IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWARE

In re: Chapter 11
Cordillera Golf Club, LLC,
1
dba The Club at Cordillera
Case No. 12-11893 ( ~ _ ~ )
Debtor.
DEBTOR'S MOTION FOR AN ORDER, PURSUANT TO
SECTIONS 105 AND 363 OF THE BANKRUPTCY CODE AND BANKRUPTCY
RULE 6003, AUTHORIZING AND APPROVING (I) THE DEBTOR'S
DESIGNATION OF ALFRED H. SIEGEL AS CHIEF RESTRUCTURING OFFICER,
AND (II) RETENTION AND EMPLOYMENT OF CROWE HORWATH, LLC,
NUNC PRO TUNC TO THE PETITION DATE
Cordillera Golf Club, LLC, the debtor and debtor in possession in the above-
captioned case (the "Debtor"), by and through its proposed undersigned counsel, hereby moves
this Court (the "Motion") for entry of an order pursuant to sections 105(a) and 363(b) of title 11
ofthe United States Code, 11 U.S.C. 101-1532 (the "Bankruptcy Code"), and Rule 6003 of
the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"), authorizing and approving
(i) the designation of Alfred H. Siegel as the Chief Restructuring Officer (the "CRO") for the
Debtor, (ii) the employment and retention of Crowe Horwath, LLC ("Crowe") to provide
restructuring management and advisory services, nunc pro tunc to the Petition Date (as defined
below), and (iii) the provision of additional professional personnel by Crowe, as set forth herein,
and in accordance with the "J. Alix Protocol" (the "Protocol") established by the Office of the
United States Trustee for the District of Delaware (the "U.S. Trustee"). The facts and
circumstances supporting this Motion are set forth in the concurrently filed Declaration of
DanielL. Fitchett in Support of Chapter II Petitions and First Day Relief(the "First Day
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.
Ol:l2214362.3
Declaration"). In further support of this Motion, the Debtor relies upon and incorporates by
reference the Declaration of Alfred H. Siegel in Support of the Debtor's Motion for an Order,
Pursuant to Sections 105 and 363 of the Bankruptcy Code and Bankruptcy Rule 6003,
Authorizing and Approving (i) the Debtor's Designation of Alfred H. Siegel as Chief
Restructuring Officer, and (ii) Retention and Employment of Crowe Horwath, LLC, nunc pro
tunc to the Petition Date (the "Siegel Declaration"), attached hereto as Exhibit C, and
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 sought herein are sections 1 05(a) and
363(b) ofthe Bankruptcy Code and Rule 6003 ofthe Bankruptcy Rules.
BACKGROUND
2. On the date hereof (the "Petition Date"), the Debtor filed a voluntary
petition for relief under chapter 11 of the Bankruptcy Code. Concurrently with this Motion, the
Debtor has also filed motions or applications seeking certain "first day" relief.
3. 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 ofthe Bankruptcy Code.
2
01:12214362.3
4. No request has been made for the appointment of a trustee or examiner
and no official committee has been established in this case.
5. Additional information about the Debtor's business and the events
leading up to the Petition Date can be found in the First Day Declaration which is incorporated
herein by reference.
RELIEF REQUESTED
6. By this Motion, the Debtor seeks entry of an order, in substantially the
form attached hereto as Exhibit A, pursuant to sections 105(a) and 363 of the Bankruptcy Code,
authorizing and approving: (i) the designation of Alfred H. Siegel as the Chief Restructuring
Officer (the "CRO") for the Debtor; (ii) the employment and retention of Crowe to provide
restructuring management and advisory services in this chapter 11 case, effective as of the
Petition Date, pursuant to the engagement letter (the "Engagement Letter") executed on June 22,
2012, attached hereto as Exhibit B; and (iii) the provision of additional professional personnel
by Crowe, as set forth herein, and in accordance with the Protocol. As discussed in further detail
below, the Debtor's immediate retention of Mr. Siegel as CRO is critical to this chapter 11 case,
as Mr. Siegel will be providing independent direction and oversight to this Debtor, generally, and
to the proposed sale of all or substantially all of the Debtor's assets, specifically.
CROWE AND MR. SIEGEL'S QUALIFICATIONS
7. Crowe is a national consulting and accounting firm with considerable
expertise in both out-of-court corporate restructurings and bankruptcy case management
services. Crowe's professionals have extensive experience working with and for distressed
companies in financial and operational restructurings. Specifically, Mr. Siegel, a Partner of
Crowe, has a wealth of experience in providing management and oversight services similar to
those required in this case. He enjoys an excellent reputation for services rendered in large and
01:12214362.3
3
complex bankruptcy and receivership cases on behalf of debtors and creditors throughout the
United States. Mr. Siegel is currently serving as the chapter 7 trustee of Indy Mac Bancorp, has
served as chief restructuring officer for Circuit City Stores and its affiliated debtors, and has
served as trustee for numerous distressed real estate ventures. Mr. Siegel and Crowe's
consultants are seasoned professionals with significant business management experience.
SCOPE OF SERVICES
2
8. The Debtor has hired Crowe pursuant to the Engagement Letter. Mr.
Siegel is the principal professional staffed by Crowe on the engagement and will serve as the
CRO for the Debtor. Additional Crowe personnel (collectively, the "Crowe Personnel") will be
made available to serve under the CRO during this chapter 11 case pursuant to the terms of the
Engagement Letter.
