10000001201

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)

DEBTOR'S 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

"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 Debtor's 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 Petitions

01:12239656.9

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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 court's 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 trustee's 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

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The trustee ... with the court's 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 Debtor's 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

Debtor's 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 Debtor's real estate and the Debtor's business and has access

to sources of capital for the Debtor's 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

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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 Realty's

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 Debtor's 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

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• 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 the

01:12239656.9

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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 Realty's fees is appropriate and

is in an amount typical of GA Keen Realty's 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 Realty's 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 Realty's 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 Realty's engagement and subject to Court

approval, GA Keen Realty will not be billing the Debtor by the hour and will not be keeping

01:12239656.9

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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 Debtor's 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 Debtor's twenty largest unsecured creditors; (iii) the

Debtor's member or manager; (iv) the Debtor's prepetition secured lender; (v) the Debtor's

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

Debtor's 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 Debtor's 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 services

01:12239656.9

10

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 Party's gross negligence or willful misconduct; (ii) for a
contractual dispute in which the Debtor alleges the breach of an
Indemnified Party's 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 Debtor's 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 Debtor's 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

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 Possession

01:12239656.9

12


In re: Chapter 11

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 Debtor's 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-

01:12239656.9

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 Possession

01:12239656.9

EXHIBIT A

Declaration

01:12239656.9

UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
--------------------------------x
In re:
Chapter 11
CORDILLERA GOLF CLUB, LLC
CASE NO. 12-11893-CSS
Debtor.

--------------------------------x

DECLARATION 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 Section

1746, 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. Section

101(14). GA Keen has no business, professional or other connection with the Debtor herein

or with their attorneys, and does not represent, nor will it represent, any interest adverse to

the estate in the matters in which it is to be engaged, except as set forth in paragraph 4

below.

3. GA Keen is not employed or connected with the Debtor, any creditor, or

other party in interest, their respective attomeys and accountants, except as set forth in

paragraph 4 below. GAG and GA Keen have reviewed creditors lists provided to them by

Debtor's counsel and base their disclosures on such lists.

Cordillera Go/f('lub. LLC
GA Keen Really Adl'isors
June 26. 2012
Page 2 of3

4. From its review of the list of creditors herein, GAG and GA Keen have has

detennined 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 future

will represent parties in interest in connection with matters unrelated to the Debtor and this

Chapter 11 Case. As part of its practice, GA Keen also appears in cases, proceedings and

transactions involving many different attorneys and accountants, some of which may

represent claimants and parties-in-interest in this Chapter 11 Case. GA Keen does not

represent any such entity in connection with this Chapter 11 Case or have any relationship

with any such entity, attorneys, accountants or advisors that would be adverse to the Debtor

or its estates.

5. GA Keen is a ·'disinterested person" as that term is detined in Bankruptcy

Code 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;

Cordillera Golf Club. LLC
GA Keen Realty Advisors
June 26, 2012
Page 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 Keen's

connections with parties in interest in this Chapter 11 Case, GA Keen is unable to state with

certainty that every client relationship or other connection has been disclosed. In this

regard, if GA Keen discovers additional material infonnation that it determines requires

disclosure, 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 structure

are accurately set forth in the Retention Agreement as are the other terms of GA Keen's

retention.

8. GAG and GA Keen have agreed to not share with any person except

members and consultants of my tirm the compensation to be paid for the services rendered

in this case, except as is set forth in the Retention Agreement.

EXHIBITB

Proposed Form of Order

01:12239656.9


In re: Chapter 11

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 estate

advisor to the Debtor, nunc pro tunc to the Petition Date, and (ii) granting a waiver of certain

requirements of Local Rule 2016-2; and upon consideration of the Application and all pleadings

related thereto, including the Declaration; and due and proper notice of the Application having

been given; and it appearing that no other or further notice is required; and it appearing that the

Court 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 appearing

that venue of this proceeding and this Application is proper pursuant to 28 U.S.C. §§ 1408 and

1409; and it appearing that the relief requested is in the best interest of the Debtor, its estate, and

1The Debtor in this chapter 11 case, and the last four digits of its employer tax identification number, is: XX-

2 Capitalized terms used, but not defmed herein, shall have the same meaning ascribed to them in the Application.

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 their

real estate advisor nunc pro tunc to the Petition Date, as set forth in this Order and upon the

terms and for the purposes set forth in the Retention Agreement, a copy of which is attached to

the Application as Exhibit C, and as requested in the Application.

3. With respect to the payment of the formulaic success fees set forth in

section II.C of the Retention Agreement (the "Transaction Fee") and consistent with the terms of

the motion seeking to establish interim compensation procedures [Docket No. __j, the Debtor

is 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 of

the 20% hold-back) subject to Bankruptcy Court approval of a final fee application. Such

Transaction Fee shall be subject to the standard of review of Section 328(a) of the Bankruptcy

Code.

4. Notwithstanding any provision in the Application and Retention

Agreement to the contrary, the Debtor is authorized 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"), pursuant to the terms and conditions set forth in the Retention

Agreement, 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

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 Party's gross negligence or willful misconduct; (ii) for a
contractual dispute in which the Debtor alleges the breach of an
Indemnified Party's 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 Debtor's 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 Debtor's obligation to
indemnify the Indemnified Parties.

5. Notwithstanding anything to the contrary in the Retention Agreement, any

limitation 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 actions

necessary to effectuate the relief granted pursuant to this Order in accordance with the

Application.

