2024-09-20 SDC Term Sheet for DIP Financing DPW - Delaware BK CourtIn re SilverRock Development Company, LLC, et al.
Jointly Administered Chapter 11 case no. 24-11647 (the "Bankruptcy Case")
Term Sheet for Debtor -In -Possession Financing Facility (the "Facility")
This Term Sheet sets forth the terms and conditions of a debtor -in -possession credit facility to be
provided to the Borrowers, as defined below, by the City of La Quinta. This term sheet is non-
binding and is merely an expression of interest.
1. Borrowers: SilverRock Development Company, LLC (5730), RGC PA 789, LLC
(5996), SilverRock Lifestyle Residences, LLC (0721), SilverRock Lodging, LLC, (4493),
SilverRock Luxury Residences, LLC (6598) and SilverRock Phase 1, LLC (2247) (collectively,
"Borrowers")
2. Lender: Subject to satisfaction of internal approvals, the lender will be City of La
Quinta (the "City"). Borrowers and the City may jointly agree in writing to include additional
creditors as lenders, on such terms and conditions as both such parties may agree.
3. Maximum Commitment: The aggregate maximum amount of principal under the
Facility will be $2,000,000 ("Funding Cap"). The maximum commitment of the City will be
$2,000,000. The City reserves the right to increase the amount of the Funding Cap in its sole and
absolute discretion. The maximum amount of funding pursuant to the Interim Approval Order
shall be $250,000. To the extent that the Borrowers require more capital, the Borrowers have the
right to seek and obtain additional capital subject to Court approval and providing that such
additional funding pays off this Facility, and the City reserves all rights with respect thereto.
4. Draws. Draws will be made no more often than monthly and shall be for an
amount not to exceed the anticipated payments for the following month, except for the first draw
which may include funds in arrears from the Petition Date as noted in the Approved Budget;
provided, however, that the first draw must be within the amount approved by the Interim
Approval Order. Draw requests shall itemize specific proposed payments under the Approved
Budget (as hereinafter defined). Each draw request shall include a report identifying payments
made from prior draw requests, and payments that have been requested and funded, but not yet
paid. Borrowers' cash balances on hand, and in the case of professional and CRO fees and
expenses, retainer balances, shall be used prior to drawing funds from the Facility; provided,
however, that Borrowers may maintain not more than $15,000 in cash on hand before requesting
the next draw.
5. Term: Subject to satisfaction of all terms and conditions set forth herein, in the
Interim Approval Order, a Final Approval Order and the Loan Documents, and the absence of
any default, Borrowers shall be entitled to draw down and borrow under the Facility from
effective date of the Interim Approval Order (defined below), through January 9, 2025 (the
"Term"). The Term may be extended in the sole discretion of the City.
6. Maturity Date. All principal, interest, fees and charges under the Facility shall be
due and payable on the first to occur of:
a. The effective date of a chapter 11 plan for any of the Borrowers in the Bankruptcy
Case.
b. The closing of a sale of assets and/or assignment of all or a substantial portion of
any of the Borrowers' assets.
c. The occurrence of a default under or with respect to the Facility.
d. The dismissal or conversion of the Bankruptcy Case (or the case of any of the
Borrowers), or appointment of a trustee with respect to any of the Borrowers.
e. The entry of an order (i) granting relief from the automatic stay with respect to
any real estate; (ii) granting relief from the automatic stay as to any other asset of
Borrowers with a value in excess of $500,000; or (iii) converting or dismissing
the case, or directing the appointment of a chapter 11 trustee.
f. The filing of a chapter 11 plan or disclosure statement by any Borrower that does
not pay off this Facility. While any indebtedness remains outstanding under the
Facility, Borrowers shall provide City a copy of their proposed plan and notice of
their intent to file such plan, at least two weeks' prior to filing. On or after the
expiration such 2-week notice period, the City may file its own plan and
disclosure statement, and thereafter take all action to seek approval and
confirmation, notwithstanding any exclusivity period that may apply. Nothing in
this subparagraph is intended to limit any obligation or provision herein regarding
transparency, communications or limitations with respect to exclusivity.
g.
