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Case:12-24882-ABC Doc#:574 Filed:11/02/12
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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF COLORADO In re: Cordillera Golf Club, LLC Tax ID / EIN: 27-0331317 Debtor. ) ) ) Case No. 12-24882-ABC ) Chapter 11 ) )
DISCLOSURE STATEMENT TO FIRST AMENDED JOINT PLAN OF LIQUIDATION FOR DEBTOR'S ESTATE UNDER CHAPTER 11 OF THE UNITED STATES BANKRUPTCY CODE, DATED AS OF NOVEMBER 5, 2012, PROPOSED BY THE DEBTOR AND THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS Cordillera Golf Club, LLC, the Debtor and Debtor-in-Possession under the above captioned Chapter 11 Bankruptcy Case, together with the Official Committee of Unsecured Creditors appointed in the Bankruptcy Case, by and through their undersigned counsel, jointly file this Disclosure Statement to First Amended Joint Plan of Liquidation For Debtor's Estate Under Chapter 11 of The United States Bankruptcy Code, Dated as of November 5, 2012, Proposed by The Debtor and The Official Committee of Unsecured Creditors, for the resolution of all outstanding Claims and Interests in the Estate. Reference is made to the Debtor's First Amended Joint Chapter 11 Plan of Reorganization dated November 2, 2012 (the "Plan") for discussion of the Debtor's implementation of the Plan, and for a summary and analysis of this Disclosure Statement and certain related matters. All Creditors and Equity Interest Holders are encouraged to consult the Plan. ARTICLE I DEFINITIONS, INTERPRETATION AND RULES OF CONSTRUCTION; TABLE OF CONTENTS In addition to such other terms as are defined in the Plan, as used in this Disclosure Statement, the terms set forth in Schedule "1" (which appear herein as capitalized terms) shall have the respective meanings as set forth in Schedule "1" and are incorporated herein by reference as though set forth herein in its entirety. The Table of Contents to this Disclosure Statement are set forth at the back of this Disclosure Statement after all exhibits. ARTICLE II SUMMARY OF THE PLAN This Article II of this Disclosure Statement contains a brief summary of the Plan and is qualified in its entirety by the full text of the Plan itself, as may be amended from time to time, which was filed with the Bankruptcy Court as a separate document, and which is incorporated herein by this reference. All terms defined in the Plan have the same meaning in this Disclosure
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Statement unless otherwise stated. The Plan, if confirmed, will be binding upon the Debtor, its Creditors and Equity Interest Holders. All Creditors, Equity Interest Holders and other parties in interest are urged to carefully read the Plan and this Disclosure Statement, in their entirety, and consult legal counsel for a full understanding of such Creditors' and Equity Interest Holders' rights under such documents. To the extent that this Disclosure Statement, including the summary below, is inconsistent with the terms of the Plan, the terms of the Plan will control. All creditors and parties in interest should read all pages of this Disclosure Statement and the Plan. If you are a general unsecured trade creditor of the Debtor, you should specifically read Article IV, Section 4.6 of the Plan for treatment of your Claims and interests. If you are a Club Member or former Club Member, you should specifically read Article IV, Section 4.7 of the Plan for treatment of your Claims and interests. 2.1. Overview.
In short, the Plan generally proposes that the Debtor will offer for sale, including at a potential auction, all of its Operating Assets. The auction will take place in accordance with Court-approved Bid Procedures as set forth in that Order Authorizing Bid Procedures entered October 30, 2012 [Docket No. 558] (the "Bid Procedures Order"). The offers to purchase the Operating Assets shall be pursuant to the form of the Purchase and Sale Agreement ("APA"), as set forth in the Bid Procedures Order. 2.2. Summary of Treatment of Certain Classes of Claims and Equity Interests.
The following table is a summary of the classification and treatment of Claims and Equity Interests under the Plan:1
This Table is intended as a summary only. In the event of any inconsistency between this Table and the specific treatment afforded under Article III of the Plan, Article III of the Plan shall control.
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Class 1
Type of Allowed Claim or Interest Allowed Secured Tax Claims
Treatment To the extent due as of the date of Closing, paid in full in Cash from the proceeds of the Sale. To the extent not yet due as of the date of Closing, all liability for Secured Tax Claims shall be assumed by the Purchaser. Paid in Cash in full from a portion of the proceeds of the CTC Settlement Payment, within 30 days following the Effective Date. Paid in Cash (or, if Alpine Bank is the Purchaser, then per its prevailing credit bid) from the net proceeds of Sale at Closing, until paid in full, with interest. Paid in Cash (or, if Alpine Bank is the Purchaser bidder, then per its prevailing credit bid) from the net proceeds of Sale at Closing, subject to Net Available Funds following the payment in full of Allowed Claims in Classes 1 and 3. Paid in Cash (or if Wilhelm is the Purchaser, then per his credit bid, to the extent applicable) from the net proceeds of Sale at Closing, subject to Net Available Funds following the payment in full of Allowed Claims in Classes 1, 3 and 4. Paid: (i) in Cash a Pro Rata Share of the Trade Claims Escrow designated and earmarked for the payment of such claims; and (ii) to the extent not paid in full from the Trade Claims Escrow, in Cash from Net Available Funds following the payment in full of Allowed Claims in Classes 1 through 5, such remaining unpaid amount of any Allowed General Unsecured Trade Claim shall be treated in Class 7 and share pari passu with all Member Deposit Claims in Class 7.
Status Unimpaired. Deemed to Accept.
Allowed Priority Claims
Unimpaired. Deemed to Accept.
Allowed Secured DIP Claim of Alpine Bank
Unimpaired. Deemed to accept the Plan.
Allowed Secured Pre-Petition Claim of Alpine Bank
Impaired. Entitled to Vote.
Allowed Secured Claim of Wilhelm
Allowed General Unsecured Trade Claims
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Class 7
Type of Allowed Claim or Interest Member Claims
Treatment (A) Global Settlement Opt In Claimants:
Status Impaired. Entitled to Vote.
(i) Allowed Deposit Claims, so long as duly Filed, paid in Cash from the net proceeds of Sale, subject to Net Available Funds following the payment in full of Allowed Claims in Classes 1 through 5, and application of Trade Claims Escrow to Class 6. Pari passu with any unpaid portion of Allowed General Unsecured Trade Claims; (ii) Releases set forth in section 7.2 of the Plan; and (iii) In the event a judgment is obtained in the Class Action, any recovery thereon, but limited to insurance proceeds, if any. (B) Global Settlement Opt Out Claimants:
(i) Member Deposit and Class Action Claims Disputed. If Allowed, such Claims shall be paid in Cash from the net proceeds of Sale, subject to Net Available Funds following the payment in full of Allowed Claims in Classes 1 through 5, and application of Trade Claims Escrow to Class 6. Pari passu with any unpaid portion of Allowed General Unsecured Trade Claims. (ii) No Release from Debtor or Global Settlement Parties; and (iii) Any Class Action recoveries against third parties, including insurance proceeds, if any.
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Class 8
Type of Allowed Claim or Interest Allowed Equity Interests
Treatment There shall be no payment or distribution on account of any Equity Interest in the Debtor. Equity Interests shall be retained in a manner as determined by Debtor and such Equity Holder solely to effect a tax-neutral transaction whereby such interests receive no payment or distribution on account of such interests, and to wind up the Debtor's affairs.
Status Impaired. Deemed to Reject
2.3. Post-Confirmation Expenses. The post-confirmation expenses that are anticipated include the expenses of the Plan Agent, as well as such items as professional fees incurred by Professional Persons in the course of implementing the Plan, objecting to Claims (if necessary, advisable or appropriate) and investigating and prosecuting Avoidance Actions and Causes of Action (if necessary, advisable or appropriate). The Avoidance Actions and Causes of Action pursued might produce additional money to be utilized for payment to Creditors. It is also possible, however, that the Reorganized Debtor may incur expenses investigating such Avoidance Actions and Causes of Action, yet not produce an affirmative recovery. Presently, the Debtor does not anticipate that the Plan Proponent will pursue any Avoidance Actions or Causes of Action, other than to the extent assigned to Wilhelm pursuant to the Global Settlement.
ARTICLE III VOTING INSTRUCTIONS AND CONFIRMATION PROCEDURES 3.1. Voting Procedure. Bankruptcy is a type of creditor democracy. The Plan divides the Claims of Creditors and Equity Interest Holders into eight (8) separate Classes, one of which has two (s) sub-classes. All impaired Classes of claimants are encouraged to vote. As a general rule "Impaired" Classes include Creditors who, under the Plan, may not receive payment in full of their Claims on the Effective Date of the Plan. In this Bankruptcy Case, Classes 1, 2 and 3 are Unimpaired and all other Classes are Impaired under the Plan. All Creditors and Equity Interest Holders entitled to vote on the Plan must cast their vote by completing, dating and signing the "Ballot," which is submitted as a separate document in connection to this Disclosure Statement. When fully executed, the Ballot must be mailed, faxed or hand delivered to: Christopher Celentino Foley & Lardner LLP 402 West Broadway, Suite 2100 San Diego, California 92101 Fax: (619) 234-3510 5
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such that it is received not later than 5:00 p.m. (Pacific Time) on _____________, 2012. This time period may be extended or shortened by order of the Bankruptcy Court for good cause shown by the party seeking such order. 3.2. Confirmation of Plan/Solicitation of Acceptances. It is anticipated that this Disclosure Statement will be / has been conditionally approved by the Bankruptcy Court in accordance with Section 1125 of the Bankruptcy Code and is provided to each Person whose Claim or Interest has been scheduled by the Debtor or who has filed a proof of Claim or Interest with respect to the Debtor or its property. This Disclosure Statement is intended to assist Creditors in evaluating the Plan and determining whether to accept the Plan. In determining acceptance of the Plan, votes of Creditors will only be counted if submitted by a Creditor whose Claim is duly scheduled by the Debtor as undisputed, noncontingent and liquidated, or who has filed with the Bankruptcy Court a proof of Claim or proof of Interest (i) to which no objection has been filed as of the Confirmation Date, or (ii) on which the Court has entered an order allowing such claims or interest in whole or in part. 3.3. Hearing on Confirmation of Plan. It is anticipated that the Bankruptcy Court will / has set ________________, 2012 at ___:00 p.m. Mountain Time in Department ___, Room _____of the Bankruptcy Court as the time, date and place for the hearing to determine whether the Plan has been accepted by the requisite number of Creditors and whether the other requirements for Confirmation of the Plan have been satisfied. Each Creditor will receive, with this Disclosure Statement, a Notice of Hearing on Confirmation of the Plan which gives the details of that hearing and a date by which objections to the Confirmation of the Plan, if any, must be filed. That hearing may be continued from time to time by announcements made by the Bankruptcy Court in open session at the hearing without any further written notice being provided. Creditors' attendance at the hearing on Confirmation of the Plan is encouraged. 3.4. Acceptances Necessary to Confirm Plan. At the Confirmation Hearing, the Bankruptcy Court must determine, among other things, whether the Plan has been accepted by each Impaired Class. Under Section 1126 of the Code, an Impaired Class of Claims is deemed to have accepted the Plan upon a favorable vote of at least two thirds in dollar amount and more than one half in number of the Allowed Claims of Class members voting on the Plan. Further, unless there is unanimous acceptance of the Plan by an Impaired Class, the Bankruptcy Court must also determine that Class members will receive at least as much as they would if Debtor were liquidated under chapter 7 of the Bankruptcy Code. Since Debtor's Plan is an orderly liquidation of Debtor's assets, the Plan Proponents believe that the Plan will satisfy this requirement as to each Class. 3.5. Confirmation of the Plan Without Necessary Acceptances. The Plan may be confirmed even if it is not accepted by one or more of the Impaired Classes, if the Bankruptcy Court finds that the Plan does not discriminate unfairly against and is "fair and equitable" as to each dissenting Class. This provision is generally set forth in Section 1129(b) of the Bankruptcy Code. Generally, that Section requires a showing that the Claims in such Class either will receive the full value of the Claim or, if they receive less, no Class with junior liquidation priority may receive anything. With respect to a Class of Unsecured Claims, the term "fair and equitable" in Section 1129(b) means that the Plan provides that each holder of a Claim of such 6
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Class receive or retain on account of such Claim property of a value, as of the effective date of the Plan, equal to the allowed amount of such Claim, or that the holder of any Claim or Interest that is junior to the Claims of such Class will not receive or retain any property under the Plan on account of such junior Claim or Interest. Section 1129(b) is a relatively flexible, yet very complex provision, and this summary is not intended to be a complete statement of the law. You should consult your own legal counsel for a full understanding of your rights and Debtor's powers under that Section. PLEASE TAKE NOTICE THAT IF ONE OR MORE CLASSES OF IMPAIRED CLAIMS FAILS TO ACCEPT THE PLAN, THE PLAN PROPONENTS PRESENTLY INTEND TO REQUEST CONFIRMATION OF THE PLAN NOTWITHSTANDING THE NON-ACCEPTANCE OF THAT CLASS PURSUANT TO THE PROVISIONS OF BANKRUPTCY CODE SECTION 1129(b). 3.6. Plan Amendments at Confirmation Hearing. The provisions of the Bankruptcy Code give Plan Proponents substantial power to amend and alter provisions of the Plan up to and including the time of the Confirmation Hearing. The provisions of the Plan regarding technical and curative amendments are particularly significant because they permit Plan Proponents to propose and implement any number or type of amendments to the Plan for the purpose of neutralizing or curing an actual claimed defect in the Plan asserted by the Bankruptcy Court or any party-in-interest. This right extends additionally to any amendments which are made to respond to or neutralize any objections to the Plan previously advanced by any party-in-interest. BY ITS TERMS, THE PLAN DOES NOT REQUIRE ANY PRIOR WRITTEN NOTICE OF SUCH TECHNICAL AND/OR CURATIVE AMENDMENT TO BE GIVEN TO ANY CREDITOR OR PARTY-IN-INTEREST. THE ONLY REQUIREMENT FOR NOTICE OF SUCH MODIFICATION IS THAT THE MODIFICATION BE DISCLOSED IN OPEN SESSION OF THE CONFIRMATION HEARING. UNLESS YOU ATTEND ALL SESSIONS OF THE CONFIRMATION HEARING, YOU HAVE NO OPPORTUNITY TO OBJECT TO SUCH CHANGES. In addition to the foregoing, the provisions of the Bankruptcy Code vests the Bankruptcy Court with substantial power and discretion to effectively modify (in ways which may be favorable or unfavorable) the rights and benefits which various parties may receive under the Plan by superimposing various conditions or other requirements as part of its Confirmation Order. No prior notice of any provisions that the Bankruptcy Court may insert in its Confirmation Order will be given to any party-in-interest except to the extent that such intentions are disclosed in open session of the Bankruptcy Court. Here again, your failure to attend any session of the Confirmation Hearing will mean you have no opportunity to object to or otherwise be heard as to potential amendatory provisions to the Plan (if any) which the Bankruptcy Court decides to insert in its Confirmation Order. ALL PARTIES-IN-INTEREST ARE ENCOURAGED TO PERSONALLY ATTEND EVERY SESSION OF THE CONFIRMATION HEARING. ONLY BY SUCH ATTENDANCE CAN PARTIES BE ASSURED OF OBTAINING NOTICE AND AN OPPORTUNITY TO BE HEARD ON ALL AMENDATORY PROVISIONS WHICH MAY AFFECT THEIR RIGHTS UNDER THE PLAN. 7
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ARTICLE IV BACKGROUND INFORMATION 4.1. History of the Company. Cordillera is a renowned and exclusive residential golf community located in Edwards, Colorado. Boasting some of the most beautiful views in the world, golfers at Cordillera enjoy some of the most exclusive golf amenities available anywhere. Initially conceived in the early 1990's, Cordillera today has burgeoned into a sprawling development spanning approximately 7,000 acres. The Cordillera community is governed by homeowners associations known as the Cordillera Property Owners' Association and the Cordillera Valley Club Property Owners' Association. Cordillera is comprised of four distinct residential neighborhoods known as the Divide, the Ranch, the Summit, and the Cordillera Valley Club which collectively consist of 1087 privately owned residential lots, over half of which are improved with custom and semi-custom single family homes. The Cordillera Club lifestyle and experience are punctuated by private amenities and facilities available to dues-paying members (collectively, "Club Members") who join the Cordillera Club. The Club Members are not equity owners in the Cordillera Club, the Debtor or any of its property. The Cordillera Club boasts of three signature golf courses, a Dave Pelz designed short course, two tennis centers and fitness facilities, three indoor and outdoor pools, a summer camp with Trailhead clubhouse for children, three restaurants, and Nordic ski trails along the Mountain golf course (collectively, the "Club Facilities"). Each property owner within the Cordillera community is a voting member of the CPOA or CVCPOA and pays dues and assessments respectively. Ownership of property at Cordillera with the concomitant membership in CPOA or CVCPOA does not include a right of access to, or use of, the Club Facilities offered by the Cordillera Club. 4.2. Background. On June 26, 2012 ("Petition Date"), the Debtor filed with the United States Bankruptcy Court for the District of Delaware its voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. 101, et seq., thereby initiating its Bankruptcy Case (assigned Case No. 12-11893), with the Delaware Bankruptcy Court. On July 16, 2012, the Delaware Bankruptcy Court entered its Order transferring venue of this Bankruptcy Case to this Court. 4.3. Pre-Petition Background. The Debtor is the owner and operator of "The Club at Cordillera", located within the Cordillera residential community in Edwards, Colorado in Eagle County. The Club includes three 18-hole golf courses, a short course, three tennis centers, fitness facilities, five indoor and outdoor pools, a summer camp with clubhouse for children, and riding, hiking and cross-country ski trails. See Declaration of Daniel L. Fitchett, Jr. in Support of Chapter 11 Petitions and First Day Relief [Docket No. 4] ("Fitchett Declaration"), 5-7. On or about June 26, 2009, the Debtor entered into a loan agreement with Alpine Bank, under which the Debtor allegedly owes Alpine in excess of $12.7 million, which debt is purportedly secured by substantially all of the Debtor's real and personal property (the "Alpine Loan"). Fitchett Declaration, 50-52, 54. Specifically, Alpine asserts that the Debtor's 8