3

7. GA Keen Realty shall make reasonable efforts to coordinate with the

Debtor and with the Debtor's other professionals to avoid unnecessary duplication of the services

provided by those other professionals.

8. The relief requested herein shall continue to apply to any of the Debtor's

affiliates and their respective estates that subsequently commence chapter 11 cases without the

need for any further requests or motions.

9. None of the fees payable toGA Keen Realty under the Retention

Agreement shall constitute a bonus under applicable law.

10. With respect to any Transaction Fees payable for the closing of a

successful 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 Realty's fees and expenses shall be treated as

administrative expense claims in the Debtor's chapter 11 case.

12. All ofGA Keen Realty's fees and expenses shall be entitled to a carve-out

for payment pursuant to section 506(c) of the Bankruptcy Code.

13. The terms and conditions of the Retention Agreement are reasonable, and

the Debtor shall pay all fees and expenses as promptly as possible in accordance with the terms

of the Retention Agreement and this Order.

14. This Court shall retain jurisdiction with respect to all matters arising from

or related to the implementation or interpretation of this Order.

Dated: Wilmington, Delaware
July _ _, 2012

Christopher S. Sontchi
United States Bankruptcy Judge

4

EXHIBITC

Retention Agreement

RETENTION AGREEMENT

Between
Cordillera Golf C!ub, LLC
and
GA Keen Realty Advisors, LLC

Date: June 13, 2012
!n consideration of the mutua! agreements herein contained, "Company" (as defined below} hereby
retains "GA. Keen Realty Advisors" (as defined below) to act as Company's real estate advisor upon the
terms 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 Company's pecuniary interests
arising from or relating toGA Keen Realty's 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.

•·

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June 13,2012
Poge2of17

ll. Services and Fees

A. Authority
1. GA Keen Realty shall have the sole and exclusive authority to act as Company's
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) Company's secured and unsecured creditors,

d) Cordillera Property Owner's 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 Realty's 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 Company's 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;

The Club at Cordfffera
June 13,2012
Poge3of17

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 Company's 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:

The Club at Cordiliera
June 13, 2012
Poge4of17

{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 Owner's 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.

The Club at Cord if!era
June 13,2012
Page5of17

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 Realty's fee shall not be affected by Company's !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 Realty's 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 to

4837-51S1-i0S7A

The Club at Cordillera
June 131 2012
Page6of17

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 Company's 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

GA keen Realty Advisors
June 13, 2012
Page 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 Company's 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
Company's 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;

The Club at Cordiffera
June 13, 2012
PageBo/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 Company's 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 Company's 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 attorneys'

4837-51811087.4

GA keen Realty Advisors
June 13, 2012
Page9o[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 Realty's 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 Realty's advice is sought. GA Keen Realty is assuming no management
responsibilities. GA Keen Realty's obligations to Company are contractual in
nature as expressly set forth in this Agreement and neither GA Keen Realty nor

The Club at Cordi!lero
June 13, 2012
Page 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 Realty's 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

GA Keen Reolty Advisors
June 13, 2012
Poge 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 Company's 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 or

4B37-51f!i-i087A

June 13,2012
Page 12 of 17

omissions of communications carriers, or other causes beyond GA Keen Realty's 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 Realty's role {which may indude the reproduction of the Company's logo) on GA
Keen Realty's 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
Realty's, 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, please
sign and return the enclosed copy of this Agreement, whereupon it shall become our binding
agreement.

Very truly yours,

GA KEEN REALTY AOV~S, UC

By:
H "o!d , as Managing Director of Great --·-
(Y

American Group, LU::, the Managing Member of GA
Keen Realty Advisors, LLC

The Club at Cordiflera
June 13, 2012
Page 13 of 17

Date:

The Club at CordiiJera
June 13, 2012
Page 14 of 17

SCHEDUlE A

Properties

Attached hereto

SCHEDULE A

LEGAL DESCRIPTlON

Parcel 1 (fee simple):

TRACT A,
CORDILLERA SUBDIVISION FILING NO. 14 THE CLUB COTTAGES, A RES UBDfVISIO
OF 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 EAGLE
STATE OF COLORADO

Pan: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. 5448

COUNTY OF EAGLE
STATE OF COLORADO


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 EAGLE
STATE OF COLORADO

Parcel4 (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 EAGLE
STATE OF COLORADO

Pan:el 5 (fee simple):

Tracts T l, T2 and T3,
CORDiLLERA SUBDiVISION, FILING NO. l 0, TRACT T
A RESUDIVISION OF TRACT T
According to the plat recorded December 17,2004 as Reception No. 900959.

COUNTY OF EAGLE
STATE OF COLORADO


Parcels W-1, W-2 and WA,
CORDILLERA SUBDIVISION, FILING NO. 41
according to the plat recorded June 19, 2000 as Reception No. 732428

COUNTY OF EAGLE
STATE OF COLORADO


Parcel W-3,
CORDILLERA SUBDIVISION, FILING NO. 36, BLOCK 1, LOT 26,
according to the plat recorded December 5, 2001 as Reception No. 778130

COtJNTY OF EAGLE
STATE OF COLORADO


Tract P,
CORDll.LERA SUBDIVISION, FILING NO. 41
according to the plat recorded June 19. 2000 as Reception No. 7324::!8

COUNTY OF EAGLE
STATE OF COLOR. DO

Parcel ? {easement):

Tract V,
CORDILLERA SUBDIVISION, FILING NO. 41
according to the plat recorded June 19, 2000 as Reception No. 732428

COUNTY OF EAGLE
STATE OF COLORADO

Parcel lO (fee simple)!

