Case:12-24882-ABC Doc#:744 Filed:12/31/12 Entered:12/31/12 14:33:16 Page1 of 3

UNITED STATES BANKRUPTCY COURT DISTRICT OF COLORADO

In re Case No. 12-24882 ABC Chapter 11 CORDILLERA GOLF CLUB, LLC dba The Club at Cordillera,

Debtor.

DEBTOR'S MOTION TO REJECT CERTAIN EXECUTORY CONTRACTS AND UNEXPIRED LEASES AS OF DECEMBER 31, 2012

Cordillera Golf Club, LLC, the debtor and debtor in possession in the above captioned case (the "Debtor"), by and through its proposed undersigned counsel, hereby moves this Court (the "Motion") for entry of an order substantially in the form submitted herewith (the "Order") authorizing the rejection of the executory contracts and unexpired leases set forth on the Schedule of Executory Contracts and Unexpired Leases attached hereto as Exhibit "A" as of December 31, 2012 (such schedule, the "Schedule" and each listed contract, lease or other agreement, each a "Contract" and collectively, the "Contracts"). In support of this Motion, the Debtor respectfully states as follows:

1. This Court has jurisdiction over this matter under 28 U.S.C. §§ 157 and 1334. This matter is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2). The venue of the case is proper pursuant to 28 U.S.C. §§ 1408 and 1409.

2. On June 26, 2012 (the "Petition Date"), the Debtor filed its voluntary petition for relief under chapter 11 of title 11 U.S.C., as amended (the "Bankruptcy Code"), in the Bankruptcy Court for the District of Delaware (the "Delaware Court") commencing bankruptcy case number 12-11893.

3. On July 6, 2012, the United States Trustee filed its Notice of Appointment of Committee of Unsecured Creditors forming the Official Committee of Unsecured Creditors.

4. On July 16, 2012, venue of the case was transferred to the United States Bankruptcy Court for the District of Colorado (the "Court"), commencing bankruptcy case number 12-24882-ABC (the "Case").

5. On or about October 30, 2012, the Court entered its Order (A) Authorizing and Scheduling Public Auction for the Sale of Substantially all Operating Assets of the Estate, Free and Clear of Liens, Claims, and Encumbrances, (B) Approving Bid Procedures for the Conducting of the Sale Process, (C) Scheduling the Final Sale Hearing, and (D) Approving the Form and Manner of Notice Pursuant to Federal Rule of Bankruptcy Procedure 2002 [Docket

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Entry No. 558] (the "Sale Order"). The Sale Order, among other items, set the date of the final hearing on the sale of substantially all operating assets of the estate (the "Sale") for December 17, 2012 at 9:00 a.m. (the "Final Sale Hearing").

6. At the Final Sale Hearing, the Court approved the Sale to the successful bidder (the "Buyer") pursuant and subject to documents related thereto on a final basis and approved the assumption by the Debtor and the assignment to the Buyer of certain executory contracts and unexpired leases (collectively, the "Agreements"). The Court entered its order related to the Final Sale Hearing on December 21, 2012 [Docket Entry No. 725].

7. The Sale closed on December 28, 2012.

8. The Agreements assumed by the Debtor and assigned to the Buyer through the Sale do not include any of the Contracts on the Schedule attached hereto as Exhibit "A".1

9. In light of the Sale closing, and that none of the Contracts were assigned to the Buyer as part of the Debtor's operating assets, the Contracts are no longer necessary to the Debtor's operations and the Debtor has no use for the Contracts. Therefore, there is no value or benefit to the estate by the Debtor continuing to incur any further monetary or other obligations related to the Contracts.

10. The Debtor hereby agrees to relief from the automatic stay of Section 362 of the Bankruptcy Code as of December 31, 2012, in order to allow each of the non-Debtor counter- parties to the Contracts, respectively, to obtain any equipment, as applicable, that is the subject of such Contracts.

11. Pursuant to Section 365 of the Bankruptcy Code, the Debtor seeks entry of an order authorizing the Debtor to reject each of the Contracts set forth on the Schedule as of December 31, 2012, because the Contracts are no longer necessary or of any use to the Debtor or to the estate.

12. Therefore, the Debtor believes that rejection of each of the Contracts as of December 31, 2012, is in the best interest of the estate according to the sound business judgment of the Debtor.

