406 Telephone: (312) 862-2000 Facsimile: (312) 862-2200 Counsel to the Debtors and Debtors in Possession
K&E 17556092
Presentment Date: September 17, 2010 at 10:00 a.m. (Eastern Time) Objection Deadline: September 14, 2010 at 4:00 p.m. (Eastern Time)
James H.M. Sprayregen, P.C. Paul M. Basta Jennifer L. Marines KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York 10022-4611 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 and Anup Sathy, P.C. (admitted pro hac vice) Marc J. Carmel (admitted pro hac vice) KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, Illinois 60654-3406 Telephone: (312) 862-2000 Facsimile: (312) 862-2200 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: INNKEEPERS USA TRUST, et al.,1 Debtors. ) ) ) ) ) ) ) Chapter 11 Case No. 10-13800 (SCC) Jointly Administered
DEBTORS APPLICATION FOR ENTRY OF AN ORDER ESTABLISHING DEADLINES AND PROCEDURES FOR FILING PROOFS OF CLAIM AND APPROVING THE FORM AND MANNER OF NOTICE THEREOF1
1
The Debtors in these Chapter 11 Cases, along with the last four digits of each Debtors federal tax identification number, are: GP AC Sublessee LLC (5992); Grand Prix Addison (RI) LLC (3740); Grand Prix Addison (SS) LLC (3656); Grand Prix Albany LLC (3654); Grand Prix Altamonte LLC (3653); Grand Prix Anaheim Orange Lessee LLC (5925); Grand Prix Arlington LLC (3651); Grand Prix Atlanta (Peachtree Corners) LLC (3650); Grand Prix Atlanta LLC (3649); Grand Prix Atlantic City LLC (3648); Grand Prix Bellevue LLC (3645); Grand Prix Belmont LLC (3643); Grand Prix Binghamton LLC (3642); Grand Prix Bothell LLC (3641); Grand Prix Bulfinch LLC (3639); Grand Prix Campbell / San Jose LLC (3638); Grand Prix Cherry Hill LLC (3634); Grand Prix Chicago LLC (3633); Grand Prix Columbia LLC (3631); Grand Prix Denver LLC (3630); Grand Prix East Lansing LLC (3741); Grand Prix El Segundo LLC (3707); Grand Prix Englewood / Denver South LLC (3701); Grand Prix Fixed Lessee LLC (9979); Grand Prix Floating Lessee LLC (4290); Grand Prix Fremont LLC (3703); Grand Prix Ft. Lauderdale LLC (3705); Grand Prix Ft. Wayne LLC (3704); Grand Prix Gaithersburg LLC (3709); Grand Prix General Lessee LLC (9182); Grand Prix Germantown LLC (3711); Grand Prix Grand Rapids LLC (3713); Grand Prix Harrisburg LLC (3716); Grand Prix Holdings LLC (9317); Grand Prix (continued on next page)
K&E 17556092
Innkeepers USA Trust and certain of its affiliates, as debtors and debtors in possession (collectively, the Debtors), file this application (this Application) for the entry of an order, substantially in the form attached hereto as Exhibit A (the Bar Date Order), (a) establishing deadlines and procedures for creditors to file proofs of claim in the Debtors chapter 11 cases, (b) approving the form and manner of notice thereof, and (c) granting such other relief as is just and proper. In support of this Application, the Debtors respectfully state 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 1334. This matter is a core proceeding within the meaning of 28 U.S.C. 157(b)(2). 2. 3. Venue is proper pursuant to 28 U.S.C. 1408 and 1409. The statutory bases for the relief requested herein are sections 105(a), 501, 502,
and 503 of title 11 of the United States Code (the Bankruptcy Code), Rules 2002 and 3003 of
Horsham LLC (3728); Grand Prix IHM, Inc. (7254); Grand Prix Indianapolis LLC (3719); Grand Prix Islandia LLC (3720); Grand Prix Las Colinas LLC (3722); Grand Prix Lexington LLC (3725); Grand Prix Livonia LLC (3730); Grand Prix Lombard LLC (3696); Grand Prix Louisville (RI) LLC (3700); Grand Prix Lynnwood LLC (3702); Grand Prix Mezz Borrower Fixed, LLC (0252); Grand Prix Mezz Borrower Floating, LLC (5924); Grand Prix Mezz Borrower Floating 2, LLC (9972); Grand Prix Mezz Borrower Term LLC (4285); Grand Prix Montvale LLC (3706); Grand Prix Morristown LLC (3738); Grand Prix Mountain View LLC (3737); Grand Prix Mt. Laurel LLC (3735); Grand Prix Naples LLC (3734); Grand Prix Ontario Lessee LLC (9976); Grand Prix Ontario LLC (3733); Grand Prix Portland LLC (3732); Grand Prix Richmond (Northwest) LLC (3731); Grand Prix Richmond LLC (3729); Grand Prix RIGG Lessee LLC (4960); Grand Prix RIMV Lessee LLC (4287); Grand Prix Rockville LLC (2496); Grand Prix Saddle River LLC (3726); Grand Prix San Jose LLC (3724); Grand Prix San Mateo LLC (3723); Grand Prix Schaumburg LLC (3721); Grand Prix Shelton LLC (3718); Grand Prix Sili I LLC (3714); Grand Prix Sili II LLC (3712); Grand Prix Term Lessee LLC (9180); Grand Prix Troy (Central) LLC (9061); Grand Prix Troy (SE) LLC (9062); Grand Prix Tukwila LLC (9063); Grand Prix West Palm Beach LLC (9065); Grand Prix Westchester LLC (3694); Grand Prix Willow Grove LLC (3697); Grand Prix Windsor LLC (3698); Grand Prix Woburn LLC (3699); Innkeepers Financial Corporation (0715); Innkeepers USA Limited Partnership (3956); Innkeepers USA Trust (3554); KPA HI Ontario LLC (6939); KPA HS Anaheim, LLC (0302); KPA Leaseco Holding Inc. (2887); KPA Leaseco, Inc. (7426); KPA RIGG, LLC (6706); KPA RIMV, LLC (6804); KPA San Antonio, LLC (1251); KPA Tysons Corner RI, LLC (1327); KPA Washington DC, LLC (1164); KPA/GP Ft. Walton LLC (3743); KPA/GP Louisville (HI) LLC (3744); KPA/GP Valencia LLC (9816). The location of the Debtors corporate headquarters and the service address for their affiliates is: c/o Innkeepers USA, 340 Royal Poinciana Way, Suite 306, Palm Beach, Florida 33480.
the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules), and Rules 2002-1 and 3003-1 of the Local Bankruptcy Rules for the United States Bankruptcy Court for the Southern District of New York (the Local Bankruptcy Rules). Background A. General Information 4. On July 19, 2010 (the Petition Date), each of the Debtors filed a petition with
the Court under chapter 11 of the Bankruptcy Code (collectively, the Chapter 11 Cases). The Chapter 11 Cases have been consolidated for procedural purposes only and are being jointly administered pursuant to Bankruptcy Rule 1015(b). The Debtors are operating their business and managing their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. On July 28, 2010, the United States Trustee for the Southern District of New York (the U.S. Trustee) appointed an official committee of unsecured creditors (the Creditors Committee). 5. Additional information regarding the Debtors business, capital structure, and the
circumstances leading to the Chapter 11 Cases is contained in the Amended Declaration of Dennis Craven, Chief Financial Officer of Innkeepers USA Trust, in Support of First-Day Pleadings [Docket No. 33]. 6. On July 20, 2010, the Court authorized the Debtors retention of
Omni Management Group, LLC (the Notice and Claims Agent) as their noticing and claims agent [Docket No. 57]. 7. On or around September 1, 2010, the Debtors filed their statements of financial
affairs and schedules of assets and liabilities, current income and expenditures, and executory contracts and unexpired leases as required by section 521 of the Bankruptcy Code (collectively, the Schedules). 3
B.
Proposed Bar Dates and Claim Filing Procedures 8. To expedite the claims analysis and reconciliation process while giving persons
and entities ample time and notice to file proofs of claim, the Debtors propose the following bar dates and claim filing procedures: a. General Bar Date. Except as otherwise stated in subparagraphs (b), (c), and (d) below, all persons (as defined in section 101(41) of the Bankruptcy Code) and entities (as defined in section 101(15) of the Bankruptcy Code), including, without limitation, individuals, partnerships, corporations, joint ventures, and trusts, (such persons and entities, collectively, the Entities and each, an Entity) holding or wishing to assert a claim (as defined in section 101(5) of the Bankruptcy Code) against any of the Debtors that arose prior to the Petition Date, including any claim arising under section 503(b)(9) of the Bankruptcy Code (each a Claim, and collectively, the Claims), shall file proof of such Claim in writing so that it is actually received on or before October 29, 2010 (the General Bar Date), which date is no less than 35 days after service of the Bar Date Notice (as defined below), or be barred from doing so; Governmental Unit Bar Date. All governmental units (as defined in section 101(27) of the Bankruptcy Code) holding or wishing to assert a Claim against any of the Debtors that arose prior to the Petition Date, shall file proof of such Claim in writing so that it is actually received on or before January 18, 2011 (the Governmental Unit Bar Date), which date is no less than 180 days after the Petition Date, or be barred from doing so; Rejection Claim Bar Date. Except as otherwise set forth in any order authorizing rejection of an executory contract or unexpired lease, all Entities holding or wishing to assert a Claim relating to the Debtors rejection of an executory contract or unexpired lease shall file proof of such Claim in writing so that it is actually received on or before 30 days after the date of the entry of any order authorizing the rejection of such contract or lease (the Rejection Claim Bar Date), or be barred from doing so; and Amended Schedule Bar Date. If the Debtors amend or supplement their Schedules subsequent to the date hereof, the Debtors shall give notice of any amendment or supplement to Entities holding Claims directly affected thereby, and such Entities holding or wishing to assert a Claim against any of the Debtors that arose prior to the Petition Date, shall file proof of such Claim in writing so that it is actually received on or before 30 days from the date of service of such notice (the Amended Schedule Bar Date and, together with the General Bar Date, the Governmental Unit Bar Date, 4
b.
c.
d.
and the Rejection Claim Bar Date, the Bar Dates), or be barred from doing so. Entities Required to File Proofs of Claim 9. The Debtors propose that Entities with the following types of Claims shall be
subject to the applicable Bar Dates if the Entity holding such Claim desires to participate in any of the Chapter 11 Cases or share in any distribution in the Chapter 11 Cases on account of such Claim: a. b. any Claim that is listed in the Schedules as contingent, unliquidated, disputed, or any combination thereof; any Claim that is improperly classified in the Schedules or is listed in an incorrect amount if the Entity holding such Claim desires to have such Claim allowed in a classification or amount other than as set forth in the Schedules; any Claim against a Debtor that is not listed in the applicable Schedules; and any Claim arising under section 503(b)(9) of the Bankruptcy Code for goods received by the Debtors within 20 days before the Petition Date (each, a Section 503(b)(9) Claim). Entities Not Required to File Proofs of Claim 10. The Debtors propose that Entities with the following types of Claims are not
c. d.
required to a file a proof of Claim for such type of Claim on or before the applicable Bar Date: a. any Claim for which a proof of Claim in a form substantially similar to Official Bankruptcy Form No. 10 has already been filed against the Debtors with the Notice and Claims Agent or the Clerk of the Bankruptcy Court for the Southern District of New York (the Clerk); any Claim listed in the Debtors Schedules or any amendments thereto, which are not (i) therein listed as contingent, unliquidated, disputed, or any combination thereof, (ii) disputed by the Entity holding such Claim as to nature, amount, or classification, and (iii) disputed by the Entity holding such Claim as an obligation of the specific Debtor against which the Claim is listed in the Schedules; any Claim which heretofore has been allowed by order of the Court; 5
b.
c.
d. e. f.
any Claim which has been paid in full by any of the Debtors; any Claim for which specific deadlines have previously been fixed by the Court; any Claim made by any of the Debtors or any direct or indirect whollyowned subsidiary of any of the Debtors holding or wishing to assert a Claim against one or more of the other Debtors; any Claim allowable under section 503(b) and 507(a)(2) of the Bankruptcy Code as an expense of administration of the Debtors estates, with the exception of Section 503(b)(9) Claims, which Section 503(b)(9) Claims shall be subject to the applicable Bar Dates; any Claim made by any Entity holding equity securities of the Debtors solely with respect to such Entitys ownership interest in or possession of such equity securities; provided that any such Entities holding or wishing to assert a Claim against any of the Debtors based on a transaction in any of the Debtors securities, including, without limitation, Claims for damages or rescission based on the purchase or sale of such securities, must file a proof of such Claim on or prior to the applicable Bar Date; provided further that the Debtors reserve all rights with respect to any such Claims including, inter alia, to assert that such Claims are subject to subordination pursuant to section 510(b) of the Bankruptcy Code; any Claim made by the Representatives relating to their respective Loan Obligations (each, as defined in the Final Order Authorizing the Debtors to (i) Use the Adequate Protection Parties Cash Collateral and (ii) Provide Adequate Protection to the Adequate Protection Parties Pursuant to 11 U.S.C. 361, 362, and 363 [Docket No. 402]); any Claim by any current officer or director for indemnification, contribution, or reimbursement; and any Claim against any non-Debtor affiliate of the Debtors. Proof of Claim Forms
g.
h.
i.
j. k.
11.
The Debtors propose to send Entities listed in the Schedules as having Claims
against the Debtors a personalized proof of claim form. The Debtors proposed proof of Claim form, substantially in the form attached hereto as Exhibit B (the Proof of Claim Form), substantially conforms with Official Form No. 10; however, the Debtors have tailored the Proof
of Claim Form to conform to the size and complexity of the Chapter 11 Cases.2 Specifically, the Debtors proposed modifications to Official Form No. 10 include: a. b. c. instructions and procedures for each Entity to correct any information contained in the name and address portion; instructions and procedures for completing the form, which are specific to the Chapter 11 Cases; an indication (for Entities with Claims listed in the Schedules) of which Debtor case such Entity has a Claim listed in the Schedules and such Debtors case number; an indication (for Entities with Claims listed in the Schedules) of how the Debtors have listed each Entitys respective Claim on the Schedules, including the amounts of the Claim and whether the Claim has been listed as contingent, unliquidated, disputed, or any combination thereof; and modifications to permit the filing of Section 503(b)(9) Claims.
d.
e. 12.
The Debtors request that the Court require that all proofs of Claim filed in the
Chapter 11 Cases be consistent with the following: a. Proofs of Claim must: (i) include an original signature, as copies of proofs of Claim or proofs of Claim sent by facsimile or electronic mail will not be accepted; (ii) include supporting documentation (if voluminous, a summary must be attached) or an explanation as to why documentation is not available; (iii) set forth with specificity the legal and factual basis for the alleged Claims; (iv) be in the English language; and (v) be denominated in United States currency; Any proof of Claim asserting a Section 503(b)(9) Claim must also: (i) include the value of the goods delivered to and received by the Debtors within 20 days before the Petition Date; (ii) include supporting documentation identifying the particular invoices for which the Section 503(b)(9) Claim is being asserted; and (iii) include documentation of any reclamation demand made to the Debtors under section 546(c) of the Bankruptcy Code (if applicable); Entities who wish to receive proof of receipt of their proofs of Claim from the Notice and Claims Agent or the Clerk must also include with their
b.
c.
Nothing herein is intended to prohibit Entities from submitting proofs of Claim on Official Form No. 10.
proof of Claim a copy of their proof of Claim and a self-addressed, stamped envelope; d. Each original proof of Claim, including supporting documentation, must either be filed in person or via courier service, overnight delivery, or first class U.S. mail so as to be actually received on or before the applicable Bar Date in accordance with the procedures set forth herein by either (i) the Notice and Claims Agent at Innkeepers USA Trust, c/o Omni Management Group, LLC, 16161 Ventura Boulevard, Suite C, PMB 606, Encino, California 91436-2068, or (ii) the Clerk at Office of the Clerk of the Bankruptcy Court, One Bowling Green, Room 534, New York, New York 10004-1408; and Proofs of Claim will be deemed filed only when received by the Notice and Claims Agent or the Clerk in accordance with the procedures set forth herein.
e.
13.
Entities asserting Claims against more than one Debtor shall be required to file a
separate proof of Claim with respect to each such Debtor. If more than one Debtor is listed on a proof of Claim, the Debtors shall use reasonable efforts to determine the appropriate Debtor against which the Claim should be properly asserted and shall treat the Claim as asserted against such Debtor listed on the proof of Claim. All Entities shall identify on their proof of Claim the holder or holders of the Claim, the particular Debtor against which their Claim is asserted, and the applicable bankruptcy case number for such Debtor. Proposed Notice Procedures 14. The Debtors intend to cause the Notice and Claims Agent to serve the bar date
notice substantially in the form attached hereto as Exhibit C (the Bar Date Notice) no later than seven (7) days after the date of entry of the Bar Date Order upon: a. b. c. d. the U.S. Trustee; counsel to the Creditors Committee; all Entities that have requested notice of the proceedings in the Chapter 11 Cases pursuant to Bankruptcy Rule 2002; all Entities that have filed proofs of Claim against the Debtors; 8
e. f. g. h. i. j. k. l. 15.
all known holders of potential Claims against the Debtors, including all Entities listed in the Schedules as holding Claims; the Debtors prepetition secured lenders or their counsel; counsel to Apollo Investment Corporation; all Entities to the Debtors franchise agreements or their counsel; all Entities to executory contracts and unexpired leases with the Debtors listed in the Schedules; all Entities to litigation with the Debtors; the attorneys general for each of the states in which any of the Debtors conducts a substantial amount of its business operations; and the Internal Revenue Service.
