10000001199

In re:
IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWARE
Chapter 11
Cordillera Golf Club, LLC,
1
dba The Club at Cordillera,
Case No. 12-11893 (CSS)
Debtor.
Hearing Date: July 27,2012 at 1:00 p.m. (ET)
Objection Deadline: July 20, 2012 at 4:00 p.m. (ET)
DEBTOR'S APPLICATION FOR AN ORDER AUTHORIZING THE RETENTION OF
PRICEWATERHOUSECOOPERS LLP AS FINANCIAL ADVISOR
TO THE DEBTOR NUNC PRO TUNC TO THE PETITION DATE
AND WAIVING CERTAIN REQUIREMENTS PURSUANT TO LOCAL RULE 2016-2
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 submits this
application (the "Application") for entry of an order, substantially in the form attached hereto as
Exhibit A (the "Order"), pursuant to sections 327(a) and 328(a) of title 11 of the United States
Code, 11 U.S.C. 101-1532 (the "Bankruptcy Code"), authorizing the retention and
employment of PricewaterhouseCoopers LLP ("PwC") as financial advisor to the Debtor nunc
pro tunc to the Petition Date (as defined below) and waiving certain requirements pursuant to
Rule 2016-2 of the Local Rules ofBankruptcy Practice and Procedure of the United States
Bankruptcy Court for the District of Delaware (the "Local Rules"). In support of this
Application, the Debtor relies on the Declaration of Daniel Williams (the "Williams
Declaration"), a copy of which is attached hereto as Exhibit B. In further support of the
Application, the Debtor respectfully states as follows:
1
The Debtor in this chapter 11 case, and the last four digits of its employer tax identification number, is: XX-
XXX1317. The corporate headquarters address for the Debtor is 97 Main Street, Suite E202, Edwards, CO 81632.
01:12258158.4
JURISDICTION
1. The Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334
and the Amended Standing Order of Reference from the United States District Court for the
District of Delaware, dated as of February 29, 2012. This is a core proceeding pursuant to 28
U.S.C. 157(b )(2), and the Court may enter a final order consistent with Article III of the United
States Constitution. Venue is proper in this Court pursuant to 28 U.S.C. 1408 and 1409. The
statutory and legal predicates for the relief requested herein are sections 327(a) and 328(a) of the
Bankruptcy Code, Rules 2014 and 2016 of the Federal Rules of Bankruptcy Procedure (the
"Bankruptcy Rules"), and Local Rules 2014-1 and 2016-2.
BACKGROUND
2. On June 26, 2012 (the "Petition Date"), the Debtor filed a voluntary petition for
relief under chapter 11 of the Bankruptcy Code. The Debtor has continued in possession of its
properties and has continued to operate and maintain its business as a debtor in possession
pursuant to sections 1107(a) and 1108 of the Bankruptcy Code.
3. On July 6, 2012, the Office of the United States Trustee for the District of
Delaware (the "U.S. Trustee") appointed an official committee of unsecured creditors (the
"Committee") [Docket No. 86]. No request has been made for the appointment of a trustee or
examiner in this case.
4. A description of the Debtor's business, the reasons for commencing this chapter
11 case, and the relief sought from the Court to allow for a smooth transition into chapter 11 are
set forth in the Declaration of DanielL. Fitchett, Jr. in support of Chapter II Petitions and First
Day Relief[Docket No. 2] (the "First Day Declaration"), filed on the Petition Date and
incorporated by reference herein.
01:12258158.4
4
RELIEF REQUESTED
5. By this Application, the Debtor requests that the Court enter an Order pursuant to
sections 327(a) and 328(a) of the Bankruptcy Code, Bankruptcy Rules 2014 and 2016, and Local
Rules 2014-1 and 2016-2 authorizing the Debtor to employ and retain PwC as financial advisor
to the Debtor nunc pro tunc to the Petition Date, in accordance with the terms and conditions
contained in that certain engagement letter (the "Engagement Letter"), dated June 22, 2012,
between PwC and the Debtor, a copy of which is attached hereto as Exhibit C and incorporated
herein by reference.
PwC's QUALIFICATIONS
6. The Debtor chose PwC to serve as its financial advisor, in part, because of PwC' s
substantial expertise in providing financial advisory services to companies in financial distress.
Accordingly, the Debtor believes that PwC is well-qualified to perform all services contemplated
by the Engagement Letter, and to represent the Debtor's interests in its chapter 11 case.
7. PwC has acted as financial advisor in both in-court and out-of-court restructurings
of companies of various sizes across a wide array of industries. PwC's clients include debtors,
creditors, corporate parents, financial sponsors, and indenture trustees. Of relevance to the
Debtor's circumstances, PwC has considerable experience providing financial advisory services
to businesses in a chapter 11 environment, and has been employed in numerous chapter 11 cases
within this district, including: : In re AbitibiBowater Inc., Case No. 09-11296 (KJC); In re
Aleris International, Inc., Case No. 09-104 78 (BLS); In re American Home Mortgage Holdings,
Inc., Case No. 07-11047 (CSS); In re Appleseed's Intermediate Holdings LLC, Case No. 11-
10160 (KG); In re Autobacs Strauss, Inc., Case No. 09-10358 (CSS); In re Buffets Restaurants
Holdings, Inc., Case No. 12-10237 (MFW); In reBuilding Materials Holding Coi]J., Case No.
09-12074 (KJC); In re Coach Am Group Holdings Coi]J., Case No. 12-10010 (KG); In re
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Filene's Basement, LLC, Case No. 11-13511 (KJC); In re Foamex International Inc., Case No.
09-10560 (KJC); In re HUB Holding Corp., Case No. 09-11770 (PJW); In re JERI Jameson Mezz
Borrower I LLC, Case No. 11-13392 (MFW); In re Local Insight Media Holdings, Inc., Case No.
10-13677 (KG); In re Muzak Holdings LLC, Case No. 09-10422 (KJC); In re Nassau
Broadcasting Partners, L.P., Case No. 11-12934 (KG); In re NewPage Corporation, Case No. 11-
12804 (KG); In re OTC Holdings Corporation, Case No. 10-12636 (BLS); In re Orleans
Homebuilders, Inc, Case No. 10-10684 (PJW); In re Pemco World Air Services, Inc., Case No.
12-10799 (MFW); In re Smurfit-Stone Container Corp., Case No. 09-10235 (BLS); In re
Townsends, Inc., Case No. 10-14092 (CSS); In re Tribune Co., Case No. 08-13141 (KJC); In re
Trico Marine Services, Inc., Case No. 10-12653 (BLS); In re Trident Microsystems, Inc., Case
No. 12-10069 (CSS); In re Urban Brands, Inc., Case No. 10-13005 (KJC); and In re Visteon
~ ' C a s e No. 09-11786 (CSS).
8. In view ofPwC's experience, the Debtor believes that the retention ofPwC is
necessary to enable the Debtor to execute faithfully its duties as debtor-in-possession and to
confront issues that may arise in the context of the chapter 11 case in an efficient and timely
manner. The Debtor believes that PwC is well qualified to serve in the chapter 11 case and that
the retention ofPwC is in the best interest of the Debtor's estates and its creditors.
SERVICES TO BE PROVIDED
9. Pursuant to the terms ofthe Engagement Letter, PwC has agreed to act as
financial advisor to the Debtor. As financial advisor, PwC will assist the Debtor in discussions
with its various creditors, lenders, and investors, as the case may be, and in the marketing and
sale of the Debtor's assets. The services that PwC may provide under the Engagement Letter
include, but are not limited to, the following::
01:12258158.4
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a) Evaluating strategic alternatives, including restructuring options, capital
raising, sale of assets, etc ... ;
b) Advising and assisting with the Debtor's development of cash flow
projections and business restructuring plans, including related financial
forecasts; and sensitivity analyses relating to the Debtor's forecasts and
assumptions;
c) Advising and analyzing any proposed asset sales and other proposed
transactions in which the Debtor seeks Court approval;
d) Advising the Debtor in connection with its negotiations with: (i) lenders
regarding debtor-in-possession and exit financing facilities; and (ii) key
vendors regarding post-petition shipments and critical vendor payments
and assistance in preparation thereof;
e) Testifying as a "fact or percipient witness" in the Debtor's bankruptcy
court proceedings based on PwC's direct knowledge of the estate arising
from or relating to the services performed;
f) Advising the Debtor on tactics and strategies for negotiating with the
stakeholders;
g) Advising and assisting the Debtor in connection with the Debtor's
accumulation of data and preparation of various schedules, operating
reports, account analyses, and reconciliations, including reconciliations of
claims, bankruptcy petitions, the plan of reorganization and other reports
required by the Court, bankruptcy schedules and statements of financial
affairs, monthly operating reports, and such other documentation that is
customarily issued by a debtor;
h) Advising regarding golf course industry metrics and operations;
i) Providing forensic accounting assistance, as needed, relating to financial
records of the Debtor or any other party;
j) Consulting relating to litigation matters, as requested;
k) Providing other forensic accounting and advisory services as requested;
and
1) Providing other general restructuring advice, as requested.
10. The Debtor and PwC intend that all of the services that PwC will provide to the
Debtor will be: (a) appropriately directed by the Debtor so as to avoid duplicative efforts among the
01:12258158.4
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other professionals retained in this chapter 11 case and (b) performed in accordance with applicable
standards of the profession.
11. To the extent the Debtor requests that PwC perform additional services not
contemplated by the Engagement Letter or directly related to services detailed in the
Engagement Letter, the Debtor shall seek further application for an order of approval by the
Court for any such additional services, and such application shall set forth, in addition to the
additional services to be performed, the additional fees sought to be paid.
