2025-02-19 BBK Court Motion - Bid Procedures & Noticing ApprovalCase 24-11647-MFW Doc 358 Filed 02/19/25 Page 1 of 16
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re:
SilverRock Development Company, et al.,
Debtors)
Chapter 11
Case No. 24-11647 (MFW)
(Jointly Administered)
Hearing Date: March 12, 2025 10:30 a.m. (ET)
Objection Deadline: March 5, 2025 at 4:00 p.m. (ET)
MOTION FOR ENTRY OF ORDER (I) AUTHORIZING AND APPROVING (A) BID
PROCEDURES AND (B) FORM AND MANNER
OF NOTICE OF BID PROCEDURES
The Debtors and Debtors -in -Possession in the above captioned cases (the "Cases") hereby
file this Motion requesting the relief set forth herein. The form of order (the "Bid Procedure Order"
or "Order") is attached hereto as Exhibit A. The proposed bid procedures (the "Bid Procedures")
are attached to the Order as Exhibit 1. In support of the Motion, the Debtors respectfully state:
JURISDICTION AND VENUE
1. This Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334,
and the Local Rules of this Court. This is a core proceeding as defined in 28 U.S.C. 157(b)(2). The
Court has authority to enter a final order granting the relief requested herein pursuant to 28 U.S.C.
157(b)(1). Venue is proper pursuant to 28 U.S.C. 1408 and 1409.
2. The statutory bases for the relief requested herein are sections 105(a), 363, 365,
541, 1107(a) and 1108 of Title 11 of the United States Code (the "Bankruptcy Code"), and rules
'The Debtors in these chapter 11 cases, along with the last four digits of each Debtor's federal tax
identification number, as applicable, are: 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). The location of the Debtors' principal place of business and the
Debtors' mailing address is 343 Fourth Avenue, San Diego, CA 92101.
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2002, 6004, and 9014 of the Federal Rules of Bankruptcy Procedure ("BR") and Local Rules 2002,
of the Bankruptcy Court for the District of Delaware ("LBR").
I. BACKGROUND
3. The Debtors filed the Cases on August 5, 2024, and the Cases have been
administratively consolidated pursuant to order of this Court. (Dkt No. 22). Christopher Sontchi
is the sole and independent manager of the Debtors, and Douglas Wilson is the Debtors' Chief
Restructuring Officer.
4. The Debtors believe that the proper course for these Cases is through a confirmed
plan which includes approval of the sale of the Debtors' assets at the highest realizable price to a
buyer with the financial capability and development competence to finish construction and
development of the Project Opportunity (defined below), which consists of a master planned resort
community that includes a Pendry Hotel, a Montage Hotel, Pendry-branded residences, Pendry-
branded bungalows, Montage -branded residences, a golf clubhouse and shared conference center,
several undeveloped planning areas, a possible option to purchase additional real estate from the
City of La Quita (the "City"), and related contracts, including branding agreements with Montage
Hotel and Resorts and Pendry Hotels and Resorts, plans, development rights, drawings, permits,
existing site improvements, and equipment.2 This Motion, along with the order to engage Jones
2 As more specifically described and detailed in that certain Declaration of Jon McMillen in Support of City
ofLa Quintas Opposition to Motion of Debtors Pursuant to Sections 105, 361, 362, 363, 364, and 507 of the Bankruptcy
Code, Bankruptcy Rule 4001, and Local Rule 4001-2, for Interim and Final Orders (I) Authorizing Debtors to Obtain
Postpetition Financing; (II) Granting DIP Lender Liens and Super -Priority Claims; (III) Scheduling a Final Hearing;
and (IV) Granting Related Relief [Docket No. 67] (the "McMillen Declaration"), the City and Debtor SilverRock
Development Company LLC entered into that certain Purchase, Sale, and Development Agreement dated November
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Lang Lasalle ("JLL") as real estate broker (Dkt. No. 312) to market the Project Opportunity are
critical steps to reaching that goal.
II. THE BID PROCEDURES AND MARKETING PLAN
5. JLL, a nationally and internationally recognized real estate firm, is working both
with the Debtors and the City to devise an appropriate marketing plan to realize optimal value
from the sale of the Project Opportunity. Debtors, JLL, and the City all anticipate realizing such
value requires marketing and selling the Project Opportunity as a whole, rather than by its
component parts. In terms of the necessary time to professionally, competitively and effectively
market the Project Opportunity, JLL has advised that 6-8 months are necessary to get to the closing
of a sale. The process of marketing, receiving and considering bids, and selling the Project
Opportunity to the most qualified bidder is the subject of this herein Motion.
6. The anticipated timeline agreed to by Debtors, JLL, and the City to market the
Project Opportunity is as follows:
a) File motion for approval of the Bid Procedures (the "Motion") no later than
February 19, 2025;
19, 2014 (the "Original PSDA"), as amended by Amendment No. 1, dated October 29, 2015, Amendment No. 2, dated
April 18, 2017, Amendment No. 3, dated November 28, 2018, Amendment No. 4, dated October 12, 2021, and
Amendment No. 5, dated November 16, 2023 (together, the "PSDA") and that certain Statutory Development
Agreement, dated November 19, 2014, by and between SilverRock Development Company and City, adopted
pursuant to California Government Code section 65864 et seq. and recorded in the Office of the Riverside County
Official Records on December 18, 2014, as Document No. 2014-0484106 (the "Development Agreement"), which
concern the purchase, sale and development of two luxury resort hotels with attached residences, appurtenant golf
clubhouse and conference center, and other amenities known as "SilverRock" and referred to herein as the "Project."
The term, "Project Opportunity," means and includes the opportunity to negotiate for the purchase the portions of the
Project that are owned by the Debtors, the purchase, or option to Purchase, property that is owned by the City, and the
commitment to develop the Project on terms as may be agreed upon between the purchaser and the City.
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b) Hearing on the Motion and entry of an order approving the relief requested
in the Motion no later than March 12, 2025;
c) Obtain an order authorizing the Debtors to enter into a definitive agreement
with a Stalking Horse Bidder (as defined herein and in the Bid Procedures)
no later than May 16, 2025;
d) Potential Bidders shall submit to Debtors and JLL their qualifications to be
considered Qualified Bidders (as these terms are defined herein as in the
Bid Procedures) no later than June 7, 2025;
e) Submit final bids that are not contingent on due diligence or similar
discretionary considerations no later than July 1, 2025;
f) Complete the Sealed Bid Auction (as this term is defined herein and in the
Bid Procedures) and select a successful bidder (and if appropriate, the next -
highest bidder) no later than August 15, 2025; and
g)
File and serve notice identifying the Successful Bidder and Next -Highest
Bidder no later than August 18, 2025.
7. It is understood that some of these dates might have to be adjusted due to unforeseen
circumstances to accommodate the Court's calendar at the time, and to accommodate the City,
including any legal requirements to notice and hold public meetings. The dates may also be
adjusted by mutual agreement between Debtors and the City.
8. The proposed bidding procedures, attached to the Order as Exhibit 1, contain terms
typical for a process through which the sale of a complex set of assets is consummated after a well -
conceived marketing plan is executed in order to increase the likelihood that the Debtors will
receive the greatest possible price because they promote a competitive and fair bidding process.
9. The Debtors and JLL will oversee implementation of the Bid Procedures, which
will center around both the selection of a Stalking Horse Bidder and the completion of a Sealed
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Bid Auction3. While any Potential Bidder -individual or entity- may submit a Bid, only Qualified
Bidders will be considered as part of the Sealed Bid Auction for selection of the Successful Bidder
and Next -Highest Bidder. Qualified Bidders will consist of one or more Potential Bidders that the
Debtors and JLL, in consultation with the City, approve as capable of financing and developing
the Project Opportunity. Debtors, in conjunction with JLL and the City, will select, from among
the Qualified Bidders, a Stalking Horse Bidder to set a baseline price (the "Stalking Horse Initial
Bid") for the Sealed Bid Auction. The Stalking Horse Bidder will sign a binding contract with the
Debtors agreeing to purchase the Project Opportunity in the event no Bids by other Qualified
Bidders are made. The terms of this agreement will be made public.
