HomeMy WebLinkAboutORD 715 (2) • - ecocdingReque 1113v
Yir�t �;r,Rr• an Title In514. Gomaat 437089
• RECORDING REQUESTED BY AND RECEIVED FOR RECORD
WHEN RECORDED MAIL TO: ' ECEIVLD AT-2:00 O'CLOCK
City Clerk ' 1'8 30 NI i 97
NOV 26 1997
City of Palm Desert I T Y CLERK'S CFFICc
73510 Fred Waring Drive Recorded 1e Official Records
Palm Desert, CA 92260 `'Riverside County,California
Recorder :71
3(Space Above This Line for Recorder's Use) 9
ASSIGNMENT OF DEVELOPMENT AGREEMENT T
1. Parties. This Assignment of Development Agreement is made and entered into
this28tlday of August , 1997, by and between Lowe Reserve Corporation, a
California corporation ("Lowe"), and Deep Canyon Associates, LLC, a Delaware
limited liability company ("Deep Canyon").
2. Recitals.
2.1 Lowe and the City of Palm Desert ("City") are parties to that certain
Development Agreement (the "Agreement"), described more particularly
on Exhibit A attached hereto and incorporated herein.
2.2 For several years, Lowe has been preparing to develop The Reserve, a
•
master-planned luxury residential golf community (the "Project"), on land
located in the Cities of Indian Wells and Palm Desert, more particularly
described on Exhibit B attached hereto and incorporated herein. Deep
Canyon will act as the developer of the Project, and Lowe intends to
transfer all of its right, title and interest in the Project to Deep Canyon.
2.3 Lowe will be managing member of Deep Canyon.
2.4 Lowe desires to assign the Agreement to Deep Canyon and Deep
Canyon is willing to accept such assignment and to assume all of Lowe's
rights, duties and obligations under the Agreement.
2.5 On August 28, 1997, the City Council of the City of Palm Desert
approved said transfer and assignment, in accordance with Section 11 of
the Agreement as set forth on Exhibit C attached hereto and
incorporated herein.
3. Assignment. Lowe hereby assigns to Deep Canyon all of Lowe's right, title and
interest in the Agreement.
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. 437089
4'. Acceptance: Assumption. Deep Canyon hereby accepts the assignment of the
Agreement and assumes and agrees to perform all of Lowe's obligations under
the Agreement which remain to be performed.
5. Collateral Assignment for Security Purposes. Deep Canyon has arranged for
financing for the development of the Project from Bank One, Arizona, NA
("Bank One") and Westbrook California Funding Corp., a corporation organized
under the laws of the Cayman Islands or an affiliate thereof ("Westbrook")
(Bank One and Westbrook are herein collectively called "Lenders"). As partial
security for the financing from Lenders, Deep Canyon will convey to Lenders for
financing purposes (i) an equitable interest in the Project, and (ii) a collateral
assignment of the Agreement. On August 28, 1997, the City Council of the City
of Palm Desert approved said transfer and collateral assignment to the Lenders,
in accordance with Section 11 of the Agreement as set forth on Exhibit C
attached hereto and incorporated herein.
IN WITNESS WHEREOF, the parties have executed this Assignment as of the
date set forth above in Paragraph 1.
Lowe Reserve Corporation, a California corporation
•
By: � -�..---- -`"
. Lennon, President
Deep Canyon Associates, LLC, a Delaware
limited liability company
By: Lowe Reserve Corporation, a California
corporation its Managing Member
By: _..,1A L-L '\._---% --.---
. Lennon, President
APPROVED AS TO FORM BY THE CITY OF
-- - M DESERT, a California municipal
corpora " n
ity Attorn y
2 151951.3:TAH:8/13/97
. 437089
Title or type of Document
STATE OF C IFORNIA Number of Pages Date of Document
Signer(s) Other than named below
County of i 0eieSl t?L
On /D before me CEO ri rl o u v� personally appeared
/00/gy
-Fed Z. Ler- vi on
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged tome that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s)ac , executed the instrument.
WITNESS y hand fficial seal.
Signature ______
Notary Public ' and for said Coun State
r,7-: CHARLYNE YOUNG
COMM.#1027551
9 ° •r. rr- Notary Public-California
RIVERSIDE COUMY PI,
x ��_ ""F e My Commission ExpPires
MAY 22, 1998
437089
EXHIBIT A
Development Agreement dated as of July 6, 1993 between the
City of Palm Desert, a California municipal corporation, and Lowe
Reserve Corporation, a California corporation.
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437089
•
EXHIBIT A
Development Agreement dated as of July 6, 1993 between the
City of Palm Desert, a California municipal corporation, and Lowe
Reserve Corporation, a California corporation.
3 151951.3:TAH:B/13/97
•
•
•
EXHIBIT"B"
PARCEL D:
LOT 1 AND LETTERED LOTS A THROUGH Q, INCLUSIVE, OF TRACT NO. 27710-
1, AS SHOWN BY MAP ON FILE IN BOOK 265 PAGES) 88 THROUGH 91 OF
MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
•
437089
CONSENT TO ASSIGNMENT AND ESTOPPEL CERTIFICATE
•
City hereby certifies and agrees, for the benefit of Deep Canyon and the
Lenders, as follows:
1. City consents to the assignment of the Agreement (as defined in
the Assignment attached hereto) from Lowe to Deep Canyon.
Capitalized terms used and not defined herein shall have the
meanings set forth in the Agreement.
2. City consents to the conveyance of an equitable interest in the
Project and a collateral assignment of the Agreement to Lenders
for security purposes.