1 The listing of a Contract on the attached Schedule is not deemed an admission by the Debtor that such Contract is an executory contract and/or an unexpired lease or that the Debtor has any liabilities thereunder. Unless expressly agreed otherwise, the Debtor reserves the right at any time before the Court enters its order on the Motion to amend, supplement or otherwise modify the attached Schedule. The Debtor shall file with this Court and shall provide notice of any amendment, supplement or modification to the Schedule, if any, to the party of the affected Contract, counsel to the Official Committee of Unsecured Creditors and the Office of the United States Trustee.

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WHEREFORE, the Debtor respectfully requests that this Court enter an order granting this Motion and granting such other and further relief as the Court deems just and proper.

Dated: Denver, Colorado December 31, 2012 Respectfully submitted,

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, California 92101 Telephone: 619-234-6655 Facsimile: 619-234-3510 Email: [email protected] Email: [email protected] Email: [email protected]

-and-

SENDER WASSERMAN WADSWORTH, P.C. Harvey Sender, #7546 1660 Lincoln Street, Suite 2200 Denver, CO 80264 Telephone: 303-296-1999 Facsimile: 303-296-7600 Email: [email protected]

Attorneys for Debtor and Debtor-in-Possession

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EXHIBIT A (Schedule of Executory Contracts and Unexpired Leases)

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Leases

Date of Party / Address Document Property Agreement Behringer Harvard Cordillera, LLC 12/18/2003 Lease between Galena Partners Pro-Shop Lease / c/o Corporation Service Company (Tenant) and Cordillera Lodge & Spa Grouse on the Green 2711 Centerville Road, Suite 400 LLC (Landlord) Lease Wilmington, DE 19808 5/27/2009 Assignment and Assumption of Lease A portion of the building Cordillera Lodge & Spa, LLC (Grouse On the Green Pro Shop) for the pro-shop on the 2041 Sidewinder Drive, Suite 4 between Galena Partners Cordillera, LLC Short Course located at: , UT 84060 (Assignor) and Cordillera Golf Club, LLC 100 Kensington Drive, (Assignee) Eagle County, Colorado

Behringer Harvard Cordillera, LLC 10/1/2003 Lodge Access and Use Easement and Access Agreement for c/o Corporation Service Company Agreement between Stag Gulch Club Facilities 2711 Centerville Road, Suite 400 Partners, Cordillera Valley Club Investors Wilmington, DE 19808 Limited Partnership, Galena Partners, Squaw Creek Realty Corp., Eagle Golf Cordillera Lodge & Spa, LLC LLC, Valley Golf LLC, Cordillera Summit 2041 Sidewinder Drive, Suite 4 Golf, Inc. (Club Owners), Cordillera Club Salt Lake City, UT 84060 Properties, LLC (Club Operator), Galena Partners, and Kensington Partners (Lodge Owner) 12/18/2003 Assignment and Assumption of Lodge Access and Use Easement and Agreement and Club Access Agreement between Kensington Partners (Assignor) and Cordillera Lodge & Spa, LLC (Assignee) Behringer Harvard Cordillera, LLC 12/18/2003 Club Access and Use Agreement Access to Lodge c/o Corporation Service Company between Stag Gulch Partners, Cordillera Facilities 2711 Centerville Road, Suite 400 Valley Club Investors Limited Wilmington, DE 19808 Partnership, Galena Partners, Squaw Creek Realty Corp., Eagle Golf LLC, Cordillera Lodge & Spa, LLC Valley Golf LLC, Cordillera Summit Golf, 2041 Sidewinder Drive, Suite 4 Inc. (Club Owners), Cordillera Club Salt Lake City, UT 84060 Properties, LLC (Club Operator), Galena Partners and Kensington Partners (Lodge Owner) 12/18/2003 Assignment and Assumption of Lodge Access and Use Easement and Agreement and Club Access Agreement between Kensington Partners (Assignor) and Cordillera Lodge & Spa, LLC (Assignee) 12/2003 Amended and Restated Club Access and Use Agreement between Stag Gulch Partners, Cordillera Valley Club Investors Limited Partnership, Galena Partners, Squaw Creek Realty Corp., Eagle Golf LLC, Valley Golf LLC, Cordillera Summit Golf, Inc. (Club Owners), Cordillera Club Properties, LLC (Club Operator), Cordillera Lodge and Spa LLC (Lodge Owner)