In addition, the Debtors intend to supplement such notice of the Bar Dates by
publishing a form of the Bar Date Notice, substantially in the form attached hereto as Exhibit D, in the national edition of The USA Today. Additionally, the Debtors respectfully request
authority, but not direction, to publish the Bar Date Notice at such times and in such trade or other local publications of general circulation as the Debtors shall determine in their sole discretion. Such notice shall be published no less than 28 days before the earliest Bar Date. The Debtors also request authorization to enter into such transactions to cause such publication to be made and to make reasonable payments required for such publications. The Debtors believe that publication of this notice will provide sufficient notice to Entities who do not otherwise receive the Bar Date Notice by mail. Effect of Bar Dates 16. The Debtors propose that, pursuant to Bankruptcy Rule 3003(c)(2), any Entity
that is required to file a proof of Claim in the Chapter 11 Cases but that fails to do so by the applicable Bar Date should be forever barred, estopped, and enjoined from: (a) asserting any Claim against any of the Debtors that such Entity has that (i) is in an amount that exceeds the 9
amount, if any, that is set forth in the Schedules or (ii) is of a different nature or in a different classification than is set forth in the Schedules (any such Claim referred to as an Unscheduled Claim); and (b) voting upon, or receiving distributions under, any chapter 11 plan in the Chapter 11 Cases in respect of an Unscheduled Claim; and the Debtors and their property shall be forever discharged from any and all indebtedness or liability with respect to all such Unscheduled Claims. Reservation of Rights 17. The Debtors shall reserve all rights to: (a) dispute and assert offsets or defenses
against any filed Claim or any Claim listed or reflected in the Schedules as to amount, liability, priority, status, classification, or otherwise of such Claim; (b) subsequently designate any Claim listed in the Schedules as disputed, contingent, unliquidated, or any combination thereof; (c) object to the extent, validity, enforceability, priority, or avoidability of any Claim listed in the Schedules. Relief Requested 18. By this Application, the Debtors respectfully request entry of an order, (a) establishing Bar Dates and
substantially in the form attached hereto as Exhibit A:
procedures for Entities to file proofs of Claim in the Chapter 11 Cases; (b) approving the form and manner of the notice of such Bar Dates; and (c) granting such other relief as is just and proper. Basis for Relief A. The Proposed Bar Dates Comply with the Applicable Guidelines and Should Be Approved 19. As an initial matter, the Application (including the exhibits thereto) and the
Bar Date Order comply with the requirements of the Second Amended Procedural Guidelines for
10
Filing Requests for Bar Date Orders in the United States Bankruptcy Court for the Southern District of New York (the Guidelines), as adopted by the Court pursuant to General Order M-386. 20. Generally speaking, claimants must file a proof of claim to assert a claim in a
bankruptcy proceeding. See 11 U.S.C. 501(a). Bankruptcy Rule 3003(c)(3) governs the filing of proofs of claim in a chapter 11 case and provides, in relevant part, that [t]he court shall fix and for cause shown may extend the time within which proofs of claim or interest may be filed. Claims bar dates are integral to the twin goals of chapter 11preserving going-concerns and maximizing creditor recovery value. See In re Waterman S.S. Corp., 59 B.R. 724, 726 (Bankr. S.D.N.Y. 1986). Indeed, prolonged uncertainty regarding the aggregate liabilities of a
bankruptcy estate could delay or derail the development of a sound chapter 11 plan and the reorganization process generally to the detriment of creditors and parties in interest. Id. (Absent the setting of a bar date, a Chapter 11 case could not be administered to a conclusion.). 21. Recognizing the importance of setting deadlines for filing claims against a debtor,
courts in this jurisdiction and others routinely approve relief similar to the relief requested in this Application.3 See, e.g., In re Citadel Broadcasting Corp., Case No. 09-17442 (Bankr. S.D.N.Y. Mar. 9, 2010); In re The Readers Digest Assn, Inc., Case No. 09-23529 (Bankr. S.D.N.Y. Oct. 7, 2009); In re Lear Corp., Case No. 09-14326 (Bankr. S.D.N.Y. Aug. 21, 2009); In re Chemtura Corp., Case No. 09-11233 (Bankr. S.D.N.Y. Aug. 21, 2009); In re Tronox Inc., Case No. 09-10156 (Bankr. S.D.N.Y. May 28, 2009); In re Lyondell Chemical Co., Case No. 0910023 (Bankr. S.D.N.Y. Apr. 16, 2009); In re Wellman Inc., Case No. 08-10595 (Bankr.
3
Because of the voluminous nature of the orders cited in paragraphs 21 and 24 herein, such orders are not attached to the Application. Copies of these orders are available and may be obtained from the Debtors counsel upon request.
11
S.D.N.Y. Oct. 20, 2008); In re Ziff Davis Media, Inc., Case No. 08-10768 (Bankr. S.D.N.Y. Apr. 22, 2008). 22. To ensure that the Debtors are able to confirm and consummate a viable plan of
reorganization and emerge from chapter 11 in a timely manner, the Debtors will require complete and accurate information regarding the nature, validity, amount, and status of all Claims that will be asserted against their estates in the Chapter 11 Cases. As such, the Debtors must begin the Claims analysis and reconciliation process as soon as practicable, pursuant to clear procedures that are designed to limit confusion on the part of potential creditors and facilitate an efficient process that conserves estate resources. Fixing the Bar Dates as proposed herein will assist the Debtors in achieving the foregoing objectives. B. The Bar Dates Should Apply to Section 503(b)(9) Claims 23. Section 503(b)(9) of the Bankruptcy Code does not set a date by which such
claims must be asserted, but Section 503(b)(9) Claims, by definition, arose prepetition and, therefore, should be knowable in advance of the General Bar Date. Approval of the Bar Dates and related procedures with respect to Section 503(b)(9) Claims would, among other things, permit an expeditious determination of such Claims and, therefore, assist the Debtors with formulating their chapter 11 plan without prejudicing any Entity. As such, the Debtors
respectfully request that the Bar Dates apply to, among others, Section 503(b)(9) Claims.4 24. Although the Guidelines list of parties not required to file a proof of claim
includes holders of claims allowable under section 503 of the Bankruptcy Code, the Guidelines also provide that there will of course be variations in specific situations and the list is not
4
For the avoidance of doubt, Entities asserting administrative claims under all other sub-parts of section 503(b) of the Bankruptcy Code must make separate requests for payment in accordance with section 503(a) of the Bankruptcy Code.
12
intended to be exhaustive. See Guidelines, at 9. The Debtors submit that requiring Entities to assert Section 503(b)(9) Claims by proof of Claim on or before the applicable Bar Date is justified and warranted under the circumstances present here. Indeed, courts in this district routinely fix bar dates for filing Section 503(b)(9) Claims. See, e.g., In re Citadel Broadcasting Corp., Case No. 09-17442 (Bankr. S.D.N.Y. Mar. 9, 2010); In re The Readers Digest Assn, Inc., Case No. 09-23529 (Bankr. S.D.N.Y. Oct. 7, 2009); In re Lear Corp., Case No. 09-14326 (Bankr. S.D.N.Y. Aug. 21, 2009); In re Chemtura Corp., Case No. 09-11233 (Bankr. S.D.N.Y. Aug. 21, 2009); In re Star Tribune Holdings Corp., Case No. 09-10244 (Bankr. S.D.N.Y. Apr. 14, 2009); In re Frontier Airlines Holdings, Inc., Case No. 08-11298 (Bankr. S.D.N.Y. Sept. 24, 2008). C. Requiring Separate Proof of Claim Forms for Each Debtor Will Expedite Processing and Will Not Prejudice Creditors 25. If an Entity is permitted to assert Claims against more than one Debtor in a single
proof of Claim, the Notice and Claims Agent or the Clerk will have difficulty maintaining separate Claim registers for each Debtor, and one or more Debtors will be required to object to a proof of Claim that may be applicable to only one Debtor. Therefore, where an Entity asserts Claims against multiple Debtors, the Debtors propose that such Entity file separate proofs of Claim against each applicable Debtor. Likewise, Entities should be required to identify on each proof of Claim the particular Debtor against which their Claim is asserted. Requiring Entities to identify the Debtor against which a Claim is asserted will greatly expedite the Debtors review of proofs of Claim in the Chapter 11 Cases, minimize the Debtors need to object to proofs of Claim that were filed against the incorrect Debtor, and reduce the cost and administrative burden of the Claims resolution process for all Entities involved, including the Court. Furthermore, this requirement will not be unduly burdensome on claimants since such Entities will know or should 13
know the identity of the Debtor against which they are asserting a Claim. Moreover, Entities may seek Court authority to amend Claims to the extent they later determine that they filed a Claim against the wrong Debtor(s). D. The Proposed Procedures for Filing Proofs of Claim Should Be Approved 26. The Debtors have proposed procedures that: (a) are consistent with the
procedures set forth in the Guidelines; (b) provide Entities with ample notice and opportunity to file proofs of Claim and a clear process for effecting the same; and (c) achieve administrative efficiency. Indeed, the procedures described herein are calibrated to achieve the twin goals of providing comprehensive notice and clear instructions to creditors, on the one hand, and allowing the Chapter 11 Cases to move forward quickly with a minimum of administrative expense and delay, on the other hand. 27. Among other things, the proposed procedures provide clear instructions for filing
proofs of Claim that are calculated to avoid confusion or uncertainty among creditors that might lead them to file unnecessary protective proofs of Claim or multiple proofs of Claim, which, in either event, would result in unnecessary expense and delay in the Claims reconciliation process for all Entities affected thereby. For example, the proposed use of a personalized Proof of Claim Form for all known creditors is designed to streamline the Claims analysis and reconciliation process and provide useful information to Entities as to whether and how their Claims are reflected in the Schedules, and, therefore, is consistent with the Guidelines. Indeed, the Debtors believe that the use of the personalized Proof of Claim Form will help mitigate Entities confusion and result in a Claims reconciliation process that is less burdensome, costly, and timeconsuming for the Debtors, which inures to the benefit of their estates. 28. The Debtors believe that the Claim-filing procedures will facilitate the Claims
process by establishing guidelines for noticing and publishing the Bar Dates and providing 14
Entities with clear instructions regarding the procedures and other requirements for filing a proof of Claim. Accordingly, the Debtors submit that these procedures should be approved. E. The Proposed Form and Manner of the Bar Date Notice Should Be Approved 29. The Bar Date Notice substantially conforms to the form notice annexed to the
Guidelines. Moreover, the publication version of the Bar Date Notice is substantially similar to the Bar Date Notice to be mailed and will only omit provisions that are not applicable or necessary (such as the official definition of claim) to reduce publication costs. See Guidelines, at 5. 30. In addition, the proposed Bar Date Notice satisfies due process requirements.
Bankruptcy Rule 2002(a)(7) requires that the Debtors provide claimants at least 21 days notice by mail of the time fixed for filing proofs of claim pursuant to Bankruptcy Rule 3003(c), and Bankruptcy Rule 2002(l) provides that the Court may order notice by publication if it finds that notice by mail is impractical or it is desirable to supplement other notice. Bankruptcy Rule 9008 also provides that the Court shall determine the form and manner of publication notice, the newspapers used, and the frequency of publication. 31. To determine the adequacy of notice to a creditor, the case law distinguishes
between known and unknown creditors. Generally speaking, the former is a creditor whose identity is either known or is reasonably ascertainable by a debtor, while the latter is one whose interests are conjectural or future or, although potentially discoverable upon investigation, do not come to knowledge of the debtor in the ordinary course of business. See Tulsa Profl Collection Serv., Inc. v. Pope, 485 U.S. 478, 490 (1988); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 317 (1950) (publication is acceptable where it is not reasonably possible or practicable to give more adequate warning, whereas when names and addresses are available, notice must be mailed). 15
32.
Where a creditor is known to a debtor, due process requires that the debtor take
reasonable steps, such as direct mailing, to provide actual notice of the deadline for filing proofs of claim. See, e.g., In re Enron Corp., 2006 WL 898031, at *4 (Bankr. S.D.N.Y. Mar. 29, 2006) ([D]ebtor must send actual notice of the bar date to any known creditor, while constructive notice is generally sufficient with an unknown creditor); Daewoo Intl (Am.) Corp. Creditor Trust v. SSTS Am. Corp., 2003 WL 21355214, at *3 (S.D.N.Y. June 11, 2003) (same); see also Pope, 485 U.S. at 491 (where creditor was known or reasonably ascertainable, then due process only requires notice by mail or other means as certain to ensure actual notice). 33. Where a creditor is unknown to a debtor, due process requires only that the debtor
must take reasonable steps, such as notice by publication, to provide constructive notice of the deadline for filing proofs of claim. See, e.g., DePippo v. Kmart Corp., 335 B.R. 290, 296 (S.D.N.Y. 2005) (It is well-settled that when a creditor is unknown to the debtor, publication notice of the claims bar date is adequate constructive notice sufficient to satisfy due process requirements); In re XO Commcns, 301 B.R. 782, 793 (Bankr. S.D.N.Y. 2003) (if a creditor is unknown constructive notice is generally sufficient); In re U.S.H. Corp. of New York, 223 B.R. 654, 659 (Bankr. S.D.N.Y. 1998) (same). Furthermore, debtors are not required to publish notice in an excessive number of publications. See In re Best Prods. Co., Inc., 140 B.R. 353 (Bankr. S.D.N.Y. 1992) (holding it impracticable to expect a debtor to publish notice in every newspaper that an unknown creditor possibly may read). 34. To provide creditors reasonably known to the Debtors with actual notice of the
Bar Dates proposed herein, the Debtors propose to serve the Bar Date Notice no later than seven (7) days after the date of entry of the Bar Date Order upon all creditors identified during a thorough review of the Debtors books and records. As such, the Debtors will be providing
16
actual notice to creditors reasonably known to them with no less than 35 days notice of the General Bar Date in satisfaction of the Guidelines and Bankruptcy Rule 2002(a)(7). 35. To provide creditors unknown to the Debtors with constructive notice of the
Bar Dates proposed herein, the Debtors propose to publish the Bar Date Notice, modified as necessary (but consistent with the requirements of the Guidelines), in the national edition of The USA Today on one occasion no less than 28 days before the earliest Bar Date in satisfaction of the Guidelines and Bankruptcy Rule 2002(a)(7). 36. In light of the foregoing, service and publication of the Bar Date Notice as
proposed herein is reasonably designed to reach all interested Entities in a cost effective manner and satisfies the requirements of the relevant provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Bankruptcy Rules, and the Guidelines. Accordingly, the Debtors respectfully request that the Court deem the proposed form of Bar Date Notice and mailing and publication thereof good, adequate, and sufficient notice of the Bar Dates set forth herein. Motion Practice 37. This Application 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 Application. Accordingly, the Debtors submit that this Application satisfies Local Bankruptcy Rule 9013-1(a). The Debtors Reservation of Rights 38. Nothing contained herein is intended or should be construed as an admission of
the validity of any Claim against the Debtors, a waiver of the Debtors rights to dispute any Claim, or an approval or assumption of any agreement, contract, or lease under section 365 of the Bankruptcy Code. The Debtors expressly reserve their right to contest any invoice or Claim in accordance with applicable law. 17
Notice 39. The Debtors have provided notice of this Application to: (a) the U.S. Trustee;
(b) counsel to the Creditors Committee; (c) counsel to the Debtors prepetition secured lenders; (d) counsel to Apollo Investment Corporation; (e) the Debtors franchisors or their counsel, if known; (f) the attorneys general for each of the States in which any of the Debtors conducts a substantial amount of its business operations; (g) the Internal Revenue Service; and (h) entities who have formally requested notice by filing a written request for notice, pursuant to Bankruptcy Rule 2002. The Debtors respectfully submit that no further notice is necessary. No Prior Request 40. other court. No prior application for the relief requested herein has been made to this or any
18
WHEREFORE, the Debtors respectfully request 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. New York, New York Dated: September 7, 2010 /s/ Paul M. Basta James H.M. Sprayregen, P.C. Paul M. Basta Jennifer L. Marines KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York 10022-4611 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 and Anup Sathy, P.C. (admitted pro hac vice) Marc J. Carmel (admitted pro hac vice) KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, Illinois 60654-3406 Telephone: (312) 862-2000 Facsimile: (312) 862-2200 Counsel to the Debtors and Debtors in Possession
