Cordillera Golf Club, LLC Club at Cordillera,: "Motion") "Debtor")

Case:12-24882-ABC Doc#:495 Filed:09/28/12 Entered:09/28/12 09:30:46 Page1 of 49
In re
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLORADO
Chapter 11
CORDILLERA GOLF CLUB, LLC
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dba
The Club at Cordillera,
Case No. 12-24882-ABC
Debtor.
FINAL ORDER PURSUANT TO 11 U.S.C. 105, 361, 362, 363(c), 364(c), 364(d), AND
364(e) AND FED. R. BANKR. P. 2002, 4001 AND 9014 (I) AUTHORIZING DEBTOR TO
OBTAIN POST-PETITION SECURED FINANCING, (II) GRANTING SECURITY
INTERESTS AND SUPERPRIORITY ADMINISTRATIVE EXPENSE CLAIMS, AND
(III) AUTHORIZING THE USE OF CASH COLLATERAL AS PROVIDED HEREIN
Upon the motion (the "Motion") of above captioned debtor and debtor in possession,
Cordillera Golf Club, LLC (the "Debtor"), seeking an order of this Court pursuant to sections 105,
363(c) and 364(c), (d) and (e) of Chapter 11 of Title 11 of the United States Code (the
"Bankruptcy Code"), Rules 2002, 4001, and 9014 of the Federal Rules of Bankruptcy Procedure (the
"Bankruptcy Rules"), and Local Rules 4001-3 and 9013-1 (a) authorizing the Debtor to incur
postpetition indebtedness in the amount of up to $3,239,955 (the "Maximum Amount') on a final
basis substantially on the terms and conditions set forth herein and in certain loan documentation to be
executed and delivered by the Debtor; (b) granting priming security interests and superpriority claims;
and (c) granting related relief; and upon the entire record made at the hearing on September 27, 2012
(the "Hearing"); and this Court having found good and sufficient cause appearing therefor,
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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, Colorado
81632.
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IT IS HEREBY FOUND that:
A. On June 26, 2012 (the "Petition Date"), the Debtor filed a voluntary petition for
relief with this Court under Chapter 11 of the Bankruptcy Code, thereby initiating the above-
captioned bankruptcy case (the "Case"). The Debtor is continuing to manage its property and
operate its business as a debtor in possession pursuant to Bankruptcy Code 1107 and 1108.
B. On July 27, 2012, this Court entered its Interim Order Pursuant to 11 U.S.C.
105, 361, 362, 363(c), 364(c), 364(d), and 364(e) and Fed. R. Bankr. P. 2002, 4001 and 9014 (i)
Authorizing Debtor to Obtain Post-Petition Secured Financing, (ii) Granting Security Interests
and Superpriority Administrative Expense Claims, and (iii) Authorizing the Use of Cash
Collateral as Provided Herein, Dkt. #270 (the "Interim Order"), pursuant to which this Court
approved the borrowing by the Debtor of up to $587,000 (the "Interim DIP Loan") from Alpine
Bank.
C. On August 27, 2012, this Court entered its Order granting the Debtor's Motion to
(a) Extend and Increase Interim Financing and (B) Extend Use of Cash Collateral Under the
Terms of the Prior Order, Dkt. #393, extending the term of the Interim DIP Loan through
September 14, 2012, and increasing the approved amount thereof to $677,000. Use of Cash
Collateral (as hereinafter defined) was further extended to September 17, 2012 by consent ofthe
parties claiming an interest therein. The term of the Interim DIP Loan and use of Cash Collateral
were again extended to September 28, 2012, and the approved amount ofthe Interim DIP Loan
was increased to $887,000 by the Order (A) Further Extending and Increasing Interim Financing and
(B) Further Extending Use of Cash Collateral Under the Terms of the Prior Order, Dkt. #457. As
required by the terms thereof, the Interim DIP Loan shall be repaid in full upon closing of, and
from the proceeds of, the Final DIP Loan (as hereinafter defined).
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D. As of September 17, 2012, the Debtor, Alpine Bank, the official committee of
unsecured creditors appointed pursuant to Section 1102 of the Bankruptcy Code in the Case (the
"Committee"), and various other parties executed the Settlement Term Sheet attached hereto as
Exhibit A (the "Term Sheet").
E. This Court has jurisdiction over this Case and the Motion pursuant to 28 U.S.C.
157(b) and 1334. Consideration of the Motion constitutes a core proceeding as defined in 28 U.S.C.
157(b)(2).
F. Notice of the Hearing and the relief requested in the Motion has been given to (i)
the Office of the U.S. Trustee, (ii) counsel to Alpine Bank (in its capacity as the provider ofDIP
financing pursuant hereto, the "DIP Lender," and in its capacity as pre-petition secured lender
''Alpine''), (iii) counsel to David Wilhelm ("Wilhelm''), (iv) all other known secured creditors;
(v) counsel to the Committee; (vi) all parties requesting notice pursuant to Bankruptcy Rule
2002; and (vii) the Cordillera Metropolitan District and any other governmental authority to
whom the Debtor owes or may owe obligations for the payment of tax assessments (collectively,
the "Notice Parties"). Given the nature and the relief sought in the Motion, the foregoing notice
of the Hearing and the relief requested in the Motion has been given pursuant to and complies
with all applicable provisions of the Bankruptcy Code and the Bankruptcy Rules, including,
without limitation, section 102(1) ofthe Bankruptcy Code and Bankruptcy Rules 2002 and 4001
and was sufficient and adequate.
G. The requirements of Rule 4001 of the Federal Rules of Bankruptcy Procedure and
Local Rule 4001-3 have been satisfied.
H. The Debtor is seeking authorization to incur final post-petition indebtedness, up to
the Maximum Amount (the "Final DIP Loan"), from the DIP Lender pursuant to the terms
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hereof and the DIP Loan Agreement (the "DIP Loan Agreement") and related documents (with
the DIP Loan Agreement, the "DIP Loan Documents''), in substantially the forms filed with the
Court on September 26,2012 (Dkt ## 490, ~ , a s the same may be modified, supplemented or P
amended from time to time as provided herein, and to grant liens, security interests and
superpriority claims to the DIP Lender under the terms set forth in this Final Order.
Findings Regarding the Final DIP Loan
I. The Debtor has an immediate need to obtain the Final DIP Loan in order to
permit, among other things, the orderly continuation of the operation of its business, the
maintenance of real property that comprises the value of the estate, and to pay insurance and
costs of administration. The ability of the Debtor to obtain sufficient working capital and
liquidity through the incurrence of the Final DIP Loan is vital to the preservation and
maintenance of the value of the estate.
J. The DIP Lender is willing to allow the Debtor to obtain financing under the Final
DIP Loan only upon the terms and conditions set forth in this Final Order and the DIP Loan
Documents.
K. The Debtor is unable on a final basis to procure financing in the form of
unsecured credit allowable under Section 503(b)(l) ofthe Bankruptcy Code, as an administrative
expense under Section 364(a) or (b) of the Bankruptcy Code, or in exchange for a grant of an
administrative expense priority pursuant to Section 364(c)(l) of the Bankruptcy Code, without
the grant of liens on assets. The Debtor has been unable to procure the necessary final financing
on terms in the aggregate more favorable than the financing offered by the DIP Lender pursuant
hereto and to the DIP Loan Documents.
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L. The terms of the DIP Loan Documents and this Final Order are fair, just and
reasonable under the circumstances, are ordinary and appropriate for secured financing to
debtors-in-possession, reflect the Debtor's exercise of its prudent business judgment consistent
with its fiduciary duties, and are supported by reasonably equivalent value and fair consideration.
The terms and conditions of the DIP Loan Documents and this Final Order have been negotiated
in good faith and at arms' length and by and among the Debtor and the DIP Lender, with all
parties being represented by counsel. Any credit extended under the terms of this Final Order
shall be deemed to have been extended in good faith by the DIP Lender as that term is used in
Section 364(e) of the Bankruptcy Code, and the DIP Lender is and shall be entitled to the full
benefits of such section with respect to the Final DIP Loan and the liens, security interests, and
administrative priority granted hereby.
M. The relief requested in the Motion, to the extent granted herein, is necessary,
essential and appropriate, and is in the best interest of and will benefit the Debtor, its creditors
and its estate, as its implementation will, among other things, provide the Debtor with the
necessary liquidity to (a) minimize disruption to the Debtor's business and on-going operation,
(b) preserve and maximize the value of the Debtor's estate for the benefit of all the Debtor's
creditors, and (c) avoid immediate and irreparable harm to the Debtor, its creditors, its
businesses, its employees and its assets.
Findings Regarding Prepetition Secured Debt
N. Wilhelm, the Rush Family Trust, and Alpine have consented to the priming
security interests, superpriority claim, and other rights granted to the DIP Lender in this Final
Order and the DIP Loan Documents.
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Findings Regarding Use of Cash Collateral
0. The DIP Loan proceeds are not the cash collateral, as defined in section 363(a) of
the Bankruptcy Code ("Cash Collateral"), of Alpine, Wilhelm, or the Rush Family Trust. In
any event, Alpine, Wilhelm, and the Rush Family Trust have consented to the use of the DIP
Loan proceeds in accordance with this Final Order and the DIP Loan Documents.
P. Subject to the provisions of this Final Order and the DIP Loan Documents, the
DIP Lender consents, under Bankruptcy Code 363(c)(2), to the Debtor's use of Cash Collateral
that is subject to the DIP Liens (as hereinafter defined) or the Superpriority Claim (as hereinafter
defined) in accordance with the Budget (as hereinafter defined) and on the terms set forth herein
and in the DIP Loan Documents.
Q. Subject to the provisions of the Interim Order (A) Authorizing Debtor's Use of
Cash Collateral, (B) Granting Adequate Protection, and (C) Scheduling Final Hearing Pursuant
to Bankruptcy Rule 4001, dated June 27, 2012 (as such order is amended and made final hereby
and may be amended from time to time hereafter in accordance with the terms thereof or further
order of the Court with the consent of Wilhelm and Alpine, the "Cash Collateral Order"),
Alpine and Wilhelm have consented to use of Cash Collateral in accordance with the Budget and
on the terms set forth therein and herein. To the extent required, the Rush Family Trust also
consents on the same terms.
Based upon the foregoing findings and conclusions, and upon the record made before
