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  • 1. IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: Chapter 11 Cordillera Golf Club, LLC, 1 Case No. 12-11893 (CSS) dba The Club at Cordillera, Hearing Date: July 27,2012 at 1:00 p.m. (ET) Debtor. Objection Deadline: July 20, 2012 at 4:00 p.m. (ET) DEBTORS APPLICATION FOR AN ORDER (I) AUTHORIZING RETENTION OF GA KEEN REALTY ADVISORS, LLC AS REAL ESTATE ADVISOR FOR THE DEBTOR AND DEBTOR IN POSSESSION NUNC PRO TUNC TO THE PETITION DATE AND (II) WAIVING CERTAIN REQUIREMENTS OF LOCAL RULE 2016-2 Cordillera Golf Club, LLC, dba The Club at Cordillera, the debtor and debtor in possession in the above-captioned case (the "Debtor"), by and through its proposed undersigned counsel, hereby submits this application (the "Application") for entry of an order, substantially in the form attached hereto as Exhibit B (the "Order"), pursuant to sections 327(a) and 328(a) of title 11 ofthe United States Code, 11 U.S.C. §§ 101-1532 (the "Bankruptcy Code") and Rules 2014 and 2016 of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules") and Rule 2014-1 ofthe Local Rules ofBankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of Delaware (the "Local Rules"), authorizing the retention and employment of GA Keen Realty Advisors, LLC ("GA Keen Realty") as real estate advisor to the Debtor nunc pro tunc to the Petition Date (as defined below). Additionally, the Debtor requests a waiver of certain requirements of Rule 2016-2 of the Local Rules, as more fully set out below. In support of the Application, the Debtor relies upon the Declaration ofDisinterestedness of GA Keen Realty Advisors, LLC and Great American Group, LLC its Managing Member (the 1 The Debtor in this chapter 11 case, and the last four digits of its employer tax identification number, is: XX- XXX1317. The corporate headquarters address for the Debtor is 97 Main Street, Suite E202, Edwards, CO 81632.01:12239656.9
  • 2. "Declaration"), attached hereto as Exhibit A. In further support of the Application, the Debtor respectfully states as follows: JURISDICTION 1. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the Amended Standing Order of Reference from the United States District Court for the District of Delaware, dated as of February 29, 2012. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2), and the Court may enter a final order consistent with Article III of the United States Constitution. Venue is proper in this Court pursuant to 28 U.S.C. §§ 1408 and 1409. The statutory and legal predicates for the relief requested herein are sections 327(a) and 328(a) of the Bankruptcy Code and Bankruptcy Rules 2014 and 2016 and Local Rules 2014-1 and 2016-2. GENERAL BACKGROUND 2. On June 26, 2012 (the "Petition Date"), the Debtor filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. The Debtor has continued in possession of its properties and has continued to operate and maintain its business as a debtor in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. 3. On July 6, 2012, the Office of the United States Trustee for the District of Delaware (the "U.S. Trustee") appointed an official committee of unsecured creditors (the "Committee") [Docket No. 86]. No request has been made for the appointment of a trustee or examiner in this case. 4. A description of the Debtors business, the reasons for commencing this chapter 11 case, and the relief sought from the Court to allow for a smooth transition into chapter 11 are set forth in the Declaration of DanielL. Fitchett, Jr. in support of Chapter 11 Petitions01:12239656.9 4
  • 3. and First Day Relief[Docket No. 2] (the "First Day Declaration"), filed on the Petition Date and incorporated by reference herein.2 RELIEF REQUESTED 5. The Debtor has determined, in its business judgment, that it has a need for a qualified real estate professional to assess the highest and best use of real property that the Debtor owns in fee (collectively, the "Owned Property") and to assist the Debtor with respect to the matter set forth in ,-r 10 hereof. 3 The Debtor has also determined that, in its sound business judgment, the retention and employment of GA Keen Realty, who has substantial experience in handling real estate and consulting matters in the chapter 11 context, will provide substantial benefit to the estate because GA Keen Realty is well suited to assist the Debtor and handle the capital infusion need for its business. Accordingly, the Debtor seeks to employ and retain GA Keen Realty on the terms and conditions set forth in the retention agreement dated June 13, 2012 (the "Retention Agreement"), a copy of which is attached hereto as Exhibit C. BASIS FOR THE RELIEF REQUESTED 6. Bankruptcy Code section 327(a) provides, in relevant part, as follows: [T]he trustee, with the courts approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustees duties under this title. 11 U.S.C. § 327(a). 7. Bankruptcy Code section 328(a) provides, in relevant part, as follows: 2Capitalized terms not otherwise defmed herein shall have the meaning attributed to them in the First Day Declaration. 3 A comprehensive list of the Owned Property is attached as Exhibit A to the Retention Agreement.01:12239656.9 5
  • 4. The trustee ... with the courts approval, may employ or authorize the employment of a professional person under section 327 ... of this title ... on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, on a fixed or percentage fee basis, or on a contingent fee basis. Notwithstanding such terms and conditions, the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions. 11 U.S.C. § 328(a). 8. Bankruptcy Rule 2014 provides, in relevant part, as follows: An order approving the employment of. . . auctioneers ... pursuant to § 327 ... of the Code shall be made only on application of the trustee or committee. Fed R. Bankr. P. 2014 9. GA Keen Realty is qualified to serve as the Debtors real estate advisor in this chapter 11 case. GA Keen Realty, its principals, and/or its predecessor entities has served as real estate advisor and consultant for over 30 years and has a significant knowledge ofthe Debtors real estate. GA Keen Realty has been working with the Debtor since May 2012 and, as noted above, signed the Retention Agreement with the Debtor on June 13, 2012. GA Keen Realty has an understanding of the Debtors real estate and the Debtors business and has access to sources of capital for the Debtors business. Generally, GA Keen Realty has experience in virtually all aspects of the finance of real property and in advising companies with respect thereto. Further, GA Keen Realty, its professionals, and/or predecessor entities frequently serve as real estate advisors to debtors or other constituents in other large bankruptcy cases in Delaware and other jurisdictions, including: Friendly Ice Cream Corporation, Service Merchandise Company, The Penn Traffic Company, Brown Schools, Bruener Home Furnishings, Cable & Wireless, and Montgomery Ward, to name a few.01:12239656.9 6
  • 5. 10. The Debtor intends to employ GA Keen Realty on the terms and conditions set forth in the Retention Agreement to provide various services related to potential transactions, including, but not limited to: (1) the raising of debt and/or equity capital and/or the closing of a joint-venture in order to (a) fund a plan of reorganization, (b) refinance the Owned Property, (c) recapitalize the Debtor or an entity owned or controlled by the Debtor, (d) buy all or a portion of the secured debt currently encumbering the Owned Property, and/or (e) provide DIP financing and/or, if warranted and appropriate under the circumstances, (2) the sale or transfer of title of one or more Owned Properties. 4 More specifically, GA Keen Realtys services may include, but are not limited to, the following: • Assisting the Debtor in developing and organizing due diligence materials and in preparing an offering memorandum; • Developing, subject to the Debtors review and approval, a financing plan and implementing each facet of the financing plan; • Assisting the Debtor in identifying, contacting, and screening potential parties to a transaction; • Assisting the Debtor in arranging for potential parties to a transaction to conduct due diligence in connection with a potential transaction and, as appropriate, assisting the Debtor to prepare a due diligence data room and to coordinate the due diligence investigations of potential parties to a transaction; • Communicating regularly with prospects and maintaining records of such communications; 4 All descriptions of the terms of the Retention Agreement are provided in the Application for convenience only and are qualified by the terms of the Retention Agreement. In the event of a conflict between the terms of the Retention Agreement and the Application, the Retention Agreement shall control. Parties are strongly encouraged to read the Retention Agreement.01:12239656.9 7
  • 6. • Communicating regularly with the Debtor and its professional advisors in connection with the status of its efforts; • Advising the Debtor on strategies for negotiating with creditors and participating in meetings or negotiations with creditors in connection with a transaction; • Assisting the Debtor in evaluating, structuring, negotiating, and implementing the terms and conditions of a proposed transaction; • Subject to a separate agreement, providing testimony in court, on behalf of the Debtor, as necessary and appropriate; and • Working with the attorneys responsible for the implementation of the proposed transaction, reviewing documents, negotiating and assisting in resolving problems that may arise. 11. Pursuant to the terms of the Retention Agreement, GA Keen Realty will receive compensation in the form of an incentive-based transaction fee (the "Transaction Fee"). The Transaction Fee is summarized below: (i) Transaction Fee: When the Debtor closes a transaction, subject to certain exceptions described in the Retention Agreement, GA Keen Realty shall have earned compensation per transaction equal to: (a) With respect to equity and preferred equity, six percent (6%) of Gross Proceeds (as defined in the Retention Agreement); (b) With respect to junior or mezzanine debt, four percent (4%) of Gross Proceeds; (c) With respect to senior debt, two percent (2%) of Gross Proceeds; and/or (d) With respect to the sale of one or more properties, five percent ( 5%) of Gross Proceeds. (ii) Minimum Transaction Fee: At conclusion of the Term (as defined in the01:12239656.9 8
  • 7. Retention Agreement), if GA Keen Realty has not earned a minimum of $350,000 (the "Minimum Transaction Fee"), then the Debtor shall pay GA Keen Realty the difference between the Minimum Transaction Fee and the amount of Transaction Fees earned by GA Keen Realty. The Retention Agreement also provides that the Debtor will reimburse GA Keen Realty for its reasonable and necessary out-of-pocket expenses. 12. The incentive-based fee is appropriate under section 328(a) of the Bankruptcy Code. The Debtor submits that the rate ofGA Keen Realtys fees is appropriate and is in an amount typical of GA Keen Realtys relationships with its other clients, in and out of chapter 11 proceedings. 13. Additionally, the Debtor requests a waiver of the application and information requirements of Local Rule 2016-2(d). GA Keen Realty seeks compensation on an incentive-fee basis. These fees are customary for the services provided by GA Keen Realty to chapter 11 debtors in the ordinary course of GA Keen Realtys business and in the commercial real estate industry. As such, submission of detailed time entry is unnecessary and would be unduly burdensome to GA Keen Realty. Accordingly, the Debtor requests that the requirements of Local Rule 2016-2(d) be waived pursuant to Local Rule 2016-2(g). 14. Given the transactional nature ofGA Keen Realtys services and fee structure, GA Keen Realty has advised the Debtor that it seeks relief from complying with fee application requirements and shall be compensated in accordance with the procedures set forth in the Application and Retention Agreement and such procedures as may be fixed by order of this Court. Given the transactional nature ofGA Keen Realtys engagement and subject to Court approval, GA Keen Realty will not be billing the Debtor by the hour and will not be keeping01:12239656.9 9
  • 8. records of time spent for professional services rendered in this chapter 11 case. GA Keen Realty will, however, be keeping reasonably detailed descriptions of the services that were rendered pursuant to its engagement. GA Keen Realty has already been successful in arranging a DIP financing commitment for the Debtor. 15. To the best of the Debtors knowledge, information and belief, other than as set forth herein or in the Declaration, GA Keen Realty has not represented and has no relationship with: (i) the Debtor; (ii) the Debtors twenty largest unsecured creditors; (iii) the Debtors member or manager; (iv) the Debtors prepetition secured lender; (v) the Debtors proposed post-petition secured lender; (vi) the Official Committee of Unsecured Creditors; (vii) the respective attorneys and accountants of any of the foregoing; or (viii) the United States Trustee or any person employed in the Office of the United States Trustee for the District of Delaware, in any matter relating to this case. 16. Additionally, other than as set forth herein or in the Declaration, GA Keen Realty believes it: (a) neither holds nor represents any interest adverse to the Debtor or the Debtors estate on matters for which it is to be retained; (b) has no prior connection with the Debtor, its creditors or any other party in interest; and (c) is a "disinterested" person as such term is defined in section 101(14) ofthe Bankruptcy Code. 17. Pursuant to the terms of the Retention Agreement, the Debtor has agreed to indemnify and hold harmless GA Keen Realty, Great American Group, LLC, their respective affiliates, and their respective directors, officers, employees, agents, representatives, and controlling persons (collectively, the "Indemnified Parties"). Notwithstanding the terms of the Retention Agreement, the Debtors indemnification obligations shall be modified as follows: (a) The Indemnified Parties shall not be entitled to indemnification, contribution, or reimbursement for services other than the services01:12239656.9 10
  • 9. provided under the Retention Agreement, unless such services and the indemnification, contribution, or reimbursement therefor are provided for in the Retention Agreement and approved by the Court; (b) Notwithstanding anything to the contrary in the Retention Agreement, the Debtor shall have no obligation to indemnify any person, or provide contribution or reimbursement to an Indemnified Party, for any claim or expense that is either: (i) judicially determined (the determination having become final and no longer subject to appeal) to have arisen from an Indemnified Partys gross negligence or willful misconduct; (ii) for a contractual dispute in which the Debtor alleges the breach of an Indemnified Partys contractual obligations unless the Court determines that indemnification, contribution, or reimbursement would be permissible pursuant to In reUnited Artists Theatre Co., 315 F.3d 217 (3d Cir. 2003); or (iii) settled prior to a judicial determination as to the exclusions set forth in clauses (i) and (ii), but determined by this Court, after notice and a hearing, to be a claim or expense for which an Indemnified Party should not receive indemnity, contribution, or reimbursement under the terms of the Retention Agreement as modified by this Order; and (c) If, before the earlier of (i) the entry of an order confirming a chapter 11 plan in this case (that order having become a final order no longer subject to appeal), and (ii) the entry of an order closing this chapter 11 case, an Indemnified Party believes that it is entitled to the payment of any amounts by the Debtor on account of the Debtors indemnification, contribution, or reimbursement obligations under the Retention Agreement, including without limitation the advancement of defense costs, the Indemnified Party must file an application before this Court, and the Debtor may not pay any such amounts to the Indemnified Party before the entry of an order by this Court approving the payment. This subparagraph (c) is intended only to specify the period of time under which the Court shall have jurisdiction over any request for payment by an Indemnified Party for indemnification, contribution, or reimbursement, and not a provision limiting the duration of the Debtors obligation to indemnify the Indemnified Parties. 18. The Debtor believes that the retention of GA Keen Realty to act as its real estate advisor to raise debt and/or equity capital for the Debtor is in the best interest of the Debtor, its estate, and its creditors. Accordingly, the Debtor submits that this Court should authorize the retention and employment of GA Keen Realty, nunc pro tunc to the Petition Date, and should grant the waiver of Local Rule 2016-2(d) requested herein.01:12239656.9 11
  • 10. NOTICE 19. Notice of this Motion has been provided to: (i) the Office of the United States Trustee; (ii) the Office of the United States Attorney for the District of Delaware; (iii) counsel to the Official Committee of Unsecured Creditors; (iv) counsel to prepetition secured lenders; (v) counsel to proposed post-petition secured lender; and (vi) all parties requesting notice pursuant to Bankruptcy Rule 2002. In light of the nature of the relief requested herein, the Debtor submits that no other or further notice is necessary. NO PRIOR REQUEST 20. The Debtor has not previously sought the relief requested herein from this or any other Court. WHEREFORE, for the above-stated reasons, the Debtor respectfully requests that the Court enter the order attached hereto as Exhibit B, (i) authorizing the Debtor to retain GA Keen Realty, nunc pro tunc to the Petition Date, as real estate advisor for the Debtor in this chapter 11 case; (ii) waiving Local Rule 2016-2(d); and (iii) granting such other and further relief as the Court deems just and proper. Dated: Wilmington, Delaware CORDILLERA GOLF CLUB, LLC July 10, 2012 Is/ DanielL. Fitchett Jr. Daniel L. Fitchett, Jr. Chief Executive Officer On Behalf of the Debtor and Debtor in Possession01:12239656.9 12
  • 11. IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: Chapter 11 Cordillera Golf Club, LLC, 1 Case No. 12-11893 (CSS) dba The Club at Cordillera, Hearing Date: July 27,2012 at 1:00 p.m. (ET) Debtor. Objection Deadline: July 20, 2012 at 4:00 p.m. (ET) NOTICE OF APPLICATION TO: (A) THE OFFICE OF THE UNITED STATES TRUSTEE; (B) THE OFFICE OF THE UNITED STATES ATTORNEY FOR THE DISTRICT OF DELAWARE; (C) COUNSEL TO THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS; (D) COUNSEL TO PREPETITION SECURED LENDERS; (E) COUNSEL TO PROPOSED POST-PETITION SECURED LENDER; AND (F) ALL PARTIES THAT HAVE REQUESTED NOTICE PURSUANT TO FEDERAL RULE OF BANKRUPTCY PROCEDURE 2002 PLEASE TAKE NOTICE that the above-captioned debtor and debtor in possession (the "Debtor") filed the attached Debtors Application for an Order (I) Authorizing Retention of GA Keen Realty Advisors, LLC as Real Estate Advisor for the Debtor and Debtor in Possession Nunc Pro Tunc to the Petition Date and (II) Waiving Certain Requirements of Local Rule 2016-2 (the "Application"). PLEASE TAKE FURTHER NOTICE that responses, if any, to the Application must be filed with the United States Bankruptcy Court for the District of Delaware, 824 N. Market Street, 3rd Floor, Wilmington, Delaware 19801 on or before July 20,2012 at 4:00P.M. (ET) (the "Objection Deadline"). At the same time, you must serve a copy of your response upon the undersigned counsel. PLEASE TAKE FURTHER NOTICE THAT A HEARING ON THE APPLICATION WILL BE HELD ON JULY 27,2012 AT 1:00 P.M. (ET) BEFORE THE HONORABLE CHRISTOPHER S. SONTCHI, IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE, 824 N. MARKET STREET, 5TH FLOOR, COURTROOM NO.6, WILMINGTON, DELAWARE 19801. 1The Debtor in this chapter 11 case, and the last four digits of its employer tax identification number, is: XX- XXX1317. The corporate headquarters address for the Debtor is 97 Main Street, Suite E202, Edwards, CO 81632.01:12239656.9
  • 12. PLEASE TAKE FURTHER NOTICE THAT IF YOU FAIL TO RESPOND TO THE APPLICATION IN ACCORDANCE WITH THIS NOTICE, THE COURT MAY GRANT THE RELIEF REQUESTED THEREIN WITHOUT FURTHER NOTICE OR A HEARING. Dated: Wilmington, Delaware FOLEY & LARDNER LLP July 10, 2012 Christopher Celentino Erika Moribita Mikel Bistrow Admitted Pro Hac Vice 402 West Broadway, Suite 2100 San Diego, California 92101 Telephone: (619)234-6655 Facsimile: (619) 234-3510 -and- YOUNG CONAWAY STARGATT & TAYLOR, LLP Is/ Donald J Bowman, Jr. Michael R. Nestor (No. 3526) Joseph M. Barry (No. 4221) Donald J. Bowman, Jr. (No. 4383) Justin P. Duda (No. 5478) Rodney Square 1000 N. King Street Wilmington, Delaware 19801 Telephone: (302) 571-6600 Facsimile: (302) 571-1253 Proposed Counsel for Debtor and Debtor in Possession01:12239656.9
  • 13. EXHIBIT A Declaration01:12239656.9
  • 14. UNITED STATES BANKRUPTCY COURTDISTRICT OF DELAWARE--------------------------------xIn re: Chapter 11CORDILLERA GOLF CLUB, LLC CASE NO. 12-11893-CSS Debtor.--------------------------------xDECLARATION OF DISINTERESTEDNESS OF GA KEEN REALTY ADVISORS, LLC AND GREAT AMERICAN GROUP, LLC ITS MANAGING MEMBER Mark P. Naughton, of full age, under penalty of petjury pursuant to 28 USC Section1746, declares: 1. I am Senior Vice President and General Counsel of Great American Group,LLC ("GAG"), the managing member of GA Keen Realty Advisors, LLC ("GA Keen"). 2. GA Keen is a "disinterested person" within the meaning of 11 U.S.C. Section101(14). GA Keen has no business, professional or other connection with the Debtor hereinor with their attorneys, and does not represent, nor will it represent, any interest adverse tothe estate in the matters in which it is to be engaged, except as set forth in paragraph 4below. 3. GA Keen is not employed or connected with the Debtor, any creditor, orother party in interest, their respective attomeys and accountants, except as set forth inparagraph 4 below. GAG and GA Keen have reviewed creditors lists provided to them byDebtors counsel and base their disclosures on such lists.
