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12-60041-RBK Doc#: 856 Filed: 03/10/14 Entered: 03/10/14 08:24:35 Page 7 of 36On December 12, 2008, Spanish Peaks Development, LLC assigned the PinnacleRestaurant Lease to Pinnacle Restaurant at Big Sky, LLC, and on December 18, 2008, James J.Dolan, as manager for Spanish Peaks Development, LLC and Pinnacle Restaurant at Big Sky,LLC, and Douglas L. Hein, as Chief Financial Officer of Spanish Peaks Holdings, LLC, signedan Abstract of Ground Lease that was filed in Madison County on December 30, 2008.Finally, Spanish Peaks Holdings, LLC, as lessor, and Montana Opticom, LLC, as lessee,entered into a lease with an effective date of January 1, 2009 (“Opticom Lease”). The OpticomLease covered real property in Gallatin and Madison Counties, Montana described as “TheAndesite Gun Range Towers, The Rock, The Andesite Cell Tower, and the Andesite TVTowers.” The Opticom Lease commenced on January 1, 2009, and provides that it shall end atmidnight on December 31, 2068. The Opticom Lease contemplates annual rent of 1,285.00during the term of the lease. The Opticom Lease was signed by Douglas L. Hein as AssistantManager of Spanish Peaks Holdings, LLC and by James J. Dolan as Manager of MontanaOpticom, LLC. At the time, James J. Dolan was the Manager of Spanish Peaks Holdings, LLC.The Opticom Lease provided for the placement of certain telecommunication towers so thatmembers of the Spanish Peaks Resort could have telephone and related telecommunicationservices. The Opticom Lease was not recorded in either Gallatin County or Madison County.The Pinnacle Restaurant Lease relates to property located in Madison County, Montana,and the Opticom Lease relates to property located in Madison and Gallatin Counties, Montana.Pinnacle Restaurant at Big Sky, LLC has not operated the Pinnacle Restaurant since April of2011, but the Debtor-Affiliates argue they have not defaulted on either of the Leases and in fact,continue to incur obligations and make payments relating to the same, including, but not limited7

12-60041-RBK Doc#: 856 Filed: 03/10/14 Entered: 03/10/14 08:24:35 Page 8 of 36to, payment of real estate taxes. Pinnacle Restaurant at Big Sky, LLC and Montana Opticom,LLC also argue that they are continuing to maintain the leased property. Mark Bradford, theDirector of Grounds Operations for American Land Development, LLC testified that he visits thePinnacle Restaurant site two times per month to check propane levels and to make sure there areno broken windows or that a chimney has not fallen over. Bradford also visits the premises twicea year to inspect the fire suppression system, the plumbing, boilers, etc.III.Bankruptcy and the Sale of Substantially All The Debtors’ AssetsFacing numerous lawsuits and a troubled real estate market, the Debtors, on October 14,2011, commenced the above-captioned cases in the United States Bankruptcy Court for theDistrict of Delaware under Chapter 7 of the Bankruptcy Code. The petitions were signed onbehalf of the Debtors by their Chief Financial Officer, Douglas L. Hein. The Board of Managersfor Spanish Peaks Holdings II, LLC consisted of James J. Dolan, W. Dean Genge and Douglas L.Hein; and James J. Dolan was disclosed as the sole Manager for Spanish Peaks Lodge, LLC andThe Club at Spanish Peaks, LLC. Spanish Peaks Development, LLC was disclosed as the onlyentity owning directly or indirectly 10% or more of any class of equity interests in Spanish PeaksHoldings II, LLC; and Spanish Peaks Holdings II, LLC was disclosed as the only entity owningdirectly or indirectly 10% or more of any class of equity interests in Spanish Peaks Lodge, LLCand The Club at Spanish Peaks, LLC. James J. Dolan was disclosed as the “CEO & Manager” ofSpanish Peaks Holdings II, LLC.In the Statement of Financial Affairs filed on behalf of Spanish Peaks Holdings II, LLC,the Debtors disclosed eleven pending lawsuits: Byrne v. Whiting-Turner, et al; Spanish PeaksHoldings v. Boyne USA; Harbaugh et al v. Spanish Peaks et al; Hogan Corporation Services v.8