this Court at the Hearing and the record in the Case, and good and sufficient cause appearing
therefor,
IT IS HEREBY ORDERED that:
1. The Motion is hereby granted in accordance with Bankruptcy Rule 4001 ( c )(2) to
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the extent provided in this Final Order. Capitalized terms used herein and not otherwise defined
have the meanings assigned to them in the DIP Loan Agreement. This Final Order shall be
referred to herein as the "Final Order."
Final DIP Loan
2. The terms and conditions of the Final DIP Loan, as set forth herein and in the DIP
Loan Documents, are hereby approved in all respects and made fully enforceable against the
Debtor and the DIP Lender; provided that, subject to approval of the Term Sheet by this Court
after notice and hearing in accordance with Rule 9019 of the Federal Rules of Bankruptcy
Procedure (the "9019 Motion"), in the event of any conflict between the DIP Loan Documents
and the Term Sheet, the Term Sheet shall control.
3. The Debtor is hereby authorized to request Advances under the Final DIP Loan,
pursuant to this Final Order and the DIP Loan Documents and in accordance with the procedures
set forth in such documents, up to the Maximum Amount during the period from the date of this
Final Order through the Maturity Date. The Final DIP Loan, and all other Post-Petition
Obligations, shall be due and payable in full on the Maturity Date.
4. Subject to the terms and conditions contained in this Final Order and the DIP
Loan Documents, the Debtor shall use the proceeds of the Final DIP Loan solely for (a)
repayment of the Interim DIP Loan on the closing date of the Final DIP Loan (which repayment
shall be effected by the DIP Lender by making an Advance directly to itself for such purpose),
(b) the payment of interest accruing on the Final DIP Loan in accordance with the DIP Loan
Documents, (c) the payment of disbursements specifically identified in the budget attached to the
Interim Order that were not previously funded by advances from the Interim DIP Loan, subject
to the variances permitted by such Interim Order, and (d) the payment of disbursements
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specifically identified in the budget attached as Exhibit B to this Final Order (as the same may be
supplemented or revised from time to time with (x) the approval of the DIP Lender, and (y) the
consent of the Committee or order of the Court, the "Budget"), subject to the following
permitted variances (the "Permitted
i. expenditures budgeted to be spent during a certain period, but not actually
spent in such period, may be spent in later periods;
ii. as to each line item in the Budget, total actual expenditures may exceed
total budgeted expenditures by up to 10% (or such other greater amount as
the DIP Lender and the Committee may consent to, or as the Court, with
the consent ofthe DIP Lender, may authorize); and
iii. the variance between total actual and total budgeted expenditures may not
exceed 10% in the aggregate (or such other greater amount as the DIP
Lender and the Committee may consent to, or as the Court, with the
consent ofthe DIP Lender, may authorize).
5. The proceeds ofthe Final DIP Loan shall not be used for any Prohibited Use.
6. Except as provided in the Budget and permitted hereby, no costs or expenses of
administration which have or may be incurred in the Case at any time shall be charged against
the DIP Lender, its claims, or the DIP Collateral, pursuant to Section 506(c) of the Bankruptcy
Code or otherwise, without the prior written consent of the DIP Lender, and no such consent
shall be implied from any other action, inaction, or acquiescence by the DIP Lender.
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DIP Loan Documents
7. In furtherance of the foregoing, the Debtor is authorized and directed to do and
perform all acts, and to make, execute and deliver all instruments and documents, that may be
reasonably required or necessary for the Debtor's performance hereunder, including, without
limitation, execution of the DIP Loan Documents evidencing and incorporating the terms hereof
and the other terms and conditions of the Final DIP Loan, and any such acts, instruments, and
documents are hereby approved. Whether or not hereinafter set forth in whole or in part, the
provisions ofthe DIP Loan Documents shall be deemed incorporated as part ofthis Final Order,
and made an order of this Court, as though fully set forth herein.
8. Prior to execution thereof, the Debtor and the DIP Lender, with the consent of the
Committee, without further approval or order of this Court, may make such conforming or other
changes to the DIP Loan Documents as are necessary to make such documents consistent with
the terms hereof, or which otherwise are not inconsistent herewith and do not materially
adversely impact the rights of the Debtor hereunder or thereunder. Thereafter, the Debtor and
the DIP Lender may amend, modify, supplement or waive any of the terms and conditions of the
Final DIP Loan, including, without limitation, to extend the maturity thereof, increase the
amount thereof, or amend or modify the Budget (an "Amendment") without further approval or
order of the Court so long as (a) such Amendment is consented to by the Committee, Wilhelm,
and the Rush Family Trust, (b) the Debtor files the Amendment with the Court and gives notice
thereof to the Notice Parties (an "Amendment Notice'), and (c) no objection to the Amendment
is filed with the Court within two (2) business days from the later of the date the Amendment
Notice is served or the date the Amendment is filed with the Court in accordance with this
paragraph. Nothing herein shall preclude the Debtor from seeking an order of the Court with
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respect to an Amendment in the event that Wilhelm, the Rush Family Trust, or the Committee
declines to consent thereto, or for any other reason.
Superpriority Claim
9. To secure the prompt payment and performance of any and all of the Debtor's
Post-Petition Obligations, the DIP Lender is hereby granted, effective as of the date of this Final
Order, pursuant to section 364(c)(l) of the Bankruptcy Code, a claim (the "Superpriority
Claim") with priority over any and all administrative expenses or other claims of the kind
specified in, or ordered pursuant to, sections 105, 326, 327, 328, 330, 331, 503(b), 506(c),
507(a), the "equity" exception in section 552(b ), 726, or any other provision of the Bankruptcy
Code (whether incurred in this Case or in any successor cases) equal to the amount of Post-
Petition Obligations authorized by this Final Order.
DIP Liens
10. To secure the prompt payment and performance of any and all Post-Petition
Obligations, effective as of the date of this Final Order, pursuant to Bankruptcy Code sections
364(c)(2) and 364(d)(l), the DIP Lender shall have, and is hereby granted, liens, security
interests and mortgages in all of the assets of the Debtor (collectively, the "DIP Collateral"),
excluding only (a) claims and recoveries under sections 544-550 of the Bankruptcy Code (the
"Avoidance Actions"), (b) the Retainer Accounts or Advances deposited therein, except to the
extent of any excess, if any, after payment of all allowed fees and expenses for which payment is
permitted under the Final DIP Loan, (c) the Retainers, as defined in the Interim Order, (d) the
CTC Settlement Payment, as defined in the Term Sheet, and (e) payroll and fiduciary deposit
accounts required by law, and any assets which are not assignable by the Debtor as a matter of
law, including under the Bankruptcy Code, which security interests, liens and mortgages shall be
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priming, first priority liens and mortgages (collectively, the "DIP Liens"), subject only to the
liens and security interests listed on Exhibit C to this Fimil Order (collectively, the "Permitted
Senior Liens").
11. Pursuant to Bankruptcy Code section 364(d)(1), the DIP Liens that are granted on
the DIP Collateral shall be perfected first priority, senior priming liens and mortgages, subject
and subordinate only to the Permitted Senior Liens, and all other security interests, liens and
mortgages on the DIP Collateral shall be primed by and made subject and subordinate to the
DIP Liens. The DIP Liens granted in favor of the DIP Lender in all of the DIP Collateral shall
be perfected without the recordation of any Uniform Commercial Code financing statements,
notices of lien or other instruments of mortgage or assignment.
12. Any of the DIP Liens which are subject to Permitted Senior Liens shall be DIP
Liens junior in right and interest only to the Permitted Senior Liens (such junior liens, the
"Second Liens"). The Second Liens are part of the DIP Liens, are secured by the DIP Collateral,
and are automatically perfected as provided in Paragraph 16 hereof.
13. The DIP Lender shall have such rights and remedies with respect to the DIP
Collateral as are set forth in the DIP Loan Documents and as are otherwise available under
applicable law.
14. The DIP Liens shall not be subject or subordinate to: (i) any lien or security
interest that is avoided and preserved for the benefit of the Debtor and its estate under section
551 of the Bankruptcy Code, or (ii) any liens arising after the Petition Date including, without
limitation, any liens or security interests granted in favor of any federal, state, municipal, or other
governmental unit, commission, board or court for any liability of the Debtor, except in each
case the Permitted Senior Liens.
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15. Notwithstanding anything to the contrary in this Final Order, Avoidance Actions,
other than avoidance actions under section 549 of the Bankruptcy Code to the extent any portion
of the DIP Collateral is transferred in a manner not authorized by the Court or the Bankruptcy
Code, the Retainer Accounts (except to the extent of any excess, if any, after payment of all
allowed fees and expenses for which payment is permitted under the Final DIP Loan), the
Retainers, and the CTC Settlement Payment do not constitute DIP Collateral.
16. This Final Order shall be sufficient and conclusive evidence of the priority,
perfection and validity of the DIP Liens, effective as ofthe Petition Date, without any further act
and without regard to any other federal, state, or local requirements or law requiring notice,
filing, registration, recording or possession of the DIP Collateral, or other act to validate or
perfect such security interest or lien, including without limitation, control agreements with the
Debtor's existing U.S. Bank commercial accounts or with any other financial institution(s)
holding a blocked account or other depository account consisting of DIP Collateral (a
"Perfection Act"). Notwithstanding the foregoing, if the DIP Lender shall, in its sole discretion,