The termination of Douglas Wilson as chief restructuring officer.
h. Failure to obtain entry of the Final Approval Order in the form and substance
approved by the City within 21 days following entry of the Interim Approval
Order.
i. March 15, 2025.
7. Interest. Interest shall accrue on the outstanding principal advanced by the City at
the Local Agency Investment Fund ("LAIF") rate in effect from time to time. (Such rate
presently is 4.55% per annum; see LAIF Quarterly Apportionment Rates (ca.gov)). From and
after a default with respect to the Facility, default interest shall accrue and be payable on the
outstanding principal under the Facility at the rate of 5.0% (which shall be in addition to the
LAIF rate, or the maximum allowable interest rate per California law, whichever is less.
8. Transfer taxes; recordation fees and costs. Unless an applicable exemption
applies, on the Maturity Date and thereafter, Borrowers shall pay all applicable transfer taxes,
recording fees and similar taxes, costs and charges that are required in connection with the
Facility and the recordation of instruments in connection with securing the Facility.
9. City's legal fees and costs. On the Maturity Date and thereafter, Borrowers shall
pay all legal fees and costs incurred by the City in connection with the preparation and
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negotiation of this term sheet, the Interim Approval Order, the Final Approval Order, the Loan
Documents and the Facility, in an amount not to exceed $25,000, subject to Court review and
approval. Additionally, in the event that Borrowers default with respect to their indebtedness or
obligations with respect to the Facility or the aforementioned instruments, the City shall be
entitled to recover actual and reasonable attorneys' fees and costs incurred in connection with
any enforcement action, subject to Court review and approval. These amounts shall not apply
against the Approved Budget.
10. Security. Borrowers' obligations and indebtedness under the Facility shall be
secured by liens and security interests on all assets of Borrowers, including without limitation all
claims and causes of action of the Borrowers or the bankruptcy estates that concern or relate to
liens on the Borrowers' real property, but excluding avoidance actions that are unrelated to liens
on the Borrowers' real property. Liens in favor of the City that secure obligations under the
Facility shall be subject to all existing prepetition liens and security interests; provided, however,
that nothing in this Term Sheet, the Loan Documents, the Interim Approval Order or the Final
Approval Order shall constitute a finding, determination, admission or waiver or release by the
City with respect to the validity, priority, extent or avoidability of any lien or security interest
that attaches to, or is asserted against, any property that secures Borrowers' obligations or
indebtedness under the Facility, and all rights of the City with respect to such matters are
preserved. Liens and security interests securing Borrowers' obligations and indebtedness under
the Facility shall be deemed fully perfected without filing or recordation (without prejudice to
the City's rights to require filing and recordation). The City shall have a superpriority claim
pursuant to section 364(c) (and other applicable provisions of the Bankruptcy Code), with
priority over all other administrative expenses, subject solely to the Carve Out (defined below).
11. Covenants. In addition to covenants, terms and conditions that are customarily
included in debtor -in -possession loan documents, the following terms, conditions and covenants
shall govern the Borrowers and the Facility:
a. Borrowers and the City shall negotiate in good faith with each other regarding a
possible consensual chapter 11 plan. The City's obligation to negotiate in good
faith does not contemplate or require that the City agree, accept or consent to the
continued direct or indirect involvement of Robert Green, the Robert Green
Company or any of his/its affiliates as "Developer" with respect to the project or
any portion thereof.
b. Subject to 11(a) of this term sheet, each Party agrees to fairly consider and
evaluate any restructuring, financing or plan regarding the Debtors presented by
the other Party.
c. Borrowers shall comply in all respects with orders of the Bankruptcy Court,
including without limitation the order approving the appointment of Douglas
Wilson as chief restructuring officer ("CRO", and "CRO Order").