12. In connection with each of its engagements, PwC may use employees from its U.S.
and non-U.S. subsidiary affiliates, depending on the needs of the engagement. PwC may also
utilize third-party contractors or subcontractors (each, an "Independent Contractor") in this chapter
11 case. IfPwC utilizes such Independent Contractors, then (a) PwC will file, and require the
Independent Contractor to file, declarations indicating that the Independent Contractor has
reviewed the list of the interested parties in this case, disclosing the Independent Contractor's
relationships, if any, with the interested parties, and indicating that the Independent Contractor is
disinterested, (b) the Independent Contractor will remain disinterested during the time that PwC
is involved in providing services on behalf of the Debtor, and (c) the Independent Contractor will
represent that he/she will not work for the Debtor or other parties in interest in this chapter 11
case during the time PwC is involved in providing services to the Debtor. PwC's standard
practice is to charge for an Independent Contractor's services at the rate PwC pays the
Independent Contractor for such services.
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TERMS OF RETENTION
13. The terms ofPwC's proposed compensation are fully set forth in the Engagement
Letter, and the Debtor respectfully refers this Court to the Engagement Letter for a full recitation
of such terms.
14. PwC seeks the Court's approval of its compensation and reimbursement of its
actual, necessary expenses and other charges incurred by PwC upon the filing of appropriate
applications for interim and final compensation and reimbursement pursuant to sections 330 and
331 ofthe Bankruptcy Code, the Bankruptcy Rules, the Local Rules, the guidelines established
by the U.S. Trustee, and any other applicable procedures and orders of this Court. As
compensation for the financial advisory services to be rendered, PwC requests the following
payment amounts pursuant to the Engagement Letter:
a) Fees: Fees for services will be based on the following agreed upon
hourly rates, which will be revised from time to time. Adjusted
rates will be reflected in billings. The current hourly rates are:
Partner
Director
Manager
Senior Associate
Associate
Secretarial
$670-$790
$535-$580
$410-$450
$325-$375
$270-$315
$75-$125
b) Expenses. PwC will also bill the Debtor for reasonable,
documented, out-of-pocket expenses and internal per-ticket
charges for booking travel.
15. PwC's hourly rates are subject to periodic adjustment from time to time in
accordance with PwC's established billing practices and procedures. PwC will provide notice of
any changes to its hourly rates within ten (10) business days thereofto the U.S. Trustee and the
Committee and file such notice with this Court.
01:12258158.4
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16. The PwC professionals providing the financial advisory services will consult with
internal PwC bankruptcy retention and billing advisors (the "PwC Retention Advisors") to
ensure compliance with the requirements of the Bankruptcy Code, as well as decrease the overall
fees associated with the administrative aspects ofPwC's engagement. The services provided by
these PwC Retention Advisors shall include, but are not limited to: assistance with the
bankruptcy retention documents; assistance with the disinterestedness disclosures; assistance
with completion of the requisite fee applications; and assistance with compliance with applicable
provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, the guidelines
established by the U.S. Trustee, and the orders of this Court. Due to the specialized nature of
these services, and consistency between bankruptcy venues, specific billing rates have been
established for these PwC Retention Advisors?
17. During the ninety (90) days prior to the Petition Date, on June 22, 2012, PwC
received from the Debtor an initial advance retainer of$75,000 (the "Retainer"), of which
$13,500 was drawn by PwC to pay fees incurred in providing services to the Debtor in
contemplation of, and in connection with, prepetition financial advisory activities. As of the
Petition Date, the Retainer was $61,500.
18. Due to the ordinary course and unavoidable reconciliation of fees and submission
of expenses immediately prior to, and subsequent to, the Petition Date, PwC has incurred
unbilled fees and reimbursable expenses which relate to the prepetition period. PwC hereby
seeks this Court's approval to apply the Retainer to these amounts and any further prepetition
fees and expenses PwC becomes aware of during its ordinary course billing review and
2
The rate per hour for these PwC Retention Advisors by level of experience will be as follows: Partner: $790;
Director: $550; Manager: $400; Senior Associate: $290; Associate: $225 and Paraprofessional: $125- $150. These
rates are subject to periodic adjustments.
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reconciliation. Upon the proposed applications of the Retainer, the Debtor would not owe PwC
any sums for pre-petition services.
19. The Debtor requests that the remainder-if any-of the Retainer following
application against pre-petition fees and expenses will constitute a retainer as security for post-
petition services and expenses. In the chapter 11 case, a general security retainer is appropriate
for several reasons. See In re Insilco Techs., Inc., 291 B.R. 628, 634 (Bankr. D. Del. 2003)
("Factors to be considered, include ... whether terms of an engagement agreement reflect
normal business terms in the marketplace; ... the relationship between the Debtor and the
professionals, i.e., whether the parties involved are sophisticated business entities with equal
bargaining power who engaged in an arms-length negotiation[] [and] ... whether the retention,
as proposed, is in the best interests ofthe estate[] .... "). First, these types of retainer
agreements reflect normal business terms in the marketplaces. See Id. ("[I]t is not disputed that
the taking of [security] retainers is a practice now common in the market place."). Second, PwC
and the Debtor are sophisticated business entities that have negotiated the Retainer at arm's
length. Third, the retention ofPwC is in the best interests of the Debtor's estate because the
retention agreement and retainer allow the Debtor to maintain the prepetition relationship
established with PwC. Thus, under the standards articulated in Insilco, the facts and
circumstances of this case support the approval of the security retainer.
20. Notwithstanding anything to the contrary in the Engagement Letter, PwC intends
to apply for compensation for professional services rendered and reimbursement of expenses
incurred in connection with the Debtor's chapter 11 case on an hourly basis, subject to Court
approval and in compliance with applicable provisions of the Bankruptcy Code, the Bankruptcy
Rules, the Local Rules, the U.S. Trustee Guidelines and any other applicable procedures or
01:12258158.4
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orders of the Court. However, it is not the general practice ofPwC professionals to keep detailed
time records (i.e., increments of one-tenth of an hour (six minutes)) similar to those customarily
kept by attorneys compensated through the Court. PwC professionals' customary practice
provides a description of the services rendered and the amount of time spent on each date in
rendering services on behalf of their clients rather than breaking it into separate tasks throughout
each date.
21. PwC will file interim and final fee applications for the allowance of compensation
for services rendered and reimbursement of expenses incurred in accordance with applicable
provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, the guidelines of the
U.S. Trustee, and any applicable orders of this Court. PwC will keep time records, and include
these records as an exhibit to each fee application, which shall set forth a description of the
services rendered by each professional and the amount of time spent on each date, in half-hour
(0.5) increments, by each such individual in rendering services on behalf of the Debtor. The
Debtor believes that PwC's customary practice with respect to time descriptions will still provide
this Court with the ability to appropriately review and evaluate the services provided by PwC.
Furthermore, because it would be more efficient for PwC to continue in its customary time-
keeping practices, the Debtor respectfully seeks a waiver of Local Rule 2016-2(d) to permit PwC
to submit its time records in half-hour increments.
22. PwC has agreed not to share with any person or firm the compensation to be paid
for services rendered in connection with this chapter 11 case.
23. The above fee structure and terms are consistent with and typical of arrangements
entered into by PwC and other comparable firms in connection with the rendering of similar
services under similar circumstances. The Debtor believes that the Engagement Letter and
01:12258158.4
12
retention ofPwC is in fact reasonable, market-based, and designed to fairly compensate PwC for
its work and to cover fixed and routine overhead expenses.
INDEMNIFICATION AND LIMITATION OF LIABILITY
24. Pursuant to the terms of the Engagement Letter, the Debtor has agreed to
indemnify and hold PwC, its affiliates, and Independent Contractors, and their partners,
principals, and employees harmless from and against any and all third party claims resulting
from any of the Services and Deliverables (as defined in the Engagement Letter), except to the
extent determined to have resulted from PwC's gross negligence or intentional misconduct
relating to the Services and/or Deliverables.
25. Pursuant to the terms of the Engagement Letter, the Debtor agreed that PwC's
liability to pay damages, except to the extent finally determined to have resulted from PwC's
gross negligence or intentional misconduct, for any losses incurred by the Debtor as a result of
breach of contract, negligence, or other tort committed by PwC, regardless of the theory of
liability assets, is limited to no more than the total amount of fees paid to PwC for the particular
Service giving rise to the liability. In addition, pursuant to the terms ofthe Engagement Letter,
PwC will not be liable in any event for lost profits, consequential, indirect, punitive, exemplary
or special damages and shall have no liability to the Debtor arising :from or relating to any third
party hardware, software, information, or materials selected by the Debtor or its counsel.