elect for any reason to file, record, or otherwise effectuate any Perfection Act, the DIP Lender is
authorized to perform such act, and the Debtor is authorized and directed to perform such act to
the extent necessary or required by the DIP Lender, which act or acts shall be deemed to have
been accomplished as of the date and time of entry of this Final Order notwithstanding the date
and time actually accomplished, and in such event, the subject filing or recording office is
authorized to accept, file, or record any document in regard to such act in accordance with
applicable law. The DIP Lender may choose to file, record, or present a certified copy of this
Final Order in the same manner as a Perfection Act, which shall be tantamount to a Perfection
Act, and, in such event, the subject filing or recording office is authorized to accept, file, or
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record such certified copy of this Final Order in accordance with applicable law. Should the DIP
Lender so choose and attempt to file, record, or perform a Perfection Act, no defect or failure in
connection with such attempt shall in any way limit, waive or alter the validity, enforceability,
attachment, or perfection of the post-petition liens and security interests granted herein by virtue
of the entry ofthis Final Order.
17. Notwithstanding anything to the contrary contained in any pre-petition agreement,
contract, lease, document, note, or instrument to which the Debtor is a party or under which the
Debtor is obligated, any provision that restricts, limits, or impairs in any way the Debtor from
granting the DIP Lender security interests in or liens upon any of the Debtor's assets or
properties (including, among other things, any anti-lien granting or anti-assignment clauses in
any leases or other contractual arrangements to which the Debtor is a party) under the DIP Loan
Documents or this Final Order, or otherwise entering into and complying with all of the terms,
conditions and provisions hereof, shall not (a) be effective and/or enforceable against the Debtor
of the DIP Lender, or (b) adversely affect the validity, priority or enforceability of the liens,
security interests, claims, rights, priorities and/or protections granted to the DIP Lender pursuant
to this Final Order or the DIP Loan Documents to the maximum extent permitted under the
Bankruptcy Code and other applicable law.
Automatic Stay
18. The automatic stay of section 362(a) of the Bankruptcy Code is hereby modified
to the extent necessary (a) to permit the Debtor to grant the DIP Liens and to perform the
Debtor's obligations under the DIP Loan Documents, and (b) following the occurrence of and
Event of Default and delivery of a Termination Notice, to permit the DIP Lender to exercise
all rights and remedies provided for hereunder or under the DIP Loan Documents.
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19. The automatic stay of section 362(a) of the Bankruptcy Code is hereby
immediately terminated to permit Alpine and its successors and assigns, to exercise its non-
bankruptcy rights and remedies with respect to the Pre-Petition Liens in the collateral covered
thereby (the "Pre-Petition Collateral") in accordance with the Pre-Petition Loan Documentation
and applicable non-bankruptcy law. Notwithstanding the foregoing, Alpine shall forbear (the
"Forbearance'J from exercising any of such rights and remedies until the earlier of (a) the
Maturity Date, (b) repayment in full of the Post-Petition Obligations, or (c) the occurrence of an
Event of Default and delivery of a Termination Notice, unless simultaneously therewith, the Pre-
Petition Loan Obligations are repaid in full. So long as the Case is pending, nothing herein shall
be deemed to permit Alpine to pursue any deficiency, if any, remaining after any exercise of its
rights in the Pre-Petition Collateral against the Debtor or its estate except in accordance with the
Bankruptcy Code's claims allowance and distribution process or further order of this Court.
Events of Default
20. Unless the DIP Lender shall have provided prior written consent, or all Pre-
Petition Obligations and Post-Petition Obligations shall have been indefeasibly paid in full in
cash, each of the following shall constitute an "Event of Default":
(a) The failure to repay the Post-Petition Obligations in full on or before the
Maturity Date; provided, that if a Capital Event consistent with the Term Sheet has closed
on or before the Outside Date, the Debtor shall have a grace period of up to 5 days to
make the payments otherwise due hereunder on the Maturity Date.
(b) The issuance of an order (i) staying, reversing, modifying (unless such
modification will not adversely affect the DIP Lender, the DIP Liens, or the rights of DIP
Lender under or with respect to the Post-Petition Obligations or the DIP Loan
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Documents), withdrawing, or vacating the Final Order, or (ii) otherwise adversely
affecting the DIP Lender, the DIP Liens, or the rights of DIP Lender under or with respect
to the Post-Petition Obligations or the DIP Loan Documents, in either case without the
consent of the DIP Lender.
(c) The dismissal of the Case or the conversion of the Case to chapter 7.
(d) The appointment of a chapter 11 trustee or an examiner with expanded
powers in the Case.
(e) The filing of(l) a plan ofreorganization or liquidation by the Debtor or, if
exclusivity has been terminated, by any other person or entity that is inconsistent with the
terms of the Term Sheet, the DIP Loan Documents, or this Final Order in any material
respect, or (2) any Capital Event Pleading that is inconsistent with the terms of the Term
Sheet, the DIP Loan Documents, or this Final Order in any material respect. For the
avoidance of doubt, the filing by the Debtor and the Committee of a joint plan of
liquidation consistent with the Term Sheet shall not constitute an Event of Default.
(f) The granting of relief from the automatic stay to any creditor having a lien
on or security interest in any material portion ofthe DIP Collateral permitting foreclosure
or repossession of such material portion of the DIP Collateral.
(g) The failure to meet any Benchmark in any material respect.
(h) Expenditure of any amounts not provided for, or in excess of the limits set
forth in (subject to the Permitted Variance), the Budget, except to the extent otherwise
consented to by the DIP Lender.
(i) The filing by the Debtor of any motion seeking to use Cash Collateral in a
manner inconsistent the DIP Loan Documents or this Final Order, or the granting of any
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such motion filed by any other Person.
G) The issuance of an order denying the 9019 Motion or related pleadings in
any material respect, including, as to any provision with respect to the Sale or the
allowance ofthe Pre-Petition Obligations.
(k) The failure of the Debtor to comply with any other term, condition,
covenant, or obligation of the Borrower under the DIP Loan Documents, if Borrower shall
fail to effectuate a cure reasonably satisfactory to the DIP Lender within seven (7)
Business Days of written notice thereof by Lender, as more fully provided in the DIP
Loan Agreement.
21. Upon the occurrence of an Event of Default, the DIP Lender may deliver to the
Debtor a notice of termination (a "Termination Notice"), whereupon any obligation to make
further Advances shall terminate, the Forbearance shall terminate, and the DIP Lender and
Alpine, as applicable, shall be entitled to exercise all of its rights and remedies with respect to
the Post-Petition Obligations, the Pre-Petition Obligations (limited, as set forth above to the Pre-
Petition Collateral), and the collateral therefor as provided under the DIP Loan Documents, the
Pre-Petition Loan Documentation, this Final Order, and applicable law.
Miscellaneous
22. Unless and until the Post-Petition Obligations and the Pre-Petition
Obligations are unconditionally and indefeasibly repaid in full in cash, (a) the protections
afforded to the DIP Lender and Alpine, respectively, under this Final Order and under the DIP
Loan Documents, as applicable, shall survive the entry of any order confirming a plan of
reorganization or converting the Case into a case under chapter 7 of the Bankruptcy Code, and
(b) the DIP Liens and the Superpriority Claim shall continue and shall maintain their priority
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as provided by this Final Order.
23. In no event shall the DIP Lender be subject to the equitable doctrine of
"Marshaling" or any similar doctrine with respect to the DIP Collateral as it relates to the Post-
Petition Obligations.
24. This Court shall retain jurisdiction with respect to all matters arising from or
related to the implementation of this Final Order.
25. Other than as expressly set forth in this Final Order, no party shall be limited in
the actions or positions it may take, oppose, or support, consistent with such party's rights under
applicable law, court orders, and agreements.
26. The Cash Collateral Order is hereby amended to (a) extend the term thereof
through and including the Outside Date, (b) to substitute the Budget for the budget attached to
the Cash Collateral Order, and (c) to make such order a final order for use of Cash Collateral.
27. Notwithstanding the possible applicability of Bankruptcy Rules 4001 (a)(3),
6004(h), 7062, 9014, or other rules, the terms and conditions of this Final Order shall be
immediately effective and enforceable upon its entry.
28. The Debtor shall promptly mail copies of this Final Order to the Notice Parties.
Dated: September r1[1 2012
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EXHIBIT A
TERM SHEET
This Term Sheet is made and entered into as of this 17th day of September, 2012, by and
between CORDILLERA GOLF CLUB, LLC a Delaware limited liability company ("Debtor"),
The OFFICIAL COMMITTEE OF UNSECURED CREDITORS appointed in the Bankruptcy
Case (as defined herein) of CORDILLERA GOLF CLUB, LLC ("Committee"), CORDILLERA
GOLF HOLDINGS, LLC, a Delaware limited liability company ("CGH"), CORDILLERA F &
B, LLC, a Delaware limited liability company or any successor thereto ("CFB"),WFP
CORDILLERA, LLC, a Delaware limited liability company ("WFP"), WFP INVESTMENTS,
LLC, a Delaware limited liability company ("WFPI"), CGH MANAGER, LLC, a Delaware
limited liability company ("CGHM"), DAVID A. WILHELM ("Wilhelm"), PATRICK
WILHELM ("P. Wilhelm"), CORDILLERA TRANSITION CORPORATION, INC., a Colorado
not for profit corporation ("CTC"), CORDILLERA PROPERTY OWNERS ASSOCIATION,
INC., a Colorado not for profit corporation ("CPOA"), CORDILLERA METROPOLITAN
DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado
("CMD"), CORDILLERA VALLEY CLUB PROPERTY OWNERS ASSOCIATION, INC., a
Colorado not for profit corporation ("CVCPOA"), TIMBER SPRINGS PROPERTY OWNERS