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Date of Party / Address Document Property Agreement 12/31/2006 First Amendment to Amended and Restated Club Access and Use Agreement between Stag Gulch Partners, Cordillera Valley Club Investors Limited Partnership, Galena Partners, Squaw Creek Realty Corp., Eagle Golf LLC, Valley Golf LLC, Cordillera Summit Golf, Inc. (Club Owners), Cordillera Club Properties, LLC (Club Operator), Cordillera Lodge and Spa LLC (Lodge Owner) 12/30/2007 Second Amendment to Amended and Restated Club Access and Use Agreement between Stag Gulch Partners, Eagle Golf LLC, Valley Golf LLC, Cordillera Summit Golf, Inc. (Club Owners), Cordillera Club Properties, LLC (Club Operator), Cordillera Behringer Harvard Cordillera, LLC (Lodge Owner) Colorado Golf & Turf Inc. 2/13/2012 Golf Course Maintenance Equipment Various Golf Course Janet Bergo - Accounting Lease Agreement - Lease No. 2012-02 Equipment 11757 S. Wadsworth Blvd Littleton, CO 80125 - Expires 10/31/2012 - New agreement needed or equipment returned Heartland Business Credit Corp. 3/10/2011 Lease Agreement -- #23666.001 2 - MT7X3 Matrix Skip Wehner Numerica Capital Treadmills Leasing Services MT7X3 Matrix Treadmills

Department #202 Denver, CO 80291-0202

John Deere Credit, Inc. Heath Miller 8/1/2008 Lease Schedule No. 020-0053162-035 - Toro Sidewinder P.O. Box 650215 8/1/2008 - Toro Sidewinder Dallas, TX 75265-0215 - term ended 9/1/2012; equipment to be returned 8/1/2008 Lease Schedule No. 020-0053162-036 - 2 Toro Groundmasters 8/1/2008 - 2 Toro Groundmasters - term ended 9/1/2012; equipment to be returned

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Date of Party / Address Document Property Agreement RockResorts International, LLC 12/18/2003 Property Use Agreement between Eagle Food and Beverage 2401 East Second Avenue, Suite Golf LLC, Galena Partners and Services and Use 600 Kensington Partners (Owner) and Agreement Denver, CO 80206 Colorado Hotel Operator, Inc. ("Operator") and Fandango Cordillera (Short Course and Fandango Cordillera, L.L.C. ("Manager") Tennis Courts Area) c/o Pharos Group, LLC P.O. Box 680127 5/1/2005 First Amendment to Property Use Park City, UT 84068-0127 Agreement between Eagle Golf LLC, Galena Partners and Kensington Colorado Hotel Operator, Inc. Partners (Owner) and Colorado Hotel c/o Pharos Group, LLC Operator, Inc. ("Operator") and P.O. Box 680127 Fandango Cordillera ("Manager") Park City, UT 84068-0127 9/19/2005 Side Letter between RockResorts International, LLC (Manager) and Colorado Hotel Operator, Inc. (Operator) 5/26/2006 Termination of Property Use Agreement as to Tennis Courts Area and Amendment to Property Use Agreement between Eagle Golf LLC, Galena Partners and Kensington Partners (Owner) and Colorado Hotel Operator, Inc. ("Operator") and Fandango Cordillera ("Manager") and Cordillera Land, LLC 5/27/2009 Assignment and Assumption of Property Use Agreement (Short Course) between Eagle Golf, LLC and Galena Partners Cordillera LLC (Assignor) and Cordillera Golf Club, LLC (Assignee) Financial Leasing 4/26/2010 Equipment Lease Agreement No. 001- Ricoh MPC 2050 P.O. Box 6434 0084750-001 - 4/26/2010 - Ricoh MPC Carol Stream, IL 60197-6434 2050; Internal Stapler Finisher Internal Stapler Finisher 6/4/2010 Master Lease Schedule No. 019- John Deere Bunker & 0001374-01 - 6/4/2010 - John Deere Field Rake Bunker & Field Rake John Deere ProGator Diesel John Deere ProGator Diesel 5/22/2012 Master Lease Agreement No. 019- 0000224 - 5/22/2012 5/22/2012 Master Lease Schedule No. 019- 65 2008 EZGO RXV 0000224 - 5/22/2012 - 65 2008 EZGO Electric Golf Cars RXV Electric Golf Cars - 6 month lease - expires 11/22/2012 - carts to be returned

TCF Equipment Finance, Inc. 4/25/2003 Master Lease Agreement - 1024893 P.O. Box 77077 Minneapolis, MN 55480-7777 3/25/2008 Schedule No. 1024893 to the Master 1 E-Z-GO ST 480 Golf Equipment Lease Agreement - 4015070- Cart 103 2 E-Z-GO MPT Golf Carts