  • 15. Cordillera Go/f(lub. LLCGA Keen Really AdlisorsJune 26. 2012Page 2 of3 4. From its review of the list of creditors herein, GAG and GA Keen have hasdetennined that the following relationships should be disclosed: a. Great American Appraisal and Valuation Services, LLC ("GAAV), an affiliate ofthe GAG, has performed appraisal work (or may perform appraisal work) on matters unrelated to this chapter 11 case forGE Capital Corporation, Alpine Bank, CIT Group, Key Bank, Sun Life Financial, US Bank and Wells Fargo (Wells Fargo Financial Leasing is listed as a creditor of the Debtor), and may have performed appraisal work for Nebraska National Bank. b. GAG and GA Keen have or had vendor relationships with American Express, Federal Express and AT&T, each of which is unrelated to chapter 11 case. c. Great American has been or may have been retained in other matters unrelated to these chapter 11 cases in which certain professionals listed as creditors in this case (including Irell & Manella, Katten Muchin and Greenberg Traurig) were also retained.GA Keen may have represented in the past, may currently represent, and likely in the futurewill represent parties in interest in connection with matters unrelated to the Debtor and thisChapter 11 Case. As part of its practice, GA Keen also appears in cases, proceedings andtransactions involving many different attorneys and accountants, some of which mayrepresent claimants and parties-in-interest in this Chapter 11 Case. GA Keen does notrepresent any such entity in connection with this Chapter 11 Case or have any relationshipwith any such entity, attorneys, accountants or advisors that would be adverse to the Debtoror its estates. 5. GA Keen is a ·disinterested person" as that term is detined in BankruptcyCode section 101(14), as modified by section 1107(b), in that, to the best of my knowledge,GA Keen, its members and employees: (a) are not creditors, equity security holders, or insiders;
  • 16. Cordillera Golf Club. LLCGA Keen Realty AdvisorsJune 26, 2012Page 3 of3 (b) are not and were not investment bankers for any outstanding security of the Debtor; (c) have not been, within three years before the date of the filing of the petition, investment bankers for a security ofthe debtors, or attorneys for such an investment bankers in connection with the otTer, sale, or issuance of a security of the Debtor; (d) are not and were not, within two years before the date of the filing of the petition, a director, officer, or employee of the Debtor or of an investment banker specified in subparagraph (b) or (c) above; and (e) do not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the Debtor or an investment banker specified in the subparagraph (b) or {c) above, or for any other reason. 6. Despite the efforts described above to identify and disclose GA Keensconnections with parties in interest in this Chapter 11 Case, GA Keen is unable to state withcertainty that every client relationship or other connection has been disclosed. In thisregard, if GA Keen discovers additional material infonnation that it determines requiresdisclosure, it will promptly file a supplemental disclosure with this Court. 7. The scope of the services to be performed by GA Keen and the fee structureare accurately set forth in the Retention Agreement as are the other terms of GA Keensretention. 8. GAG and GA Keen have agreed to not share with any person exceptmembers and consultants of my tirm the compensation to be paid for the services renderedin this case, except as is set forth in the Retention Agreement.
  • 17. EXHIBITB Proposed Form of Order01:12239656.9
  • 18. IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWAREIn re: Chapter 11Cordillera Golf Club, LLC, 1 Case No. 12-11893 (CSS) dba The Club at Cordillera, Ref. Docket No. Debtor. ORDER (I) AUTHORIZING RETENTION OF GA KEEN REALTY ADVISORS, LLC AS REAL ESTATE ADVISOR FOR THE DEBTOR AND DEBTOR IN POSSESSION NUNC PRO TUNC TO THE PETITION DATE AND (II) WAIVING CERTAIN REQUIREMENTS OF LOCAL RULE 2016-2 Upon the Application2 of the debtor and debtor in possession in the above-captioned case (the "Debtor") for entry of an order (i) authorizing, pursuant to sections 327(a)and 328(a) of the Bankruptcy Code, Bankruptcy Rules 2014 and 2016, and Local Rules 2014-1,the employment and retention of GA Keen Realty, LLC ("GA Keen Realty"), as real estateadvisor to the Debtor, nunc pro tunc to the Petition Date, and (ii) granting a waiver of certainrequirements of Local Rule 2016-2; and upon consideration of the Application and all pleadingsrelated thereto, including the Declaration; and due and proper notice of the Application havingbeen given; and it appearing that no other or further notice is required; and it appearing that theCourt has jurisdiction to consider the Application in accordance with 28 U.S.C. §§ 157 and 1334;and it appearing that this is a core proceeding pursuant to 28 U.S.C.§ 157(b)(2); and it appearingthat venue of this proceeding and this Application is proper pursuant to 28 U.S.C. §§ 1408 and1409; and it appearing that the relief requested is in the best interest of the Debtor, its estate, and1The Debtor in this chapter 11 case, and the last four digits of its employer tax identification number, is: XX-XXX1317. The corporate headquarters address for the Debtor is 97 Main Street, Suite E202, Edwards, CO 81632.2 Capitalized terms used, but not defmed herein, shall have the same meaning ascribed to them in the Application.
  • 19. creditors and after due deliberation, and sufficient cause appearing therefor, IT IS HEREBY ORDERED THAT: 1. The Application is granted nunc pro tunc to the Petition Date. 2. The Debtor is authorized to employ and retain GA Keen Realty as theirreal estate advisor nunc pro tunc to the Petition Date, as set forth in this Order and upon theterms and for the purposes set forth in the Retention Agreement, a copy of which is attached tothe Application as Exhibit C, and as requested in the Application. 3. With respect to the payment of the formulaic success fees set forth insection II.C of the Retention Agreement (the "Transaction Fee") and consistent with the terms ofthe motion seeking to establish interim compensation procedures [Docket No. __j, the Debtoris authorized to pay GA Keen Realty eighty percent (80%) of such fee and one hundred percent(100%) of expenses, as and when due and payable, with all the fees (including the payment ofthe 20% hold-back) subject to Bankruptcy Court approval of a final fee application. SuchTransaction Fee shall be subject to the standard of review of Section 328(a) of the BankruptcyCode. 4. Notwithstanding any provision in the Application and RetentionAgreement to the contrary, the Debtor is authorized to indemnify and hold harmless GA KeenRealty, Great American Group, LLC, their respective affiliates, and their respective directors,officers, employees, agents, representatives, and controlling persons (collectively, the"Indemnified Parties"), pursuant to the terms and conditions set forth in the RetentionAgreement, subject to the following conditions: (a) The Indemnified Parties shall not be entitled to indemnification, contribution, or reimbursement for services other than the services provided under the Retention Agreement, unless such services and the 2
  • 20. indemnification, contribution, or reimbursement therefor are provided for in the Retention Agreement and approved by the Court; (b) Notwithstanding anything to the contrary in the Retention Agreement, the Debtor shall have no obligation to indemnify any person, or provide contribution or reimbursement to an Indemnified Party, for any claim or expense that is either: (i) judicially determined (the determination having become final and no longer subject to appeal) to have arisen from an Indemnified Partys gross negligence or willful misconduct; (ii) for a contractual dispute in which the Debtor alleges the breach of an Indemnified Partys contractual obligations unless the Court determines that indemnification, contribution, or reimbursement would be permissible pursuant to In reUnited Artists Theatre Co., 315 F.3d 217 (3d Cir. 2003); or (iii) settled prior to a judicial determination as to the exclusions set forth in clauses (i) and (ii), but determined by this Court, after notice and a hearing, to be a claim or expense for which an Indemnified Party should not receive indemnity, contribution, or reimbursement under the terms of the Retention Agreement as modified by this Order; and (c) If, before the earlier of (i) the entry of an order confirming a chapter 11 plan in this case (that order having become a final order no longer subject to appeal), and (ii) the entry of an order closing this chapter 11 case, an Indemnified Party believes that it is entitled to the payment of any amounts by the Debtor on account of the Debtors indemnification, contribution, or reimbursement obligations under the Retention Agreement, including without limitation the advancement of defense costs, the Indemnified Party must file an application before this Court, and the Debtor may not pay any such amounts to the Indemnified Party before the entry of an order by this Court approving the payment. This subparagraph (c) is intended only to specify the period of time under which the Court shall have jurisdiction over any request for payment by an Indemnified Party for indemnification, contribution, or reimbursement, and not a provision limiting the duration of the Debtors obligation to indemnify the Indemnified Parties. 5. Notwithstanding anything to the contrary in the Retention Agreement, anylimitation ofliability, including or limitation on any amounts to be contributed by the parties,pursuant to the terms of the Retention Agreement shall be eliminated. 6. The Debtor and GA Keen Realty are authorized to take all actionsnecessary to effectuate the relief granted pursuant to this Order in accordance with theApplication. 3
  • 21. 7. GA Keen Realty shall make reasonable efforts to coordinate with theDebtor and with the Debtors other professionals to avoid unnecessary duplication of the servicesprovided by those other professionals. 8. The relief requested herein shall continue to apply to any of the Debtorsaffiliates and their respective estates that subsequently commence chapter 11 cases without theneed for any further requests or motions. 9. None of the fees payable toGA Keen Realty under the RetentionAgreement shall constitute a bonus under applicable law. 10. With respect to any Transaction Fees payable for the closing of asuccessful transaction, GA Keen Realty is exempt from the requirement to keep time records,and any requirement to the contrary under Local Rule 2016-2(d) is waived. 11. All of GA Keen Realtys fees and expenses shall be treated asadministrative expense claims in the Debtors chapter 11 case. 12. All ofGA Keen Realtys fees and expenses shall be entitled to a carve-outfor payment pursuant to section 506(c) of the Bankruptcy Code. 13. The terms and conditions of the Retention Agreement are reasonable, andthe Debtor shall pay all fees and expenses as promptly as possible in accordance with the termsof the Retention Agreement and this Order. 14. This Court shall retain jurisdiction with respect to all matters arising fromor related to the implementation or interpretation of this Order.Dated: Wilmington, Delaware July _ _, 2012 Christopher S. Sontchi United States Bankruptcy Judge 4
  • 22. EXHIBITCRetention Agreement
  • 23. RETENTION AGREEMENTBetweenCordillera Golf C!ub, LLCandGA Keen Realty Advisors, LLCDate: June 13, 2012!n consideration of the mutua! agreements herein contained, "Company" (as defined below} herebyretains "GA. Keen Realty Advisors" (as defined below) to act as Companys real estate advisor upon theterms and conditions set forth herein.1. Definitions The following terms as used herein have the following meanings. A. "Bankruptcy Court" means lf and when Company fHes Chapter 11, then the United States Bankruptcy Court ln the district in which such Chapter 11 is fHed. B. "Code" means the United States Bankruptcy Code, 11 U.S. C.§ 101, et seq. C. "Company means -Cordillera Golf Club, LlC. D. "GA Keen Rea!ty Advisors" means GA Keen Realty Advisors, lLC the real estate division of Great American Group, LLC. E. "Effective Oate" means the date of mutua! execution of this Agreement F. "Order" shaH mean an Order Issued by the Bankruptcy Court approving this Agreement. G. "PropertY and "Properties" refers to the parcels of owned rea! Properties listed on Schedule "A" attached hereto and incorporated by reference, which Hst may be amended without a further Order of the Bankruptcy Court. H. "Transaction means any transaction Involving the Companys pecuniary interests arising from or relating toGA Keen Realtys services rendered under this Agreement, including, but not limited to: 1, the raising of debt and/or equity capital and/or the dosing of a joint-venture in order to: a) fund a plan of reorganh:ation ln the Bankn.Jptcy, b) refinance the Property, c) recap!ta!ize Company or an entity owned or controlled by Company, d) buy a!! or a portion of the secured debt currently encumbering the Property, and/or e) provide DIP flnandng; and/or 2. the sale or transfer of title to one or more Properties. •·
  • 24. The Club at Cordif!eraGA Keen Realty AdvisorsJune 13,2012Poge2of17ll. Services and Fees A. Authority 1. GA Keen Realty shall have the sole and exclusive authority to act as Companys advisor (lnduding but not limit<:d to the "exclusive right to sell one or more of the Properties) with respect to the services set forth in Section below. Company shaH retain the sole discretion to accept or reject any Transaction proposaL 2. !n order to coordinate our efforts with respect to a possible Transactlon, during the term of this Agreement except with respect to: a) IMH Flmmclal Corporation (wlth whom Company shaU dea! d!rect!y), b) Current members of The Ciub at Cord!!lera, c) Companys secured and unsecured creditors, d) Cordillera Property Owners Association (northside and southside), e) Cordillera Metro District, f) Jeffrey L. Rush and his affiliates, g) Universal Go!f and/or Dan Bennett and their respective affl!lates, and h) David A. Wilhelm and his affiilates, nelther the Company nor any representative thereof {other than GA Keen Realty) will initiate discussions with a counterparty regarding a Transaction except through GA Keen Realty. If the Company or !ts management receives an lnquiry regarding a Transaction from a party other than any of the above~ referenced exclusions, then Company wm promptly advise GA Keen Realty of such inquiry in order that GA Keen Realty may evaluate the person making such inquiry and its interest and assist the Company in any resulting negotiations. B. Service GA Keen Realtys representation of the Company in connection wlth the proposed Transaction wiH include, at the reasonable request or direction of the Company and in conjunction wlth the Companys legal and other advisors: L assisting Company ln developing and organizing due diligence materia!s and in preparing an offering memorandum; 2. developing, subject to Company*s review and approval, a marketing plan and implementing each facet of the marketing plan; 3. assisting Company in ldentifytng, contacting and screening potential parties to a Transaction;
  • 25. The Club at CordffferaGA Keen Realty AdvisorsJune 13,2012Poge3of17 4. assisting Company in arranging for potential parties to a Transactlon to conduct due diligence In connection with a potential Transaction and, as appropriate, assisting the Company to prepare a due diligence data room and to coordinate the due diligence investigations of potentia! parties to a Transaction; 5, communicating regularly with prospects and maintaining records of such communications; 6. communicating regutar!y with Company and its professional advisors in connection with the status of its efrorts; 7. advising Company on strategies for negotiating with the holders of existing debt and other !iabHitles of the Company {the "Creditors"} and participating In meetings or negotiations with the Creditors in connection with a Transaction; 8, assisting the Company in evaluating, structuring, negotiating and implementing the terms and conditions of a proposed Transacdon; 9. subject to separate agreement, providing testimony in court, on behalf of the Company, as necessary and appropriate, subject to the terms of this Agreement; and 10. working wlth the attorneys responsible for the implementation of the proposed Transaction, reviewing documents, negotiating and assisting in resolving problems which may arise. C Fees L Transaction Fee, a} As and when Company doses a Transaction, whether such Transaction ls completed individually or as part of a package or as part of a sale of all or a portion of Companys business or as part of a plan of reorganization, then GA Keen Realty shall have earned compensation per Transaction (the Transaction Fee") equal to: (} With respect to equity and preferred equity, six percent (6%) of "Gross Proceeds (as defined below); (ll) With respect to junior or mezzanine debt, four percent (4%) of Gross Proceeds; (Hi) With respect to senior debt, two percent !2%) of Gross Proceeds; and/or (iv} With respect to the sale of one or more Properties, five percent {5%) of Gross Proceeds, The Transaction Fee shaH be reduced (and the Company shall receive a credit for} the amount of any Minimum Transaction Fee earned and paid/payable to GA Keen Realty. b} Exceptions:
  • 26. The Club at CordilieraGA Keen Realty AdvisorsJune 13, 2012Poge4of17 {i} ln the event that !MH Financial Corporation doses a DIP financing with Company, then GA Keen Realty shaH not earn a Transadion Fee wlth respect to that Transaction but rather, GA Keen Realty wm be compensated via the "Min!mum Transaction Fee" referenced below. (H) Jn the event that Company sells aH or a portion of the Property to the members of The Club at CordiUera then GA Keen Realty shaH not eam a Transaction Fee with respect to that Transactions but rather, GA Keen Realty wiH be compensated via the "Minimum Transaction Fee" referenced below. {ill} !n the event that Company doses a DIP finandng with Alpine Bank or extends/modlfles the existing Indebtedness with Alpine Bank, then GA Keen Realty shalt not earn a Transaction Fee with respect to that Transactions but rather, GA Keen Realty wHI b~ compensated via the "Minimum Transaction Fee" referenc~d below. {iv) In the event that the Company sells (or enters into a joint venture with respect to), all or a portion of the Property to the CordH!era Property Owners Association (northside or southside), and/or the Cordillera Metro District, then GA Keen Realty shall not earn a Transaction Fee with respect to that Transaction but rather, GA Keen Realty wW be compensated via the "Minimum Transaction Fee" referenced below. {v) !n the event that the Company sells a!! or a portion of the Property to UniversBI Golf and/or Dan Bennett and/or their respective affiliates Q! in the event that the Company doses a DtP financing with Universal Golf and/or Dan Bennett and/or their respective affiliates, then GA Keen Realty shaH not earn a Transaction Fee with respect to such Transaction but rather, GA Keen Realty wm be compensated via the "Minimum Transaction Fee• referenced below. (vi) In the event that the Company doses any Transactkm with .Jeffrey L. Rush and/or hls affHiates, then GA Keen Realty shall not earn a Transaction Fee with respect to that Transaction. (vii) In the event that the Company doses any transaction with David A. Wilhelm and/or his affmates, then GA Keen Realty shall not earn a Transaction Fee with respect to that Transaction.