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obligations are secured by liens and security interests in the Debtor's: (i) real property on which the Club facilities are located; (ii) furniture, equipment and fixtures; (iii) permits, licenses, water rights, and other contract rights; (iv) assignments of revenues; and (v) inventory, accounts receivable, general intangibles, and tort claims.2 Alpine asserts that it is owed approximately $13,037,559.18, as of the Petition Date, in addition to such amounts, if any, as are allowable under 11 U.S.C. 506(b), and any amounts for post-petition credit extended by Alpine to the Debtor ("Alpine Claim"). The Debtor's ultimate indirect equity interest holder, David Wilhelm, is also alleged to be a secured creditor of the Debtor pursuant to a loan transaction dated as of June 23, 2010 (the "Wilhelm Loan" and collectively with the Alpine Loan, the "Senior Loans"). Wilhelm also asserts security interests and liens in and to the Debtor's real and personal property to secure the repayment of these obligations.3 Wilhelm asserts that the amount of the Wilhelm Loan is $7,532,837.05, as of the Petition Date, in addition to such amounts, if any, as are allowable under 11 U.S.C. 506(b) ("Wilhelm Claim").4 4.4. General Case Background. On July 6, 2012, the United States Trustee filed its Notice of Appointment of Committee of Unsecured Creditors [Docket No. 86], thereby forming the Committee. The Debtor derived the vast majority of its revenues through fees and dues related to Club memberships paid by the Club's members. Fitchett Declaration, 6. Over the past several
See Emergency Motion of the Debtor for Entry of Interim and Final Orders 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 Interest and Superpriority Administrative Expense Claims, (iii) Granting Adequate Protection to Pre-Petition Secured Parties, (iv) Authorizing the Use of Cash Collateral as Provided Herein, and (v) Scheduling a Final Hearing [Docket No. 59] ("Original DIP Financing Motion"), at 7. See Original DIP Financing Motion, at 8, 9. Wilhelm has purportedly assigned as collateral a portion of his alleged security interests to Dr. Jeffrey Rush, as Trustee of The Rush Family Trust ("Rush Trust") pursuant to a related loan allegedly made by such Rush Trust to Wilhelm in the amount of approximately $3.75 million, which loan was allegedly guaranteed by the Debtor on an unsecured basis (the "Rush/Wilhelm Loan"). See Declaration of Christopher Celentino in Support of Application for an Order Authorizing the Retention and Employment of Foley & Lardner LLP as General Bankruptcy Counsel to the Debtor, Nunc Pro Tunc to the Petition Date [Docket No. 115], at 15. This amount is, for purposes of the Global Settlement (as defined herein), inclusive of all amounts owed by the Debtor on account of obligations asserted by Dr. Jeffrey Rush and/or the Rush Trust against the Debtor.
4 3
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years, the Debtor's relationships with its members had become strained, resulting in ongoing litigation in Colorado State Courts.5 These disputes have had a substantial impact on the Debtor and its operations. See Status Report, at p. 2. These disputes have also led to certain members filing a Motion in the Bankruptcy Case on July 24, 2012, seeking the appointment of a chapter 11 trustee for the Debtor's estate ("Trustee Motion"). On August 7, 2012, the Committee, the CPOA and the Cordillera Metropolitan District joined in the relief requested in the Trustee Motion, and the Debtor filed its opposition thereto, which opposition was joined by Wilhelm. See Docket Nos. 341 344. On August 30, 2012, the Debtor filed its Motion for Final Order Approving Debtor-InPossession Financing, Use of Cash Collateral and Adequate Protection [Docket No. 402] ("Final DIP Motion"), pursuant to which the Debtor proposed to incur post-petition financing from Alpine on a first priority priming basis, in the aggregate amount of $3,239,995.00 (inclusive of funds previously advanced pursuant to prior interim / emergency funding requests). The Committee subsequently informed the Debtor and Alpine of its intent to object to the Final DIP Motion, and conducted discovery thereon. The filing of objections to the Final DIP Motion that were contemplated by the Committee and/or other parties in interest was ultimately mooted by the compromise reached by the Debtor and the Committee with major estate constituencies as further set forth below. 4.5. The Global Settlement. On September 12th and 13th, 2012, the Debtor, the Committee, the Class Representatives, the CPOA, CTC, the CMD, Wilhelm, Alpine, and certain other parties in interest participated in an extensive mediation, with Deborah D. Williamson serving as mediator ("Mediator"), in an effort to resolve their disputes regarding the Trustee Motion, the Final DIP Motion, certain issues regarding the administration of the Bankruptcy Case, certain litigation pending among the Debtor, the members, Wilhelm and others, and the Debtor's efforts to restructure its affairs generally. Following such mediation, on September 24, 2012, the parties executed a Term Sheet ("Term Sheet") outlining the Global Settlement that provides for the compromise and settlement of certain litigation among the parties and a sale process for the Debtor's Operating Assets (as defined in the APA). In summary, the Global Settlement allows for the parties to consensually resolve their disputes relating to the Trustee Motion, the Final DIP Motion, the Senior Claims, litigation pending between the Debtor, Wilhelm and various member groups, and to propose a consensual chapter 11 plan providing for among other things, the distribution of certain proceeds from the
See Debtor's Status Report as Requested by the Court [Docket No. 193] ("Status Report"), at p. 2; Motion filed by Cheryl M. Foley, Thomas Wilner, Jane Wilner, Charles Jackson, Mary Jackson and Kevin B. Allen, Individually and as Representatives (collectively, the "Class Representatives") of a Certified Class of Members ("Member Class"), to Transfer Venue [Docket No. 69] ("Venue Motion"), at p. 2.
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sale of the Debtor's assets. The Global Settlement, as set forth in the Term Sheet, contemplates the Sale of the Debtor's "Operating Assets," comprising substantially all of the assets of the Debtor's estate. In order to effectively conduct the Sale of the Operating Assets, the parties sought this Court's approval of the Bid Procedures (as defined below), and on October 30, 2012, the Court entered its Bid Procedures Order.6 4.6. The Debtor's Acquisition of the Cordillera Club. In June 2009, the Debtor acquired the Club Facilities. Prior to June 2009, the Debtor's current indirect equity owner, Wilhelm, owned an approximate 30% interest in the entities owning the Club Facilities, but held no management position with such entities. Following a forensic audit completed at Wilhelm's request, Wilhelm asserted that the prior owners' and their then-current management none of whom are associated in any way with the Debtor or its current management or ownership had allegedly diverted substantial funds away from the Cordillera Club's operations. This lead to arbitration proceedings among Wilhelm (in his capacity as 30% owner) and the Cordillera Club's owners and then-current management team, which also owned the remaining 70% interest in the Cordillera Club. As a result of that arbitration, entities formed by Wilhelm acquired a 100% ownership interest in the Cordillera Club and the Club Facilities and anyone associated with the Cordillera Club's former owners and then-current management's mismanagement of the Cordillera Club was relieved of their positions. 4.7. The Pending State Court Litigation. The Debtor is a party to the following litigation matters pending in Colorado state court. 4.7.1 "CTC Lawsuit"
On May 24, 2011, the Debtor filed a complaint (the "CTC Complaint") in the District Court for Eagle County, Colorado (the "Eagle County Court") against the CPOA and the CTC styled Cordillera Golf Club, LLC, et al. v. Cordillera Transition Corporation, Inc., et al. assigned case number 2011 CV 456 (the "CTC Lawsuit").
The recital of terms of the Global Settlement contained herein is not intended in any way to vary or impact the terms of the parties' agreements as memorialized in the Term Sheet. In any and all instances where any conflict may appear to exist between the terms recited in this Motion and the provisions of the Term Sheet, the Term Sheet shall control. However, the Plan is intended to implement certain provisions of the Term Sheet and the Court's orders granting the Global Settlement and implementing the Sale process will supersede the corresponding provisions of the Term Sheet. Contemporaneously herewith, the Debtor and the Committee are filing with the Bankruptcy Court a motion seeking approval of the Term Sheet and portions of the Global Settlement ("9019 Motion").
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The CTC Complaint asserts seven causes of action for (1) Tortious Interference with Contract; (2) Tortious Interference with Prospective Business Advantage; (3) Colorado Organized Crime Control Act; (4) Fraud; (5) Fraud in the Inducement; (6) Civil Conspiracy/Collusion; and (7) Defamation. The CTC defendants contended that they have meritorious defenses to the CTC Complaint. A three week jury trial is set for April 1-19, 2013. 4.7.2 "Class Action" Lawsuit
On June 20, 2011, a lawsuit was filed against the Debtor and WFP, CGH, CFB, WFPI, CGHM, CFB, Wilhelm, and P. Wilhelm for, among other things, (1) Breach of Contract, (2) Promissory Estoppel, and (3) False Representation, alleging that management was required to open all facilities. The lawsuit was later amended to assert claims on behalf of the class and to add additional claims for securities and consumer fraud violations and other causes of action. This Class Action lawsuit is styled Foley v. Cordillera Golf Club LLC, 2011 CV 552, pending in Eagle County Court. Plaintiffs in the Class Action seek return of all 2011 Club Membership dues paid, their Club Membership deposits, avoidance of further membership obligations, decline in home values, exemplary damages, etc. The Court has certified this matter as a "Class Action" and has appointed the Member Representatives as the Class Representatives. The Debtor and other defendants in the Class Action believe they have multiple meritorious defenses to the claims in the Class Action. The Debtor and other defendants in the Class Action have tendered their defense to their insurers. Trial is scheduled for March 2013. On June 24, 2011, the District Court entered a TRO in the Class Action which provided, among other things: "that defendants shall not use funds from 2011 annual dues received from Club at Cordillera ("Club") members for any purpose other than the necessary maintenance and operation of the Club's four golf courses and related facilities." The TRO was extended multiple times and became a Preliminary Injunction, which has since expired. On December 2, 2011, the Class Representatives filed a Verified Motion for Issuance of Contempt Citation alleging seven (7) payments made from June 30, 2011 to August 31, 2011, by CGC were in violation of the TRO (the "Contempt Motion"). A hearing was scheduled to begin on the Contempt Motion on July 20, 2012, which hearing was later continued to September 7, 2012. The hearing never took place because the presiding Judge recused himself on and the matter was thereafter reassigned, where the matter remains pending. The Eagle County Court has not scheduled further hearing on the Contempt Motion. 4.8. Settlements.
A summary of the Term Sheet's material terms, including the items that the Debtor and other Approving Parties specifically request immediate approval of, are set forth below:
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Summary of Term Sheet7 4.8.1 The DIP Loan.
The Debtor and other Approving Parties consented to the entry of the order approving the financing proposed in the Final DIP Motion ("Final DIP Loan") as contemplated by the Term Sheet. However, the Final DIP Loan was modified as follows: (i) The amount in the budget attached to the Final DIP Motion provides for professional fees of $965,000. It was agreed that the Budget in the Final DIP Motion would 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 is 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; and Alpine has consented to the 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 the Term Sheet, the Final DIP Loan shall be deemed amended so that it is consistent with the Term Sheet. Without limiting the generality of the foregoing, performance by any of the Parties of the Term Sheet shall not be a default under the Final DIP Loan.
(ii)
A hearing was held on September 27, 2012 and the Court approved the Final DIP Loan, which includes the above terms. 4.8.2 Partial Settlement of Class Action Lawsuit.
On October 5, 2012, the Member Representatives filed appropriate pleadings in the Class Action ("Class Action Settlement Motion") seeking approval of the settlement of the Class Action as provided in the Term Sheet (the "Class Action Settlement") and have recommend approval of the settlement embodied in the Term Sheet and requested that a hearing be scheduled
7
Defined terms under the heading summary of Term Sheet shall have the meaning set forth in the Term Sheet unless otherwise provided for herein, and the Term Sheet shall control to the extent of any inconsistencies.
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on the Class Action Settlement Motion, which hearing is set to take place on November __, 2012, for the approval of the settlement, and further that appropriate notices are provided to Class Members and that the deadline to opt out of the Class Action Settlement is November 30, 2012. The Term Sheet contemplates that certain rights of the Class Action plaintiffs will be compromised. The Class Action Settlement, as well as any releases related thereto, are subject to the approval of the Eagle County District Court in the Class Action and shall not become effective unless and until so approved. The Member Representatives agreed to recommend such approval by the Eagle County District Court, and to themselves agree to the settlement. The Member Representatives further agreed 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. The Member Representatives and any of the CTC Individuals and the CPOA Individuals who are Class Members have further agreed to support and be bound by, and not to opt out of the partial settlement of the Class Action. Upon approval of the Class Action Settlement by the Eagle County District Court and this Court, any objection by the Committee or the Debtor to use of proceeds from any applicable insurance policy to defend the Class Action shall be deemed withdrawn and consent to use of such proceeds to defend the Class Action shall be deemed granted. Upon approval of the Class Action Settlement by the Eagle County District Court and this Court, the Member Representatives shall promptly file a 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. If the Class Action Settlement is approved by the Eagle County District Court and this 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. 4.8.3 Settlement of CTC Lawsuit.
The parties agreed to resolve the CTC Lawsuit as described below. (i) Payment by CPOA and CTC: In consideration of the releases provided in the Term Sheet, the CPOA and CTC shall pay the sum of $2,350,000 upon entry of an order by the Bankruptcy Court approving the Global Settlement, which order shall have become final and not subject to any further appellate review. $1,600,000 of the 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 the Term Sheet. $750,000 of the CTC Settlement Payment shall be paid to Wilhelm. CGH, CFB, WFP, WFPI, CGHM, Alpine, 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 14
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County District Court, which Joint Notice will have been executed and held by Plaintiffs pending receipt by Wilhelm of the $750,000. (ii) The mutual releases contained in the Term Sheet at Section 2.a.i, as they relate to the CTC Lawsuit, shall be effective upon approval by the Bankruptcy Court of the CTC Lawsuit Settlement and payment by the CPOA and CTC described in the Term Sheet at Section 2.a.ii. Distribution of the CTC Settlement Payment: Upon confirmation of the Plan, as provided for in the Term Sheet, 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 under the Term Sheet at Section 2.a.iii.
(iii)
4.9. Mutual Releases. Pursuant to the Global Settlement, 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 the 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, 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, arising out of any fact, matter, act or circumstance from the beginning of time to the date of the 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 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 (as 15
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described in the Term Sheet), including any obligation to continue paying dues for any period into the future. Finally, pursuant to the Plan, the Membership Documents will be deemed rejected as executory contracts pursuant to section 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: (i) 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)(1), with respect to insurance coverage, is true, accurate and complete. Nothing in the Term Sheet, Global Settlement or Plan 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 have covenanted 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; The Member Deposit Claims shall be deemed allowed in favor of each such Member but subordinated as provided in the Term Sheet and Plan; provided, however, that nothing therein 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 the 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; Any claim of any Party for a breach of any obligation imposed by the Term Sheet;
(ii)
(iii)
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(iv) (v)
Any Secured Claim for unpaid real property or business personal property taxes; The Alpine Claim, 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; The Wilhelm Claim, 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 is inclusive of all claims of Dr. Jeffrey Rush and the Rush Trust and any person or entity acting in whole or in part through Rush (collectively "Rush"), and no such Rush claims will be separately allowed; There has been no agreement to or settlement of any claim for any administrative expense and the Term Sheet parties have reserved all of their rights with respect to any past or future application by a party seeking allowance of an administrative expense claim; and
(vi)
(vii)
(viii) 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. 4.10. Sale of Assets. The Approving Parties to the Term Sheet have agreed to and shall take steps to implement a process for the Sale of the Operating Assets. The Debtor and the Committee jointly prepared and filed with this Court, after consultation with the Approving Parties about the form thereof, a joint motion seeking approval of bidding procedures ("Sale / Procedures Motion"), and further seeking approval of the sale of all the Debtor's Operating Assets, pursuant to the Term Sheet and Bid Procedures, 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 / Procedures Motion and Bid Procedures contain, inter alia, the following provisions:8
This summary and discussion of the Bid Procedures is provided for informational purposes only, and is not intended to vary or impact the terms of the Bid Procedures approved by the Bankruptcy Court in any way. In any instance in which this summary or Disclosure Statement conflicts with the Bid Procedures, the Bid Procedures shall control.
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(i)
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 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; That all bidders must qualify to bid; That all bids must be for all cash, except that the holders of the Alpine Claim and Wilhelm Claim can credit bid their allowed secured claims including, in the case of Alpine, 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 the Term Sheet plus taxes then due secured by a lien on the assets sold; That all bids must seek to purchase all the Debtor's operating assets; That the highest bidder must close pursuant to its bid no later than December 28, 2012 (the "Closing"). Time is of the essence. That the Sale of the Operating 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 Allowed Secured Claim are subject. Further, the Sale shall not be free and clear of liens for any unpaid real property taxes and/or 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);
(ii)
(iii) (iv)
(v) (vi) (vii)
(viii) That the Mediator shall conduct the sale process, subject to ultimate approval by the Bankruptcy Court; (ix) 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 Operating Assets; and 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.
(x)
4.11. Successful Bidder. If any Wilhelm Party is selected as the successful bidder at the sale of the Debtor's assets as provided for herein, then such Wilhelm Party shall transfer or cause to be transferred the Debtor's ownership interest in (a) the "Short Course," (b) the 18