12-60041-RBK Doc#: 856 Filed: 03/10/14 Entered: 03/10/14 08:24:35 Page 9 of 36Spanish Peaks Lodge LLC; Spanish Peaks Lodge, LLC, et al v. KeyBank, et al; Spanish PeaksHoldings II, LLC, Successor to Spanish Peaks Holdings, LLC v. KeyBank, et al; JIM-N-1 Inc.dba Allied Steel v. Spanish Peaks Holdings, LLC; Cincinnati Insurance Co. v. Spanish PeaksHoldings, et al; Foster & Karol v. Spanish Peaks Holdings, et al; First American Title Companyv. Spanish Peaks Holdings; and Malcolm Drilling Company, Inc. v. Spanish Peaks Holdings II,LLC. Spanish Peaks Holdings II, LLC’s Schedule A disclosed that it owned approximatelysixteen parcels of real property located in Gallatin County, Montana and Madison County,Montana.Pursuant to a Memorandum Order entered by United States Bankruptcy Judge BrendenLinehan Shannon on January 10, 2012, the Debtors’ bankruptcy cases were transferred from theDistrict of Delaware to the District of Montana. On January 17, 2012, Ross P. Richardson wasappointed the Montana Chapter 7 Trustee. After notice and hearing, the Court entered an Orderon February 8, 2012, directing that the above-captioned bankruptcy cases would be jointlyadministered.In late 2012, the Trustee, with the agreement of the prepetition senior lender, SPAP,employed Eastdil Secured, LLC to market the Debtors’ property, identify prospective cashbuyers, qualify bidders, negotiate the highest offer, facilitate buyer due diligence, conduct anauction and provide testimony at any hearing held in connection therewith. In conjunction withemploying Eastdil Secured, LLC, the Trustee also entered into a Stipulation and Term Sheet withSPAP providing for the liquidation of substantially all of the Debtors’ real and personal property.See docket no. 238. The Trustee and SPAP recognized in the Stipulation that SPAP could likelyobtain relief from the automatic stay, if it so desired. The Stipulation provided, in part, that9

12-60041-RBK Doc#: 856 Filed: 03/10/14 Entered: 03/10/14 08:24:35 Page 10 of 36SPAP would “waive any and all of its unsecured claim against the Estates, including anydeficiency claim[,]” and further provided that SPAP would:[P]ay at closing a “carve out” from the proceeds of sale of the Property, whetherby cash sale or credit bid, of 750,000 for distribution as provided underapplicable provisions of the Code to the creditors of Holdings and Club. In theevent of a cash sale of the Property exceeds 20,000,000, SPAP will also pay theTrustee 2% of the net proceeds of sale. SPAP retains the right to credit bid for theProperty in accordance with 11 U.S.C. § 363(k); provided, however, SPAP hasagreed not to submit a credit bid in excess of 20,000,000.The Trustee’s proposed sales procedure order, attached as Exhibit D to the Term Sheet, providedthat the Trustee intended to sell substantially all of the Debtors’ property pursuant to 11 U.S.C. §363 and also provided:Sale Free and Clear of Liens, Claims, Interests and EncumbrancesPursuant to Section 363(f) of the Bankruptcy Code, all of the Debtors’right, title and interest in and to the Property will be transferred free and clear ofall liens, claims, encumbrances and other interests in the Property other than thePermitted Encumbrances set forth in Exhibit D. . . Any other perfected,enforceable, valid liens, claims, interests and encumbrances (if any) will bedischarged by the order approving the sale and attach to the sale proceeds subjectto adjudication of the validity and priority of any such liens, claims, interests orencumbrances by a court of competent jurisdiction.The attached Exhibit D, Permitted Encumbrances, identified as permitted encumbrances: “(a)Reservations and exceptions in any patent from the United States or the State of Montana; (b)Existing easements and rights of way; (c) All building, use, zoning, sanitary and environmentalrestrictions; (d) Taxes and assessments for the calendar year Closing occurs; and (e) Otherencumbrances acceptable to the Successful Bidder in its sole discretion.”Prior to approval of the Stipulation and Term Sheet between the Trustee and SPAP, butconsistent with the Stipulation and Term Sheet, the Trustee filed on January 15, 2013, a motion10

12-60041-RBK Doc#: 856 Filed: 03/10/14 Entered: 03/10/14 08:24:35 Page 11 of 36pursuant to 11 U.S.C. §§ 105(a), 363(b) and 363(f) seeking first, entry of an order approving theTrustee’s bid procedures and second, following a subsequent hearing, entry of a sales order. Seedocket no. 281. The identified Permitted Encumbrances were the same as previously identifiedby the Trustee in Exhibit D attached to the Term Sheet. On February 22, 2013, the DebtorAffiliates filed opposition to the Trustee’s January 15, 2013, motion, in part arguing that if theTrustee rejected the Debtor-Affiliates’ leases, the Debtor-Affiliates would nevertheless elect to“retain [their] rights, including [their] rights to remain in possession of the nonresidential realproperty that is the subject of the Leases, for the balance of the term of the Leases and for anyrenewal or extension of such rights that are provided for in the Leases.” The Debtor-Affiliatessubsequently entered into a stipulation with the Trustee agreeing that the Court could approve theTrustee’s bid procedures, but reserving the Debtor-Affiliates’ objections, including the § 365(h)objection, as it would relate to any sale order.While the foregoing matters were pending, but prior to any hearing, Big Sky Resort LLCand Boyne USA, Inc. filed on February 8, 2013, a notice indicating that the Trustee had failed toassume or reject a Ground Lease between Spanish Peaks Holdings II, LLC [successor by mergerto Spanish Peaks Holdings, LLC], as lessor, and Big Sky Resort LLC and Boyne USA, Inc., aslessees, and that Big Sky Resort LLC and Boyne USA, Inc. were electing to retain their “rightsunder the Ground Lease, including, but not limited to, its ‘right of use, possession [and] quietenjoyment’ of the leasehold premises for the remainder of the balance of the ninety-nine (99)year term of the Ground Lease and any and all remaining ninety (90) year renewals provided bythe Ground Lease.” In response, the Trustee filed a motion on March 20, 2013, seeking toassume the Ground Lease between Spanish Peaks Holdings II, LLC, and Big Sky Resort LLC11