  • 27. The Club at Cord if!eraGA Keen Realty AdvisorsJune 13,2012Page5of17 2. "GrossProceeds": a) The calculation of "Gross Proceeds" shall include the sum of the total consideration transferred to, or for the benefit of, the Company and shall be cakulated to indude, but not be limited to: (i) The total amount of cash (indudlng but not limited to escrowed funds/ securities, the repurchase or buyout of any options or warrants, any agreements or other property and any other consideration, including, without !Imitation, any contingent consideration, paid or payable, directly or lndlrect!y, in connection wlth a Transaction), debt and/or equity raised to fund a Transaction; and/or (tl) The purchase prlce paid by a third party to acqu!re one or more Properties. b) The computation of Gross Proceeds as we!! as the computation of GA Keen Realtys fee shall not be affected by Companys !ega! fees, break-up fees, dosing costs and/or adjustments, and/or payments of whatever kind to lienholders, secured parties or offerors, nor GA Keen Realtys costs and expenses. c) The term Gross Proceedsu shaU spedfka!!y exdude any sums or other consideration paid or payable in connection with any of the existing and/or future lawsuits and other legal proceedings involving or relating to the Company and/or the Property. 3. Minimum Transaction Fee. At the conclusion of the "Term" (as defined below), lf GA Keen Realty shall not have earned a minimum of three hundred fifty thousand dollars ($350,000) of Transaction Fees (the "Minimum Transaction Fee"), then, in that event, so !ong as GA Keen Realty is not in default of this Agreement, then Company shall, within five days of lnvoklng, pay GA Keen Realty the difference between the Minimum Transaction Fee, less the amount of Transaction Fees earned by GA Keen Realty. 4. A!! Transaction Fees sha!! be paid, in fuH, off the top, from the Transaction proceeds or otherwise, simultaneously with the dosing or other consummation of each Transaction. Company hereby authorizes and instructs any escrow agent or counsel {without need for further authorization or permission) to pay GA Keen Realty its Transaction Fees earned in strict compliance with the provisions of this Agreement, time being of the essence, directly from the proceeds of the Transaction, in full, simultaneously with the dosing or other consummation of the Transaction. The rights provided by this paragraph shall be deemed to supplement and not supersede other rights provided toGA Keen Rea!ty. 5. Survival; !f, within twelve (12) months of the expiration of the Term of this Agreement~ Company execute and/or doses a Transactlon wlth a party procured by GA Keen Rea!tv and disclosed in writing to the Company prior to4837-51S1-i0S7A
  • 28. The Club at CordilleraGA Keen Realty AdvisorsJune 131 2012Page6of17 the expiration of the Term, then GA Keen Realty shaH be entitled to a fee in accordance with the terms ofth!s Agreement.Ul. Exeen~tes A. All reasonable out of pocket costs and expenses incurred by GA Keen Realty Advisors in connection with performing the services required by this Agreement, induding but not limited to travet lodging, FedEx, postage, telephone charges, photocopying charges, and the fees and reasonable expenses of counsel, etc., shaH be bome by Company. B. With regards to the marketing of the Properties, GA Keen Realty Advisors shaH prepare a marketing plan and budget. Following Companys approval of the budget, Company shall advance to GA Keen Rea~ty Advisors the budgeted amount and agrees to pay a!! approved, reasonable, additional costs and expenses within five (5) business days of the proper presentation of an invoke. GA Keen Rea!ty Advisors shall be under no ob!igation to incur marketing expenses untH such time as GA Keen Realty Advisors receives funds from Company. C. Company shaH be responsible for ail out-ofwpocket due dl!lgence costs and expenses (such as updating tit!eJ surveys, environmental reports, etc.).IV. Company ResponsibiUties A. Upon the Effective Date, Company wHI deliver toGA Keen Realty Advisors a ~ist of ;;;11 brokers, principals, or other prospects who have expressed an interest in using or acquiring a Property. B. With respect to the Properties, Company warrants and represents that it wi!l immediately inform GA Keen Rea!ty Advisors as to: 1. any known or suspected risk of environmental hazard or contamination; and 2. any known, existing or pending vlo!ation(s) of federal, state or !ott~! environmental laws or regulations. Company sha!! have the continuing obligation to assess the accuracy of the representations contained herein and to advlse GA Keen Realty Advisors in writing as soon as it becomes aware of any inaccuracy, lnconslstency, incompleteness or change of circumstances and to correct same. Additlona!!y, lf Company has ordered environmental reports or studies, as soon as such become avallab!e1 Company wiH immediately provide a true and complete copy of such reports to GA Keen Realty Advisors and GA Keen Realty Advlsors is hereby authorized to disseminate such reports to prospects. C Company shaH deal with GA Keen Realty Advisors fairly and in good faith so as to allow GA Keen Realty Advisors to perform Its duties and earn the benefits of this Agreement and shall not interfere, prevent or prohibit GA Keen Realty Advisors, in any manner, prior to or during the Term of this Agreement from carrying out its duties and obligations under the Agreement. D. Company shall make avallab!e to GA Keen Realty Advisors all information reasonably requested by GA Keen Realty Advisors for the purpose of enabling GA Keen Realty Advisors to perform its ob!lgations pursuant to this Agreement. A!! information
  • 29. The Club at CordilleraGA keen Realty AdvisorsJune 13, 2012Page Jo/17 provided by Company shall be mater1aUy accurate and complete at the time it ls furnished and Company shall, as soon as it becomes aware of any inaccuracy or incompleteness in any information then or later provided toGA Keen Realty Advisors, promptly advise GA Keen Realty Advisors in writing of such inaccuracy or incompleteness and correct the same, In performing its services hereunder, GA Keen Realty Advisors shall under all circumstances be entitled to rely upon and assume, without Independent verification, the accuracy and comp!eteness of ail information that has been furnished to it by, or on behalf of, the Company and shall have no obligation to verify the accuracy or completeness of any such information and shaH not be responsible for the inaccuracy or incompleteness of any information provided to GA Keen Realty Advisors. E. tf and when Company becomes subject to the jurisdiction of the Bankruptcy Court/ then within 3 business days Company shall file an application with the Bankruptcy Court for, and wm use its reasonable efforts to obtain, an Order. Wlth respect to the app!!catlon and Order: 1. Company acknowledges that thls Agreement in lts entirety wm be attached to and made a part of Companys appHcatlon to the Bankruptcy Court and will be referenced to in the Order. 2. The application shan seek an Order authorizing the employment of GA l<een as of the date of this Agreement, as professional persons pursuant to Section 327 of the Code (with compensation subject to tM standard of review of Section 32B{a} of the Code and not any other standard, inducing that provided in Section330 of the Code). The employment application and the Order shall be provided to GA Keen Realty Advisors sufficiently in advance of their filing, and must be acceptable to GA Keen Realty Advisors in its sole discretion. !n the event that the Bankruptcy Court does not enter an order acceptable to GA Keen Realty Advisors, GA Keen Realty Advisors shaH have no further obligations under the terms of this Agreement, 3. An acceptable Order shaU include, without limitation, the following terms and conditions: a) a finding that none of the fees payable toGA Keen Realty Advisors hereunder shaH constitute a "bonus" under applicable law; b) a finding that with respect to any success fees payable for the dosing of a Transaction, that GA Keen Realty Advisors is exempt from the requirement to keep time records; c} a finding that that all of GA Keen Rea!ty Advisors fees and expenses shall be treated as administrative expense claims Jn the Companys bankruptcy case; d) a finding that a!i of GA Keen Realty Advisors fees and expenses shaH be entitled to a carve-out for payment pursuant to Section 506(c) of the Bankruptcy Code;
  • 30. The Club at CordifferaGA Keen Realty AdvisorsJune 13, 2012PageBo/17 e) a finding that the terms and conditions of this Agreement are reasonable." if the Order authodzlng the employment of GA KeBn Realty Advisors ls obtained; Company shaH pay a!! fees and expenses as promptly as possible ln accordance with the terms of this Agreement and the Order. f} a statement that the Bankruptcy Court has and shail retain jurisdiction to hear and determine a!! matters arlsing from the implementation of this Agreement, and neither the Company nor GA Keen Realty Advisors shall be required to seek authorization from any other jurisdiction with respect to the relief granted by the Order approving this Agreement 4. lf Company obtains an order of the Bankruptcy Court authorizing financing or cash collateral use and such order requires the submission of a budget by Company delineating its post~petition expenditures, such budget shall expressly indude all amounts projected to be paid toGA Keen Realty Advisors pursuant to the terms of this Agreement. !n addition, any stipulation or order for financing or cash collateral use shall lndude all amounts to be paid to GA Keen Realty Advisors pursuant to the terms of this Agreement among any carve-out to be provided professionals in the Companys bankruptcy case. 5. The terms of Section are solely for the benefit and protection of GA Keen Realty Advisors and may be waived, In whole or in part, only by GA Keen Realty Advisors.v. Term of Agreement The term of GA Keen Realty Advisors retention shaH be from the date of Companys execution of this Agreement through the confirmation of a plan of reorganization, the dosing of al! Transactions contemplated by th!s Agreement or for a period of twelve (12) months, whlchever comes first {"Term").VI. Dispute Resolution A. Choice of Law; Jury TriaL This Agreement shaH be governed by, and construed ln accordance with, the !aws of the State of New York, without regard to any prlndp!es of confHct of laws, To the extent permitted by law, the parties to this Agreement waive any right to tria! by jury !n any action, proceeding or counterclaim {whether based upon contract, tort or otherwise} related to or arising out of the engagement of GA Keen Rea!ty Advisors pursuant to, or the performance by GA Keen Realty Advisors of the services contemplated by, this Agreement. The provisions of this section of the Agreement shaH survive the termination of this Agreement B. Attorney£ Fee5_. !f any party to thls Agreement brings an action directly or indirectly based upon this Agreement or the matters contemplated hereby against any other party, the prevailing party shaH be entitled to recover from the non·prevaiHng party, In addition to any other appropriate amounts, its reasonable costs and expenses in connection with such proceeding, indudlng, but not limited to, reasonable attorneys4837-51811087.4
  • 31. The Club at CordilleraGA keen Realty AdvisorsJune 13, 2012Page9o[ll fees and arbitration and/or court costs. The provisions of this section of the Agreement shall survive the termination of this Agreement. c. Jurisdiction. 1. Arbitration. Unless and until Company becomes subject to the jurisdiction of a Bankruptcy Court, any controversy or dalm arising out of or related or pertaining to this Agreement or the services of GA Keen Realty Advisors, shall be determined by arbitration upon the in!tlatlon of either party, and shall be settled and conclusively resolved by a single, mutually-acceptable arbitrator who shall be experienced in dosing Transactions. The cost of such arb)trator shall be bome equally by the parties. The arbitration shall be conducted under the auspices of, and subject to the rules of, the American Arbitration Association under its Arbitration Rules for the Real Estate Industry. !f the parties are unable to agree upon an arbitrator, the arbitrator shaH be selected in accordance with AM rues. The arbltratlon shaH be conducted in New York, New York, and the written decision of the arbitrator shall be fina! and binding on the parties and enforceable in any court of competent jurisdiction. If the dispute or controversy between the parties concerns the determination or cak:u!atlon of fees payab!e to Consultant hereunder, Consultant and the Company agree that the amounts in dispute sha!! be placed in a third party escrow account pending the outcome of the arbitration (with any amounts not in dispute being paid to Consultant pursuant to the terms of thls Agreement), The provisions of this section of the Agreement shaH survive the termination of this Agreement. 2. Bankruptcy Court Jurisdiction. Once Company becomes subject to the jurisdiction of a Bankruptcy Court, such court shan have and retain exdusive jurisdiction to hear and determine a!! matters arising from the Implementation or execution of this Agreement. Any and aH Issues, disputes, da!ms or tause:> of action which relate or pertain to, or result or arise from, this Agreement or GA Keen Realty Advisors servlces hereunder, shall be settled by the Bankruptcy Court. The Bankruptcy Court shall be limited to awarding compensatory damages and the parties hereto hereby waive their right to seek punitive, consequential, exemplary or simHar types of speda! damages.VII. Miscellaneous A. !ndemnit;t, Contribution, Reimbursement, and Limitation of Liability. Company agrees to the indemnity, contribution, reimbursement and limitation of !labilities provisions as set forth ln Schedu!el attached hereto and incorporated by reference, The provisions of this section of the Agreement shall survive the termination of this Agreement B. Relationship. t GA Keen Realtys ro!e shaH be solely as an advisor to Company and Company shaH remain fully responsible for all decisions and matters as to which GA Keen Realtys advice is sought. GA Keen Realty is assuming no management responsibilities. GA Keen Realtys obligations to Company are contractual in nature as expressly set forth in this Agreement and neither GA Keen Realty nor
  • 32. The Club at Cordi!leroGA Keen Realty AdvisorsJune 13, 2012Page 10of17 any of its affiliates nor their respective members, officers, dlrectors, employees, agents or representatives shaH have, with respect to this Agreement. any fiduciary obligations to the Company or any other person. GA Keen Realty is providing its services hereunder as an independent contractor and the parties agree that this Agreement does not create an agency or fiduciary relationship between GA Keen Realty and the Company. Company acknowledges and agrees that its engagement of GA Keen Realty hereunder does not and is not intended to confer rights upon any person not a party hereto, including but not limited to any security holders or creditors of Company, 2. GA Keen Realtys duties hereunder nm so!ely to the Company. AH advice, written or ora!, provided by GA Keen Realty to the Company pursuant to this Agreement Is intended soie!y for the use and benefit of the Company, whkh agrees that such advke may not be disdosed pub!idy or made available to thlrd parties without the prior written consent of GA Keen Realty. GA Keen Realty may condition the granting of such prior written consent upon obtaining a non-reliance letter and release from any such third parties. 3. The provisions of thls section of the Agreement shaH survive the termination of this Agreement. C. No Time Records, The services to be provided by GA Keen Realty pursuant to this Agreement are transactional in nature and GA Keen Realty wm not be blning Company by the hour nor keeping a record of its time spent on behalf of Company. D. Notice. Any correspondence or required notice shaH be addressed as follows and shaH be sent by Certified Mai!, Return Receipt Requested, or by FedEx, either of which notices shall be supplemented by facsimile and/or email transmission, and shaH be effective as of the date of actual receipt of the Certified Mall or FedE)c Such notice shaH be addressed as follows: lf toGA Keen Realty, to: GA Keen Realty Advisors, LLC 1 130 West 42m Street, Suite 1001 New York, NY 10036 ATTN: Harold Bordwin and Matt Bordwin Telephone: {646) 381-9222. Email: hbordwin@greatamerlcan.com and mbordwin@greatamerlcan.com Wlth a copy to: Gre<:1t American Group LLC 9 Parkway North, Suite 300 Deerfield, IL 60015 Telephone~ {847) 444-1400 Ema!!: mnaughton@greatamericpn.com ATTN: Mark Naughton
  • 33. The Club at CordilleraGA Keen Reolty AdvisorsJune 13, 2012Poge 11 of 17 Jf to Company: Cordl!!era Golf Club, LLC 91 Main Street, Suite E202 Edwards, CO 81632 ATIN: Patrick Wilhelm Telephone: 970-569-6421/ Facsimile: 970~927~2834 Emal!: pdwwilhelm@hotma!Lcom and dw!lhelm@windrose.com With a copy to: Foley & Lardner LLP 402 West Broadway Suite 2100 San Diago, Ca!ifom!a 92101·3542 ATIN; Christopher Ce!entino Telephone: 619.685.4643/ Facsimile: 619.234.3510 Email: ccelentino@fo!ey.com E. Successors and Assigns. Upon the commencement of this Agreement, lt shaH be binding upon and shall inure to the benefit of the parties hereto, their successors and assigns. The provisions of this section of the Agreement shaH survive the termination of this Agreement F. Entire Agreement. This Agreement contains the entlre agreement between the partles hereto, and no representations, inducements, promises or agreements, ora! or otherwise, entered into prior to the execution of this Agreement wW a!ter the covenants, agreements and undertakings herein set forth. This Agreement shaH not be modified in any manner, except by an instrument !n wdting executed by the parties. G. Change in ControL Companys ob!igatlons hereunder shaH survive any change ln control or ownership of Company. !n the event the proceeding Is converted from the Chapter 11 to Chapter 7, this Agreement sha!l remaln in fuH force and effect. The provisions of this section of the Agreement shall survive the termlnatkm of this Agreement. H. Construction. L Headings in th!s Agreement are for convenience on!y and shaH not be used to interpret or construe its provisions. 2. This Agreement shall be construed fairly as to aU parties and there shall be no presumption against the party who drafted this Agreement in the interpretation of this Agreement. By executing or otherwise accepting this Agreement, Company and GA Keen Realty acknowledge and represent that they are represented by and have consulted with !ega! counsel with respect to the terms and conditions contained herein. L Force Majeure. GA Keen Realty shat! have no HabiHty for de!ays, failure ln performance, or damages due to fire, explosion, Hghting, power surges or faHures, strikes or labor disputes, water, acts of god, the elements, war, civil disturbances, acts of dvl! or mi!itary authorltles, telecommunications failure, fue! or energy shortages, acts or4B37-51f!i-i087A