26. Consistent with the prevailing standards for retention of professionals in chapter
11 cases in the Third Circuit, however, the Debtor requests (and PwC agrees) that the order
approving PwC's retention provide that, notwithstanding anything to the contrary in the
engagement letter: (a) PwC shall not be entitled to indemnification, contribution, or
reimbursement pursuant to the Engagement Letter for services other than those described in the
01:12258158.4
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Engagement Letter, unless such services and indemnification therefor are approved by the
Bankruptcy Court notwithstanding anything to the contrary in the Engagement Letter; (b) the
Debtor shall have no obligation to indemnify any person, or provide contribution or
reimbursement to any person, for any claim or expense to the extent that it is either :
(i) judicially determined (the determination having become final) to have arisen from PwC's
gross negligence, willful misconduct, breach of fiduciary duty, if any, bad faith or self-dealing;
(ii) for a contractual dispute in which the Debtor alleges the breach ofPwC's contractual
obligations, unless the Court determines that indemnification, contribution, or reimbursement
would be permissible pursuant to In reUnited Artists Theatre Company, et al., 315 F.3d 217 (3d
Cir. 2003); or (iii) settled prior to a judicial determination as to the exclusions set forth in clauses
(i) and (ii) above, but determined by the Court, after notice and a hearing to be a claim or
expense for which PwC should not receive indemnity, contribution, or reimbursement under the
terms of the Engagement Letter as modified by the Order; and (c) if, before the earlier of (i) the
entry of an order confirming a chapter 11 plan in this chapter 11 case (that order having become
a final order no longer subject to appeal), and (ii) the entry of an order closing this chapter 11
case, PwC believes that it is entitled to the payment of any amounts by the Debtor on account of
the Debtor's indemnification, contribution, and/or reimbursement obligations under the
Engagement Letter (as modified by this Order), including without limitation the advancement of
defense costs, PwC must file an application therefor in this Court, and the Debtor may not pay
any such amounts to PwC before the entry of an order by this Court approving such payments,
and that this subparagraph (c) is intended only to specify the period of time under which the
Court shall have jurisdiction over any request for fees and expenses by PwC for indemnification,
contribution, or reimbursement, and not a provision limiting the duration of the Debtor's
01:12258158.4
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obligation to indemnify PwC, and that all parties in interest shall retain the right to object to any
demand by PwC for indemnification, contribution, or reimbursement.
PwC'S DISINTERESTEDNESS
27. PwC has reviewed its electronic database and, to the best of its knowledge and
except to the extent disclosed in the Williams Declaration, PwC: (a) is a "disinterested person"
within the meaning of section 101 (14) of the Bankruptcy Code; (b) does not hold or represent an
interest adverse to the Debtor's estate; and (c) has no connection to the Debtor, its creditors, or
their related parties that would negatively impact PwC's disinterestedness.
28. To the extent that PwC discovers any facts during the course of its retention that
could impact the truthfulness of the statements made herein or in the Williams Declaration, PwC
will supplement the information contained in the Williams Declaration.
BASIS FOR RELIEF REQUEST
29. Section 327(a) of the Bankruptcy Code provides that a debtor, subject to court
approval:
May employ one or more attorneys, accountants, appraisers,
auctioneers, or other professional persons, that do not hold or
represent an interest adverse to the estate, and that are disinterested
persons, to represent or assist the [debtor] in carrying out the
[debtor]' s duties under this title.
11 U.S.C. 327(a).
01:12258158.4
30. Section 328(a) of the Bankruptcy Code provides, in relevant part, as follows:
The trustee ... with the court's approval, may employ or authorize
the employment of a professional person under section 327 ... of
this title ... on any reasonable terms and conditions of
employment, including on a retainer, on an hourly basis, or on a
contingent fee basis. Notwithstanding such terms and conditions,
the court may allow compensation different from the compensation
provided under such terms and conditions after the conclusion of
such employment, if such terms and conditions prove to have been
15
improvident in light of developments not capable of being
anticipated at the time of the fixing of such terms and conditions.
11 U.S.C. 328(a).
31. Bankruptcy Rule 2014 provides, in relevant part, as follows:
An order approving the employment of financial advisors ... or
other professionals pursuant to 327 ... of the Code shall be made
only on application of the trustee or committee.
Fed. R. Bankr. P. 2014.
32. Local Rule 2014-1 provides, in relevant part, as follows:
Any entity seeking approval of employment of a professional
person pursuant to 11 U.S. C. 327 ... shall file with the Court a
motion, a supporting affidavit or verified statement of the
professional person, and a proposed order for approval.
Del. Bankr. L.R. 2014-1(a).
33. For the reasons discussed above, the Debtor believes that the retention ofPwC
satisfies the requirements of sections 327(a) and 328(a) of the Bankruptcy Code, and the
applicable Bankruptcy Rules and Local Rules. Moreover, the Debtor submits that the
employment ofPwC on the terms and conditions set forth herein and in the Engagement Letter is
in the best interests of the Debtor, its estate, its creditors, and all parties in interest.
NOTICE
34. Notice of this Motion has been provided to: (i) the Office of the United States
Trustee; (ii) the Office of the United States Attorney for the District of Delaware; (iii) counsel to
the Official Committee of Unsecured Creditors; (iv) counsel to prepetition secured lenders; (v)
counsel to proposed post-petition secured lender; and (vi) all parties requesting notice pursuant
to Bankruptcy Rule 2002. In light of the nature of the relief requested herein, the Debtor submits
that no other or further notice is necessary.
01:12258158.4
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NO PRIOR REQUEST
35. No prior application for the relief requested herein has been made to this or any
other court.
WHEREFORE, the Debtor respectfully requests the entry of an order,
substantially in the form attached hereto as Exhibit A, (a) approving the employment and
retention of PwC as financial advisor to the Debtor and (b) granting such other and further relief
as the Court deems appropriate.
Dated: Wilmington, Delaware
July 10, 2012
01:12258158.4
FOLEY & LARDNER LLP
Christopher Celentino
Erika Moribita
Mikel Bistrow
Admitted Pro Hac Vice
402 West Broadway, Suite 2100
San Diego, California 92101
Telephone: (619) 234-6655
Facsimile: (619) 234-3510
-and-
YOUNG CONAWAY STARGATT & TAYLOR, LLP
Is/ Donald J Bowman Jr.
Michael R. Nestor (No. 3526)
JosephM. Barry (No. 4221)
Donald J. Bowman, Jr. (No. 4383)
Justin P. Duda (No. 5478)
Rodney Square
1 000 N. King Street
Wilmington, Delaware 19801
Telephone: (302) 571-6600
Facsimile: (302) 571-1253
Proposed Counsel for Debtor and Debtor in Possession
17
Inre:
Chapter 11
1
Case No. 12-11893 (CSS)
Debtor.
Hearing Date: July 27,2012 at 1:00 p.m. (ET)
Objection Deadline: July 20, 2012 at 4:00 p.m. (ET)
NOTICE OF APPLICATION
TO: (A) THE OFFICE OF THE UNITED STATES TRUSTEE; (B) THE OFFICE OF THE
UNITED STATES ATTORNEY FOR THE DISTRICT OF DELAWARE; (C)
COUNSEL TO THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS; (D)
COUNSEL TO PREPETITION SECURED LENDERS; (E) COUNSEL TO PROPOSED
POST-PETITION SECURED LENDER; AND (F) ALL PARTIES THAT HAVE
REQUESTED NOTICE PURSUANT TO FEDERAL RULE OF BANKRUPTCY
PROCEDURE 2002
PLEASE TAKE NOTICE that the above-captioned debtor and debtor in
possession (the "Debtor") filed the attached Debtor's Application for an Order Authorizing the
Retention PricewaterhouseCoopers LLP as Financial Advisor to the Debtor, Nunc Pro Tunc
to the Petition Date and Waiving Certain Requirements Pursuant to Local Rule 2016-2 (the
"Application").
PLEASE TAKE FURTHER NOTICE that responses, if any, to the Application
must be filed with the United States Bankruptcy Court for the District of Delaware, 824 N.
Market Street, 3rd Floor, Wilmington, Delaware 19801 on or before July 20,2012 at 4:00P.M.
(ET) (the "Objection Deadline"). At the same time, you must serve a copy of your response
upon the undersigned counsel.
PLEASE TAKE FURTHER NOTICE THAT A HEARING ON THE
APPLICATION WILL BE HELD ON JULY 27,2012 AT 1:00 P.M. (ET) BEFORE THE
HONORABLE CHRISTOPHER S. SONTCHI, IN THE UNITED STATES BANKRUPTCY
COURT FOR THE DISTRICT OF DELAWARE, 824 N. MARKET STREET, 5TH FLOOR,
COURTROOM NO. 6, WILMINGTON, DELAWARE 19801.
1
01:12258158.4
PLEASE TAKE FURTHER NOTICE THAT IF YOU FAIL TO RESPOND
TO THE APPLICATION IN ACCORDANCE WITH THIS NOTICE, THE COURT MAY
GRANT THE RELIEF REQUESTED THEREIN WITHOUT FURTHER NOTICE OR A
HEARING.
July 10, 2012
01:12258158.4
FOLEY & LARDNER LLP
Christopher Celentino
Erika Moribita
Mikel Bistrow
Admitted Pro Hac Vice
San Diego, California 92101
Telephone: (619) 234-6655
Facsimile: (619) 234-3510
-and-
YOUNG CONAWAY STARGATT & TAYLOR, LLP
Is/ Donald J Bowman Jr.
Michael R. Nestor (No. 3526)
Joseph M. Barry (No. 4221)
Donald J. Bowman, Jr. (No. 4383)
Justin P. Duda (No. 5478)
Rodney Square
1000 N. King Street
Wilmington, Delaware 19801
Telephone: (302) 571-6600
Facsimile: (302) 571-1253
Proposed Counsel for Debtor and Debtor in Possession
EXHIBIT A
Proposed Order
01:12258158.4
In re:
Chapter 11
1
Case No. 12-11893 (CSS)
Ref. Docket No.
Debtor.