K&E 17556092
EXHIBIT D Bar Date Order
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: INNKEEPERS USA TRUST, et al.,1 Debtors. ) ) ) ) ) ) ) Chapter 11 Case No. 10-13800 (SCC) Jointly Administered
ORDER ESTABLISHING DEADLINES AND PROCEDURES FOR FILING PROOFS OF CLAIM AND APPROVING THE FORM AND MANNER OF NOTICE THEREOF1
The Debtors in these Chapter 11 Cases, along with the last four digits of each Debtors federal tax identification number, are: GP AC Sublessee LLC (5992); Grand Prix Addison (RI) LLC (3740); Grand Prix Addison (SS) LLC (3656); Grand Prix Albany LLC (3654); Grand Prix Altamonte LLC (3653); Grand Prix Anaheim Orange Lessee LLC (5925); Grand Prix Arlington LLC (3651); Grand Prix Atlanta (Peachtree Corners) LLC (3650); Grand Prix Atlanta LLC (3649); Grand Prix Atlantic City LLC (3648); Grand Prix Bellevue LLC (3645); Grand Prix Belmont LLC (3643); Grand Prix Binghamton LLC (3642); Grand Prix Bothell LLC (3641); Grand Prix Bulfinch LLC (3639); Grand Prix Campbell / San Jose LLC (3638); Grand Prix Cherry Hill LLC (3634); Grand Prix Chicago LLC (3633); Grand Prix Columbia LLC (3631); Grand Prix Denver LLC (3630); Grand Prix East Lansing LLC (3741); Grand Prix El Segundo LLC (3707); Grand Prix Englewood / Denver South LLC (3701); Grand Prix Fixed Lessee LLC (9979); Grand Prix Floating Lessee LLC (4290); Grand Prix Fremont LLC (3703); Grand Prix Ft. Lauderdale LLC (3705); Grand Prix Ft. Wayne LLC (3704); Grand Prix Gaithersburg LLC (3709); Grand Prix General Lessee LLC (9182); Grand Prix Germantown LLC (3711); Grand Prix Grand Rapids LLC (3713); Grand Prix Harrisburg LLC (3716); Grand Prix Holdings LLC (9317); Grand Prix Horsham LLC (3728); Grand Prix IHM, Inc. (7254); Grand Prix Indianapolis LLC (3719); Grand Prix Islandia LLC (3720); Grand Prix Las Colinas LLC (3722); Grand Prix Lexington LLC (3725); Grand Prix Livonia LLC (3730); Grand Prix Lombard LLC (3696); Grand Prix Louisville (RI) LLC (3700); Grand Prix Lynnwood LLC (3702); Grand Prix Mezz Borrower Floating 2, LLC (9972); Grand Prix Mezz Borrower Fixed, LLC (0252); Grand Prix Mezz Borrower Floating, LLC (5924); Grand Prix Mezz Borrower Term LLC (4285); Grand Prix Montvale LLC (3706); Grand Prix Morristown LLC (3738); Grand Prix Mountain View LLC (3737); Grand Prix Mt. Laurel LLC (3735); Grand Prix Naples LLC (3734); Grand Prix Ontario Lessee LLC (9976); Grand Prix Ontario LLC (3733); Grand Prix Portland LLC (3732); Grand Prix Richmond (Northwest) LLC (3731); Grand Prix Richmond LLC (3729); Grand Prix RIGG Lessee LLC (4960); Grand Prix RIMV Lessee LLC (4287); Grand Prix Rockville LLC (2496); Grand Prix Saddle River LLC (3726); Grand Prix San Jose LLC (3724); Grand Prix San Mateo LLC (3723); Grand Prix Schaumburg LLC (3721); Grand Prix Shelton LLC (3718); Grand Prix Sili I LLC (3714); Grand Prix Sili II LLC (3712); Grand Prix Term Lessee LLC (9180); Grand Prix Troy (Central) LLC (9061); Grand Prix Troy (SE) LLC (9062); Grand Prix Tukwila LLC (9063); Grand Prix West Palm Beach LLC (9065); Grand Prix Westchester LLC (3694); Grand Prix Willow Grove LLC (3697); Grand Prix Windsor LLC (3698); Grand Prix Woburn LLC (3699); Innkeepers Financial Corporation (0715); Innkeepers USA Limited Partnership (3956); Innkeepers USA Trust (3554); KPA HI Ontario LLC (6939); KPA HS Anaheim, LLC (0302); KPA Leaseco Holding Inc. (2887); KPA Leaseco, Inc. (7426); KPA RIGG, LLC (6706); KPA RIMV, LLC (6804); KPA San Antonio, LLC (1251); KPA Tysons Corner RI, LLC (1327); KPA Washington DC, LLC (1164); KPA/GP Ft. Walton LLC (3743); KPA/GP Louisville (HI) LLC (3744); KPA/GP Valencia LLC (9816). The location of the Debtors corporate headquarters and the service address for their affiliates is: c/o Innkeepers USA, 340 Royal Poinciana Way, Suite 306, Palm Beach, Florida 33480.
K&E 17716736
Upon the Application (the Application)2 of the Debtors, as debtors and debtors in possession, for the entry of an order (this Order) (a) establishing deadlines and procedures for creditors to file proofs of claim in the Chapter 11 Cases, (b) approving the form and manner of notice thereof, and (c) granting such other relief as is just and proper, all as more fully set forth in the Application; it appearing that the relief requested is in the best interests of the Debtors estates, their creditors, and other parties in interest; the Court having jurisdiction to consider the Application and the relief requested therein pursuant to 28 U.S.C. 157 and 1334; consideration of the Application and the relief requested therein being a core proceeding pursuant to 28 U.S.C. 157(b); venue being proper before this court pursuant to 28 U.S.C. 1408 and 1409; notice of the Application having been adequate and appropriate under the circumstances; and after due deliberation and sufficient cause appearing therefor, it is HEREBY ORDERED THAT: 1. 2. The Application is granted to the extent provided herein. Except as otherwise provided herein, all persons (as defined in section 101(41) of
the Bankruptcy Code) and entities (as defined in section 101(15) of the Bankruptcy Code), including, without limitation, individuals, partnerships, corporations, joint ventures, and trusts, (such persons and entities, collectively, the Entities and each, an Entity) holding or wishing to assert a claim (as defined in section 101(5) of the Bankruptcy Code) against any of the Debtors that arose prior to July 19, 2010 (the Petition Date), including any claim arising under section 503(b)(9) of the Bankruptcy Code (each a Claim, and collectively, the Claims), shall file proof of such Claim in writing so that it is actually received on or before October 29, 2010 (the General Bar Date), which date is no less than 35 days after service of
2
All capitalized terms used but otherwise not defined herein shall have the meanings set forth in the Application.
2
K&E 17716736
the Bar Date Notice (as defined below), by Omni Management Group, LLC (the Notice and Claims Agent) or the Clerk of the Bankruptcy Court for the Southern District of New York (the Clerk) in accordance with this Order, or be barred from doing so. 3. Notwithstanding any other provision of this Order, all governmental units (as
defined in section 101(27) of the Bankruptcy Code) holding or wishing to assert a Claim against any of the Debtors that arose prior to the Petition Date, shall file proof of such Claim in writing so that it is actually received on or before January 18, 2011 (the Governmental Unit Bar Date), which date is no less than 180 days after the Petition Date, by the Notice and Claims Agent or the Clerk in accordance with this Order, or be barred from doing so. 4. Except as otherwise set forth in any order authorizing rejection of an executory
contract or unexpired lease, all Entities holding or wishing to assert a Claim relating to the Debtors rejection of an executory contract or unexpired lease shall file proof of such Claim in writing so that it is actually received on or before 30 days after the date of the entry of any order authorizing the rejection of such contract or lease (the Rejection Claim Bar Date) by the Notice and Claims Agent or the Clerk in accordance with this Order, or be barred from doing so. 5. If the Debtors amend or supplement their Schedules subsequent to the date hereof,
the Debtors shall give notice of any amendment or supplement to Entities holding Claims directly affected thereby, and such Entities holding or wishing to assert a Claim against any of the Debtors that arose prior to the Petition Date, shall file proof of such Claim in writing so that it is actually received on or before 30 days from the date of service of such notice (the Amended Schedule Bar Date and, together with the General Bar Date, the Governmental Unit Bar Date, and the Rejection Claim Bar Date, the Bar Dates), by the Notice and Claims Agent or the Clerk in accordance with this Order, or be barred from doing so.
3
K&E 17716736
6.
The following procedures for the filing of proofs of Claim asserting Claims
against any of the Debtors in the Chapter 11 Cases shall apply: a. Proofs of Claim must: (i) include an original signature, as copies of proofs of Claim or proofs of Claim sent by facsimile or electronic mail will not be accepted; (ii) include supporting documentation (if voluminous, a summary must be attached) or an explanation as to why documentation is not available; (iii) set forth with specificity the factual and legal basis for the alleged Claim; (iv) be in the English language; and (v) be denominated in United States currency; Any proof of Claim asserting a Section 503(b)(9) Claim must also: (i) include the value of the goods delivered to and received by the Debtors within 20 days before the Petition Date; (ii) include supporting documentation identifying the particular invoices for which the Section 503(b)(9) Claim is being asserted; and (iii) include documentation of any reclamation demand made to the Debtors under section 546(c) of the Bankruptcy Code (if applicable); Entities who wish to receive proof of receipt of their proofs of Claim from the Notice and Claims Agent or the Clerk must also include with their proof of Claim a copy of their proof of Claim and a self-addressed, stamped envelope; Each original proof of Claim, including supporting documentation, must either be filed in person or via courier service, overnight delivery, or first class U.S. mail so as to be actually received on or before the applicable Bar Date in accordance with the procedures set forth herein by either (i) the Notice and Claims Agent at Innkeepers USA Trust, c/o Omni Management Group, LLC, 16161 Ventura Boulevard, Suite C, PMB 606, Encino, California 91436-2068, or (ii) the Clerk at Office of the Clerk of the Bankruptcy Court, One Bowling Green, Room 534, New York, New York 10004-1408; and Proofs of Claim will be deemed filed only when received by the Notice and Claims Agent or the Clerk in accordance with the procedures set forth herein.
b.
c.
d.
e.
7.
Entities asserting Claims against more than one Debtor shall be required to file a
separate proof of Claim with respect to each such Debtor. If more than one Debtor is listed on a proof of Claim, the Debtors shall use reasonable efforts to determine the appropriate Debtor against which the Claim should be properly asserted and shall treat the Claim as asserted against
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such Debtor listed on the proof of Claim. All Entities shall identify on their proof of Claim the holder or holders of the Claim and the particular Debtor against which their Claim is asserted and the applicable bankruptcy case number for such Debtor. 8. Entities with the following types of Claims are not required to a file a proof of
Claim on or before the applicable Bar Dates: a. any Claim for which a proof of Claim in a form substantially similar to Official Bankruptcy Form No. 10 has already been filed against the Debtors with the Notice and Claims Agent or the Clerk; any Claim listed in the Debtors Schedules or any amendments thereto, which are not (i) therein listed as contingent, unliquidated, disputed, or any combination thereof, (ii) disputed by the Entity holding such Claim as to nature, amount, or classification, and (iii) disputed by the Entity holding such Claim as an obligation of the specific Debtor against which the Claim is listed in the Schedules; any Claim which heretofore has been allowed by order of the Court; any Claim which has been paid in full by any of the Debtors; any Claim for which specific deadlines have previously been fixed by the Court; any Claim made by any of the Debtors or any direct or indirect whollyowned subsidiary of any of the Debtors holding or wishing to assert a Claim against one or more of the other Debtors; any Claim allowable under section 503(b) and 507(a)(2) of the Bankruptcy Code as an expense of administration of the Debtors estates, with the exception of Section 503(b)(9) Claims, which Section 503(b)(9) Claims shall be subject to the applicable Bar Dates; any Claim made by any Entity holding equity securities of the Debtors solely with respect to such Entitys ownership interest in or possession of such equity securities; provided that any such Entities holding or wishing to assert a Claim against any of the Debtors based on a transaction in any of the Debtors securities, including, without limitation, Claims for damages or rescission based on the purchase or sale of such securities, must file a proof of such Claim on or prior to the applicable Bar Date; provided further that the Debtors reserve all rights with respect to any such Claims including, inter alia, to assert that such Claims are subject to subordination pursuant to section 510(b) of the Bankruptcy Code; 5
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b.
c. d. e. f.
g.
h.
i.
any Claim made by the Representatives relating to their respective Loan Obligations (each, as defined in the Final Order Authorizing the Debtors to (i) Use the Adequate Protection Parties Cash Collateral and (ii) Provide Adequate Protection to the Adequate Protection Parties Pursuant to 11 U.S.C. 361, 362, and 363 [Docket No. 402]); any Claim by any current officer or director for indemnification, contribution, or reimbursement; and any Claim against any non-Debtor affiliate of the Debtors.
j. k. 9.
The filing of a proof of Claim shall be deemed to satisfy the procedural
requirements for the assertion of administrative priority claims under section 503(b)(9) of the Bankruptcy Code.3 10. Nothing in this Order shall prejudice the right of the Debtors or any other party in
interest to dispute or assert offsets or defenses to any Claim listed in the Schedules. 11. Pursuant to Bankruptcy Rule 3003(c)(2), any Entity that is required to file a proof
of Claim in the Chapter 11 Cases but that fails to do so by the applicable Bar Date shall be forever barred, estopped, and enjoined from: (a) asserting any Claim against any of the Debtors that such Entity has that (i) is in an amount that exceeds the amount, if any, that is set forth in the Schedules or (ii) is of a different nature or in a different classification than is set forth in the Schedules (any such Claim referred to as an Unscheduled Claim); and (b) voting upon, or receiving distributions under, any chapter 11 plan in the Chapter 11 Cases in respect of an Unscheduled Claim; and the Debtors and their property shall be forever discharged from any and all indebtedness or liability with respect to all such Unscheduled Claims.
Nothing herein is intended to preclude any party from filing a request with the Court for payment of administrative claims pursuant to section 503 of the Bankruptcy Code; provided, however, that requests for payment of section 503(b)(9) claims will be considered timely only if they are filed by the General Bar Date, or if applicable, the Governmental Unit Bar Date.
6
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12.
The Debtors shall mail one or more proof of Claim forms (as appropriate)
substantially similar to the proof of Claim form attached to the Application as Exhibit B (the Proof of Claim Form), which is hereby approved, indicating on the form how the Debtors have listed such Entitys Claim in the Schedules (including whether the Claim has been scheduled as any of contingent, unliquidated, or disputed). 13. A copy of the notice substantially in the form attached to the Application as
Exhibit C (the Bar Date Notice) is approved and shall be deemed adequate and sufficient notice if served by first-class mail no less than 35 days prior to the General Bar Date on: a. b. c. d. e. f. g. h. i. j. k. l. 14. the U.S. Trustee; counsel to the Creditors Committee; all Entities that have requested notice of the proceedings in the Chapter 11 Cases pursuant to Bankruptcy Rule 2002; all Entities that have filed proofs of Claim against the Debtors; all known holders of potential Claims against the Debtors, including all Entities listed in the Schedules as holding Claims; the Debtors prepetition secured lenders or their counsel; counsel to Apollo Investment Corporation; all Entities to the Debtors franchise agreements or their counsel; all Entities to executory contracts and unexpired leases with the Debtors listed in the Schedules; all Entities to litigation with the Debtors; the attorneys general for each of the states in which any of the Debtors conducts a substantial amount of its business operations; and the Internal Revenue Service.
Pursuant to Bankruptcy Rule 2002(f), the Debtors shall publish a form of the
Bar Date Notice substantially in the form attached as Exhibit D to the Application in the national
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edition of The USA Today on one occasion no less than 28 days before the earliest Bar Date, which publication is hereby approved and shall be deemed good, adequate, and sufficient publication notice of the Bar Dates. 15. Entry of this Order is without prejudice to the right of the Debtors to seek further
orders of the Court fixing a date or dates by which Entities holding or wishing to assert Claims or interests not subject to the Bar Dates established herein must file such proofs of Claim or interest or be barred from doing so. 16. The terms and conditions of this Order shall be immediately effective and
enforceable upon its entry. 17. All time periods set forth in this Order shall be calculated in accordance with
Bankruptcy Rule 9006(a). 18. The Debtors, the Notice and Claims Agent, and the Clerk are authorized and
empowered to take such steps and perform such acts as may be necessary to implement and effectuate the terms of this Order in accordance with the Application. 19. The Court retains jurisdiction with respect to all matters arising from or related to
the implementation of this Order. New York, New York Date: September 16, 2010 /s/Shelley C. Chapman United States Bankruptcy Judge
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EXHIBIT E Bar Date Notice
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: INNKEEPERS USA TRUST, et al.,1 Debtors. ) ) ) ) ) ) ) Chapter 11 Case No. 10-13800 (SCC) Jointly Administered
NOTICE OF DEADLINES AND PROCEDURES FOR FILING PROOFS OF CLAIM 1