  • 34. The Club at CordilleraGA Keen Realty AdvisorsJune 13,2012Page 12 of 17 omissions of communications carriers, or other causes beyond GA Keen Realtys control whether or not similar to the foregoing. J. £1ectronk Communications. GA Keen Realty and Company may communicate by electronic mail or otherwise transmit documents in electronic form during the course of this engagement. The parties hereto accept the inherent risks of these forms of communication (induding the security risks of interception of or unauthorized access to such communkations, the risks of corruption of such communications and the risks of viruses or other harmful devices). It Announcements. Upon the dosing of a Transaction, GA Keen Realty may, at its option and expense, p~ace announcements and advertisements or otherwise publicize GA Keen Realtys role {which may indude the reproduction of the Companys logo) on GA Keen Realtys internet web site and in such newspapers and pedodicals and ln its marketing materials as it may choose stating that GA Keen Realty has acted as advisor to the Company. L. Mu!tip!e C!ients. From time to time, GA Keen Realty, or one of ltS related entitles/ may and shall have the right to advise or provide services to several industry participants, some of which may be competitors of the Company. The Company, its directors and shareholders, waive any right to commence any action, suit or proceeding or make any demand, complaint or da!m agalnst GA Keen Realty, its subsidiaries or affiliates, or their partners, directors, officers or other personne!, that arises out of GA Keen Realtys, or one of its re!ated entities, rlght to advise or provide services to Industry competitors of the Company. M. Counterparts. This Agreement may be executed in two or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shaH be deemed to be an original, but a!! of which taken together shall constitute one and the same agreement. Facslmile and electronic transmission (inducting the email delivery of documents in Adobe PDF format) of any signed original counterpart or retransmission of any signed facsimile transmission shall be deemed the same as the delivery of the original.If the foregoing correctly sets forth the agreement between the Company and GA Keen Realty, pleasesign and return the enclosed copy of this Agreement, whereupon it shall become our bindingagreement.Very truly yours,GA KEEN REALTY AOV~S, UCBy: H "o!d , as Managing Director of Great --·- (Y American Group, LU::, the Managing Member of GA Keen Realty Advisors, LLC
  • 35. The Club at CordifleraGA Keen Realty AdvisorsJune 13, 2012Page 13 of 17 Date:
  • 36. The Club at CordiiJeraGA Keen Realty AdvisorsJune 13, 2012Page 14 of 17 SCHEDUlE A Properties Attached hereto
  • 37. SCHEDULE A LEGAL DESCRIPTlONParcel 1 (fee simple):TRACT A,CORDILLERA SUBDIVISION FILING NO. 14 THE CLUB COTTAGES, A RES UBDfVISIOOF TRACTS B AND B-l, CORDILLERA SUBDIVISION FILING NO. 7,According to the Amended Plat recorded October 18, 1994 in Book 652 at Page 841 as Recepti<No. 548878.COUNTY OF EAGLESTATE OF COLORADOPan:el 2 (fee simple):Parcels L-1 and L-2.BEARCAT AT THE RANCH AT CORDILLERA.CORDILLERA SUBDIVISION, FILING NO. 12.According to the plat recorded August 30, 1994 in Book 648 at Page 856 as Reception No. 5448COUNTY OF EAGLESTATE OF COLORADOParcel 3 (fee simple):Parcel L-3,CORDILLERA SUBDIVISION. FILING NO. 28,According to the Plat recorded June 9, 1997 in Book 728 at Page 915 as Reception No. 624877.COUNTY OF EAGLESTATE OF COLORADOParcel4 (fee simple):Tracts.CORDILLERA SUBDIVISION, FILING NO. 8.According to the plat recorded June 24, 1993 in Book 6 I 2 at Page 307 as Reception No. 508384.COUNTY OF EAGLESTATE OF COLORADO
  • 38. Pan:el 5 (fee simple):Tracts T l, T2 and T3,CORDiLLERA SUBDiVISION, FILING NO. l 0, TRACT TA RESUDIVISION OF TRACT TAccording to the plat recorded December 17,2004 as Reception No. 900959.COUNTY OF EAGLESTATE OF COLORADOParcel6 (fee simple):Parcels W-1, W-2 and WA,CORDILLERA SUBDIVISION, FILING NO. 41according to the plat recorded June 19, 2000 as Reception No. 732428COUNTY OF EAGLESTATE OF COLORADOParcel7 (fee simple):Parcel W-3,CORDILLERA SUBDIVISION, FILING NO. 36, BLOCK 1, LOT 26,according to the plat recorded December 5, 2001 as Reception No. 778130COtJNTY OF EAGLESTATE OF COLORADOParcel 8 (fee simple):Tract P,CORDll.LERA SUBDIVISION, FILING NO. 41according to the plat recorded June 19. 2000 as Reception No. 7324::!8COUNTY OF EAGLESTATE OF COLOR. DOParcel ? {easement):Tract V,CORDILLERA SUBDIVISION, FILING NO. 41according to the plat recorded June 19, 2000 as Reception No. 732428COUNTY OF EAGLESTATE OF COLORADO
  • 39. Parcel lO (fee simple)!Tract B,CORDILLERA SUBDIVISION, FlUNG NO. 37,according to the plat recorded February 8, 2000 as Reception No. 722159.COUNTY Of EAGLESTATE Of COLORADOParcel 11 (fee simple):Tracl R-1,CORDILLERA SUBDIV1SION, FILING NO. 44,according to the plat recorded January !3, 2004 as Reception No. 864906.COUNTY OF EAGLESTATE Of COLORADOParcel 12 (fee simple}:Tract B,CORDILLERA SUBDIVISION, FIIJNG NO. 27According to the Plat recorded June 9, 1997 in Book 728 at Page 914 as Reception No. 624876 andthe Correction Plat recorded May 26, 1998 as Reception No. 657679.COUNTY OF EAGLESTATE OF COLORADO. Parcel13 (easement): An easement estate as described in Warranty Deed recorded February 2, 2004 as Reception No. 866472, described as follows: A permanent utility and access easement of varying width lying within and north of the right-of-way of Colorado State Highway 6 along the following described perimeter located in the Southeast Quarter of Section 36. T 4 S, R 83 W of the 6th P.M., with all bearings based on the Final Plat of St. Claire of Assisi Parish according to the Plat thereof as Recorded on October 29, 1996 in the office of the Eagle County Clerk and Recorder, Eagle County, Colorado at Book 709, Page 965 at Reception No. 605945, and with the perimeter of said easement being more particularly described as folfows: Commencing at a found CDOT-R.O.W. Monument on the south right"{)f-way of State Highway 6, at station 1630+00. being a bras:> cap set in concrete, from which a similar CDOT-R.O. W. Monument at station !61!+00 bearsS. 57° 55 11~ E. 1900.00 feet, thence along ~mid south right-of-wayS. 57"55 ll" E. 17.41 feet to the Point of Beginning; thence dcpaning said south right-of-way the following five (5) courses: I ) N. 30" 51 25" E. t l. I0 feet; 2) N. W 20 44" E. 79.91 feet; 3) N. 57" 55 I l" W. !06.1 I feet; 4) Along a curve to the right having an arc length of21 1.. 91 feet, a radius of 5693.00 feet and a central angle of 2" OT 58" with a chord bearing and distance of N. 56" 51 12 W. 2 I 1.90 feet~ 5) N. 26" 01 30" E. !3. I3 feet; to the nonh right~of·way of said State Highway 6;
  • 40. Thence along said north right-of-way, along a curve to the right, having an arc length of 83.73 feet,a radius of 5680.00 feet and a central angle of oo 50 41" w1th a chord bearing and distance of N 55°20 45" W. 83.73 feet;thence departing said right-of-way the following thirteen ( 13) courses~1) N. 35° 00 00 E. 62.84 feet;2) N. 55° 00 00" W. 20.00 feet;3) N. 35° oo·00" E. 50.00 feet;4) S. 55" 00 00" E. 93.00 feet;5) S. 3511 00 00" W. 78.00 feet;6) S. 51 o 44 40" E. 25.83 feet;7)$.26"01 30"W.14.l3feet:8) S. 54" 21 29" E. 54.81 feet;9) S. ()(J< 00 00" E. 3.82 feet;10) S. 55" 38 28 E. 135.03 feet;11) S. 57° 55 11" E. 123.14 feet;12) S. 14" 20 44" W. 98.80 feet;13) S. 20° 51 25" W. 1621 feet to the south right-of-way of said State Highway 6;thence along said south right-of-way N. 57" 55 10" W. 20.39 feet to the Point of Beginning.COUNTY OF EAGLESTATE OF COLORADOParcel14 (fee simple):Tract1,CORDilLERA VALLEY CLUB FILING NO. 1According to the plat thereof recorded August 29. 1995 in Book 674 at Page 807 as Receplion No.570822.COUNTY OF EAGLESTATE OF COLORADOParcel 15 (fee simple):Tracrs I and H,CORDll..LERA VALLEY CLUB FILJNG NO. 9, LEGACY TRAIL According to the plat thereof recorded July 15, 1998 as Reception No. 654885. COUNTY OF EAGLE STATE OF COLORADO andTract R, CORDILLERA VALLEY CLUB FIUNG NO.9. LEGACY TRAll.., TRACT R, . According to the plat recorded May 4, 1998 as Reception No. 654885 and the correction platrecorded May 20, 2004 as Reception No. 877949.COUNTY OF EAGLESTATE OF COLORADO
  • 41. Parcel 16 (fee simple):Tract B,CORDlLLERA SUBDIVISION FILING NO. l6. . •According to the final plat recorded August 19, 1994 in B.ook 648 at Page 202 aReceptwn ~o544243 and correction plat recorded November 21, 1994 m Book 655 at Page 56"" as Reception551596.COUNTY OF EAGLESTATE OF COLORADOParce117 (easement):An easement for the purpose of constructing, installing. using maintaining: repairi~g and replacfrom time to time the golf course related improvements as granted and delmeated m that EasemAgreement recorded Dect:mber 18.2003 as Reception No. 862401 and re~recorded November t2006 as Reception No. 200630398.COUliTY OF EAGLESTATE OF COLORADOParcel 18 (fee simple):Kensington Green Par 3 Maintenance Facility Lot,CORDILLERA SUBDIVISION FlLlNG NO. 31.According to the correction plat recorded September 8, 1998 as Reception No. 668666.COUNTY OF EAGLESTATE OF COLORADOParcel 19 {fee simple):Tract A,CORDILLERA SUBDlVlSION FILING NO. 31,According to the correction plat recorded September 8. 1998 as Reception No. 668666.Pan:ef 20 (easement):Non~exclusive easement for access and use over those portions of the Common Area reasonablenecessary to the operation, maintenance, repair nnd replacement of the golf course.Non-exclusive easement for overspf!iy of water from any irrigation system serving the go!J counEasement of access for the purpose of retrieving golf balls from bodies of water w1thin the Com!Area lying within range of golf balls hit from the golf course.AHa.<; granted and delineated in Article 13.5 (b) (c) and (d) of that Declaration of Covenants,Conditions. and Restrictions for Cordillera Community Association ff1:orded June 29. 1()Q?. in R
  • 42. Parcel21 {easement):Non-exclusive easement for access and use over those portions of thenecessary to the operation, maintenance. repair and replacement of theNon-exclusive easement for overspray of water from any irrigaiion sy!Easement of access for the purpose of retrieving golf balls from bot.lieArea lying within range of golf balls hit from the golf course.AH as granted and delineated in Atticle 13.5 (b) (c) and (d) of that CerAmended and Restated Declaration of Covenants. Conditions and Resrecorded May 12, 1993 in Book 608 at Page 785 as Reception No. 5()£;Parcel22 (easement}:Non-exclusive easement for access and use over those portions of thenecessary to the operation, maintenance, repair and replacement of theNon-exclusive easement for overspray of water from any irrigation sy::Easement for the purpose of blending the grading of the golf t::ourse anthe clubhouse) with such Lots and Common Area and for grass soddinborders of the golf course and related areas.All as granted and delineated in Sections 8.12.2, 8.12.3 and 8.1 2.4 of tConditions and Restrictions and Easements of Blackhorse at CordiJ!er:as Reception No. 771735. COUNTY OF EAGLE STATE OF COLORADO
  • 43. EXHIBIT B VALLEY COURSE WATER RlGHTS 1. Tne water ri~ts on Spring Creek ~"bed as follows: An. • ti iI ~p~pna on Adjudication Structure Amount ~ Date Groff Ditch 0.3 c.f.s. 4130/1885 12117/1889 Groff Ditch 6.1 cJ.s. 9/9/1889 12/17/1889 i Groff Ditch~ Cottonwood Enlargement LO c.f.s. I 7/13/1990 i 2/3 "i/1991Said two Groff Ditch water rights are subject to the terms and iimft:ations of the changedecree in Case No. 91-CW -034, including) but not tlmited to, the provisions of paragraphs5, 6, and 7 of said decree. Said water rights are summartz:ed in Appendix A hereto. 2. The water rights on Bumison Creek (a/kla Beard Creek) a.flrl on Deadhorse Gulchdescnbed as follows: Approprtat!on Adjudication Structure Amount Oate Date Root Ditch 1.6 c.f.s. 6/21/1901 6/4/1917 Root Ditch- Reynolds 1.0 cJ.s. 7!27/1973 12/31/1982 EnlargementSaid water rights are subject to the terms and limitations of the change decree In Case No.91-CW-034, including, but not limned to, the provisions of paragraphs 5, 6 and 7 of saiddecree. Said water lights ate summartz:ed in Appendix A hereto. 3. Those absolute and oond.i:tional water rights decreed to Cordillera V ell ey Club GolfCollt"Se Pond No. l, Cordillera Valley Club Golf Course Pond No. 2, Cordillera Val~ey CiubGolf C-:>urse Pond No.3, Cordillera Valiey Club Golf Course Pond No, 4, and CordilleraValley Club Golf Course Pond No.5, in CaSe No. 91-GW-033, on December 8, 1992., bythe District Court in and for Water Division No.5, State of Colorado. The decree for saidwater rights is summarized in Appendix B. 4. Toat conditiona1 vtate;r right decreed to the Cottonwood Pump and Pipeline, in CaseNo. 91-CW-033, on December 8, 1992, by the D!strtct Court in and for Water Divtsbn No.5,State of Colorado. Tne decree for said water right is summarized In Appendix C. 5. Agreement, amongst Cordmera Valiey Ciub investors Limned Partnership, B-1
  • 44. Biack Bear Properties, LLC, JMCG Colorado, LLC, and Academy Woods, Ltd., torconstruction and use of water features bcated on Lots 2, 5, and 8. Timber Springs,recorded July 28, 2008 as Reception No. 200815928. 6. Agreement, behNeen CordWera Valley Club Investors Limited Partnership andSummit investments, LLC, tor construction and use of water feature located on Lot t,Timber Springs, recorded September 24, 2008 as Reception No. 200820542. 7. All of the water, totaling 65 acre-teet, under United States Department of theInterior Water Service .Contract No. 3..07-50-W0903, dated November 30, 1992., tor thedelivery of water from Green Mountain Reservoir. 8. The pian for augmentation decreed in Case No. 91-CW-33. B-2
  • 45. APPENDIX A GROFF DITCH AND ROOT DfTCH WATER RIGHTS The water right decreed to the Groff Ditch-Cottonwood En~argement in Case No.91-CW~33 Of) DecemberS, 1992, and the water rights in the Groff Ditch and the Root Ditchand the Root Ditc:.lr-Reynolds Enlargement changed by the decree entered on December 8,1992 in Case No, S1-CW..034, are summar.zed tor intormafiona! urooses as foliows: Appropriation Adjudication Structure · Amount Date Date Groff Ditch-Cottonwood Enlargement (Upper Groff Ditch} 1.0 c.ts.. 7/1311990 12131/1991 Groft Ditch (Lower Groff Ditch) 6.1 cJ.s. 9/911889 12/17!1889 Groff Ditch (Lower Groff Ditch) 0.3 c.f.s. 4/30/1885 i 2/i 7/1889 Root Ditch 1.6 cJ.s. 6/21/1901 6/4/1917 Root Ditch-Reynolds Enlargement 1.0 c.f.s. 7/27/1973 12131/1982 a. The water rights, other than the Groff DitclrCotionwood Enlargement,were historicaUy used to irrigate appro)jmately 77 acres of ~and located in Sections 31 and32, Township 4 South, Range 82 West of the 6lh P.M., Eagle County, Colorado. b. The headgate of the Groff Ditch is located on the East bank of Sprin~Creek at a point in theSE :1.1 of Section 36 1 Township 4 South, Range 83 West of t"le 6P.M., whence the quarter section comer between Se~ions 31 and 36, Township 4 South,Range 83 West, bears N.60c30 E. 951.5 feet c. The hsadgate of the Groff Ditch-Cottonwood E:.nlargement is ~ocatedon the East bank of Spring Creek in the NE Y-1 NE :4 of Section 35, Town ship 4 South,Range 83 West of the 61h P.M., whence the E :4 corner of said Section 36 bears S.3~0E.2145 feet. d. The headgate of the Root Ditch is located on the We& bank ofSumison Creek at a point whence the SW comer of Section 32, Township 4 South, Range82 West of the 6tn P.M. bears S.47°45W. 2500 teat. B-3
  • 46. Appendix A Page2Groff Ditch and Root Ditch Water Rigw..s e. The point of dhlersion of the Root Ditch-Reynold Enlargement ls~ocated on Deadhorse Guich at the point where the Root Ditch crosses Dead horse Gulch inthe SW X! SW ~ of Section 32, Township 4 South, Range 82 West of the om P.M., at a 8point whence the SW comer of Section 32 bears S. 29 3928" W. 1421 .5 feet. Under the decree in Case No. Bl~CW-034, dated December 8, 1992.: (1) The Groff Ditch-Cottonwood Enlargement point of diverS.ion was added as an alternate point of diversion for the Groff Ditch. (2) The Groff Ditch, Root Ditch,- and Root Ditch-Reynolds En~argement water rights were decreed for golf course and landscape storage and tnigatian purposes on 77 acres of and located within Sections 31 and 32, Township 4 South, Range 82 West of the ern P.M., more particularly described in Exhibit A attached to the decree. (3) Applicant agreed noito exercise these rights in such a manner as to call, or cause an administrative call to be ptaced upon the Bumtson Ditch (Priority No. 112) or 1he Bumison Ditch No. 2 (Prtority No. 111) as decreed by the Eagle County District Court in Cfvit Action No. 294 entered on June 29, 1894. (4) AppUcant further agreed to abandon the Groff Ditch Ptiotities Nos. 334 and 337 decreed by the Eagle County District Court in Crvil Aclior.s Nos. 669 and 675, respectively. g. By the decree entered by the District Court, in and for Water Division No.5, State of Colorado, on May23, 1999, ln Case No. 98CW249, thewaterrightdecreed to Groff ditch-Cottonwood En:argement was continued as conditionaL h. Under the decree entered in Case No. 05-CW-D95, dated August 25, 2006, the following water rights were made absoiute: · ( 1) 0.8 of the 1.0 c.f.s.. decreed conditional to the Groff Ditch- Cottonwood Enlargement for irrigation use; and (2) 0.93 of tle 1.0 cJ.s. originaliy decreed conditional to the Groff Ditch·-Cottonwood Enlargement for recreation and piscatorial uses; B-4
  • 47. Appendix A. Page 3 Groff Ditch and Root Ditch Water Rights h. Unoerthe decree entered in Case No. 05-CW-95, the following water rights were continued as conditionat: (1) 0.2 cJ.s. oftha 1.0 c.f.s. decreed conditional to the Groff Ditch- Cottonwood Enlargement for irrigation use; and (2) 0.07 of the 1.0 cJ.s.. originaUy decreed conditional to the Groff Ditc~Cottonwood Eniargeme.rrt for recreation and piscatorial uses; The month for filing the next application for finding of reasonable diligence is August, 2012.Si:>CA_1489Tlll. 1 B-5