12-60041-RBK Doc#: 856 Filed: 03/10/14 Entered: 03/10/14 08:24:35 Page 12 of 36and Boyne USA, Inc.2 On May 29, 2013, the Court granted the Trustee’s motion to assume thatground lease, finding in part that the ground lease was not deemed rejected under the BankruptcyCode.3Following notice and hearing, the Stipulation and Term Sheet entered into between theTrustee and SPAP were approved on March 5, 2013. That same date, the Court entered an Orderapproving the Trustee’s proposed bid procedures, subject to various reservations of rights,including those of the Debtor-Affiliates.On April 26, 2013, at docket no. 492, the Trustee filed a “Notice of ‘Highest Offer’”identifying Satterfield SP Acquisition LLC as having the “Highest Offer” in connection with theauction and sale hearing to be held on June 3, 2013. Attached to the Notice was an AssetPurchase Agreement, and attached thereto was Exhibit G, Assigned Contracts, which identifiedonly the Ground Lease between Big Sky Ridge, LLC and Spanish Peaks Holdings, LLC[subsequently Spanish Peaks Holdings II, LLC, by merger], as lessors, and Boyne USA, Inc. andBig Sky Resort, LLC, as lessees. On May 31, 2013, the Trustee refiled at docket no. 560-19,Exhibit G to the Asset Purchase Agreement, which again identified the Ground Lease betweenBig Sky Ridge, LLC and Spanish Peaks Holdings, LLC [subsequently Spanish Peaks Holdings II,LLC, by merger], as lessors, and Boyne USA, Inc. and Big Sky Resort, LLC, as lessees, as theonly assumed contract. Almost twenty months to the day after the Debtors filed their bankruptcy2The Ground Lease involving Big Sky Resort LLC and Boyne USA, Inc. provides theSpanish Peaks Resort with ski in/ski out access to Big Sky Ski Resort. See Memorandum ofDecision, docket entry no. 547, p. 11-13.3The Court’s Memorandum of Decision and Order regarding the ground lease withBoyne USA, Inc. and Big Sky Resort, LLC is found at docket nos. 547 and 548.12

12-60041-RBK Doc#: 856 Filed: 03/10/14 Entered: 03/10/14 08:24:35 Page 13 of 36petitions, the Court entered on June 13, 2013, an “Amended Order Approving Sale of PropertyFree of Liens, Claims, Interests and Encumbrances” (“Sale Order”). The Sale Order followed anauction held June 3, 2013, and as set forth in the Sale Order, the auction resulted in a highest bidby the senior prepetition lien holder, CH SP Acquisition LLC, in the amount of 26,100,000.00and a second highest bid by Satterfield SP Acquisition, LLC in the amount of 26,000,000.00.On June 13, 2013, CH SP Acquisition, LLC filed a “Successful Bidder’s Notice of Lodging ofCh SP Acquisition LLC Asset Purchase Agreement.” Exhibit G, Assigned Contracts, remainedunchanged from the prior Exhibit G filed on April 26, 2013. Of the sales proceeds, 24,910,999.00 was applied to the first position secured claim of CH SP Acquisition, LLC, 1,185,511.00 went to the Spanish Peaks Holdings II, LLC Bankruptcy Estate, and 3,490.00went to The Club at Spanish Peaks, LLC Bankruptcy Estate.Throughout the sales process, the Trustee did not give a lot of thought to the PinnacleRestaurant Lease or the Opticom Lease. Stephan Garden (“Garden”), a financial advisoremployed by the Trustee, testified that he and the Trustee quickly concluded that the status of theLeases would not significantly impact the price paid for the Debtors’ assets. Garden testified thatSatterfield SP Acquisition, LLC had indicated that if it ultimately purchased the Debtors’ assetsthat it would deal with the Pinnacle Restaurant Lease and the Opticom Lease post-closing,advising the Trustee that it “really want[ed] the asset, and the Pinnacle Restaurant [was]immaterial[.]”On July 3, 2013, Resort Capital Partners SP1, LLC, Spanish Peaks Development, LLC,Montana Opticom, LLC and related affiliates filed a motion for clarification of the Sale Order,asking the Court to affirm that Resort Capital Partners SP1, LLC, Spanish Peaks Development,13