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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 Class Action Settlement Motion and entry of the Global Settlement Order. Additionally, if any Wilhelm Party is selected as the successful bidder for the Sale of the Debtor's assets, and 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. By way of information, the Operating Assets essentially include all of the Debtor's right, title and interest in and to any and all real and personal property owned by the Debtor or used in connection with the operation of the Club, including without limitation, all real and personal property, fixtures, furniture, equipment, inventory, intellectual property, goodwill, contracts, supplies, licenses, permits, ownership interests in unincorporated Club restaurants, water rights, and copies of the Debtor's books and records.9 The Operating Assets do not include: (i) any and all claims and Causes of Action arising in favor of the Debtor or the bankruptcy Estate pursuant to any provision of the Bankruptcy Code, including but not limited to offsets, avoidance actions, counterclaims, and defenses and affirmative defenses to claims, provided that warranty claims pertaining to specific Operating Assets shall not be excluded therefrom; (ii) any and all claims or Causes of Action against any person or entity existing as of the filing of the Bankruptcy Case including but not limited to claims or actions against any member, offsets, counterclaims and defenses and affirmative defenses to claims and expressly including any such claims or Causes of Action that are being compromised and released pursuant to the Global Settlement; (iii) any Membership Documents, which contracts are being rejected by the Estate to the extent they constitute executory contracts or unexpired leases; (iv) originals of the Debtor's books and records necessary or appropriate for the continued administration of the Bankruptcy Case and matters that may arise in relation thereto, including, without limitation, personnel records, consumer records, tax records, and records relating to claims or litigation proceedings; (v) cash, accounts receivable, deposit accounts, or other cash equivalents.10 4.12. The Bid Procedures. A true and correct copy of the proposed Bid Procedures is attached to the Sale Order as Exhibit "A" and incorporated herein by reference for all purposes.11
9
As set forth below, the Debtor shall retain originals of its books and records necessary or appropriate to perform any continuing duties to administer the Bankruptcy Case and matters that may arise in relation thereto, provided that the purchaser shall have the opportunity to copy any and all such books and records relating to the Operating Assets at Purchaser's expense. Certain claims and Causes of Action are being released by the Debtor and/or its estate pursuant to the Global Settlement. All capitalized terms appearing herein which are not separately defined shall have the meanings ascribed to such terms in the Bid Procedures. Interested parties are encouraged to review the full and complete Bid Procedures with their own counsel.
11 10
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The Debtor, the Committee and their professionals have negotiated and designed the Bid Procedures to be administered by the Mediator, in order to: (i) facilitate the identification of Potential Bidders having a genuine interest in submitting a bid to acquire the Operating Assets, and having the likely wherewithal to qualify as a Qualified Bidder; (ii) provide a process for the qualification of Qualified Bidders; (iii) establish and identify opening Bids and Increased Bid requirements, as well as other provisions for conducting the Auction; and (v) establish the process for the consideration and selection of a Qualified Bid as a Successful Bid or Backup Bid for the Operating Assets. Specifically, the Bid Procedures provide a process for Potential Bidders to obtain Bid Packages and Due Diligence Access from the Debtor by providing a Bidder Information Sheet and agreeing to confidentiality obligations. A copy of the required form of confidentiality agreement is attached to the Bid Procedures as Exhibit "A" and a copy of the Bidder Information Sheet is attached to the Bid Procedures as Exhibit "B." In addition, the Bid Procedures Order includes a process to allow for the assumption and assignment of executory contracts and unexpired leases to the purchaser of the Operating Assets, as follows: (i) On November 1, 2012, the Debtor filed and served on all known counterparties and required notice parties a Schedule of Executory Contracts and Unexpired Leases ("365 Schedule") that may be assumed and assigned to the Purchaser, including the proposed cure amount required pursuant to section 365 of the Bankruptcy Code for their assumption and assignment, if any [Docket No. 566]. The APA, approved by the Bankruptcy Court's Bid Procedures Order, further sets forth each executory contract and unexpired lease to be assumed and assigned to the purchaser pursuant thereto, and the Debtor's estimate of any cure payment amount required for same; and Contract counterparties have fourteen (14) days following the filing of the 365 Schedule to file and serve upon the Debtor and Committee an objection setting forth with particularity any objection to assumption and assignment of their contract, their asserted proper cure amount, documentation of same, and stating whether the objecting contract counterparty may assert any objection to the assignment of their contract to the ultimate purchaser.
(ii)
The Debtor accordingly requested by the Sale / Procedures Motion the Court's authority, to be granted at the Sale Hearing, to assume and assign to the Purchaser any of the executory contracts and unexpired leases set forth in the 365 Schedule, including the approval of the cure amount, if any, set forth therein for payment as a predicate to such assumption and assignment. To the extent that any objection to the assumption and/or assignment of any executory contract
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or unexpired lease included in the APA is not resolved consensually prior to the Sale Hearing, the Bankruptcy Court will resolve any such objection at the Sale Hearing.12 The Bid Procedures also set out both the criteria applicable to a Potential Bidder's qualification as a Qualified Bidder and the requirements for a bid to qualify for consideration as a Qualified Bid. Such requirements include, without limitation: (i) Each Bid must be to acquire all of the Operating Assets, in cash at closing, and be unconditional and irrevocable save and except for this Court's approval;13 The Bidder's agreement that: (1) if its Bid is selected as the Successful Bid, the Bidder is ready, willing and able to close on the purchase of the Operating Assets by no later than 4:00 p.m. prevailing Mountain time, on December 28, 2012; (2) if its Bid is selected as the Backup Bid and the Mediator notifies the Backup Bidder on or prior to 5:00 p.m. prevailing Mountain time, on December 28, 2012, that the Mediator has elected (upon consultation with the Oversight Parties) to sell the Operating Assets to the Backup Bidder, the Backup Bidder is ready, willing and able to close on the purchase of the Operating Assets within two (2) Business Days of receipt of written notice from the Mediator of such election; Satisfactory information delivered to the Mediator, demonstrating a Bidder's financial capability to close the transaction proposed under the Bid and to provide "adequate assurance of future performance," within the meaning of section 365(f)(2)(B) of the Bankruptcy Code, in relation to any executory contracts and unexpired leases to be assumed and assigned to such Bidder under the Sale. Such satisfactory information (iii) may be evidenced by: (1) recent financial statements of the Bidder and/or its direct
(ii)
(iii)
Notwithstanding the listing of an executory contract or unexpired lease in the 365 Schedule or APA, the Mediator and Debtor, in consultation with the Successful Bidder / Backup Bidder, reserve all rights to withdraw any such designations at the Sale Hearing. Notwithstanding the foregoing, pursuant to section 363(k) of the Bankruptcy Code, Alpine or the holder of the Alpine Claim is entitled to credit bid the Alpine Claim, subject only to verification of the calculation of such amount, and the holder of the Wilhelm Claim is entitled to credit bid the Wilhelm Claim, subject only to verification of the calculation of such amount, provided however that any Bid by the holder of the Wilhelm Claim must nevertheless be in cash up to the extent of the Alpine Claim, and taxes then due and secured by a lien on the Operating Assets. Moreover, notwithstanding anything herein to the contrary, and as further provided in the Bid Procedures, Alpine, should it elect to credit bid as provided in the Bid Procedures, shall be deemed a Qualified Bidder, and any such credit bid shall be deemed a Qualified Bid.
13
12
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or indirect equity interest holder(s); or (2) such other evidence as may be reasonably satisfactory as determined by the Mediator, and establishing the unconditional availability of funds to the Bidder sufficient to pay the Bid consideration in cash14; (iv) Evidence that the Bidder has or will have by closing any requisite organizational authorizations and approvals necessary to consummate the Sale; Disclosure of all of the Bidder's connections (if any) with the Debtor, the Debtor's Creditors, any other party in interest in the Bankruptcy Case, their respective attorneys and accountants or advisors; That Bids must remain confidential other than to the extent disclosure is contemplated or required in the Bid Procedures; Disclosure of any post-closing relationship or connection the Bidder then contemplates having with the Debtor (including any officer, director, shareholder, managing member, insider or affiliate of the Debtor), including a description of the Bidder's proposal (if any) to employ or otherwise retain any of the Debtor's employees if it successfully acquires the Operating Assets;
(v)
(vi) (vii)
(viii) A Deposit in an amount not less than $500,000, to be refunded to any Bidder who does not prevail in acquiring the Operating Assets, but subject to forfeiture if: (1) a Qualified Bidder withdraws its Bid before the announcement of the Successful Bidder and Backup Bidder; (2) the Successful Bidder attempts to modify or withdraw its Bid without closing the Sale, except due to the failure of any conditions to close not the fault of the Successful Bidder; (3) the Backup Bidder attempts to modify or withdraw its Backup Bid prior to closing the Sale, unless the Sale shall have closed with the Successful Bidder, and except due to the failure of any conditions to close not the fault of the Backup Bidder. (ix) An executed purchase and sale agreement in the form of the APA, identifying executory contracts and unexpired leases to be assumed in connection with the Sale, and otherwise containing the same or substantially identical terms and conditions as the APA, together with a
Pursuant to the Bid Procedures, such financial information should be delivered only to the Mediator, who shall hold such financial information confidential other than for purposes of providing her reasons for disqualifying any Bid or Bidder, provided that the Mediator shall have no liability whatsoever in connection with her administration of the Bid Procedures.
14
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"redlined" or otherwise marked copy reflecting any revisions made to conform the APA to the Bidder's APA, provided that such APA shall not be effective until the Mediator declares such Bidder to be the Successful Bidder or Backup Bidder (and as such APA may be required to be conformed to the Successful or Backup Bid as provided in the Bid Procedures). See Bid Procedures, V. The Bid Procedures also contemplate and permit current and former members of the Club and other prospective bidders with an interest in less than all of the Operating Assets to approach, discuss and agree with other members and parties about submitting a joint bid to acquire all of the Operating Assets, provided that such joint Bid and the Bidding parties otherwise collectively qualify under the procedures; and further provided, such joint Bid shall be presented as one Bid with one APA and the Debtor/estate shall not be required to deal with multiple parties, but rather shall deal only with a designated representative with respect to such joint Bid. The Bid Procedures establish a Bid Deadline of 12:00 noon, prevailing Mountain Time, on December 3, 2012, other than with respect to the holders of the Senior Claims, as discussed herein. See Bid Procedures, VI. Any Bidders submitting Qualified Bids then become Qualified Bidders. In the event of competitive bidding, the Bid Procedures call for an Auction to be conducted by the Mediator at 10:00 a.m., prevailing Mountain Time, on December 10, 2012, at the offices of the Debtor's counsel, Sender & Wasserman, P.C., 1660 Lincoln Street, Suite 2200, Denver, Colorado 80264. Attendance at the Auction must be in person.15 With respect to the Auction, the Bid Procedures further provide for a minimum Increased Bid (overbid) requirement of $100,000.00, and provide details on the process for conducting the Auction, making Increased Bids, and identifying the Successful and Backup Bids. See Bid Procedures, VII. ARTICLE V DESIGNATION AND TREATMENT OF UNCLASSIFIED CLAIMS UNDER THE PLAN Under the Plan, certain types of Claims are not placed into voting Classes; instead they are unclassified. These Claims are not considered Impaired and they do not vote on the Plan because they are automatically entitled to the specific treatment provided in the Bankruptcy
In the event that a Bidder submits a Bid prior to the December 3, 2012 Bid Deadline, and the Mediator determines pursuant to the Bid Procedures that such Bid is not a Qualified Bid, the Mediator shall make reasonable efforts to inform the Bidder of such disqualification and the reasons for same, in order to attempt to allow the Bidder to remedy any such defects prior to the Bid Deadline.
15
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Code. As such, the Debtor have not placed the following Claims in a Class, the treatment of which is also set forth below: (a) Administrative Claims. Allowed Administrative Claims, including Professional Fee Claims and all fees due under 28 U.S.C. 1930 as determined by the Bankruptcy Court at the Confirmation Hearing, are not classified under the Plan. 5.1. Administrative Claims. Except to the extent that the holder of a particular Allowed Administrative Claim has agreed to a different treatment thereof, and except as otherwise expressly provided elsewhere in the Plan, each Allowed Administrative Claim shall be paid in Cash by the Reorganized Debtor within fifteen (15) days following the later of (a) the Effective Date, or (b) the date on which the Claim becomes an Allowed Administrative Claim (if required to be approved by the Bankruptcy Court or such Claim is a Disputed Claim). 5.2. Bar Date for Administrative Claims.
5.2.1 General. As provided in the Plan, other than with respect to (1) an Allowed Administrative Claim, (2) a post-petition liability incurred and paid in the ordinary course of business by the Debtor, or (3) a Claim arising pursuant to section 503(b)(9) of the Bankruptcy Code for the value of goods received by the Debtor within twenty days before the Petition Date and sold to the Debtor in the ordinary course of its business,, each holder of an Administrative Claim shall be required to file with the Bankruptcy Court a request for payment of such Administrative Claim no later than thirty (30) days after the Effective Date (the "Administrative Claims Bar Date"). Notwithstanding the foregoing, the Administrative Claims Bar Date for holders of any Administrative Claim arising pursuant to section 503(b)(9) of the Bankruptcy Code for the value of goods received by the Debtor within twenty days before the Petition Date and sold to the Debtor in the ordinary course of its business, is November 27, 2012. Any holder of an Administrative Claim (excluding however, the foregoing exceptions and holders of any claims for federal, state or local taxes not required to file a request for payment of an Administrative Expense as a condition of its being an Allowed Administrative Expense pursuant to Bankruptcy Code Section 503(b)(i)(D)) that does not timely file such request for payment of its Administrative Claim by the Administrative Claims Bar Date shall forever be barred from asserting such Administrative Claim against any of the Debtor, the Reorganized Debtor, the Estate or the Property. The hearing on such request for payment may be held after such thirty (30) day period. The United States Trustee shall not be required to file such a "request for payment" for quarterly fees due and owing under 28 U.S.C. 1903(a)(6). 5.2.2 Professionals. The Bankruptcy Court must approve the fees and expenses of Professional Persons. The Plan provides that all Professional Persons or other Professionals or entities requesting compensation or reimbursement of expenses pursuant to sections 327, 328, 330, 331, 503(b) and 1103 of the Bankruptcy Code for services rendered before the Confirmation Date (including, without limitation, any compensation requested by any Professional Person or other Professional or Person for making a substantial contribution in the Bankruptcy Case) shall file with the Bankruptcy Court and serve on the Debtor an application for final allowance of compensation or reimbursement of expenses no later than the Administrative Claims Bar Date. The hearing on such request for payment may be held after such thirty (30) day period. Only the amount of fees and expenses of Professional Persons and other persons covered by Article 3 of 24
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the Plan Allowed by the Bankruptcy Court will be required to be paid under the Plan. The fees and expenses of Professional Persons for services rendered after the Confirmation Date shall be paid as provided in Section 6.13 of the Plan. 5.2.3 Notice. The Notice of Effective Date shall be sent by the Debtor to all Creditors, Equity Interest Holders and other parties-in-interest within five (5) days following the Effective Date, which notice shall indicate the bar dates set forth above; provided, however, failure of any Person to receive such notice shall not act to extend any such bar date or relieve any such Person from timely filing a request for payment of such Administrative Claim, if required. ARTICLE VI TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES 6.1. Rejection of Membership Documents. The Membership Documents will be deemed rejected as executory contracts pursuant to the Global Settlement Order and all current and former members of the Club will be deemed to have waived such Claims from the rejection of such Membership Documents, save and except the Membership Deposit Claims. 6.2. Rejection of Executory Contracts and Unexpired Leases. On the Effective Date, all other contracts and leases constituting executory contracts or unexpired leases under the provisions of section 365 of the Bankruptcy Code which (a) have not been assumed or rejected by the Effective Date and have not been assumed by the Purchaser at Closing, or (b) have not been made the subject of a motion to assume which is pending as of the first date set for the hearing on confirmation of the Plan, shall be deemed rejected as of the Petition Date in accordance with the provisions of section 365 of the Bankruptcy Code. Notwithstanding the foregoing, or any other provision of the Plan, the Global Settlement Agreement shall remain in full force and effect and shall not be rejected. 6.3. Rejection Damage Claims. Any Claim arising from the rejection of an executory contract or unexpired lease under the terms of section 8.2 of the Plan must be evidenced by a proof of claim detailing same ("Rejection Damages Claim"), which Rejection Damages Claim must be Filed with the Bankruptcy Court and served on the Reorganized Debtor by not later than thirty (30) days following the Effective Date of the Plan. Any holder of such a Claim for rejection damages that fails to File and serve a Rejection Damages Claim on or before said deadline shall be deemed to have waived such Claim in full, and such Claim shall be deemed Disallowed and discharged. ARTICLE VII MEANS OF IMPLEMENTATION OF THE PLAN THE DEBTOR HAS NOT FULLY REVIEWED THE CLAIMS IN THE CASE OR DETERMINED WHETHER CAUSES OF ACTION EXIST OR WHETHER OBJECTIONS TO CLAIMS EXIST. THIS INVESTIGATION IS ONGOING AND MAY CONTINUE AFTER CONFIRMATION. AS A RESULT, CREDITORS AND OTHER PARTIES IN INTEREST SHOULD BE AND ARE HEREBY, PURSUANT TO THE TERMS OF THE PLAN, SPECIFICALLY ADVISED THAT, NOTWITHSTANDING THAT THE EXISTENCE OF 25