  • 48. APPENDiX B CORDILLERA VALLEY CLUB GOLF COURSE PONDS NOS. 1 THROUGH 5 Conditional water storage rights were decreed by the Dlstlict Court in and for WaterDivision No. 5J Coiorado in Case No. 91-CW-033, on December 8, 1992., for the CordilleraValley Club Golf Course Ponds Nos. 1, 2, 3, 4, and 5, summarized for informationalpurposes as foliows: A Legal Descriptions and Amounts: 1. Golf Course Pond No. i, decreed 6.0 acre feet, oondltiona!, ls located in the NW~ SW4 of SeciJon 31, T. 4 S., R. 82 W. of the 6th P.M., whence the SW comer of said Secfion 31 bearsS. 14 o 45 W. 1,600 feet 2. Golf Course Pond No. 2, decreed 2.0 acre teet, conditional, is located in the SE)4 NW-4 of Section 31, T. 4 S., R. 82 W. of the 6th P.M.; whence the WY.. comer of said Section 31 bears S. 77 ~ 45 W. 2.270 feeL 3. Golf Course Pond No.3, decreed 6.0 acre feet, condruonal, is located in the NW~ SE;4 of Section 31, T. 4 S., R. 82 W. ofthe 6th P.M., whence the SY. comer of said Section 31 bearsS. 29 ° 30J W. 2,060 teet. 4. Golf Course Pond No. 4, decreed 20.0 acre feet. conditional, is located ir the SW% SE~ of Section 31, T. 4 S., R S2 W. of the 6th P.M., whence the S~ comer of said Section 3~ bears S. 57 e 15 W. 1,520 feel 5. Golf Course Pond No.5, decreed 4.0 acre feet. condfUonat, :s located in the SW14 SWY.. of Section 32, T. 4 S., R. 82 W. of the 6th P.M., whence the SW comer of said Section 32 bears S. 48 ° W. 1,300 feeL B. Uses: lrrlgation, recreation and piscatorial uses. C. Date of initiation of appropriation: July 13 1 1990. D. The sources of the Golf Course Ponds Nos. 1 through 5, indus!ve, are: Spring Creek via the Groff Ditch ~ Cotlonwood Enlargement ( 1 cfs ); Bum!son Creek vla the Root Ditch (1.6 cfsl decreed in Eagle County District Court., CiVil Action No. 687; Deadhorse Gul::;h via the Root Ditch ~ Reynolds Enlargement (1 cfs) decreed in Case No. 82CW341: and the Eagie River via the Ce>ttonwood Pump and Pipeiine (2 cis). B-6
  • 49. Appendtx BCVC Golf Course Ponds Nos. 1 through 5 E. Each ofthe said reservoirs shall be c:omrtructed by means of embankment of less than ten fest in height F. By the decree entered by the Dtstrict Court in and for Water Division No.5, State of Colorado, on May. 23, 1999, in case No. 98CW249, the !llater rights decreed to Golf Course Pond Nos. 1 through 5, inclusive, were continued as conditior.aL G. Portions of the above-described water rights were made absolute, and the remainder continued as conditional, by 1he decree entered by the District Court, in and for Water Division No.5, Colorado, on August 24, 2006, in Case No.Os-GW-095, as follows: 1. Golf Course Pond No. i has been constructed and subsequently used for storage of ~ater and subsequently used for irrigation, recreation, and piscatorial uses at the Cordillera Valley Club golf course (a) Description of portion of conditional water right hereby made absoiute: (i) Date water rights applied to beneficial use: June 1 1993. (ii) Amount made absolute: 6.0 acre-feet. (iii) Uses: Irrigation, recreation and piscatorial uses. H. The month for filing the next application for a finding of reasonable diligence Is August 20 12. B-7
  • 50. APPENDIXC SURFACE WATER RIGHT DECREED TO COITONWOOD PUMP AND Pl?EUNE A conditional surface water right was decreed to the Cottonwood Pump and PipelineIn Case No. 91-CW-033, on December 8, 1992 is summarized for informational purposesas follows: a. Legal description: The headgate is k>cated at a point on the north bank oft"le Eagte River in the SW~ SW!4 of Section 31, T. 4 S., R. 82 W. of the 6th P.M. 1hence theSW comer of said Section 31 bearsS. 5.., W. 500 feet b. Date of initiation of appropriation: July 13, 1990. c. Amount decreed: 2.0 cfs. conditional. d. Uses: Irrigation, recreation and piscatorial uses:. e. Source: Eag}e River. f. By the decree entered by the District Court, in and for Water DivisionNo.5, State of Colorado, on May23, 1999, in Case No. 9BCW249, the water rightdec:reedto Cottonwood Pump and Pipeline was continued as conditionaL g. By the decree entered by the District Court, in and for Water DMslonNo. 5, State of Colorado, on August 24, 2006, In case No. 05CW95, the water rightdecreed to Cottonwood Pump and Pipeline was continued as conditlona1 for all originallydecreed purposes, and the month. for filing the next application for finding of reasonabtediligence is Augustj 20i 2. B-8
  • 51. StJMMIT COURSE, MOtJNTAIN COURSE AND SHORT COURSE WATER R1GHTS 1. Those certain conditional storage water rights decreed in Case No. 91-CW-075 onJanuary 3, 1992, by the District Court in and for Water Division No. 5, State of Colorado, for theGolf Course Ponds Nos.. i through 6, inclusive, which vvate:r :rights are sum.marized on Appeudix A 2. Those conditional water rights decreed to Stag Gulch Diversion Point No. l, StagGuichDiversion PoinfNo. 2, StagGulchDiversion Point No.3, StagGtllchDiversionPointNo. 4,and Stag Gulch Diversion Point No.5, in Case No. 91-C,:{.(]76, on January 3, 1992, by the DistrictCourt in and for Water Division No. 5, State of Colorado. Tne decree for said water rights issummarized in Appendix B hereto. 3. The water right decreed to SCR Diversion Point No. 2, SCR Diversion Point No. 3,SCR Diversion Point No.4, SCR Diversion Point No.5, and SCR Diversion Point No.6 (theGraham Ditch headgate) in U!se No. 89-CW-218 on October 11, 1990, by the District Court in andfor Water Division No.5, State of Colorado. Tne water rights decreed to SCR Diversion PointNo.2., SCR Diversion Point No.3, SCR Diversion Point No.4, SCR Diversion Point No.5, andSCR Diversion Point No.6 are more particularly described in Appendix C hereto. 4. Tne water rights on Squaw Creek descn"bed as follows: Strnetu.re Antount Appropriation ~ Adjudication Date i I Graham Ditch l 1.5 c.f.s. I 6/22!1904 l 2/27/1911 j r Graham Ditch 3.0 c.f.s. 6/i0/1914 J 4tl5/1920 iSaid water rights are subjret to the terms and limitations of the change decree in CaseNo. 91-CW~077, including, hut not limited to, the provisions of paragraph 5; pa:ra.graph 6.b.(1),paragraph 6.c.(3), anrl pa:ragrapb 17. S.aid water rights are SUmmarized on Appendix D hereto. 5. The water rights on Squaw Creek described as follows: Appropriation i Adjndication Structure A..mount Date I I ~ l Dora B Ditch 1.0 c.fs.. 11/1/1892 lj 6/29/1&94 l Henderson Ditch 0.90 c..f.s. 2/27/1911 i 6/2&1907 Sara M Ditch OAO cJ.s. 5/1/i 892 I ! 6/29/1894 B-9
  • 52. Said Dora B Ditch and Henderson Ditch water rights are subject to tbe terms and limitations of thechange decree in Case No. 91..CW -077, including, but not limited to, the provisions ofparagr-aphs 5, ·6.b.(2), and 6.c.(3) of said decree. Said water rights are summarized in Appendix E hereto. SaidSara M Ditch water right is subject to the terms and limitations of the change d~ in Case No.97-CW-280, including, but not limited to, the provisions of paragraphs 7.a.(4}, 8.a., and 8.b. of saiddecree. Said water rights are summarized in Appendi:x_ F hereto. 6. 23 5 acre-feet of the water ~ IJnjted States DepartnJent of the Interior WaterService Contract No. 4-07-60-WT015, dated Apri121, 1994, for the delivery of water from GreenMountain Reservoir, Colorado Big-Thompson Project, Colorado. 7. The water right decreed to Eagle Riv::::r Diversion. Point No. 1. Toe water righi decreedto Eagie River Diversion ?oint Nc. 1 is more particularly descn"bed in Appendix. G hereto. 8. The right to divert by exchange the water rights descnbed in paragraphs 1, 2, 3, 4, and5, above, at eagle River Diversion Point No. 1. Said right of exchange was decreed a rate of tlow of5 c.f.s.., with a December 19, 1997 appropriation date byparagraph9.b. of the decree in Case No. 97-CW-280, subject to the terms and conditions in paragraphs nos. 5, 22, and 26 of said decree. 9. The water rights on East Lake CJ-eek described as follows: il Structure f ~ l Amount App,.opriation nate Adjudication Date l ~ Creamery Ditch ! ! i 3AO c.fs. 5/5!1897 5/5/1901 1 I Creamery Ditch, First ement I 3.63 c.f.s. 1 1 5/5!1898 1013/1936 ISaid water rights a.-e subject to the terms and limitations of the change decree in Case No. 9.9-CW •031, including, butnotlimited to, theprovisionsofparagraphs l Le., 23 ;md24ofsaid decree. Saidwaier rights are summa..rized in Appendix H hereto. 10. 10 acre.~feet (1000/t.) ofEagle River Supply pursuant to Water Supply Contract withColorado River Water Conservation District, acting by and through its Colorado River Water ProjectsEnterprise (CRWCD 99-12), dated July 30, 1999. 1L The conditional water rights decreed to Mountain Tract Springs Nos. 3, 4, and 5 inCase No. 97-CW-279,on November9, 1998, by the District Court in and for1ater Division No.5,State of Colorado. The decree for said water rights are summarized in Appendix L 12. An interest in and benefit of the plan of augmentation decreed by the Water Court inCase No, 86~CW-153 on August 1&, 1987, as amended by the decrees of the Vater Court entered in 2 B-10
  • 53. Cases Nos. 87-CW-310, 89-CW-217, 91-CW-O?R, 95-CW"..(I4{), 95-CV-041, 97-CW~280, 99-C"w- 170, 00-CW-011, and 01-CW-123 commensumte"1th the water rights conveyed herein. An interest in and benefit of the plan of-augmentation decreed by theW ater Court in 13. Case Nc. 91-CW-077 onJanuary3, 1992, as am~ by the decrees of the Water Court e:o.tered in Cases No&. 95-CW~040, 95--CW-041, 96-CW-021, ~n·CW-280, 99-CW-170, (:)O.,..CW..Oll, and 01- CW -123 commensurate with the ater rights conveyed herein. TOGEIH".cR VITH Grantors ditches, headgates, pumps~ pipelines., and other facilities cu_rrenrly used to deliver the non:potable ~ater for irrigation ~ses to the Cordill.era.Monntaln Golf Course, the Cordiliera Short Golf Course, and the Cordill::::m Summit Golf Cou.."Se, inclt.u:iing, but not limited to, facilities located on the recorded e":tSeiJJ.ents described in the follo-wing instruments: (1) QuitClaim Deed recorded November 10, 1992 in Book 594atPage45,in the Eagle Cmmty, Colorado records ("Petty Parcel") (2) Amendment tc Easement Agreement recorded Novemher 10, 1992, in Book 594 at Page 44, in the Eagle County, Colorado records ("Petty Parcel) (3) Sewer Easement Agreement between Stag Gulch Partners and John Zehren recorded October 23, 1995 as Reception No. 57 4&90. in the Eagle County, Colorado records (4) Second .4.mend.ment to Easement Agreement recorded December 22, 2000, as Reception No. 746&45 in the Eagle County~ Colorado records ("Zehren Parcel") (5) Easement Agreement recorded September 13, 2002, as Reception No. 807157 in the Eagie County, Colorado records ("Archdiocese Pa..r.ce!") Together witb. any and an water rights, easements, facilities or other interests of Gl:"c:mtors, if any, in and under the following: (1) Deed of Trust, Assignment of Rents and Leases, and Security Agreement among Stag Gulch Partners, Eagle Gol~ LLC, Squaw Crrek Realty Corp., Cordillera Valley Club lnvestors Limited Partners, Wilmar Development LLC, Kensington Partners and Galena Partners and the Public Trustee of the CoUOJ.j of Eagle, State of Colorado and A..lpine Bank. re--..orded August 5, 2{)04 as Reception No. &&6691 in the Eag1e County, Colorado rec-.ords B-11 3SDCA_149El:3S!i.2
  • 54. (2) Deed of Trust among Eagle Golf, LLC and Cotdillera Summit Golf, Inc., recorded August 5, 2004 as Rec....t>tion No. 886688 in th.e Eagle County, Colorado recordsr.,).) Deed of Trust among Eagle Goif, LLC and Cordillera Summit Golf, lnc. reoorded ~PUSt 5, 2004 as Rec...--ption No, &86689 in the Eagle County, Colorado records Deed of Trust among Kensi"lgton Pa.1.ners, Eagie GolfU..C and Cordillera Summit Gol~ Inc., recorded August 5, 2004 as Reception No. 886690 in the Eagle County, Colorado re:::ords Deed ofTrost for Stag Gulch Partners, recordo:lMmch 23, 1991 as Rece:ption No. 53 1699 in the Eagle County, Colortldo records(6) Quitciaim Deed betw-een Castile Properties, Inc. and Stag Gulch hrtners recorded December 31, 1990 as Re""....eption No. 441 040 in t.~e Eagle County, Colorado records(7) Special Warranty Deed between Creamery Guicb Land Company, Inc. and Kensington ?artners, recorded December 15, 1998 as Reception No. 680144 in the Eagle County, Colorado records (8) W a:ter rights conveyed by Warranty Deed among Florene Fenno & Co., et al. and Valley Realty Corp. rerorded January 9, 1990 as Reception Nc. 416995 in the Eagle County, Colorado records (9) Special Warranty Deed between Chris P . .iouflas and Stag Gulch Partners recorded September 16, 1991 as Reception No. 458373 in the Eagle CoUIL."y, Colorado :records (10) Warranty Deed between Castile Properties, Inc_ and Stag Gulch Partners recorded December 31, 1990 as Reception No. 441 043 in the Eagle Colllll."y: Colorado records (11) Recovery Implementation Program for Endanger"--d Fish Species, (part of letter from ES. Department of Interior, Fish & Wildlife Services, dated March 9, 2000 regarding enclosing Recovery Agreement) 4 B-12
  • 55. ( 12) Agreer:J:L,<>nt Between Kensington Partners, Stag Gulch Parmers, Goshawk Development, L.L.C and TmeeOne Two, LL.C. fur Easement and Access to the Graham Ditch Pipeline through the Kelly hopert:)r, dated June 1 C; 2008(13) Agreement between Kensington Pa,:tners, Stag Gulch Partners, Goshawk Development lLC and Richard and Francis Craig, recorded November 21, 1997 as Reception No. 640200 in the Eagle Coun_ty, Colorado records( 14) Eas.....""!nent Agreement between Cordillera Lodge & Spa, LLC and Eagle Golf: LLC recorded on Dece:r:nber 18, 2003 as Reception No. 8.62401 in the Eagle County, Colorado records(15) U.S. Department of Agriculture Forest Service Special Use Permit ior Smg Gulch Partners. issued November 25, 1992(16) Tim Eller- verbal agreement ali owing for water, as available. 5 B-13
  • 56. APPENOlXA GOL.F COURSE PONDS NOS. 1 THROUGH $ Conditional water storage rights were decreed by the District Court if"l and for WaterDivision No.5, Colorado in Case No. 91-CW..OT5, on January 3, 1992, forthe proposedGolf Course Ponds Nos. 1, 2, 3, 4, 5 and 6, summarized for informational purposes asfolio<A>s: A. Legal Descriptions: 1. Golf Course Pond No. 1, to be located in the SE-;4 of the SEY. of Section 10, Township 5 South, Range 83 West of the 6th P.M., and ·In 1he NE)4 of the NE!4 of Section 15, Township 5 South, Range 83 West of the 5th P.M. 2. Golf Course Pond No. 2, to be located in the NE% of the NEY. of Section 15, Township 5 South, Range 83 West of the 6th P.M., and in the NWh of the NE~ of said section. 3. Golf Course Pond No. 3, to be iocated In Section 15, Township 5 South, Range 83 Westofthe6th P.M., in the NE~of the NE1Aofsak! section. 4. Golf Course Pond No.4, to be located in Set....-tion 14, Township 5 South, Range 83 West of the 6t1 P.M., in the NW~ of the NW:4 of said section. 5. Gotf Course Pond No.5, to be bcated in Section 14, Township 5 South, Range 83 West of t,e 6th P.M., in theSE~ of the NW;4 of said section. 6. Golf Course Pond No. 6, to be bcated in Section 14, Township 5 South, Range 83 West of the 6th P.M., in the SW~ of the NW!4 of said section, B. Amount: Ten acre---feet tor each reservoir from the sources named in satd decree, wittr the right to fiU and refill continuously. C. Uses: Eitl-rer directly or by subsequent releases for irrigation, augmentation, repiacement, exchange, storage, stockwatenng, recreation, piscatorial, golf course hazard, and fire protection purposes. B-14
  • 57. D. Date ofkdtiation of appropriation: Aprtl26, 1990.E. Each of the reservoirs will be fiUed by one or more of the following: ·~ ; . The Graham Ditch, the capacity of which is 8 c.f.s., the point of diversion for said Ditch on Squaw Creek is on the west bank of Squaw Creek, in the SEY4 SE:4, Section 23, Township 5 South, Range 83 West of the 6th P.M., from which the Southeast Comer of Section 23 bears S 24~x E a distance of approximateiy 1,650 feet, with the right to fiU and reiil! each reservoir cominuousiy. 2, Each reservoir may also be filled and refined by diversions through t~e diversion structures decreed in Case No. 91..CW..076, at the locations set fof.h in that decree and repeated as foUows: (a) Stag Gulch Diversion Point No. 1 is located on Stag Gulch, a tributary of Squaw Creek. a tributary of the Eagle River, on Stag Gulch at a point located in Section 14, Township 5 South, Range 83 West of the 6th P.M., from which the NW Comer of said Section 14 bears N 21°45x, W a distance of approximately 3,500teet {b) Stag Gulch Diversion Point No.2 is located on Stag Creek, a tributary of Squaw Creek., a tribtr.81)1 of the Eagie River, on Stag Creek at a pornt iocated In Section 14, Township 5 South, Range 83 West of the 6th P.M. from which the NW Comer of said Section 14 bears N 06° W a distance of approximately 1,660 feet (c) Stag Gulch Diversion Point No. 3 is located on Stag Creek, a tributary of Squaw Creek, a tributary of the Eag~e River, on Stag Creek at a point located in Section 15, Township 5 South, Range 83 West of the 6th P.M. from which the NE Comer of said Section 15 bears N 09° E a dista nee of approximately 2,450 feet (d) Stag Gulch Diversion Point No. 4 ts located on Red Draw, a tiblt..ary of Squaw Creek, a triblf..ary of the Eagle River, on Red Draw at a point located in Section 15, Township 5 South, Range 83 West of the 6th P.M. from which the NE Comer of said Section 15 bears N 62° E a distance of approximately 1 ,650 feet B-15
  • 58. Appendix AGolf Course Ponds Nos. 1 through 6 (e) Stag Gu~cn Diversion Point No. 5 is located on Red Draw, a tributary of Squaw Creek, a tributary of the Eagie River, on Red Draw at a point cr,..ated in Section 10, Township 5 South, Range 83 West of the 6th P.M. from which the SE Comer of said Section 10 bearss 34°1 5x E a distance of approximately 420feetEach of these sources listed may be diverted at the rate of 5 c.f.s., with the right to fil! andrefill each reservoir continuously. F. Active capacity in acre-teet in original decree in Case No. 91-GW-75: Ten acre-feet for each reservoir. G. Dead storage in acre-feet in original decree in Case No. 91-CW-075: 0.0 acre-feet for each reservoir. H. Each of the said reservoirs shall be constructed by means of embankment of less than ten feet in height. L By the decree entered by the District Court, in and for Water DMslon No. 5, State of Colorado, on January 26, 1999, in Case No. 9BCW006, the water rights decreed to Golf Course Pond Nos. 1 through 6, inclusrve, were continued as conditional. J. Portions of the above-described water rights were made absolute, and the remainder continued as conditional, by the decree entered by the District Court:, ln and for Water Division No. 5, Colorado, on November 5, 2006, in Case No. 05-CW~22, as folloV~-S: :. Goff Course Ponds Nos. 4 and 5 had been combined at the location of Goff Course Pond No.4 with a total capacfty of 18.84 acre feet, in the NWY4 of the NW-:4 of Section 14, Township 5 South, Range 83 West of the 6m P.M., 850 feet from the North Line and 500 feet from the West Line of said Section 14. 2. Golf Course Pond No. 6, had been constructed in the NWY4 of the NV¥:4 of Section 14, Township 5 South, Range B3 West of the 6 tr, P.M., at a location 980 feet from the North Section Line and 900 feet from the West Section Line of said Section 14, with a capacity of 823 acre feet, and since June 1, 1993, said water has been utilized for the 3 B-16