10. After the Stalking Horse Initial Bid is set, JLL will begin soliciting Bids from
Qualified Bidders wishing to purchase the Project Opportunity for more than the Stalking Horse
Initial Bid. The Bids, consisting of each Qualified Bidder's best and highest offers, will be sealed
and each Qualified Bidder must agree to purchase the Project Opportunity in the event that it is
selected as the winning, or Successful Bidder. Each Qualified Bidder will be required to tender a
Good Faith Deposit, as that term is defined in the Bid Procedures, to be held in escrow by the
Debtors until such time that the Sealed Bid Auction is complete. To conclude the Sealed Bid
Auction, the Debtors, with the approval of the City, will select the two most attractive Bids as the
Successful Bid and Next -Highest Bid, respectively.
3 The Debtors and JLL, subject to the consent of the City, may decide, in the best interests of the
bankruptcy estate, to later convert the Sealed Bid Auction into a live and in -person Public Auction.
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11. As the Bidding Procedures are attached to the Bidding Procedures Order, they are
not herein restated in their entirety. Pursuant to Local Rule 6004, certain of the key terms of the
Bidding Procedures are highlighted in the chart below:4
MATERIAL TERMS F"TIE SIDING PROCEDURES
AND BIDDING PROC: URES RDE,R,
4
Provisions
Governing
Qualification of
Bidders and
Qualified Bids
Local Rule
6004-1(c)(i)(A)-
(B)
o Qualified Bidders must fully disclose their identities
and provide the contact information of the specific
person(s) whom the Debtors or its advisors should
contact (including any equity holder or other financial
backer if the Qualified Bidder is an entity formed for
the purpose of consummating the proposed Sale) in the
event that the Debtors have any questions or wish to
discuss the Bid submitted by the Qualified Bidder;
o Qualified Bidders must set forth all pre -petition and
post -petition relationships with other bidders, the
Debtors, officers of Debtors, major creditors or equity
security holders, or other parties in interest for these
Cases.
o Qualified Bidders must set forth the purchase price
they intend to pay, where said purchase price
constitutes the Qualified Bidder's best and highest
offer, along with physical or environmental
assumptions that affect the purchase price being
offered, and the source of the funds the Qualified
Bidder intends to use to pay such purchase price;
o Qualified Bidders must acknowledge that except as is
described in the Motion and Bid Procedures Order,
their Bid is not subject to any bidding, break-up fee,
termination fee, transaction fee, expense
reimbursement or any similar type of reimbursement
This summary is qualified in its entirety by the provisions of the Bidding Procedures. To the extent that there is
any inconsistency between the terms of the Bidding Procedures and this summary, the terms of the Bidding
Procedures shall control. Capitalized terms used but not defined prior to or in this summary shall have the
respective meanings ascribed to such terms later in the Motion or in the Bidding Procedures, as applicable.
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(the "Bidding Fee"),5 and including an express waiver
of any substantial contribution administrative expense
claim under Section 503(b) of the Bankruptcy Code
related to bidding for the Project Opportunity;
o Qualified Bidders must commit to close the
contemplated transaction(s) by a Closing Date of no
later than October 10, 2025 (unless otherwise agreed);
o A Qualified Bidder must provide that its Bid is not
subject to contingencies of any kind, including,
without limitation, contingencies related to financing,
internal approval, or due diligence;
o Qualified Bidders must acknowledge they have had an
opportunity to conduct any and all due diligence
regarding the Project Opportunity and has relied solely
upon its own independent review, investigation and/or
inspection of any documents and any other
information in making the Bid;
o Qualified Bidders must agree to serve as a backup
bidder (the "Next -Highest Bidder") if its Bid is the
next highest or best bid after the Successful Bid (the
"Next -Highest Bid") with respect to the Project
Opportunity through the Closing Date;
o Qualified Bidders must provide a proposed schedule
for due diligence and closing, which in no event may
be later than October 10, 2025 and;
• Qualified Bidders must execute a purchase agreement in form
and substance reasonably satisfactory to the Debtors that will
be binding upon any Qualified Bidder selected as the
Successful Bidder (a "Qualified Bid Purchase Agreement");
• Qualified Bids must be accompanied by adequate information
(the "Adequate Experience Information"), which may include
(i) (i) information demonstrating (in the Debtors' reasonable
business judgment) that the Qualified Bidder has the financial
5 This provision shall not apply to the Stalking Horse Bidder, which is entitled to receive a Court -approved
Break Up Fee pursuant to the terms of these Bid Procedures.
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capacity to consummate the proposed Sale, (ii) evidence that
the Qualified Bidder has obtained authorization or approval
from its board of directors (or comparable committee or
governing body) with respect to the submission of its Bid, (iii)
evidence of the Potential Bidder's experience in the
management and development of real estate projects
comparable to the Project Opportunity, and (iv) such
additional information regarding the Qualified Bidder as the
Qualified Bidder may elect to include. By submitting a Bid,
Qualified Bidders agree that the Debtors may disseminate
their Adequate Assurance Information to affected
counterparties to any contracts or leases potentially being
assumed and assigned in connection with the Sale; and
• Qualified Bids must include a deposit in the form of a
cashier's check or wire transfer, payable to the order of the
Debtors, in an amount to be proposed by Qualified Bidders
and negotiated by the Qualified Bidders and Debtors, which
funds will be deposited into an escrow account at an
accredited institution to be identified and established by the
Debtors (a "Good Faith Deposit"), and (ii) written evidence,
documented to the Debtors' satisfaction, that demonstrates the
Qualified Bidder has available cash, a commitment for
financing if selected as the Successful Bidder (as defined
below) with respect to the Project Opportunity (provided,
however, that the closing shall not be contingent in any way
on the Successful Bidder's financing), and such other
evidence of ability to consummate the transaction(s) as the
Debtors may request, including proof that such funding
commitments or other financing are not subject to any internal
approvals, syndication requirements, diligence or credit
committee approvals (provided further that such
commitments may have covenants and conditions acceptable
to the Debtors). The Debtors reserve the right to increase the
Good Faith Deposit for one or more Potential Bidders.
•
Relief from
Bankruptcy
Rule 6004(h)
Local Rule
6004-1(b)(iv)(0)
Provisions for
Selecting a
Stalking Horse
Bidder and
This Motion seeks, and the proposed Bidding Procedures Order approves,
relief from the fourteen -day stay imposed by Bankruptcy Rule 6004(h). See
Bidding Procedures Order ¶ 16
Pursuant to ¶ 10 of the Bidding Procedures and the Stalking Horse
Designation Procedures as described herein.
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Providing
Protections to
Stalking Horse
Bidder
Local Rule
6004-1(c)(i)(C)
Modification of
Bidding
Procedures
Local Rule
6004-1(c)(i)(D)
¶ 25 of the Bidding Procedures sets forth the Debtors' reservation of rights
to, in its reasonable business judgment and with approval of the City, in a
manner consistent with its fiduciary duties and applicable law, modify these
Bidding Procedures.