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ANY PARTICULAR CAUSE OF ACTION OR OBJECTION TO CLAIM MAY NOT BE LISTED, DISCLOSED OR SET FORTH IN THE PLAN OR DISCLOSURE STATEMENT, A CAUSE OF ACTION OR OBJECTION TO CLAIM MAY BE BROUGHT AGAINST ANY CREDITOR OR PARTY IN INTEREST AT ANY TIME (SUBJECT TO, IN THE CASES OF OBJECTION TO CLAIMS THE CLAIMS OBJECTION DATE, IN THE CASES OF AVOIDANCE ACTIONS, THE AVOIDANCE ACTION DATE, THE APPLICABLE STATUTE OF LIMITATIONS OR OTHER LIMITATIONS SET FORTH IN THE PLAN). 7.1. Global Settlement. The Debtor and Committee propose the Plan in order to provide for payment of Claims of Creditors of the Estate, to liquidate the Assets of the Estate and to accomplish the Global Settlement by and among the Approving Parties. The Global Settlement contemplates the Filing and confirmation of the Plan in order to effectuate the terms and settlements described therein and approved by the Bankruptcy Court by its Global Settlement Order, including, without limitation: 7.1.1 The disbursement of proceeds of the CTC Settlement Payment as specifically earmarked, designated and required pursuant to the settlement of the CTC Litigation, and the Debtor's administration thereof on behalf of the payors pursuant to the terms of the Plan; 7.1.2 The compromise of the Claims of Members of the Club against the Debtor Wilhelm and certain Wilhelm Parties, and partial settlement of the Class Action, through, inter alia, the Allowance, partial subordination, and treatment of the Member Deposit Claims of those members who opt in to the Global Settlement in the Class Action, as set forth in the Plan; 7.1.3 The Sale of the Operating Assets free and clear of Liens, claims and encumbrances (other than those claims, liens and encumbrances specifically set forth in the Bid Procedures and/or the APA); and 7.1.4 The repayment of post-petition financing provided by Alpine to the Debtor pursuant to the Global Settlement, and the compromise and treatment of the Secured Pre-Petition Claim of Alpine Bank and Secured Claim of Wilhelm. 7.2. Sale of Assets. To accomplish the terms of the Global Settlement, the Operating Assets of the Estate have been marketed for sale pursuant to the Sale / Procedures Motion and the Bid Procedures. To the extent not previously approved by the Bankruptcy Court prior to the Confirmation Hearing, at the Confirmation Hearing, the Bankruptcy Court shall approve the Sale of the Operating Assets to the Successful Bidder or Backup Bidder, as defined and provided in the Bid Procedures. The Purchaser shall be provided and be entitled to all protections provided under the Bankruptcy Code, including but not limited to the protection of Section 363(m) of the Bankruptcy Code. Further, it is the intent that the Debtor and Purchaser shall reasonably cooperate to effectuate the Sale of the Operating Assets in a tax efficient manner for the mutual benefit of the Estate and the Purchaser, provided however that this intent is not intended to vary in any respect the provisions of the Bid Procedures, Bid Procedures Order or APA. 7.3. Class Action Litigation.
7.3.1 Partial Settlement of Class Action. The Global Settlement provides for a partial settlement of the Class Action for class members who do not opt out after a notice 26
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period. Those remaining in the class are limited to the treatment specified in the Plan for their Claims, including any Member Deposit Claims that are Allowed pursuant to the provisions of the Term Sheet, and in seeking recovery of any judgment obtained in their favor solely from proceeds of the insurance policy and not from the Debtor or any of the other defendants in the Class Action Lawsuit. Those members of the Class who do not Opt Out of this settlement shall also be included in the mutual release described in the Term Sheet. The Global Settlement Order granted relief from the automatic stay to allow the Class Action Lawsuit to proceed against the Debtor with recovery limited to insurance proceeds, as provided in the Term Sheet. Class members who choose to opt out of the Class Action settlement will not receive the benefit of consensual allowance and treatment of any Member Deposit Claims asserted by such Class member, and will not benefit from any mutual releases provided pursuant to the Global Settlement. The Plan does NOT require the funding of any reserves to provide for any eventual Distribution to or on account of the disputed Claims of Class members who opt out of the Class Action Settlement. 7.3.2 The Debtor and Wilhelm make no representation or warranty that the claims asserted in the Class Action are covered by the insurance policy. The parties will seek court approval of the Class Action Settlement in the District Court for Eagle County as provided in the Term Sheet. 7.3.3 After approval of the Class Action Settlement by the Eagle County District Court, with respect to members who elect to opt out of the Class Action Settlement, the Debtor shall assign and transfer all claims and Causes of Action it could have or may have asserted against any member that opts out of the Class Action Settlement, to Wilhelm. Debtor's defense costs are covered under an insurance policy and Debtor shall continue to receive benefits under the policy in connection with ongoing litigation of the Class Action. 7.4. CTC Settlement Payment. On the Effective Date, the Debtor shall administer the remaining balance of the CTC Settlement Payment according to the provisions of the Plan, including: (i) the administration and disbursement of the Trade Claims Escrow, on behalf of, and as designated and earmarked by CPOA / CTC, to and for the benefit of the holders of Allowed General Unsecured Trade Claims against the Debtor as provided for in Class 6; and (ii) the administration and disbursement of the amount of $1 million, on behalf of, and as designated and earmarked by CPOA / CTC, to pay (a) the expenses of administration of the Estate, including all Professional Fee Claims of the Debtor and the Committee, and (b) non-member Allowed Priority Claims against the Debtor as provided for in Class 2. 7.5. Revesting of Estate Assets. Effective as of the Effective Date, all remaining Assets of the Debtor and the Estate, including the Retained Causes of Action, Excluded Assets as defined in the APA, including all Debtor's original books and records shall revest in the Reorganized Debtor, solely for purposes of administering the Plan, and for the benefit of Creditors of the Estate. The revesting of such Assets pursuant to the terms of the Plan, to the fullest extent permitted by law, shall be exempt from all stamp taxes and similar taxes within the meaning of section 1146(c) of the Bankruptcy Code. Specifically: (i) upon the Filing by the Debtor of its notice of the Effective Date, without the need for any further action by any Person 27
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or the Bankruptcy Court, all Retained Causes of Action held by the Estate against any Person, shall revest in the Reorganized Debtor for all purposes, except as otherwise expressly provided herein. Additionally, the Debtor, through its managing member, shall retain all original books and records and all necessary computer equipment to allow access to same, at the managing member's sole cost and expense, and shall maintain such books and records, and computer equipment the later of a period of three (3) years or entry of the Final Decree and thereafter shall transfer such books and records and computer equipment to the Purchaser, or, at the election of the Purchaser, in its sole discretion, may dispose of the books and records, and computer equipment in such manner as the managing member sees fit in its sole and absolute discretion. 7.6. General Corporate Matters. Dan L. Fitchett, Jr., or such other Person as may be appointed by the Court with the recommendation of the Debtor and Committee, shall act as the Plan Agent and shall take such action as is necessary under the laws of the State of Colorado, federal law, and other applicable law to effect the terms and provisions of the Plan, shall ensure that it is, and remains, in compliance with applicable federal, state and local laws, and shall otherwise comply with its obligations and duties under the Plan. Following the Effective Date, the Reorganized Debtor, through the Plan Agent, shall conduct no business other than the implementation of the Plan. Once the Reorganized Debtor, through the Plan Agent, has completed making Distributions provided for under the Plan, and provided that it is practical without adversely impacting the administration of the Plan, the Reorganized Debtor, through the Plan Agent, shall be discharged from its duties as Reorganized Debtor, and the Plan Agent shall promptly take such actions as are necessary and appropriate to wind down the Reorganized Debtor's affairs pursuant to the Plan. 7.6.1 Once the Reorganized Debtor, through the Plan Agent, has completed making Distributions provided for under the Plan, and provided that it is practical without adversely impacting the administration of the Plan, the Reorganized Debtor, through the Plan Agent, shall be discharged from its duties as Reorganized Debtor, and the Plan Agent shall promptly take such actions as are necessary and appropriate to wind down the Reorganized Debtor's affairs pursuant to the Plan. 7.6.2 The Plan Agent shall be authorized and entitled to execute any and all shareholder consents and/or resolutions reasonably necessary to cause such formal termination or other disposition if appropriate. On the Effective Date, the Debtor's articles, bylaws, operating agreements and other governing, formation and organizational documents, shall be deemed modified and amended to the extent necessary to effectuate this provision of the Plan and the Plan Agent, shall, pursuant to the Plan, be authorized and entitled to accomplish such modifications and amendments. 7.7. Cancellation of Notes and Instruments; Release of Liens. On the Effective Date, all promissory notes, stock certificates, or other instruments evidencing a Claim shall be cancelled and the holders thereof shall have no rights by reason thereof, and such instruments shall evidence no rights, except the right to receive the Distributions, if any, to be made to holders of such instruments under the Plan. Notwithstanding the foregoing, with respect to Equity Interests, holders shall receive the treatment provided for in Class 8, including that all documents and instruments evidencing the same and evidencing any ownership of the Debtor are to be retained in a manner as determined by Debtor and such Equity Holder, solely to effect a 28
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tax-neutral transaction whereby such interests receive no payment or distribution on account of such interests. 7.8. Exemption from Transfer Taxes. In accordance with section 1146(a) of the Bankruptcy Code, the making and/or delivery of any instrument of transfer of the Operating Assets under, or pursuant to the terms of, the Plan shall not be taxed under any law imposing a stamp tax or similar tax. The Confirmation Order shall direct the appropriate state or local government officials or agents to forego collection of any such tax or governmental assessment and to accept for filing and recordation instruments or other documents pursuant to such transfer of property without the payment of any such tax or governmental assessment. 7.9. The Committee. From and after the Effective Date, the Committee shall be deemed dissolved, shall no longer continue to act and shall have no further rights or responsibilities. 7.10. The Plan Agent.
7.10.1 Creation and Governance. Commencing on the Effective Date, the Debtor's continuing financial affairs shall be subject to review and approval by the Plan Agent. The Plan Agent shall be appointed in the Confirmation Order and shall serve until the earliest of resignation or replacement. The Plan Agent shall not incur liability to any Person by reason of the discharge of their duties as set forth herein, except in the case of gross negligence or willful misconduct. The Plan Agent shall receive hourly compensation at a flat rate to be determined, shall keep detailed time records of time spent on matters called for hereunder, and shall receive reimbursement of expenses from the Reorganized Debtor as a post-petition administrative expense. The Plan Agent shall set up a reserve fund in the amount of $______ which shall be funded from the CTC Settlement Payment, excluding the Trade Claims Escrow, for the payment of the Plan Agent's fees and expenses. 7.10.2 Rights and Powers. The Plan Agent shall have the following rights and powers: (a) to effectuate the Disbursements contemplated under the Plan; (b) to review and comment upon any proposed amendment to the Plan; provided, the Reorganized Debtor shall have the right to seek amendment as allowed by the Bankruptcy Code and Bankruptcy Rules notwithstanding that any such amendment is not consented to by the Plan Agent; (c) to request financial information from the Reorganized Debtor from time to time in its reasonable discretion, subject to a confidentiality agreement; (d) upon the occurrence of any Default under the Plan, to move the Bankruptcy Court for an order for appropriate relief; (e) to review and Retained Causes of Action and address whatever action is warranted and to commence, resolve, or settle any Retained Causes of Action or Avoidance Actions; (f) to administer and/or abandon any Excluded Assets as defined in the APA; and (g) to take such other actions expressly provided in the Plan. 7.11. Post-Confirmation United States Trustee Fees. The Reorganized Debtor shall pay post-confirmation fees pursuant to 28 U.S.C. section 1930 to the extent required by law. The amount of fees due the United States Trustee will be calculated based on applicable bankruptcy law as of the Confirmation Date; provided, that if such fees are thereafter eliminated or reduced, such lower amount shall apply.
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7.12. Post-Confirmation Retention and Payment of Professionals. The Plan Agent and Reorganized Debtor shall have the rights and powers provided for by the Plan. In carrying out their responsibilities under the Plan, the Plan Agent and Reorganized Debtor shall be entitled to employ such counsel as may be necessary, in their discretion, to assist in the performance of their duties under the Plan, without further order of the Bankruptcy Court. The Plan Agent shall set up a reserve fund in the amount of $_______ which shall be funded from the CTC Settlement Payment, excluding the Trade Claims Escrow, for the reserve fund or some other manner for payment of professional persons retained by the Plan Agent or Reorganized Debtor. 7.13. Payment of the Plan Agent and Professionals' Fees and Expenses After the Confirmation Date. Except as set forth herein to the contrary, the fees and costs of the Plan Agent and any professional persons employed by the Reorganized Debtor or Plan Agent after the Confirmation Date need not be approved by the Bankruptcy Court. Professional persons and Plan Agent may invoice the Plan Agent directly, and the Plan Agent may pay such invoices without further order of the Bankruptcy Court; provided, however, that in the event of a dispute between the Plan Agent and the professional person regarding such compensation or reimbursement, the professional person shall submit an application to the Bankruptcy Court for review of the request for compensation and reimbursement, and the Bankruptcy Court retains jurisdiction to hear and approve such application and order payment thereon. Such postConfirmation Date request for compensation for services rendered and reimbursement of expenses shall be considered an ordinary operating expense, and the Reorganized Debtor shall be liable for such expense with such liability capped at $________ for the Plan Agent and $________ for any professional persons employed by the Plan Agent or Reorganized Debtor. 7.14. Post-Confirmation Notices and Reports.
7.14.1 Within one hundred and twenty (120) days of the entry of the Confirmation Order, the Plan Agent shall file a status report with the Bankruptcy Court explaining what progress has been made toward consummation of the confirmed Plan and shall provide an accounting of the post-Effective Date administrative expenses of the Plan Agent and any professional person retained by the Reorganized Debtor or Plan Agent in connection with post-Effective Date administration. The status report shall be served on the United States Trustee, the Reorganized Debtor and those parties who have requested special notice after Confirmation. Further status reports shall be filed by the Plan Agent every one hundred and twenty (120) days thereafter and served on the same Persons. 7.14.2 Notice of Confirmation and Effective Date. The Debtor and/or the Reorganized Debtor shall serve notice of Confirmation Date within ten (10) days of entry of the Confirmation Order, and notice of the occurrence of the Effective Date within ten (10) days of its occurrence, upon all Creditors, Equity Interest Holders and other parties-in-interes. 7.15. Default Under the Plan.
7.15.1 Plan. Notwithstanding any contrary provision in the Plan, this Disclosure Statement, any pleading or other document filed in Bankruptcy Case, or any other document, contract or agreement, except as expressly provided therein otherwise, should the Reorganized Debtor fail in any material respect to timely perform its duties and commitments under the Plan, 30
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including, but not limited to, making the payments to Creditors called for hereunder, any party in interest adversely affected by such failure may give the Reorganized Debtor notice, in writing of such failure to perform (a "Notice of Default") in the manner specified in Article 12.14 of the Plan. If such underlying default is not cured within thirty (30) days of such Notice of Default, the adversely affected party may file a motion with the Bankruptcy Court, to be heard on no less than ten (10) days notice, to determine what relief may be appropriate because of such default, including, but not limited to, entry of an order to timely perform under the Plan, dismissal of the Bankruptcy Case, conversion of the Bankruptcy Case to a case under Chapter 7, or appointment of a trustee. 7.15.2 Cure of Prior Defaults. As of the Effective Date, except as provided for in the Plan, any defaults by any of the Debtor under any nonbankruptcy agreement shall be deemed cured, and any and all notices of default or sales given, filed or recorded by any Creditor prior to the Effective Date shall be deemed null and void, and shall have no further force or effect. 7.16. Final Decree. Once the Plan has been fully administered as referred to in Bankruptcy Rule 3022, the Reorganized Debtor, through the Plan Agent, shall file a motion with the Bankruptcy Court to obtain a final decree to close the Bankruptcy Case. Notwithstanding the entry of a final decree and/or the closing of the Bankruptcy Case, the Bankruptcy Court shall retain jurisdiction to hear and determine matters as set forth in Article XIII of the Plan, including without limitation to determine objections to Claims, adversary proceedings and tax matters, without reopening the Bankruptcy Case. 7.17. Section 1129(a) (4) Payments Subject to Bankruptcy Court Review. As required by section 1129(a)(4) of the Bankruptcy Code, all payments made or to be made by a Plan Proponent, or by the Debtor for services or for costs and expenses in or in connection with the Bankruptcy Case, or in connection with the Plan and incident to the Bankruptcy Case, are subject to approval of the Bankruptcy Court as reasonable. To the extent that any such payment is not subject to the procedures and provisions of sections 326-330 of the Bankruptcy Code, then such Bankruptcy Court approval shall be deemed to have been given through entry of the Confirmation Order unless, within ninety (90) days of such payment or request for such payment, the Bankruptcy Court, the United States Trustee, the party making the payment, or the party receiving the payment challenges or seeks approval of the reasonableness of such payment. No other parties or entities shall have standing to make such a challenge or application for approval. Nothing in this provision shall affect the duties, obligations and responsibilities of any entity under sections 326-330 of the Bankruptcy Code. 7.18. Limitations on Liability. Notwithstanding anything to the contrary contained in the Plan, on or after the Confirmation Date, and except to the extent covered by insurance, none of the Debtor (as Debtor and/or Debtor-in-possession), the Reorganized Debtor, the Plan Agent, the Committee members, nor any of their respective employees, shareholders, partners, directors, attorneys, accountants, representatives, agents or professional persons employed by any of them, shall have or incur any liability to any Person for actions taken or omitted to be taken in connection with or relating to the formulation or confirmation of the Plan, the Disclosure Statement or any contract, instrument, release or other agreement or document created in connection with the Plan, other than for willful misconduct or fraud. 31