d. Funds advanced under the Facility shall be used solely for the purposes set forth
in a budget approved by the City (the "Approved Budget"). Any adjustments to
the Approved Budget shall be approved by the City, for which approval shall not
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be unreasonably withheld, provided that the adjustment does not cause the total
Approved Budget to exceed the maximum amount of the Funding Cap. All
expenditures under the "contingency" line of the Approved Budget that exceed
$2,500 for an individual item, and $25,000 in the aggregate, shall be subject to the
prior written approval of the City, in its sole and absolute discretion, for which
approval shall not be unreasonably withheld.
e. Funds advanced under the Facility shall not be used for the purpose of
investigating or prosecuting claims or causes of action against the City, or for
activities or expenditures that are not expressly approved by the City (either
pursuant to the Approved Budget or by the City's prior written consent).
f. Borrowers and CRO shall provide to the City all documents and information in
their possession, custody or control that the City from time to time may request in
writing regarding: the condition or value of the Borrowers' assets; claims against
Borrowers; negotiations and communications with prospective purchasers and/or
financers of the Borrowers or their business; contracts between Borrowers and
third parties; transfers and payments made by Borrowers; and dealings between
Borrowers and their insiders.
g.
The above notwithstanding, Borrowers are not required to provide to the City any
documents or information protected by attorney -client privilege or attorney -client
confidentiality. Borrowers may request that the City execute one or more NDA's
with respect to any documents or information designated by Borrowers as
confidential. All disputes pertaining to the designation of confidential material or
to the enforceability of relevant NDA's shall be resolved by the Bankruptcy
Court.
h. Borrowers shall maintain security for the project consistent with the Approved
Budget. Such security measures shall include: fenced and locked access to all
areas of construction including construction staging areas; security camera system
to remain operational and to have sufficient storage capacity for at least two
weeks of video recordings; and roadways and pathways adjacent to the project
site where the public has access must be maintained and protected if impacted by
conditions related to the project, this can include barricades or k-rail to protect
slopes, and or repair and maintenance associated with water, sand or debris from
the project site.
i. Borrowers shall maintain fencing on the property as follows: fencing as described
above for security where applicable shall include dust screening; all gated access
to construction areas shall be lockable; and fencing shall be maintained to provide
uninterrupted security of the site and reduce the spread of blowing sand or dust.
J.
Borrowers and the CRO shall not enter into any binding contract, agreement or
term sheet (other than contracts for ordinary course goods or services requiring
payments that are covered by an applicable line items of the Approved Budget)
without Court approval. Prior to entering into such binding contracts, agreements
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or term sheets outside of the ordinary course of business, Borrowers shall provide
City with five calendar days advance notice, during which time City shall have
the right to consult with Borrowers regarding any disagreements. If such
disagreements remain after the five-day period expires, they shall be resolved by
the Bankruptcy Court.
k. At no time while there is any indebtedness or obligations outstanding under the
Facility, or after all indebtedness has been repaid and other obligations under the
Facility satisfied, Borrowers and the CRO shall not oppose a motion by the City
seeking the appointment of an examiner or other fiduciary to review and
investigate transactions by and among Borrowers and their insiders, provided,
however, that the cost of funding an examiner or other professionals under this
section shall be funded outside of the Approved Budget, and that Borrowers may
request an additional loan from the City to fund the examiner or other
professional. This provision shall not apply in the event the City seeks the
appointment of a Chapter 11 Trustee.
12. Carve Out. There shall be a carve out from the City's superpriority administrative
expense claim for:
a. Fees payable to the United States Trustee pursuant to section 28 U.S.C. §1930(a);
b. Fees payable to the clerk of the Court; and
c. Allowed fees and expenses incurred by the Borrowers' court approved
professionals and the CRO from the date of entry of the Interim Approval Order
through first to occur of (i) the conclusion of the Term or (ii) the third (3ra)
calendar day following City's delivery of a notice of default under the Facility;
provided, however, that (i) the amount of such carve out shall not exceed the
amounts set forth for professionals and the CRO in the Approved Budget, less all
amounts paid to the professionals and the CRO from the Facility; and (ii) no carve
out shall be available with respect to fees or expenses that are incurred with
respect to matters that are not a permitted use of the proceeds of the loans under
the Facility.