9. Pursuant to the Engagement Letter, as CRO, Mr. Siegel will, among other
things:
1. oversee the recovery and disposition of the Debtor's assets;
11. oversee the coordination of activities necessary or appropriate for
the expeditious and efficient resolution of this chapter 11 case;
111. oversee the reconciliation of liabilities asserted against the Debtor;
IV. oversee the administration of the reporting requirements in this
chapter 11 case;
v. oversee all litigation, including claims objections and adversary
proceedings, filed by or against the Debtor;
v1. oversee the Debtor's efforts to obtain approval of a Plan;
v11. oversee the Debtor's compliance with obligations as debtor in
possession under section 1107 and 1108 of the Bankruptcy Code;
2
This summary is provided solely for convenience purposes. The terms of the engagement shall be governed by
the Engagement Letter. To the extent that this summary conflicts with the Engagement Letter, the Engagement
Letter shall govern.
01:12214362.3
4
vn1. appear before the Court on behalf of the Debtor, as necessary; and
IX. perform such other responsibilities as the Debtor's managing
member(s) or the Bankruptcy Court may expressly delegate or
designate from time to time.
10. Pursuant to the Engagement Letter, Mr. Siegel will utilize the Crowe
Personnel, as necessary, to provide operational, financial, tax, and accounting services to the
Debtor. Crowe and Mr. Siegel will use commercially reasonable best efforts to avoid duplication
of work in services provided to the Debtor pursuant to the Engagement Letter.
COMPENSATION
11. The terms of Crowe's proposed compensation are fully set forth in the
Engagement Letter, and the Debtor respectfully refers this Court to the Engagement Letter for a
full recitation of such terms.
12. The Engagement Letter provides that Crowe will be compensated for
providing the services of Mr. Siegel at the rate of $625.00 per hour.
13. The Engagement Letter further provides that Crowe will be compensated
for providing the services of the Crowe Personnel at the following rates:
Other Partners/Directors $410-675
Manager's and Senior $250-395
Forensics/Litigation Experts
Senior Accountants $185-$245
Staff Accountants $110-175
Bookkeepers and Paralegals $85-150
01:12214362.3
5
14. In addition to hourly compensation for professional services rendered by
Mr. Siegel and any Crowe Personnel, Crowe will seek reimbursement for documented, actual,
and reasonable expenses incurred in connection with the chapter 11 case.
15. Crowe will submit to the Debtor monthly invoices for fees and expenses
in a summary fashion, supported by details of time in increments of 1/1 Oths of an hour and
expense activity, with copies of such invoices to the U.S. Trustee and any official committee
appointed in this chapter 11 case (collectively, the "Notice Parties").
16. Because Crowe and its personnel are not being employed as
professionals under section 327 of the Bankruptcy Code, Crowe will not be submitting fee
applications pursuant to sections 330 and 331 of the Bankruptcy Code. Instead, Crowe shall file
with the Court, and provide to the Notice Parties, a monthly report (the "Monthly Report") which
shall include the following information from the previous month: (i) the name and functions
filled of the individuals assigned to this engagement; (ii) a summary of the services provided,
subject to confidential, attorney-client and word-product communcation; (iii) compensation
earned; and (iv) expenses incurred. All compensation and new staffing shall be subject to review
by the Court in the event an objection is filed.
17. The first Monthly Report shall be due on August 20, 2012 and shall
cover the period up to and including July 30, 2012. Each subsequent Monthly Report shall be
filed on the 20th day of the month that follows the month in which the fees and expenses are
incurred. The Notice Parties shall have fifteen (15) days from service to file objections to the
compensation and staffing set forth in the Monthly Report. In the event that an objection is
timely filed by a Notice Party and said objection cannot be resolved, the matter shall be
scheduled for a hearing before this Court at the Court's convenience.
6
01:12214362.3
18. Mr. Siegel and Crowe have extensive experience in providing
restructuring advisory and restructuring management services in reorganization proceedings and
have an excellent reputation for the services they have provided in chapter 11 cases on behalf of
debtors and creditors throughout the United States. The compensation reflected in the
Engagement Letter is consistent with arrangements entered into by Crowe and other restructuring
and consulting firms with respect to similar services for similarly situated clients. The Debtor
believes that Crowe's fees and compensation as set forth herein are reasonable and justified
under the circumstances.
INDEMNIFICATION PROVISION
19. Notwithstanding anything to the contrary in the Engagement Letter and
consistent with the Protocol, Crowe agrees that those Crowe employees serving as officers of the
Debtor will be entitled to receive whatever indemnities are made available during the term of the
engagement to other non-Crowe affiliated officers of the Debtor, whether under the by-laws,
certificates of incorporation, limited liability company agreement, applicable corporate laws, or
contractual agreements of general applicability to officers of the Debtor (the "Crowe
Indemnification"). Additionally, and consistent with the Protocol, Crowe agrees to waive the
Crowe Indemnification with respect to those Crowe personnel who do not serve as officers of the
Debtor.
CROWE'S DISINTERESTEDNESS
20. Crowe has conducted a conflicts check to determine its connection, if
any, with parties in interest in this case. As set forth more fully in the Siegel Declaration, Crowe
(i) has no connection with the Debtor, its creditors or other parties in interest in this case,
(ii) does not hold any interest adverse to the Debtor's estate, and (iii) believes that it is a
"disinterested person" as that term is defined in section 101(14) of the Bankruptcy Code, as
01:12214362.3
7
modified by section 1107(b) ofthe Bankruptcy Code. Crowe will continue to review its records
and will supplement the Siegel Declaration, as necessary, with additional information or
disclosures in the event that additional information is developed.