ASSOCIATION, INC., a Colorado not for profit corporation ("TSPOA"), CHERYL M. FOLEY,
THOMAS WILNER, JANE WILNER, CHARLES JACKSON, MARY JACKSON, KEVIN B.
ALLEN, as representatives of a certified class in Case Number 11CV552, pending in the District
Court of Eagle County, Colorado (collectively, the "Member Representatives") and ALPINE
BANK.
RECITALS
A. The parties to this Term Sheet are listed in the foregoing paragraph and are
sometimes referred to collectively in this Term Sheet as "Parties."
B. The Debtor is the Debtor in Possession in connection with a Chapter 11
bankruptcy case pending in the United States Bankruptcy Court for the District of Colorado,
Case No. 12-24882-ABC (the "Bankruptcy Case"). The Debtor operates certain golf courses and
other amenities (collectively and generally referred to as the "Club"). Right to use of the Club is
governed by membership applications, membership plans, rules and regulations of the Club and
all amendments and modifications thereto (collectively "Membership Documents").
C. The Committee is the official committee of unsecured creditors appointed by the
United States Trustee on July 6, 2012.
D. WFP is the holder of all of the limited liability company membership interests in
CGH.
E. CGH is the holder of all of the limited liability company membership interests in
the Debtor.
4266769.1
F. Wilhelm is the holder of all of the limited liability company membership interests
in WFP. P. Wilhelm is Wilhelm's son.
G. The Debtor, CGH, WFP, Wilhelm, CTC, CPOA and various individuals: Glenn
Bourland, Lois Van Deusen, Roger Magid (collectively the "CPOA Individuals"), Robert
Vanourek, Denise Delaney, Gary Edwards, Raymond Oglethorpe, David Temin, Sarah Baker,
Nelson Sims, Dick Rothkopf, and David Bentley (collectively the "CTC Individuals") are parties
to an action pending in the District Court, Eagle County Colorado, Case No. 2011CV456 ("CTC
Lawsuit").
H. The Member Representatives, the Debtor, WFP, CGH, CFB, WFPI, CGHM,
CFB, Wilhelm and P. Wilhelm are (or were) parties to an action pending in the District Court,
Eagle County Colorado, Case No. 2011CV552 ("Class Action Lawsuit").
I. Alpine Bank asserts that it is a secured creditor of the Debtor and claims a lien on
substantially all of the Debtor's real and personal property used on or in connection with the
operation of the real property and the operation of the Debtor's business. Alpine Bank asserts
that its claim is secured by a first lien on such property.
J. Wilhelm asserts that he is a secured creditor of the Debtor and claims a lien on
substantially all of the Debtor's real and personal property used on or in connection with the
operation of the real property and the operation of the Debtor's business. Wilhelm asserts that
his claim is secured by at least a second lien on such property. Wilhelm has also asserted a first
lien on personal property owned by the Debtor.
K. CMD claims to be a secured creditor of the Debtor for unpaid taxes. CMD asserts
a first priority lien for unpaid 2011 taxes in the amount of $205,311.31. CMD also asserts a first
priority lien for 2012 taxes that will become due in 2013 (the "CMD Tax Claims").
L. In addition to Wilhelm and Alpine, certain assets of the Debtor are subject to
purchase money liens in favor of creditors who are not parties to this Term Sheet (the "Purchase
Money Lien Assets"). Further, certain assets used by the Debtor are leased from creditors who
are not parties to this Term Sheet and such assets are not owned by the Debtor (the "Leased
Assets") (the Purchase Money Lien Assets and the Leased Assets shall be collectively referred to
the "Non-Party Assets").
M. By Motion dated August 30, 2012, Docket No. 402 ("DIP Loan Motion"), the
Debtor has sought final approval of a loan by Alpine Bank to the Debtor and approval of the use
of cash collateral. The DIP Loan Motion is set for hearing on September 17, 2012. The
Committee, the Member Representatives, the CPOA and the CMD were prepared to file
objections to the DIP Loan Motion. Because of the settlement embodied in this Term Sheet, the
objections have not been filed.
N. By Motion dated July 24, 2012, Docket No. 235 ("Trustee Motion"), the Member
Representatives have sought the appointment of a trustee in connection with the Bankruptcy
Case. The Committee, the CPOA and the CMD filed Joinders in the Trustee Motion. In
2
4266769.1
addition, an additional 608 Personal Joinders have been filed by members of the certified class
represented by the Member Representatives and other parties, Docket No. 414. The Debtor filed
its Opposition to the Trustee Motion and Wilhelm filed a Joinder to such Opposition. The
Trustee Motion is set for hearing on October 1-3, 2012.
0. The parties to this Term Sheet may be parties to various other disputes which are
the subject of motions, responses, objections or pleadings pending before the Bankruptcy Court.
P. The parties to this Term Sheet attended a voluntary mediation on September 12
and 13, 2012 ("Mediation"). The mediator conducting the Mediation was Deborah Williamson
("Mediator"). The Mediation resulted in various agreements among the Parties that will resolve
various disputes among them in the Bankruptcy Case, a complete settlement of the CTC Lawsuit
among the parties to the CTC Lawsuit, and a partial resolution of the Class Action Lawsuit.
Q. The purpose of this Term Sheet is to set forth the agreements of the Parties
reached at the Mediation and to establish a process and procedure for documenting, seeking any
necessary court approval and implementing those agreements.
4266769.1
SETTLEMENT TERMS AND AGREEMENTS
1. DIP Loan.
a. Interim DIP Loan. The interim debtor-in possession loan from Alpine to
the Debtor (the "Interim DIP Loan") pursuant to the terms of the Interim
Order Pursuant to 11 U.S.C. 105, 361, 362, 363(c), 364(c), 364(d),
and 364(e) and Fed. R. Bankr. P. 2002, 4001 and 9014 (i) Authorizing
Debtor to Obtain Post-Petition Secured Financing, (ii) Granting Security
Interests and Superpriority Administrative Expense Claims, and (iii)
Authorizing the Use of Cash Collateral as Provided Herein, Dkt. #270, as
extended by the Order granting the Debtor's Motion to (a) Extend and
Increase Interim Financing and (B) Extend Use of Cash Collateral Under
the Terms ofthe Prior Order, Dkt. #393 shall be further extended by order
of the Bankruptcy Court, through and including September 28, 2012, and
shall be increased in such amount as shall be necessary to meet such
expenses for such extension period as are consistent with the budget
attached to the DIP Loan Motion. The Parties have no objection and
hereby consent to the foregoing extension of the Interim DIP Loan for the
purpose of permitting the Parties to prepare and, where necessary, file
with the Bankruptcy Court certain other pleadings contemplated by this
Term Sheet including such revisions to the relief requested in the DIP
Loan Motion, the proposed order attached thereto, and the form of the
applicable loan documentation as are necessary to conform to this Term
Sheet.
b. Permanent DIP Loan. Subject to the performance and satisfaction of the
terms, provisions and conditions contained in this Term Sheet, the Parties
3
4266769.1
consent to the entry of an order approving the Final DIP Loan Motion as
contemplated by and defined in the DIP Loan Motion. However, the Final
DIP Loan will be modified as follows:
1. The amount in the budget attached to the DIP Loan Motion
provides for professional fees of $965,000. It is agreed that
Budget in the DIP Loan Motion will be revised to provide that an
amount of $300,000 for professional fees shall be reserved
exclusively for payment of the fees and expenses incurred by
professionals retained on behalf of the Committee and expenses of
members of the Committee (the $300,000 together with the
$50,000 previously paid to the Committee shall be collectively
referred to as the "Committee Carveout"). To the extent allowed
professional fees and expenses of the Committee and expenses of
members of the Committee are less than the Committee Carveout,
any amounts remaining shall be available for payment of allowed
administrative expenses of the Debtor. To the extent any such
Committee professionals and/or member fees and expenses exceed
the Committee Carveout, they will not be entitled to further
payment until professionals retained by the Debtor have received
an equivalent pro rata payment.
ii. Alpine Bank has consented to this Term Sheet and it is agreed that
if and to the extent the Final DIP Loan is inconsistent with any
term, provision or condition of this Term Sheet, the Final DIP
Loan shall be deemed amended so that it is consistent with this
Term Sheet. Without limiting the generality of the foregoing,
performance by any ofthe Parties ofthe Term Sheet shall not be a
default under the Final DIP Loan.
2. Settlement of Claims.
a. Not later than October 5, 2012, the Member Representatives will file
appropriate pleadings in the Class Action Lawsuit ("Class Action
Settlement Motion") seeking approval of the settlement of the Class
Action Lawsuit as provided in this Term Sheet (the "Class Action
Settlement") and will recommend and request that a hearing is scheduled
on the Class Action Settlement Motion such that appropriate notices are
provided to Class Members and that the deadline to opt out of the Class
Action Settlement is November 30, 2012. Not later than October 5, 2012,
the Debtor and the Committee shall file a Joint Motion, pursuant to Rule
9019 of the Federal Rules of Bankruptcy Procedure, seeking approval of
the various compromises and settlements provided in this Term Sheet (the
"9019 Motion"). Approval of the 9019 Motion shall be pursued by the
Debtor and the Committee with reasonable diligence and all parties hereto
shall cooperate in that regard. The 9019 Motion and the Class Action
4
4266769.1
Settlement Motion (to the extent of the settlement of the Class Action
Lawsuit) will seek approval of the following terms:
i. Mutual Releases. The Debtor, CGH, WFP, CFB, WFPI, CGHM,
CFB, Wilhelm and P. Wilhelm (and their affiliates), on the one
hand, and the Committee, CTC, CPOA, CMD, CVCPOA, TSPOA,
the Member Representatives, individually and as representatives of
the certified class represented by the Member Representatives, and
each of the members of such class who do not opt out of this
settlement (subject to approval by the Eagle County District
Court), and each member and former member not represented by
the Class, and all past, present, and future board members and
officers of CTC, CPOA, CMD, CVCPOA, and TSPOA, including
but not limited to those named as Defendants in the CTC Lawsuit
and including but not limited to the CPOA Individuals and the
CTC Individuals, on the other hand, and their respective affiliates,
agents, attorneys, representatives, successors and assigns, will fully
and forever release, discharge, waive and acquit one another and