  • 59. Appendix AGolf Course Ponds Nos, 1 through 6 purposes of irrigation, recreation, storage, piscatorial, golf course hazard, and frre protectbn in the amount af 8.23 acre feet per year, with the right to fill and refill confinuousty. 3. Golf Course Pond No. 1: 2..9 acre-feet is continued as conditional for purposes of irrigation, recreation, storage, piscatorial, golf course hazard and f!re protection, with the right to fif! and refill continuously; and 10.0 acre-feet ls continued as conditional for purposes of exchange, stock-watering, augmentation and replacement. with t,e right to fill and refill continuously. 4. Golf Course Pond No.2: 2.64 acre-feet is continued as conditional for purposes of irrigation, recreation, storage, piscatorial, golf course hazard and fire protection, with the right to fill and refill continuousry; and 10.0 acre-feet is continued as conditional for purposes of exchange, stock-watering, augmentation and replacement, with the right to fill and refill continuousty. 5. Golf Course Pond No.3: 10.0 acre-feetis continued as conditional for purposes of irrigation, recreation, storage, p!scatortal, golf course hazard, fire protection, ex.changa, stock-watering, augmentation and replacement, with the right to fill and refill continuously. 6. Golf Course Pond No.4: 10.0 acre-feet is continued as conditional for purposes of exchange, stock-watering, augmentation and replacement, with t!te right to fill and refit! continuously, 7. Golf Course Pond No.5: 1.16 acre-feat is continued as cond!tiona~ for purposes of irrigation, recreation, storage, piscatorial, golf course hazard, and fire protection, with the right to fifl and refill continuous,y. 10.0 acre-feet is continued as ronditional for purposes of exchange, stock-watering, augmentation and replacement. with the right to fill and refill continuousty. 8. Golf Course Pond No.6: 1.77 acre-feet is continued as conditional for purposes of irrigation, recreation, storage, piscatorial, golf course hazard, and fire protectton, with the right to fill and refil! continuousty. 10.0 acre-feet is continued as conditiona! for purposes of exchange, stock-watering, augmentation and replacement, with the light to fill and refill continuously, 4 B-17
  • 60. Appendix AGolf Course Ponds Nos. 1 tl-srough 6 9. Description of portion of conditional water rights hereby made absolute: (a) Date water rights appiied to beneficia! use: June 1, 1993. (b) Amount made absolute: 8.84 acre-feet for Gol.fCourse Pond No. 5 at the new location., and 8.23 acre-feet for fue wat.tt right for Golf Course Pond No. 6 at tlris new location (c) Uses: lrrigation, recre:arion, storage, piscatorial, golf course hazard, and fire protection, with the right to fill and refill continUOUSiy. (d) Place where water has been applied to be.lefictai use: Pursuant to the decree in Case No. 91-CW--075, lands in Sections 1, 2., 9, 10, 13,14 and 15, T.5S., R.83W of the 6th P.M., and in Section 6-, T.SS-. RB2W of the 6th P.M. will be irrigated In part by the subject water rights. The total presently irrigated acreage is approximately 75 acres. 10. The month for filing the next application fur a finding of reasonable · diligence is November 2012. 5 B-18
  • 61. APPENDIX B DIRECT FLOW WATER RlGHTS DECREED TO STAG GULCH DIVERSION POINTS NOS. 1 THROUGH 5 Conditional direct flow water lights were decreed in Case No. 9-CW-076 onJanuary 3, 992, summarized for informational purposes as foliovS: A. Lega! descrlpf1on of each point of diversion: 1. Stag Gulch Diversion Point No" 1 is iocated on Stag Gulch, a tnbutary of Squaw Creek, a tributary of the Eagle River, ai a point located in Section 14, Township 5 South, Range 83 West of the 6th P.M., from which the NW Comer of said Section 14 bears N 21°4-5r. W a distance of approximately 3,500 feet 2.. Stag Guich Diversion Point No. 2 is located on Stag Creek, a tributary of Squaw Creek, a tributary of the Eagle Rrver, at a point located in Section 14, Township 5 South, Range 83 West of the 6th P.M., from which the NW Comer of said Section 14 bears N 06° W a dista~--e of approximate~y 1,660 feet 3. Stag Gulch Diversion Point No.3 is located on Stag Creek, a tributary of Squaw Creek, a tributary of the Eagle River, at a point located in Section 15, Township 5 South, Range 83 West of the 6th P.M., from which the NE Comer of said Section 15 bears. N ogO E a distance of approximately 2,450 feet. 4. Stag Guich Diversion Point No. 4 is located on Red Draw, a tributary of Squaw Creek~ a tributary of the Eagle River, at a point located in Section 15, Townshtp 5 South, Range 83 West of the 6th P.M., from which the NE Comer of said Sectton t 5 bears N 62° E a distance of approximately 1,650 feet. 5. Stag Gulch Diversion Point No. 5 Is iocated on Red Draw, a tributary of Squaw Creek, a tributary of the Eagle River, at a point located In Section 10, Township 5 SotJth, Range 83 West of the 6th P.M. from which the SE Comer of said Section 10 bears S 34°157,. E a distance of approximately 420 feet. B. Date of initiation of appropriation: April 26, 1990. B-19
  • 62. Appendix BDirect Fbw Water Rights Decreed toStag Gulch Diversion Points Nos. 1 through 5 C. Amount The amount of water decreed is 5 c.f.s., condttlona!, for each ofStag Guich Diversion Points Nos. 1, 2., 3, 4 and 5, inclusive, when Vttater is being stored forsubsequent beneficial use. The total of diversions at all of the aforesaid five (5) points of.diversion and at EagJe River Diversion Points Nos. 1 , 2 and 3, inclusive, and SCRDrverslon Points Nos. 5, 6 and 7, inclusive, tor use on a direct flow basis shaU not exceedthe amount of 5 c.f.s. at any one time. D. Uses: irrigation, domestic, repiacement, exchange, storage,stockwatering, commercia!, golf course hazard, recreation, piscatorial and fire protectionpurposes. E. Sources of water. Stag Gulch, Red Draw and Squaw Creek., all tributary tothe Eagle River. F. Reasonabie diligence for the above-described water rights was found oythe District Court, In and tor Water Division No.5, Colorado, on January 18,2006, In CaseNo. 04-CW-208, and the month for filing the next appUcation for a finding of reasonablediligence is January, 2012.. C:OO:::UM2W"S AND SE:TTlN~iTT:JR!"LOCA!.. S~TEM;>~ ~M:T i"LESOl.K!ICV.P?ENtlOC !5 OtWZOll l)WP::J B-20
  • 63. APPENDIX C SURFACE WATER RtGHT DECREED TO SCR DfVERSlON POINT NOS. 2 THROUGH 6L SCR Diversion Point Nos. 2 through 4. Conditional surface water rights were decreed to SCR Diversion Point Nos. 2 through 4,inclusive, in Case No. 89-CW-218, on October i 1, 1990, and are summarized torinformational purposes as follows: A. Legal Descriptions: 1. SCR Diversion Point No. 2 is located on Squaw Creek at a point whence the SW comer of Section 13, Town~hlp 5 South, Range 83 West of the 6th P.M. bears South 8"35 We& at a distance of 2,990 feet. 2. SCR Diversion Point No.3 ls tocated on Squaw Creek at a point whence the SW comer of Section 13, Township 5 South, Range 83 We& of the 6th P.M. bears South 10"301 West at a distance of 2,810 feel 3. SCR Diversion Point No.4 is the headgate of the Graham Dttch located at a point on Squaw C~k whence the SE comer of Section 23, Township 5 South, Range 83 West of the 6th P.M. bears South 24"301 East at a distance of 1,650 feet. B. Date of initiation of appropriation: May 5, 1989. C. Amount decreed: 5 c.f.s., conditionaL D. Uses: Irrigation, domestic, augmentation, municipal, replacement, exchange, storage, stockwatertng, commercial, recreation, and f1re protectton purposes. E. Source: Squaw Creek, a tributary to the Eagle River. r. By the decree entered by the District Court, in and for Water Division No. 5, State of Cororado, on Juty 15, 1~97, in Case No. 96CW270, the water rights decreed to SCR Drversion Point Nos. 2, 3, and 4 were continued as conditionaL G. By the decree entered by the District Court, in and for Water Division No . 5, State of Colorado, on June 7, 2004, in Case No. 03CW165, thewatenightsdecreedto SCR Diversion Point Nos. 2, 3, and 4 were continued as condmona! for all onginaUy decreed purposes, and the month for filing the next application tor fEnding of reasonable difigence is June, 2010. C:OO:::!UMENTS AND S2!"11NGSIKW~"IL~ 3ETt1NGS.I:M"ORARY INTERNE~ ft..ESO..K9CV.??ENOIX C OS:tZO!!.WPO B-21
  • 64. H. SCR Diversic>n Point Nos. 5 and S Conditional surface water rights were decreed to SCR Diversion Point Nos.. 5 and 6 incase No. 91-CW-76, on January 3, 1992., and are summarized for informational purposesas follows: A. Legal Descriptions: 1. SCR DiVersion Point No. 5 is kocated at or below the headgate of the Dora B. Ditch, at a point on. Squaw Creek described as tallows: a point in the NE~ of the SE% of Section 2, T.5S., R.83W. of the 6th P.M., from which the Southeast Comer of Section 2 bears S .S""15x;E. a distance of approx:imatety 2,250 feet. 2. SCR Diversion Point No. 6 is located at or below the headgate of the Henderson Ditch, at a point on Squaw Creek described as follows: a point in theSE% oftheSE~ofSection 2, T.5S., R.83W. of the 6th P.M., fromwh)ch the Southeast Comer of Section 2 bears S.44"30x;E. a dtS"~nce of approximately 1,200 teet B. Date of initiation of appropriation: April 26, 1990. C. Amount decreed: 5 cJ.s., conditional. D. Uses: Irrigation, domestic, replacement, exchange, storage, stockwatering, commercial, gotf course hazard, recreation, piscatorial, and fire protection purposes. As part of said uses.- each structures use will include use as a supplemental source of water as further described in Applicants decreed pans of augmentation in Cases Nos. 91-CW-077 and 91-CW-078, as amended. E. Source: Squaw Creek, a tributary to the Eagre River. G. By the decree entered by the District Court, in and for Water Division No. 5, State of Colorado, on January 18, 2006, in Case No. 04-CW-208, the V~.-ater rights decreed to SCR Diversion Point Nos. 5 and 6 were continued as conditional for all originally decreed purposes, and the month for filing the next appitcation tor finding of reasonable diligence is June, 2012. ::::CIOCUMS!iT<i AND SE:TTINGSKWrrTORFI!..CC"-L 5ET11NOS"fEM"o;:w:IY lNTEltNS Ff...SSOiJJICW>PENDlX C 0St~.W:::>::> B-22
  • 65. APPENDlX 0 GRAHAM DITCH SENIOR WATER RIGHTS Water rights decreed to the Graham Ditch, and changed by 1he decree entered onJanuary 3, 1992 in Case No. 91-CW-0 77, are summarized far informational purposes esto nom: Appropriation AdjudicationI Structure Amount Date Date Graham Dltd1 1.5 c.f.s. 6/22/1904 2127/1911 Graham Ditch 3.0 c.f.s. 6/10/1914 4/15/1920 a. The water rights were historically used to irrigate hay and pasturelands described in Exhibit A and depicted on Exhibit H to said decree. b. The headgate of the Graham Dltch is ocated at a point on SquawCreek whence the SE Comer of Section 23, Township 5 South, Range 83 West of the 6thP.M. bearsS 24°30x E a distance of 1 j650 feet. c. Under the decree in Case No. 91-CW-on, dated January 3, 1992: (1) The following changes to the water rights were approved: No substantial change wm occur in the location of irrigation usage on the planned golf course development on the land described in Exhibit A to said decree with the two water rights decreed to the Graham Ditch, so long as the return flow patterns set forth on Exhibit P to sakl decree are continued. ~n addftion to the decreed irrigation use, the above--listed water rights are to be used directty and/or by exchange, on the lands described.on Exhibit A to said decree and on the lands described in Exhibit C to said decree, for Irrigation, domestic, municipal, stockwatering, augmentation, replacement, exchange, commercial, recreation, golf course hazard, piscatorial and fire protection purposes and for storage for each such purpose. The acrsage histortcalty irrigated is depicted on the map attached as Exhibit N to said decree. The use of the water rights is approved for irrigation of the tands described in Exhibits A and C and is aUowed for the above--stated purposes other than irrigation onty through augmentation, repiacement or exchange utmz!ng the consumptive use credits associated with said rights, subject to the total consumptive use not exceeding the credits assoc:ated with said rights listed below: 1- l Mont i Acre-Feet ,h May 1s.a r June o3.1 I jJuly 94.8 1 B-23
  • 66. r Mon+ I I lh! Acre-Feet I Aug I 83.5/ ! Sept I 47.3 l ~ 1 Oct ! 15.8 1I l Total l 320.3 iiThe use of the water rights is a~so subject to the rights beIJg in priority and physicallyavailable at the originaHy de"vreed headgate location alld subject to the diversion iimv..sprovided in c.(2), below. Water applied directly to tnigation shall be assumed to be90% consumptive~ used. The foliowing accounting procedures are required:(1) project annuany the amount of t1e Graham Ditch consumptive use that would beused directly for irrigation and the amount of Graham Ditch consumpnve use credits tobe used by augmentation, replacement or exchange; (2) submit monthly projections forthe items listed in subparagraph (1 ); and (3) Applicants actual use may vary from theprojected use upon consultation and approval by the Division Engineer or hls WaterCommissioner. (2) The diversion in any month shall not exceed the maximum historic diversion for that month, as set forth below, and the ten-year running total of the monthJy dwecrsions shall not exceed ten times the average historic diversion amount for the month: Diversion limits (acre-feet} Max.. Annual Ma:t June July Aug. Seol Oct. Tot:at* GRAHAM DITCH maximum allowable 204 267 276 276 267 190 ~t248 10-year running tota! 350 1520 2050 1730 1160 560 ):XX *Total is based on maXimum annual diversion of record, but not to exceed decreed amount (3) Not more than frfty percent (50%) of 4.05 c.f.s. of-water delivered under the Graham Ditch water rights may be consumptively used. The said 4.05 c.f.s. or lesser deHvered amount shall be measured by a measuring device to be instalted in the Graham Ditch immedtatef)t below the point where t"le ditch enters the property described in Exhibit A to the decree and at the points described in paragraph d., below. d. The foUowing attemative points of diversion were approved forthese water rights: (1 ) The Metcalf headgate, which is located on the north bank of the Eagle Rivetin Section 7, Township 5 South, Range 81 West of B-24
  • 67. Appendix DGraham Ditch Senior Water Rights the 6th P.M. at a point from which the SE Comer of the SWY,. of said Section 7 bearsS 53°0Dx.40 .. E 1,446 feet. (2) The Raw Water Booster Pump Headgate, which is located at a point on the north bank on the Eagie R1ver at a point from which the SW Comer of the NW:.4 of Section 12, Township 5 Souti-t, Range 82 West of the 6th P.M. bears S 18c01 x34" W 1 ,551 .13 feet.The cor.sumptive use credit for the rights may be used for augmentation, rep~acementand exchange at t"le alternate points of diversion. No rights to utilize said alternatepoints of diversion are owned by Grantors, and no such rights are conveyed herein. e. tn addition, the following alternative points of diversion were alsoapproved for these rights: (1) The headgate of the Dora B Ditch, located at a point on Squaw Creek described as follows: a point in the NEX of theSE~ of Section 2, Township 5 South, Range B3 Wef:A of the 6th P.M., from which the SE Corner of Section 2 baars S 9°15x E a distance of approximately 2.,250 feel (2) The headgate of the Henderson Ditch located at a point on Squaw Creek described as follows: a point in the SEA of the SE:.4 of Section 2, Township 5 South, Range 83 West of the 6th P.M., from which the SE Comer of Section 2 bears S 44°30x E a distance of approximately t ,200 feet.Sub.ect to the limits in said decree, including but not limited to those described above inparagraphs c.(1) and (2) above, the water rights decreed to the Graham Ditch may beutiltzed for irrigation through diversion at these alternate points of dtverslon, orconsumptive use not utilized for said Irrigation may be utiilzed fur augmentation,replacement or exchange purposes at said alternate points of diversion. 3 B-25
  • 68. APPENDIX E DORA B DITCH AND HENDERSON DfTCH WATER RJGHTS Water rights decreed 1o the Dora 6 Ditch and the Henderson Drtch, and changed bythe decree entered on January 3, 1992 in case No. S1-CW..IJ77, are summalized forrmormatlona! purposes as foIiows: Appropriation Adjudicationj Structure I Amount ~ Date I !I~ .Dora 8 Ditch I 1.0 cJ.s. 11/1/18S2 o/29/1894 i 1I Henderson Ditch I 0.90 cJ.s. ! 6/28/1907 2127/1911 I a. The 1:ater rights were historically used 1o irrigate hay and pasture lands described in Exhibit C and depleted on Exhibit H to said decree. b. The head gate of the Dora B Ditch Is ocated at a point on SquawCreek descnbed as follows: a point ln the NEX of the SEX of Section 2, T.5S., R.83W. ofthe 6th P.M., from which the Southeast Comer of Section 2 bears S.9°15xE. a distance ofapproximately 2,250 feet. c. The headgate of the Henderson Ditch is k>cated at a point on Squaw Creek described as follows: a pointin theSE~ of the SEX of Section 2, T.5S., R83W. of the 6th P.M., from which the Southeast Corner of Section 2 bearsS .44°30xE. a distance of approximate!y 1 ,200 feet. d. Under the decree in Case No, 91-CWJJ77, dated January 3, 1992: (1) The following changes to the water rights were approved: in addltion to the decreed irrigation use, the above- listed water rights are to be used directly and/or by exchange, on the lands described ih Exhibit A to sa1d decree and on the lands described ir. Exhibit C to said decree, for irrigation, domestic, municipal, stockwatering, augmentation, replacement exchange, commercial~ recreation, golf course hazard~ piscatoiial and ftre protection purposes and for storage for each such purpose. The acreage h~storically irrigated is depicted on the map attached as Exhibit N to said decree. The LLse of the water right..s !s approved tor irrigation of the iands descnbed in Exhibits A and C, but Is allowed for the above-stated purposes other than irrigation only through augmentation, replacement or exchange utilizing 1he consumptive use credits associated with said lights, subject to the total consumptive use not exceeding the credits associated with saki rights set forth below: B-26