Tract B,
CORDILLERA SUBDIVISION, FlUNG NO. 37,
according to the plat recorded February 8, 2000 as Reception No. 72'2159.

COUNTY Of EAGLE
STATE Of COLORADO


Tracl R-1,
CORDILLERA SUBDIV1SION, FILING NO. 44,
according to the plat recorded January !3, 2004 as Reception No. 864906.

COUNTY OF EAGLE
STATE Of COLORADO

Parcel 12 (fee simple}:

Tract B,
CORDILLERA SUBDIVISION, FIIJNG NO. 27
According to the Plat recorded June 9, 1997 in Book 728 at Page 914 as Reception No. 624876 and
the Correction Plat recorded May 26, 1998 as Reception No. 657679.

COUNTY OF EAGLE
STATE 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;

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 EAGLE
STATE OF COLORADO


Tract1,
CORDilLERA VALLEY CLUB FILING NO. 1
According to the plat thereof recorded August 29. 1995 in Book 674 at Page 807 as Receplion No.
570822.

COUNTY OF EAGLE
STATE OF COLORADO


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

and

Tract 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 plat
recorded May 20, 2004 as Reception No. 877949.

COUNTY OF EAGLE
STATE OF COLORADO


Tract B,
CORDlLLERA SUBDIVISION FILING NO. l6. . •
According to the final plat recorded August 19, 1994 in B.ook 648 at Page 202 aReceptwn ~o
544243 and correction plat recorded November 21, 1994 m Book 655 at Page 56"" as Reception
551596.

COUNTY OF EAGLE
STATE OF COLORADO

Parce117 (easement):

An easement for the purpose of constructing, installing. using maintaining: repairi~g and replac
from time to time the golf course related improvements as granted and delmeated m that Easem
Agreement recorded Dect:mber 18.2003 as Reception No. 862401 and re~recorded November t
2006 as Reception No. 200630398.

COUl'i'TY OF EAGLE
STATE OF COLORADO


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 EAGLE
STATE OF COLORADO

Parcel 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 reasonable
necessary 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 coun

Easement 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

Parcel21 {easement):

Non-exclusive easement for access and use over those portions of the
necessary to the operation, maintenance. repair and replacement of the

Non-exclusive easement for overspray of water from any irrigaiion sy!

Easement of access for the purpose of retrieving golf balls from bot.lie
Area 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 Cer
Amended and Restated Declaration of Covenants. Conditions and Res
recorded 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 the
necessary to the operation, maintenance, repair and replacement of the

Non-exclusive easement for overspray of water from any irrigation sy::

Easement for the purpose of blending the grading of the golf t::ourse an
the clubhouse) with such Lots and Common Area and for grass soddin
borders 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 t
Conditions and Restrictions and Easements of Blackhorse at CordiJ!er:
as Reception No. 771735.

COUNTY OF EAGLE
STATE OF COLORADO

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/1991

Said two Groff Ditch water rights are subject to the terms and iimft:ations of the change
decree in Case No. 91-CW -034, including) but not tlmited to, the provisions of paragraphs
5, 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 Gulch
descnbed 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
Enlargement

Said 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 said
decree. 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 Golf
Collt"Se Pond No. l, Cordillera Valley Club Golf Course Pond No. 2, Cordillera Val~ey Ciub
Golf C-:>urse Pond No.3, Cordillera Valiey Club Golf Course Pond No, 4, and Cordillera
Valley Club Golf Course Pond No.5, in CaSe No. 91-GW-033, on December 8, 1992., by
the District Court in and for Water Division No.5, State of Colorado. The decree for said
water rights is summarized in Appendix B.

4. Toat conditiona1 vtate;r right decreed to the Cottonwood Pump and Pipeline, in Case
No. 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

Biack Bear Properties, LLC, JMCG Colorado, LLC, and Academy Woods, Ltd., tor
construction and use of water features bcated on Lots 2, 5, and 8. Timber Springs,
recorded July 28, 2008 as Reception No. 2008'15928.
6. Agreement, behNeen CordWera Valley Club Investors Limited Partnership and
Summit 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 the
Interior Water Service .Contract No. 3..07-50-W0903, dated November 30, 1992., tor the
delivery of water from Green Mountain Reservoir.

8. The pian for augmentation decreed in Case No. 91-CW-33.

B-2

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 Ditch
and 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 and
32, 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 6
P.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 ~ocated
on 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.3~0'E.
2145 feet.

d. The headgate of the Root Ditch is located on the We& bank of
Sumison Creek at a point whence the SW comer of Section 32, Township 4 South, Range
82 West of the 6tn P.M. bears S.47°45W. 2500 teat.

B-3

Appendix A Page2
Groff 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 in
the SW X! SW ~ of Section 32, Township 4 South, Range 82 West of the om P.M., at a
8
point whence the SW comer of Section 32 bears S. 29 39'28" W. 1421 .5 feet.

