2024-02-07 SDC - Agrmt to Waive & Modify Notice & Cure Period PSDA re CypressAGREEMENT TO WAIVE AND MODIFY NOTICE AND CURE PERIOD
(PURCHASE, SALE, AND DEVELOPMENT AGREEMENT)
(Cypress Point Holdings LLC Trustee Notice]
THIS AGREEMENT TO WAIVE AND MODIFY NOTICE AND CURE PERIOD (PURCHASE,
SALE, AND DEVELOPMENT AGREEMENT) (Cypress Point Holdings LLC Trustee Notice) ("Waiver
And Modification Agreement") is dated as of February 7, 2024 ("Agreement Date"), by and
between the CITY OF LA QUINTA, a California municipal corporation and charter city (the "City"),
SILVERROGK DEVELOPMENT COMPANY, LLC, a Delaware limited liability company
("Developer"), SILVERROCK PHASE I, LLC, a Delaware limited liability company ("SRPI"), and
SILVERROCK LAND II, LLC, a Delaware limited liability company ("SRL") (collectively, SRPI and
SRL are referred to herein as "Developer" and "Developer" includes any and all affiliates of
Developer). The City and Developer are periodically individually referred to herein as a "Party" and
collectively the "Parties".
RECITALS:
A. City and Developer entered into that certain Purchase, Sale, and Development
Agreement dated November 19, 2014 (the "Original PSDA"), as amended by that certain
Amendment No. 1 to Purchase, Sale, and Development Agreement dated October 29, 2015
("Amendment No.1"), that certain Amendment No.2 to Purchase, Sale, and Development
Agreement dated April 18, 2017 ("Amendment No. 2"), that certain Amendment No. 3 to Purchase,
Sale, and Development Agreement dated November 28, 2018 ("Amendment No. 3"), that certain
Amendment No. 4 to Purchase, Sale, and Development Agreement dated October 12, 2021
("Amendment No. 4"), and that certain Amendment No. 5 to Purchase, Sale, and Development
Agreement dated November 16, 2023 ("Amendment No. 5", and collectively, the Original PSDA and
Amendments Nos.1-5 are referred to as the "PSDA"), pursuant to which City agreed to sell to
Developer specified real property for the development of the SilverRock Resort Area, renamed
"Talus," with said development more particularly described in detail in the Recitals to Amendment
No. 5.
B. Section 501 of the Original PSDA, still in full force and effect, generally provides that
a Party claiming a Default must give written notice describing a Default to the other Party, and that
the Party claiming Default may not institute any proceeding against the other Party, and the other
Party is not deemed in Default, unless a Default is cured within thirty (30) days from receipt of such
notice, or if the nature of a Default cannot be cured within thirty (30) days, the Party with due diligence
commences cure within thirty (30) days and completes the cure with diligence.
C. On December 7, 2023, First American Title Insurance Company ("Trustee") recorded
in the Riverside Gounty Official Records ("Recorder's Office") that certain IMPORTANT NOTICE /
NOTICE OF DEFAULT AND ELECTION TO SELL UNDER DEED OF TRUST, recorded as
Document No. 2023-0363986 (the "Trustee's Default Notice"). The Trustee's Default Notice was
caused to be recorded by Cypress Point Holdings, LLC ("Cypress") c/o Michelman & Robinson for
a delinquent payment specified therein, secured by that certain deed of trust dated 11/18/2022
executed by Developer in favor of Cypress and recorded in the Recorder's Office on November 30,
2022 as Document No. 2022-0486431 (the "Cypress Deed of Trust"). This Waiver and Modification
Agreement is entered into without waiver of any rights or defenses Developer may have to the
Trustee's Default Notice.
D. The Parties mutually agree, as more particularly set forth herein, that the City must
be able to exercise its rights otherwise available under the PSDA and available at law or in equity to
initiate and/or participate in any legal proceedings (in a judicial court or otherwise) without having the
obligation to provide the full thirty (30) days written notice and cure period in the event that Cypress,
Trustee, or any other party with rights under the Trustee's Default Notice or Cypress Deed of Trust,
were to proceed with a Trustee sale of any or all of the real property secured by the Cypress Deed
of Trust, as more particularly set forth in this Waiver and Modification Agreement.
E. Unless otherwise specifically defined herein, all capitalized words and terms used in
this Waiver And Modification Agreement shall have the meanings ascribed to such words and terms
in the PSDA, and all Section references below refer to Sections of the PSDA (or, if applicable,
Amendment to the PSDA).
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated
herein by this reference and a substantive part of this Agreement, and for other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree
as follows:
1. Effectiveness. This Waiver And Modification Agreement shall be effective as of
the Agreement Date.