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7.19. Bankruptcy Court Approval Relative to Post-Confirmation Matters. Nothing contained in the Plan shall be deemed to impair in any manner the right of any party in interest, including, without limitation, the Debtor, to seek at any time after the Confirmation Date orders of the Bankruptcy Court approving actions to be taken consistent with the Plan as may be necessary or desirable to effectuate the provisions of the Plan. ARTICLE VIII EFFECTS OF CONFIRMATION OF PLAN; RELEASES, PRESERVATION, INJUNCTION AND EXCULPATION 8.1. Binding Effect of Plan. Upon the Effective Date, the Plan and each of its provisions shall be binding on the Plan Proponents, the Debtor, the Reorganized Debtor, the all Creditors, all Equity Interest holders, and all Persons acquiring property under the Plan, whether or not they voted to accept the Plan, whether or not they had a right to vote on the Plan, whether or not any Claim, or Equity Interest held by any of them is Impaired under the Plan, whether or not any Claim or Equity Interest held by any of them is Allowed in full, only in part, or Disallowed in full, and whether or not a Distribution is made to any of them under the Plan. 8.2. Releases. Effective as of the Effective Date, unless previously effectuated by the Global Settlement Order and/or the Court(s) presiding over the CPOA / CTC Litigation and the Class Action, as applicable, the Debtor, CGH, WFP, CFB, WFPI, CGHM, CFB, Wilhelm and Patrick 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 the Global Settlement (subject to approval by the Court presiding over the Class Action), 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 CPOA / CTC Litigation 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, 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, arising out of any fact, matter, act or circumstance from the beginning of time to the Effective Date of the Plan that relates to the Bankruptcy Case, the CPOA / CTC Litigation, the Class Action or the Club, and all matters related, connected or incidental thereto. 8.2.1 Without limiting the generality of the foregoing: (a) all claims in the CPOA / CTC Litigation are resolved pursuant to the Global Settlement and the terms of the Plan, and the plaintiffs in the CTC Lawsuit shall file a Notice of Dismissal with prejudice with the Court presiding over the CPOA / CTC Litigation upon payment of the CTC Settlement Payment; 32
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(b)
any claims against any Club 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 the Petition Date related to actual use of the Club or actual receipt of actual services from the Debtor (including, without limitation, food, drink or use of the golf facilities) shall not be released. Further, all members who have or in the future resign from the Club are hereby released from any liability associated with the Membership Documents, including any obligation to continue paying dues for any period into the future; Members are deemed to have waived claims arising out of the rejection of the Membership Documents, save and except only Member Deposit Claims.
(c)
8.2.2 Notwithstanding any other provision of section 7.2 of the Plan, the releases provided in the Plan shall not extend to the following: (a) The Claims asserted by the Member Representatives and the members of the certified class represented by the Member Representatives in the Class Action, nor to any of the defenses and offsets thereto in the Class Action Lawsuit by the Debtor, CGH, WFP, WFPI, CFB, CGHM, Wilhelm and Patrick 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. The Debtor, CGH, WFP, CFB, WFPI, CGHM, Wilhelm, and Patrick Wilhelm make no representation regarding the existence or availability of any insurance coverage for the Class Action 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, pursuant to C.R.C.P. 26(a)(1), with respect to insurance coverage, is true, accurate and complete. Nothing in the Plan or the Global Settlement 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 Patrick 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 shall not execute any judgment or assert any claim for attorneys' fees or costs against the assets of Debtor, CGH, WFP, CFB, WFPI, CGHM, Wilhelm or Patrick
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Wilhelm, other than their rights to any applicable insurance coverage; (b) The Member Deposit Claims shall be deemed allowed (to the extent such members file timely proofs of claim), but subordinated as provided in section 4.7 of the Plan; provided, 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; Any claim of any Party for a breach of any obligation imposed by the Plan or the Global Settlement; Any Allowed Secured Tax Claim; The Allowed Pre-Petition Secured Claim and Allowed Secured DIP Claim of Alpine Bank; The Allowed Secured Claim of Wilhelm; and Claims, if any, which the Debtor, CGH, CFB, WFP, WFPI, CGHM, Wilhelm or Patrick Wilhelm may have against any member who exercises the right to opt out of the Class Action Settlement.
(c) (d) (e) (f) (g)
8.3. Releases by Holders of Claims and Equity Interests. Except as otherwise specifically provided in the Plan and to the extent permitted by applicable law and approved by the Bankruptcy Court, other than the right to enforce the Plan, for and in consideration of the Plan treatment, each holder of a Claim or Equity Interest voting in favor of the Plan or failing to opt out of the Global Settlement before the Court presiding over the Class Action shall be deemed to forever release, waive and discharge the Debtor, the Committee, the Plan Agent, the Purchaser, their respective attorneys, consultants and advisors, of and from any and all Claims, demands, causes of action and the like, relating to the Debtor or the Bankruptcy Case, existing as of the Effective Date or thereafter arising from any act, omission, event, or other occurrence that occurred on or prior to the Effective Date, whether direct or derivative, liquidated or unliquidated, fixed or contingent, matured or unmatured, disputed or undisputed, known or unknown, foreseen or unforeseen, in law, equity or otherwise. 8.4. Preservation of Claims and Causes of Action. Except as otherwise determined by the Bankruptcy Court and subject to any releases in the Plan, (a) all Causes of Action, including, without limitation, all of the Causes of Action arising under chapter 5 of the Bankruptcy Code, shall be waived and released by the Debtor, except for the Retained Causes of Action which are retained for assertion by the Reorganized Debtor and shall revest in the Reorganized Debtor. The Plan Agent shall have the authority and standing to prosecute, enforce, pursue, sue, settle or compromise (or decline to do any of the foregoing) Retained Causes of Action in the name of the Reorganized Debtor or Estate, and shall be deemed appointed as the 34
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representative of the Reorganized Debtor and its Estate in accordance with section 1123(b)(3) of the Bankruptcy Code for the purposes of same. 8.5. Causes of Action. The Debtor, prior to the Effective Date, and the Plan Agent shall have the power and authority to prosecute, compromise or otherwise resolve Causes of Action and Avoidance Actions. Avoidance Actions shall be brought by the Avoidance Action Date. Confirmation of the Plan affects no settlement, compromise, waiver or release of any Cause of Action or Avoidance Action unless the Plan or Confirmation Order specifically and unambiguously so provides. The failure to disclose, describe or mention any particular Cause of Action, including without limitation any Avoidance Action, is not and shall not be construed as a settlement, compromise, waiver or release of such Cause of Action or Avoidance Action and the Plan Proponents disavow any res judicata, preclusive or other effect that entry of the Confirmation Order may have on the standing of the Reorganized Debtor or Plan Agent to pursue, prosecute, and/or recover upon, such Cause of Action or Avoidance Action. Notwithstanding the rights of the Debtor, Reorganized Debtor or Plan Agent with respect to Causes of Action and Avoidance Actions, nothing in the Plan shall require the Debtor or the Plan Agent to prosecute or litigate any such matters. The Claims Objection Date shall not apply to Causes of Action seeking affirmative relief, recovery or offset, whether initiated by the filing of a complaint, motion, counterclaim or otherwise, and regardless of whether the Cause of Action could be or could have been a basis for an objection to a Claim. Any net proceeds realized from pursuit of Causes of Action will be made available for Distribution on Allowed Claims in accordance with the provisions of the Plan (provided, no Claim holder shall be entitled to receive a greater amount than the amount of its Allowed Claim). Notwithstanding anything herein to the contrary, and as set forth in more detail in this Disclosure Statement, the Debtor is unaware of any Cause of Action or Avoidance Action which it currently is aware of, or intends to pursue or for the Plan Agent to pursue, other than the Claims and Causes of Action held by the Debtor against Claimants who Opt Out of the Global Settlement before the Class Action Court, which Claims and Causes of Action shall be transferred and assigned to Wilhelm. 8.5.1 Notwithstanding the foregoing, effective upon the date on which the Global Settlement is approved by the Court presiding over the Class Action, 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 Global Settlement shall be transferred and assigned to Wilhelm. 8.6. Compromise of Controversies. After the Effective Date, all Claims and Causes of Action may be settled by the Plan Agent and/or the Reorganized Debtor without notice and a hearing and without an order of the Bankruptcy Court. In the event Bankruptcy Court approval for any such settlement is sought, Bankruptcy Court approval of compromises of any controversies relating to objections to Claims, Causes of Action and any litigation pending after the Effective Date may be obtained on an expedited basis after the Effective Date. Notice of any such proposed compromise shall be provided to the following entities: (i) the Reorganized Debtor and the Reorganized Debtor's counsel; (ii) the Plan Agent; (iii) the United States Trustee; and (iv) any Creditor who files and serves upon the Debtor and its counsel after the Confirmation Date a request for special notice of any such compromises. Objections to any such proposed compromise shall be filed within ten (10) Business Days (without extension due to service by mail) after service of the notice of the proposed compromise. In the event that no objections to the proposed compromise are timely filed, the compromise shall be deemed approved, and an 35
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order may be entered by the Bankruptcy Court approving the compromise, without the need for further notice or hearing with respect thereto. Nothing herein shall preclude seeking the approval of any controversy in any other manner permitted by the Bankruptcy Code, the Bankruptcy Rules or the Plan. 8.7. Injunction Against Interference with Plan. Upon the Effective Date:
8.7.1 All holders of Claims, all Creditors, all holders of Equity Interests, all Persons acquiring property under the Plan, and all other parties in interest in the Bankruptcy Case, along with their respective current and former attorneys, counselors, consultants, officers, directors, principals, trustees, trust representatives, employees and agents, shall be and are hereby enjoined from taking any action to interfere with the implementation or consummation of the Plan or in violation of the provisions thereof; 8.7.2 The Approving Parties shall be and are hereby enjoined from making disparaging statements about one another in future communications with third parties; 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, 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; and 8.7.3 In the event a of Action, Claim, or suit is asserted that violates the provisions of section 8.7.1 or 8.7.2, the Bankruptcy Court shall retain sole and exclusive jurisdiction over such action, Claim or suit. 8.8. Term of Injunctions or Stays. Unless otherwise expressly provided in the Plan or in the Confirmation Order, all injunctions and stays provided for pursuant to Bankruptcy Code sections 105 or 362 or otherwise and in existence on the Confirmation Date shall remain in full force and effect until entry of a Final Decree or other Order of the Bankruptcy Court providing otherwise, whichever is later. 8.9. Exculpation. On the Effective Date, and without the need for further action, the Plan and Confirmation Order shall constitute a release and discharge of all actions, Causes of Action, Claims, suits, debts, damages, judgments, liabilities, and demands whatsoever, whether matured or unmatured, whether at law or equity, whether before a local, state, or federal court, state or federal agency or commission, regardless of location and whether now known or unknown, liquidated or unliquidated, that any Person may have or be able to assert, solely for any actions or inactions taken by the following in, or arising against the following as a result of, the Bankruptcy Case, the Plan, the Disclosure Statement, the Global Settlement, the Sale, or any other Plan Document, against the Debtor, the Committee, the Committee's members, the Plan Agent, the CRO, Alpine Bank, Wilhelm Parties, the Member Representatives, or any of their respective employees, officers, agents, attorneys, members or interest holders (collectively, the "Exculpated Parties"); provided, however, that nothing contained in the Plan or the Confirmation Order shall relieve any of the foregoing from the requirements applicable to the allowance of an Administrative Claim or a Professional Fee Claim if approval from the Bankruptcy Court for 36
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such allowance is required, and no defenses to said allowance are waived or released. Notwithstanding the foregoing, nothing therein shall be construed as a release of liability of the Exculpated Parties for willful misconduct. In the event a cause of action, claim, or suit is asserted against one or more of the Exculpated Parties following the Effective Date, the Bankruptcy Court shall retain sole and exclusive jurisdiction over such action. ARTICLE IX DISTRIBUTIONS UNDER THE PLAN 9.1. Distributions Generally. The Reorganized Debtor, through the Plan Agent, shall make Distributions to the holders of Allowed Administrative Claims, Professional Fee Claims, and Allowed Claims in Classes 1 through 7, on the terms set forth herein. Any holder of an Allowed Claim may receive, instead of the Distribution or treatment to which it is entitled under the Plan, any other Distribution or treatment that it and the Reorganized Debtor, as applicable, may agree in writing, so long as such alternative treatment is substantially the same or less favorable to that holder than the treatment otherwise prescribed herein. 9.2. Form of Distributions. Any Cash payment to be made pursuant to the Plan may be made by check or wire transfer, at the option of the Reorganized Debtor, in its sole discretion. 9.3. Conditions to Distributions; Warranty of Entitlement. Except as otherwise specifically provided herein, each and every Creditor who receives and accepts a Distribution under the Plan on account of an Allowed Claim or Allowed Equity Interest is deemed to have warranted the Reorganized Debtor that such Creditor / Equity Interest holder is the lawful holder of the Allowed Claim, is authorized to receive the Distribution, and that there are no outstanding commitments, agreements or understandings, express or implied, that may or can, in any way, defeat or modify the right of the Creditor to receive the Distribution. 9.4. Withholding Taxes. In connection with the Plan, to the extent applicable, the Reorganized Debtor and Plan Agent shall comply with all tax withholding and reporting requirements validly imposed on the Reorganized Debtor by any governmental authority, and all Distributions pursuant hereto shall be subject to such withholding and reporting requirements. Notwithstanding any provision in the Plan to the contrary, the Reorganized Debtor and the Plan Agent shall be authorized to take all actions necessary or appropriate to comply with such withholding and reporting requirements, including, without limitation, payment of applicable withholding taxes from a Claim holder's Distribution, and conditioning a Person's Distributions upon receipt of necessary tax reporting information from a Claim holder. 9.5. Setoffs. Except as otherwise expressly provided in the Plan, including with respect to the Allowed Secured Claims of Alpine Bank and Wilhelm, which were Allowed per the Term Sheet and Global Settlement Order, and pursuant to sections 502(d) or 553 of the Bankruptcy Code or any applicable non-bankruptcy law, the Reorganized Debtor may upon application and approval by the Bankruptcy Court, setoff against any Distribution to be made pursuant to the Plan on account of an Allowed Claim any claims, rights or Retained Causes of Action held by the Reorganized Debtor against the holder of the Allowed Claim or in relation to the Allowed Claim; provided, however, that neither the failure to effect such a setoff nor the allowance of any Claim shall constitute a waiver or release by the Reorganized Debtor of any 37
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such claims, rights or Causes of Action. If the Reorganized Debtor fails to setoff against a Claim and seeks to collect from the holder of such Claim or Equity Interest after Distribution to that holder, the Reorganized Debtor shall nevertheless to be entitled to collect obligations arising on account of any Retained Cause of Action. 9.6. Rounding. Where the calculation of a Distribution results in a fraction of a cent owing, the calculation shall be rounded down to the nearest whole cent for purposes of paying (or reserving) the Distribution. 9.7. De Minimis Distributions. Notwithstanding any provision of the Plan to the contrary, no Distribution of less than twenty-five dollars ($25.00) shall be made on an Allowed Claim or from the Estate. 9.8. Undeliverable and Unclaimed Distributions.If the Distribution to any holder of an Allowed Claim or Allowed Equity Interest is returned to the Reorganized Debtor as undeliverable, no further Distributions will be made to such holder unless and until the Reorganized Debtor is notified in writing of such holder's current address; provided, however, a claim for an undeliverable Distribution must be made within sixty (60) days following the date of issuance of the original Distribution. After such date, all unclaimed property shall revert to the Estate for further disbursement in accordance with the Plan, and the Claim / Equity Interest of any holder or successor to such holder with respect to such property shall be discharged, disallowed, and forever barred notwithstanding any federal or state escheatment laws to the contrary. 9.8.1 The Reorganized Debtor has no obligation to independently undertake any investigation to determine the whereabouts of any holder of an Allowed Claim or Equity Interest. ARTICLE X PROCEDURES FOR RESOLVING DISPUTED CLAIMS 10.1. Objections to Claims. An objection to the allowance of any pre-petition Claim shall be in writing and must be Filed by the Claims Objection Date. Except as otherwise expressly 10.2. Late-Filed Claims and Amendments. contemplated by the Plan, no proof of Claim may be Filed in the Bankruptcy Case following the Bar Date to assert a Claim against the Debtor or Estate without prior authorization of the Bankruptcy Court, and any such proof of Claim which is Filed without such authorization shall be deemed null, void and of no force or effect; provided, however, that the holder of a Claim that has been timely filed shall be permitted to File an amended proof of Claim in relation to such Claim at any time if the sole purpose of the amendment is to assert a Claim of equal or lessor priority and a reduced amount. 10.3. Disputed Distributions. No Distribution will be made on account of a Disputed Claim or Equity Interest unless and until it becomes Allowed. Upon a request for estimation by the Reorganized Debtor, the Bankruptcy Court will determine what amount of Cash is sufficient to reserve on account of any Disputed Claim not otherwise treated in the Plan pursuant to section 502 of the Bankruptcy Code or applicable law; in which case, the amount so determined by the Bankruptcy Court shall be deemed the Allowed amount of such Disputed Claims for purposes of 38