BASIS FOR RELIEF
21. Section 363 of the Bankruptcy Code provides, in relevant part, that a
debtor in possession "after notice and hearing, may use, sell or lease, other than in the ordinary
course ofbusiness, property of the estate." 11 U.S.C. 363(b). Under applicable case law in
this and other circuits, courts will approve a debtor's proposed use of its assets under section
363(b) if it represents a sound business purpose on the part ofthe debtor. See, e.g., In re
Montgomery Ward Holding Corp., 242 B.R. 147, 153 (Bankr. D. Del. 1999) ("In evaluating
whether a sound business purpose justifies the use, sale or lease of property under
Section 363(b), courts consider a variety of factors, which essentially represent a business
judgment test."); In re Martin, 91 F.3d 389, 395 (3d Cir. 1996) (stating that courts defer to a
trustee's judgment concerning use of property under section 363(b) when there is a legitimate
business justification); In re Delaware & Hudson R.R. Co., 124 B.R. 169, 175-76 (D. Del. 1991)
(stating that courts have applied the "sound business purpose" test to evaluate motions brought
pursuant to section 363(b )). Under the business judgment rule, a court will not interfere with the
judgment of a debtor unless there is a showing of "gross and palpable overreaching." In re
Marvel Entm 't Group, Inc., 273 B.R. 58, 78 (Bankr. D. Del. 2002) ("under the business
judgment rule, a board's 'decisions will not be disturbed if they can be attributed to any rational
purpose' and a court 'will not substitute its own notions of what is or is not sound business
judgment"') (citing Sinclair Oil Corp. v. Levien, 280 A.2d 717, 719-20 (Del. 1971)).
22. Bankruptcy courts have analyzed the propriety of a debtor's employment
of corporate restructuring officers, restructuring advisors, and restructuring professionals under
01:12214362.3
8
section 363 on numerous occasions and have determined that it is an appropriate exercise of
business judgment to employ a restructuring or other type of professional in this manner. See,
e.g., In re Delta Petroleum, Corp., Case No. 11-14006 (KJC) (Bankr. D. Del. Jan. 11, 2012); In
re Spansion Inc., Case No. 09-10690 (KJC) (Bankr. D. Del. Apr. 13, 2009); In re Sharper Image
Corp., No. 08-10322 (Bankr. D. Del. Apr. 23, 2008); In re Leiner Health Prods., Inc., No. 08-
10446 (Bankr. D. Del. Apr. 8, 2008); In re Friedman's Inc., No 08-10161 (Bankr. D. Del. Jan.
28, 2008); In re American Home Mortgage Holdings, Inc., No. 07-11047 (Bankr. D. Del. Sept. 5,
2007); In re Adva-Lite, Inc., No. 07-10264 (Bankr. D. Del. Mar. 16, 2007).
23. The Debtor submits that the employment of Crowe and the designation
of Mr. Siegel are sound exercises of its business judgment and satisfies section 363 of the
Bankruptcy Code, as Crowe and Mr. Siegel's services are necessary and essential to the Debtor's
sale efforts and prosecution of this chapter 11 case. Indeed, it is imperative for the viability of
the Debtor's sale and restructuring efforts that Crowe and Mr. Siegel be retained as soon as
possible. In addition to the general benefits that Mr. Siegel's expertise will bring to the Debtor's
chapter 11 case, Mr. Siegel's independent oversight will be necessary in what will likely be a
difficult sale and reorganization process. Given the acrimonious nature of the litigation
underlying the Debtor's operations and the involvement of the Debtor's principals in that
litigation, the Debtor believes that immediately authorizing the employment of Mr. Siegel as
CRO- who has no currently involvement in the underlying litigation- may avoid some of that
same acrimony from immediately spilling into this chapter 11 case. In the exercise of its
business judgment, the Debtor believes that the employment of a proven manager with a sterling
and impeccable national reputation will go a long way to ensure smooth entry into and
operations in this chapter 11 case. Moreover, the insider principal of the Debtor claims a junior
01:12214362.3
9
secured lien against the Debtor's assets. The CRO will be very helpful to the Debtor's
professionals in evaluating a course of action in relation to said claims. Lastly, as the terms of a
proposed financial capital investment in the Debtor are being finalized, Mr. Siegel's experience
and success in such matters is essential for the Debtor to begin this case on a solid, positive
footing. The designation of a chief restructuring officer, and other relief similar to that requested
herein, has recently granted as first day relief on an interim basis. See In re WP Steel Venture
LLC, Case No. 12-11661 (KJC) (Bankr. D. Del. June 1, 2012).
24. For the foregoing reasons, the Debtor believes that granting the relief
requested herein is appropriate and in the best interests of its estate and creditors.
25. The Debtor further submits that because the relief requested in this
Motion is necessary to avoid immediate and irreparable harm to the Debtor, for the reasons set
forth herein, Bankruptcy Rule 6003 has been satisfied.
26. To the extent that Rule 6004(h) of the Bankruptcy Rules is applicable to
the Motion, the Debtor also seeks a waiver of the fourteen-day stay under Bankruptcy Rule
6004(h).
NOTICE
27. Notice of this Motion has been provided to: (i) the Office of the United
States Trustee; (ii) the United States Securities and Exchange Commission; (iii) the Office of the
United States Attorney for the District of Delaware; (iv) the Internal Revenue Service; (v) the
Debtor's twenty (20) largest unsecured creditors; (vi) the Debtor's cash management banks, (vii)
counsel to prepetition secured lenders, and (viii) counsel to proposed post-petition secured
lender. Notice of this Motion and any order entered hereon will be served in accordance with
01:12214362.3
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Local Rule 9013-l(m). In light of the nature of the relief requested herein, the Debtor submits
that no other or further notice is necessary.