ORDER AUTHORIZING THE RETENTION OF
PRICEWATERHOUSECOOPERS LLP AS FINANCIAL
ADVISOR TO THE DEBTOR NUNC PRO TUNC TO THE
PETITION DATE AND WAIVING CERTAIN REQUIREMENTS
PURSUANT TO LOCAL RULE 2016-2
Upon consideration of the Application
2
of the above-captioned debtor and debtor-in-
possession (the "Debtor"), for entry of an Order pursuant to sections 327(a) and 328(a) of the
Bankruptcy Code authorizing the retention and employment of PricewaterhouseCoopers LLP
("PwC") as financial advisor to the Debtor nunc pro tunc to the Petition Date and granting relief
under and Local Rule 2016-2; and upon consideration of the Williams Declaration; and due and
proper notice of the Application having been give; and it appearing that no other or further notice
is required; and it appearing that the Court has jurisdiction to consider the Application in
accordance with 28 U.S.C. 157 and 1334; and it appearing that this is a core proceeding
pursuant to 28 U.S.C. 157(b )(2); and it appearing that venue ofthis proceeding and this
Application is proper pursuant to 28 U.S.C. 1408 and 1409; and it appearing that the relief
requested is in the best interest of the Debtor, its estate, and creditors and after due deliberation,
and sufficient cause appearing therefor,
IT IS HEREBY ORDERED THAT:
1
Ol:1
22581
;
8
.fapitalized terms not otherwise defined herein shall have the meaning ascribed in the Application.
1. The Application is GRANTED.
2. The Debtor is authorized pursuant to sections 327(a) and 328(a) of the
Bankruptcy Code to employ and retain PwC as its financial advisor in accordance with the terms
and conditions set in forth in the Application and the Engagement Letter attached to the
Application as Exhibit C.
3. PwC will file fee applications for interim and final allowance of compensation
and reimbursement of expenses pursuant to the procedures set forth in Sections 330 and 331 of
the Bankruptcy Code; provided, however, that PwC shall be compensated in accordance with the
terms of the Engagement Letter and subject to the procedures set forth in the Bankruptcy Code,
the Bankruptcy Rules, the Local Rules, and any other applicable orders of the Court.
4. Notwithstanding anything to the contrary in the Bankruptcy Code, the Bankruptcy
Rules, the Local Rules, orders of this Court or any guidelines regarding submission and approval
of fee applications, in light of services to be provided by PwC, and the structure of PwC' s
compensation pursuant to the Engagement Letter, PwC and its professionals shall be granted a
limited waiver of the information requirements set forth in Local Bankruptcy Rule 2016-2 and
shall maintain time records in one-half (1/2) hour increments.
5. PwC shall apply the amounts remaining from the Retainer, if any, to its first
monthly application for postpetition fees and expenses, and thereafter to each subsequent
monthly application for postpetition fees and expenses, until the Retainer is fully exhausted.
6. The indemnification obligations of the Debtor are set forth on page 8 of the
Engagement Letter are approved, during the pendency of this chapter 11 case, subject to the
following:
01:12258158.4
a. PwC shall not be entitled to indemnification, contribution, or reimbursement
pursuant to the Engagement Letter for services other than those described in the
Engagement Letter, unless such services and indemnification therefor are
approved by the Bankruptcy Court;
2
b. The Debtor shall have no obligations to indemnify PwC, or provide contribution
or reimbursement to PwC, for any claim or expense that is either: (i) judicially
determined (the determination having become final) to have arisen from PwC's
gross negligence, willful misconduct, breach of fiduciary duty, if any, bad faith or
self-dealing; (ii) for a contractual dispute in which the Debtor alleges the breach
ofPwC's contractual obligations, unless the Court determines that
indemnification, contribution, or reimbursement would be permissible pursuant to
In reUnited Artists Theatre Company, et al., 315 F.3d 217 (3d Cir. 2003); or (iii)
settled prior to a judicial determination as to the exclusions set forth in clauses (i)
and (ii) above, but determined by the Court, after notice and a hearing to be a
claim or expense for which PwC should not receive indemnity, contribution, or
reimbursement under the terms of the Engagement Letter as modified by this
Order; and
c. If, before the earlier of (i) the entry of an order confirming a chapter 11 plan in
this chapter 11 case (that order having become a final order no longer subject to
appeal), and (ii) the entry of an order closing this chapter 11 case, PwC believes
that it is entitled to the payment of any amounts by the Debtor on account of the
Debtor's indemnification, contribution, and/or reimbursement obligations under
the Engagement Letter (as modified by this Order), including without limitation
the advancement of defense costs, PwC must file an application therefor in this
Court, and the Debtor may not pay any such amounts to PwC before the entry of
an order by this Court approving such payments. This subparagraph (c) is
intended only to specify the period of time under which the Court shall have
jurisdiction over any request for fees and expenses by PwC for indemnification,
contribution, or reimbursement, and not a provision limiting the duration of the
Debtor's obligation to indemnify PwC. All parties in interest shall retain the right
to object to any demand by PwC for indemnification, contribution, or
reimbursement.
7. During the pendency of this chapter 11 case, any limitation of liability or
limitation on any amounts to be contributed by the parties to the Engagement Letter under the
terms of the Engagement Letter shall be eliminated.
8. The Debtor is authorized and empowered to take all actions necessary to
implement the relief granted in this Order.
9. The terms and conditions of this Order shall be immediately effective and
enforceable upon its entry.
01:12258158.4
3
10. This Court shall retain jurisdiction with respect to all matters arising from or
related to the implementation of this Order.
July __ , 2012
01:12258158.4
Christopher S. Sontchi
United States Bankruptcy Judge
4
EXHIBITB
Williams Declaration
01:12258158.4
In re: Chapter 11
1
Case No. 12-11893 (CSS)
Debtor.
DECLARATION OF DANIEL WILLIAMS IN SUPPORT OF THE DEBTOR'S
APPLICATION FOR AN ORDER AUTHORIZING THE RETENTION OF
PRICEWATERHOUSECOOPERS LLP AS FINANCIAL ADVISOR
TO THE DEBTOR NUNC PRO TUNC TO THE PETITION DATE
AND WAIVING CERTAIN REQUIREMENTS UNDER LOCAL RULE 2016-2
I, Daniel Williams, under penalty of perjury, declare as follows:
1. I am a partner in the firm ofPricewaterhouseCoopers LLP ("PwC"), located at
One North Wacker, Chicago, IL 60606. I submit this declaration in support of the application
(the "Application") of the above-captioned debtor and debtor-in-possession (the "Debtor") for
entry of an order pursuant to sections 327(a) and 328(a) of the Bankruptcy Code
2
authorizing the
retention and employment ofPwC as financial advisor to the Debtor nunc pro tunc to the Petition
Date and granting relief under Local Rule 2016-2. Except as otherwise noted, I have personal
knowledge of the matters set forth herein.
3
Professional Qualifications
2. For the purposes of this declaration, PwC is the United States firm of the global
network of separate and independent member firms, which operate locally in countries around
1
2
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed in the Application.
3
Certain of the disclosures herein relate to matters within the personal knowledge of other professionals at PwC and
are based on information provided by them.
01:12258158.4
the world.
4
PwC has over 30,000 employees in the United States and has a wealth of experience
in providing accounting, tax and advisory services with chapter 11 restructuring and other
distressed company circumstances, advising both debtors and creditors throughout the United
States.
3. PwC has acted as financial advisor in both in-court and out-of-court restructurings
of companies of various sizes across a wide array of industries. PwC's clients include debtors,
creditors, corporate parents, financial sponsors and indenture trustees. Of relevance to the
Debtor's circumstances, PwC has considerable experience providing financial advisory services
to businesses in a chapter 11 environment, and has been employed in numerous chapter 11 cases
within this district including: In re AbitibiBowater Inc., Case No. 09-11296 (KJC); In re Aleris
International, Inc., Case No. 09-10478 (BLS); In re American Home Mortgage Holdings, Inc.,
Case No. 07-11047 (CSS); In re Appleseed's Intermediate Holdings LLC, Case No. 11-10160
(KG); In re Autobacs Strauss, Inc., Case No. 09-10358 (CSS); In re Buffets Restaurants
Holdings, Inc., Case No. 12-10237 (MFW); In reBuilding Materials Holding Corp., Case No.
09-12074 (KJC); In re Coach Am Group Holdings Corp., Case No. 12-10010 (KG); In re
Filene's Basement, LLC, Case No. 11-13511 (KJC); In re Foamex International Inc., Case No.
09-10560 (KJC); In re HUB Holding Corp., Case No. 09-11770 (PJW); In re JER/Jameson Mezz
Borrower I LLC, Case No. 11-13392 (MFW); In re Local Insight Media Holdings, Inc., Case No.
10-13677 (KG); In re Muzak Holdings LLC, Case No. 09-10422 (KJC); In re Nassau
Broadcasting Partners, L.P., Case No. 11-12934 (KG); In re NewPage Corporation, Case No. 11-
12804 (KG); In re OTC Holdings Corporation, Case No. 10-12636 (BLS); In re Orleans
Homebuilders, Inc, Case No. 10-10684 (P JW); In re Pemco World Air Services, Inc., Case No.
4
The member fmns are linked together through membership in PricewaterhouseCoopers International Limited, a
UK membership-based company (the "PwC Worldwide Organization.").
01:12258158.4
2
12-10799 (MFW); In re Smurfit-Stone Container Corp., Case No. 09-10235 (BLS); In re
Townsends, Inc., Case No. 10-14092 (CSS); Inre Tribune Co., Case No. 08-13141 (KJC); Inre
Trico Marine Services, Inc., Case No. 10-12653 (BLS); In re Trident Microsystems, Inc., Case
No. 12-10069 (CSS); In re Urban Brands, Inc., Case No. 10-13005 (KJC); and In re Visteon
~ ' Case No. 09-11786 (CSS). PwC is well qualified to assist the Debtor as its financial
advisor.