13. Conditions to funding.
a. Interim funding. In addition to customary conditions to funding, the City's
obligation to fund any amount on an interim basis, or otherwise participate in the
Facility, is subject to and conditioned upon satisfaction of the following
conditions:
i. The approval of the La Quinta City Council.
ii. The entry and effectiveness of the CRO Order, in form and substance
acceptable to the City.
iii. Entry and effectiveness of the Interim Approval Order.
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iv. Each Borrower shall have filed its complete and accurate schedules and
statement of financial affairs.
v. Acceptance of an Approved Budget by the City.
vi. Delivery of a draw request that conforms to the terms of this Term Sheet
to the City at least three (3) business days prior to the requested draw.
b. Final Funding. Further funding under the Facility shall be subject to and
conditioned upon satisfaction of the following conditions:
i. Entry and finality of an order (the "Final Approval Order") approving the
Facility.
ii. Satisfaction of all conditions set forth in paragraph 13(a), above.
iii. The preparation, execution and (as applicable) recordation of the Loan
Documents in a form and substance acceptable to the City in its sole
discretion.
iv. Absence of any default by Borrowers or the CRO under the Interim
Approval Order, the Final Approval Order, the Loan Documents or the
CRO Order.
v. Prior to the City funding more than $1,000,000, Borrowers shall have
accomplished the following milestones:
1. Site protection and clean up has commenced and is on track to be
completed not later than December 10, 2024;
2. Updated appraisals of the Borrowers properties shall have been
ordered. Continued funding shall be conditioned on completion of
the appraisal reports within 30 days following substantial
completion of cost -estimate process discussed below. Borrowers
shall provide a copy of all draft and final appraisal reports to the
City immediately upon their receipt of same;
3. The cost estimating process has been completed; and
4. The Borrowers, through the CRO, has entered into an agreement,
and filed an application to retain, a commercial real estate advisor
to market the development opportunity presented by Borrowers'
business (the City reserving its rights with respect thereto).
14. Defaults. In addition to customary defaults, the following shall constitute defaults
under the Facility:
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a. Any Borrowers' failure to comply with the Loan Documents, this term sheet, the
Interim Approval Order, the Final Approval Order, the CRO Order, or any other
order of the Bankruptcy Court;
b. Failure to pay principal, interest, fees or charges under the Facility when due;
c. Entry of an order (i) granting relief from the automatic stay on any portion of
Borrowers' real estate; (ii) granting relief stay on any other Borrower asset with a
value in excess of $500,000; or (iii) converting or dismissing the Bankruptcy
Case, or appointing a trustee.