NO PRIOR REQUEST
28. The Debtor has not previously sought the relief requested herein from this
or any other Court.
01:12214362.3
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WHEREFORE, the Debtor respectfully seeks entry of an order, substantially in
the form annexed hereto as Exhibit A, authorizing and approving: (i) the designation of Alfred
H. Siegel as the CRO for the Debtor, (ii) the employment and retention of Crowe to provide
restructuring management and advisory services in this chapter 11 case, effective as of the
Petition Date, pursuant to the Engagement Letter; and (iii) the provision of additional
professional personnel by Crowe, in accordance with the Protocol.
Dated: Wilmington, Delaware
June 26, 2012
01:12214362.3
FOLEY & LARDNER LLP
Christopher Celentino
Erika Morabito
Mikel Bistrow
Pro Hac Vice Motions Pending
402 West Broadway, Suite 2100
San Diego, California 92101
Telephone: (619) 234-6655
Facsimile: (619) 234-3510
-and-
YOUNG CONAWAY STARGATT & TAYLOR, LLP
Joseph M. Barry (No. 4221)
Donald J. Bowman, Jr. (No. 4383)
Kenneth J. Enos (No. 4544)
1 000 N. King Street
Rodney Square
Wilmington, Delaware 19801
Telephone: (302) 571-6600
Facsimile: (302) 571-1253
Proposed Counsel for Debtor and Debtor in Possession
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01:12214362.3
Exhibit A
Proposed Order
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
Inre: Chapter 11
Cordillera Golf Club, LLC,
1
dba The Club at Cordillera
Case No. 12-11893 ( ~ _ _ _ _ , )
Ref. Docket No.:
Debtor.
INTERIM ORDER, PURSUANT TO SECTIONS 105 AND 363 OF THE BANKRUPTCY
CODE AND BANKRUPTCY RULE 6003, AUTHORIZING AND APPROVING (I) THE
DEBTOR'S DESIGNATION OF ALFRED H. SIEGEL AS CIDEF RESTRUCTURING
OFFICER, AND (II) RETENTION AND EMPLOYMENT OF CROWE HORWATH,
LLC, NUNC PRO TUNC TO THE PETITION DATE
Upon the motion (the "Motion")
2
of the debtor and debtor-in-possession in the
above-captioned case (the "Debtor") for entry of an order, pursuant to sections 1 05(a) and 363(b)
of the Bankruptcy Code and Bankruptcy Rule 6003, authorizing and approving (i) the
designation of Alfred H. Siegel as the CRO for the Debtor, (ii) the employment and retention of
Crowe to provide restructuring management and advisory services in this chapter 11 case,
effective as of the Petition Date, pursuant to the Engagement Letter; and (iii) the provision of
additional professional personnel by Crowe, in accordance with the Protocol; and upon the First
Day Declaration; and upon the Siegel Declaration, which is annexed to the Motion as Exhibit C;
and the Court being satisfied that Crowe represents no interest adverse to the Debtor's estate;
that apart from the employment of Mr. Alfred H. Siegel as CRO to the Debtor that Crowe is a
"disinterested person" as that term is defined under section 101(14) of the Bankruptcy Code, as
modified by section 1107(b) of the Bankruptcy Code; and due and sufficient notice of the
Motion having been given; and it appearing that no other notice need be given; and it appearing
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.
2
Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Motion.
01:12214362.3
that the relief requested is in the best interest of the Debtor, its estate, and creditors and after due
deliberation, and sufficient cause appearing therefor,
IT IS HEREBY ORDERED THAT:
1. The Motion is GRANTED on an interim basis.
2. A final hearing on the relief requested in the Motion shall be held on July _
___ , 2012 at .m. ET and any objections to the Motion must be received
by this Court by July , 2012 at 4:00p.m.
3. The Debtor is hereby authorized under sections 105 and 363(b), effective
as of the Petition Date, to employ and retain Mr. Alfred H. Siegel as CRO to the Debtor and
Crowe to provide restructuring management and advisory services nunc pro tunc to the Petition
Date.
4. The Debtor is hereby authorized to employ additional Crowe Personnel on
the terms set forth in the Engagement Letter, subject to the following terms, which apply
notwithstanding anything in the Motion or the Engagement Letter to the contrary:
a. Crowe and its affiliates shall not act in any capacity (for example,
and without limitation, as a financial advisor, claims agent/claims administrator, or
investor/acquirer) in connection with the above-captioned case.
b. In the event that the Debtor seeks to have Crowe Personnel assume
executive officer positions that are different than the positions disclosed in the Motion, or to
materially change the terms of the engagement by either (i) modifying the functions of
personnel, (ii) adding new personnel, or (iii) altering or expanding the scope of the engagement,
Crowe shall disclose such additional positions and/or material changes in function or scope in its
Monthly Report.
01:12214362.3
2
c. On a monthly basis, Crowe shall file with the Court, and serve
copies to the US Trustee and all official committees (the "Notice Parties"), a Monthly Report.
Such Monthly Report shall: (i) the name and functions filled of the individuals assigned to this
engagement for the prior month; (ii) a summary of the services provided, subject to confidential,
attorney-client and word-product communication; (iii) compensation earned; and (iv) expenses
incurred. (i) include a report of staffing on the engagement for the prior month, including the
name and functions filled by the individuals assigned, (ii) contain summary charts which
describe the services provided, (iii) identify the compensation earned by each executive officer
and staff employee provided, and (iv) itemize the expenses incurred. The first Monthly Report
shall be due on August 20, 2012 and shall cover the period up to and including July 30, 2012.