  • 69. Appendix EDora B Ditch and Henderson Ditch Water Rights I Henderso I Month n Dora 8 DitchI J May l - 0.4 Ditch 0.2) ! i .I June 5.3 1.8j I l Juiy 6.2 2..4 II I Aug 4.4 2..0 jI I Sept l 2.8 1.1 ! I , Oct ! 0.7 0.3 j Total ac ft. ~ LB! IThe use of the water rights !s aloo subject to the rights being in priority and physicaUyavailable at the orig1nalty decreed headgate location and subject to the diversion limitsprovided in d.{2), below. Water appled directly to irrigation shall be assumed to be 90%consump~ly used. (2) The diversion in any month shal! not exceed the maximum historic diversion for that month, as set forth below, and the terr-yaar running total of the monthty diversions shall not exceed ten times the average historic diversion amount for the month: Diversion iimfts (acre-feet) Annual May June July Aug. Se2t. Oct Totar DORA B D1TCH* maximum allowable 61 59 61 61 59 59 364 10~year running total 160 590 610 610 530 280 XXX HENDERSON DfTCH* maximum allowable 55 53 55 55 53 55 327 1 o-year running total 90 400 370 290 190 90 XXX .. When used soiey for irrigation purposes pursuant to said decree . ... Total ls based on maximum annual diversion of record, but not to exceed decreed amount. B-27
  • 70. Appendix EDora B Ditch and Henderson Ditch Water Rights e. The fo!iowing alternative points of diversion were approved for thesewater rights: (i ) The Metcalf head gate, vvhich Is located on the north bank of the Eagle River in Section 7, Township 5 South, Range 81 Westofthe6th P.M. at a point from which theSE Comer of the SWY.. of said Section 7 bearsS. 53°DOx:40" E. 1,446 feet. (2) The RawWaterBoo?ter Pump Headgate, which is located at a point on the north bank on the Eage River at a point from which the SW Comer ofthe NW~ of Section 12, Tovmship 5 South, Range 82 West of the 6th P.M. bearsS. 18°01x34• W.1,551.13 feet {3) The headgate of the Dora B Dfich1 located at a point on Squaw Creek desCribed as follo-ws: a point in the NEX of the SEY< of Section 2, Townsh{p 5 South., Range 83 West of the 6th P.M., from which theSE Comer of Section 2 bears S. 9°15t E. a distance of approximately 2.250 feet. ( 4) The headgate of the Henderson Ditch located at a point on Squaw Creek described as ioliows: a point in the SEX of the SEY4 of Section 2, Township 5 South, Range 83 West of the 6th P.M., from which the SE Comer of Section 2 bears S. 44 °30r.. E. a distance of approxtmateiy 1,200 feeL (5) The headgate oi the Graham Ditch iocated at a point on Squaw Creek whence the SE Comer of Section 23, Township 5 South, Range 83 West of the 6tn P.M. bears S. 24o-30E. a distance of 1 ,e50 feetOnly the consumptive use credits for the water rights may be used for augmentation,replacement and exchange at the alternate points of diversion. No rights to uiiitz.e thealtemate points of diversion described in e.(1) and e.(2), above, are owned by Grantors,and no such rights are conveyed herein. f. . If notice is given the DMsion Engineer on or befe>re May 1st of anyyear, said water rights may be used for irrigation ohly during that year subject to thediversion limits and terms set forth in paragraph 5 and in paragraph 6 .b.{2) of the decree incase No, 91-CW-077, summarized in d.(1) and c.{2), above. B-28
  • 71. Appendix EDora B Ditch and Henderson Ditch Water Rights g. !n addition to the above described uses the Dora B Ditch andHenderson Ditch water rights may be used for augmentation . of water used on theCordillera Summit Golf Course pursuant to the decree entered in Case No. 99-CW-031 onSeptember 27, 1999. h. in the decree in Case No. 9S-GW-031, Applicants agreed that theiruse of the Dora B Ditch and Henderson Ditch water rights at the Cordillera Summrt GolfCourse, whether for direct diversion or augmentation, shall be limited to t"te histoneirrigation season, unless previously stored in priority during other times of the year, andshall not result in an expansion of the historic use of those same rights, As such,Applicants agreed to limit monthly dtversions under this decree to the ronsumptive useamounts identified above, for use at the Summit Gotf Course. ~:DOCUI.SNTS AND S!ml~"KWITTOi!""Ltr...A:. S~iTEhPORIItr p..;-~"T R_ESQI.Jai:::V-.P?EIIDIX t OS17!lltWPO B-29
  • 72. APPENDIX F SARA M DlTCH WATER RlGHT The water right decreed to the Sara M Dftch, and changed by the decree entered onAugust 28, 1998 in Case No. 97-GW~280, is summarized for informational purposes esfolio1S: I ! Appropriation Adjudication Structure I Amount Date i i i Datei Sara M Ditch i 0.4 cJ.s. 5/1/1892 I 6/29/1894 I J a. The h-ater right was historically used to lnigate 20.9 acres of pasture grassdepicted on Exhibit M to the application, which application is attached as Exhibit 9 to saiddecree. b. Actual Legal Description of Headgate: On the right (east) bank. of SquawCreek at point from whence the NW oomer of Section 1, Township 5 So!Jth, Range 83WeSr. of the 6th P.M. bearsS. 74.54 114" W. 2328 feet. c. Originany Decreed Legal Description of Headgate~ On Squaw Creek,located at a point above :.4 mile south ofthe SW comer of the SE:-4 SWX of Section 36,Township 4 South, Range 83 West ofthe 6th P.M. d. Histone Use: The average annual diversion amount is about 27 4 acre-feetper year tor thts water right The historic consumptive use attributed to this water right !sapproximately 33.9 acre-feet per year on average. Monthly historic consumptive usecredits are decreed as follows: Historic QQnsumptlve Use Credits {acre-feet) April May June July August September October Tota! 0.10 2.80 8.10 8.70 7.80 5.00 1.40 33.90 e. Under the decree in Case No. 97-CW-280. ( 1) in additbn to the decreed irrigation use, the above-described Sarnh M Ditchwater right may b;? used directly andlor by exchange, on the lands described in paragraphs8.d. and e.e., and paragraph 8.L, of said decree tor irrigation, domestic, municipal,stockwatering, augmentation, replacement, exchange, commercial, recreation, go!f coursehazard, piscatorial and fire protection purposes and for storage for eac.1 such purpose. B-30
  • 73. The Sarah M Ditch water right may be used for the above-stated purposes only throughaugmentation, replacement or exchange utilizing the consumptive use amounts of waterassociated with saki water right set forth above. The Sarah M Ditch right shall not beutmz.ed to directly irrigate or augment depletions in the Brush Creek drainage portion of theMountain Tract property described in paragraph 8J. of the decree. {2) The decreed point of diversion for the Sarah M Dnch was changed from theoriginally decreed location described in paragraph (c), above, to the surveyed actualdiversion ~ocafions described in paragraph (b}, above. (3) Alternate points of diversion for the Sarah M Ditch water right were decreedat the Metcatf Headgate and at the Raw Water Booster Pump Headgate, described below. A righ1 to divert the Sarah M Ditch water right by exchange at UERWA Pi~iine Point Aand at Eagle River Diversion Point No. 1 below, was atso decreed. Water shall onty bediverted under these water rights at the alternate points of diversion and at the UERWAPipeline Point A and at Eagle River Dtversbn Point No. 1 during the historic use perbd andin the historic oonsumptive use amounts set forth In (d), above, and oniy at times whenwater is physically and iegalty available at the original point of diversion. (a) The Metcalf headgate, which is located on the north bank of the Eagle River in Section 7, Town ship 5 South, Range 81 West of the Oth P.M. at a point from which the SE Comer of the SW-.I.t of said Section 7 bears S. 53°00t.40~ E. 1,446 feet. (b) The Raw Water Booster Pump Headgate, which is located at a point on the north bank on the Eagle River at a point from which the SW Comer of the NW~ of Section 12, Township 5 South, Range 82 West of the 6th P.M. bears S. 18°01 x34., W. 1,551.13 feet. (c) UERWA Pipeline ?oint A, located on Lake Creek in the SEYtNE;;.t of Section 6, TownshipS South, Range 82 West of the 6th P.M. at a point from Y~thence the NE comer of said Section 6 bears N. 14"0E., a distance of 1,750 feet, in Eagle County, Coiorado. {d) Eag~e River Diversion Point No. 1, bcated on the south bank of the Eagle River at a point described as follows: at a point from which the Southeast Comer of Section 36, Township 4 South, Range 83 West of the 6th P.M. bears s.ss·oo·E. a distance of approximatery 3,840 feet.The rate of ftow for said rights of exchange shall be 2.9 cJ.s., cumulative. The date ofappropriation for the rights of exchange ts December 19, 1997. The downstream terminusof the exchanges shaH be 1he confiuence of Squaw Creek and the Eagie Rrver in Section36, Township 4 South, Range 83 West of the 6th P.M. No nghts to utmze the alternatepoints of diversion described in e.(3)(a) and e.(3)(b), aoove, are owned by Grantors, andno such rights are conveyed hereir.. B-31
  • 74. Appendtx FSara M Ditch Water Right L The exchanges described herein shall be subject to the foliowing additionalconditions: ( 1) Water is physicaUy avaUabe for diversion and release at 1he attemate poimsof diversion and exchange. (2) A live stream ex.ists between the structures invoived. (3) The amount of water diverted at the ~exchange to" point.s is not greater manthe amount of water introduced at the "exchanged from~ points, and may not be greaterthan the amount of water tegally and physically avaHable to the exchanged water rightspriorities owned by the Applicants at the "exchange from" points. ( 4) The exchanges decreed herein shall bear such stream losses as may beassessed by the Division Engineer or his representative. g, In addition to the uses described above, the Sara M Ditch water right can beused to augment diversions ofwaterforthe Gordifiera Summit Golf Course by exchange atthe Eagle River Diversion Point No. 1 pursuant to the decree in Case No. 99-CW-031,entered on September 27, 1999. h. in the decree in case No. 99-CW-031, Applicants agreed that their use ofthe Sarah M Ditch water right at the Summit Golf Course, whether for direct diversion oraugmentation, shall be limited to the historic irrigation season, unless prevlousry stored inpriority during other times of the year, and shal! not result in an expansion of the historicuse of those same rights. As such, Appiicants agree to limit monthly diversions undert~isdecree to ti-)e consumptive use amounts identffied in paragraph d. above, for use at theSummlt Goff Course. C:tlX;Uu;:;.t"$ IJilC Sm"INGSKWlTTORF...OCAL SETT!N13SIi"EMFORARY" lt«T""~S Ftl.J$O!..K.9CVJ>;=oEI-f.)IX > OIJ1roGJNPP B-32
  • 75. APPENDtXG SURFACE WATER RIGHT DECREED TO EAGLE RJVER DfIERStON POINT NO. 1 A condttional surface water right was decreed to Eagle River Diversion Point No. 1,in Case No. 91-CW-076, on January 3, 1992, summartzed for informational purposes asfollows: a. L.ega! descnption of point of diversion: Eagle River Diversion Point No.1 is located on the south bank of the Eagle River at a point described as foliows: at a pointfrom which the Southeast Comer of Section 36, T.4S., R83W. of the 6th P.M. bearsS.56QOOxE. a distance of approximately 3,840 feet. A pump, pipeline, headgate or other appropriate and adequate diversion structure fsptanned at the abOve io:;ation to establish the diversion at the above location of 5 cJ.s.(conditiOnal) of water from the named source. b. Date of initiation of appropriation: April 26, 1990. c. Amount decreed: The amount of water decreed is 5 cJ.s.., condltionat,for Eagle River Diversion Point No. 1 when water is being stored for subsequent beneficialuse. The total of diversions at Stag Gulch Diverston Points Nos, 1, 2, 3, 4 and 5, inclusive,and at Eagle River Diversbn Points Nos. 1, 2 and 3, inclusive, and SCR Diversion PointsNos, 5, 6 and 7, inclusive, for use on a dlrec;t fiow basls shall rJot exceed the amount of5 cJ .s. at any one time. d. Uses: The water c~aimed wilt be us~ either direc;tiy or by exchangefor the following purposes: irrigation, domestic, replacement. exchange, storage.stockwatering, commercia!, golf course hazard, recreation, piscatorial, and fire protectionpurposes, e. Source: The Eagle River. f. By the decree entered by the District Court, in and for Water DivisionNo.5, State of Colorado, on December29, 1998, in case No.. 98-CW-007, the waterriahtdecreed to Eagle River Diversion Point No. 1 was continued as conditionaL ¥ g. By the decree entered by the District Court, in and for Water D1vls!onNo.5, Coiorado, on January 18, 2006, in Case No. 04-CW-208, the amount of 3.4 c.f.sdecr·eed to Eage River Diversion Point No. 1 for irrigation, storage, recreation, golf coursehazard, piscatolia~ and fire protection purposes, and the amount of 5.0. c.f.s decreed toEagle River Diversion Point No. 1 tor domestic, rep~acement, exchange, stockwatering,commercial was continued as o:mditional, and the month for fiirng the next application tor afinding of rsasonabie diligence is January, 2012, B-33
  • 76. h. Description of portbn of conditional water rights hereby madeabsolute: 1. Date water- rights applied to beneftcial use: May, 2004 2. Amount made absoiute: 1.6 c.Ls. 3. Absolute Uses: lnigation, storage, recreation, goif course hazard, piscatorial, and fire protection.. B-34
  • 77. APPENDO:: H CREAMERY OrTCH WATER RJGHTS Water nghts decreed to the Creamery Ditch, and changed by the decree entered onSeptember 27, 1999 in Case No. 99-CW-031, are summariz.ed for informational purposesas follows: Decreed Appropriation Adjudication Priority Source Structure Amount Date ~ No.Creamery Ditch 3.40 cJ.s. May 5. i897 March 5, 1901 172 East Lake Creek Creamery Ditch 385/38 East Lake First 3.63 c.Ls. May5, 1898 October 3, ~ 936 3 Creek Enlargement a. The decreed point of diversion for the Creamery Ditch and CreameryDitch First Enkirgement is located on the right bank of East Lake Creek at a point whencethe Southwest comer of Section 8, Township 5 South, Range 82 West of the 6th P.M.bears North 30"6 East 3,576 feet. b. Under the decree in Case No. gg...oW-031, the foUowing histoneconsumptive use credits were decreed for the Creamery Drrch water rights: Creamery Ditch Rights Decreed Historic Consumptive Use Credits Calculated Credit I acre-teet) April 0.00 May 7.00 June 30.50 july 31.90 August 30.60 September 22..20 October 7.70 T::>tal c. Applicants may oniy use the Creamery Ditch and the Creamery DitchFirst Enlargement water rights consumptive use credits at times when water is physicahyand legally available under those water rights at the original point of divet:sion, and tsbypassing that structure. Applicants shafl bear transit losses on delivery of that water, ifany, which may reasonably be assessed by the Division Engineer. B-35
  • 78. APPENDDC I MOUNTAIN TRACT SPRJNGS NOS. 3., 4, AND 5 WATER RIGHTS The conditional water rights decreed to Mountain Tract Springs Nos. 3, 4, and 5,inclusive, ~n Case No. 97-CW-279, on November 9, 199.8, are summarized forinformational purposes as folio~S: a. Legal descriptions: i . Mmmtain Tract Spring No. 3 is located 1,500 feet from the South section line and 2,050 feet from the East section line, in the h"W"l.: SE~ of Se::tion 16, Townsh.i:p 5 South, Range 83 West of the 6rr. P.M. 2. Mountain Tract Spring No. 4 is located l ,000 feet from the South sootion line and 2.00 feet from the West section line, in the SWik SWA of Section 16, Township 5 South, Range 83 West of the 6u, P.M. 3. Mountain T:ract Spring No.5 .is locatoo 1)00 feet from fue Sou!h section line and 1,54{) feet from the West section line, .in the SE Y.; SW% of Section 16, Township 5 South, Range 83 West of the 6" P.M. b. Date of initiation of approprtatiort: June 11, 1997. c. Decreed Amounts: 1. Mountain Tract Spring No. 3: 0.09 cJ.s. (38.90 g.p.m.) 2. Mountain Tract Spring No. 4: 0.02 c.Ls. (9.35 g:.p.m.) 3. Mountain Tract Spring No.5: 0.01 c.f.s (2.36 g.p.m.) d. Uses: Th>:: water will be used either directly or by exchange fur the foUov.tingpurposes: Irrigation., domestic, replac..."men~ exchange, storage, stockwateri.ng, commercial, golfcourse hazard, recreation, piscatorial and fire protection purposes.. e. Source: Spring discha.rge, tribma.ry to Brush Creek. a tributary to the EagleRiver:. f. By the decree entered by the District Court, in and ior Water DMsbnNc. 5, State of Colorado, on January 30, 2005, In Case Nc. 04CW189, the water rightsdecreed to Mountain Tract Springs Nos. 3, 4, and 5,. inclusive, were continued as C;DOC!JI.IENTI> AND S;:mNGSJ<WlTTOR"LLCAL S;ITTJNC>STEIEORIV<Y II<TERN.Sf Fll..e$01~<1.-sNOJX..J !liH!!Oe.W?D B-36
  • 79. conditjona! for all originally decreed purposes, and the month for filing the next applicationfor finding of reasonable diligence is January, 2012.. ::::DOCUMENTS AND Si!!:TT!NGSKWrTORPL.O:;;AL SErT!NGS"fEM"OMR ll>tTERNET Fll..SSCfc.J{9CoA.FPEN::»: J 00100S.WI>C B-37
  • 80. Bia~k Bear Properties., LLC, JMCG Colorado, LLC, and Academy Woods, Ltd., forconstruction and use of water features !ocated on Lots 2., 5, and 6, Timber Springs,recorded July 2.8, 2008 as Reception No. 200815928. 6. Agreement, between Cordillera VaHey Club investors Umtted Partnership andSummit investments, LLC, for constn.Jction and use of water feature ~ocated on Lot 1,Timber Sp.lings, recorded Septemt:>er 24, 2008 as Reception No. 200820542. 7. All of the water, totaling 65 acre-feet, under United States Department of theInterior Water Service Contract No. 3--07-50-W0903, dated November 30, 1992, fori:hedelivery of water from Green Mountain Reservoir. 8. The plan for augmentation decreed in Case No. 91..CW<>3. B-39
  • 81. APPENDIX A GROFF DfTCH AND ROOT DITCH WATER RIGHTS The water right decreed to the Groff Ditch-Cottonwood Enlargement in Case No.91-CW-33 on December 8, 1992, and the water rights in the Groff Ditch and the Root Ditchand the Root Ditch-Reynolds Enlargement changed by the decree entered on December 8,1992 in Case No. 91-CW--034, are summarized tor informational u oses as follows: Appropriation Adjudication Structure · Amount Date Date Groff Dnch~Cottonwood Enlargement (Upper Groff Ditch) 1.0 cJ.s. 7/13/~990 12/31/1991 Groff Ditch ! I; (Lower Groff Ditch) 6.1 c.ts. I 9/9/1889 12117/1889 ~ l Groff Ditchi (Lower Groff Ditch) I! 0.3 c.Ls. I 4130/1885 l 1211711889 Root Ditch i .6 c.f.s. 6/21/1901 6/4/1917 Root Ditch-Reynolds Entargement 1.0 c.ts. 7/27/1973 12/31/1982 a. The water rights, other than the Groff DitCh-Cottonwood Enlargement, were historically used to irrigate approximately 77 acres of land located in Sections 31 and 32., Township 4 South, Range 82 West of the 6 P.M., Eagle County, Colorado~ 111 b. The headgate of the Groff Ditch is located on the East bank of Spri~ Creek at a point in theSE~ of Sec"Jon 36, Township 4 South, Range 83 West of the 6 P.M., whence the quarter section comer between Sections 31 and 36, Township 4 South, Range 83 West, bears N.60°30 E. 951.5 teet c. The headgate of the Groft Ditch-Cottonwood Enargement is bcated on the East bank of Spring Creek in the NE :4 NE :4. of Section 36, Township 4 South, Range 83 West of the 6tn P.M., whence theE~ comer of said S9clion 36 bears S.3°30E. 2145 feet. d. The headgate of the Root Ditch is located on the Wast bank of Bumlson Creek at a point whence the SW comer of Section 32, Township 4 South, Range 82 West of the 6&. P.M. bears S.47°45W. 2500 feet B-40
