Case:12-24882-ABC Doc#:357 Filed:08/10/12 Entered:08/10/12 16:51:38 Page1 of 3

In re:
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLORADO
)
CORDILLERA GOLF CLUB dba The
Club at Cordillera
) Case No. 12-24882 ABC
) Chapter 11
)
)
Debtor. )
FINAL ORDER PURSUANT TO SECTION 366 OF THE BANKRUPTCY
CODE (I) PROHIBITING UTILITY COMPANIES FROM ALTERING, REFUSING,
OR DISCONTINUING UTILITY SERVICES, (II) DEEMING UTILITY COMPANIES
ADEQUATELY ASSURED OF FUTURE PERFORMANCE, AND (III) ESTABLISHING
PROCEDURES FOR DETERMINING ADEQUATE ASSURANCE OF PAYMENT
Upon the Motion
1
of the debtor and debtor in possession in the above-captioned
case (the "Debtor") for entry of interim and final orders pursuant to section 366 ofthe
Bankruptcy Code, (i) prohibiting Utility Companies from altering, refusing, or discontinuing
Utility Services, (ii) deeming Utility Companies adequately assured of future performance, (iii)
establishing procedures for determining adequate assurance of payment, and (iv) setting a final
hearing related thereto, all as described more fully in the Motion; and upon consideration of the
Motion and all pleadings related thereto, including the First Day Declaration; and O\? C
notice of Motion having been given; and it appearing that no other or further notice is
required; fand it appearing that the Court has jurisdiction to consider the Motion 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 of this proceeding and this Motion 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. The Motion is granted on a final basis as modified herein.
2. The Debtor is authorized, but not directed, to pay on a timely basis and in
accordance with its pre-petition practices all undisputed invoices for post-petition Utility
Services provided by the Utility Companies to the Debtor.
3. To the extent not already deposited, the Debtor shall, on or before the date
which is twenty (20) days after the Petition Date, deposit a sum of $32,000, which represents
50% of the Debtor's estimated monthly cost ofthe Utility Services (the "Utility Deposit") into a
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newly created segregated bank account (the "Utility Deposit Account"), with such Utility
Deposit to be held in escrow, pending further order of the Court, which shall constitute adequate
assurance of payment for each Utility Company for post-petition Utility Services provided to the
Debtor. The Utility Deposit Account may be either interest-bearing or non-interest-bearing at
the Debtor's election.
4. The Utility Deposit Account shall be maintained with a minimum balance
equal to 50% of the Debtor's estimated monthly cost of Utility Service, which may be adjusted
by the Debtor (i) to account for the termination of Utility Services by the Debtor regardless of
any Requests (as defined in the Motion) and/or agreements with Utility Companies, and (ii) in
accordance with the terms of any agreement between the Debtor and the affected Utility
Company.
5. Absent further order of the Court, the Utility Companies are prohibited
from altering, refusing or discontinuing Utility Services on the basis of the commencement of the
Debtor's chapter 11 case or on account of any unpaid invoice for Utility Services provided before
the Petition Date and from requiring the Debtor to furnish any additional deposit or other
security to the Utility Companies for the continued provision of Utility Services.
6. If a Utility Company is not satisfied with the assurance of future payment
provided by the Debtor, the Utility Company must serve a written request (a "Request") upon
counsel to the Debtor, Foley & Lardner LLP, 402 West Broadway, Suite 2100, San Diego,
California 92101 (Attention: Dawn A. Messick, Esq.) and Sender & Wasserman, P.C., 1660
Lincoln Street, Suite 2200, Denver, CO 80264 (Attention: David V. Wadsworth, Esq.), and upon
counsel to the Official Committee of Unsecured Creditors (the "OCC"), Munsch Hardt Kopf &
Harr, P.C., 3800 Lincoln Plaza, 500 N. Akard Street, Dallas, TX 75201-6659 (Attention: Jay H.
Ong), setting forth the location(s) for which Utility Services are provided, the account number(s)
for such location(s), the outstanding balance for each account, providing a report on and
certifying the Debtor's payment history on each account for the previous twelve months,
disclosing any existing security deposit and an explanation of why the Utility Deposit is not
adequate assurance of payment.
7. In the event that the Debtor receives a Request, the Debtor shall
electronically transmit to counsel to the OCC (via e-mail to jong@munsch.com and
rmunsch@munsch.com) a notice of the Debtor's intended action in response to a Request
including any non-action ("Request Action") by no later than twenty (20) days after receipt of the
Request. The date the Debtor transmits such notice to counsel to the OCC will be deemed the
date of receipt.
8. In the event that the Debtor desires to increase or decrease the amount of
the Utility Deposit independent of a Request, the Debtor shall electronically transmit to counsel
to the OCC (via e-mail to jong@munsch.com and rmunsch@munsch.com) a notice of the
Debtor's intended proposed increase or decrease ("Proposed Action"). The date the Debtor
transmits such notice to counsel to the OCC will be deemed the date of receipt.
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9. If the Debtor believes a Request is unreasonable, then the Debtor shall,
within thirty (30) days after receipt of a Request (or such later date agreed to by the Debtor and
the requesting party, with electronic notice to OCC counsel), file a motion (the "Debtor's
Determination Motion") pursuant to section 366(c)(3) of the Bankruptcy Code seeking a
determination from the Court that the Utility Deposit, plus any additional consideration offered
by the Debtor, constitutes adequate assurance of payment.
10. If the OCC opposes a Request Action, the OCC may within ten (10) days
after receipt of a Request Action (or such later date agreed to by the Debtor, the OCC and the
requesting party), file a motion (the "OCC Request Determination Motion") pursuant to section
366(c)(3) of the Bankruptcy Code seeking a determination from the Court on the disputed
issue(s). If no OCC Request Determination Motion is filed within the time period set forth in
this Paragraph 10, the Debtor may proceed with the Request Action without further authorization
of any kind.
11. If the OCC opposes a Proposed Action, the OCC may within fourteen (14)
days of receiving the notice of Proposed Action, file a motion (the "OCC Proposed Action
Determination Motion") pursuant to section 366(c)(3) of the Bankruptcy Code seeking a
determination from the Court on the disputed issue(s). If no OCC Proposed Action
Determination Motion is filed within the time period set forth in this Paragraph 11, the Debtor
may proceed with the Proposed Action without further authorization of any kind.
12. Pending notice and a hearing on the Debtor's Determination Motion and/or
the OCC's Request Determination Motion and/or the OCC's Proposed Action Determination
Motion, the Utility Company that is the subject of the unresolved Request or other dispute, as
applicable, may not alter, refuse or discontinue services to the Debtor.
13. The Utility Deposit shall be deemed adequate assurance of payment for
any Utility Company that fails to make a Request.
14. Nothing in this Final Order or the Motion shall be deemed to constitute
post-petition assumption or adoption of any agreement pursuant to section 365 of the Bankruptcy
Code.
15. This Court shall retain jurisdiction with respect to all matters arising from
or related to the implementation and/or interpretation ofthis Final Order.
DATEDthis lD.-rh dayof ~ L L S + ,2012.
BY THE COURT:
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