Each subsequent Monthly Report shall be filed on the 20th day of the month that follows the
month in which the fees and expenses are incurred. The Notice Parties shall have fifteen (15)
days from service to file objections to the compensation or staffing set forth in the Monthly
Report. In the event that an objection is timely filed by a Notice Party and said objection cannot
be resolved, the matter shall be scheduled for a hearing at the Court's convenience. All
compensation and new staffing shall be subject to review by the Court in the event an objection
is filed.
d. No principal, employee, or independent contractor of Crowe and
its affiliates shall serve as a managing member(s) of the Debtor during the pendency of the
above-captioned case.
e. The Debtor is permitted to indemnify those persons serving as
executive officers on the same terms as provided to the Debtor's other officers and directors
01:12214362.3
3
under the by-laws, certificates of incorporation, limited liability company agreement, applicable
corporate laws, or contractual agreements of general applicability.
f. There shall be no other indemnification of Crowe or its affiliates.
g. For a period of three years after the conclusion of the engagement,
neither Crowe nor any of its affiliates shall make any investments in the Debtor or any
reorganized Debtor.
h. Crowe shall disclose any and all facts that may have a bearing on
whether the firm, its affiliates, and/or any individuals working on the engagement hold or
represent any interest adverse to the Debtor, its creditors, or other parties in interest. The
obligation to disclose identified in this subparagraph is a continuing obligation.
5. The relief requested in the Motion is necessary to avoid immediate and
irreparable harm to the Debtor, and timely entry of this Order is not prohibited by Bankruptcy
Rule 6003(a).
6. Notwithstanding the possible application of the Bankruptcy Rules
including Bankruptcy Rule 6004(h), the terms and conditions of this Order shall be immediately
effective and enforceable upon its entry.
7. This Court shall retain jurisdiction with respect to all matters relating to
the interpretation of implementation of this Order and the Engagement Letter.
Dated: Wilmington, Delaware
June __ , 2012
01:12214362.3
United States Bankruptcy Judge
4
EXHIBITB
Engagement Letter
01:12214362.3
Crowe Horwath.
June 22, 2012
Mr. David V'ifilhelm
President and Manager
Cordillera Golf Club, LLC
Post Office Box 4693
Basalt Colorado 81621
RE: Cordillera Golf Club, LLC
Dear Oavfd:
Crowe Horwath LLP
15233 Ventura Boulevntd, Nr-nth Flnor
Sherman Oaks, Caiilorma 91403-225()
Tor B 1iH)(JL52CO
filx fl11l807 9632

This letter ("the Agreement") confirms and sets forth the terms and conditions of the
engagement between Crowe Horwath LLP ("Crowe") and Cordillera Golf Club, LLC, a
Delaware Limited Liability Company ("CGC''), debtor and debtor-in-possession pursuant
to a case under Cflapter 11 of title 11, United States Code ("the Bankruptcy Code") in
the United States Bankruptcy Court for the District of Delaware including the scope of
services to be performed and the basis for compensation for those services. Upon
execution of this letter by each of the parties below, and the approval of the Office of the
United States Trustee {"U,S. Trustee") and the Bankruptcy Court, this letter will
constitute an agreement between CGC and Crowe.
SERVICES
In connection with this engagement, Crowe \lvifl make available to CGC the services of
AJfred H. Siegel ("Siegel"} who shall have the title Chtef Restructuring Officer ("CRO'}
Siege! shall serve at the direction of and report to !ts sole manag!ng member
(herelnafter "CGC's Manager"). As CRO, Slegei shall be responsible for:
rn :122J.s.: t 1
Overseemg recovery and dlspositlon of CGC's remainmg assets;
" Overseeing the reconciHatlon of liabilities, including (without !imitation) fHed
cfaims, asserted agalnst CGC:
Overseeing the administration of the CGC bankruptcy court reporting
requirements;
Overseeing a!! litfgation, including (without limitation) claims objections and
adversary proceedings, fHed by or against CGC;
Overseeing CGC's efforts to obtaln approval of the Plan (as defined herein);
Overseeing the coordination of activities necessary or appropriate for the
expeditious and efficient resolution of this Chapter 11 case;
Overseeing CGC compliance with obligations as a debtor-in-possession under
section 1107 and 1 008 of the Bankruptcy Code;
Appearing, and to the extent necessary or appropriate, testifying before the
Bankruptcy Court and other courts on behalf of CGC;
Performing such other responsibilities as CGC's Manager may expressly
delegate or designate from time to time.
Siegel may engage other Crowe personnel to assist him with respect to operational,
financial, tax and accounting matters as deemed necessary and appropriate and where
possible shall use commercially reasonable best efforts to avoid duplication of work and
increased administrative liability to CGC.
Siegel and any additional Crowe Partners and Representatives will continue to be
employed by Crowe and, while rendering services to CGC, will continue to work with
other Partners and Representatives of Crowe in connection with other unrelated
matters, which will not unduly interfere with services pursuant to the engagement With
respect to CGC, however, the CRO and Crowe Partners and Representatives working
on this engagement will operate under and pursuant to the direction of CGC's Manager.
Notwithstanding the foregoing, Siegel, in consultation with CGC's management (other
than CGC's Manager) and professional advisors, shall be responsible for all decisions
on behalf of CGC with respect to any transaction involving CGC's Manager, including.
but not limited to, any decisions relating to any existing or future loan transactions
between CGC's Manager and CGC.
