10000001204

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

4

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

5

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

6

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

7

• 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

8

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

9

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.

•·

The Club at Cordif!era
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

10000001204

Recomendados

Recomendados

Más contenido relacionado

La actualidad más candente

La actualidad más candente (19)

Destacado

Destacado (6)

Similar a 10000001204

Similar a 10000001204 (20)

Más de CourtReads

Más de CourtReads (17)

10000001204