Under the decree in Case No. B'l~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 t'le 1.0 cJ.s. originaliy decreed conditional to the Groff
Ditch·-Cottonwood Enlargement for recreation and piscatorial uses;

B-4

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-
(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

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 Water
Division No. 5J Coiorado in Case No. 91-CW-033, on December 8, 1992., for the Cordillera
Valley Club Golf Course Ponds Nos. 1, 2, 3, 4, and 5, summarized for informational
purposes as foliows:

A Legal Descriptions and Amounts:

1. Golf Course Pond No. i, decreed 6.0 acre feet, oondltiona!, ls located in
the NW~ SW'4 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

Appendtx B
CVC 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 !ll'ater 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

APPENDIXC
SURFACE WATER RIGHT DECREED TO COITONWOOD PUMP AND Pl?EUNE

A conditional surface water right was decreed to the Cottonwood Pump and Pipeline
In Case No. 91-CW-033, on December 8, 1992 is summarized for informational purposes
as follows:

a. Legal description: The headgate is k>cated at a point on the north bank of
t"le Eagte River in the SW~ SW!4 of Section 31, T. 4 S., R. 82 W. of the 6th P.M. 1'hence the
SW 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 Division
No.5, State of Colorado, on May23, 1999, in Case No. 9BCW249, the water rightdec:reed
to Cottonwood Pump and Pipeline was continued as conditionaL

g. By the decree entered by the District Court, in and for Water DMslon
No. 5, State of Colorado, on August 24, 2006, In case No. 05CW95, the water right
decreed to Cottonwood Pump and Pipeline was continued as conditlona1 for all originally
decreed purposes, and the month. for filing the next application for finding of reasonabte
diligence is Augustj 20i 2.

B-8

StJMMIT COURSE, MOtJNTAIN COURSE AND SHORT COURSE WATER R1GHTS

1. Those certain conditional storage water rights decreed in Case No. 91-CW-075 on
January 3, 1992, by the District Court in and for Water Division No. 5, State of Colorado, for the
Golf 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, Stag
GuichDiversion 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 District
Court in and for Water Division No. 5, State of Colorado. Tne decree for said water rights is
summarized 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 (the
Graham Ditch headgate) in U!se No. 89-CW-218 on October 11, 1990, by the District Court in and
for Water Division No.5, State of Colorado. Tne water rights 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 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 i

Said water rights are subjret to the terms and limitations of the change decree in Case
No. 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

Said Dora B Ditch and Henderson Ditch water rights are subject to tbe terms and limitations of the
change 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. Said
Sara 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 said
decree. Said water rights are summarized in Appendi:x_ F hereto.

6. 23 5 acre-feet of the water ~ IJnjted States DepartnJent of the Interior Water
Service Contract No. 4-07-60-WT015, dated Apri121, 1994, for the delivery of water from Green
Mountain Reservoir, Colorado Big-Thompson Project, Colorado.

7. The water right decreed to Eagle Riv::::r Diversion. Point No. 1. Toe water righi decreed
to 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, and
5, above, at eagle River Diversion Point No. 1. Said right of exchange was decreed a rate of tlow of
5 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:
i

l 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 101'3/1936
I
Said 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. Said
waier rights are summa..rized in Appendix H hereto.

10. 10 acre.~feet (1000/t.) ofEagle River Supply pursuant to Water Supply Contract with
Colorado River Water Conservation District, acting by and through its Colorado River Water Projects
Enterprise (CRWCD 99-12), dated July 30, 1999.

1L The conditional water rights decreed to Mountain Tract Springs Nos. 3, 4, and 5 in
Case No. 97-CW-279,on November9, 1998, by the District Court in and for'1'ater 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 in
Case No, 86~CW-153 on August 1&, 1987, as amended by the decrees of the Vater Court entered in

2
B-10

Cases Nos. 87-CW-310, 89-CW-217, 91-CW-O?R, 95-C'W"..(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.

TOGE'I'H'"'.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

3
SDCA_149El:3S!i.2

(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 records

r.,)
.) 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

( 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 P'artners, 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 Partner's. issued November 25, 1992

(16) Tim Eller- verbal agreement ali owing for water, as available.

5
B-13

APPENOlXA
GOL.F COURSE PONDS NOS. 1 THROUGH $

Conditional water storage rights were decreed by the District Court if"l and for Water
Division No.5, Colorado in Case No. 91-CW..OT5, on January 3, 1992, forthe proposed
Golf Course Ponds Nos. 1, 2, 3, 4, 5 and 6, summarized for informational purposes as
folio<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 NW'h 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 NE'1Aofsak!
section.

4. Golf Course Pond No.4, to be located in Set....-tion 14, Township 5
South, Range 83 West of the 6t'1 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, witt'r 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

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
t'iblt'..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

Appendix A
Golf 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
420feet

Each of these sources listed may be diverted at the rate of 5 c.f.s., with the right to fil! and
refill 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 NW'Y4 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

Appendix A
Golf 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
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
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.

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.

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

Appendix A
Golf 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 continUO'USiy.

(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

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 on
January 3, '992, summarized for informational purposes as folio'v'S:

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
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
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

Appendix B
Direct Fbw Water Rights Decreed to
Stag Gulch Diversion Points Nos. 1 through 5

C. Amount The amount of water decreed is 5 c.f.s., condttlona!, for each of
Stag Guich Diversion Points Nos. 1, 2., 3, 4 and 5, inclusive, when Vtt'ater is being stored for
subsequent 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 SCR
Drverslon Points Nos. 5, 6 and 7, inclusive, tor use on a direct flow basis shaU not exceed
the 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 protection
purposes.

