David M. Friedman Howard W. Schub Adam L. Shiff Daniel A.

Fliman KASOWITZ, BENSON, TORRES & FRIEDMAN LLP 1633 Broadway New York, New York 10019 Telephone: (212) 506-1700 Facsimile: (212) 506-1800 Counsel to Five Mile Capital II Pooling REIT LLC and Five Mile Capital Partners LLC UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

In re: INNKEEPERS USA TRUST, et al., Debtors.

Chapter 11 Case No. 10-13800 (SCC) (Jointly Administered)

JOINDER OF FIVE MILE CAPITAL II POOLING REIT LLC AND FIVE MILE CAPITAL PARTNERS LLC IN MOTION OF MIDLAND LOAN SERVICES FOR PROTECTIVE ORDER Five Mile Capital II Pooling REIT LLC and Five Mile Capital Partners LLC (collectively, Five Mile), by and through by their undersigned counsel, hereby joins in the Motion1 of Midland Loan Services (Midland) for a Protective Order, dated February 4, 2011 (the Motion), seeking protection from discovery certain topics of inquiry that are irrelevant to the Debtors Motion for Entry of an Order (i) Authorizing the Debtors to Enter into the Commitment Letter with Five Mile Capital II Pooling REIT LLC, Lehman ALI Inc., and Midland Loan Services, (ii) Approving the New Party/Midland Commitment Between the Debtors and Midland Loan Services, (iii), Approving Bidding Procedures, (iv), Approving Bid Protections, (v)
1

Unless otherwise defined, capitalized terms shall have the meaning set forth in the Motion.

Authorizing an Expense Reimbursement to Bidder D, and (vi) Modifying Cash Collateral Order to Increase Expense Reserve (the Bid Procedures Motion) (Docket No. 820). I. JOINDER TO MIDLANDS MOTION. Like Midland, Five Mile was served with numerous document requests and a request for deposition regarding, inter alia: (i) Five Miles relationship with Midland; (ii) communications and negotiations between and among Five Mile, Midland and Lehman; and (iii) information regarding Five Miles strategy in these bankruptcy cases, and its internal analyses and valuations. As explained in Midlands Motion, these Disputed Categories are completely irrelevant to the Debtors business judgment and approval of the Bid Procedures Motion.2 II. FIVE MILES INTERNAL VALUATIONS ARE IRRELEVANT AND INAPPROPRIATE FOR DISCOVERY. Moreover, it would be inappropriate to require Five Mile (or any bidder) to disclose its valuations or strategies to other parties and potential bidders, particularly where all parties have access to the Debtors financial data and records, and can conduct their own due diligence and perform their own valuations. See In re Innovative Commun. Corp., 434 B.R. 761, 768 (Bankr. D.V.I. 2010) (bidder did not have any obligation to disclose [its] valuation [of the purchased assets] or share the information with other potential bidders who were conducting their own due diligence.); In re Stewart Title Co., 2009 U.S. Dist. LEXIS 51559 at *5-6 (S. D. Tex. June 17, 2009) (granting bidders motion to quash subpoena for its confidential internal valuations of the company on the grounds that the defendant had access to the same financial data as the bidder and could perform or have its expert perform its own valuation). To hold otherwise, would put Five Mile at a severe competitive disadvantage and eviscerate the ability of Five Mile to
2

In addition to the Disputed Categories, Five Mile also objects to certain of the requests on other grounds (such as vagueness, overbreadth, undue burden, privilege), and expressly reserves its right to assert these grounds in response to specific requests and argue the relevance, discoverability or admissibility of other documents or testimony sought by the Objectors.

negotiate at arms length with the Debtors as part of the auction process that is laid out in the Bid Procedures Motion. It would also serve as a powerful disincentive to other entities to serve as stalking horse bidders in any sale process, which would undermine the ability of debtors to conduct a full and fair auction in connection with a sale of assets. Five Miles valuations are inherently irrelevant to the Bid Procedures Motion as the value of the Debtors assets will be tested through the proposed bidding process which expose the Five Mile / Lehman bid to higher and better bids. See In re Bakalis, 220 B.R. 525, 535 (Bankr. E.D.N.Y. 1998) (upholding bankruptcy courts decision denying prospective purchasers request for valuation and requiring it to bid according to its own estimate because prospective bidders are sophisticated entities able to utilize their considerable business acumen in assaying the risks and benefits of their bids); In re Alpha Indus., Inc., 84 B.R. 703, 706 (Bankr. D. Mont. 1988) (finding that purchaser paid fair value, despite the absence of an appraisal, where the purchasers bid was the highest bid after the assets under scrutiny were exposed to the market for a reasonable length of time). For the foregoing reasons, Five Mile joins in Midlands Motion for Protective Order, and requests that the relief sought in the motion be granted as to Five Mile in addition to Midland.

Dated: February 8, 2011 New York, New York KASOWITZ, BENSON, TORRES & FRIEDMAN LLP By: /s/ Daniel A. Fliman David M. Friedman Howard W. Schub Adam L. Shiff Daniel A. Fliman 1633 Broadway New York, New York 10019 Telephone: (212) 506-1700 Facsimile: (212) 506-1800