The Debtors in these Chapter 11 Cases, along with the last four digits of each Debtors federal tax identification number, are: GP AC Sublessee LLC (5992); Grand Prix Addison (RI) LLC (3740); Grand Prix Addison (SS) LLC (3656); Grand Prix Albany LLC (3654); Grand Prix Altamonte LLC (3653); Grand Prix Anaheim Orange Lessee LLC (5925); Grand Prix Arlington LLC (3651); Grand Prix Atlanta (Peachtree Corners) LLC (3650); Grand Prix Atlanta LLC (3649); Grand Prix Atlantic City LLC (3648); Grand Prix Bellevue LLC (3645); Grand Prix Belmont LLC (3643); Grand Prix Binghamton LLC (3642); Grand Prix Bothell LLC (3641); Grand Prix Bulfinch LLC (3639); Grand Prix Campbell / San Jose LLC (3638); Grand Prix Cherry Hill LLC (3634); Grand Prix Chicago LLC (3633); Grand Prix Columbia LLC (3631); Grand Prix Denver LLC (3630); Grand Prix East Lansing LLC (3741); Grand Prix El Segundo LLC (3707); Grand Prix Englewood / Denver South LLC (3701); Grand Prix Fixed Lessee LLC (9979); Grand Prix Floating Lessee LLC (4290); Grand Prix Fremont LLC (3703); Grand Prix Ft. Lauderdale LLC (3705); Grand Prix Ft. Wayne LLC (3704); Grand Prix Gaithersburg LLC (3709); Grand Prix General Lessee LLC (9182); Grand Prix Germantown LLC (3711); Grand Prix Grand Rapids LLC (3713); Grand Prix Harrisburg LLC (3716); Grand Prix Holdings LLC (9317); Grand Prix Horsham LLC (3728); Grand Prix IHM, Inc. (7254); Grand Prix Indianapolis LLC (3719); Grand Prix Islandia LLC (3720); Grand Prix Las Colinas LLC (3722); Grand Prix Lexington LLC (3725); Grand Prix Livonia LLC (3730); Grand Prix Lombard LLC (3696); Grand Prix Louisville (RI) LLC (3700); Grand Prix Lynnwood LLC (3702); Grand Prix Mezz Borrower Floating 2, LLC (9972); Grand Prix Mezz Borrower Fixed, LLC (0252); Grand Prix Mezz Borrower Floating, LLC (5924); Grand Prix Mezz Borrower Term LLC (4285); Grand Prix Montvale LLC (3706); Grand Prix Morristown LLC (3738); Grand Prix Mountain View LLC (3737); Grand Prix Mt. Laurel LLC (3735); Grand Prix Naples LLC (3734); Grand Prix Ontario Lessee LLC (9976); Grand Prix Ontario LLC (3733); Grand Prix Portland LLC (3732); Grand Prix Richmond (Northwest) LLC (3731); Grand Prix Richmond LLC (3729); Grand Prix RIGG Lessee LLC (4960); Grand Prix RIMV Lessee LLC (4287); Grand Prix Rockville LLC (2496); Grand Prix Saddle River LLC (3726); Grand Prix San Jose LLC (3724); Grand Prix San Mateo LLC (3723); Grand Prix Schaumburg LLC (3721); Grand Prix Shelton LLC (3718); Grand Prix Sili I LLC (3714); Grand Prix Sili II LLC (3712); Grand Prix Term Lessee LLC (9180); Grand Prix Troy (Central) LLC (9061); Grand Prix Troy (SE) LLC (9062); Grand Prix Tukwila LLC (9063); Grand Prix West Palm Beach LLC (9065); Grand Prix Westchester LLC (3694); Grand Prix Willow Grove LLC (3697); Grand Prix Windsor LLC (3698); Grand Prix Woburn LLC (3699); Innkeepers Financial Corporation (0715); Innkeepers USA Limited Partnership (3956); Innkeepers USA Trust (3554); KPA HI Ontario LLC (6939); KPA HS Anaheim, LLC (0302); KPA Leaseco Holding Inc. (2887); KPA Leaseco, Inc. (7426); KPA RIGG, LLC (6706); KPA RIMV, LLC (6804); KPA San Antonio, LLC (1251); KPA Tysons Corner RI, LLC (1327); KPA Washington DC, LLC (1164); KPA/GP Ft. Walton LLC (3743); KPA/GP Louisville (HI) LLC (3744); KPA/GP Valencia LLC (9816). The location of the Debtors corporate headquarters and the service address for their affiliates is: c/o Innkeepers USA, 340 Royal Poinciana Way, Suite 306, Palm Beach, Florida 33480.
K&E 17717044
TO:
ALL KNOWN PERSONS AND ENTITIES THAT HOLD OR WISH TO ASSERT CLAIMS AGAINST ANY OF THE DEBTORS IN THE ABOVE-CAPTIONED CHAPTER 11 CASES:
PLEASE TAKE NOTICE that on July 19, 2010 (the Petition Date), Innkeepers USA Trust (Innkeepers) and certain of its affiliates, as debtors and debtors in possession (collectively, the Debtors), filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the Bankruptcy Code) in the United States Bankruptcy Court for the Southern District of New York (the Court) (collectively, the Chapter 11 Cases). The Debtors and their federal tax identification numbers are listed with their corresponding Chapter 11 Case numbers on Exhibit A. PLEASE TAKE FURTHER NOTICE that on or around September 1, 2010, the Debtors filed their statements of financial affairs and schedules of assets and liabilities, current income and expenditures, and executory contracts and unexpired leases as required by section 521 of the Bankruptcy Code (collectively, the Schedules). PLEASE TAKE FURTHER NOTICE that on September 16, 2010, the Court entered an order [Docket No. 440] in the Chapter 11 Cases (the Bar Date Order). Pursuant to the Bar Date Order, all persons (as defined in section 101(41) of the Bankruptcy Code) and entities (as defined in section 101(15) of the Bankruptcy Code), including, without limitation, individuals, partnerships, corporations, joint ventures, and trusts, (such persons and entities, collectively, the Entities and each, an Entity), other than governmental units, holding or wishing to assert a claim (as defined in section 101(5) of the Bankruptcy Code) against any of the Debtors that arose prior to the Petition Date, including any claim arising under section 503(b)(9) of the Bankruptcy Code (each a Claim, and collectively, the Claims), shall file proof of such Claim in writing so that it is actually received on or before October 29, 2010 (the General Bar Date), or be barred from doing so. All governmental units (as defined in section 101(27) of the Bankruptcy Code) holding or wishing to assert a Claim against any of the Debtors that arose prior to the Petition Date, shall file proof of such Claim in writing so that it is actually received on or before January 18, 2011 (the Governmental Unit Bar Date), or be barred from doing so. Except as otherwise set forth in any order authorizing rejection of an executory contract or unexpired lease, all Entities holding or wishing to assert a Claim relating to the Debtors rejection of an executory contract or unexpired lease shall file proof of such Claim in writing so that it is actually received on or before 30 days after the date of the entry of any order authorizing the rejection of such contract or lease (the Rejection Claim Bar Date), or be barred from doing so. If the Debtors amend or supplement their Schedules subsequent to the date hereof, the Debtors shall give notice of any amendment or supplement to Entities holding Claims directly affected thereby, and such Entities holding or wishing to assert a Claim against any of the Debtors that arose prior to the Petition Date, shall file proof of such Claim in writing so that it is actually received on or before 30 days from the date of service of such notice (the Amended Schedule Bar Date and, together with the General Bar Date, the Governmental Unit Bar Date, and the Rejection Claim Bar Date, the Bar Dates), or be barred from doing so.
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1.
Who Must File a Proof of Claim
You MUST file a proof of Claim to vote on a chapter 11 plan filed by the Debtors or to share in distributions from the Debtors bankruptcy estates if you have a Claim that arose prior to the Petition Date, and it is not one of the types of Claims described under the heading Who Need Not File a Proof of Claim below. Claims based on acts or omissions of the Debtors that occurred prior to the Petition Date must be filed on or prior to the applicable Bar Date, even if such Claims are not now fixed, liquidated, or certain or did not mature or become fixed, liquidated, or certain before the Petition Date. Under section 101(5) of the Bankruptcy Code and as used in this notice, the word claim means: (a) a right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or (b) a right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured. 2. What to File
The Debtors are enclosing a proof of Claim form for use in the Chapter 11 Cases; if your Claim is listed on the Schedules, the form also sets forth the amount of your Claim as listed on the Schedules by the Debtors, and whether the Claim is scheduled as disputed, contingent, or unliquidated. You will receive a different proof of Claim form for each Claim scheduled in your name by the Debtors. You may utilize the proof of Claim form(s) provided by the Debtors to file your Claim. Additional proof of Claim forms may be obtained by (i) contacting the Debtors notice and claims agent, Omni Management Group, LLC (the Notice and Claims Agent) and (a) calling (866) 989-6147, (b) emailing innkeepers@omnimgt.com, (c) writing to Innkeepers USA Trust, c/o Omni Management Group, LLC, 16161 Ventura Boulevard, Suite C, PMB 606, Encino, California 91346-2068, or (d) visiting the Debtors restructuring website at: http://www.omnimgmt.com/innkeepers, or (ii) visiting http://www.uscourts.gov/bkforms. The following procedures for the filing of proofs of Claim asserting Claims against any of the Debtors in the Chapter 11 Cases shall apply: a. Proofs of Claim must: (i) include an original signature, as copies of proofs of Claim or proofs of Claim sent by facsimile or electronic mail will not be accepted; (ii) include supporting documentation (if voluminous, a summary must be attached) or an explanation as to why documentation is not available; (iii) set forth with specificity the legal and factual basis for the alleged Claims; (iv) be in the English language; and (v) be denominated in United States currency; Any proof of Claim asserting a Claim arising under section 503(b)(9) of the Bankruptcy Code (each, a Section 503(b)(9) Claim) must also: 3
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b.
(i) include the value of the goods delivered to and received by the Debtors within 20 days before the Petition Date; (ii) include supporting documentation identifying the particular invoices for which the Section 503(b)(9) Claim is being asserted; and (iii) include documentation of any reclamation demand made to the Debtors under section 546(c) of the Bankruptcy Code (if applicable); and c. Entities who wish to receive proof of receipt of their proofs of Claim from the Notice and Claims Agent or the Clerk must also include with their proof of Claim a copy of their proof of Claim and a self-addressed, stamped envelope.
Entities asserting Claims against more than one Debtor are required to file a separate proof of Claim with respect to each such Debtor. If more than one Debtor is listed on a proof of Claim, the Debtors shall use reasonable efforts to determine the appropriate Debtor against which the Claim should be properly asserted and shall treat the Claim as asserted against such Debtor listed on the proof of Claim. All Entities shall identify on their proof of Claim the holder or holders of the Claim, the particular Debtor against which their Claim is asserted, and the applicable bankruptcy case number for such Debtor. 3. When and Where to File
Each original proof of Claim, including supporting documentation, must be filed in person or via courier service, overnight delivery, or first class U.S. mail, so as to be actually received on or before the applicable Bar Date at either of the following addresses: Innkeepers USA Trust c/o Omni Management Group, LLC 16161 Ventura Boulevard Suite C PMB 606 Encino, California 91436-2068 United States Bankruptcy Court Southern District of New York One Bowling Green, Room 534 New York, New York 10004-1408
ANY PROOF OF CLAIM FILED BY FACSIMILE OR ELECTRONIC MAIL WILL NOT BE ACCEPTED AND WILL NOT BE DEEMED TIMELY FILED. 4. Who Need Not File a Proof of Claim
Entities with the following types of Claims are not required to a file a proof of Claim on or before the Bar Dates: a. any Claim for which a proof of Claim in a form substantially similar to Official Bankruptcy Form No. 10 has already been filed against the Debtors with the Notice and Claims Agent or the Clerk; any Claim listed in the Debtors Schedules or any amendments thereto, which are not (i) therein listed as contingent, unliquidated, disputed, 4
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b.
or any combination thereof, (ii) disputed by the Entity holding such Claim as to nature, amount, or classification, and (iii) disputed by the Entity holding such Claim as an obligation of the specific Debtor against which the Claim is listed in the Schedules; c. d. e. f. any Claim which heretofore has been allowed by order of the Court; any Claim which has been paid in full by any of the Debtors; any Claim for which specific deadlines have previously been fixed by the Court; any Claim made by any of the Debtors or any direct or indirect whollyowned subsidiary of any of the Debtors holding or wishing to assert a Claim against one or more of the other Debtors; any Claim allowable under section 503(b) and 507(a)(2) of the Bankruptcy Code as an expense of administration of the Debtors estates, with the exception of Section 503(b)(9) Claims, which Section 503(b)(9) Claims shall be subject to the applicable Bar Dates; any Claim made by any Entity holding equity securities of the Debtors solely with respect to such Entitys ownership interest in or possession of such equity securities; provided that any such Entities holding or wishing to assert a Claim against any of the Debtors based on a transaction in the Debtors securities, including, without limitation, Claims for damages or rescission based on the purchase or sale of such securities, must file a proof of such Claim on or prior to the applicable Bar Date; provided further that the Debtors reserve all rights with respect to any such Claims including, inter alia, to assert that such Claims are subject to subordination pursuant to section 510(b) of the Bankruptcy Code; any Claim made by the Representatives relating to their respective Loan Obligations (each, as defined in the Final Order Authorizing the Debtors to (i) Use the Adequate Protection Parties Cash Collateral and (ii) Provide Adequate Protection to the Adequate Protection Parties Pursuant to 11 U.S.C. 361, 362, and 363 [Docket No. 402]); any Claim by any current officer or director for indemnification, contribution, or reimbursement; and any Claim against any non-Debtor affiliate of the Debtors.
g.
h.
i.
j. k.
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THIS NOTICE IS BEING SENT TO MANY ENTITIES THAT HAVE HAD SOME RELATIONSHIP WITH OR HAVE DONE BUSINESS WITH THE DEBTORS BUT MAY NOT HAVE A CLAIM AGAINST ANY OF THE DEBTORS. THE FACT THAT YOU HAVE RECEIVED THIS NOTICE DOES NOT MEAN THAT YOU HAVE A CLAIM OR THAT THE DEBTORS OR THE COURT BELIEVE THAT YOU HAVE ANY CLAIM AGAINST ANY OF THE DEBTORS. 5. Consequences of Failure to File a Proof of Claim by the Applicable Bar Date
ANY HOLDER OF A CLAIM, INCLUDING A HOLDER OF A SECTION 503(b)(9) CLAIM, THAT IS NOT LISTED IN THIS NOTICE AS AN ENTITY EXCEPTED FROM THE REQUIREMENTS OF THE BAR DATE ORDER AND THAT FAILS TO TIMELY FILE A PROOF OF CLAIM IN THE APPROPRIATE FORM WILL BE BARRED FROM (1) ASSERTING SUCH CLAIM AGAINST THE DEBTORS AND THEIR CHAPTER 11 ESTATES, (2) VOTING ON ANY CHAPTER 11 PLAN FILED IN THE CHAPTER 11 CASES ON ACCOUNT OF SUCH CLAIM AND (3) PARTICIPATING IN ANY DISTRIBUTION IN THE DEBTORS CASES ON ACCOUNT OF SUCH CLAIM. 6. The Debtors Schedules and Access Thereto
You may be listed as an Entity holding a Claim against one or more of the Debtors in the Debtors Schedules. To determine if and how you are listed on the Schedules, please refer to the descriptions set forth on the enclosed proof of Claim forms regarding the nature, amount, and status of your Claim(s). If you received postpetition payments from the Debtors (as authorized by the Court) on account of your Claim, the enclosed proof of Claim form will reflect the net amount of your Claims. If the Debtors believe that you hold Claims against more than one Debtor, you will receive multiple proof of Claim forms, each of which will reflect the nature and amount of Claim against one Debtor, as listed in the Schedules. If you rely on the Debtors Schedules, it is your responsibility to determine that the Claim is accurately listed in the Schedules; however, you may rely on the enclosed proof of Claim form if it lists your Claim as scheduled and specifies whether the Claim is listed on the Schedules as disputed, contingent, or unliquidated. As set forth above, if you agree with the nature, amount, and status of your Claim as listed in the Debtors Schedules, and if your Claim is not described as disputed, contingent, or unliquidated, you need not file a proof of Claim. Otherwise, or if you decide to file a proof of Claim, you must do so before the applicable Bar Date in accordance with the procedures set forth in this notice. Copies of the Debtors Schedules are available: (a) from the Notice and Claims Agent by (i) calling (866) 989-6147, (ii) emailing innkeepers@omnimgt.com, (iii) writing to Innkeepers USA Trust, c/o Omni Management Group, LLC, 16161 Ventura Boulevard, Suite C, PMB 606, Encino, California 91346-2068, or (iv) visiting the Debtors restructuring website at: http://www.omnimgmt.com/innkeepers; or (b) for inspection on the Courts Internet Website at 6
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http://www.nysb.uscourts.gov. A login and password to the Courts Public Access to Electronic Court Records are required to access this information and can be obtained at http://www.pacer.psc.uscourts.gov. Copies of the Schedules may also be examined between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday, at the Office of the Clerk of the Bankruptcy Court, One Bowling Green, Room 511, New York, New York 10004, 300 Quarropas Street, Room 248, White Plains, New York 10601, or 355 Main Street, Poughkeepsie, New York 12601. A holder of a possible Claim against any of the Debtors should consult an attorney regarding any matters not covered by this notice, such as whether the holder should file a proof of Claim. New York, New York Dated: September 17, 2010 BY ORDER OF THE COURT
/s/ Marc J. Carmel James H.M. Sprayregen, P.C. Paul M. Basta Jennifer L. Marines KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, NY 10022-4611 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 and Anup Sathy, P.C. Marc J. Carmel KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, IL 60654 Telephone: (312) 862-2000 Facsimile: (312) 862-2200 Counsel to the Debtors and Debtors in Possession
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Exhibit A
Hotel Property Related Debtor Entity1 Taxpayer Identification Number
75-3249065 30-0424290 65-1313639 30-0424290 65-1313648 30-0424290 65-1313705 32-2299979 65-1313706 30-0424290 20-5561164 38-3759182 26-0639816 30-0424290 65-1313743 30-0424290 65-1313741 30-0424290 65-1313713 30-0424290 65-1313719 30-0424290 65-1313654 30-0424290 65-1313631 32-2299979 65-1313711 32-2299979 65-1313720 32-2299979
Debtor Case Number