E. Sources of water. Stag Gulch, Red Draw and Squaw Creek., all tributary to
the Eagle River.

F. Reasonabie diligence for the above-described water rights was found oy
the District Court, In and tor Water Division No.5, Colorado, on January 18,2006, In Case
No. 04-CW-208, and the month for filing the next appUcation for a finding of reasonable
diligence is January, 2012..

C:OO:::UM2W"S AND SE:TT'lN~iTT:JR!"LOCA!.. S~TEM;>~ ~M:'T i"'LESOl.K!ICV.P?ENtlOC !5 OtWZOll 'l)WP::J
B-20

APPENDIX C
SURFACE WATER RtGHT DECREED TO
SCR DfVERSlON POINT NOS. 2 THROUGH 6

L 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 tor
informational purposes as follows:


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!"1'1NGSIKW~'"'IL~ 3ET't1NGS'.I:M"'ORARY INTERNE~ ft..ESO..K9CV.??ENOIX C OS:tZO!!.WPO

B-21

H. SCR Diversic>n Point Nos. 5 and S

Conditional surface water rights were decreed to SCR Diversion Point Nos.. 5 and 6 in
case No. 91-CW-76, on January 3, 1992., and are summarized for informational purposes
as follows:

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 structure's 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 lNTEl'tNS' Ff...SSOiJ'JICW>PENDlX C 0St~.W:::>::>
B-22

APPENDlX 0
GRAHAM DITCH SENIOR WATER RIGHTS

Water rights decreed to the Graham Ditch, and changed by 1he decree entered on
January 3, 1992 in Case No. 91-CW-0 77, are summarized far informational purposes es
to nom:
I 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 pasture
lands 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 Squaw
Creek whence the SE Comer of Section 23, Township 5 South, Range 83 West of the 6th
P.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

r Mon+ I

I lh! Acre-Feet

I Aug I 83.5/
! Sept I 47.3 l
~ 1 Oct ! 15.8 1
I l Total l 320.3 ii

The use of the water rights is a~so subject to the rights beI'Jg in priority and physically
available at the originaHy de"'vreed headgate location al'ld subject to the diversion iimv..s
provided in c.(2), below. Water applied directly to tnigation shall be assumed to be
90% consumptive~ used. The foliowing accounting procedures are required:
(1) project annuany the amount of t'1e Graham Ditch consumptive use that would be
used directly for irrigation and the amount of Graham Ditch consumpnve use credits to
be used by augmentation, replacement or exchange; (2) submit monthly projections for
the items listed in subparagraph (1 ); and (3) Applicants' actual use may vary from the
projected use upon consultation and approval by the Division Engineer or hls Water
Commissioner.

(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 for
these 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

Appendix D
Graham 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~acement
and exchange at t"le alternate points of diversion. No rights to utilize said alternate
points of diversion are owned by Grantors, and no such rights are conveyed herein.

e. tn addition, the following alternative points of diversion were also
approved 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 SE'A 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 in
paragraphs c.(1) and (2) above, the water rights decreed to the Graham Ditch may be
utiltzed for irrigation through diversion at these alternate points of dtverslon, or
consumptive use not utilized for said Irrigation may be utiilzed fur augmentation,
replacement or exchange purposes at said alternate points of diversion.

3
B-25

APPENDIX E
DORA B DITCH AND HENDERSON DfTCH WATER RJGHTS

Water rights decreed 1o the Dora 6 Ditch and the Henderson Drtch, and changed by
the decree entered on January 3, 1992 in case No. S1-CW..IJ77, are summalized for
rmormatlona! purposes as foIiows:
j Structure I Amount ~ Date I
!
I
~ .Dora 8 Ditch I 1.0 cJ.s. 11/1/18S2 o/29/1894
i
1
I 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 Squaw
Creek descnbed as follows: a point ln the NEX of the SEX of Section 2, T.5S., R.83W. of
the 6th P.M., from which the Southeast Comer of Section 2 bears S.9°15xE. a distance of
approximately 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 sa'1d
decree and on the lands described ir. Exhibit C to said decree, for irrigation,
domestic, municipal, stockwatering, augmentation, replacement exchange,
commerc'ial~ 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

Appendix E
Dora B Ditch and Henderson Ditch Water Rights

I Henderso
I Month n
Dora 8
Ditch

I J May l
- 0.4
Ditch
0.2)
!
i .I June 5.3 1.8j
I l Juiy 6.2 2..4 I
I I Aug 4.4 2..0 j
I I Sept l 2.8 1.1 ! I

, Oct
! 0.7 0.3 j
To'tal ac
ft.
~ LB! I

The use of the water rights !s aloo subject to the rights being in priority and physicaUy
available at the orig1nalty decreed headgate location and subject to the diversion limits
provided 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

Appendix E

e. The fo!iowing alternative points of diversion were approved for these
water 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-30'E. a distance of 1 ,e50 feet

Only 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 the
altemate 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 any
year, said water rights may be used for irrigation ohly during that year subject to the
diversion limits and terms set forth in paragraph 5 and in paragraph 6 .b.{2) of the decree in
case No, 91-CW-077, summarized in d.(1) and c.{2), above.