2. Waiver of 30-Day Notice and Cure Period in Section 501 of Original PSDA.
Commencing on and after February 29, 2024, with respect to any Default under the PSDA resulting
from or related to the Trustee's Default Notice and Cypress Deed of -Trust, only, Developer hereby
waives the provisions in Section 501 of the Original PSDA that: (1) prior to the City instituting any
proceedings against Developer for such a Default, that the City deliver to Developer 30-days' written
notice, and (2) Developer shall not be in such Default if Developer cures such Default in thirty (30)
days from the receipt of such notice or commences to cure said Default within thirty (30) days from
the receipt of such notice.
3. Modification of Notice and Cure Period. Commencing on and after February 29, 2024,
and notwithstanding any provisions in Section 501 of the Original PSDA or any other provision in the
PSDA to the contrary, the City shall not institute any proceeding against Developer for a Default
under the PSDA resulting from or related to the Trustee's Default Notice and Cypress Deed of Trust,
and the Developer shall not be in said Default if Developer cures said Default within seven (7) days
from receipt of such notice from City for said Default. If Developer fails to cure said Default within
said seven (7) day cure period, City shall have the right to institute any proceedings (in a judicial
court or otherwise) pursuant to Section 502 of the Original PSDA an in accordance with any rights
and remedies available at law or in equity.
4. Term of Waiver And Modification Agreement. This Waiver And Modification
Agreement shall remain in full force and effect from the Effective Date until the resolution of any and
all disputes (including final resolution of any and all legal proceedings) resulting from or related to
the Trustee's Default Notice and Cypress Deed of Trust.
5. Miscellaneous.
5.1 PSDA in Full Force and Effect. Except as otherwise expressly provided in this Waiver
And Modification Agreement, all of the covenants, terms and conditions of the PSDA (including the
GENERAL PROVISIONS in Article 600, as modified in Amendment No. 1) shall remain in full force
and effect.
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5.2 Governing Law. This Waiver And Modification Agreement and the PSDA shall be
governed by the internal laws of the State of California, without regard to conflict of law principles,
and any question arising hereunder shall be construed or determined according to such law. The
Superior Court of the State of California in and for the County of Riverside, or such other appropriate
court in such county, shall have exclusive jurisdiction of any litigation between the parties concerning
this Amendment No. 5 or PSDA. Service of process on City shall be made in accordance with
California law. Service of process on Developer shall be made in any manner permitted by California
law and shall be effective whether served inside or outside California.
5.3 Interpretation. The PSDA, and this Waiver And Modification Agreement, shall be read
and interpreted in a comprehensive, integrated manner, and in a manner that best implements the
provisions of this Waiver And Modification Agreement.
5.4 Time is of Essence. Time is of the essence of this Waiver And Modification
Agreement and of each and every term and provision hereof.
5.5 City Approvals and Actions. City shall maintain authority over and implementation of
this Waiver And Modification Agreement pursuant to Section 605 of the Original PSDA.
5.6 Representations. The person(s) executing this Waiver And Modification Agreement
on behalf of each of the Parties hereto represent and warrant that (i) such party is duly organized
and existing, (ii) they are duly authorized to execute and deliver this Waiver And Modification
Agreement on behalf of said Party, (iii) by so executing this Waiver And Modification Agreement such
Party is formally bound to the provisions of this Waiver And Modification Agreement, and (iv) the
entering into this Waiver And Modification Agreement does not violate any provision of any other
agreement to which such party is bound.
5.7 Counterparts. This Waiver And Modification Agreement may be executed in
counterparts, each of which, when this Waiver And Modification Agreement has been signed by all
of the parties hereto, shall be deemed an original, and each such counterpart shall constitute one
and the same instrument.
[End of Waiver And Modification Agreement — Signature page follows]
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IN WITNESS WHEREOF, City and Developer have executed this Waiver And
Modification Agreement as of the date set forth above.
"DEVELOPER"
SILVERROCK DEVELOPMENT COMPANY,
LLC, a Delaware limited liability company
By: The Robert Green Company,
a California corporation
Its: Manager
By:
Name: Robert S. Green, Jr.
Its: President and Chief
Executive Officer
"SRPI"
SILVERROCK PHASE I, LLC, a Delaware
limited liability company
By: The Robert Green Company,
a California corporation
Its: Manager -
r
By: .�
Name: Robert S. Green, Jr.
Its: President and Chief
Executive Officer
"SRU
SILVERROCK LAND II, LLC, a Delaware
limited liability company
By: The Robert Green Company,
a California corporation
Its: Manager -
By. ��,
Name: Robert S. Gree, r.
Its: President and Chief
Date: February 7, 2024 Executive Officer
[Signatures continued to next page]
ME
"CITY"
CITY OF LA QUINTA, a California municipal
corporative--z!!id charter city
Date: February 7, 2024 By:
Jorr 9 Millen
City Manager
ATTEST:
OiIIW44
Monika Radeva, Ci Clerkj
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
By: 1
William H. Ihrke, City Attorney
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