15. Approval Orders.
a. Interim Approval Order. The order approving the Facility on an interim basis (the
"Interim Approval Order") shall contain terms and conditions that are customary
for orders approving debtor in possession financing. Additionally, and without
limiting the generality of the foregoing, the Interim Approval Order shall:
i. Approve and implement the terms set forth in this Term Sheet;
ii. Approve interim funding under the Facility in the maximum amount of
[$250,000];
iii. With respect to the rights of the City and its interests in the Borrowers'
property, provide for waiving the "equities of the case" exception in
Bankruptcy Code section 552(b) and estate surcharge rights in Bankruptcy
Code section 506(c) upon entry of the Final Approval Order;
iv. Provide for its immediate effectiveness upon entry;
v. Forever waive and release any and all rights of the Borrowers:
1. to seek or obtain entry of an order priming (under section 364(d) of
the Bankruptcy Code) the liens and security interest of the City
that secure the Facility, or the prepetition liens, security interests of
the City, and/or property interests of the City (including without
limitation the City's repurchase options); or
2. without the City's prior written consent to sell, transfer, assign or
revest the Borrowers' property free and clear of (under a plan,
section 363(f) or otherwise); either the liens and security interests
of the City that secure the Facility, or the prepetition liens, security
interests of the City, and/or property interests of the City
(including without limitation the City's repurchase options);
3. Such waiver and release, as they pertain to the rights of the City,
shall survive repayment of the indebtedness and satisfaction of
other obligations under the Facility;
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vi. Forever waive Borrowers' rights to seek or obtain any extension of the
exclusivity periods under Sections 1121(b), 1121(c)(2) and 1121(c)(3) of
the Bankruptcy Code, absent the prior written consent of the City; and
vii. Provide that the security interests and liens securing Borrowers'
obligations and indebtedness under the Facility are deemed perfected
without filing or recordation (without prejudice to the rights of the City to
require filing and recordation).
b. Final Approval Order. The order approving the Facility on a final basis (the
"Final Approval Order") shall contain terms and conditions that are customary for
orders approving debtor in possession financing. Additionally, and without
limiting the generality of the foregoing, the Final Approval Order shall:
i. Restate and reaffirm the provisions of the Interim Approval Order; and
ii. Approve the form and substance of the Loan Documents.
16. Miscellaneous
a. The CRO and the Borrowers shall maintain open and transparent communications
with the Major Constituents (along with the City, Poppy Bank, Cypress Point
Holdings, LLC, Construction Loan Services II, LLC dba Builders Services, R.D.
Olson Construction, Inc. and such other parties as the Court may direct) regarding
all material developments, prospects and plans arising or occurring from time to
time during the pendency of this case, including without limitation DIP financing,
sale of assets, protection of assets, budgets, pending or threatened litigation,
motions, formulation of a chapter 11 plan, and all other matters that are within the
scope of the CRO's engagement. To the extent necessary or appropriate, the
provision of information by the CRO or Borrowers may be subject to a
confidentiality agreement or protective order to the extent provided in section
107(b) of the Bankruptcy Code. To facilitate the orderly provision of
information, the CRO shall meet routinely with the Major Constituents. Unless
otherwise agreed, such meetings shall occur weekly, and all relevant documents
and a proposed agenda shall be circulated one business day prior to each
scheduled meeting. Such meetings may take place by video conference. The CRO
shall participate in such meetings, as may counsel and/or representatives of the
Borrowers and the Major Constituents.
b. Except to the extent of a genuine and material emergency, the CRO and
Borrowers shall provide to the Major Constituents a draft of all motions and
applications that they intend to submit as soon as reasonably practicable, but not
less than three (3) business days prior to serving or filing such motion or
application. In the event that any of the Major Constituents raises a concern
regarding any proposed motion or application, the CRO and the Borrowers shall
attempt to address such concerns in good faith.
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c. The exclusivity periods provided in sections 1121(b), 1121(c)(2) and 1121(c)(3)
shall not be extended absent the prior written consent of each of the Major
Constituents, and neither the Debtors nor DWC shall seek to extend such
deadlines for any reason absent the prior written consent of each of the Major
Constituents.
d. The provisions set forth in this section 16 are in addition to other provisions of
this term sheet, and shall survive repayment of the indebtedness under the
Facility.
Agreed.
SilverRock Development Company, LLC,
RGC PA 789, LLC,
SilverRock Lifestyle Residences, LLC,
SilverRock Lodging, LLC,
SilverRock Luxury Residences, LLC, and
SilverRock Phase 1, LLC
By: /T3
Name: Douglas Wilson
Chief Restructuring Officer
City of La Quinta
By:
Attest:
By:
•
on McMillen, City Manager
v
9/20/2024
Monika Radeva, City Clerk
Approved as to form:
By: w`G(.;.,..m.TG.—_
William H. Ihrke, City Attorney
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