TERMINATION
CGC may only tennlnate this agreement with the Bankruptcy Court's written consent or
for "cause". For purposes of this Agreement, "cause It shan include, but not be limited to,
the following: fraud, gross negligence, willful misconduct or a failure to follow a valid
Company directive. CGC will provide Siegel, Crowe with 3 business days advance
notice of any termination for cause for the purpose of providing each such party with an
opportunity to dispute that "cause" exists and to seek relief from the Bankruptcy Court.
Absent the Bankruptcy Court granting such relief, Siegel and any Crowe personnel
working on CGC matters shall be suspended from employment from CGC pending a
final order of the Bankruptcy Court regarding the dispute. Siegel and Crowe may resign
at any time effective upon 30 days' written notice to CGC.
RETENTION
Siegel and Crowe shall promptly prepare an affidavit of disinterestedness to be filed in
connection with a retention application, Thereafter, CGC shall promptly apply to the
Bankruptcy Court for the approval pursuant to section 363 of the Bankruptcy Code of (i)
this Agreement and (li) Crowe's retention by CGC under the terms of this Agreement
2
subject to the standards for review, approval and payment of fees and expenses
pursuant to Bankruptcy Code section 363 and any re1ated order of the Bankruptcy Court
for payment of compensation including (without limitation) the Bankruptcy Court's order
approving interim compensation procedures (the ''Interim Compensation O r d e r " ) ~
COMPENSATION
Crowe shan be compensated for Siegel's services at the rate of $625.00 per hour.
Crowe shall be compensated for the services of other Crowe Partners and
Representatives rendering services to CGC at their normal hourly rates which are:
Other Partners/Directors: $41 0-$675
Managers and Senior Forensics/Litigation Experts: $250-$395
Senior Accountants: $185-$245
Staff Accountants: $110-$175
Bookkeepers and Paralegals: $85-$150
Crowe's billings for services performed and out-of-pocket expenses incurred will be
submitted to CGC on a monthly basis in summary fashion, supported by details of time
in increments of 1/10ths of an hour and expense activity. Any changes in the above
rates will be timely reported to CGC's Manager. Invoices will be paid promptly upon
presentation.
CONFLICTS OF INTEREST
Crowe has been provided a list of parties in interest in the chapter 11 case (the
"Disclosure List''). Based upon the Disclosure List, Crowe has completed an initial
review of its files for evidence of conflicts of interest, connections, and relationships,
Crowe is unaware that any conflicts exist. If a potential or actual conflict arises, Crowe
and Siegel will bring such potential or actual conflict to CGC's Manager's attention in
writing as soon as possible.
Crowe fs accepting this engagement with CGC's consent that it may accept any other
engagement from an existing or new client, provided that the engagement is not (1)
adverse to CGG and (2) related to the subject matter of services Crowe and Siegel
provide to CGC and will not require disclosure of any confidential information. This
advance waiver of conflicts includes controversies in which Crowe may be engaged by
a client who ls adverse to CGC acknowledges that the mere fact that Siegel accepts
and serves as CRO shall not conflict or preclude Siegel from serving in another capacity
in the bankruptcy case as may be relevant or appropriate (the "Plan'').
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WORKPAPERS AND WORK PRODUCT
For purposes of this Agreement, "Communication" shall mean: the transmittal of
information (in the form of facts, ideas, inquiries, or otherwise) by any means, including
(without limitation) any meeting, conversation, discussion, conference, correspondence,
message, or other written or oral transmission, exchange, or transfer of information ln
any form between tvvo or more persons, including (without limitation) in person or by
telephone, facsimile, telegraph, tefex, letter, e-mail or other medium.
For purposes of this Agreement, "Document" shall mean: (a) any medium upon which
information can be recorded or retrieved, including {without limitation) the original,
drafts, revisions, and non-duplicative copies of any written, electronic, typed, printed,
recorded, magnetic, graphic, copied, or other form of memoriafization, (b) any
Communication, and (c) metadata and/or other identifying Information for those
documents stored electronically, including (without limitation) electronic maiL
Please note that it is Crowe's practice to retain Documents and other information
between Crowe, and/or any third party working with CGC in connection with this
engagement (now or hereafter existing, collectively, the "Crowe Information"). However,
some of Crowe Information may be overwritten and not maintained in original form. All
Crowe Information used by Crowe during the course of this engagement will be
maintained in segregated files. At the end of the engagement CGC will have the
following options related to the Crowe Information or copies thereof that Crowe does not
need to retain in its files: (a) have Crowe return all such Crowe Information to CGC; (b)
authorize Crowe to destroy the Crowe Information; or (c) direct Crowe to store all or
selected Crowe Information, Crowe will contact CGC writing to discuss disposition of the
Crowe Information. Crowe reserves the right to destroy or delete the Crowe Information
if there are no instructions from CGC within ninety (90) days of receipt of such written
request.
CONFIDENTIALITY AND PRIV1LEGES
Siegel and Crowe acknowledge that {i) Siegel, Crowe and their Partners and
Representatives will have access to and review CGC's books, records, and other
Documents (now or hereafter existing, collectively, the "Other Information"). Siegel and
Crowe further acknowledges that the Crowe Information, the CGC Information, and
Other Information incfudes information protected by privileges, including (without
limitation) the and product privileges {now or hereafter
subject to any privilege, collectively, the "Privileged Information" and collectively with the
CGG Information, the Crowe Information, and the Other Information, the "Confidential
Information").