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the Plan or, in lieu thereof, the Bankruptcy Court will determine the maximum amount to which such Claim may be ultimately Allowed. Upon motion by the Reorganized Debtor or the holder in question, the Bankruptcy Court may determine the appropriate amount of any Disputed Claim Reserve required in connection with a Disputed Claim. In the event that a dispute arises as to the rightful owner of an Allowed Claim or a Distribution thereon, the Reorganized Debtor may either (a) deposit the Distribution, if Cash, into a segregated account until a determination is made as to the rightful owner of the Distribution by the Bankruptcy Court or by written agreement between each of the Persons making claim to the Distribution, or (b) interplead the Distribution into the registry of the Bankruptcy Court or such other court having jurisdiction over the Disputed Distribution and the Persons making claim to such Distribution, reserving the right to assert any and all claims that the Reorganized Debtor may have in relation to such interpleader action; provided, however, that once segregated or interplead, any interest shall cease to accrue on an Allowed Claim. ARTICLE XI LIQUIDATION ANALYSIS 11.1. Liquidation Analysis. The Operating Assets of the Debtor are being liquidated at auction under the Plan. By definition, Creditors shall receive under the Plan at least as much as they would if a chapter 7 liquidation were held. ARTICLE XII REQUEST FOR FINDING OF FAIR AND EQUITABLE TREATMENT OF IMPAIRED CLASSES 12.1. Section 1129(b) Rights (Cramdown). The Debtor and Committee, as the proponents of the Plan, pursuant to the terms of the Plan request, pursuant to Section 1129(b) of the Bankruptcy Code, that the Bankruptcy Court find and determine that the provisions of the Plan provide fair and equitable treatment to those Classes which are impaired under the Plan and which elect not to accept the Plan, and that the Bankruptcy Court confirm the Plan notwithstanding the requirement of Section 1129(a)(8) of the Bankruptcy Code as to such Classes. If any impaired Class does not accept the Plan, the Plan Proponents may modify the Plan to the extent, if any, that Confirmation of the Plan under Section 1129(b) of the Bankruptcy Code requires such modification in a manner that does not require amendment of this Disclosure Statement and re-solicitation of acceptance and rejections of the Plan. The Plan Proponents also reserve the right to modify the Plan in any manner that does require such amendment or solicitation. ARTICLE XIII CONDITIONS PRECEDENT TO CONFIRMATION AND EFFECTIVENESS OF PLAN 13.1. Conditions to Confirmation. The Bankruptcy Court shall have entered the Confirmation Order in a form and substance satisfactory to the Plan Proponents and shall include, among other things, findings of fact and/or conclusions of law that: (a) enjoin and restrain all Creditors and Equity Interest holders from asserting any Lien, Claim, interest, or encumbrance against the Debtor, the Estate or any Asset of the Debtor or Estate, unless such 39
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Lien, Claim, interest or encumbrance is expressly reserved hereunder or under the Global Settlement Order; (b) reserve jurisdiction of the Bankruptcy Court to implement and enforce the Plan; (c) to the extent not previously approved, approve of the Sale of the Operating Assets to the Purchaser; and (d) provide, pursuant to section 1125(e) of the Bankruptcy Code, that Persons who have solicited acceptances or rejections of the Plan have acted in good faith and in compliance with the provisions of the Bankruptcy Code, and are not liable on account of such solicitation or participation for violation of any applicable law, rule, or regulation governing the solicitation of acceptances or rejections of the Plan. 13.2. Conditions to Effective Date. The following are conditions precedent to the occurrence of the Effective Date, each of which must be satisfied or waived by the Plan Proponents in accordance with the terms thereof: (a) (b) consummated. 13.3. Waiver of Conditions. The conditions to Confirmation or the Effective Date may be waived in whole or in part by the Plan Proponents, collectively, at any time without an order of the Bankruptcy Court. 13.4. Effect of Nonoccurrence of Conditions to the Effective Date. If each of the conditions to the Effective Date is not satisfied or duly waived, then upon motion by the Debtor or Committee made before the time that each of such conditions has been satisfied or duly waived and upon notice to such parties in interest as the Bankruptcy Court may direct, the Confirmation Order will be vacated by the Bankruptcy Court; provided, however, that, notwithstanding the filing of such motion, the Confirmation Order may not be vacated if each of the conditions to the Effective Date is either satisfied or duly waived before the Bankruptcy Court enters a Final Order granting such motion. If the Confirmation Order is vacated (1) the Plan will be null and void in all respects, and (2) nothing contained in the Plan will: (a) constitute a waiver or release of any Claims by or against, or any Equity Interest in, the Debtor or the Estate; or (b) prejudice in any manner the rights of the Debtor, the Estate or any other party in interest. ARTICLE XIV MODIFICATION/AMENDMENT OF PLAN 14.1. Modification of Plan. The Plan Proponents reserve the right, in accordance with the Bankruptcy Code, to amend or modify the Plan prior to the Confirmation Date. After the Confirmation Date, the Plan Proponents may, upon Order of the Bankruptcy Court, amend or modify the Plan in accordance with section 1127(b) of the Bankruptcy Code, or remedy any defect or omission or reconcile any inconsistency in the Plan in such manner as may be necessary to carry out the purposes and intent of the Plan. The Confirmation Order shall have become a Final Order; and The transactions detailed under the APA shall have been
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ARTICLE XV EFFECT OF CONFIRMATION THE PROPONENTS ARE NOT OFFERING TAX ADVICE TO ANY CREDITOR AND THIS DISCLOSURE STATEMENT SHOULD NOT BE CONSIDERED TO CONTAIN ANY SPECIFIC ADVICE OR INSTRUCTION CONSIDERING THE TAX TREATMENT OF ANY CLAIM OR INTEREST. EACH CREDITOR IS URGED TO CONSULT WITH ITS OWN LEGAL, ACCOUNTING OR OTHER ADVISOR CONCERNING THE TAX TREATMENT OF ITS CLAIM OR ANY DISTRIBUTION FROM OR ON BEHALF OF DEBTOR PURSUANT TO THE PLAN OR OTHERWISE. 15.1. Discharge. The rights afforded in the Plan and the treatment of all Claims and Interests therein shall be in exchange for and in complete satisfaction, discharge and release of all Claims and Interests of any nature, whatsoever, including, any interest accrued on such Claims from and after the Petition Date against the Debtor or any of its Assets or properties. Pursuant to section 1141(d)(1) of the Bankruptcy Code, effective upon Confirmation of the Plan with respect to all Interests and Claims, the Debtor shall receive the broadest discharge possible consistent with the express terms of the Plan. More particularly, other than as provided otherwise in the Plan or Global Settlement, occurrence of Confirmation of the Plan with respect to all Interests and Claims shall be deemed to discharge and release the Debtor to the fullest extent permitted by section 1141 of the Bankruptcy Code from any debt, Claim or Interest that arose before the Confirmation Date, including any debt or Claim of a kind specified in sections 502(g), 502(h) or 502(i) of the Bankruptcy Code, whether or not (i) a proof of Claim based upon such debt is filed or deemed filed under the Bankruptcy Code section 501, (ii) such Claim is allowed under Bankruptcy Code section 502, or (iii) the holder of such Claim has accepted the Plan. Pursuant to Bankruptcy Code section 524, upon Confirmation of the Plan, the discharge, (i) voids any judgment at any time obtained to the extent that such judgment is the determination of the personal liability of the Debtor with respect to any debt discharged under Bankruptcy Code section 1141, whether or not discharge of such debt is waived, and (ii) operates as an injunction against the commencement or continuation of an action, employment of process, or an act to collect, recover or offset any such debt as a personal liability of the Debtor, whether or not discharge of such debt is waived, and all Persons shall be precluded from asserting against the Debtor, the Reorganized Debtor, their successors or their assets or properties any other future claims or interests based upon any act or omission, transaction or other activity of any kind or nature that occurred before the Confirmation Date. Except as otherwise provided in the Plan or the Confirmation Order and in addition to the injunction provided under sections 524(a) and 1141 of the Bankruptcy Code, on and after the Confirmation Date, all Persons who have held, currently hold or may hold a debt, Claim or Interest discharged or to be discharged under the Plan are permanently enjoined from taking any of the following actions on account of any such discharge, debt, claim or interest to the extent such actions do not comply with or are inconsistent with the provisions of controlling law, the Plan or the Confirmation Order: (1) commencing or continuing in any manner any action or other proceeding against the Debtor, the Reorganized Debtor, their successors, or their respective properties; (2) enforcing, attaching, collecting or recovering in any manner any judgment, award, 41
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decree or order against the Debtor, the Reorganized Debtor, their successors, or their respective property; (3) creating, perfecting, or enforcing any lien or encumbrance against the Debtor, the Reorganized Debtor, their successors or their respective property; (4) asserting any setoff, right of subrogation or recoupment of any kind against any obligation due the Debtor, the Reorganized Debtor, their successors, or their respective property; and (5) commencing or continuing any action in any manner, in any place. Any Person injured by any willful violation of such injunction may recover actual damages, including costs and attorneys' fees and, in appropriate circumstances, may recover punitive damages from the willful violator. 15.2. Binding Effect. The provisions of the Plan, once confirmed, shall be binding upon each Creditor and Equity Interest Holder, and any entity acquiring Property under the Plan, whether or not the Claim of such Creditor or Equity Interest Holder is Impaired under the Plan, and whether or not such Creditor or Interest Holder has accepted the Plan. ARTICLE XVI PROVISIONS FOR RETENTION OF JURISDICTION 16.1. Retention of Jurisdiction. Notwithstanding entry of the Confirmation Order, or the entry of a final decree, with respect to the Bankruptcy Case, the Bankruptcy Court shall retain sole and exclusive jurisdiction from and after the Effective Date, to the fullest extent legally permitted, over the Bankruptcy Case, all proceedings arising under, arising in or related to the Bankruptcy Case, the Confirmation Order, the Plan and administration and implementation of the Plan and Global Settlement, including, without limitation, jurisdiction to: (a) determine (i) any Disputed Claims and Equity Interests, and all related Claims accruing after the Confirmation Date including rights and liabilities under contracts giving rise to such Claims, (ii) the validity, extent, priority, and nonavoidability of consensual and nonconsensual Liens and other encumbrances, and (iii) preconfirmation tax liability pursuant to section 505 of the Bankruptcy Code; the Allowance, disallowance, estimation, liquidation or other determination of any Claim or Equity Interest against or in the Debtor and to enter or enforce any Order requiring the Filing of any such Claim or Equity Interest before a particular date; determine any request for payment of an Administrative Claim or Professional Fee Claim entitled to priority under section 507(a)(1) of the Bankruptcy Code, including compensation, fees and reimbursements of parties entitled thereto; resolve disputes concerning any reserves with respect to Disputed Claims, the administration thereof, or relating to the garnishment of any Distributions payable under the terms of the Plan;
(b)
(c)
(d)
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(e)
approve all matters related to the rejection of any executory contract or unexpired lease of the Debtor pursuant to section 365 of the Bankruptcy Code and the Plan; implement the provisions of the Plan and Global Settlement and enter Orders in aid of confirmation, enforcement and consummation of the Plan, including any disputes concerning the interpretation, enforceability or applicability of the releases, discharge provisions and injunctions contained herein or therein, and to issue such Orders in aid of execution of the Plan as authorized by section 1142 of the Bankruptcy Code; modify the Plan pursuant to section 1127 of the Bankruptcy Code; adjudicate any and all Retained Causes of Action, including without limitation, any remands of appeals; determine any and all applications, claims, pending adversary proceedings, and contested matters in this Bankruptcy Case; enter and implement such Orders as may be appropriate in the event the Confirmation Order is for any reason stayed, revoked, modified, or vacated; consider any modifications of the Plan, to cure any defect or omission, or reconcile any inconsistency in any Order of the Bankruptcy Court, including, without limitation, the Confirmation Order; recover all Assets of the Debtor, the Reorganized Debtor, and property of the Estate, wherever located, including any Retained Cause of Action; resolve matters concerning state, local, and federal taxes in accordance with sections 346, 505, and 1146 of the Bankruptcy Code; hear any other matter not inconsistent with the Bankruptcy Code; resolve controversies and disputes regarding the interpretation of the Plan, Global Settlement or Sale and documents executed in connection therewith; and approve settlements relating to any of the above.
(f)
(g) (h) (i) (j)
(k)
(l)
(m)
(n) (o)
(p)
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ARTICLE XVII GENERAL PROVISIONS 17.1. Service of Pleadings and Notices. Unless and until otherwise directed, any pleading, notice or other document required or permitted by the Plan to be served on or delivered to the Debtor, the Reorganized Debtor or the U.S. Trustee, as the case may be, shall be sent by U.S. first class mail, postage prepaid, to: Debtor / Reorganized Debtor: FOLEY & LARDNER LLP Attn: Christopher Celentino 402 West Broadway, Suite 2100 San Diego, California 92101 Facsimile: 619-234-3510 Email: ccelentino@foley.com Committee: MUNSCH HARDT KOPF & HARR, P.C. Attn: Russell L. Munsch Jay H. Ong 3800 Lincoln Plaza 500 N. Akard Street Dallas, Texas 75201-6659 Facsimile: (214) 978-4335 Email: rmunsch@munsch.com Plan Agent Dan L. Fitchett, Jr. P.O. Box 988 Edwards, Colorado 81632 Facsimile: 970-926-5934 Email: Fitchettjr@gmail.com
United States Trustee: Office of the United States Trustee Attn: Paul Moss 999 18th Street, Ste. 1551 Denver, Colorado 80202 Facsimile : 303-312-7259 Email: Paul.Moss@usdoj.gov
17.2. Headings. Each heading preceding an article, section or paragraph of this Disclosure Statement is inserted for convenience only and shall not affect interpretation or construction of the Disclosure Statement. 17.3. Severability. Should any term or provision of the Plan be determined by the Bankruptcy Court to be invalid, void or unenforceable, such determination shall in no way limit or affect the enforceability or operative effect of any other provision of the Plan. If any term or provision of the Plan is of such a character as to deny Confirmation, the Plan Proponents reserve the right to strike such provisions from the Plan and seek Confirmation of the Plan as modified. Notwithstanding any such holding, alteration, or interpretation, the remainder of the terms and provisions of the Plan will remain in full force and effect and will in no way be affected, Impaired or invalidated by such holding, alteration or interpretation. The Confirmation Order will constitute a judicial determination and will provide that each term and provision of the Plan, as it may have been altered or interpreted in accordance with the foregoing, is valid and enforceable pursuant to its terms. 17.4. Governing Law. Except to the extent that the Bankruptcy Code or Bankruptcy Rules are applicable, the rights and obligations arising under the Plan shall be governed by and construed and enforced in accordance with the laws of the State of Colorado.
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17.5. Computation of Time. In computing any period of time prescribed or allowed by the Plan, the provisions of Bankruptcy Rule 9006 shall apply unless otherwise set forth in the Plan or determined by the Bankruptcy Court. 17.6. Changes in Rates Subject to Regulatory Commission Approval. The Debtor is not subject to governmental regulatory commission approval of any rates. 17.7. Bankruptcy Court Approval Relative to Post-Confirmation Matters. Except as otherwise expressly provided in the Plan, nothing contained in the Plan shall be deemed to impair in any manner the right of any party in interest, including, without limitation, the Debtor, to seek at any time after the Confirmation Date orders of the Bankruptcy Court approving actions to be taken consistent with the Plan as may be necessary or desirable to effectuate the provisions of the Plan. ARTICLE XVIII PLAN PROPONENTS' SOLICITATION OF ACCEPTANCES OF THE PLAN The Plan Proponents believe that the Plan will provide the best distribution that is possible in the Bankruptcy Case. The Plan Proponents urges you to vote to accept the Plan. To accept or reject the Plan, the Ballot must be returned to the place and by the time specified on the Ballot. Dated: November 2, 2012 FOLEY & LARDNER LLP By: /s/ Christopher Celentino Christopher Celentino (CA No. 131688) Mikel Bistrow (CA No. 102978) Dawn A. Messick (CA No. 236941) Admitted Pro Hac Vice 402 West Broadway, Suite 2100 San Diego, CA 92101 Telephone: 619-234-6655 Facsimile: 619-234-3510 Email: ccelentino@foley.com Email: mbistrow@foley.com Email: dmessick@foley.com ATTORNEYS FOR DEBTOR AND DEBTOR IN POSSESSION AND
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SENDER & WASSERMAN, P.C. Harvey Sender (CO No. 7546) 1660 Lincoln Street, Suite 2200 Denver, CO 80264 Telephone: 303-296-1999 Facsimile: 303-296-7600 Email: sender@sendwass.com ATTORNEYS FOR DEBTOR AND DEBTOR IN POSSESSION
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SCHEDULE 1 DEFINITIONS 1.1 "Administrative Claim": A Claim for payment of an administrative expense of a kind specified in section 503(b) of the Bankruptcy Code and referred to in section 507(a)(2) of the Bankruptcy Code, including, without limitation, the actual, necessary costs and expenses incurred on or after the Petition Date for preserving the Debtor's Estate, any actual and necessary costs and expenses of operating the Debtor's business incurred on or after the Petition Date but prior to the Effective Date (including any Claim incurred in the ordinary course of the Debtor's business which may be paid in the ordinary course of the Debtor's business without Order of the Bankruptcy Court), any indebtedness or obligations incurred or assumed by the Debtor's Estate in connection with the conduct of the Debtor's business on or after the Petition Date and prior to the Effective Date, compensation for legal and other professional services and reimbursement of expenses awarded under sections 330(a) or 331 of the Bankruptcy Code, outside vendor costs incurred in connection with the duplication and service of this Disclosure Statement, Plan, Ballots and notices associated with the Plan and Confirmation Hearing, and all fees and charges assessed against the Debtor's Estate under Chapter 123, Title 28, United States Code. 1.2 "Administrative Claims Bar Date": (I) November 27, 2012, with respect to any Claims arising pursuant to section 503(b)(9) of the Bankruptcy Code for the value of goods received by the Debtor within twenty days before the Petition Date and sold to the Debtor in the ordinary course of its business, as Ordered by the Court pursuant to its Order Setting Administrative Claims Bar Date For Claims Under 11 U.S.C. 503(b)(9), entered on September 18, 2012 [Docket No. 460]; and (II) for all other Administrative Claims, including Professional Fee Claims, the first date that is fifteen (15) days following the Effective Date, unless not a Business Day, in which case the Administrative Claims Bar Date with respect to such Claims will be the first Business Day thereafter. 1.3 "Allowed": When used with respect to a Claim or Equity Interest, means the Claim or Equity Interest (as applicable) (a) to the extent that it is listed in the Schedules in a liquidated, non-contingent, and undisputed amount, but only if no proof of Claim or proof of Equity Interest is Filed with the Bankruptcy Court to evidence such Claim or Equity Interest on or before the Bar Date; or (b) any Equity Interest registered in the Debtor's books and records as of the Petition Date; or (c) as evidenced by a proof of Claim or proof of Equity Interest Filed on or before the Bar Date, but only to the extent asserted in a liquidated amount, and only if no objection to the allowance of the Claim or Equity Interest and no motion to expunge the proof of Claim or Equity Interest is pending at the time of the Confirmation Hearing; or (d) to the extent allowed by a Final Order of the Bankruptcy Court. 1.4 "Allowed Administrative Claim": All or that portion of an Administrative Claim which (a) is or becomes an Allowed Claim, (b) was incurred on or after the Petition Date, but prior to the Effective Date, in the ordinary course of the Debtor's business which may be paid in the ordinary course of the Debtor's business without Order of the Bankruptcy Court, or (c) constitutes a fee or charge assessed against the Estate under Chapter 123, Title 28, United States Code.