B-28

Appendix E

g. !n addition to the above described uses the Dora B Ditch and
Henderson Ditch water rights may be used for augmentation . of water used on the
Cordillera Summit Golf Course pursuant to the decree entered in Case No. 99-CW-031 on
September 27, 1999.

h. in the decree in Case No. 9S-GW-031, Applicants agreed that their
use of the Dora B Ditch and Henderson Ditch water rights at the Cordillera Summrt Golf
Course, whether for direct diversion or augmentation, shall be limited to t'"te histone
irrigation season, unless previously stored in priority during other times of the year, and
shall 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 use
amounts 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

APPENDIX F
SARA M DlTCH WATER RlGHT

The water right decreed to the Sara M Dftch, and changed by the decree entered on
August 28, 1998 in Case No. 97-GW~280, is summarized for informational purposes es
folio1'S:
I !
Structure I Amount Date i
i
''i
Date
i 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 grass
depicted on Exhibit M to the application, which application is attached as Exhibit 9 to said
decree.

b. Actual Legal Description of Headgate: On the right (east) bank. of Squaw
Creek at point from whence the NW oomer of Section 1, Township 5 So!Jth, Range 83
WeSr. 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-feet
per year tor thts water right The historic consumptive use attributed to this water right !s
approximately 33.9 acre-feet per year on average. Monthly historic consumptive use
credits 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 Ditch
water right may b;? used directly andlor by exchange, on the lands described in paragraphs
8.d. and e.e., and paragraph 8.L, of said decree tor irrigation, domestic, municipal,
stockwatering, augmentation, replacement, exchange, commercial, recreation, go!f course
hazard, piscatorial and fire protection purposes and for storage for eac.'1 such purpose.

B-30

The Sarah M Ditch water right may be used for the above-stated purposes only through
augmentation, replacement or exchange utilizing the consumptive use amounts of water
associated with saki water right set forth above. The Sarah M Ditch right shall not be
utmz.ed to directly irrigate or augment depletions in the Brush Creek drainage portion of the
Mountain Tract property described in paragraph 8J. of the decree.

{2) The decreed point of diversion for the Sarah M Dnch was changed from the
originally decreed location described in paragraph (c), above, to the surveyed actual
diversion ~ocafions described in paragraph (b}, above.

(3) Alternate points of diversion for the Sarah M Ditch water right were decreed
at 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 A
and at Eagle River Diversion Point No. 1 below, was atso decreed. Water shall onty be
diverted under these water rights at the alternate points of diversion and at the UERWA
Pipeline Point A and at Eagle River Dtversbn Point No. 1 during the historic use perbd and
in the historic oonsumptive use amounts set forth In (d), above, and oniy at times when
water 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 O'th 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"0'E., 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 of
appropriation for the rights of exchange ts December 19, 1997. The downstream terminus
of the exchanges shaH be 1he confiuence of Squaw Creek and the Eagie Rrver in Section
36, Township 4 South, Range 83 West of the 6th P.M. No nghts to utmze the alternate
points of diversion described in e.(3)(a) and e.(3)(b), aoove, are owned by Grantors, and
no such rights are conveyed hereir..

B-31

Appendtx F
Sara M Ditch Water Right

L The exchanges described herein shall be subject to the foliowing additional
conditions:

( 1) Water is physicaUy avaUabe for diversion and release at 1he attemate poims
of 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 man
the amount of water introduced at the "exchanged from~ points, and may not be greater
than the amount of water tegally and physically avaHable to the exchanged water rights
priorities owned by the Applicants at the "exchange from" points.

( 4) The exchanges decreed herein shall bear such stream losses as may be
assessed by the Division Engineer or his representative.

g, In addition to the uses described above, the Sara M Ditch water right can be
used to augment diversions ofwaterforthe Gordifiera Summit Golf Course by exchange at
the 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 of
the Sarah M Ditch water right at the Summit Golf Course, whether for direct diversion or
augmentation, shall be limited to the historic irrigation season, unless prevlousry stored in
priority during other times of the year, and shal! not result in an expansion of the historic
use of those same rights. As such, Appiicants agree to limit monthly diversions undert~is
decree to ti-)e consumptive use amounts identffied in paragraph d. above, for use at the
Summlt Goff Course.

C:tlX;Uu;:;.'t"$ IJilC Sm"INGSKWlTTORF...OCAL SET'T!N13SI'i"EMF'ORARY" lt«T""~S Ftl.J$O!..K.9CVJ'>;=oEI-f.)IX >' OIJ1roGJNPP
B-32

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 as
follows:

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 point
from which the Southeast Comer of Section 36, T.4S., R83W. of the 6th P.M. bears
S.56QOOxE. a distance of approximately 3,840 feet.

A pump, pipeline, headgate or other appropriate and adequate diversion structure fs
ptanned 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 beneficial
use. 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 Points
Nos, 5, 6 and 7, inclusive, for use on a dlrec;t fiow basls shall rJot exceed the amount of
5 cJ .s. at any one time.

d. Uses: The water c~aimed wilt be us~ either direc;tiy or by exchange
for the following purposes: irrigation, domestic, replacement. exchange, storage.
stockwatering, commercia!, golf course hazard, recreation, piscatorial, and fire protection
purposes,

e. Source: The Eagle River.

f. By the decree entered by the District Court, in and for Water Division
No.5, State of Colorado, on December29, 1998, in case No.. 98-CW-007, the waterriaht
decreed 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!on
No.5, Coiorado, on January 18, 2006, in Case No. 04-CW-208, the amount of 3.4 c.f.s
decr·eed to Eag'e River Diversion Point No. 1 for irrigation, storage, recreation, golf course
hazard, piscatolia~ and fire protection purposes, and the amount of 5.0. c.f.s decreed to
Eagle 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 a
finding of rsasonabie diligence is January, 2012,

B-33

h. Description of portbn of conditional water rights hereby made
absolute:

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

APPENDO:: H
CREAMERY OrTCH WATER RJGHTS

Water nghts decreed to the Creamery Ditch, and changed by the decree entered on
September 27, 1999 in Case No. 99-CW-031, are summariz.ed for informational purposes
as 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 Creamery
Ditch First Enkirgement is located on the right bank of East Lake Creek at a point whence
the 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 histone
consumptive 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 Ditch
First Enlargement water rights consumptive use credits at times when water is physicahy
and legally available under those water rights at the original point of divet:sion, and ts
bypassing that structure. Applicants shafl bear transit losses on delivery of that water, if
any, which may reasonably be assessed by the Division Engineer.