10-13875 10-13826 10-13816 10-13826 10-13811 10-13826 10-13828 10-13825 10-13849 10-13826 10-13889 10-13831 10-13893 10-13826 10-13890 10-13826 10-13822 10-13826 10-13833 10-13826 10-13838 10-13826 10-13805 10-13826 10-13820 10-13825 10-13832 10-13825 10-13839 10-13825
Best Western (West Palm Beach, FL) Bulfinch Hotel (Boston, MA) Courtyard by Marriott (Atlantic City, NJ) Courtyard by Marriott (Ft. Lauderdale, FL) Courtyard by Marriott (Montvale, NJ ) Doubletree Guest Suites (Washington, DC) Embassy Suites (Valencia, CA ) Four Points by Sheraton (Ft. Walton Beach, FL) Gatehouse Suites (formerly Residence Inn) (East Lansing, MI) Gatehouse Suites (formerly Residence Inn) (Grand Rapids (Kentwood), MI) Gatehouse Suites (formerly Residence Inn) (Indianapolis, IN) Hampton Inn (Albany, NY) Hampton Inn (Columbia, MD ) Hampton Inn (Germantown, MD) Hampton Inn (Islandia, NY)
Property Owner: Grand Prix West Palm Beach LLC Operating Lessee: Grand Prix Floating Lessee LLC Property Owner: Grand Prix Bulfinch LLC Operating Lessee: Grand Prix Floating Lessee LLC Property Owner: Grand Prix Atlantic City LLC Operating Lessee: Grand Prix Floating Lessee LLC Property Owner: Grand Prix Ft. Lauderdale LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Montvale LLC Operating Lessee: Grand Prix Floating Lessee LLC Property Owner: KPA Washington DC, LLC (f/k/a KPA Washington DC DT, LLC) Operating Lessee: Grand Prix General Lessee LLC Property Owner: KPA/GP Valencia LLC Operating Lessee: Grand Prix Floating Lessee LLC Property Owner: KPA/GP Fort Walton LLC Operating Lessee: Grand Prix Floating Lessee LLC Property Owner: Grand Prix East Lansing LLC Operating Lessee: Grand Prix Floating Lessee LLC Property Owner: Grand Prix Grand Rapids LLC Operating Lessee: Grand Prix Floating Lessee LLC Property Owner: Grand Prix Indianapolis LLC Operating Lessee: Grand Prix Floating Lessee LLC Property Owner: Grand Prix Albany LLC Operating Lessee: Grand Prix Floating Lessee LLC Property Owner: Grand Prix Columbia LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Germantown LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Islandia LLC Operating Lessee: Grand Prix Fixed Lessee LLC
Each of the 72 Debtor property owners listed in this chart (the Property Owners) leases (or subleases) its hotel property to one of nine of Innkeepers USA Trusts indirect, wholly-owned taxable REIT subsidiaries, each of which is a Debtor in these Chapter 11 Cases (the Operating Lessees). The Operating Lessees are responsible for paying hotel operating expenses for the respective Property Owners, including personnel costs, franchise royalties and related fees, utility costs, and general repair and maintenance expenses. Generally, the Property Owners remain responsible for ownership costs such as property taxes and insurance, ground rent (where applicable), and capital expenditures. For four of the 72 hotel properties, the Property Owner listed in the chart is a ground lessee (rather than actual fee owner) of the hotel property and the Property Owner subleases the hotel property to an Operating Lessee. These four hotel properties are: Best Western in West Palm Beach, Florida; Courtyard by Marriott in Ft. Lauderdale, Florida; Doubletree Guest Suites in Washington, D.C.; and Hampton Inn in Woburn, Massachusetts.
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Hotel Property
Related Debtor Entity1
Taxpayer Identification Number

