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  1. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 13. EXHIBIT A Declaration01:12239656.9
  14. 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. 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. 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. 17. EXHIBITB Proposed Form of Order01:12239656.9
  18. 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. 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. 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. 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. 22. EXHIBITCRetention Agreement
  23. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 35. The Club at CordifleraGA Keen Realty AdvisorsJune 13, 2012Page 13 of 17 Date:
  36. 36. The Club at CordiiJeraGA Keen Realty AdvisorsJune 13, 2012Page 14 of 17 SCHEDUlE A Properties Attached hereto
  37. 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. 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. 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. 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. 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. 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

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