their respective affiliates, agents, employees, consultants,
attorneys, representatives, predecessors, successors, shareholders,
officers, directors, Committee members, limited liability company
members, heirs and assigns, from and against any and all offsets,
defenses, claims, counterclaims, actions, proceedings, obligations,
demands, debts, causes of action, and any other liability or loss,
whether known or unknown, at law or in equity (collectively,
"Claims"), arising out of any fact, matter, act or circumstance from
the beginning of time to the date of this Term Sheet that relates to
the Bankruptcy Case, the CTC Lawsuit, the Class Action Lawsuit
or the Club at Cordillera and all matters related, connected or
incidental thereto. Without limiting the generality of the
foregoing, (i) all claims in the CTC Lawsuit are resolved and the
plaintiffs in the CTC Lawsuit will file a Notice of Dismissal with
prejudice with the District Court, Eagle County Colorado, upon
payment of the CTC Settlement Payment; (ii) any claims against
any member or former member for 2011 or 2012 Club dues, Club
minimums, or late fees or other alleged obligations are released;
provided, however, any obligations which arose on or after June
26, 2012 (the "Petition Date") related to actual use of facilities
owned by the Debtor or actual receipt of actual services from the
Debtor (including, without limitation, food and drink, or use of any
of the golf facilities) shall not be released. Further, all members
who have or in the future resign from the Club at Cordillera are
released from any liability associated with the Membership
Documents, including any obligation to continue paying dues for
any period into the future. Finally, the Membership Documents
will be deemed rejected as executory contracts pursuant to section
5
4266769.1
365 of the Bankruptcy Code and members will be deemed to have
waived claims arising out of rejection of such Membership
Documents, save and except only claims for member deposits as
provided herein. Notwithstanding the foregoing, the releases
provided in this paragraph shall not extend to the following:
1. The Claims asserted by the Member Representatives and
the members of the certified class represented by the
Member Representatives in the Class Action Lawsuit, nor
to any of the defenses and offsets thereto in the Class
Action Lawsuit by the Debtor, CGH, WFP, WFPI, CFB,
CGHM, Wilhelm and P. Wilhelm; provided that recovery
by the Member Representatives and the members of the
certified class represented by the Member Representatives
in the Class Action, if any, shall be limited to any
insurance coverage applicable to such claims and the
proceeds of such coverage, regardless of whether any such
coverage is ultimately available. Debtor, CGH, WFP,
CFB, WFPI, CGHM, Wilhelm, and P. Wilhelm make no
representation regarding the existence or availability of any
insurance coverage for the Class Action Lawsuit and retain
all rights under any potentially applicable policy of
insurance. However, the Debtor, CGH, WFP, CFB, WFPI,
CGHM, Wilhelm, and P. Wilhelm do specifically warrant
and represent that the Disclosure made by them in the Class
Action Lawsuit, pursuant to C.R.C.P. 26(a)(l), with respect
to insurance coverage, is true, accurate and complete.
Nothing in this Term Sheet shall be deemed or construed as
an admission of liability or as an admission of any measure
of damages by the Debtor, CGH, WFP, CFB, WFPI,
CGHM, Wilhelm or P. Wilhelm related to any claim
asserted against them in the Class Action. Member
Representatives and the members of the certified class
represented by the Member Representatives in the Class
Action hereby covenant not to execute any judgment or
assert any claim for attorneys fees or costs against the
assets of Debtor, CGH, WFP, CFB, WFPI, CGHM,
Wilhelm or P. Wilhelm, other than their rights to any
applicable insurance coverage.
2. The Claims of all members and former members of the
Cordillera Club for the return of deposits paid in
connection with their club memberships, who timely file
proof of claims, shall be deemed allowed in favor of each
such member (the "Member Deposit Claims") but
subordinated as further provided herein; provided,
6
4266769.1
however, that nothing herein shall restrict the right of the
Debtor or any other party in interest to object to a Member
Deposit Claim to the extent such claim exceeds the amount
of the deposit(s) actually paid by such member. Proof of
such claims, which must be in accordance with this Term
Sheet, may be included in a proof of claim filed by the
Class Representatives on behalf of the class members as a
class proof of claim.
3. Any claim of any Party for a breach of any obligation
imposed by this Term Sheet.
4. Any secured claim for unpaid real property or business
personal property taxes.
5. The claim of Alpine Bank, which, subject to verification as
to calculation of amount only, shall be deemed to be an
allowed secured claim in the amount of $13,037,559.18,
plus such amounts, if any as are allowable under 11 U.S.C.
506(b ), plus the amounts advanced pursuant to or
otherwise due and owing with respect to the Final DIP
Loan.
6. The claim of Wilhelm, which, subject to verification as to
calculation of amount only, shall be deemed an allowed
secured claim in the amount of $7,532,837.05, plus such
amounts, if any, as are allowable under 11 U.S.C. 506(b)
(the "Wilhelm Claim"). The Wilhelm Claim will be
inclusive of all claims of Dr. Jeffrey Rush and the Rush
Family Trust (collectively "Rush") and any person or entity
acting in whole or in part through Rush and the Rush
claims will not be separately allowed.
7. There has been no agreement to or settlement of any claim
for any administrative expense and the Parties reserve all of
their rights with respect to any past or future application by
a party seeking allowance of an administrative expense
claim.
8. Claims, if any, which the Debtor, CGH, CFB, WFP, WFPI,
CGHM, Wilhelm or P. Wilhelm may have against any
member who exercises the right to opt out of the Class
Action Settlement.
11. Payment by CPOA and CTC. In consideration of the releases
provided herein, the CPOA and CTC shall pay the sum of
7
4266769.1
$2,350,000 ("CTC Settlement Payment") upon entry of an order by
the Bankruptcy Court approving the 9019 Motion, which order
shall have become final and not subject to any further appellate
review. $1,600,000 ofthe CTC Settlement Payment shall be held
in a separate escrow account by the Debtor (the "CTC Escrow")
and shall be used and applied only as permitted by this Term
Sheet. $750,000 of the CTC Settlement Payment shall be paid to
Wilhelm. CGH, CFB, WFP, WFPI, CGHM, Alpine Bank,
Wilhelm, P. Wilhelm, and Rush will not assert any claim or lien
against or any distribution from any portion of the CTC Escrow.
Substantially contemporaneous upon payment of the CTC
Settlement Payment, Plaintiffs in the CTC Lawsuit will file a Joint
Notice of Dismissal with Prejudice of the CTC Lawsuit with the
Eagle County District Court, which Joint Notice will have been
executed and held by Plaintiffs pending receipt by Wilhelm of the
$750,000.
iii. Distribution of the CTC Settlement Payment. Upon confirmation
of the Joint Plan, as provided herein, the CTC Escrow shall be used
as follows: (1) for payment of non-member priority claims; and
(2) for the payment of unsecured claims for goods and services
(collectively "Trade Claims"), provided that the total payments
shall be the lesser of $600,000 or the allowed amount of the Trade
Claims. The balance of the CTC Escrow shall be utilized to pay
any allowed unpaid administrative expenses for professionals
retained at the expense of the estate. To the extent of any excess,
the CTC Escrow will be used to fund Plan payments as provided
herein
IV. If the Class Action Settlement is approved by the Eagle County
District Court, then all claims and causes of action which the
Debtor may have or could have asserted against any member who
elects to opt out of the Class Action Settlement shall be transferred
and assigned to Wilhelm.
v. The Parties acknowledge that this Term Sheet and its releases are
entered into and given in compromise of disputed claims and that
this Term Sheet and the execution thereof shall not constitute any
acknowledgement or admission by any Party of any wrongdoing,
improper actions, liability or potential liability on the part of such
Party, and any such liability or wrongdoing is expressly denied.
vi. If Wilhelm or any affiliate of Wilhelm or any entity in which
Wilhelm or any Wilhelm affiliate (collectively, "Wilhelm Party")
owns an interest, is selected as the successful bidder at the sale of
the Debtor's assets as provided for herein, then such Wilhelm
8
Party shall transfer or cause to be transferred the Debtor's
ownership interest in (a) the "Short Course," (b) the Trailhead
facilities and (c) the Athletic Club facilities (collectively the "Non-
Essential Assets") to an entity (other than CTC) to be jointly
designated by the CMD, the CPOA and the Member
Representatives for no additional consideration simultaneously
with the later of closing of the sale of the Debtor's assets to such
Wilhelm Party or approval of the 9019 Motion and the Class
Action Settlement Motion.
vii. The Parties agree that in future communications with third parties,
they shall not make disparaging statements about one another;
provided that this provision shall not limit the parties or a witness
in the pursuit or defense of the claims or in presenting any
testimony or conducting or participating in any discovery in the
Class Action Lawsuit, and provided further that the Committee,
CTC, CVCPOA, TSPOA, CMD, CPOA and Member
Representatives shall have no liability for statements made by any
other individual property owner or other class member, including
but not limited to statements made in any meeting or other forum
sponsored or held by the CMD and/or the CPOA.
3. Sale of Assets. The Parties agree to and shall take steps to implement a process
for the sale of the Debtor's operating assets. The Debtor and the Committee shall jointly prepare
and file with the Bankruptcy Court, after consultation with the Parties about the form thereof, a
joint motion seeking approval of bidding procedures ("Bidding Procedures Motion"). The
Debtor and the Committee shall also jointly prepare and file with the Bankruptcy Court, after
consultation with the Parties about the form thereof, a motion seeking approval of the sale of all
the Debtor's operating assets, pursuant to this Term Sheet, free and clear of all liens (other than
liens which arise from unpaid real property taxes and/or all business personal property taxes),
claims, encumbrances and interests (including, without limitation free and clear of all claims,
interests or rights which may arise out of Membership Documents) pursuant to sections 363(b)