65-1313696 32-2299979 65-1313744 30-0424290 65-1313734 32-2299979 65-1313721 32-2299979 65-131369 32-2299979 65-1313697 32-2299979 65-1313699 30-0424290 20-5446939 35-2299976 20-5410302 32-0205925 65-1313656 30-0424290 65-1313643 32-2299979 65-1313707 32-2299979 65-1313722 32-2299979 65-1313735 32-2299979 20-5561251 38-3759182 75-3249061 30-0424290 65-1313740 32-2299979 65-1313653 32-2299979 65-1313651 32-2299979 65-1313649 32-2299979 65-1313650 32-2299979 65-1313645 32-2299979 65-1313642 32-2299979 65-1313641 32-2299979 65-1313638 32-2299979 65-1313634
Debtor Case Number

10-13844 10-13825 10-13892 10-13826 10-13853 10-13825 10-13867 10-13825 10-13876 10-13825 10-13877 10-13825 10-13879 10-13826 10-13881 10-13854 10-13882 10-13807 10-13804 10-13826 10-13813 10-13825 10-13823 10-13825 10-13840 10-13825 10-13852 10-13825 10-13887 10-13831 10-13871 10-13826 10-13803 10-13825 10-13806 10-13825 10-13808 10-13825 10-13810 10-13825 10-13809 10-13825 10-13812 10-13825 10-13814 10-13825 10-13815 10-13825 10-13817 10-13825 10-13818
Hampton Inn (Lombard, IL) Hampton Inn (Louisville, KY) Hampton Inn (Naples, FL) Hampton Inn (Schaumburg, IL) Hampton Inn (Westchester, IL) Hampton Inn (Willow Grove, PA) Hampton Inn (Woburn, MA) Hilton (Ontario, CA) Hilton Suites (Anaheim, CA ) Hyatt Summerfield Suites (Addison, TX) Hyatt Summerfield Suites (Belmont, CA) Hyatt Summerfield Suites (El Segundo, CA) Hyatt Summerfield Suites (Irving (Las Colinas), TX) Hyatt Summerfield Suites (Mt. Laurel, NJ) Homewood Suites (San Antonio, TX ) Independent Hotel (formerly Residence Inn) (Troy (Central), MI) Residence Inn (Addison, TX) Residence Inn (Altamonte Springs, FL) Residence Inn (Arlington, TX) Residence Inn (Atlanta (Downtown), GA) Residence Inn (Atlanta (Peachtree Corners), GA) Residence Inn (Bellevue, WA) Residence Inn (Binghamton, NY) Residence Inn (Bothell, WA) Residence Inn (Campbell, CA) Residence Inn
Property Owner: Grand Prix Lombard LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: KPA/GP Louisville (HI) LLC Operating Lessee: Grand Prix Floating Lessee LLC Property Owner: Grand Prix Naples LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Schaumburg LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Westchester LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Willow Grove LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Woburn LLC Operating Lessee: Grand Prix Floating Lessee LLC Property Owner: KPA HI Ontario LLC Operating Lessee: Grand Prix Ontario Lessee, LLC Property Owner: KPA HS Anaheim, LLC Operating Lessee: Grand Prix Anaheim Orange Lessee LLC Property Owner: Grand Prix Addison (SS) LLC Operating Lessee: Grand Prix Floating Lessee LLC Property Owner: Grand Prix Belmont LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix El Segundo LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Las Colinas LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Mt. Laurel LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: KPA San Antonio, LLC (f/k/a KPA San Antonio HS, LLC) Operating Lessee: Grand Prix General Lessee LLC Property Owner: Grand Prix Troy (Central) LLC Operating Lessee: Grand Prix Floating Lessee LLC Property Owner: Grand Prix Addison (RI) LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Altamonte LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Arlington LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Atlanta LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Atlanta (Peachtree Corners) LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Bellevue LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Binghamton LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Bothell LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Campbell / San Jose LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Cherry Hill LLC
2
K&E 17717044
Hotel Property