Closing with
Next -Highest
Bidder
Local Rule
6004-1(c)(i)(E)
¶ ¶ 13, 20, and 26 of the Bidding Procedures set forth the procedure through
which Debtors, with the approval of the City, will select, and, if necessary,
close a Sale, with the Next -Highest Bidder. At the Buyer Selection
Deadline, Debtors, with the City's approval, shall select the Successful
Bidder and the Next -Highest Bidder. Debtors will notice the identity of these
two parties no later than one business day after the Buyer Selection Deadline
and then move for Court approval to close the Sale with the Successful
Bidder. In the event the Successful Bidder fails to close, Debtors may, but
will not be obligated to, move to sell the Project Opportunity to the Next -
Highest Bidder. Debtors will return the Good Faith Deposit of the Successful
Bidder and Next -Highest Bidder three business days after the Sale closes,
or, in the event the Successful or Next -Highest Bidder fails to close due to a
breach or failure to perform, Debtors will retain the Good Faith Deposit as
liquidated damages, pursuant to ¶ 24 of the Bidding Procedures.
Provisions
Governing the
Sealed Bid
Auction
Local Rule
6004-1(c)(ii)
The Sealed Bid Auction process is described throughout the Bidding
Procedures. The Sealed Bid Auction contains the following steps:
1) Debtors, with the approval of the City and the Court, will
select a Stalking Horse Bidder no later than May 16,
2025. The Stalking Horse Bidder will submit the
Stalking Horse Initial Bid, a binding agreement to
purchase the Project Opportunity in the event no other
Bids are received. The identity of the Stalking Horse
Bidder and terms of the Stalking Horse Initial Bid will be
made public and serve as a baseline for Qualified Bidders
to submit subsequent Bids.
2) Only Qualified Bidders may participate in the Sealed Bid
Auction. Potential Bidders will have until June 7 , 2025
to submit information to the Debtors and JLL that may
qualify them as Qualified Bidders. New Qualified
Bidders will not be allowed to participate in the Sealed
Auction Bid.
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3) All Qualified Bids must be submitted to the Debtors and
ILL no later than July 1, 2025. Notwithstanding the
Stalking Horse Initial Bid, Debtors will not share the
contents of any Qualified Bid with any party other than
the City. Each party submitting a Qualified Bid must
enter into a binding agreement to consummate the Sale in
the event that Qualified Bid is selected as the Successful
Bid or Next -Highest Bid.
4) No later than August 15, 2025, the Debtors, with
approval of the City, shall select the Successful Bid and
Next -Highest Bid from among the Stalking Horse Bid
and submitted Qualified Bids.
5) No later than August 18, 2025, the Debtors shall serve
notice of the Successful Bid and Next -Highest Bid.
6) With approval of the City, the Debtors, in their
reasonable business judgment and in the best interest of
the bankruptcy estates, may complete the Bidding
Process through a live, in -person Auction rather than a
Sealed -Bid Auction.
A. The Bid Procedures Contemplate Approval of Breakup Fee and Other Protections
12. As it has become customary in attempting to market and sell assets like the Project
Opportunity in a value -maximizing manner, the Debtors believe it is important to have the ability
to enter into a Stalking Horse Agreement with a potential Qualified Bidder. Also, consistent with
the marketing of this kind of asset, the Debtors foresee that it may be necessary to afford a Stalking
Horse Bidder certain protections (the "Bid Protections").
13. In the event that the Debtors, with the consent of the City, select a Stalking Horse
Bidder, then the Debtors shall seek authority to enter a Stalking Horse Agreement, with a Breakup
Fee, not to exceed 3% of the applicable Qualified Bid. In the event that Debtors obtain the consent
of the City and the U.S. Trustee with respect to the Stalking Horse Agreement, then they may
submit an order to this Court approving such Stalking Horse Agreement under certification of
counsel (the "Stalking Horse Order").
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14. In the event that the City and the U.S. Trustee do not each consent to the proposed
Stalking Horse Agreement and entry of the Stalking Horse Order, the Debtors shall be authorized
to file a notice seeking an expedited hearing on not less than seven (7) calendar days' notice (the
"Stalking Horse Hearing") seeking approval of the Stalking Horse Agreement. All parties in
interest shall have the right at the Stalking Horse Hearing to object to the Debtors' entry into a
Stalking Horse Agreement on any grounds, including to object to the Breakup Fee and the form of
Stalking Horse Order. To the extent that the Debtors seek to award a Breakup Fee in excess of 3%
of the applicable Qualified Bid, even if the City and the US Trustee consents, the Debtors must
seek Court approval of such Breakup Fee but may do so on an expedited basis.
15. The Debtors intend to provide copies of any Stalking Horse Agreement and, in their
discretion, may provide a form purchase agreement if no Stalking Horse Agreement has been
entered into, to all potential bidders. The procedures described herein regarding the selection of
and Bid Protections afforded to a Stalking Horse Bidder shall be referred to as the "Stalking Horse
Designation Procedures."
16. A breakup fee is a fee paid by the seller to the stalking horse bidder in the event
such bidder is out -bid by another buyer. The reason for such fee is that it provides an incentive for
a bidder to make the initial bid as a stalking horse and know that if she is not the prevailing bidder,
she will at least recoup the costs of her initial research and due diligence and some return for the
stalking horse's time and effort. Incentivizing someone to become a stalking horse is generally
believed to induce others to participate in the sale. In re Asarco L.L.C., 650 F.3d 593 (5th Cir.
2011); In re O'Brien Envtl. Energy, Inc., 181 F. 3d 527 (3d Cir. 1999).
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17. Out of an abundance of caution, the Debtors desire to be clear that any Breakup Fee
will be payable solely from the proceeds received by the Debtors at a closing on the sale of the
Project Opportunity.
18. The buyer of the Project Opportunity (the "Buyer") will be eligible to receive the
protections as a good faith buyer. A purchase agreement under 11 U.S.C. 363 "negotiated,
proposed, and entered into ....in good faith, without collusion ... [resulting from] arm's length
bargaining with ... parties represented by independent counsel" is entitled to good faith purchase
protections. These include that the sale cannot be avoided or undone (11 U.S.C. 363(m)), that the
sale cannot be avoided if the price was not controlled by an agreement among the potential bidders
(11 U.S.C. 363(n)) and that the sale cannot be avoided because it was for fair and reasonable
consideration, for the highest and best offer, and for reasonably equivalent value. In re
TriDimension Energy, L.P., 2010 Bankr. Lexis 4838 (Bankr. N.D. Tex. Nov.19, 2010).
19. After the Buyer is selected, be it the Successful Bidder or the Next -Highest Bidder,
Debtors either will file a motion (the "Sale Motion") for an order to sell the Project Opportunity
at the price submitted by the Buyer or will file a plan that provides for the approval of the sale.
Consummation of the Sale requires subsequent Bankruptcy Court approval. In addition to the
approval of the Bankruptcy Court, consummation of a sale will require that the Successful Bidder
enter into contracts directly with the City related to the acquisition of City -owned property and the
development of the SilverRock project and satisfaction of agreed conditions to closing.
III. BASIS FOR RELIEF REQUESTED
A. The Court Should Approve the Proposed Bid Procedures
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20. The Court should approve the Bid Procedures as set forth in Exhibit 1 to the
attached Order because such procedures, coupled with JLL's marketing plan, will ensure that the
sale of the Project Opportunity yields the highest possible value. The Bid Procedures allow the
Debtors, in consultation with the City, to conduct the Buyer selection process in a controlled, fair,
and transparent manner that will follow on a marketing effort designed to attract financially and
competent bidders capable of closing the purchase and completing the Project Opportunity.
21. The decision to sell substantially all assets of a chapter 11 debtor is justified by the
business judgment of, in this case, the CRO and the Independent Manager, in consultation with
ILL. The business judgment of the CRO and Independent Manager enjoy a presumption that in
making decisions, they "acted on an informed basis, in good faith and in the honest belief that the
action was in the best interests of the company." In re S.N.A. Nut Co., 186 B.R. 98 (Bankr. N.D.
Ill. 1995). In re Johns -Manville Corp., 60 B.R. 612 (Bankr. S.D.N.Y. 1986).