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1.5 "Allowed General Unsecured Claim": Unsecured Claim which is or becomes an Allowed Claim.
All or that portion of a General
1.6 "Allowed Priority Claim": All or that portion of a Priority Claim which is or becomes an Allowed Claim. 1.7 "Alpine" or "Alpine Bank": Alpine Bank, a Colorado State chartered bank.
1.8 "APA": The Purchase and Sale Agreement between the Purchaser and the Debtor memorializing the Sale transaction, as approved by the Bankruptcy Court at the Sale Hearing. A true and correct APA is attached to the Sale Order as Exhibit "B" [Docket No. 558]. 1.9 "Approving Parties": Collectively, the parties executing the Term Sheet: the Debtor, the Committee, Cordillera Golf Holdings, LLC, a Delaware limited liability company ("CGH"), Cordillera F & B, LLC, a Delaware limited liability company, including 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"), Wilhelm, Patrick Wilhelm, CTC, CPOA, CMD, CVCPOA, the Member Representatives, and Alpine. 1.10 "Assets": All right, title and interest in and to any and all property of every kind or nature, whether tangible or intangible, owned by the Debtor or its Estate as of the Effective Date, including, but not limited to, Causes of Action and all books and records of the Debtor. 1.11 "Auction": means the competitive auction sale to be conducted for the Operating Assets pursuant to the Bid Procedures. 1.12 "Avoidance Action": means an action or proceeding under sections 544, 545, 547, 548, 549, 550 or 553 of the Bankruptcy Code, and equivalent or analogous state law actions available to be pursued under section 544 of the Bankruptcy Code. 1.13 "Avoidance Action Date": means the date that is the later of 90 days after the Effective Date; or such later date as may be set by the Bankruptcy Court as the last date to file a complaint to commence an Avoidance Action. 1.14 "Ballot": The form of the ballot for voting to accept or to reject the Plan, which accompanies the Plan and this Disclosure Statement delivered to holders of Claims or Equity Interests in Impaired Classes. 1.15 "Ballot Deadline": The date set by the Bankruptcy Court as the last date on which Ballots may be submitted. 1.16 "Balloting Agent": Rust Consulting/Omni Bankruptcy, as approved by the Bankruptcy Court's Order approving this Disclosure Statement. 1.17 "Bankruptcy Case": The Debtor's Chapter 11 bankruptcy case commenced by the Debtor's filing of its voluntary petition on June 26, 2012, with the United States Bankruptcy
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Court for the District of Delaware, later transferred to the Bankruptcy Court and assigned Case No. 12-24882-ABC (Bankr. D. Colo.). 1.18 "Bankruptcy Code": Title 11 of the United States Code, as applicable to the Bankruptcy Case as of the Petition Date, including any and all amendments thereto which have been made or are hereafter made retroactively applicable to the Bankruptcy Case. 1.19 "Bankruptcy Court": The United States Bankruptcy Court for the District of Colorado, or in the event such court ceases to exercise jurisdiction over the Bankruptcy Case, the United States District Court for the District of Colorado, or any other court of competent jurisdiction which comes to exercise jurisdiction over the Bankruptcy Case. 1.20 "Bankruptcy Rules": The Federal Rules of Bankruptcy Procedure, as amended and prescribed under section 2075, Title 28, United States Code, as applicable to the Bankruptcy Case, together with the Local Rules of the Bankruptcy Court. 1.21 "Bar Date": November 30, 2012, the deadline set by the Bankruptcy Court as the last date by which proofs of Claim could have been timely Filed against the Debtor's Estate. 1.22 "Bid Procedures": The procedures approved by the Bankruptcy Court for the marketing and Sale of the Operating Assets pursuant to its Order granting the Sale / Procedures Motion, entered on October 30, 2012 [Docket No. 558] and attached to such Order as Exhibit "A." 1.23 "Business Day": Any day other than a Saturday, Sunday, or "legal holiday" as defined in Bankruptcy Rule 9006(a). 1.24 "Cash": Cash and cash equivalents, including certified checks and wire transfers, that evidence immediately available legal tender of the United States of America. 1.25 "Causes of Action": means all rights, claims and causes of action of any kind held by the Debtor or the Estate, to the extent not specifically compromised or released pursuant to the Plan, or the Term Sheet incorporated into, the Plan, whether or not such causes of action are the subject of presently pending lawsuits, adversary proceedings or appeals, including without limitation (i) rights, claims and causes of action belonging to the Debtor as of the Petition Date, (ii) rights, claims and causes of action belonging to the Estate that arise after the Petition Date, and (iii) all Avoidance Actions and any rights, claims and causes of action belonging to the Estate pursuant to sections 506 and 510 of the Bankruptcy Code. 1.26 "Claim": Any right to payment from the Debtor or its Estate, whether or not such right is reduced to judgment, liquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured, known or unknown; or any right to an equitable remedy against the Debtor or its Estate for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured, known or unknown.
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1.27 "Claim Objection Date": The date that is the later of 90 days after the Effective Date; or such later date as may be set by the Bankruptcy Court as the last date to object to proofs of claim. 1.28 "Claimant": A Person asserting a Claim.
1.29 "Class": Any group of substantially similar Claims or interests classified by the Plan pursuant to section 1122 of the Bankruptcy Code. 1.30 "Class Action": That certain litigation styled Foley et al., v. Cordillera Golf Club LLC, et al., Case No. 11-CV-552, pending in the District Court of Eagle County, Colorado. 1.31 "Closing": The closing of the Sale transaction to the Purchaser.
1.32 "Club": The Club at Cordillera, located in a community in Edwards, Colorado. An approximately 7,000 acre golf club owned and operated by the Debtor with three signature golf courses, a Dave Pelz designed short course, two tennis centers and fitness facilities, three indoor and outdoor pools, a summer camp with Trailhead clubhouse for children, three restaurants, and Nordic ski trails along the Mountain golf course. 1.33 "CMD": Cordillera Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado. 1.34 "Committee": means the duly-appointed and acting official committee for unsecured creditors appointed by the United States Trustee pursuant to section 1102(a) of the Bankruptcy Code and serving in the Bankruptcy Case. 1.35 "Collateral": An Asset subject to a valid, enforceable, and non-avoidable Lien securing the payment or performance of a Claim. 1.36 "Confirmation Date": The date of entry of the Confirmation Order by the Bankruptcy Court. 1.37 "Confirmation Hearing": The hearing held by the Bankruptcy Court regarding confirmation of the Plan pursuant to section 1129 of the Bankruptcy Code, as such hearing may be adjourned or continued from time to time. 1.38 "Confirmation Order": An Order of the Bankruptcy Court, and any amendments thereto, confirming the Plan in accordance with the provisions of section 1129 of the Bankruptcy Code, including any findings of fact and conclusions of law in relation thereto. 1.39 "CPOA": The Cordillera Property Owners Association, Inc., a Colorado not for profit corporation. 1.40 "CPOA Individuals": Glenn Bourland, Lois Van Deusen, and Roger Magid.
1.41 "CPOA / CTC Litigation": That certain litigation commenced on or about May 24, 2011, by the Debtor in the District Court for Eagle County, Colorado styled Cordillera Golf 50
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Club, LLC, et al. v. Cordillera Transition Corporation, Inc., et al., assigned Case No. 2011-CV456. 1.42 "Creditor": Any Person that is the holder of a Claim against the Debtor or Estate, whether arising on, before, or after the Effective Date, including but not limited to a Claim of the kind specified in sections 101(5) or 502 of the Bankruptcy Code. 1.43 "CRO": means Alfred A. Siegel as the Court appointed restructuring officer by order entered on July 31, 2012 [Docket No. 310]. 1.44 "CTC": Cordillera Transition Corporation, Inc., a Colorado not for profit corporation and a named defendant in the CPOA / CTC Litigation. 1.45 "CTC Individuals": Robert Vanourek, Denise Delaney, Gary Edwards, Raymond Oglethorpe, David Temin, Sarah Baker, Nelson Sims, Dick Rothkopf, and David Bentley. 1.46 "CTC Settlement Payment": The payment by CPOA / CTC pursuant to the Bankruptcy Court's Global Settlement Order, as provided in the Term Sheet, in the aggregate amount of $2,350,000, and comprised of: (i) $1 million paid by CPOA / CTC, designated and earmarked for the payment of the expenses of administration of the Estate, including all Professional Fee Claims of the Debtor and the Committee, as well as Allowed Priority Claims against the Debtor, other than Allowed Secured Tax Claims, to be administered and disbursed by the Debtor pursuant to the Plan; (ii) $600,000 paid by CPOA / CTC, designated and earmarked for the benefit of Trade Claims, to be administered and disbursed by the Debtor pursuant to the Plan; and (iii) $750,000 paid to Wilhelm in compromise of the CPOA / CTC Litigation. 1.47 "CVCPOA": Cordillera Valley Club Property Owners Association, Inc., a Colorado not for profit corporation. 1.48 "Debtor" or "Cordillera": Cordillera Golf Club, LLC, d/b/a The Club at Cordillera, the Debtor under and in the Bankruptcy Case. 1.49 "Deficiency Claim": The amount of a Secured Claim to the extent that any Collateral securing the Claim is insufficient to secure the repayment of same; provided, however, that if the Secured Claim is within a Class that validly and timely makes the election provided in section 1111(b)(2) of the Bankruptcy Code, there shall be no Deficiency Claim with respect to such Secured Claim. 1.50 "Disallowed": When used with respect to a Claim or Equity Interest, any portion thereof, that: (a) has been disallowed by either a Final Order or pursuant to a settlement; (b) has been withdrawn by the holder of the Claim or Equity Interest; (c)(i) is set forth in the Schedules at zero or as contingent, disputed, or unliquidated and (ii) as to which the Bar Date has been established but no proof of Claim or proof of Equity Interest has been Filed or deemed timely Filed with the Bankruptcy Court pursuant to either the Bankruptcy Code or any Final Order of the Bankruptcy Court or otherwise deemed timely Filed under applicable law; or (d) has not been scheduled in the Schedules and as to which no Proof of Claim or Equity Interest has been timely
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Filed or deemed timely Filed with the Bankruptcy Court pursuant to the Bankruptcy Code, a Final Order, or the Plan. 1.51 "Disclosure Statement": This Disclosure Statement Pursuant to 11 U.S.C. 1125 in Support of Plan of Liquidation for Debtor's Estate Under Chapter 11 of the United States Bankruptcy Code, Filed in connection with the Plan and approved by the Bankruptcy Court, together with any and all exhibits, schedules, amendments, modifications, and supplements thereto that have been approved by the Bankruptcy Court. 1.52 "Disclosure Statement Hearing": The hearing scheduled by the Bankruptcy Court to consider approval of this Disclosure Statement. 1.53 "Disputed": With reference to (a) any Claim, proof of which was timely and properly filed, or an Administrative Expense Claim, which is disputed under the Plan or as to which a timely objection has been filed and/or request for estimation in accordance with section 502(c) of the Bankruptcy Code and Bankruptcy Rule 3018 has been interposed, and which objection and/or request for estimation has not been withdrawn or determined by a Final Order or (b) any Claim, proof of which was required to be filed by order of the Bankruptcy Court but as to which a proof of claim was not timely or properly filed. 1.54 "Disputed Claim Amount": The lesser of (a) the liquidated amount set forth in the proof of claim filed with the Bankruptcy Court relating to a Disputed Claim, (b) if the Bankruptcy Court has estimated such Disputed Claim pursuant to section 502(c) of the Bankruptcy Code, the amount of a Disputed Claim as estimated by the Bankruptcy Court, and (c) the amount of such Disputed Claim allowed by the Bankruptcy Court pursuant to section 502 of the Bankruptcy Code, or zero, if such Disputed Claim is disallowed by the Bankruptcy Court pursuant to such section, in either case, regardless of whether the order or judgment allowing or disallowing such Claim has become a Final Order; provided, however, that, in the event that such Claim has been disallowed, but the order of disallowance has not yet become a Final Order, the Bankruptcy Court may require the Debtor to reserve an amount that would be attributed to such Claim if it were an Allowed Claim, or a lesser amount, to the extent that the Bankruptcy Court determines such reserve is necessary to protect the rights of such holder under all of the facts and circumstances relating to the order of disallowance and the appeal of such holder from such order. 1.55 "Disputed Claims Reserve": The reserve on account of Disputed Claims.
1.56 "Distribution": Any property delivered under the Plan to any holder of a Claim or Equity Interest, including but not limited to Administrative Claims, on account of such Claim or Equity Interest. 1.57 "Effective Date": The first date that is one (1) business days from the date on which all conditions precedent set forth in section 11.2 of the Plan have been satisfied or waived by the Plan Proponents and the effectiveness of the Confirmation Order shall have not been stayed. 1.58 "Equity Interest": The legal, equitable, contractual and other rights of any Person with respect to any partnership, membership (excluding Club members), limited liability, 52
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stock, or other ownership interest in the Debtor, whether or not transferable, and any option, warrant or right to purchase or sell, or subscribe for such a partnership, membership (excluding Club members), limited liability, stock, or other ownership interest. 1.59 "Estate": The bankruptcy estate of the Debtor created upon the Filing of the Debtor's voluntary petition for bankruptcy relief commencing the Bankruptcy Case pursuant to, and consisting of all property interests described in or provided by, section 541 of the Bankruptcy Code, including, without limitation, all property interests becoming part of such estate after the Petition Date in accordance with section 541 of the Bankruptcy Code. 1.60 "Exculpated Parties": Any of, or collectively, the beneficiaries of the various releases granted in section 7.6 of the Plan. 1.61 "File, Filed, or Filing": To file, have filed, or the act of filing with the Bankruptcy Court in the Bankruptcy Case. 1.62 "Final Order": An Order, judgment or decree which has not been reversed, amended, vacated or stayed and as to which (a) the time to appeal, petition for certiorari, or to move for reargument or rehearing has expired and no appeal, petition for certiorari, or request for reargument or rehearing has been made by any party, (b) any right to appeal, petition for certiorari, or to seek reargument or rehearing has been waived in writing in form and substance satisfactory to the Plan Proponents, or (c) an appeal, writ of certiorari, reargument or rehearing has been taken or sought, and the Order, judgment or decree has been upheld or certiorari, reargument or rehearing has been denied and, in either case, the time to take any further appeal, to petition for certiorari, or to move for reargument or rehearing has expired; provided, however, that the possibility that a motion under Rule 60 of the Federal Rules of Civil Procedure, or any analogous rule under the Bankruptcy Rules, may be Filed relating to such Order, shall not cause such Order not to be a Final Order. 1.63 "General Unsecured Claim": A Claim which is not an Administrative Claim, Priority Claim or Secured Claim, or a Subordinated Claim. Unsecured Claims shall include, without limitation, Deficiency Claims and Claims arising from the rejection of executory contracts and/or unexpired leases pursuant to sections 365 and/or 1123(b)(2) of the Bankruptcy Code. 1.64 "Global Settlement": The various settlement terms and agreements memorialized in the Term Sheet executed by the Approving Parties, and approved by the Bankruptcy Court's entry of the Global Settlement Order. 1.65 "Global Settlement Order": The Order of the Bankruptcy Court granting the Joint Motion for Approval of Term Sheet and Authorization to Implement Certain Matters Set Forth Therein, entered on October 23, 2012 [Docket No. ]. 1.66 "Governmental Unit": A governmental unit as such term is defined in section 101(27) of the Bankruptcy Code. 1.67 "Impaired": Has the meaning set forth in section 1124 of the Bankruptcy Code.
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1.68 "Lien": A charge against or interest in property to secure payment of a debt or performance of an obligation, including, but not limited to, a mortgage, deed of trust lien, security interest, judicial lien, pledge, encumbrance, or writ of attachment. 1.69 "Membership Documents": Any and all membership applications, membership plans, rules and regulations of the Club and all amendments and modifications thereto providing for or otherwise governing ant right to use of the Club by members of the Club. 1.70 "Member Deposit Claims": Collectively, the Claims of all members and former members of the Club for the return of deposits paid in connection with their Club memberships, provided that such Claims are duly evidenced by the timely Filing a proof of Claim or proofs of Claim, including but not limited to a class proof of Claim Filed by the Member Representatives on behalf of the class certified in the Class Action. 1.71 "Member Representatives": Cheryl M. Foley, Thomas Wilner, Jane Wilner, Charles Jackson, Mary Jackson, Kevin B. Allen, as representatives of a class certified in the Class Action. 1.72 "Net Available Funds": The Cash on hand of the Estate or Reorganized Debtor, as applicable, excluding any funds required or reserved for the payment of expenses of administration under the Plan. 1.73 "Operating Assets": The Assets of the Estate sold pursuant to the Sales/Procedures Motion, comprising substantially all assets of the Estate, and as specifically defined in the APA. 1.74 "Order": Any mandate, precept, command, or direction formally given or entered by the Bankruptcy Court or other court of competent jurisdiction. 1.75 "Person": A natural or non-natural individual, corporation, partnership, joint venture, association, limited liability company, limited liability partnership, trust, estate, unincorporated organization, governmental entity or political subdivision thereof, or any other entity. 1.76 "Petition Date": June 26, 2012, the date of the Filing of the Bankruptcy Case.