32-2299979 65-1313630 32-2299979 65-1313701 32-2299979 65-1313703 32-2299979 65-1313704 30-0424290 20-5446706 37-1544960 65-1313709 32-2299979 65-1313716 30-0424290 65-1313725 32-2299979 65-1313730 32-2299979 65-1313700 32-2299979 65-1313702 32-2299979 75-3249062 30-0424290 65-1313737 32-2299979 65-1313733 30-0424290 20-5446804 30-0424287 65-1313732 32-2299979 65-1313731 32-2299979 65-1313729 32-2299979 65-1313633 32-2299979 65-1313726 32-2299979 65-1313724 32-2299979 65-1313723 32-2299979 75-3249063 32-2299979 65-1313718 32-2299979 65-1313714
Debtor Case Number

10-13825 10-13821 10-13825 10-13824 10-13825 10-13827 10-13825 10-13829 10-13826 10-13885 10-13860 10-13830 10-13825 10-13834 10-13826 10-13841 10-13825 10-13843 10-13825 10-13845 10-13825 10-13846 10-13825 10-13872 10-13826 10-13851 10-13825 10-13855 10-13826 10-13886 10-13861 10-13856 10-13825 10-13857 10-13825 10-13858 10-13825 10-13819 10-13825 10-13864 10-13825 10-13865 10-13825 10-13866 10-13825 10-13874 10-13825 10-13868 10-13825 10-13869
(Cherry Hill, NJ) Residence Inn (Denver (Downtown), CO) Residence Inn (Englewood (Denver), CO) Residence Inn (Fremont, CA) Residence Inn (Ft. Wayne, IN) Residence Inn (Garden Grove, CA) Residence Inn (Germantown (Gaithersburg), MD) Residence Inn (Harrisburg, PA) Residence Inn (Lexington, KY) Residence Inn (Livonia (Detroit), MI) Residence Inn (Louisville, KY) Residence Inn (Lynnwood, WA) Residence Inn (Madison Heights (Troy (SE)), MI) Residence Inn (Mountain View, CA) Residence Inn (Ontario, CA) Residence Inn (San Diego (Mission Valley), CA) Residence Inn (Scarborough (Portland), ME) Residence Inn (Richmond (Northwest), VA) Residence Inn (Richmond (West), VA) Residence Inn (Rosemont (Chicago/OHare), IL) Residence Inn (Saddle River, NJ) Residence Inn (San Jose, CA) Residence Inn (San Mateo, CA) Residence Inn (Seattle (Tukwila), WA) Residence Inn (Shelton, CT) Residence Inn
Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Denver LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Englewood / Denver South LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Fremont LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Ft. Wayne LLC Operating Lessee: Grand Prix Floating Lessee LLC Property Owner: KPA RIGG, LLC Operating Lessee: Grand Prix RIGG Lessee LLC Property Owner: Grand Prix Gaithersburg LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Harrisburg LLC Operating Lessee: Grand Prix Floating Lessee LLC Property Owner: Grand Prix Lexington LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Livonia LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Louisville (RI) LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Lynnwood LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Troy (SE) LLC Operating Lessee: Grand Prix Floating Lessee LLC Property Owner: Grand Prix Mountain View LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Ontario LLC Operating Lessee: Grand Prix Floating Lessee LLC Property Owner: KPA RIMV, LLC Operating Lessee: Grand Prix RIMV Lessee, LLC Property Owner: Grand Prix Portland LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Richmond (Northwest) LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Richmond LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Chicago LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Saddle River LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix San Jose LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix San Mateo LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Tukwila LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Shelton LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Sili I LLC
3
K&E 17717044
Hotel Property