B-35

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 for
informational 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 SW'A 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: T'h>:: water will be used either directly or by exchange fur the foUov.ting
purposes: Irrigation., domestic, replac..."men~ exchange, storage, stockwateri.ng, commercial, golf
course hazard, recreation, piscatorial and fire protection purposes..

e. Source: Spring discha.rge, tribma.ry to Brush Creek. a tributary to the Eagle
River:.
f. By the decree entered by the District Court, in and ior Water DMsbn
Nc. 5, State of Colorado, on January 30, 2005, In Case Nc. 04CW189, the water rights
decreed to Mountain Tract Springs Nos. 3, 4, and 5,. inclusive, were continued as

C;DOC!JI.IENTI> AND S;:mNGS'J<WlTTOR"LLCAL S;ITTJNC>STEIE'ORIV<Y II'<'TERN.Sf Fll..e$01~<1.-sNOJX..J !liH!!Oe.W?D
B-36

conditjona! for all originally decreed purposes, and the month for filing the next application
for finding of reasonable diligence is January, 2012..

::::DOCUMENTS AND Si!!:TT!NGSKWrTORPL.O:;;AL SE'rT!NGS"f'EM"OMR'' ll>t'TERNET Fll..SSCfc.J{9C'oA.F'PEN::»: J 00100S.WI>C
B-37

Bia~k Bear Properties., LLC, JMCG Colorado, LLC, and Academy Woods, Ltd., for
construction 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 and
Summit 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 the
Interior Water Service Contract No. 3--07-50-W0903, dated November 30, 1992, fori:he
delivery of water from Green Mountain Reservoir.

8. The plan for augmentation decreed in Case No. 91..CW<>3.

B-39

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 Ditch
and 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:
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 Ditch
i (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°30'E.
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

Appendix A Page 2

e. The point of diversion of the Root Ditch-Reynold Enlargement is
located on Deadhorse Gu~ch at the point where t1e Root Ditch crosses Deadhorse Gulch in
the SW ~ SW :4 of Section 32, Township 4 South, Range 82 West of the 6tn P.M., at a
point whence the SW comer of Section 32 bears S. 29°39'28" W. 1421 .5 teet.

f. Underthedecreein Case No. S1-CW..034, dated December a, 199'2:

(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!viston
No.5, StateofCoiorado, on May 23,1999, in Case No. 98CW249, the water light decreed
to 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~

(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

Appendix A. Page 3

h. Under the decree entered in Case No. 05-CW-95, U1e following water
nghts were rontinued as conditional:

(1) 0.2 cJ.s. of the 1.0 c.f.s. decreed conditional to the Groff Ditch~
(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

APPENDIXB
CORDILLERA VALLEY CLUB GOLF COURSE PONDS NOS. 1 THROUGH 5

Conditior~a! water storage rights were decreed bythe District Court in and for Water
Division No. 5, Colorado in case No. 91-CVv-033, on December 8, ~ 992, for the Cordillera
Valiey Ciub Golf Course Ponds Nos. t 2, 3, 4, and 5, summarized tor informational
purposes 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

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-lK'Vt'ITtm~XALS-,'ITEM"N~GHTP'l'Wii141!im_t.DOC
SPCA_ ~ 4811777. '!
B-44

APPENDIXC
SURFACE WATER RIGHT DECREED TO COITONWOOD PUMP AND PIPEUNE

A conditional surface water right was decreed to the Cottonwood Pump and Pipeline
in case No. 91-CW-033, on December 8,1992 is summarized for informational purposes
as follows.:

a. Legal description: The headgate is located at a point on the north bank of
the Eagle River in the SWYt. SW% of Section 31, T. 4 S., R. 82 W. of the 6th P.M. 'Whence the
SW 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 Division
No.5, State of Colorado, on May23, 1999, rn Case No. 9BCW249, the water right decreed
to Cottonwood Pump and Pipeline was continued as conditionaL

g. By the decree entered by the District Court, in and for Water Division
No. 5, State of Cobrado, on August 24, 2006, in Case No. 05CW95, the v.-ater right
decreed to Cottonwood Pump and Pipeilne 'WaS continued as conditional ior all originally
decreed purposes, and the month. for filing me next application for fll')dtng of reasonable
diiigence is August, 2012.