22. Debtors in possession, just as chapter 11 trustees, have a fiduciary and statutory
duty to obtain the highest and best offer for the debtor's assets. In re Mondie Forge Inc., 148 B.R.
499 (Bankr. N.D. Ohio 1992). To that end, courts have uniformly recognized that procedures
intended to achieve that result, procedures which involve robust marketing and competitive
bidding are appropriate if not mandated in the context of a bankruptcy transaction. Integrated
Resources, Inc., 147 B.R. 650 (Bankr. S.D,N.Y. 1992).
23. In this case, the Independent Manager and CRO, on behalf of the Debtors, have
discharged their duties with utmost fealty. They have reviewed the extensive documents and
history of the Project Opportunity, consulted extensively with JLL, and many meetings and
conferences with the City of La Quinta, secured creditors, and other stakeholders in the Project
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Opportunity, and will soon be engaging in preliminary discussions with possible buyers to select
Qualified Bidders and a Stalking Horse Purchaser.
24. Based on their experience, consultation with JLL and the City, and their deep
familiarity with the Project Opportunity, it is the CRO and Independent Manager's judgement that
the Bid Procedures should be approved.
25. Debtors have sound business justifications for seeking approval of this Motion at
this time. First, Debtors are required to file the Motion under the terms of the DIP Credit
Agreement with the City, which will be executed pursuant to this Court's final order approving
DIP financing, with the City as lender (the "Final DIP Order") (Dkt. No. 330).6 In addition, the
Independent Manager and CRO are of the opinion that it is useful for the creditor body and the
City to see how the sale of substantially all of the Debtors' assets, manifested in the Project
Opportunity, is coupled with the marketing plan which would conclude in a chapter 11 plan. This
process will yield the highest realizable price for the Project Opportunity, which is the goal of the
Independent Manager and CRO. The roadmap as set forth is transparent, coherent and justified,
and filing this Motion along with the order appointing JLL as real estate brokers and the Final DIP
Order marks a significant achievement by the Debtors.
26. The CRO and Independent Manager have sound business justification for seeking
approval of the specific bid procedures set forth herein. A robust and widely cast marketing effort
coupled with a plan avoids what the bankruptcy court in the Second Circuit case described as the
6 As stated on the record, the Final DIP Order remains subject to possible amendment based on comments
presently under discussion with the City's title insurer.
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threat of "a powerful bullying creditor .... forcing a sale to cash out quickly, leaving other creditors
without chapter 11 projections". In re Chrysler LLC, 576 F.3d 108 (2d Cir. 2009).
IV. RELIEF REQUESTED
27. By this Motion, the Debtors seek entry of (a) the Bidding Procedures Order, (b)
approving the Bidding Procedures, including, but not limited to, the form and manner of notice
thereof, and (c) an order granting related relief.
V. NOTICE
28. Notice of this Motion will be provided to the following, or their counsel, if known:
(i) the Office of the United States Trustee for the District of Delaware; (ii) the Debtors' twenty
(20) largest unsecured creditors (excluding insiders); (ii) counsel to the City; (iii) all known
holders of liens upon the DIP Collateral; and (iv) all parties that have filed notices of
appearance pursuant to Bankruptcy Rule 2002.
29. No prior request for the relief sought herein has been made to this or any other
court.
VI. CONCLUSION
30. Based on the foregoing, any additional pleadings which may be submitted, any
evidence and the arguments of counsel at the hearing on the Motion, the Debtors requests that this
Court enter an order approving the Bid Procedures to be used in connection with the marketing
plan to be designed and executed by JLL and such other relief as may be requested by the Debtors
and necessary and justified under the circumstances.
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WHEREFORE, the Debtors respectfully request that the Court (a) grant the relief
requested herein and (b) grant such other and further relief to the Debtors as the Court may deem
proper and just.
Respectfully Submitted,
Dated: February 19, 2025 ARMSTRONG TEASDALE LLP
Wilmington, Delaware
/s/Jonathan M. Stemerman
Jonathan M. Stemerman (No. 4510)
Eric M. Sutty (No. 4007)
Denisse Guevara (No. 7206)
1007 North Market Street
Third Floor
Wilmington, Delaware 19801
Telephone: (302) 416-9670
jstemerman@attlp.com
esutty@atllp.com
dguevara@atllp.com
-and-
Victor A. Vilaplana (Approved Pro Hac Vice)
823 La Jolla Rancho Road
La Jolla, CA 92037
Telephone: (619) 840-4130
vavilaplana@gmail.com
-and-
Benjamin M. Carson (Approved Pro Hac Vice)
5965 Village Way, STE E105
San Diego, CA 92130
Telephone: (858) 255-4529
ben@benjamincarsonlaw.com
Counsel for the Debtors
16
Case 24-11647-MFW Doc 358-1 Filed 02/19/25 Page 1 of 22
Exhibit A
[Proposed] Order
Case 24-11647-MFW Doc 358-1 Filed 02/19/25 Page 2 of 22
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re:
SilverRock Development Company, et al.,
Debtors.'
Chapter 11
Case No. 24-11647 (MFW)
(Jointly Administered)
Hearing Date: March 12, 2025 10:30 a.m. (ET)
Objection Deadline: March 5, 2025 at 4:00 p.m. (ET)
ORDER (I) (A) APPROVING CERTAIN BIDDING PROCEDURES AND
THE FORM AND MANNER OF NOTICE THEREOF
AND GRANTING RELATED RELIEF
Upon the motion (the "Motion"),2of the Debtors in the above -captioned chapter 11 cases
(the "Cases"), seeking, an order (a) approving certain bidding procedures attached hereto as
Exhibit 1 (the "Bidding Procedures") for the sale of all or substantially all of Debtors' assets (the
"Sale") the Court having reviewed the Motion and conducted a hearing to consider the relief
requested therein regarding the Bidding Procedures and related matters (the "Bidding Procedures
Hearing"); and the Court having considered the statements of counsel and the evidence presented
at the Bidding Procedures Hearing; and after due deliberation and sufficient cause appearing
therefor, it is hereby
'The Debtors in these chapter 11 cases, along with the last four digits of each Debtor's federal tax
identification number, as applicable, are: 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). The location of the Debtors' principal place of business and the
Debtors' mailing address is 343 Fourth Avenue, San Diego, CA 92101.
2 Capitalized terms not otherwise defined in this Order shall have the meanings given to them in the
Motion or the Bidding Procedures, as applicable.
Case 24-11647-MFW Doc 358-1 Filed 02/19/25 Page 3 of 22
FOUND AND DETERMINED THAT:3
A. The Court has jurisdiction over this matter and over the property of the Debtors and
their bankruptcy estates pursuant to 28 U.S.C. §§ 157(a) 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 matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (M),
(N), and (0). The statutory predicates for the relief sought herein are 11 U.S.C. §§ 105 and 363.
Venue of the Cases and the Motion is proper pursuant to 28 U.S.C. § § 1408 and 1409.
B. The Debtors have offered good and sufficient reasons for, and the best interest of
their estates will be served by, this Court granting the Motion to the extent provided in this Order,
including approving the Bidding Procedures, attached hereto as Exhibit 1, and form and manner
of notice thereof.
C. Good and sufficient notice of the relief sought in the Motion has been given under
the circumstances, and no further notice is required. Subject to the immediately preceding
sentence, a reasonable opportunity to object or to be heard regarding the relief requested in the
Motion was afforded to all interested persons and entities.
D. In accordance with Local Rule 6004-1, the Debtors have properly filed and noticed
the Motion. The issuance and immediate effectiveness of this Order as of the date hereof, including
approval of the Bidding Procedures, is supported by evidence of compelling business justifications
3 The findings and conclusions set forth herein constitute the Court's findings of fact and conclusions of law
pursuant to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to Bankruptcy Rule 9014. To
the extent that any of the following findings of fact constitute conclusions of law, they are adopted as such. To
the extent any of the following conclusions of law constitute findings of fact, they are adopted as such. All
findings of fact and conclusions of law announced by the Court at the Bidding Procedures Hearing are hereby
incorporated herein to the extent not inconsistent herewith.