32-2299979 65-1313712 32-2299979 20-5561327 38-3759182 65-1313698 32-2299979 26-0492496 30-0424290 65-1313728 32-2299979 65-1313738 30-0424290 26-1925992 32-0205925 32-2299979 30-0424290 38-3759182 41-2239317 65-1027254 36-4610252 32-0205924 35-2299972 30-0424285 35-2299976 37-1544960 30-0424287 38-3759180 04-3750715 65-0493956 41-6563554 20-2162887 65-1177426
Debtor Case Number

10-13825 10-13870 10-13825 10-13888 10-13831 10-13878 10-13825 10-13862 10-13826 10-13835 10-13825 10-13850 10-13826 10-13801 10-13807 10-13825 10-13826 10-13831 10-13793 10-13837 10-13847 10-13798 10-13796 10-13848 10-13854 10-13860 10-13861 10-13799 10-13880 10-13794 10-13800 10-13883 10-13884
(Sunnyvale (Silicon Valley I), CA) Residence Inn (Sunnyvale (Silicon Valley II), CA) Residence Inn (Vienna (Tysons Corner), VA) Residence Inn (Windsor (Hartford), CT) Sheraton (Rockville, MD) TownePlace Suites (Horsham, PA) Westin (Morristown, NJ) Not Applicable
Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Sili II LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: KPA Tysons Corner RI, LLC Operating Lessee: Grand Prix General Lessee LLC Property Owner: Grand Prix Windsor LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Rockville LLC Operating Lessee: Grand Prix Floating Lessee LLC Property Owner: Grand Prix Horsham LLC Operating Lessee: Grand Prix Fixed Lessee LLC Property Owner: Grand Prix Morristown LLC Operating Lessee: Grand Prix Floating Lessee LLC GP AC Sublessee LLC Grand Prix Anaheim Orange Lessee LLC Grand Prix Fixed Lessee LLC Grand Prix Floating Lessee LLC Grand Prix General Lessee LLC Grand Prix Holdings LLC Grand Prix IHM, Inc. (f/k/a Innkeepers Hospitality Management, Inc.) Grand Prix Mezz Borrower Fixed, LLC Grand Prix Mezz Borrower Floating, LLC Grand Prix Mezz Borrower Floating 2, LLC Grand Prix Mezz Borrower Term LLC Grand Prix Ontario Lessee LLC Grand Prix RIGG Lessee LLC Grand Prix RIMV Lessee LLC Grand Prix Term Lessee LLC Innkeepers Financial Corporation Innkeepers USA Limited Partnership Innkeepers USA Trust (f/k/a Grand Prix Acquisition Trust) KPA Leaseco Holding Inc. KPA Leaseco, Inc.
4
K&E 17717044

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Status Conference Date: January 18, 2012 at 10:00 a.m.

Bankruptcy Code and Bankruptcy Rule 3007.

and liabilities [Docket No. 5].

[Concluded on Following Page]

New York, New York Dated: July 13, 2011

EXHIBIT A Proposed Order

granted pursuant to this Order in accordance with the Objection.

Honorable Shelley C. Chapman United States Bankruptcy Judge

EXHIBIT B Grand Prix Holdings LLC Schedule F

B6F (Official Form 6F) (12/07)

Grand Prix Holdings LLC

SCHEDULE F - CREDITORS HOLDING UNSECURED NONPRIORITY CLAIMS

$13.7M ANAHEIM CMBS MORTGAGE LOAN

$238M FLOATING RATE LEHMAN SENIOR MORTGAGE LOAN

Subtotal (Total of this page)

B6F (Official Form 6F) (12/07) - Cont.

Grand Prix Holdings LLC

SCHEDULE F - CREDITORS HOLDING UNSECURED NONPRIORITY CLAIMS

$25.6M MERRILL LYNCH CMBS MORTGAGE LOAN

$47.4M CAPMARK CMBS MORTGAGE LOAN

CONTRACT\AGREEMENT CONSENT AND AGREEMENT

Subtotal (Total of this page)

B6F (Official Form 6F) (12/07) - Cont.

Grand Prix Holdings LLC

SCHEDULE F - CREDITORS HOLDING UNSECURED NONPRIORITY CLAIMS

CONTRACT\AGREEMENT SUBSCRIPTION AGREEMENT

$121M FLOATING RATE MEZZANINE LOAN

F6: Codebtors Total Total

Subtotal (Total of this page)

EXHIBIT C Bar Data Motion

substantially in the form attached hereto as Exhibit A:

EXHIBIT D Bar Date Order

The filing of a proof of Claim shall be deemed to satisfy the procedural

EXHIBIT E Bar Date Notice

NOTICE OF DEADLINES AND PROCEDURES FOR FILING PROOFS OF CLAIM 1

Who Must File a Proof of Claim

Debtor Case Number

Related Debtor Entity1

Taxpayer Identification Number

Debtor Case Number

Related Debtor Entity1

Taxpayer Identification Number

Debtor Case Number

Related Debtor Entity1

Taxpayer Identification Number

Debtor Case Number

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