12-60041-RBK Doc#: 856 Filed: 03/10/14 Entered: 03/10/14 08:24:35 Page 14 of 36LLC, Montana Opticom, LLC and related affiliates could avail themselves, by separate motion,to any rights they might have under 11 U.S.C. § 365(h). The Court denied that motion.On September 12, 2013, the Trustee filed a motion to reject the Pinnacle RestaurantLease and the Opticom Lease on grounds “the Estates no longer possess the property that is thesubject of the Leases. Therefore, the Trustee must reject the leases, pursuant to his authority to doso under 11 U.S.C. § 365(a).” After receiving no timely objection, the Court, on October 1,2013, granted the Trustee’s motion to reject the Pinnacle Restaurant Lease and the OpticomLease.IV.Claims Against the DebtorsGarden testified that “there’s about 200 million of claims that have been filed against”Spanish Peaks Holdings II, LLC. Garden explained that approximately 122 million wasattributable to the Citigroup mortgage. Boyne USA, Inc. asserted a claim of 8,816,390.78 inoverride claims and another 10 million was attributable to deposits paid on yet-to-be-builthomes. Garden testified that construction lien claimants represented another large category ofclaims, which included a 13 million claim asserted by dck Worldwide Holdings, Inc., asassignee of Dick Construction Company. First Interstate Bank filed a claim of 12,120,305.78and finally, the Debtor-Affiliates have collectively asserted claims totaling roughly 21,013,337.00.V.Estate Claims Against the Debtor-AffiliatesGarden also testified that he and the Trustee, after going through various books andrecords, concluded that five Debtor-Affiliates received insider preference payments ofapproximately 571,657.00 from The Club at Spanish Peaks, LLC in the twelve months before14

12-60041-RBK Doc#: 856 Filed: 03/10/14 Entered: 03/10/14 08:24:35 Page 15 of 36the date of the filing of the petition, and that eleven Debtor-Affiliates received insider preferencepayments of approximately 3,199,576.00 from Spanish Peaks Holdings II, LLC (which includeda 1.5 million transfer to Spanish Peaks Development, LLC, 538,000 in wire transfers toAmerican Land Development, and transfers totaling 1,118,353 to various Voyager entities) inthe twelve months before the date of the filing of the petition. As noted above, Spanish PeaksDevelopment, LLC received 1.5 million from Spanish Peaks Holdings II, LLC, but Gardentestified that Spanish Peaks Development, LLC “appears to be just a holding company with noassets and significant negative equity book value.”Garden and the Trustee also concluded that approximately 2.2 million of the transferswere for services, including management services, which were provided to the Debtors by theDebtor-Affiliates. Garden noted that nine payments made to various Voyager entities totalingapproximately 900,000, nine payments made to American Land Development totalingapproximately 538,000 and ten payments to Ascent totaling approximately 260,000, were allmade within five days of the end of any given month. With respect to the transfers made forservices, Garden and the Trustee estimated that the services were billed at rates that were 30percent over market, leaving the Debtors with a potential claim of approximately 660,000.00.Garden also described a transaction between the Debtors and Ousel Falls, LLC involving thetransfer of a partially finished cabin, but did not ascribe any dollar amount to any potential claimassociated therewith.Garden approached the Debtor-Affiliates early on about trying to resolve the allegedfraudulent and preferential transfer claims. Garden testified that the Debtor-Affiliates “weren’treally willing to discuss or even negotiate anything with us initially.” The Trustee eventually15

12-60041-RBK Doc#: 856 Filed: 03/10/14 Entered: 03/10/14 08:24:35 Page 16 of 36drafted, but did not file, a complaint alleging that: (1) the Debtor-Affiliates were the transferorsor transferees of various fraudulent and preferential transfers of the Debtors’ assets precedingtheir filing for bankruptcy protection on October 14, 2011; and (2) James J. Dolan breached hisfiduciary duties. As the Trustee got closer to filing the complaint, Garden testified that theDebtor-Affiliates “came back and started . . . having discussion about a settlement.

On December 12, 2008, Spanish Peaks Development, LLC assigned the Pinnacle Restaurant Lease to Pinnacle Restaurant at Big Sky, LLC, and on December 18, 2008, James J. Dolan, as manager for Spanish Peaks Development, LLC and Pinnacle Restaurant at Big Sky, LLC, and Douglas L. Hein, as Chief Financial Officer of Spanish Peaks Holdings, LLC, signed