4. PwC will render services to the Debtor as needed throughout the course of the
chapter 11 case as described in the Engagement Letter and the Application. PwC's service as
financial advisor does not duplicate the services provided to the Debtor by any ofthe Debtor's
other professionals. PwC will undertake to work with the Debtor and their other professionals to
make every reasonable effort to avoid duplication between PwC's services and the services
provided by any other professionals employed by the Debtor.
5. The Debtor believes that the services ofPwC are necessary to enable the Debtor
to maximize the value of its estate. Further, PwC is well qualified and able to represent the
Debtor in a cost-effective, efficient and timely manner.
Services to Be Provided
6. The Debtor retained PwC pursuant to the terms of the Engagement Letter, a copy
of which is annexed to the Application as Exhibit B. Pursuant to the Engagement Letter, the
Debtor retained PwC to provide the following services, without limitation:
01:12258158.4
a) Evaluating strategic alternatives, including restructuring options, capital
raising, sale of assets, etc ... ;
b) Advising and assisting with the Debtor's development of cash flow
projections and business restructuring plans, including related financial
forecasts; and sensitivity analyses relating to the Debtor's forecasts and
assumptions;
c) Advising and analyzing any proposed asset sales and other proposed
3
transactions in which the Debtor seeks Court approval;
d) Advising the Debtor in connection with its negotiations with: (i) lenders
regarding debtor-in-possession and exit financing facilities; and (ii) key
vendors regarding post-petition shipments and critical vendor payments
and assistance in preparation thereof;
e) Testifying as a "fact or percipient witness" in the Debtor's bankruptcy
court proceedings based on PwC' s direct knowledge of the estate arising
from or relating to the services performed;
f) Advising the Debtor on tactics and strategies for negotiating with the
stakeholders;
g) Advising and assisting the Debtor in connection with the Debtor's
accumulation of data and preparation of various schedules, operating
reports, account analyses, and reconciliations, including reconciliations of
claims, bankruptcy petitions, the plan of reorganization and other reports
required by the Court, bankruptcy schedules and statements of financial
affairs, monthly operating reports, and such other documentation that is
customarily issued by a debtor;
h) Advising regarding golf course industry metrics and operations;
i) Providing forensic accounting assistance, as needed, relating to financial
records of the Debtor or any other party;
j) Consulting relating to litigation matters, as requested;
k) Providing other forensic accounting and advisory services as requested;
and
1) Providing other general restructuring advice, as requested.
7. To the extent the Debtor request that PwC perform additional services not
contemplated by the Engagement Letter or directly related to services detailed in the
Engagement Letter, the Debtor shall seek further application for an order of approval by the
Court for any such additional services, and such application shall set forth, in additional to the
additional services to be performed, the additional fees sought to be paid.
Professional Compensation During the Chapter 11 Case
8. The compensation structure described below is consistent with PwC's normal and
01:12258158.4
4
customary billing practices for engagements of this size and complexity, and reflects the
difficulty of the extensive assignments PwC expects to undertake. PwC's rate structure is
equivalent to the hourly rates and corresponding rate structure predominantly used by PwC for
restructuring, workout, bankruptcy, insolvency and comparable matters, as well as similar
complex corporate, securities and litigation matters whether in court or otherwise, regardless of
whether a fee application is required. This rate structure reflects that restructuring and other
complex matters are typically national in scope and involve great intricacy, high stakes and
severe time pressures. PwC believes that the foregoing compensation arrangement is (a)
reasonable, (b) market-based and (c) merited by PwC's extensive knowledge and experience, and
its successful provision of financial advisory services to other troubled companies.
9. Pursuant to the terms and conditions of the Engagement Letter, and subject to the
Court's approval, PwC intends to (a) seek compensation for the hourly services in accordance
with its ordinary and customary rates in effect on the date such services are rendered, and (b)
seek monthly reimbursement of actual and necessary out-of-pocket expenses and internal per
ticket charges for booking travel.
10. PwC's hourly rates are set at a level designed to fairly compensate PwC for the
work of its partners and professionals and to cover fixed and routine overhead expenses. Hourly
rates vary with the experience and seniority of the individuals assigned. These hourly rates are
subject to periodic adjustments to reflect economic and other conditions and are consistent with
the rates charged elsewhere. In particular, PwC hourly rates in the United States for matters
related to these services range as follows:
01:12258158.4
Partner
Director
Manager
Senior Associate
Associate
Secretarial
$670-$790
$535-$580
$410-$450
$325-$375
$270-$315
$75-$125
5
11. PwC's hourly rates are subject to periodic adjustment from time to time in
accordance with PwC's established billing practices and procedures. PwC will provide notice of
any changes to its hourly rates within ten (10) business days thereof to the U.S. Trustee and the
Committee and file such notice with this Court.
12. It is PwC's policy to charge its clients in all areas of practice for identifiable, non-
overhead expenses incurred in connection with the representation of that particular client. It is
also PwC's policy to charge its clients only the amount actually incurred by PwC in connection
with such items. Examples of such expenses include postage, overnight mail, courier delivery,
transportation, overtime expenses, computer assisted legal research, photocopying, airfare, meals
and lodging.
13. During the ninety (90) days prior to the Petition Date, on June 22, 2012, PwC
received from the Debtor an initial advance retainer of$75,000 (the "Retainer"). $13,500 of the
Retainer was drawn by PwC to pay fees incurred in providing services to the Debtor in
contemplation of, and in connection with, prepetition financial advisory activities. As of the
Petition Date, the Retainer was $61,500.
14. Due to the ordinary course and unavoidable reconciliation of fees and submission
of expenses immediately prior to, and subsequent to, the Petition Date, PwC has incurred
unbilled fees and reimbursable expenses which relate to the prepetition period. PwC seeks to
apply the Retainer to these amounts and any further prepetition fees and expenses PwC becomes
aware of during its ordinary course billing review and reconciliation. Upon the proposed
applications of the Retainer, the Debtor would not owe PwC any sums for pre-petition services.
15. The PwC professionals providing the financial advisory services will consult with
internal PwC bankruptcy retention and billing advisors (the "PwC Retention Advisors") to
01:12258158.4
6
ensure compliance with the requirements of the Bankruptcy Code, as well as decrease the overall
fees associated with the administrative aspects ofPwC's engagement. The services provided by
these PwC Retention Advisors shall include, but are not limited to, assistance with the
bankruptcy retention documents; assistance with the disinterestedness disclosures; assistance
with completion of the requisite fee applications; and assistance with compliance with applicable
provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, the guidelines of the
U.S. Trustee, and the orders of this Court. Due to the specialized nature of these services, and
consistency between bankruptcy venues, specific billing rates have been established for these
PwC Retention Advisors.
5
16. Notwithstanding anything to the contrary in the Engagement Letter.PwC intends
to apply for compensation for professional services rendered and reimbursement of expenses
incurred in connection with the Debtor's Chapter 11 case on an hourly basis, subject to Court
approval and in compliance with applicable provisions of the Bankruptcy Code, the Bankruptcy
Rules, the Local Rules, the U.S. Trustee Guidelines and any other applicable procedures or
orders of the Court. However, it is not the general practice ofPwC professionals to keep detailed
time records (i.e., increments of one-tenth of an hour (six minutes)) similar to those customarily
kept by attorneys compensated through the Bankruptcy Court. PwC professionals' customary
practice provides a description of the services rendered and the amount of time spent on each
date in rendering services on behalf of their clients rather than breaking it into separate tasks
throughout each date.
17. PwC will file interim and final fee applications for the allowance of compensation
for services rendered and reimbursement of expenses incurred in accordance with applicable
provisions ofthe Bankruptcy Code, the Bankruptcy Rules, the Local Rules, the guidelines of the
5
The rate per hour for these PwC Retention Advisors by level of experience will be as follows: Partner: $790;
Director: $550; Manager: $400; Senior Associate: $290; Associate: $225 and Paraprofessional: $125- $150. These
Ol:ll2SSI5i.!fs are subject to periodic adjustments.
7
U.S. Trustee, and any applicable orders of this Court. PwC will keep time records, and include
these records as an exhibit to each fee application, which shall set forth a description of the
services rendered by each professional and the amount of time spent on each date, in half-hour
(0.5) increments, by each such individual in rendering services on behalf of the Debtor. I believe
that these time descriptions still provide the ability to review the time entries and evaluate the
services provided by our professionals. Accordingly, to the extent necessary based on the
foregoing, PwC respectfully requests that the information requirements set forth in Local Rule
2016-2(d) be modified and waived, to the extent necessary.
PwC's Disinterestedness
18. In connection with the preparation of this Declaration, PwC professionals
conducted a review of their contacts with the Debtor and certain entities holding claims against
or interests in the Debtor and parties otherwise involved in the chapter 11 case that were
reasonably known to PwC (the "Interested Parties"). PwC's review, completed under my
supervision, consisted of a query of the Interested Parties within an internal computer database
containing names of individuals and entities that are present or recent former clients of PwC.
PwC is continuing to review the Interested Parties and based upon its review as of this date, PwC
has determined that it does not represent any party in these proceedings with a material adverse
interest with respect to the Debtor. A summary of such relationships that PwC identified during
this process is set forth on Appendix 1 to this Declaration.
19. PwC confirms it is not providing and will not provide services to any of the
clients that are listed on Appendix 1 that are adverse to the Debtor or related to issues connected
to the Debtor's bankruptcy. Further, PwC is not providing and will not provide services to the
Debtor that would be adverse to any of the entities listed on Appendix 1. Despite the size or
significance of the relationships with the entities listed on Appendix 1, none of those
01:12258158.4
8
relationships will compromise in any way PwC's ability to serve as the Debtor's financial
advisor.