  • 82. Appendix A Page 2Groff Ditch and Root Ditch Water Rights e. The point of diversion of the Root Ditch-Reynold Enlargement islocated on Deadhorse Gu~ch at the point where t1e Root Ditch crosses Deadhorse Gulch inthe SW ~ SW :4 of Section 32, Township 4 South, Range 82 West of the 6tn P.M., at apoint whence the SW comer of Section 32 bears S. 29°3928" W. 1421 .5 teet. f. Underthedecreein Case No. S1-CW..034, dated December a, 1992: (1) The Groff Ditch-Cottonwood Eniargement point of diversion v,.-as added as an alternate point of diversion for the Groff Ditch. (2) The Groff Ditch, Root Ditch, and Root Di:tch-.Reynokis Enlargement water nghts were decreed fDr golf course and iandscape storage and inigation purposes on 77 acres of land located within Sections 31 and 32., Township 4 South, Range 82 West of the om P.M., more particularty described in Exhibit A attached to the decree. (3) Applicant agreed not to exercise these rights in such a manner as to calt, or cause an adminlstrative call to be placed upon the 8umlson Ditch (Priority Na. 112) or the Bumison Ditch No. 2 (Priority No. 1i1) as decreed by the Eagle County District COurt in Civil Action No. 294 entered on June 29, 1894. (4) Applicant further agreed to abandon the Groff Ditch Priorities Nos. 334 and 337 decreed by the Eagle County District Court in Civil Actions Nos. $69 and 675, respectively. g. By the decree entered by the District Court, in and for Water D!vistonNo.5, StateofCoiorado, on May 23,1999, in Case No. 98CW249, the water light decreedto Groff ditch--Cottonwood Enlargement was continued as concHtbnaL h. Under the decree entered In Case No. 05-CW-Q95, dated August25,2000, the iolbwing water rights were made absolute: (1) 0.8 of the 1.0 c.f.s. decreed conditional to the Groff Ditch~ Cottonwood Enlargement for irrigation use; and (2) 0.9"3 of the 4 .0 cJ,s. originaUy decreed conditional to the Groff Ditch-Cottonwood Enlargement for recreation and piscatorial uses; B-41
  • 83. Appendix A. Page 3Groff Ditch and Root Ditch Water Rights h. Under the decree entered in Case No. 05-CW-95, U1e following waternghts were rontinued as conditional: (1) 0.2 cJ.s. of the 1.0 c.f.s. decreed conditional to the Groff Ditch~ Cottonwood Enlargement for irrigation use; and (2) 0.07 of the 1 .0 c.f.s. originally decreed conditional to the Groft Ditch-Cottonwood Enlargement for recreation and piscatorial uses;The month for fiiing the next application for finding of reasonab~e diligence !s August,2012. B-42
  • 84. APPENDIXB CORDILLERA VALLEY CLUB GOLF COURSE PONDS NOS. 1 THROUGH 5 Conditior~a! water storage rights were decreed bythe District Court in and for WaterDivision No. 5, Colorado in case No. 91-CVv-033, on December 8, ~ 992, for the CordilleraValiey Ciub Golf Course Ponds Nos. t 2, 3, 4, and 5, summarized tor informationalpurposes as follows: A. Legal Descriptions and Amounts: 1. Golf Course Pond No. 1, decreed 6.0 acre feet, canditlonat, is located In the NW~ SW». of Section 31, T. 4 S., R. 82 W. of fhe 6th P.M., whence the SW comer of said Section 31 bears S. 14 ~> 45 W. 1 ,600 teet. 2. Golf Course Pond No. 2, decreed 2.0 acre feel, oonditionat, is located in theSE~ NWY. of Section 31, T. 4 S., R. 82 W. of the 6th P.M.) whence the W% comer of said Section 31 bears S. 77 c 45 W. 2,270 feel 3. Golf Course Pond No.3, decreed 6.0 acre feet, conditional, is located in the NW~ SE:4 of Section 31, T. 4 S., R. 82 W. of the 6th P.M., vmence the S74. comer of said Section 31 bears S. 29 c 30 W. 2,060 feet.. 4. Golf Course Pond No.4, decreed 20.0 acre feet, conditional, ls ocated in the SWY~o SE~ of Section 31, T. 4 S., R. 82 W. of the 6t"l P.M., whence the SY., comer of sald Section 31 bears S. 57 o 15 W. i ,520 feel 5. Golf COurse Pond No.5, decreed 4.0 acre feet, conditional, is located in the SWX SW/J. of Section 32., T. 4 S., R. 82 W. of the 6th P.M., wher1ce the SW comer of sald Section 32 bears S. 48 c W. 1,300 feel B. Uses: lnigation, recreation and piscatorial uses. C. Date of initiation of appropriation.: Juty 13, 1990. D. The sources of the Goff Course Ponds Nos.. ~ through 5, inclusive, are: Spring Creek via the Groff Ditch • Cottonwood Enlargement ( 1 cfs); Bum!son Creek via the Root Ditch (1.6 cfs) decreed in Eagle County D!sLict Court, Civil Action No. 687; Deadhorse Gulch via the Root Ditch - Reynolds Enlargement ( i cis) decreed in Case No. 82CW341; and the Eagle River vla the Cottonwood Pump and Pipeline (2 cfs). B-43
  • 85. Appendix S CVC GoJf Course Ponds Nos. 1 through 5 Each of the said reservoirs shall be constructed by means of embankment of less than ten feet in height. F. By the decree entered by the District Court, ln and for Water Division No. 5, State of Colorado, on May. 23, 1999, in Case No. 98CW24-9, the water rights decreed to Golf Course Pond Nos. 1 through 5, inclusive, were continued as conditionaL G. Portions of the above--described water rights were made absoiute, and the remainder continued as conditional, by the decree entered by the District Court, in and for Water Division No. 5, Cobrado, on August 24, 2006, in case No.OS-CW-095, as follows: 1. Golf Course Pond No. 1 has been constructed and subsequently used for storage of water and subsequently usoo for irrigation, recreation, and piscatorial uses at the Cordillera Valiey Club golf course (a} Description of portion of conditional Vtoater right hereby made absolute: (i) Date water rights applied to beneficial use: June 1 1993. (i!) Amount made absolute: 6.0 acre-feet (iii) Uses: irrigation, recreation and piscatorial uses. H. The month for filing the ne.ti application for a finding of reasonable diligence is August 2012.. t::~r.E-lKVtITtm~XALS-,ITEM"N~GHTPlWii141!im_t.DOCSPCA_ ~ 4811777. ! B-44
  • 86. APPENDIXC SURFACE WATER RIGHT DECREED TO COITONWOOD PUMP AND PIPEUNE A conditional surface water right was decreed to the Cottonwood Pump and Pipelinein case No. 91-CW-033, on December 8,1992 is summarized for informational purposesas follows.: a. Legal description: The headgate is located at a point on the north bank ofthe Eagle River in the SWYt. SW% of Section 31, T. 4 S., R. 82 W. of the 6th P.M. Whence theSW comer of said Section 31 bearsS. 5o W. 500 feet. b. Date of initiation of appropriation: July 13, 1990. c. Amount decreed: 2.0 cts., conditional. d. Uses: Irrigation, recreation and piscatorial uses. e. Source: E~gle River. f~ .· By the decree entered by the District Court. in and for Water DivisionNo.5, State of Colorado, on May23, 1999, rn Case No. 9BCW249, the water right decreedto Cottonwood Pump and Pipeline was continued as conditionaL g. By the decree entered by the District Court, in and for Water DivisionNo. 5, State of Cobrado, on August 24, 2006, in Case No. 05CW95, the v.-ater rightdecreed to Cottonwood Pump and Pipeilne WaS continued as conditional ior all originallydecreed purposes, and the month. for filing me next application for fll)dtng of reasonablediiigence is August, 2012. B-45
  • 87. The Club at CordilleraGA Keen Realty AdvisorsJune 13,2012Page 15 of 17 SCHEDUlES1. lodemnifk~tionThe Company shaH defend, indemnify and hold harmless GA Keen Realty Advisors, Great AmerlcanGroup, LLC, their respective affinates, and their respective directors, officers, employees, agents,representatives and controlling persons (GA Keen Realty Advisors and each such entity or person being 1an "!ndemrMied Party ) from and against any and all !osses1 claims, damages, expenses and liabilities{collectively, "Losses), as incurred, to which such Indemnified Party may become subject, related to orarising out of activities performed by or on behalf of an Indemnified Party pursuant to this Agreement}any transactions contemplated hereby, or the Indemnified Partys ro!e in connection therewith, TheCompany shall have no obligation to indemn!fy and hold harmless an Indemnified Party for any lossesfound in a final judgment by a Court of competent jurisdiction to have resulted primarily from actionstaken or omitted to be taken by the Indemnified Party In bad faith or from the Indemnified Partys grossnegligence, neg!lgence or wlHfu! misconduct in performing the services or not performing described,Promptly after receipt by an Indemnified Party of notice of any dalm or the commencement of anyaction, suit or proceeding with respect to whkh an Indemnified Party may be entitled to indemnityhereunder, the Indemnified Party will notify the Company in writing of such dalm or of thecommencement of such action or proceeding. provided that the failure to notify the Company shaU notrelieve it from any !iabiaty under this Agreement except to the extent It has been materially prejudicedby such failure. The Company may, upon written notice to the lndernnified Party, assume the defense ofsuch dalm, action, suit or proceeding, wm employ counsel satisfactory to the Indemnified Party torepresent the Indemnified Party, and wm pay the fees and disbursements of such counsel, as incurred.fach Jndemnified Party shall have the right to retafn Its own counsel at its own expense.Notwithstanding the foregoing, the Company shall not have the right to assume the defense of suchdaim, action, suit or proceeding and shall pay or reimburse as incurred the fees and expenses of notmore than one separate !aw firm per relevant jurisdiction (inducting local counsel} representing suchIndemnified Party if {a) the Company shall have failed to timely assume the defense of such claim,action, suit, or proceeding, or (b) the named parties to any such daim, action, suit, or proceeding(lndudlng any impleaded parties) 1ndude one or more Indemnified Parties and the Company and theIndemnified Party shall have reasonably concluded that a conflict may arise between the positions ofthe Indemnified Party and the Company or that there may be !ega! defenses available to it that aredifferent from or additional to those available to the Company,The Company shall not be liable for any settlement of any claim, action, suit, or proceeding without itsconsent (which consent shall not be unreasonably withheld}, but, if settled with its consent or if there befinal judgment for a plalntiff in any daim, suit, action, or proceedin& the Company shall defend,indemnify, and hold harmless each Indemnified Party from and against any and all losses by reason ofsuch sett:Jement or judgment to the extent provided in this Agreement. Notwithstanding theimmediately preceding sentence, if at any time an !ndemnrr1ed Party shall have requested the Companyto reimburse such Indemnified Party for any authorized legal or other expenses in connect!on withinvestigating, responding to, or defending any claim, action, sult, or proceeding as contemplated by thisAgreement, the Company shaU be !!able for any settlement of any such da!m, action, suit, or proceedingwithout its consent if (a) such settlement is entered into more than 30 days after receipt by theCompany of such request for reimbursement after written notlce and opportunity to cure and {b) theCompany shall not have reimbursed such indemnified Party in accordance wlth such request prior to thedate of such settlement. The Company shall not, without the Indemnified Partys prior written consent,
  • 88. The Club at CordilleraGA Keen Realty AdvisorsJune 13, 2012Page 16 af 17sett!e, compromise or consent to the entry of any judgment in any pending or threatened daim, actionor proceeding in respect of which indemnification could be sought under this Agreement (whether ornot any Indemnified Party is an actual or potential party to such dalm, action or proceeding}, unlesssuch settlement, compromise or consent includes an unconditional release of each Indemnified Partyfrom a!! !!abiHty arlslng out of such daim, action or proceeding and does not lndude a statement as to oran admission of fault, cu!pabi!ity or a failure to act by or on behalf of any Indemnified Party.ln the event any Indemnified Party Is requested or required to appear as a witness in any action, sutt orproceeding brought by or on behalf of or against the Company or any aftlliate or any partidpant in aTransaction covered hereby in which such Indemnified Party is not named as a party, the Companyagrees to reimburse the !ndemnlfied Party for all reasonable expenses incurred by 1t in connection withsuch !ndemnlfied Partys appearing and preparing to appear as a witness 1 lndud!ng, without !imitation,the fees and disbursements of lts !ega! counsel, and to compensate GA Keen Reaity Advisors in anamount to be mutually agreed upon.2. Contributionlf for any reason the lndemnifkatlon provided in this Agreement is unavailable to an !ndemrtifled Partyor insufficient to hold an Indemnified Party harmless, the Company shall contribute to the amount paidor payable by such Indemnified Party as a result of such losses (or actions or proceedings in respectthereof) ln such proportion as is appropriate to reflect the relative benefits received or proposed to bereceived by the Company on one hand and the Indemnified Party on the other hand in connection withservices provided by GA Keen Realty Advisors under this Agreement lf, however, the allocationprovided by the immediately preceding sentence is not permitted by applicable law or otherwise, theCompany shall contribute to such amount paid or payable by any Indemnified Party to reflect not oniythe relative benefits but also the relative fault of the Company on the one hand and the IndemnifiedParties on the other hand in connection with any actions or omissions or any other matters that result lnany such losses as we!! as any other re!evant equitable considerations. Relative benefits to theCompany, on the one hand, and to an Indemnified Party, on the other hand, shall be deemed to be inthe same proportion as (a) the tota! Transaction Value of the Transaction or proposed Transaction bearsto (b} aH fees actually received by GA Keen Realty Advisors under the Agreement Notwithstanding theforegoing 1 the aggregate contribution of a!! lndemniflcd Parties to aU Losses shall not exceed theamount of fees actually received by GA Keen Realty Advisors under this Agreement.3. Reimbursement of Litigation ExQensesThe Company a!so agrees to reimburse GA Keen Realty Advisors, its affmates, and their respectivedirectors, officers, empfoyees, agents, representatives and contro!!ing persons for all expenses(including counse! fees and disbursements) as they are incurred by such entity or person in connectionwith the Investigation of, preparation for, or defense of any pending or threatened daim, or any action,investigation, suit or proceeding re!ated to or arising out of activities performed by or on behalf of suchentity or person pursuant to this Agreement, any transactions contemplated hereby, or its or his ro!e inconnection therewith, whether or not such entity or person is a party and whether or not such claim,action or proceeding ls initiated or brought by or on behalf of the Company.4. limitation of UabmwThe Company also agrees that GA Keen Realty Advisors, its affiliates, and their respective directors,officers, employees, agents, representatives and controlling persons shall not be Hable {whether directlyor indirectly, in contract or tort or otherwise) to the Company or its security holders or creditors, for any
  • 89. The Club ot Cordi!JemGA Keen Realty AdvisorsJune 13, 2012Page 17of17matter, cause or thing related to or arising out of the engagement of GA Keen Realty Advisors pursuantto, or the performance by GA Keen Realty Advisors of the services contemplated by, this Agreement,except to the extent that GA Keen Realty Advisors is found in a tina! judgment by a Court of competentjurisdiction to have acted or failed to act in bad faith or w!th gross negligence, negligence or willfulmisconduct in performing or faHlng to perform the services described Jn this Agreement.The provisions of Schedule C shaH be in addition to any liability that the Company may otherwise haveand shall be binding upon and inure to the benefit of any successors, assigns, heirs, and personalrepresentatives of the Company. These provisions shall be governed by the law of the State of NewYork, without regard to its conflict of law principles, and shat! be operative in fu!! force and effectregardless of any termination or expiration of this Agreement5. Bankruptcy Protocol: Notwithstanding anything to the contrary, ln the event that Companyfiles, or has f1!ed agalnst it, a petition under the Code,: A. An requests of GA Keen Realty Advisors for payment of indemnity pursuant to the Engagement Letter shaH be made by means of an application (interim or final as the case may be) and shall be subject to review by the Court to ensure that payment of such indemnity conforms to the terms of the Engagement Letter and is reasonable based on the clrcumstances of the litigation or settlement in respect of which indemnity is sought, provided, however, that in no event shaH GA Keen Rea!ty Advisors be indemnified ln the case of its own bad~falth, self dealing, breach of fiduciary duty {if any), gross negligence, negligence or wll!fu! misconduct; B. !n no event shall GA Keen Realty Advisors be 1ndemnified if the Companys or a representative of the estate, asserts a daim for, and a court determines by final order that such dalm arose out of, GA Keen Rea!ty Advisors own bad-faith, self~dea!ing, breach of fiduciary duty (if any), gross negligence, negligence or willful misconduct; C. !n the event that GA Keen Realty Advlsors seeks reimbursement for attorneys fees from the Company pursuant to the indemnity provisions in the Engagement letler1 the Invoices and supporting time records from such attorneys shall be included in GA Keen Realty Advisors own app!lcations for approval of indemnity payments {both interim and final) and such Invoices and time records shall be subject to the United States Trustees guidelines for compensation and reimbursement of expenses and the approval of the Bankruptcy Court under the standards of Sections 330 and 331 of the Bankruptcy code without regard to whether such attorney has been retained under Section 327 of the Bankruptcy Code and without regard to whether such attorneys services satisfy Section S30{a}(3}(C} of the Bankruptcy Code.4837-5181-1087 4