and (f) of the Bankruptcy Code (the "Sale Motion"). To the extent the Parties are unable to
agree upon the terms of either the Bidding Procedures Motion or the Sale Motion, the Mediator
shall resolve such disputes. A draft ofthe Bidding Procedures Motion and Sale Motion shall be
prepared by the Committee on or before October 5, 2012 and shall be filed not later than October
10, 2012 and shall collectively contain at least the following provisions:
4266769.1
a. That bids must be for all operating assets owned by the Debtor and must
be received by December 3, 2012 (the "Bid Deadline"); provided that if
the holder of the Alpine Bank claim or the Wilhelm claim desire to credit
bid, they must give written notice of their intent to do so by Thursday,
December 6, 2012. If more than one qualifying bid is received or if a
timely notice of an intent to credit bid has been provided, then an auction
will be held on December 10, 2012 to select the highest and best bid.
9
b. That all bidders must qualify to bid.
c. That all bids must be for all cash, except that the holders of the Alpine
Bank Claim and Wilhelm Claim can credit bid their allowed secured
claims including, in the case of Alpine Bank, any amounts owed under or
with respect to the Final DIP Loan; provided that any bid of the holder of
the Wilhelm Claim must be a cash bid up to the amounts to which Alpine
is entitled under this Term Sheet plus taxes then due secured by a lien on
the assets sold.
d. That all bids must seek to purchase all the Debtor's operating assets.
e. That the highest bidder must close pursuant to its bid no later than
December 28, 2012 (the "Closing"). Time is ofthe essence.
f. That the sale of the assets will be free and clear of all interests. The sale,
however, shall not be free and clear of recorded covenants, declarations,
PUDs, easements, and other similar recorded documents to which the liens
securing the Alpine Bank allowed secured claim are subject. Further, the
sale shall not be free and clear of liens for any unpaid real property taxes
andjor all business personal property taxes. The sale shall be on an
"as is" basis without representation or warranty of any kind (other than as
to authority).
g. That the Mediator shall conduct the sale process, subject to ultimate
approval by the Court.
h. That current and former members of the Club and prospective bidders
with an interest in less than all of the assets (including various member
groups) may approach, discuss and agree with other parties about
submitting a joint bid for all of the assets.
1. That a form of Asset Purchase Agreement shall be completed by not later
than October 5, 2012.
j. The order approving any sale shall require payment of allowed secured
claims at or about Closing to the extent cash is available from the sale.
4. Plan of Reorganization. The Debtor and the Committee shall jointly prepare and
file a Joint Plan of Reorganization and related Disclosure Statement and diligently pursue
approval of the Disclosure Statement and confirmation of the Plan. The Plan and Disclosure
Statement will be filed with the Bankruptcy Court so that hearing on confirmation of the Plan
can be held between December 10, 2012 and December 28, 2012, subject to the Court's
calendar. The Plan shall:
4266769.1
a. Provide for the implementation of the various settlements and
consummation of the sale process provided for in this Term Sheet.
10
4266769.1
However, except as otherwise provided in the Plan, confirmation of the
Plan shall not be a condition precedent to either the settlements or
consummation and closing pursuant to the sale process contemplated by
this Term Sheet. In the event that the Bankruptcy Case is dismissed or
converted to Chapter 7, the CTC Escrow shall be used pursuant to further
order of the Court.
b. Provide for the distribution of any cash proceeds attributable to the sale of
the Debtor's assets still in the possession of the Debtor (which does not
include the CTC Escrow) (save and except only the Non-Party Assets) as
follows: (i) first, to Alpine Bank to the extent necessary to repay amounts
advanced by the Bank pursuant to, or otherwise due and owing with
respect to the DIP Loan, including interest, (ii) second, to Alpine Bank to
the extent necessary to satisfy Alpine Bank's allowed secured claim, (iii)
third, the holder of the Wilhelm Claim to the extent necessary to satisfy
the Wilhelm Claim, (iv) fourth, to satisfy any remaining allowed and
unpaid administrative expense claims, if any, (v) fifth, to any Trade Claim
unsecured creditors to the extent not paid in full from the CTC Escrow,
and other unsecured creditors, including the members, pro rata according
to the gross amount of such allowed claims, to satisfy their allowed
unsecured claims for deposits, and (vi) the balance shall be paid to the
holder of equity interests in the Debtor. No distributions shall be made to
Rush or any affiliates of Rush on account of any alleged unsecured claim
for money loaned to the Debtor or obligations allegedly guaranteed by the
Debtor. Amounts, if any, alleged to be owed arising from the sale of any
Non-Party Asset shall be paid to the holder ofthe allowed claim related to
such Non-Party Asset.
c. Provide for the distribution of the CTC Escrow as provided in paragraph
2(a)(iii) ofthis Term Sheet.
d. Contain such other provisions as may be reasonably necessary or desirable
to implement this Term Sheet.
e. Not contain any provisions which are inconsistent with this Term Sheet or
with orders entered by the Bankruptcy Court approving the 9019 Motion
contemplated by this Term Sheet or with the sale process described in this
Term Sheet.
5. Miscellaneous Provisions.
a. Upon execution of this Term Sheet by all Parties, the Parties shall jointly
request the Bankruptcy Court to vacate the hearing on the Trustee Motion.
b. All pending discovery in the Bankruptcy Case related to the DIP Loan
Motion and the Trustee Motion shall immediately cease and the Parties
11
4266769.1
shall not initiate any new discovery in connection with those matters
without further order of the Bankruptcy Court.
c. All proceedings in the CTC Lawsuit shall immediately cease, except to the
extent necessary to advise the State Court in the CTC Lawsuit of the
pending settlement of that case and, upon payment of the CTC Settlement
Payment, to dismiss or otherwise conclude the CTC Lawsuit against all
parties thereto as provided herein.
d. This Term Sheet provides an overall framework for the resolution of
various disputes among the Parties. The Parties acknowledge that
additional documentation will be required to implement the Term Sheet,
which documentation may include a separate Settlement Agreement. The
Parties acknowledge that documents which will implement the Term Sheet
will contain other provisions but, under no circumstances, will such
additional documentation (including, without limitation, any Settlement
Agreement), change the provisions of the Term Sheet which provisions
will be binding on all Parties, subject only to approval of the Bankruptcy
Court and Eagle County District Court. The settlements and compromises
provided in this Term Sheet, other than with respect to the abatement of
discovery, are subject to approval of the Bankruptcy Court and the Eagle
County District Court. However, the parties agree that while the various
provisions of this Term Sheet are pending approval by the Bankruptcy and
Eagle County District Court, they shall cooperate and work together in
good faith to implement this Term Sheet.
e. This Term Sheet contemplates that certain rights of the Class Action
Lawsuit plaintiffs will be compromised. The Class Action Settlement is
subject to the approval of the Eagle County District Court in the Class
Action Lawsuit and shall not become effective unless and until so
approved. The Member Representatives agree to recommend such
approval by the Eagle County District Court. Member Representatives
further agree to disseminate, either by email or United States mail, a letter
to the class members to be included in the notice of settlement
recommending approval of the Class Action Settlement. Member
Representatives and any of the CTC Individuals and the CPOA
Individuals who are Class Members agree to not opt out of the partial
settlement of the Class Action Lawsuit. Upon approval of this settlement
by the Eagle County District Court and the Bankruptcy Court, any
objection by the Committee or the Debtor to use of proceeds from any
applicable insurance policy to defend the Class Action Lawsuit shall be
deemed withdrawn and consent to use of such proceeds to defend the
Class Action Lawsuit shall be deemed granted.
f. Upon approval of this settlement by the Eagle County District Court and
the Bankruptcy Court, Member Representatives shall promptly file a
12
4266769.1
Notice of Withdrawal of their Verified Motion for Issuance of Contempt
Citation as against the Debtor, WFP, and Wilhelm and shall not refile such
motion.
g. If and to the extent the Parties are unable to resolve among themselves any
issues that arise in connection with joint actions they are to take to
implement this Term Sheet, the Parties agree that the Mediator shall assist
them in resolving such issues.
h. At the hearing scheduled for September 17, 20 12, the Parties shall advise
the Bankruptcy Court of and provide a copy of this Term Sheet to the
Bankruptcy Court and request that the Interim DIP Loan be extended as
provided above, and that the hearing on the DIP Loan Motion be
continued for a period of approximately ten (1 0) days.
i. Upon approval of the 9019 Motion, relief from stay shall be granted so
that the Class Action Lawsuit can proceed against the Debtor, with
recovery limited to any applicable insurance proceeds, as provided in this
Term Sheet.
J. No party admits liability as to any claims or defenses asserted in the Class
Action Lawsuit.
k. If any Wilhelm Party is selected as the successful bidder at the sale of the
Debtor's assets as provided for herein, then if memberships are offered in
a club which utilizes any of those assets, then the memberships must be
offered to all past and present members of the Club on the same terms as
anyone else.
13
' }
i ?
4266769.1
CORDILLERA GOLF HOLDINGS, LLC, a
Delaware limited liability company
BY: CGH Manager, LLC, a Delaware
limited liability company, its Manager
B y : - - - - - - - - - - ~ - - - - - - - - - - - - -
David A. Wilhelm, Manager
CORDILLERA F&B, LLC, a
BY:. ______________ _
Patrick D. Wilhelm, Manager
WFP CORDILLERA, LLC, a
Delaware llmited liability company
limited liability company, its Manager
By: _______________________ _
WFP INVESTMENTS, LLC, a
BY:. ___ ~ - - - - - - - - - - - - - - - -
David A. Wilhelm, Company Manager
14
4;266769.1
CORDILLERA GOLF CLUB, LLC, a
BY: __
DanielL. Fitchett, Jr., CEO
CORDILLERA GOLF HOLDINGS, LLC, a
-Jtri:ifted.RabilitY. company, its --- .
/
CORDILLERA F&B, LLC, a
Delaware limited liability company, /)