Siegel and Crowe, on behalf of themselves and their Partners and Representatives,
agree (t) that they have no authority to and shall not waive any privileges with respect to
Privileged Information or otherwise, {ii) that any and all privileged shall at all times
remain with CGC and {iii) to keep all Confidential Information (a) strictly confidential, (b)
to use best efforts to ensure that all Confidential Information is kept strictly confidential,
and (c) to advise all of Crowe's Partners and Representatives who may perform
4
services concerning this engagement that all Confidential Information must be kept
strictly confidential.
PROFESSIONAl STAFF
As set forth above, Crowe has designated Siegel to serve as CRO. Siegel may be
assisted by additional professional staff and industry experts employed by Crowe upon
notice to CGC's Manager. Crowe and its Partners are licensed by various state boards,
including the California State Board of Accountancy. However, certain professional
services may be provided by non-CPA professionals of Crowe. In addition, certain
professional services may, at times, be performed by independent consultants who are
required to follow the firm's procedures regardlng confidentiality of your financial
information, including {without limitation) the obligations concerning Confidential
Information set forth herein, as well as other professionals deemed necessary by Siegel
to fuffill his duties to CGC.
INDEMNIFICATION AND LIMITATION OF LIABILITY
To the extent authorized and/or permitted under the Bankruptcy Code or by the
Bankruptcy Court, CGC agrees to indemnify and hold Siegel, Crowe and Crowe's
Partners and Representatives harmless from all claims, including any third party claims
or other liabilities, costs and expenses (including reasonable attorneys' fees) incurred
by reason of any action taken or omitted by Siegel or Crowe in good faith arising out of
this engagement, except for matters judicially determined to be caused by the gross
negligence, willful misconduct, or bad faith.
To the extent authorized and/or permitted under the Bankruptcy Code or by the
Bankruptcy Court, in no event will Siegel, Crowe, or Crowe's Partners and
Representatives be liable for damages, other than damages arising from or related to
incidents of gross negligence, willful misconduct or fraud. In situations where damages
may be assessed. (i) Siegel will not be liable for more than actual damages, which wifl
be limited to no more than two times the fees paid to Crowe for Siegel's services and (ii}
Crowe will not be liable for more than actual damages, which will be limited to no more
than two times the fees paid to Crowe for this engagement (other than fees paid on
account of Siegel's services). The limitations of liability set forth in this section are
intended to apply to the fullest extent allowed by law, and, to the extent allowed by law,
shail apply to any claim including without limitation claims based in contract, warranty,
statute, common law, negligence or other tort, or laws regarding fiduc!ary relationships
CGC agrees to prorr1ptly provide evidence that Siegel is covered by directors and
officers and errors and omissions insurance at levels acceptable to the CRO and CGC's
Manager. Absent essential preliminary decision making matters Siegel and Crowe shall
not begin providing services untlf such evidence Is provided and written approval of this
Agreement by the U.S. Trustee and the Bankruptcy Court is obtained.
01;!222!!41 u
RESPONSE TO LEGAL PROCESS
If Crowe is requested by subpoena, other legaf process or other proceedings to produce
Confidential Information pertaining to CGC, or to testify, CGC agrees to reimburse
Crowe for its professional time, plus out-of-pocket expenses, as weU as reasonable
attorneys' fees incurred in responding to such request, provided that all such fees,
costs, and expenses are approved by the Bankruptcy Court.
NOTIFICATION OF NON-LICENSEE OWNERSHIP
Crowe Horwath LLP ("the Firm") and certain owners of the Firm are licensed by the
California State Board of Accountancy. However, the Firm has owners not licensed by
the California State Board of Accountancy who may provide client services under this
agreement
CHOICE OF LAWS AND FORUM AND JURY WAIVER
Thls Agreement shall be governed by the internal laws of the State of California, without
reference to choice-of-law principles thereof. Any dispute with respect to this
Agreement or engagement shall be subject to the exclusive jurisdiction of the
Bankruptcy Court for the District of Delaware. The parties further agree to waive a trial
by jury to the extent permitted by law. Each party agrees that it has had the opportunity
to have its legal counsel review this waiver. This waiver !s irrevocable, may not be
modified except in writing, and shall apply to any subsequent amendments, renewals; or
modifications to this Agreement Jn the event of litigation, this Agreement may be filed
as written consent to a trail by court
AFFILIATION WITH CROWE HORWATH JNTERNATIONAL
Crowe Horwath LLP is a member of Crowe Horwath International, a Swiss association
("Horwath"). Each member firm of Horwath is a separate and independent legal entity,
Crowe and its affiliates are not responsible or liable for any acts or omissions of
Horwath or any other member of Horwath and specifically disclaim any and aU
responsibility or liability for acts or omissions of Horwath or any other member of
Horwath. Horwath does not render any professional services and does not have an
ownership or partnership interest in Crowe and its other member firms are not
responsible or liable for any acts or omissions of Crowe.
ATTORNEY CUENT AUTHORJZA TION
Notwithstanding that this Agreement is directed to CGC cto Foley and Lardner LLP,
CGC's counsel, CGC is to be solely responsible for any fees and expenses under this
Agreement and associated with the work of Crowe and Mr. SiegeL Fofey and Lardner
LLP and its partners, employees, officers, affiliates, agents and representatives, shaH
not be responsible for the payment of any fees and expenses under or related to this
Agreement
OU22184!U
SUMMARY
The above specifies the services Sieger and, if applicable, Crowe will perform and the
terms of our engagement. Please acknowledge your agreement with the terms of this
Agreement by signing and dating the enclosed original in the space provided. Please
return a signed original of this letter for our files.