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Date of Party / Address Document Property Agreement TCF Equipment Finance, Inc. 3/17/2005 Master Lease Agreement - 1024898 P.O. Box 77077 Minneapolis, MN 55480-7777 3/25/2008 Schedule No. 1024898 to the Master 1 E-Z GO ST 480 Golf Equipment Lease - 4015070-105 Cart 2 E-Z GO MPT 1200 Golf Cart TCF Equipment Finance, Inc. 3/26/2008 Master Lease Agreement - 1024881 P.O. Box 77077 Minneapolis, MN 55480-7777 3/27/2008 Schedule No. 1024881 to the Master 3 - 2008 E-Z GO MFT Equipment Lease - 4015070-100 Golf Carts VGM 4/10/2009 VGM Financial Services Agreement - 4 - 2009 EZ-GO RXV 1111 West San Marnan Dr. 4015070-007 Electric Golf Carts Waterloo, Iowa 50701 5/22/2009 VGM Financial Services Agreement - 1 - 2009 EZ-GO RXV TCF Equipment Finance, Inc. 4015070-008 Electric Golf Cart P.O. Box 77077 6/15/2009 VGM Financial Services Agreement - 1 - 2009 EZ-GO RXV Minneapolis, MN 55480-7777 4015070-009 Electric Golf Cart

10/9/2009 VGM Financial Services Agreement - 1 - 2010 EZ-GO RXV F 4015070-001 Golf Cart Barnett, Bart Oral Agreement for private golf cart use Golf Cart P.O. Box 2534 Edwards, CO 81632 - Cart is under VGM Financial Services Agreement 4015070-007 Carey, Wally Oral Agreement for private golf cart use Golf Cart P.O. Box 1201 Edwards, CO 81632 - Cart is under VGM Financial Services Agreement 4015070-007 Clay, John Oral Agreement for private golf cart use Golf Cart 2617 Mockingbird Court Fort Worth, TX 76109 - Cart is under VGM Financial Services Agreement 4015070-007 Engleby, Bob Oral Agreement for private golf cart use Golf Cart P.O. Box 4730 Edwards, CO 81632 - Cart is under VGM Financial Services Agreement 4015070-007 Hulsizer, Matthew Oral Agreement for private golf cart use Golf Cart 1077 Sheridan Road Winnetka, IL 60093 - Cart is under VGM Financial Services Agreement 4015070-009 Kessenich, Paul Oral Agreement for private golf cart use Golf Cart 100 Legacy Trail P.O. Box 1535 - Cart is under VGM Financial Services Edwards, CO 81632 Agreement 4015070-001 McKeever, Steve Oral Agreement for private golf cart use Golf Cart P.O. Box 2386 Edwards, CO 81632 - Cart is under VGM Financial Services Agreement 4015070-008

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Contracts

Date of Party / Address Document Agreement Bottling Group LLC 7/20/2007 Fountain and Bottle and Can Sales dba Pepsi Bottling Group Agreement P.O. Box 75948 Chicago, IL 60675-5948 - Expired 6/30/2012 - Equipment on site may need to be returned or new agreement entered into with vendor

Ceres Design & Arborscape LLC Maintenance Agreement for dba Land Designs By Ellison Landscape Services P.O. Box 2134 Eagle, CO 81631-2134 - No current written contract - time and material basis Ecolab Pest Elimination Pest Elimination Services Agreement P.O. Box 6007 Grand Forks, ND 58206-6007 Foretees, LLC 2/10/2005 License and Service Agreement 5581 St. Albans Circle St Paul, MN 55126

Foretees, LLC 550 Village Center Drive Suite 400 St Paul, MN 55127

Kensington Partners, LLC 6/26/09 License Agreement P.O. Box 988 - to use "Cordillera" name in limited Edwards, Colorado 81632 context

Otis Elevator 10/1/2012 Quarterly Elevator Service Agreement One Farm Springs for the Chaparral and Summit Athletic Farmington, CT 06032 Club

STI Services, Inc. Monthly Landscaping Services P.O. Box 94 Agreement for the Summit Athletic Edwards, CO 81632 Club, Trailhead and General Store

Unilink Automated Office Systems 8/15/2012 Quarterly Maintenance, Support and P.O. Box 1150 Supplies for Ricoh Copiers. Post Falls, ID 83877-1150 - Expires 11/15/12

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Contracts

Date of Document Party / Address Agreement (as at any time amended or modified) ADP Total Source 12/26/2011 PEO, payroll processing, worker's 10200 Sunset Drive compensation provider, HR Miami, FL 33173 Administrator (admin fee per payroll) Employee Benefit Administrator (monthly billing)