20. PwC has provided and likely will continue to provide services umelated to the
Debtor's case for the various entities shown on Appendix 1. Our assistance to these parties has
been primarily related to auditing, tax, and/or other consulting services. To the best of my
knowledge, no services have been provided to these creditors or other parties in interest, which
could impact their rights in the Debtor's chapter 11 case, nor does PwC's involvement in the
chapter 11 case compromise its ability to continue such auditing, tax and/or consulting services.
21. Further, as part of its diverse practice, PwC appears in numerous cases,
proceedings and transactions that involve many different professionals, including attorneys,
accountants and financial consultants, who may represent claimants and parties-in-interest in the
Debtor's chapter 11 case. In addition, PwC has performed in the past, and may perform in the
future, audit, tax and consulting services for various attorneys and law firms in the legal
community, and has been represented by several attorneys and law firms in the legal community,
some of whom may be involved in the chapter 11 case. In addition, PwC has in the past, may
currently and will likely in the future be working with or against other professionals involved in
this case in matters umelated to the Debtor and the chapter 11 case. Based on our current
knowledge of the professionals involved, and to the best of my knowledge, none of these
business relationships create interests materially adverse to the Debtor herein in matters upon
which PwC is to be employed, and none are in connection with this case.
22. Despite the efforts described above to identify and disclose PwC's connections
with Interested Parties, PwC is unable to state with certainty that every client relationship or
other connection has been disclosed. In this regard, if PwC discovers additional information that
requires disclosure, PwC will file a supplemental disclosure with the Court as promptly as
01:12258158.4
9
possible.
23. Additionally, in connection with each of its engagements, PwC may use employees
from its U.S. and non-U.S. subsidiary affiliates, depending on the needs of the engagement PwC
may also utilize third-party contractors or subcontractors (each, an "Independent Contractor") in
this chapter 11 case. IfPwC utilizes such Independent Contractors, then (a) PwC will file, and
require the Independent Contractor to file, declarations indicating that the Independent
Contractor has reviewed the list of the Interested Parties in this case, disclosing the Independent
Contractor's relationships, if any, with the Interested Parties, and indicating that the Independent
Contractor is disinterested, (b) the Independent Contractor will remain disinterested during the
time that PwC is involved in providing services on behalf of the Debtor, and (c) the Independent
Contractor will represent that he/she will not work for the Debtor or other parties in interest in
this chapter 11 case during the time PwC is involved in providing services to the Debtor. Also, it
is PwC's standard practice is to charge for an Independent Contractor's services at the rate PwC
pays the Independent Contractor for such services.
24. PwC does not believe it is a "creditor" with respect to fees and expenses ofthe
Debtor within the meaning of 101(10) of the Bankruptcy Code.
25. Further, to the best of my knowledge and except as set forth in this Declaration,
PwC does not have any connection to the Debtor's attorneys, the U.S. Trustee, or any judge in
the United States Bankruptcy Court for the District of Delaware.
26. As such, to the best of my knowledge, if engaged PwC will be a "disinterested
person" as that term is defined in section 101(14) of the Bankruptcy Code, as modified by
section 1107(b) ofthe Bankruptcy Code, in that PwC:
a. is not a creditor, equity security holder, or insider of the Debtor;
01:12258158.4
10
b. is not and was not, within two years before the date of the filing of
the Debtor's chapter 11 case, a director, officer, or employee ofthe
Debtor; and
c. does not have an interest materially adverse to the interest of the
estate or of any class of creditors or equity security holders, by
reason of any direct or indirect relationship to, connection with, or
interest in, the Debtor, or for any other reason.
27. In addition, to the best of my knowledge and based upon the results ofthe
relationship search described above and disclosed herein, PwC neither holds nor represents any
interest adverse to the Debtor within the meaning of section 327(a) ofthe Bankruptcy Code.
28. It is PwC's policy and intent to update and expand its ongoing relationship search
for additional parties in interest in an expedient manner. If any new material facts or
relationships are discovered or arise, PwC will promptly file a supplemental declaration pursuant
to Bankruptcy Ru1e 2014(a)
Pursuant to 28 U.S.C. 1746, I declare un
and correct.
Date: July 9, 2012
01:12258158.3
11
APPENDIX 1 TO DECLARATION OF DANIEL WILLIAMS
In addition to the work performed for the Debtor, PwC: (a) currently performs or
has previously performed services as described in the Williams Declaration in matters umelated
to the chapter 11 case, to the individuals or entities disclosed in this Appendix 1; or (b) has other
relationships with such entities, such as banking relationships. Out of an abundance of caution,
where it is unclear whether a party in interest is the same entity or affiliated with an entity that is
or was represented by PwC, such parties in interest are listed below.
RELATIONSHIPS KNOWN AS OF JULY 2, 2012:
Professionals
Foley & Lardner LLP
Crowe Horwath
Vendors, Service Providers I Other Parties
in Interest
Acushnet Company
Aggreko LLC
American Express
AT&T Mobility
Bankserv
Bridgestone Golf, Inc.
Callaway Golf
Century link
Cigna - Great West Health
Comcast Cable
CSC Corporate Svc. Co.
Delta Dental
Ecolab, Inc.
HD Supply Facilities Maint.
Toyota Financial Services
In the Swim
Integrated Technology
K2 Corporation
Lawson Products, Inc.
Level 3 Communications
Marmot Mountain LLC
01:12258158.4
McMaster-Carr Supply Co.
Nike USA, Inc.
Oakley, Inc.
Office Depot, Inc.
Philadelphia Insurance Co.
Ping, Inc.
Pitney Bowes Global Fin.
Polo Ralph Lauren
Sage Software Inc.
Source gas
Taylor Made Inc.
TCF Equipment Finance
Textron Financial Corp.
United Parcel Service
US Bank
W.W. Grainger
Waste Management
Greenberg Traurig
John Deere
John Deere Credit
Ford Motor Credit
EXHIBITC
Engagement Letter
01:12258158.4
pwc
PRIVILEGED AND CONFIDENTIAL
June 21, 2012
Mr. Christopher Celentino
Foley & Lardner LLP
San Diego, CA 92101
Mr. Dan Fitchett, CEO
Cordillera Golf Club, LLC
0097 Main Street, Ste E 202
Edwards CO, 81632
Dear Gentlemen:
LLP
One North Wacker
Chicago, IL 6o6o6
Telephone (312) 298 2000
Facsimile (312) 298 2001
This agreement confirms the parties' understanding of the terms of engagement betvveen
PricewaterhouseCoopers LLP, a Delaware limited liability partnership ("PwC" or '\ve") and Foley &
Lardner LLP ("Counsel") to perform the advisory services tlescribed below (the "Services") in
connection with Counsel's provision oflegal advice to Cordillera Golf Club, LLC ("Client").
Services
PwC will petform the advisory Services in connection v,rith Client's contemplated
proceeding under Chapter 11
1
of the U.S Bankruptcy Code (the "Bankruptcy").
Restructuring Advisory Services
PwC's Services may include the following restructuring advisory Services:
" Evaluate strategic alternatives including restructuring options, capital raising, sale of assets,
etc.;
Advice and assistance with Client's development of cash flow projections and business
restructuring plans, including related financial forecasts; and sensitivity analyses relating to
Client's forecasts and assumptions;
Advice and analyses relating to any proposed asset sales and other proposed transactions in
V.rhich Client seeks Comt approval;
Advise Client in connection with its negotiations with:
a lenders regarding and exit financing facilities and
-
pwc
o key vendors regarding post-petition shipments and critical vendor payments and
assistance in the preparation thereof;
" Testifying as a "fact or percipient witness" in Client's bankruptcy court proceedings based on
PwC's direct knowledge of the estate arising from or relating to the Services performed;
Advise the Client on tactics and strategies for negotiating with the stakeholders; and
" Provide other general restructuring advice as requested.
Other Restructuring Services
" PwC >\>'ill provide advice and assistance to Client in connection with Client's accumulation of
data and preparation of various schedules, operating reports, account analyses, and
reconciliations, including reconciliations of claims, bankruptcy petitions, the plan of
reorganization and other reports required by the bankruptcy court, bankruptcy schedules
and statements of financial affairs, monthly operating reports and such other documentation
that is customarily issued by a debtor. If requested by Client, PwC will accumulate data and
prepare certain schedules and reports based upon Client's instructions, however, Client is
responsible for the procedures and methods used to accumulate data and prepare all
schedules, analyses and reconciliations. These Services will be based upon information
provided by Client. The resulting materials prepared by PwC will be reviewed and approved
by the member of Client's management team responsible for the information and its 11se; and
" General advice around golf course industry metrics and operations.
Forensic Accounting; & Advisory Services
In connection vlith litigation specifically identified by Client, if requested, PwC's Services may include
the follo>ving forensics accounting and advisory Services:
.. Forensics accounting assistance, as needed, relating to financial records of Client or any
other party;
" Consulting assistance relating to any litigation matters as requested; and
Provide other forensic accounting and advisory Services as requested.
PwC's observations and advice on accounting and financial reporting matters do not represent PwC's
concurrence, conclusion or opinion. Client should consult with its independent auditors on the
application of accounting principles. Any observations PwC makes on what may be the views of the
staff of the Securities and Exchange Commission or the independent auditors may be without any
prior discussion with the staff of the Securities and Exchange Commission or the independent
auditors and may not reflect their actual views.
2
pwc
Deliverables
PwC's reporting to Counsel and Client >viii include oral advice and various written outlines, executive
summaries, presentations, memoranda, analysis of issues, and schedules prepared in connection
with the engagement as requested (collectively, "Deliverables").