Case 24-11647-MFW Doc 358-1 Filed 02/19/25 Page 4 of 22
and other circumstances demonstrating that the relief granted by this Order is necessary to prevent
immediate and irreparable harm to the Debtors and their estates.
E. The Bidding Procedures were proposed in good faith.
F. The Bidding Procedures are fair, reasonable and appropriate under the
circumstances, and are reasonably designed to maximize the value to be achieved for sale of the
Project Opportunity.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. The Motion is GRANTED to the extent provided herein.
2. All objections to the entry of this Order or to the relief provided herein that have
not been withdrawn, waived, resolved, or settled are hereby denied and overruled.
3. The Bidding Procedures, attached as Exhibit 1 to this Order, are hereby approved
in their entirety, incorporated by reference as if fully set forth herein, and shall govern all Bids
and Bid Proceedings relating to the Project Opportunity. The Debtors are authorized to take any
and all actions necessary or appropriate to implement the Bidding Procedures, subject to the
consent and/or approval of the City, where required pursuant to the Final DIP Order, the MOU
and/or other agreements between the City and the Debtors .
4. Debtors, in consultation with JLL and with the approval of the City, will select the
Stalking Horse Bidder from among the Qualified Bidders and obtain an order to enter into a
definitive agreement securing the Stalking Horse Bidder's in the Bidding Process no later than
May 16, 2025 (the "Stalking Horse Selection Deadline"). The deadline for Potential Bidders to
submit information that would permit them to be Qualified Bidders is June 7, 2025 (the
"Submission Deadline.") The deadline for Qualified Bidders to submit sealed Qualified Bid, in
accordance with the Bidding Procedures shall be July 1, 2025 at 4 p.m. (prevailing Eastern Time
Case 24-11647-MFW Doc 358-1 Filed 02/19/25 Page 5 of 22
the "Sealed Bid Auction Deadline"). The deadline for the Debtors, in consultation with JLL and
with the approval of the City, to select the Successful Bidder and Next -Highest Bidder shall be
August 15, 2025 (the "Selection Deadline"). Debtors and the City may agree to extend the
Stalking Horse Selection Deadline, the Submission Deadline, the Sealed Bid Auction Deadline,
or the Buyer Selection Deadline by mutual agreement without further order of the Court.
5. All Potential Bidders and Qualified Bidders are deemed to have submitted to the
exclusive jurisdiction of this Court with respect to all matters related to the Bidding Process and
the terms and conditions of the transfer of the Project Opportunity.
6. The Stalking Horse Designation Procedures are approved, and the Debtors are
authorized to seek approval of any Stalking Horse Agreements with any Stalking Horse Bidders
and provide Bid Protections, in accordance with the Stalking Horse Designation Procedures
provided in the Motion.
7. During the period between the Bid Deadline and the Selection Deadline, the
Debtors, with approval of the City, will select the Successful Bidder and the Next -Highest Bidder
8. Each Qualified Bidder participating in the Bidding Process will be required to
confirm in writing, that (a) it has not engaged in any collusion with respect to the Bidding Process,
and (b) its Qualified Bid is a good faith bona fide offer that it intends to consummate if selected as
the bidder to purchase the Project Opportunity (the "Buyer").
9. No later than one business day following the conclusion of the Bidding Process and
Sealed Bid Auction, the Debtors will file a notice identifying the Successful Bidder and the Next -
Highest Bidder.
10. All parties that participate in the Bidding Process shall be deemed to have
knowingly and voluntarily (a) consented to the entry of a final order by this Court in connection
Case 24-11647-MFW Doc 358-1 Filed 02/19/25 Page 6 of 22
with the Motion or this Order (including any disputes relating to the Bidding Process) to the extent
that it is later determined that the Court, absent consent of the parties, cannot enter final orders or
judgments in connection herewith consistent with Article III of the United States Constitution, and
(b) waived any right to jury trial in connection with any disputes relating to the any of the foregoing
matters.
11. Notwithstanding those rights expressly reserved by the City pursuant to the Final
DIP Order, the Buyer shall be entitled to all legal protections typically afforded to a good -faith
buyer of real estate in California.
12. The requirements set forth in Local Rules 6004-1 and 9013-1 are hereby satisfied,
modified, or waived.
13. Notwithstanding any applicability of Bankruptcy Rule 6004(h), 6006(d), 7052 or
9014, this Order shall be immediately effective and enforceable upon entry of this Order. All time
periods set forth in this Order shall be calculated in accordance with Bankruptcy Rule 9006(a).
14. The Court shall retain jurisdiction over any matter or dispute arising from or
relating to the implementation of this Order.
Case 24-11647-MFW Doc 358-1 Filed 02/19/25 Page 7 of 22
EXHIBIT 1
(THE BIDDING PROCEDURES)
Case 24-11647-MFW Doc 358-1 Filed 02/19/25 Page 8 of 22
BIDDING PROCEDURES
1. On August 5, 2024, SilverRock Development Company, LLC and its debtor
affiliates in the above -captioned chapter 11 cases (collectively, the "Debtors"), filed voluntary
petitions for relief under chapter 11 of title 11 of the United States Code (the "Bankruptcy Code").
The Debtors are authorized to continue to operate their business and manage their properties as
debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code.
2. Set forth below are the bidding procedures (the "Bidding Procedures")4 to be used
with respect to the sale or disposition (the "Sale") of the Project Opportunity.
Any party interested in bidding on the Project Opportunity should contact Debtors'
real estate broker, Jones Lang LaSalle ("JLL"), Attn: JeffAdkinson (jeff.adkinson@jll.com)
and Debtors' CRO, Douglas Wilson (dwilson@douglaswilson.com).
SUMMARY OF KEY BIDDING PROCEDURES DATES
March 12, 2025 at (ET)
May 16, 2025
June 7, 2025
Bidding Procedures Hearing.
Deadline for Debtors to select a Stalking
Horse Bidder from Qualified Bidders
Deadline to approve additional Qualified
Bidders
4 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the
Motion of Debtors for Entry of (I) an Order (A) Approving Certain Bidding Procedures and the Form and
Manner of Notice Thereof, (and (IV) Granting Related Relief (the "Motion").
Case 24-11647-MFW Doc 358-1 Filed 02/19/25 Page 9 of 22
July 1, 2025
Last day for Qualified Bidders to submit
highest and best sealed offers to JLL and the
Debtors (the "the Sealed Bid Auction
Deadline")
August 15, 2025
Deadline for Debtors to select the Successful
Bidder and Next -Highest Bidder (the "Buyer
Selection Deadline")
August 18, 2025
Deadline to file and serve Notice identifying
the Successful Bidder and Next -Highest
Bidder
I. DESCRIPTION OF THE ASSETS TO BE SOLD
3. The Debtors are seeking to sell the Project Opportunity, which includes certain real
property owned by the Debtors that are part of a master planned resort community that includes a
Pendry Hotel, a Montage Hotel, Pendry-branded residences, Pendry-branded bungalows,
Montage -branded residences, a golf clubhouse and shared conference center, several undeveloped
planning areas, a possible option to purchase additional real estate directly from the City of La
Quita (the "City"), and related contracts, including branding agreements with Montage Hotel and
Resorts and Pendry Hotels and Resorts, plans, development rights, drawings, permits, and
equipment, free and clear of all liens, claims, and encumbrances thereon (as more explicitly
defined in the Motion, the "Project Opportunity").