D. Wilhelm, Manager
WFP CORDILLERA, LLC, a
14
4266769.-1
COH LLC, a
Delaware lim1 e tlity

OFFICIAL COMMITIEE OF UNSECURED
CREDITORS
BY: ____ .:,__ ____
Dennis Meir, Chairman of the Committee

A. WILHELM, an individual ----
ATRlCK D. WILHELM, an individual
CHERYL M. FOLEY, individually
and as a Member Representative
THOMAS individually
JUNE WILNER individually
CHARLES JACKSON, individually
15
CGH MANAGER, LLC, a
BY: ________________________ __
OFFICIAL COMMITTEE OF UNSECURED
CREDITORS
DAVID A. WILHELM, an individual
PATRJCK D. WILHELM, an individual
THOMAS WILNER, individually
JUNE WILNER, individually
15
Error! Unknown document property name.
Sep 23 1211 :29a Cheryl Foley
4266769.1
9709262027
CGH MANAGER, LLC, a
BY: ____________ _
OFFICW .. COMMITTEE OF UNSECURED
CREDITORS
BY:, ____________ _
p.1
Dennis Meir, Chairn1an of the Committee
PATRICK D. WILHELM, an individual
JANE WILNER, individually
15
CGH MANAGER, LLC, a
BY: ____________ _
OFFICIAL COMMITTEE OF UNSECURED
CREDITORS
BY:
----------------------------
Dennis Meir , Chairman of the Committee
and as a ber ~ v e
~ ~ ~
OMAS WILNER, individually
l WILNER, individually
15
4266769.1
CGH MANAGER, LLC, a
BY: ___________ _
OFFICIAL COivllviTTTEE OF UNSECURED
CREDITORS
BY: _____________ _
Dennis Meir , Chairman of the Committee
CHERYL .N.L FOLEY, individually
and as a Member. Representative
15
4266769.1
0 , individually
KEVIN B. ALLEN, individually
CORDILLERA TRANSITION CORPORATION,
INC.
BY: ______________________ __
CORDILLERA VALLEY CLUB PROPERTY
OWNERS ASSOCIATION, INC.
BY: ________________________ __
TIMBER SPRINGS PROPERTY OWNERS
ASSOCIATION, INC.
BY:
---------------------------
ALPINE BANK, a Colorado banking corporation
By: ____________ _
Name: _________________ _
Title: ____________________ _
16
4256769.1
MARY JACKSON, individuaily
lA
. .. - . vU1
-
as a Member Representative
I
CORDILLERA TRANSITJON CORPORATION,
INC.
BY:_.:...-_________ _
BY: ____________________ ___
ASSOCIATION, INC.
BY: ___________ _

Name: _________________ _
Title: ________________ _
16
4260429.1
MARY JACKSON, individually
INC.
BY: _______ -.,-____ _
ASSOCIATION, INC.
BY: _______________________ _
CORDILLERA METRO PO LIT AN DISTRICT
BY:
--------------------------
16
4266769.!
MARY JACKSON, individually
INC.
BY:
---------------------------
BY: __________________________ _
TllviBER SPRINGS PROPERTY OWNERS
ASSOCIATION, INC.
BY: ____________ _

Title: ?t'es/&0 f
16
CORDILLERA PROPERTY OWNERS
INC. / '!!..._

Lois Van Deusen, President
CORDILLERA METRO PO LIT AN DISTRICT

Nanette Kuich, President

LOIS VANDEUSEN, a CPOA Individual

a CPOA Individual
s
GLENN BOURLAND, a CPOA Individual
17
4266769.1
CORDlLLERA TRANSITION CORPORATION,
INC.
R BERT VANOUREK, aCT Individual
~ 51 cill)-tdo m 4.-n-
DAVID TEMtN, a CTC Individual
SARAH BAKER, a CTC Individual
DAVID BENTLEY, a ere Individual
18
4266769.1
CORDILLERA TRANSITION' CORPORATION,
INC.
BY: ________________________ __
Denise Delaney, President
DENISE DELANEY, a CTC Individual
RAYMOND OGLETHORPE, a CTC Individual
ROBERT VANOUREK, a CTC Individual
GARY EDWARDS, a CTC Individual
DAVID TEMIN, a CTC Individual
S H BAKER, a CTC In ividual
NELSON SIMS, a CTC Individual
DICK ROTHKOPF, a CTC Individual
DAVID BENTLEY, a CTC Individual
18
4266769.1
INC.
BY: __________________________ __
Denise Delaney, President
DENISE DELANEY, a CTC Individual
RAYMOND OGLETHORPE, a CTC Individual
ROBERT V ANOUREK, a CTC Individual
GARY EDWARDS, a CTC Individual
DAVID TEMIN, a CTC Individual
SARAH BAKER, a CTC Individual
NELSON SIMS, a CTC Individual
DICK ROTHKOPF, a CTC Individual
18
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Cordillera Golf Club llC
Forecasted Cash Flow Budget
For the Weeks Ended September 7, 2012- December 28, 2012
9/7/12 9/14/12
---
Revenues:
Membership Dues Social & Golf 1
- --$ -39:SOO
T
Golf Revenue (greens, cart fees, rental, other) 2 34,114 34,639
Golf Shop Sales 3 7,500 7,500
Food and Beverage 4 9,600 9,150
Other Revenue 5
Total Revenues 90,714 62,789
--
----
Goods: F&B
6 -
-- (4,000)
& Beverage Operations
--<i2.o72! Golf Operations 7 __
---
Golf Course Maintenance B (45,912)
Other Amenities/Misc. Expense 9 (3,B37) (BOO)
General I Administrative I Management 10 (36,B16) (21,727)
Building Maintenance 11 (5,615) (9,793)
Utilities, Insurance, POA 12 (40,925) (41,B45)
Property Taxes 13
Total Operational Disbursements (1B2,850J (120,293)
----
f-- Cash Flow Before Capital Expenditures (92,136) (57,504)
14
- --
(57,504) Cash Flow From Operations (92,136)
Restructuring:
Pre-Petition Interest 15
DIP Fees 16 - -
lpr;,fessionals, Legal, Restructuring and Fin. Advisors
-- --------
1B - -
UST Fees 19 -
Utility Deposits 20
-----
__
21
Marketing Costs 24
Principal-Payment to DIP Lender and Alpine Bank 22
Total Restructuring Costs
Total Cash Flow Before DIP {92,136) (57,504)
Beginning Cash 40,000 40,000
Total Cash Flow Before DIP {92,136) (57,504)
DIP Interest r-v (2,621)
-'-=-- -----
DIP Loan Draw 94,757 57,504
----
__ Ending Cash 23 $ 40,000 $ 40,000
Printed on 9/26/2012 at 11:21 AM
EXHIBIT B
9/21/12 9/28/12 10/5/12 10/12/12