ADP,lnc. Timekeeping software & hardware Billed P.O. Box 842875 monthly for active employees Boston, MA 02284-2875

Agrandar Associates 401K Broker 4323 North 12th St. #103 Phoenix, AZ. 85014

Alpine Bank Merchant Services processing fees 12 Vail Rd. Suite 200 Vail, CO 81657

AVG Software Antivirus software 2105 Northwest Blvd. - annual renewal expires on Newton, NC 28658 2/21/2013

BankServ Member online payment services 333 Bush St. 26th Floor - Monthly billing , CA 94104

BNA Software 7/09/2012 Fixed Asset Software annual renewal 3 Bethesda Metro Center expires on 7/3/2012 Bethesda, MD 20814

Club Systems Group 10/1/2012 Quarterly Maintenance Fee Box #3476 - A/R and POS software P.O. Box 8500 Philadelphia, PA 19178-3476

Dell Sonic Wall Services 9/22/2012 Yearly sonic wall admin support & P.O. Box 49042 spyware San Jose, CA 95161-9955 - firewall

Guardian Retirement Services 401k Administration 3900 Burgess Place - 3 South Bethlehem, PA 18017

Piracle, Inc. 11/3/2011 Create A Check Yearly Maintenance Fee 556 Confluence Ave - check writing Murray, UT 84123

Professional Benefit Services 3rd Party Administrator 401k plan 1193 Royvonne Ave. S.E. #22 Salem, OR 97302

Sage Software, Inc. 3/3/2012 Yearly Maintenance Agreement P.O. Box 230578 - Timberline Accounting Software Portland, OR 97281

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Date of Document Party / Address Agreement (as at any time amended or modified) Comcast Contract for Acct. #8497505180120561 P.O. Box 34744 Summit Athletic Club Seattle, WA 98124-1744 327 Settlers Loop Edwards, CO 81632

Contract for Acct. #8497505180120561 Summit Athletic Club 327 Settlers Loop Edwards, CO 81632

Contract for Acct. #8497505180002157 Chaparral Restaurant 101 Legends Drive Edwards, CO 81632

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UNITED STATES BANKRUPTCY COURT DISTRICT OF COLORADO

In re Case No. 12-24882 ABC Chapter 11 CORDILLERA GOLF CLUB, LLC dba The Club at Cordillera,

Debtor.

ORDER GRANTING DEBTOR'S MOTION TO REJECT CERTAIN EXECUTORY CONTRACTS AND UNEXPIRED LEASES AS OF DECEMBER 31, 2012

Upon the Motion to Reject Certain Executory Contracts and Unexpired Leases as of December 31, 2012 (the "Motion")1 of the above-captioned debtor and debtor in possession (the "Debtor") for entry of an order authorizing the rejection of the executory contracts and unexpired leases set forth on the Schedule of Executory Contracts and Unexpired Leases attached thereto as Exhibit "A" as of December 31, 2012; and upon consideration of the Motion and all pleadings related thereto; and due and proper notice of the Motion having been given; and it appearing that the relief requested is in the best interest of the Debtor, its estate, and creditors and after due deliberation, and sufficient cause appearing therefor, the Court

FINDS that rejection of each of the Contracts on the Schedule attached as Exhibit "A" to the Motion, as of December 31, 2012, is in the best interests of the estate and its creditors according to the sound business judgment of the Debtor. The Court

ORDERS that the Motion is GRANTED and that each Contract set forth on the Schedule, attached as Exhibit "A" to the Motion, is rejected as of December 31, 2012. The Court

FURTHER ORDERS that the Debtor shall mail a copy of this Order to the non-Debtor parties to each of the Contracts (collectively, the "Counter-Parties") within five (5) days from the date of this Order and shall file a proof of such service with the Court. The Court

FURTHER ORDERS that the Counter-Parties shall have thirty (30) days after the date of entry of this Order by which the Counter-Parties may file a proof of claim of any claim against the Debtor arising out of the rejection of the Contracts, respectively. The Court

1 All capitalized terms used and not defined herein shall have the meanings ascribed to them in the Motion.

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FURTHER ORDERS that this Court shall retain jurisdiction with respect to all matters arising from or related to the implementation and/or interpretation of this Order.

IT IS SO ORDERED.

DATED this _____ day of January 2013.

BY THE COURT

______Honorable A. Bruce Campbell United States Bankruptcy Judge

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