4. The Sale of the Project Opportunity shall be subject to a competitive bidding
process and Sealed Bid Auction as set forth herein and approval by the United States Bankruptcy
Court for the District of Delaware (the `Bankruptcy Court") pursuant to sections 105, 363, and
365 of title 11 of the United States Code (the "Bankruptcy Code"), Rules 2002, 6004, 6006, and
8
Case 24-11647-MFW Doc 358-1 Filed 02/19/25 Page 10 of 22
9006 of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"), and Rules 2002-1,
6004-1, and 9006-1 of the Local Rules of Bankruptcy Practice and Procedure of the United States
Bankruptcy Court for the District of Delaware (the "Local Rules"). The Debtors will consider bids
for the Project Opportunity as a single asset and will not be sold in separate parts or parcels.
5. Bidders will be required to negotiate (and the Successful Bidder will need to enter
into contracts) directly with the City related to the acquisition of City -owned property that is part
of the Project Opportunity, the development of the Project and related matters. Nothing in these
Bid Procedures governs the terms or conditions that the City may require with respect to any
individual Bidder, or all Bidders generally.
II. CONFIDENTIALITY AGREEMENT
6. Unless otherwise ordered by the Bankruptcy Court for cause shown, to participate
in the Bidding Process (as defined below), each person or entity must enter into (unless previously
entered into) with the Debtors, on or before the Sealed Auction Bid Deadline, an executed
confidentiality agreement in form and substance reasonably satisfactory to the Debtors (the
"Confidentiality Agreement"). Further, to participate in the diligence process and receive access
to due diligence information, a party shall submit to the Debtors or their advisors and the City and
its advisors sufficient information, as reasonably determined by the Debtors and the City, to allow
the Debtors and the City to determine that the interested party (a) intends to access the Data Room
for a purposes consistent with these Bidding Procedures, (b) has the financial wherewithal to
consummate the purchase and development of the Project Opportunity, and (c) the experience
necessary to manage and develop the Project Opportunity. Each person or entity that enters into
9
Case 24-11647-MFW Doc 358-1 Filed 02/19/25 Page 11 of 22
the Confidentiality Agreement with the Debtors on or before the Bid Deadline is hereinafter
referred to as a "Potential Bidder."
7. After a Potential Bidder enters into a Confidentiality Agreement with the Debtors,
the Debtors shall provide access to the Data Room.
III. QUALIFIED BIDDERS AND STALKING HORSE BIDDER
8. Qualified Bidders, as defined in these Bid Procedures, are Potential Bidders, who,
in the determination ofJLL, the CRO and the City, have the financial and development capabilities
to complete the Project Opportunity. Only Qualified Bidders may participate in the Sealed Bid
Auction.
9. As appropriate throughout the Bidding Process, the Debtors will consult with the
City and shall (a) coordinate with Qualified Bidders regarding the conduct of their respective due
diligence, (b) evaluate bids from Qualified Bidders on the Project Opportunity, (c) following
consultation with the City, negotiate any bid made to acquire the Project Opportunity, and (d)
following consultation with the City, make such other determinations as are provided in these
Bidding Procedures (collectively, the "Bidding Process").
10. In consultation with and approval of the City, the Debtors will select a Stalking
Horse Bidder. Upon designation of a Stalking Horse Bidder, the Debtors may seek to award a
Stalking Horse Bidder with Bid Protections under certain circumstances. In the event that the
Debtors, with the consent of the City, select a Stalking Horse Bidder, then the Debtors seek
authority to provide such a Stalking Horse Bidder with Bid Protections not exceeding 3% of an
applicable Qualified Bid, provided that the Debtors obtain the consent of the City and the U.S.
10
Case 24-11647-MFW Doc 358-1 Filed 02/19/25 Page 12 of 22
Trustee with respect to such Bid Protections, by submitting an order to the Court under certification
of counsel that approves such Bid Protections (the "Stalking Horse Order.") In the event that the
City and the U.S. Trustee do not each consent to the proposed Bid Protections and entry of the
Stalking Horse Order, the Debtors shall be authorized to file a notice seeking an expedited hearing
on not less than seven (7) calendar days' notice (the "Stalking Horse Hearing") seeking approval
of the Stalking Horse Order. All parties in interest shall have the right at the Stalking Horse Hearing
to object to the Debtors' entry into a Stalking Horse Agreement on any grounds, including
objecting to the Bid Protections and the form of Stalking Horse Order. To the extent the Debtors
seek to award Bid Protections in excess of 3% of an applicable Qualified Bid, even if the City
consents, the Debtors must seek Court approval of the Bid Protections and may do so on an
expedited basis.
IV. DUE DILIGENCE
11. The Debtors have established a confidential electronic data room concerning the
Project Opportunity (the "Data Room") and will grant each Potential Bidder, as applicable, access
to such Data Room. Up to and including the Bid Deadline (such period, the "Diligence Period"),
the Debtors shall afford any Potential Bidder such due diligence access or additional information
as may be reasonably requested by the Potential Bidder that the Debtors, in their business
judgment, determine to be reasonable and appropriate under the circumstances. The Debtors or
ILL may designate a representative or representatives to coordinate all reasonable requests for
additional information and due diligence access from such Potential Bidders. In the event that any
such due diligence material is in written form and has not previously been provided to any other
11
Case 24-11647-MFW Doc 358-1 Filed 02/19/25 Page 13 of 22
Potential Bidder, the Debtors will simultaneously provide access to such materials to all Potential
Bidders. Each Potential Bidder shall be required to acknowledge that it has had an opportunity to
conduct any and all due diligence regarding the Project Opportunity in conjunction with submitting
its Bid.
12. Subject to the City's consultation rights as described herein, neither the Debtors nor
any of their representatives shall be obligated to furnish any information of any kind whatsoever
relating to the Project Opportunity to any person or entity who is not a Potential Bidder and who
does not otherwise comply with the participation requirements set forth above.
13. The provision of information in the Data Room or otherwise does not constitute a
representation or warranty by the Debtors, JLL, the CRO, the City or any of their agents or
representatives regarding any matter, including without limitation the condition of the Project or
the terms or conditions on which either the Debtors or the City may require in connection with any
transaction. The sale of the Project Opportunity shall be as is, where is, with all faults.
V. SEALED BID AUCTION DEADLINE
14. A Qualified Bidder that desires to make a Bid shall deliver written copies of its Bid
in both Portable Document Format (.pdf) and Microsoft Word (.doc/.docx) to Jones Lang LaSalle
("JLL"), Attn: Jeff Adkinson (jef .adkinson@j11.com) and Debtors' CRO, Douglas Wilson
(dwilson@douglaswilson.com) no later than July 1, 2025 at 4:00 p.m. (prevailing Eastern
Time) (as may be extended, with the consent of the City, a "Sealed Bid Auction Deadline"). As
soon as reasonably practicable following the Sealed Auction Bid Deadline, the Debtors will
provide to the City copies of all Bids (with such distribution permissible by electronic means).
12
Case 24-11647-MFW Doc 358-1 Filed 02/19/25 Page 14 of 22
This disclosure to the City notwithstanding, all Bids, other than the Stalking Horse Initial Bid,
shall remain confidential as part of the Sealed Bid Auction.
15. The Debtors, the CRO and .ILL are authorized to provide to the City all information
and documents made available to them by any Bidder, subject to the City entering into an NDA on
substantially the same terms that govern the Debtors.