We appreclate the opportunity to work with you on thls engagement
Very truly yours,
Crowe Horwath LLP
Cordillera Golf Club, LLC
By: ---
FOL & LARDNER
Its: Authorized Agent
APPROVED:
Cordinera Golf Club, LLC
Its: President and TV!anager
7
EXHIBIT C
Siegel Declaration
01:12214362.3
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: Chapter 11
Cordillera Golf Club, LLC,
1
dba The Club at Cordillera
Case No. 12-11893 ( _ _,)
Debtor.
DECLARATION OF ALFRED H. SIEGEL IN SUPPORT OF
DEBTOR'S MOTION FOR AN ORDER, PURSUANT TO
SECTIONS 105 AND 363 OF THE BANKRUPTCY CODE AND BANKRUPTCY
RULE 6003, AUTHORIZING AND APPROVING (I) THE DEBTOR'S
DESIGNATION OF ALFRED H. SIEGEL AS CIDEF RESTRUCTURING OFFICER,
AND (II) RETENTION AND EMPLOYMENT OF CROWE HORWATH, LLC,
NUNC PRO TUNC TO THE PETITION DATE
Alfred H. Siegel makes this Declaration pursuant to 28 U.S.C. 1746, and states:
1. I am a Partner at in the Sherman Oaks office of Crowe Horwath LLP
("Crowe"), located at 15233 Ventura Blvd., 9th Floor, Sherman Oaks, CA 91403. Crowe has 27
offices throughout the United States with affiliates worldwide. Crowe specializes in, among
other things, supplying senior executives on an interim basis to financially troubled companies. I
submit this Declaration in support of the motion (the "Motion")
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of the above-captioned debtor
and debtor in possession, for an order authorizing and approving: (i) the designation of Alfred
H. Siegel as the CRO for the Debtor, (ii) the employment and retention of Crowe to provide
restructuring management and advisory services in the above-captioned chapter 11 case,
effective as of the Petition Date and pursuant to the Engagement Letter; and (iii) the provision of
additional professional personnel by Crowe. Except as otherwise noted, I have personal
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.
2
Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Motion.
01:12214362.3
knowledge of the matters set forth herein and, if called as a witness, I would testify competently
thereto.
3
2. To the best of my knowledge, information and belief, insofar as I have
been able to ascertain after reasonable inquiry, other than in connection with this chapter 11 case,
neither I, nor Crowe, nor any of its principals, consultants, agents, or affiliates, have any
connection with the Debtor, its creditors, the U.S. Trustee, or any other party with an actual or
potential interest in this chapter 11 case, or their respective attorneys or accountants, except as
set forth below:
a. Crowe has not and will not provide services to any entity, other than the
Debtor, in matters related to this chapter 11 case.
b. From time to time, Crowe may have provided services, and may continue
to provide services, to certain creditors of the Debtor and various other
parties adverse to the Debtor in matters wholly unrelated to this chapter 11
case. As described below, however, Crowe has undertaken a detailed
search to determine, and to disclose, whether it is providing or has
provided, services to any significant creditor, equity security holder,
insider or other party in interest in such unrelated matters.
c. Crowe provides services in connection with numerous cases, proceedings,
and transactions umelated to this chapter 11 case. Those unrelated matters
involve numerous attorneys, financial advisors, and creditors, some of
which may be claimants or parties with actual or potential interests in this
chapter 11 case, or may represent such parties.
d. Crowe's personnel may have business associations with certain creditors
of the Debtor unrelated to this chapter 11 case. In addition, in the ordinary
course of its business, Crowe may engage counsel or other professionals in
umelated matters who now represent, or who may in the future represent,
creditors or other interested parties in this chapter 11 case.
e. Crowe searched its client database to determine whether it had any
relationships with the following (collectively, the "Interested Parties"):
1. the Debtor and its affiliates, as provided to Crowe by the Debtor;
n. the Debtor's lender and its affiliates, as provided to Crowe by the
Debtor;
3
Certain of the disclosures herein relate to matters within the knowledge of other professionals at Crowe and are
based on information provided to me by them.
01:12214362.3
2
111. certain of the Debtor's vendors and other parties in interest, as
provided to Crowe by the Debtor; and
IV. the Debtor's employees, as provided to Crowe by the Debtor.
3. Based on that search, Crowe represents that, to the best of its knowledge,
Crowe knows of no fact or situation that would represent a conflict of interest for Crowe with
regard to the Debtor.
4. Crowe submits that it holds no adverse interest as to the matters for which
it has been employed by the Debtor.
5. Crowe has advisors and interim managers that provide services and advice
specifically in the areas of restructuring and distressed debt. As a result, Crowe has represented
and may in the future represent certain Interested Parties in matters wholly umelated to this
chapter 11 case, either individually or as part of representation of a committee of creditors or
interest holders.
6. Despite the efforts described above to identify and disclose Crowe's
connections with parties-in-interest in this chapter 11 case, because the Debtor is a large
enterprise with numerous creditors and other relationships, Crowe is unable to state with
certainty that every client relationship or other connection has been disclosed. In that regard, if
Crowe discovers additional information that requires disclosure, Crowe will file a supplemental
disclosure with this Court.
7. Crowe reserves the right to supplement this Declaration in the event that
Crowe discovers any facts bearing on matters described in this Declaration regarding Crowe's
employment by the Debtor.
01:12214362.3
3
I declare under penalty of perjury under the laws of the United States of America
that, to the best of my knowledge and after reasonable inquiry, the foregoing is true and correct.
Is/ Alfred H Siegel
Alfred H. Siegel
01:12214362.3
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