1.77 "Plan" or "Joint Plan": The Joint Plan of Liquidation for Debtor's Estate Under Chapter 11 of the United States Bankruptcy Code, pursuant to section 1121(a) of the Bankruptcy Code, in its present form or as it may be altered, amended, modified or supplemented from time to time in accordance with Plan section 12.2. 1.78 "Plan Agent": The person appointed by the Court to administer the Plan.
1.79 "Plan Documents": The agreements, documents, and instruments entered into on or as of the Effective Date as contemplated by, and in furtherance of, the Plan (including all documents necessary to consummate the transactions contemplated in the Plan), copies of which shall be available to Creditors upon request to the Debtor.
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1.80
"Plan Proponents": The Debtor and the Committee.
1.81 "Priority Non-Tax Claim": A Claim entitled to priority in payment under section 507(a) of the Bankruptcy Code, other than a Claim that is an Administrative Claim or a Priority Tax Claim. 1.82 "Priority Tax Claim": A Claim of a Governmental Unit of the kind entitled to priority in payment as specified in sections 502(i) and 507(a)(8) of the Bankruptcy Code, but expressly excluding any Secured Tax Claim. 1.83 "Professional": Any Person employed pursuant to an Order of the Bankruptcy Court pursuant to sections 327, 328 or 1103 of the Bankruptcy Code providing for compensation for services rendered prior to the Effective Date pursuant to sections 327, 328, 329, 330 and/or 331 of the Bankruptcy Code, or seeking compensation and reimbursement pursuant to section 503(b)(2) of the Bankruptcy Code. 1.84 "Professional Fee Claim": The Allowed Claim of a Professional pursuant to sections 327, 328, 330, 331, 363, 503(b) or 1103 of the Bankruptcy Code for compensation or reimbursement of costs and expenses relating to services performed from and after the Petition Date and before and including the Effective Date. 1.85 "Pro Rata Share": Means the proportion that an Allowed Claim or Allowed Equity Interest in a particular Class bears in proportion to the aggregate amount of all Allowed Claims or Allowed Equity Interests, as applicable, in such Class. 1.86 "Purchaser": The Entity or Entities that purchase the Operating Assets pursuant to the Bid Procedures, as approved by the Bankruptcy Court at the Sale Hearing. 1.87 "Reorganized Debtor": The Debtor, from and after the Effective Date.
1.88 "Retained Causes of Action": (I) Any and all claims or rights of the Debtor or its Estate, to the extent not released by the Debtor pursuant to the Global Settlement Order, specified or described in section 7.2.2 of the Plan; and (II) any and all objections to Claims that are pending as of the Effective Date including any counterclaims for affirmative relief made thereunder, and any and all objections to any Administrative Claim or Professional Fee Claims. 1.89 "Sale": The sale of the Operating Assets by the Debtor to the Purchaser pursuant to the Bid Procedures, and as approved by the Bankruptcy Court at the Sale Hearing. 1.90 "Sale Hearing": The hearing scheduled by the Bankruptcy Court pursuant to the Sale / Procedures Motion to consider final approval of the Sale of the Operating Assets to the Purchaser currently scheduled for December 17, 2012 at 9:00 a.m., or such other date as the Court may set. 1.91 "Sale Order": The Order of the Bankruptcy Court granting the Sale/Procedures Motion entered on October 30, 2012 [Docket No. 558].
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1.92 "Sale / Procedures Motion": The Joint Motion for Order: (A) Authorizing and Scheduling the Sale of Substantially All Operating Assets of the Estate, Free and Clear of All Liens, Claims, and Encumbrances, (B) Approving Procedures for the Submission of Qualifying Bids and Conducting the Sale, and (C) Approving the Form and Manner of Notice Pursuant to Federal Rule of Bankruptcy Procedure 2002, filed by the Debtor and Committee with the Bankruptcy Court on October 5, 2012 [Docket No. 521], seeking approval of the Bid Procedures and Sale. 1.93 "Schedules": The Schedules of Assets and Liabilities and the Statement of Financial Affairs Filed by the Debtor in the Bankruptcy Case pursuant to section 521 of the Bankruptcy Code and Bankruptcy Rule 1007, as they have been or may hereafter be amended, modified or supplemented. 1.94 "Secured Claim": A Claim which is secured by a Lien on Collateral or that is subject to setoff under section 553 of the Bankruptcy Code, and includes, but is not limited to, any amounts which are asserted under section 506(b) of the Bankruptcy Code as part of such claim; provided, however, that: (a) a Claim shall only be subject to Secured Claim status to the extent such Claim has been duly and timely evidenced as a Secured Claim in the Bankruptcy Case; and (b) a Claim which qualifies as both a Secured Claim pursuant to the foregoing description and also a Priority Claim as defined in the Plan shall be treated as a Priority Claim, and not a Secured Claim, for purposes of the Plan. To the extent the value of any Collateral securing such Claim is less than the amount of such Claim, the difference between such value and such Claim is a Deficiency Claim unless the holder of such Claim validly elects under section 1111(b) of the Bankruptcy Code to have such Claim treated as a Secured Claim to the extent Allowed. A Secured Claim includes the secured claims of Alpine Bank and Wilhelm as provided for in the Global Settlement. 1.95 "Secured DIP Claim": Any and all Claims of Alpine Bank for the extension of post-petition credit to the Debtor, as approved by the Bankruptcy Court pursuant to its 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, entered on September 28, 2012 [Docket No. 495], including any interim orders incorporated therein. 1.96 "Secured Tax Claim": Any Claim of a Governmental Unit, for a tax secured by a Lien on any property or Assets of the Estate. 1.97 "Subordinated Claim": All or any portion of a Claim which is Ordered by the Bankruptcy Court to be subordinated in payment or priority, including pursuant to, or in accordance with, section 510 of the Bankruptcy Code. 1.98 "Term Sheet": The Term Sheet dated as of September 17, 2012, memorializing the Global Settlement, executed by the Approving Parties pursuant to mediation conducted in the Bankruptcy Case on September 12-13, 2012, a true and correct copy which is attached to the Plan as Exhibit "1."
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1.99 "Trade Claims": Any and all Claims against the Debtor or the Estate for the provision of goods or services to the Debtor in the ordinary course of its business in connection with the operation of the Club. Trade Claims expressly exclude Professional Fee Claims and Member Deposit Claims. 1.100 "Trade Claims Escrow": The $600,000 portion of the CTC Settlement Payment paid by CPOA / CTC to the Debtor, designated and earmarked for the benefit of Trade Claims to be administered and disbursed by the Debtor pursuant to the Plan. Total payments to the Trade Claims shall be the lesser of $600,000 or the Allowed amount of such Trade Claims. The balance of the Trade Claims Escrow, if any, shall be used to pay allowed unpaid Administrative expenses of the Estate. 1.101 "TSPOA": Timber Springs Property Owners Association, Inc., a Colorado not for profit corporation. 1.102 "Unimpaired": A Claim or Equity Interest that is not Impaired. 1.103 "Voting Deadline": The deadline for the receipt of completed and dulyexecuted Ballots by the Balloting Agent, as set forth within the Bankruptcy Court's Order approving this Disclosure Statement or such other Order of the Bankruptcy Court entered thereafter which extends such deadline. 1.104 "Wilhelm": David A. Wilhelm. 1.105 "Wilhelm Party": Wilhelm, or any affiliate of Wilhelm, or any entity in which Wilhelm or any Wilhelm affiliate owns an interest.
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TABLE OF CONTENTS Page ARTICLE I DEFINITIONS, INTERPRETATION AND RULES OF CONSTRUCTION; TABLE OF CONTENTS................................................................... 1 ARTICLE - II SUMMARY OF THE PLAN................................................................................. 1 2.1. Overview................................................................................................................. 2 2.2. Summary of Treatment of Certain Classes of Claims and Equity Interests ........... 2 2.3. Post-Confirmation Expenses................................................................................... 5 ARTICLE - III VOTING INSTRUCTIONS AND CONFIRMATION PROCEDURES............. 5 3.1. Voting Procedure .................................................................................................... 5 3.2. Confirmation of Plan/Solicitation of Acceptances ................................................. 6 3.3. Hearing on Confirmation of Plan............................................................................ 6 3.4. Acceptances Necessary to Confirm Plan ................................................................ 6 3.5. Confirmation of the Plan Without Necessary Acceptances .................................... 7 3.6. Plan Amendments at Confirmation Hearing........................................................... 7 ARTICLE 4.1. 4.2. 4.3. 4.4. 4.5. 4.6. 4.7. 4.8. 4.9. 4.10. 4.11. 4.12. IV BACKGROUND INFORMATION..................................................................... 8 History of the Company.......................................................................................... 8 Background ............................................................................................................. 8 Pre-Petition Background......................................................................................... 9 General Case Background..................................................................................... 10 The Global Settlement .......................................................................................... 11 The Debtor's Acquisition of the Cordillera Club .................................................. 11 The Pending State Court Litigation ...................................................................... 12 Settlements............................................................................................................ 13 Mutual Releases .................................................................................................... 16 Sale of Assets........................................................................................................ 18 Successful Bidder.................................................................................................. 19 The Bid Procedures............................................................................................... 20
ARTICLE - V DESIGNATION AND TREATMENT OF UNCLASSIFIED CLAIMS UNDER THE PLAN......................................................................................................... 24 5.1. Administrative Claims .......................................................................................... 25 5.2. Bar Date for Administrative Claims ..................................................................... 25 ARTICLE - VI Treatment of Executory Contracts and unexpired leases ................................... 26 6.1. Rejection of Membership Documents .................................................................. 26 6.2. Rejection of Executory Contracts and Unexpired Leases..................................... 26 6.3. Rejection Damage Claims..................................................................................... 26
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ARTICLE 7.1. 7.2. 7.3. 7.4. 7.5. 7.6. 7.7. 7.8. 7.9. 7.10. 7.11. 7.12. 7.13. 7.14. 7.15. 7.16. 7.17. 7.18. 7.19.
VII MEANS OF IMPLEMENTATION OF THE PLAN........................................ 27 Global Settlement.................................................................................................. 27 Sale of Assets........................................................................................................ 27 Class Action Litigation ......................................................................................... 28 CTC Settlement Payment...................................................................................... 28 Revesting of Estate Assets .................................................................................... 29 General Corporate Matters.................................................................................... 29 Cancellation of Notes and Instruments; Release of Liens .................................... 30 Exemption from Transfer Taxes ........................................................................... 30 The Committee...................................................................................................... 30 The Plan Agent ..................................................................................................... 30 Post-Confirmation United States Trustee Fees ..................................................... 31 Post-Confirmation Retention and Payment of Professionals................................ 31 Payment of the Plan Agent and Professionals' Fees and Expenses After the Confirmation Date ................................................................................................ 31 Post-Confirmation Notices and Reports ............................................................... 32 Default Under the Plan.......................................................................................... 32 Final Decree .......................................................................................................... 33 Section 1129(a) (4) Payments Subject to Bankruptcy Court Review................... 33 Limitations on Liability ........................................................................................ 33 Bankruptcy Court Approval Relative to Post-Confirmation Matters ................... 34
ARTICLE VIII EFFECTS OF CONFIRMATION OF PLAN; RELEASES, PRESERVATION, INJUNCTION AND EXCULPATION ............................................ 34 8.1. Binding Effect of Plan .......................................................................................... 34 8.2. Releases................................................................................................................. 34 8.3. Releases by Holders of Claims and Equity Interests ............................................ 36 8.4. Preservation of Claims and Causes of Action....................................................... 36 8.5. Causes of Action ................................................................................................... 37 8.6. Compromise of Controversies .............................................................................. 37 8.7. Injunction Against Interference with Plan ............................................................ 38 8.8. Term of Injunctions or Stays................................................................................. 38 8.9. Exculpation ........................................................................................................... 38 ARTICLE - IX DISTRIBUTIONS UNDER THE PLAN........................................................... 39 9.1. Distributions Generally......................................................................................... 39 9.2. Form of Distributions............................................................................................ 39 9.3. Conditions to Distributions; Warranty of Entitlement.......................................... 39 9.4. Withholding Taxes................................................................................................ 39 9.5. Setoffs ................................................................................................................... 40 9.6. Rounding............................................................................................................... 40 9.7. De Minimis Distributions...................................................................................... 40 9.8. Undeliverable and Unclaimed Distributions......................................................... 40 ARTICLE - X PROCEDURES FOR RESOLVING DISPUTED CLAIMS............................... 41 10.1. Objections to Claims............................................................................................. 41 10.2. Late-Filed Claims and Amendments .................................................................... 41 59
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10.3.
Disputed Distributions .......................................................................................... 41
ARTICLE - XI LIQUIDATION ANALYSIS ............................................................................. 41 11.1. Liquidation Analysis............................................................................................. 41 ARTICLE XII REQUEST FOR FINDING OF FAIR AND EQUITABLE TREATMENT OF IMPAIRED CLASSES...................................................................... 42 12.1. Section 1129(b) Rights (Cramdown) .................................................................... 42 ARTICLE XIII CONDITIONS PRECEDENT TO CONFIRMATION AND EFFECTIVENESS OF PLAN .......................................................................................... 42 13.1. Conditions to Confirmation .................................................................................. 42 13.2. Conditions to Effective Date................................................................................. 42 13.3. Waiver of Conditions............................................................................................ 43 13.4. Effect of Nonoccurrence of Conditions to the Effective Date .............................. 43 ARTICLE - XIV MODIFICATION/AMENDMENT OF PLAN ............................................... 43 14.1. Modification of Plan ............................................................................................. 43 ARTICLE - XV EFFECT OF CONFIRMATION ...................................................................... 43 15.1. Discharge .............................................................................................................. 43 15.2. Binding Effect....................................................................................................... 44 ARTICLE - XVI PROVISIONS FOR RETENTION OF JURISDICTION ............................... 45 16.1. Retention of Jurisdiction....................................................................................... 45 ARTICLE 17.1. 17.2. 17.3. 17.4. 17.5. 17.6. 17.7. XVII GENERAL PROVISIONS............................................................................. 46 Service of Pleadings and Notices.......................................................................... 46 Headings ............................................................................................................... 47 Severability ........................................................................................................... 47 Governing Law ..................................................................................................... 47 Computation of Time............................................................................................ 47 Changes in Rates Subject to Regulatory Commission Approval.......................... 48 Bankruptcy Court Approval Relative to Post-Confirmation Matters ................... 48
ARTICLE - XVIII PLAN PROPONENTS' SOLICITATION OF ACCEPTANCES OF THE PLAN ....................................................................................................................... 48
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Type of Allowed Claim or Interest Allowed Secured Tax Claims

Status Unimpaired. Deemed to Accept.

Allowed Priority Claims

Unimpaired. Deemed to Accept.

Allowed Secured DIP Claim of Alpine Bank

Unimpaired. Deemed to accept the Plan.

Allowed Secured Pre-Petition Claim of Alpine Bank

Impaired. Entitled to Vote.

Allowed Secured Claim of Wilhelm

Impaired. Entitled to Vote.

Allowed General Unsecured Trade Claims

Impaired. Entitled to Vote.

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Type of Allowed Claim or Interest Member Claims

Treatment (A) Global Settlement Opt In Claimants:

Status Impaired. Entitled to Vote.

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Type of Allowed Claim or Interest Allowed Equity Interests

Status Impaired. Deemed to Reject

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Summary of Term Sheet7 4.8.1 The DIP Loan.

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(v) (vi) (vii)

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