VI. BID REQUIREMENTS
16. In order for a Bid to become a Qualified Bid, it must comply with the following
requirements (collectively, the "Bid Requirements"):
a) be accompanied by a letter or email:
fully disclosing the identity of the Potential Bidder and providing the
contact information of the specific person(s) whom the Debtors or its
advisors should contact (including any equity holder or other fmancial
backer if the Potential Bidder is an entity formed for the purpose of
consummating the proposed Sale) in the event that the Debtors have any
questions or wish to discuss the Bid submitted by the Potential Bidder;
ii. setting forth any and all of pre -petition and post -petition relationships with
other bidders, the Debtors, officers of Debtors, major creditors or equity
security holders, or other parties in interest for these Cases.
iii. setting forth the purchase price to be paid by such Potential Bidder -where
said purchase price constitutes the Potential Bidder's best and highest offer -
along with physical or environmental assumptions that affect the purchase
price being offered, and the source of the funds the Potential Bidder intends
to use to pay such purchase price;
iv. except as is described in the Motion and Bid Procedures Order, providing
that the Bid is not subject to any bidding, break-up fee, termination fee,
transaction fee, expense reimbursement or any similar type of
13
Case 24-11647-MFW Doc 358-1 Filed 02/19/25 Page 15 of 22
reimbursement (the "Bidding Fee"),5 and including an express waiver of
any substantial contribution administrative expense claim under Section
503(b) of the Bankruptcy Code related to bidding for the Project
Opportunity;
v. containing a commitment to close the contemplated transaction(s) by a
Closing Date of no later than October 10, 2025 (unless otherwise agreed);
vi. providing that such Bid is not subject to contingencies of any kind,
including, without limitation, contingencies related to financing, internal
approval, or due diligence;
vii. containing an acknowledgment that the Potential Bidder has had an
opportunity to conduct any and all due diligence regarding the Project
Opportunity and has relied solely upon its own independent review,
investigation and/or inspection of any documents and any other information
in making the Bid, and that the sale is as is, where is, with all faults;
viii. providing that the Potential Bidder agrees to serve as a backup bidder (the
"Next -Highest Bidder") if the Potential Bidder's Bid is the next highest or
best bid after the Successful Bid (as defined below) (the "Next -Highest
Bid") with respect to the Project Opportunity through the Closing Date;
ix. providing an outline of the Potential Bidder's proposed schedule for due
diligence and closing, which in no event may be later than October 10, 2025
and;
b) be accompanied by an executed purchase agreement in form and substance
reasonably satisfactory to the Debtors that will be binding upon any Qualified
Bidder selected as the Successful Bidder (a "Qualified Bid Purchase Agreement");
c) include an acknowledgement that the Qualified Bidder shall enter into agreements
with the City with respect to the acquisition of City -owned property that is part of
the Project, and the management and development of the Project, on terms and
conditions acceptable to the City.
5 This provision shall not apply to the Stalking Horse Bidder, which is entitled to receive a Break Up Fee
pursuant to the terms of these Bid Procedures.
14
Case 24-11647-MFW Doc 358-1 Filed 02/19/25 Page 16 of 22
d) be accompanied by adequate information (the "Adequate Experience
Information"), which may include (i) information demonstrating (in the Debtors'
reasonable business judgment) that the Potential Bidder has the fmancial capacity
to consummate the proposed Sale, (ii) evidence that the Potential Bidder has
obtained authorization or approval from its board of directors (or comparable
committee or governing body) with respect to the submission of its Bid, (iii)
evidence of the Potential Bidder's experience in the management and development
of real estate projects comparable to the Project Opportunity, and (iv) such
additional information regarding the Potential Bidder as the Potential Bidder may
elect to include. By submitting a Bid, Potential Bidders agree that the Debtors may
disseminate their Adequate Assurance Information to affected counterparties to any
contracts or leases potentially being assumed and assigned in connection with the
Sale; and
e) be accompanied by (i) a deposit in the form of a cashier's check or wire transfer,
payable to the order of the Debtors, in an amount to be proposed by Qualified
Bidders and negotiated by the Qualified Bidders and Debtors, determined by the
Debtors in their reasonable business judgment, which funds will be deposited into
an escrow account to be identified and established by the Debtors (a "Good Faith
Deposit"), and (ii) written evidence, documented to the Debtors' satisfaction, that
demonstrates the Qualified Bidder has available cash, a commitment for financing
if selected as the Successful Bidder (as defined below) with respect to the Project
Opportunity (provided, however, that the closing shall not be contingent in any way
on the Successful Bidder's financing), and such other evidence of ability to
consummate the transaction(s) as the Debtors may request, including proof that
such funding commitments or other financing are not subject to any internal
approvals, syndication requirements, diligence or credit committee approvals
(provided further that such commitments may have covenants and conditions
acceptable to the Debtors). The Debtors reserve the right to increase the Good Faith
Deposit for one or more Potential Bidders.
17. For the avoidance of doubt, a Qualified Bidder must negotiate (and the Successful
Bidder must enter into) a development agreement and any other agreements required by the City,
all in form and content acceptable to the City, providing the terms and conditions for the
development of the Project Opportunity. Any sale of the Project Opportunity is expressly subject
to the approval by the City and entry into such development agreement and other agreements.
15
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18. The Debtor and JLL will review each Bid received from a Potential Bidder to
determine whether it meets the requirements set forth above. The Debtors shall inform Potential
Bidders whether or not their Bids have been designated as Qualified Bids and, in the event the
Debtors inform a Potential Bidder that it has not submitted a Qualified Bid, it shall provide
information as to what is needed for the Potential Bidder to submit a Qualified Bid, thereby
becoming a Qualified Bidder. The Stalking Horse Initial Bid notwithstanding, except regarding
Debtors' disclosure obligations to the City, all Bids shall remain confidential.
19. As part of the Sealed Bid Auction process, a Qualified Bid will be evaluated by the
Debtors based upon any and all factors that the Debtors deem pertinent in their reasonable business
judgment, including, among others, (a) the amount of the Qualified Bid, (b) the risks and timing
associated with consummating the transaction(s) with the Qualified Bidder, (c) experience and
qualification of the Qualified Bidder and (d) any other factors that the Debtors may reasonably
deem relevant.
20. The Debtors, in their business judgment, subject to the approval of the City, reserve
the right to reject any Bid if such Bid, among other things:
a) requires any indemnification of the Potential Bidder in any Qualified Bid
Purchase Agreement submitted as part of the Bid;
b) is not received by the Sealed Auction Bid Deadline;
c) does not comport with the Bid Requirements;
d) is subject to any contingencies (including representations, warranties,
covenants and timing requirements) of any kind or any other conditions
precedent to such party's obligation to acquire the Project Opportunity;
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Case 24-11647-MFW Doc 358-1 Filed 02/19/25 Page 18 of 22
e) does not, in the Debtors' determination (after consultation with the City),
include a fair and adequate price or the acceptance of which would not be in the
best interests of the Debtors' estates; or
f) does not, in the Debtors' determination (after consultation with the City) include
satisfactory evidence of the Bidder's financial capacity or experience in the
management and development of real estate projects comparable to the Project
Opportunity.
21. Any Bid rejected pursuant to the foregoing shall not be deemed to be a Qualified
Bid; provided that the Debtors and the City have the right to work with the parties to any rejected
Bid to cure any such defects. In the event that any Bid is so rejected, the Debtors shall cause the
Good Faith Deposit of such Potential Bidder (including all accumulated interest thereon) to be
refunded to it as soon as reasonably practicable, but no later than three (3) business days after the
Sealed Bid Auction Deadline.
VII. BIDDING PROCESS AND SEALED BID AUCTION
22. Unless otherwise ordered by the Bankruptcy Court for cause shown, only the
Qualified Bidders are eligible to participate in the Sealed Bid Auction6 and be selected as a
Successful or Next -Highest Bidder. If the only Qualified Bid the Debtors receive is from the
Stalking Horse Bidder, then the Stalking Horse Bidder shall be deemed the Buyer and Successful
Bidder.
6 Upon approval of the City, Debtors retain the right, without further Court order, to change the Sealed Bid
Auction into a public auction held in person or by Zoom, if Debtors determine, in their reasonable business
judgment, that a public auction is in the best interest of their estates.