Counsel and Client will own all Deliverables prepared for and delivered by PwC under this agreement
and PwC 'IVill own its working papers, preexisting materials and software, as well as any general
skills, lmow-how, processes or other intellectual property (including a non-Client specific vetsion of
any Deliverables) which PwC may have discovered or created as a result of the Services ("PwC
Materials"). Counsel and Client have a nonexclusive, non-transferable license to use any PwC
Materials included in the Deliverables for their own internal use as part ofthose Deliverables.
Preliminary advice and draft Deliverables are works in progress and neither Counsel nor Client
should rely on these until PwC confirms its advice or provides Counsel and Client with a final
Deliverable.
In addition to Deliverables, P;vC may develop spreadsheets, electronic materials, software, databases
and other tools to assist it with an engagement. If PwC makes these available to Counsel and/or
Client, they are provided "as is" and Counsel's and Client's use of these materials is at their own risk.
Use ofDeliverables
PwC is providing the Services and Deliverables solely for Counsel's and Client's internal use and
benefit. The Services and Deliverables are not for a third party's use, benefit or reliance and PwC
disclaims any contractual or other responsibility or duty of care to others based upon the Services or
Deliverables. Except as described below, Counsel and Client shall not discuss the Services with or
disclose Deliverables to any third party, or otherwise disclose the Services or Deliverables without
PwC's prior written consent. The Services and DeHverables, including any oral advice or comments,
should not be associated with,.referred to or quoted in any manner in any financial statements or any
offering memorandum, prospectus, registration statement, public filing, loan or other agreements.
Counsel and Client may disclose Deliverables to or discuss information relating to the Services with
Client's third party professional adv'isors (including accountants, auditors, attorneys, financial and
other advisors) which are acting solely for Client's benefit and on Client's behalf and whieh have a
need to lmow such information in order to provide adviee or services to Client, provided that such
advisors agree: (i) that PwC did not pelform the Services or prepare Deliverables for such advisors'
use, benefit or reliance and PwC assumes no duty, liability or responsibility to such advisors, and (ii)
to not disclose the Services or Deliverables to any other party without PwC's prior written consent.
Third party professional advisors do not include any parties that are providing or may provide
insurance, financing, capital in any form, a fairness opinion, or selling or underwriting securities in
connection vvith any transaction that is the subject of the Services or any counterparty to an
anticipated transaction or dispute or any parties which have or may obtain a financial interest in
Client or an anticipated transaction. If the Deliverables are to be distributed to or information
relating to the Services discussed with any third party (other than Client's professional advisors),
Counsel and Client shall first obtain PwC's consent, and an executed third party access letter in PvC's
standard form.
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PwC is performing the Services at the direction of Counsel, and in performing the Services, PwC may
communicate or interact with Client's officers, directors, employees, representatives, agents or
advisors and others.
Client or PwC may disclose the Services or Deliverables to the extent required by law (including
bankruptcy law), rule, regulation or professional standards, or as compelled by legal process,
provided that (other than for disclosures to routine supervisory examinations by regulatory
authorities v.ith jurisdiction) the disclosing party provides the other party with prompt written notice
of a request to disclose such information (so long as such notice is not prohibited by law), so that the
other party may, at its option, object to and/or seek an appropriate protective order.
Counsel and Client may disclose any materials that do not contain P1,vC's name or other information
that could identify PwC as the source Ceither because PwC provided a Deliverable without identifying
information or because Counsel or Client subsequently removed it) to any third party if Counsel or
Client (as applicable) first accepts and represents them as its o>vn and makes no reference to PwC in
connection vrith such materials.
PwC's Responsibilities
PwC's role is advisory only. PwC performs advisory Services in accordance with the American
Institute of Certified Public. Accountants {''AI CPA") Standards for Consulting Serviees. PwC
performs tax Services in accordanee with AICP A Statements on Standards for Tax Services. PwC
performs accounting advisory Services for non-audit clients in accordance with the AI CPA Standards
for Reports on the Application of Accounting Principles. PwC performs valuation Services which
represent an estimate of value in accordance v.ith the AICPA Statement on Standards for Valuation
Services ("Valuation Standards"),
PwC performs the Services on the basis that information provided is accurate and complete. PwC
v..illnot provide an audit, accounting, tax or attest opinion or other form of assurance. PwC will not
audit or verify any information provided to it. The Services cannot provide assurance that matters of
significance to Counsel or Client will be disclosed and the Services are not intended or likely to reveal
fraud or misrepresentation. The Services and Deliverables do not include the provision oflegal or
investment advice; afairness or solvency opinion or a recommendation to purchase, sell, or transfer
an interest in an entity or any securities or assets. PwC is not a registered broker/ dealer or
investment advisor as defined by federal securities laws and will not perform broker/dealer or
investment advisor services.
Counsel's and. Client's Responsibilities
Client is responsible for all management functions and decisions relating to the Services. Counsel
and Client are responsible for evaluating and accepting the adequacy of the scope of Services in
addressing their needs. Counsel and Client are responsible for the results achieved from using the
Services or Deliverables. Counsel and Client will designate competent members of management to
oversee the Services. Counsel and Client will proyjde accurate and complete information, and
reasonable assistance, and PwC will perform the Services on that basis. It is Client's responsibility to
establish and maintab its internal controls.
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Client is responsible for the preparation of its financial statements and any proposed acquisition,
investment, transfer, disposal or divestment including the process of conducting and sh-ucturing any
transaction, setting the price, making decisions to purchase, sell or transfer an interest in an entity or
any secmities or assets and the information provided to third parties in connection therewith.
PwC understands that Counsel and CUent may seek to assert attorney-client privilege or apply the
attorney work product doctrine to the Services and Deliverables. PwC makes no representation as to
whether the privilege or doctrine will apply, as the application of privilege or doctrine are legal
questions. Counsel and Client are solely responsible for determining whether or not the attorney-
client privilege, attomey work product doctrine or other privilege may apply and Counsel and Client
are solely responsible for managing the establishment and maintenance of any such privilege or
protection.
Client hereby undertakes to hold PwC harmless from and be responsible forany expenses (including
attorneys fees, court costs, costs incurred by outside advisors, and any other costs imposed whether
byway of a penalty or othervvise) incurred byPwC as a result of Counsel andjor Client's assertion of
the privilege or their direction of PwC to assert the privilege on their behalf.
Client is responsible for the pteparation of its bankmptcy petitions and plan of reorganization. Client
is also responsible for the development or restatement of any pmspective financial information and
cash flows ("PFI") and for making any assumptions or projections relating to Client's PFI. PwC will
not make any predictions or provide any opinion or other assurance with respect to PFI. Any
Senices performed by PwC in connection with PFI are solely to assist Client to fulfil its
responsibilities. As events and circumstances frequently do not occur as expected, there may be
material differences between PFI and actual results. PwC disclaims responsibility and liability for
PFI and any results achieved.
If Client engages a third party to act as its Chief Restructming Officer ("CRO"), the parties
understand and agree that the CRO has the requisite authority to act on behalf of and as a fiduciary
agent of Client and to direct the reorganization process and PwC's Services. PwC may discuss the
Services and share information with Client's management and/or the CRO jointly or separately. It is
Client's management's and the CRO's responsibility to share any information received from PwC with
each other. PwC is not responsible or liable for any communication 'v:ith Client's management
and/or the CRO that is not communicated to the other.
Confidentiality
"Confidential Information" means non-public information marked "confidential" or ''proprietary" or
that othervvise should be understood by a reasonable person to be confidential in nature, provided by
a party or on its behalf. All terms of this agreement, including but not limited to fee and expense
structure, are considered Confidential Information. Confidential Information does not include any
information which (i) is rightfully known to the recipient prior to its disclosure; (ii) is released to any
other person or entity (including governmental agencies) without restriction; (iii) is independently
developed by recipient without use of or reliance on Confidential Information; or (iv) is or later
beeomes publicly available without violation of this agreement or may be l a ~ ~ ; f u l l y obtained by a party
from a non-party. Each party will protect the confidentiality of Confidential Information that it
receives and the parties will not use or disclose any Confidential Information for any purpose otl1er
than to perform this agreement, or as required by applicable law, statute, rule, regulation or
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professional standard, including V\rtthout limitation bankruptcy la\vs and related rules, without the
other patties' prior consent If disclosure is required by law, statute, rule, or regulation (including
any subpoena or other similar form of process), or by professional standards, the party to which the
request for disclosure is made shall (other than in connection \'lith routine supervisory examinations
by regulatory authorities with jurisdiction and without breaching any legal or regulatory
requirement) prm'ide the other parties with prior ptompt written notice thereof and, if practicable
under the circumstances, allow the other parties to seek a restraining order or other appropriate
relief.
Tax Services
Notwithstanding any provisions to the contrary in this agreement, Counsel and Client have no
obligation of confidentiality with respect to any portion of any materials, advice or Deliverables to the
extent that they concern the tax structure or tax treatment of any transaction, If Counsel or Client
makes a disclosure pursuant to this paragraph, Counsel and Client will only disclose information
directly related to the tax structure or tax treatment of the transaction and Counsel or Client will (a)
provide PwC with the name of the person to whom the disclosure was made and a description of the
information and materials disclosed; (b) notifY such person that they may not rely upon such
information and that PwC has no obligation, duty, liability or responsibility to such person; and (c)
use commercially reasonable efforts to obtain an executed third party access letter from such person,
as determined by PwC, other than Client's professional advisors as provided for above.