B-45

June 13,2012
Page 15 of 17

SCHEDUlES

1. lodemnifk~tion

The Company shaH defend, indemnify and hold harmless GA Keen Realty Advisors, Great Amerlcan
Group, 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
1
an "!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 or
arising out of activities performed by or on behalf of an Indemnified Party pursuant to this Agreement}
any transactions contemplated hereby, or the Indemnified Party's ro!e in connection therewith, The
Company shall have no obligation to indemn!fy and hold harmless an Indemnified Party for any losses
found in a final judgment by a Court of competent jurisdiction to have resulted primarily from actions
taken or omitted to be taken by the Indemnified Party In bad faith or from the Indemnified Party's gross
negligence, 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 any
action, suit or proceeding with respect to whkh an Indemnified Party may be entitled to indemnity
hereunder, the Indemnified Party will notify the Company in writing of such dalm or of the
commencement of such action or proceeding. provided that the failure to notify the Company shaU not
relieve it from any !iabiaty under this Agreement except to the extent It has been materially prejudiced
by such failure. The Company may, upon written notice to the lndernnified Party, assume the defense of
such dalm, action, suit or proceeding, wm employ counsel satisfactory to the Indemnified Party to
represent 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 such
daim, action, suit or proceeding and shall pay or reimburse as incurred the fees and expenses of not
more than one separate !aw firm per relevant jurisdiction (inducting local counsel} representing such
Indemnified 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 the
Indemnified Party shall have reasonably concluded that a conflict may arise between the positions of
the Indemnified Party and the Company or that there may be !ega! defenses available to it that are
different 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 its
consent (which consent shall not be unreasonably withheld}, but, if settled with its consent or if there be
final 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 of
such sett:Jement or judgment to the extent provided in this Agreement. Notwithstanding the
immediately preceding sentence, if at any time an !ndemnrr1ed Party shall have requested the Company
to reimburse such Indemnified Party for any authorized legal or other expenses in connect!on with
investigating, responding to, or defending any claim, action, sult, or proceeding as contemplated by this
Agreement, the Company shaU be !!able for any settlement of any such da!m, action, suit, or proceeding
without its consent if (a) such settlement is entered into more than 30 days after receipt by the
Company of such request for reimbursement after written notlce and opportunity to cure and {b) the
Company shall not have reimbursed such indemnified Party in accordance wlth such request prior to the
date of such settlement. The Company shall not, without the Indemnified Party's prior written consent,

June 13, 2012
Page 16 af 17

sett!e, compromise or consent to the entry of any judgment in any pending or threatened daim, action
or proceeding in respect of which indemnification could be sought under this Agreement (whether or
not any Indemnified Party is an actual or potential party to such dalm, action or proceeding}, unless
such settlement, compromise or consent includes an unconditional release of each Indemnified Party
from a!! !!abiHty arlslng out of such daim, action or proceeding and does not lndude a statement as to or
an 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 or
proceeding brought by or on behalf of or against the Company or any aftlliate or any partidpant in a
Transaction covered hereby in which such Indemnified Party is not named as a party, the Company
agrees to reimburse the !ndemnlfied Party for all reasonable expenses incurred by 1t in connection with
such !ndemnlfied Party's 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 an
amount to be mutually agreed upon.

2. Contribution
lf for any reason the lndemnifkatlon provided in this Agreement is unavailable to an !ndemrtifled Party
or insufficient to hold an Indemnified Party harmless, the Company shall contribute to the amount paid
or payable by such Indemnified Party as a result of such losses (or actions or proceedings in respect
thereof) ln such proportion as is appropriate to reflect the relative benefits received or proposed to be
received by the Company on one hand and the Indemnified Party on the other hand in connection with
services provided by GA Keen Realty Advisors under this Agreement lf, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable law or otherwise, the
Company shall contribute to such amount paid or payable by any Indemnified Party to reflect not oniy
the relative benefits but also the relative fault of the Company on the one hand and the Indemnified
Parties on the other hand in connection with any actions or omissions or any other matters that result ln
any such losses as we!! as any other re!evant equitable considerations. Relative benefits to the
Company, on the one hand, and to an Indemnified Party, on the other hand, shall be deemed to be in
the same proportion as (a) the tota! Transaction Value of the Transaction or proposed Transaction bears
to (b} aH fees actually received by GA Keen Realty Advisors under the Agreement Notwithstanding the
foregoing 1 the aggregate contribution of a!! lndemniflcd Parties to aU Losses shall not exceed the
amount of fees actually received by GA Keen Realty Advisors under this Agreement.

3. Reimbursement of Litigation ExQenses

The Company a!so agrees to reimburse GA Keen Realty Advisors, its affmates, and their respective
directors, 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 connection
with 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 such
entity or person pursuant to this Agreement, any transactions contemplated hereby, or its or his ro!e in
connection 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 Uabmw

The 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 directly
or indirectly, in contract or tort or otherwise) to the Company or its security holders or creditors, for any

The Club ot Cordi!Jem
June 13, 2012
Page 17of17

matter, cause or thing related to or arising out of the engagement of GA Keen Realty Advisors pursuant
to, 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 competent
jurisdiction to have acted or failed to act in bad faith or w!th gross negligence, negligence or willful
misconduct 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 have
and shall be binding upon and inure to the benefit of any successors, assigns, heirs, and personal
representatives of the Company. These provisions shall be governed by the law of the State of New
York, without regard to its conflict of law principles, and shat! be operative in fu!! force and effect
regardless of any termination or expiration of this Agreement
5. Bankruptcy Protocol: Notwithstanding anything to the contrary, ln the event that Company
files, 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 Company's 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 Trustee's 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
attorney's services satisfy Section S30{a}(3}(C} of the Bankruptcy Code.

4837-5181-1087 4

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