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23. The Debtors, subject to the approval from the City, shall determine which Qualified
Bid constitutes the Successful Bid. In so doing, the Debtors shall take into account any factors the
Debtors reasonably deem relevant to the value of the Qualified Bid to the Debtors' estates,
including, among other things, the following: (a) the amount and nature of the consideration,
including any obligations to be assumed; (b) the executory contracts and unexpired leases of the
Debtors, if any, for which assumption and assignment or rejection is required, and the costs and
delay associated with any litigation concerning executory contracts and unexpired leases
necessitated by such bid; (c) the likelihood of the Qualified Bidder being able to close the proposed
transaction (including obtaining any required regulatory approvals and entry into direct agreements
with the City related to the acquisition of City -owned property and the development of the Project)
and the timing thereof; (d) the net benefit to the Debtors' estates, and; (e) the tax consequences of
such Qualified Bid,
24. At or before the Buyer Selection Deadline, the Debtors will: (a) subject to the
approval of the City, determine, consistent with the Bidding Procedures, which bid constitutes the
highest and best bid (the "Successful Bid"); and (b) notify all Qualified Bidders participating in
the Bidding Process the name of the maker of the Successful Bid (the "Successful Bidder"), and
the amount and other material terms of the Successful Bid. The Debtors shall designate the Next -
Highest Bid (and the corresponding Next -Highest Bidder) to close with respect to the Project
Opportunity in the event that the Successful Bidder does not close the Sale. Unless the Bankruptcy
Court orders otherwise, upon application by the Debtors, the Debtors shall not consider any Bids
submitted after the conclusion of the Buyer Selection Deadline and any and all such Bids shall be
deemed untimely and shall under no circumstances constitute a Qualified Bid.
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Case 24-11647-MFW Doc 358-1 Filed 02/19/25 Page 20 of 22
25. No later than one business day after the Buyer Selection Deadline, the Debtors shall
file a notice on the Bankruptcy Court's docket identifying (with specificity) the Successful Bidder
for the Project Opportunity (or subset thereof) and any applicable Next -Highest Bidder.
26. All bidders participating in the Bidding Process and Sealed Bid Auction will be
deemed to have consented to the core jurisdiction and constitutional authority of the Bankruptcy
Court and waived any right to jury trial in connection with any disputes relating to the Bidding
Process, the Sale, and all agreements entered into in connection with any proposed sale transaction.
VIII. RETURN OF GOOD FAITH DEPOSIT
27. The Good Faith Deposits of all Qualified Bidders shall be held in escrow but shall
not become property of the Debtors' estates absent further order of the Bankruptcy Court. The
Debtors shall retain any Good Faith Deposit submitted by the Successful Bidder. At the closing of
a Sale contemplated by a Successful Bid, the applicable Buyer will be entitled to a credit for the
amount of its Good Faith Deposit to the extent such a deposit was provided. The Good Faith
Deposits of any Next -Highest Bidder shall be retained until three (3) business days after the closing
of the Sale. The Good Faith Deposits of any other Qualified Bidders will be returned as soon as
reasonably practicable, but no later than three (3) business days following the Buyer Selection
Deadline.
28. If a Successful Bidder (or, if the Sale is to be closed with a Next -Highest Bidder,
then the Next -Highest Bidder) fails to consummate the Sale because of a breach or failure to
perform on the part of such bidder, then, subject to the terms of the applicable Qualified Bid
Purchase Agreement or any other form of purchase agreement reasonably satisfactory to the
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Debtors, the Debtors and their estates shall be entitled to retain the Good Faith Deposit of such
Buyer (or, if the Sale is to be closed with the Next -Highest Bidder, then such Next -Highest Bidder)
as part of the damages resulting to the Debtors and their estates for such breach or failure to
perform. As actual damages would be difficult to ascertain in the event of a breach or failure to
perform prevents the Buyer from consummating the Sale, Debtors' retention of the Good Faith
Deposit represents a fair and reasonable estimate of the damages Debtors would incur as a result
of such breach.
IX. RESERVATION OF RIGHTS AND MODIFICATIONS
29. Notwithstanding any of the foregoing, the Debtors, in consultation with the City,
reserve the right to modify these Bidding Procedures at or prior to the Buyer Selection Deadline,
including, without limitation, to extend the deadlines set forth herein, waive terms and conditions
set forth herein with respect to any or all Potential Bidders (including, without limitation, the Bid
Requirements), and impose additional terms and conditions with respect to any or all potential
bidders.
X. NEXT -HIGHEST BIDDER
30. Notwithstanding any of the foregoing, in the event that a Successful Bidder fails to
close a Sale prior to such date as specified in the applicable purchase agreement (or such date as
may be extended by the Debtors), the Debtors, upon written notice to the Next -Highest Bidder,
may designate the applicable Next -Highest Bid as the Successful Bid for the Project Opportunity
(or subset thereof), the Next -Highest Bidder will be deemed to be the Buyer for the Project
Opportunity, and the Debtors will be authorized, but not directed, to close the Sale to the Next-
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Highest Bidder subject to the terms of the Next -Highest Bid as approved by further order of the
Bankruptcy Court.
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Case 24-11647-MFW Doc 358-2 Filed 02/19/25 Page 1 of 2
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re:
SilverRock Development Company, et al.,
Debtors.'
Chapter 11
Case No. 24-11647 (MFW)
(Jointly Administered)
Hearing Date: March 12, 2025 10:30 a.m. (ET)
Objection Deadline: March 5, 2025 at 4:00 p.m. (ET)
NOTICE OF MOTION FOR ENTRY OF ORDER (I) AUTHORIZING AND
APPROVING (A) BID PROCEDURES AND (B) FORM AND MANNER
OF NOTICE OF BID PROCEDURES
PLEASE TAKE NOTICE that the Motion for Entry of an Order (I) Authorizing and
Approving (A) Bid Procedures and (B) Form and Manner of Notice of Bid Procedures (the
"Motion") has been filed with the United States Bankruptcy Court for the District of Delaware
(the "Court"). The Motion seeks Entry of an Order (I) Authorizing and Approving (A) Bid
Procedures and (B) Form and Manner of Notice of Bid Procedures.
PLEASE TAKE FURTHER NOTICE that objections to the Application, if any, are
required to be filed on or before March 5, 2025 at 4:00 p.m. (ET) (the "Objection Deadline")
with the Clerk of the United States Bankruptcy Court, 824 N. Market Street, 3rd Floor,
Wilmington, Delaware 19801, and served so as to be received on or before the Objection Deadline
by the undersigned counsel to the Debtors.
PLEASE TAKE FURTHER NOTICE THAT ONLY IF AN OBJECTION IS
PROPERLY AND TIMELY FILED IN ACCORDANCE WITH THE ABOVE PROCEDURES
WILL A HEARING BE HELD ON THE APPLICATION.
[SIGNATURE PAGE FOLLOWS]
'The Debtors in these chapter 11 cases, along with the last four digits of each Debtor's federal tax
identification number, as applicable, are: 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). The location of the Debtors' principal place of business and the
Debtors' mailing address is 343 Fourth Avenue, San Diego, CA 92101.
Case 24-11647-MFW Doc 358-2 Filed 02/19/25 Page 2 of 2
Dated: February 19, 2025 ARMSTRONG TEASDALE, LLP
Wilmington, Delaware
/s/Jonathan M. Stemerman
Jonathan M. Stemerman (No. 4510)
Eric M. Sutty (No. 4007)
Denisse Guevara (No. 7206)
1007 North Market Street, Third Floor
Wilmington, Delaware 19801
Telephone: (302) 416-9670
jstemerman@atllp.com
esutty@atllp.com
dguevara@atllp.com
Co -Counsel to the Debtors and Debtors
in Possession