Unless agreed in writing that PwC will provide a Covered Opinion, as defined in U.S. Treasury
Circular 230 ("Circular 230"), any written tax-related ad\rtce in connection with the Services \<\'ill be
Otl1er Written Advice, as defined in Circular 230. PwC's Other Written Advice is not intended to be
used to avoid tax penalties and it must not be used to avoid tax penalties.
Relationships with Other Parties
This is a non-exclusive agreement and, subject to PwC's confidentiality obligations, PwC and the
Other PwC Firms (defined below) are not prevented or restricted from providing services to other
clients. Counsel and Client each consent to PwC and the Other PwC Firms providing these services.
6
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Timing, Fees and R'Lpenses
The fees are based on the time required to complete the engagement Individual hourly rates vary
according to the experience and skill required. The fees for the Services will be based on the
following agreed upon hourly rates, which will be revised from time to time. Adjusted rates will be
reflected in billings;
Personnel Hourly Billing Rate
Partner $670-$790
Director $535- $s8o
Manager
i $410-$450
Senior Associate $325-$375
Associate $270-$315
Secretarial $75-$125
A $75,000 retainer is requested to begin the Services. Actual charges will be applied against the
retainer. Thereafter, PwC will render invokes on a regular basis.
PwC will also bill Client for out-of-pocket expenses, any applicable sales, use or value added tax, and
PwC's internal per-ticket charges for booking travel.
Amounts billed for services performed by PwC and the PwC Firm Subcontractors (defined below)
sha1l be considered fees and not CJ,.'))enses and will be billed at rates determined by PwC based upon
experience, skill and other factors or as otherwise agreed by the parties.
Unless otherwise agreed by the parties, PwC w:ill invoice Client on a regular basis and Client shall pay
each invoice within 15 days after the invoice date. All invoices ,-vjl] be addressed to and payable by
Client.
PwC's hourly fees are not contingent upon the consummation of a transaction, or any aspects of the
Services and/or Deliverables.
PwC acknowledges that payment of the fees and expenses shall be subject to the jurisdiction and
approval of the bankruptcy court, any order approving PwC's retention, and any requirements
governing interim and final fee applications.
Notwithstanding that this agreement is also addressed to Counsel, PwC and Client each acknowledge
and agree that neither Counsel nor any of its partners, employees, .officers, affiliates, agents and
representatives (collectively "Firm") shall be responsible for the payment of PvtC's costs and fees in
regard to Services or Deliverables provided by PwC, Other PwC Finns, PwC Firm Subcontractors or
any of their respective agents or subcontractors in regard to this engagement or any other matters the
Firm is handling for Client; PwC shall seek payment of its costs and fees solely from Client and not
the Firm, even if the Firnnnay, from time to time, advanee such costs and/or fees.
7
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Limitations of Liability
PwC is the U.S. firm of the global network of separate and independent PricewaterhouseCoopers
firms (exclusive of PwC, the "Other PwC Firms"). During its performance of the Services, PwC may,
in its discretion, draw on the resources of andjor subcontract to its subsidiaries and to the Other PwC
Firms (each a ''PwC Firm Subcontractor") and/or third pmty contractors and subcontractors, in each
case 'Within or outside of the United States. Counsel and Client each agree that PwC may provide
information PwC receives in connection with this agreement to the PwC Firm Subcontractors and/or
third party contractors and subcontractors to perform the Services and/ or for internal administrative
and regulatory compliance purposes. PwC will be solely responsible for the provision of the Services
(including those performed by the PwC Firm Subcontractors and any third party contractors and
subcontractors) and, the PwC Firm Subcontractors, the third party contractors and subcontractors
and theirs and PwC's respective partners, principals or employees (collectively the "Beneficiaries")
shall have no liability or obligations arising out of this agreement. Counsel and Client each agree to
bring any claim or other legal proceeding of any nature arising from the Services against PwC and not
against the Beneficiaries. Client also agrees if any of Client's subsidiaries or affiliates receive or
otherwise benefit from the Sen1ces, Client shall ensure that any claims or disputes relating to the
Serviees are brought pursuant to the terms of this agreement against PwC and not against the
Beneficiaries. PwC disclaims any contractual or other responsibility or duty of care to any other
subsidiaries or affiliates and Client agrees to ensure or procure that Client's other subsidiaries and
affiliates do not assert any claim or other legal proceeding against PwC or the Beneficiaries. Client
assumes responsibility and liability for Client's subsidiaries' and affiliates' compliance with this
agreement While PwC is entering into this agreement on its own behalf, this section also is intended
for the benefit of the Beneficiaries.
Except to the extent finally determined to have resulted from PwC's gross negligence or intentional
misconduct, PwC's aggregate liability for all claims, losses, liabilities or damages in connection >vith
this agreement or its subject matter, whether as a result of breach of contract, tort (including
negligence) or otherwise, regardless of the themy of liability asserted, is limited to no more than the
total amount of fees paid to PwC for the particular Service giving rise to the liability. In addition,
PwC ,,.;n not be liable in any event for lost profits, consequential, indirect, punitive, exemplary or
special damages. Also, PwC shall have no liability arising from or relating to any third party
hardware, software, information or materials selected or supplied by Counsel or Client.
Client shall indemnify PwC and the Beneficiaries and hold them harmless from and against all third
party claims, losses, liabilities and damages arising from or relating to the Services or Deliverables,
except to the extent finally determined to have resulted from PwC's gross negligence or intentional
misconduct relating to the Sen1ces and/or Deliverables.
If the liability limitations and/ or indemnities set forth in this agreement are finally determined to be
unavailable, in no event shall PwC's and/or the Beneficiaries' aggregate liability exceed an amount
that is proportional to the relative faillt that their conduct bears to all other conduct giving rise to the
claims, damages and/or losses.
Termination and Dispute Resolution
Any party to this agreement may terminate the Services without penalty by giving notice to that
effect,' PwC may resign from its performance of any Sen1ces which may conflict with law, rule,
8
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regulation, independence or other professional regulations, standards or guidelines to which PwC
conforms. Any provisions of this agreement which expressly or by implication are intended to
survive its termination or expiration will survive and continue to bind the parties.
Any unresolved dispute relating in any way to the Services or this agreement shall be resolved by
arl1itration. The arbitration will be conducted in accordance with the Rules for Non-Administered
Arbitration of the International Institute for Cont1ict Prevention and Resolution ("Rules'') then in
effect. The arbitration will be conducted before a panel of three arbitrators selected using the
screened process provided in the Rules. The arbitration panel, and not any federal, state or local
court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation,
applicability, enforceability or formation of this agreement. The arbitration panel shall have no
power to award non-monetary or equitable relief of any sort. It shall also have no power to award
damages inconsistent with the Limitation of Liability provisions or any other terms above. Counsel
and Client each accept and acknowledge that any demand for arbitration arising from or in
connection with the Services must be issued within one year from the date Counsel or Client became
aware or should reasonably have become aware of the facts that give rise to the alleged liability and,
in any event, no later than two years after the cause of action accrued,
This agreement and any dispute relating to the. Services will be governed by and construed,
interpreted and enforced in accordance with the laws of the State of New York, without giving effect
to any provisions that would require the laws of another jurisdiction to apply.
Other Matters
If PwC performs any Services prior to the parties executing this agreement, this agreement shall be
effective as of the date PwC began performing those Services.
PwC is owned by professionals who hold CPA licenses as well as by professionals who are not
licensed CPAs. Depending on the nature of the services PwC provides, non-CPA owners may be
involved in performing the Services.
If Client files a petition for relief under Chapter 11, Client will promptly apply to the bankruptcy court
for authorization to retain PwC pursuant to the terms of this agreement nunc J!IQ tunc to the petition
date. Pending approval by the bankruptcy court, PwC shall continue to perform the Services subject
to the tem1s of this agreement and file interim and final applications for fees and expenses pursuant
to the applicable bankruptcy rules and procedures.
Client agrees PwC may refer to Client's name in experience citations for PwC marketing purposes
with other clients and prospective clients and in recruitment materials.
PwC is an independent contractor, not a fiduciary or agent of Counsel or Client, and shall not
perform any obligation of Counsel or Client, whether regulatory or contractual, nor shall PwC
negotiate on Counsel's or Client's behalf. No party to this agreement may assign or transfer this
agreement, or any rights, benefits, obligations, claims or proceeds from claims arising hereunder,
without the prior written consent of the other party, and any assignment without such consent shall
be void and invalid. If any provision of this agreement is found to be unenforceable, the remainder of
this agreement shall be enforced to the extent permitted by law. This agreement supersedes any
prior understandings, proposals or agreements concerning the Services and represents the entire
9
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agreement between the parties with regard to the subject matter hereof. Any changes to this
agreement must be agreed in vmting. This agreement may be executed in counterpruis, each of
which shall be deemed an original, but all of which taken together shall constitute one single
document betvveen the parties. Counterparts may be exchanged by facsimile, or attached as a pdf,
jpeg, or similar file type to an email.
If Counsel or Client have any questions about this agreement, please contact Daniel Williams at 312-
298-3438. If the Services and terms of this agreement are acceptable, please sign a copy of this
agreement below and return .it to the undersigned.
Very truly yours,
PricewaterhouseCoopers LLP
By:
Date:
Daniel Williams
Partner
ACCEPTED AND AGREED:
Foley & Lardner LLP
Signature:
Please print name:
Title:
Date:
Mr. Dan Fitchett, CEO Cordillera Golf Club
Signature of client official:
Please print name:
Title:
Date:
10

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IN THE UNITED STATES BANKRUPTCY COURT

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