3. City agrees that no breach of the Agreement shall defeat, render
invalid, diminish or impair (i.e., affect the validity or enforceability
of) the lien of any mortgage made in good faith and for value
(including, but not limited to, any mortgage to Lenders), but all of
the terms and conditions contained in the Agreement shall be
binding upon and effective against any person (including any of
the Lenders) who acquires title to the Project, or any portion
thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure,
or otherwise.
4. Notwithstanding the provisions of paragraph 3 above, City agrees
that the Lenders shall have no obligation or duty under the
Agreement to construct or complete the construction of
improvements, or to guarantee such construction or completion;
provided, however, that the Lenders shall not be entitled to devote
the Project to any uses or to construct any improvements thereon
other than those uses or improvements provided for or authorized
by the Agreement, or otherwise under City laws; provided further,
however, that if Lenders fail to fulfill the obligations of Developer
under the Agreement (other than obligations, if any, that cannot
reasonably be performed by Lenders, such as, for example,
obligations to dedicate to the City land not located at the Site),
then Lenders shall not be entitled to the benefit of the rights
accorded to Developer under the Agreement; and provided,
further, that Lenders shall not incur any liability as a result of any
failure to fulfill the obligations of Developer under the Agreement.
5. If City receives notice from one or both of the Lenders requesting
a copy of any notice of default given Developer under the
Agreement and specifying the address for service thereof, then
City shall deliver to each such Lender, concurrently with service
thereon to Developer, any notice of default or determination of
noncompliance given to Developer. City acknowledges that City
1 1S1951.3:TAH:8/13/97
437089
has received from Bank One the notice specified in the preceding
sentence, and that Bank One's address for purposes thereof is:
Bank One, Arizona, NA, Real Estate Loan Administration,
AZ1-1328, 241 North Central Avenue, 14th Floor, Phoenix, Arizona
85004, with a copy to: Bank One, Arizona, NA, 4695 MacArthur
Court, Suite 1550, Newport Beach, California 92660, Attn:
Manager. Each of the Lenders shall have the right (but not the
obligation) for a period of ninety (90) days after the receipt of such
notice from City to cure or remedy, or to commence to cure or
remedy, any default claimed or the areas of noncompliance set
forth in the City's notice. If such default or such noncompliance is
of a nature which can only be remedied or cured by the Lender
upon obtaining possession, the Lender shall seek to obtain
possession with diligence and continuity through a receiver or
otherwise (and the City hereby acknowledges and consents to any
transfers of the Site or the Agreement necessary to obtaining such
possession), and shall thereafter remedy or cure the default or
noncompliance within ninety (90) days after obtaining possession;
provided, however, that City shall have the right to exercise any
rights available to City as a result of such default or determination
of noncompliance if the Lender does not obtain possession within
one hundred eighty (180) days from the date Lender receives a
notice of default or noncompliance from the City (unless such
failure to obtain possession is the result of the automatic stay in
any bankruptcy case or any other stay issued by a court or other
governmental authority). If any such default or noncompliance
cannot, with diligence, be remedied or cured within such ninety
(90) day period, then the Lenders shall have such additional time
as may be reasonably necessary to remedy or cure such default
or noncompliance if the Lender commences cure during such
ninety (90) day period, and thereafter diligently pursues completion
of such cure to the extent possible.
6. The City acknowledges and agrees that if any of the Lenders (or a
transferee of the Lenders or any transferees of any such party)
acquires the Site or a portion thereof, or interest therein, or
improvement thereon, by foreclosure, trustee's sale, deed in lieu of
foreclosure, or otherwise, upon the execution and delivery to the
City of an assignment agreement (on a form reasonably
acceptable to City) the City shall be deemed to have approved
said transfer in accordance with Section 11 of the Agreement.
7. The Agreement is in full force and effect and a binding obligation
of the parties. To the knowledge of City, there are no uncured
defaults on the part of Developer under the Agreement, none of
Developer's rights and privileges under the Agreement have
2 151951.3:TAH:8/13/97
943';p89
' lapsed as of the date hereof, and City has no current right to
• terminate the Agreement.
8. Except as modified by the documents identified on Exhibit A, the
Agreement has not been amended or modified. No further
amendment or modification of the Agreement shall be binding
upon the Lenders unless consented to in writing by the Lenders.
9. Exhibit A identifies all the agreements between Lowe and City
pertaining to the Agreement.
10. Without limiting paragraph 7 above, City acknowledges that, as of
the date hereof, Developer has paid all fees, made all dedications,
posted all bonds and other security, completed all improvements
and otherwise performed all obligations required to be performed
by Developer under the Agreement as of the date hereof.
11. City acknowledges that Lenders are relying hereon in extending
financing to Deep Canyon. This Consent to Assign and Estoppel
Certificate shall inure to the benefit of Lenders and their respective
successors and assigns and shall be binding upon City and its
successors and assigns.
City of Palm Desert,
a California nic. I c r oration
By:
Nam . RICHARD S. LY
Its: MAYOR
Date: August 28 1997
61;
3 151951.3:TAH:9/13/97
437089
Lowe Reserve Corp./Deep Canyon Assoc.
Title or type of Docent Assignment of Development Agreement
STATE OF CALIFORNIA Number of Pages Date of Document 8/28/97
Riverside Signer(s) Other than named below Ted R. Lennon,
County of and Robert HargraveR
On November 19, 1997 before me Rachelle D. Klassen, Notary Public personally appeared
RICHARD S. KELLY
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNES hand 1 seal. I:`. RAcHELt.E 0.KLASSEN
• COMA.•1141848
Signatures (Seal) �'`' :�: �,
Noimv/__ CAigMNAg
Notary Publi in and for sai o and State �1 t00t81.2