1-
-- -------

$

_$ 1,200
34,114 33,939 18,125 14,500
7,500 7,500 5,000 5,000
9,000 10,000 8,200 B,OOO
51,814 55,939

______ 3?!500
------ ---

(6,000) (16,432) <<oiia)
- --,8;237) --(8,o59l (10,3BO)
(47,B12) (56,057) (33,BB6)
(2,B37) (BOO) (BOO)
(25,715) (19,727) (36,Bl3) (5,304)
(20,615) (12,793) (10,615) (9,266}
(B,671) (9,741) (32,659) (9,741)
(135,020) (115,49B) (171,505) (71,056)
(83,206) (59,559) (140,180) (43,556)
(66,000) (11,000)
(149,206) (59,559) (151,180) {43,556)
- -
- -
-(sio,OOO) (455,000) -
-
---
-
(5,000) {5,000) (5,000)

- - - -
(510,000) (460,000) (5,000) (5,000)
(659,206) (519,559) (156,180) (48,556)
40,000 40,000 40,000 40,000
(659,206) (519,559) - {156,18o) {48,556)
- {5,479)
--
659,206 519,559 161,659 4B,556
$ 40,000 $ 40,000 $ 40,000 $ 40,000
1 of 2
10/19/12 10/26/12 11/2/12 11/9/12 11/16/12 11/23/12
------------------- ------

$ $

13,625 8,626 6,585 1,965 - -
5,000 5,000 1,250 1,250 - -
B,OOO 4,BOO 4,200 4,000 10,000 6,BOO
26,625 18,426 12,035 7,215 10,000 6,800
--- ----
(16,432) (1,000) (12,432) (250) (9,750) (6,250)
---
- (6,B5B) (5,737) (8,041) (3,446) (6,B5B) {3,446)
(16,6BB) (33,BB6)
-----(io,Bi3) -
(16,6BB) (10,B13)
(1,250) (BOO) (1,250) (BOO) (1,250) (BOO)
(37,715) (15,303) (26,B13) (2,577) (27,715) (2,57B)
(5,615) (B,266) (3,615) (B,7B3) (3,615) (B,7B4)
(B,671) (9,741) (6,461) (32,659) (B,671) (6,461)
- (431,B90) -
(92,108) (77,037) (500,695) (62,740) (71,135) (42,544)
(65,483) (58,611) (488,660) (55,525) (61,135) (35,744)
-----
-
(65,483) {58,611) {488,660) (55,525) (61,135) (35,744)
-
------ ---- -------- ----------
- -
- (10;400) -
___ _______:_ -
------------- --------------
----
(5,000) (5,000)
- - -
(5,000) {10,400) (5,000) (5,000) - -
(70,483) (69,011) (493,660) (60,525) (61,135) (35,744)
40,000 40,000 40,000 40,000 40,000 40,000
(70,483) (69,011) (493,660t =(6o,sii! - (61,1_3ii_

__l1Cl,_Q?31
------ -----
70,4B3 503,6B2 60,525 61,135 35,744
$ 40,000 $ 40,000 $ 40,000 $ 40,000 $ 40,000 $ 40,000
DRAFT- Subject to Change
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9
Cordillera Golf Club LLC
Forecasted Cash Flow Budget
For the Weeks Ended September 7, 2012- December 28, 2012
11130112 1217112 12114112
--------
t---
--------------
Revenues:
Membership Dues Social & Golf
11
_$_____
$------=- -$--:-
Golf Revenue {greens, cart fees, rental, other) 2 -
Golf Shop Sales 3 -
Food and Beverage 4 6,000 6,000 10,800
Other Revenue 5 -
Total Revenues 6,000 6,000 10,800
-- ""
-,:--- -- ------
Cost of Goods: F&B
------- ----- ------------ -::----:-
& Beverage Operations 6

- (6,250) - (22,182)
Golf Operations 7 __ j3_,4_4__) (8,581) (3,446)
-----
Golf Course Maintenance 8

(5,375) (14,788)
Other Amenities/Misc. ----------rsooi
9 (1,250) (1,250)
General I Administrative I Management 10 (37,715) (13,933) (32,715)
Building Maintenance 11 {3,615) {8,841) {3,615)
Utilities, Insurance, POA 12 (6,461) (32,659) {10,191)
Property Taxes 13 -
--
Total Operational Disbursements (89,456) (76,439) (88,187)
----
Cash (83,456) (70,439) (77,387)
-- ---
Capital Expenditures 14 (20,000) -
Cash Flow From Operations (103,456) {70,439) (77,387)
Restructuring:
Pre-Petition Interest 15
16 -
-------------
Professionals, Legal, Restructuring and Fin. Advisors 18 -
--------
UST Fees 19 -
--------
Utility Deposits 20 -
21
------
Capital Event ___ _:_
-
Marketing Costs 24 -
-----
Principal Payment to DIP Lender and Alpine Bank 22 - -
Total Restructuring Costs -
Total Cash Flow Before DIP (103,456) (70,439) (77,387)
Beginning Cash 40,000 40,000 40,000
Total Cash Flow Before DIP (103,456)
--rio,-439)
(77,387)
DIP Interest 17 (16,698) -
DIP Loan Draw 103,456_- 87,137 77,387
f--'--'
--
_ Ending Cash ___ 23 $ 40,000 $ 40,000 $ 40,000
Printed on 9/26/2012 at 11:21 AM
12121112 12/28/12 Total
------
-$---::-$
$ 56,700
- $ 200,232
$ 52,500
12,000 12,000 $ 138,550
$
12,000 12,000 447,982
---- ---------
--------
(198;931J
----------------
(6,250) (22,182)
--------
(8,581) (3,445)
------
(14,787)

-----
(800) (1,250) (22,411)
(2,835) (37,715) {383,716)
{8,841) {3,615) (135,902)
(8,671) {10,191) (284,419)
(431,890)
(43,253) (93,185) (2,033,001)
-----
(31,253) {81,185) (1,585,019)
(97,000)
(31,253) (81,185) (1,682,019)
- -
- -
------
- (965,000)
--- ---
(10,400)
-------- ----------
-
--
-

(30,000)

(1,005,400)
(31,253) {81,185) (2,687,419)
40,000 40,000 40,000
-----
(31,253) {81,185) (2,6!17,419)
------
- - (34,820) Variance
--------------::--::::----
___(_69,284)1 31,253 81,185 2,722,239 2,652,955
$ 40,000 $ 40,000 $ 40,000
2 of 2 DRAFT- Subject to Change
Exhibit C to Final Order
Permitted Senior Liens
The following shall be deemed Permitted Senior Liens, unless held by Alpine,
Wilhelm, or the Rush Family Trust, each of which have consented and agreed that any liens,
claims, encumbrances, or other interests held by them in the DIP Collateral, as security for the
Post-Petition Obligations, are subject and subordinate to the DIP Liens:
1. Matters of record set forth in the title report dated June 20, 2012 issued by
Stuart Title, Order No. 95 8951.
2. The interest of John Deere I Deere Credit, Inc. in the property described in the
UCC financing statement filed on November 9, 2009, as and to the extent properly perfected.
3. The interest of Wells Fargo Financial Leasing, Inc in the property described in
the UCC financing statement filed on July 2, 2010, as and to the extent property perfected.
4. Security interests and liens in existence as of the Petition Date in personal
property to the extent such security interests and liens are properly perfected.
5. Liens on unearned insurance premiums granted in connection with insurance
policy premium financing arrangements with respect to the insurance policies obtained by the
Debtor, as and to the extent properly perfected.
6. Liens of any taxing authority to the extent such liens relate back and have
priority under applicable non-bankruptcy law.
7. Purchase money security interests (including capital leases) arising after the
Petition Date securing the cost of acquisition of the property covered thereby, as and to the
extent that such security interests (a) are properly perfected, (b) encumber only the property
acquired in connection therewith, and (c) do not exceed in the aggregate amounts for such
purpose reflected on the Budget (with Permitted Variances).
8. The following liens to the extent arising after the Petition Date and perfected:
(a) carriers', warehousemen's, mechanics', materialmen's, repairmen's or other like liens, arising
in the ordinary course of business, in each case only for amounts not yet due or which are being
contested in good faith by appropriate proceedings, subject to adequate reserves in accordance
with GAAP; (b) liens or rights of setoff of a customary nature on bank, brokerage or similar
accounts or on negotiable instruments incurred in the ordinary course ofbusiness; (c) pledges or
deposits in connection with workers' compensation, unemployment insurance and other social
security legislation; (d) other liens imposed by law or that arise by operation of law in the
ordinary course of business (other than any such liens granted under Sections 363 or 364 of the
Bankruptcy Code), in each case only for amounts not yet due or which are being contested in
good faith by appropriate proceedings, subject to adequate reserves in accordance with GAAP,
and which are disclosed by the Debtor to the DIP Lender immediately upon arising.
Nothing contained herein shall constitute an admission of or with respect to the extent,
validity or priority of any claim of lien or security interest.
2

Cordillera Golf Club, LLC Club at Cordillera,: "Motion") "Debtor")

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Cordillera Golf Club, LLC Club at Cordillera,: "Motion") "Debtor")

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Case:12-24882-ABC Doc#:495 Filed:09/28/12 Entered:09/28/12 09:30:46 Page1 of 49

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