HomeMy WebLinkAboutC-3067(H) - Jamboree, 3300 - Consent, Non-Disturbance and Attornment Agreement of Leasehold Interest 2020 - Fletcher Jones MotorcarsRECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Stephen E. Dawson, Esq.
DICKINSON WRIGHT PLLC
2600 West Big Beaver Road
Suite 2600
Troy, Michigan 48084
(248) 433-7200
With a conformed copy to:
City of Newport Beach
Attn: City Clerk
100 Civic Center Drive
Newport Beach, CA 92660
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
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CONSENT, NON -DISTURBANCE AND ATTORNMENT AGREEMENT
OF LEASEHOLD INTEREST
This Consent, Non -Disturbance And Attornment Agreement of Leasehold Interest (this
"Agreement") is made as of the 260` day of July 2020, by and among MERCEDES-BENZ
FINANCIAL SERVICES USA LLC, a Delaware limited liability company ("Lender"); the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("Lessor");
and FLETCIIER JONES MOTOR CARS, INC., a California corporation ("Lessee"); with
respect to the following facts:
RECITALS
A, Lessor and Lessee are the present landlord and tenant, respectively, under that
certain Lease dated May 20, 1996 ("Lease"), a short form Memorandum of which Lease among
said parties was recorded on July 19, 1996, as Instrument No. 19960369208 in the Official Records
of Orange County, California, covering real property commonly known as 3300 Jamboree Road,
Newport Beach, California 92660, and more particularly described in Exhibit "A" and depicted in
Exhibit "B" attached hereto and incorporated herein by reference (hereinafter referred to as the
"Premises").
B. Lessee acquired certain real property contiguous to the Premises, and has applied
to Lender for a loan (the "Loan") in a principal amount not to exceed $60,000,000.00, to be
secured, in part, by a deed of trust encumbering Lessee's leasehold interest in the Premises and all
improvements, fixtures, and other personal property to the extent provided in Section 9 of the
Lease, together with Lessee's leasehold interest in any and all rents, issues, income, and profits
derived from the Premises which deed of trust is recorded concurrently herewith.
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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Stephen E. Dawson, Esq.
DICKINSON WRIGHT PLLC
2600 West Big Beaver Road
Suite 2600
Troy, Michigan 48084
(248) 433-7200
With a conformed copy to:
City of Newport Beach
Attn: City Clerk
100 Civic Center Drive
Newport Beach, CA 92660
RECORDED ELECTRONICALLY
CONSENT, NON -DISTURBANCE AND ATTORNMENT AGREEMENT
OF LEASEHOLD INTEREST
This Consent, Non -Disturbance And Attornment Agreement of Leasehold Interest (this
"Agreement") is made as of the 2,fl`•day of July 2020, by and among MERCEDES-BENZ
FINANCIAL SERVICES USA LLC, a Delaware limited liability company ("Lender"); the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("Lessor");
and FLETCHER JONES MOTOR CARS, INC., a California corporation ("Lessee"); with
respect to the following facts:
RECITALS
A, Lessor and Lessee are the present landlord and tenant, respectively, under that
certain Lease dated May 20, 1996 ("Lease"), a short form Memorandum of which Lease among
said parties was recorded on July 19, 1996, as Instrument No. 19960369208 in the Official Records
of Orange County, California, covering real property commonly known as 3300 Jamboree Road,
Newport Beach, California 92660, and more particularly described in Exhibit "A" and depicted in
Exhibit "B" attached hereto and incorporated herein by reference (hereinafter referred to as the
"Premises").
B. Lessee acquired certain real property contiguous to the Premises, and has applied
to Lender for a loan (the "Loan") in a principal amount not to exceed $60,000,000.00, to be
secured, in part, by a deed of trust encumbering Lessee's leasehold interest in the Premises and all
improvements, fixtures, and other personal property to the extent provided in Section 9 of the
Lease, together with Lessee's leasehold interest in any and all rents, issues, income, and profits
derived from the Premises which deed of trust is recorded concurrently herewith.
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C. Lender is willing to make the Loan if, and only if, in addition to all other terms and
conditions set forth in the loan documents between Lender and Lessee concerning the making of
the Loan, Lessee grants to Lender, as security for Lessee's performance under the Loan, a deed of
trust encumbering the Lessee's leasehold interest in the Premises, and the Lessor (1) consents to
the making of the Loan, including but not limited to, Lessee granting to Lender a deed of trust
encumbering Lessee's leasehold interest in the Premises, in accordance with the loan documents
between Lender and Lessee and a Deed of Trust, Assignment of Rents and Leases, Security
Agreement and Fixture Filing ("Deed of Trust"), all dated February 26, 2020, and (2) agrees to
non -disturbance and the other covenants, as hereinafter set forth, provided such covenants, or any
of them, do not constitute modifications of the Lease.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Lessee hereby:
A. Represents, warrants and agrees that the Lease is in full force and effect,
and no event of default has occurred under the Lease, nor has any event occurred which, with the
giving of notice or lapse of time, or both, would constitute an event of default under the Lease.
B. Agrees that irrespective of any right to do so that may be expressed or
implied in the Lease, Lessee will not surrender, terminate, cancel, or renounce Lessee's right, title
or interest under the Lease, or cause or permit the demolition of the improvements on the Premises,
without the prior written consent of Lender, which consent Lender may give or withhold in its sole
and absolute opinion and judgment.
C. Lessee hereby covenants and agrees with and for the benefit of Lender, that
without Lender's prior written consent, which consent Lender may withhold in its sole opinion and
judgment, the Lessee will not execute modifications, amendments, changes, or alterations to the
Lease. Notwithstanding any provision to the contrary herein contained, Lender's consent to any
such modification, amendment, change, or alteration shall not be unreasonably withheld in the
event the same shall not materially adversely affect Lender's rights hereunder.
2. Lessor hereby:
A. Agrees that, to the best of Lessor's knowledge, the Lease is in full force and
effect, and, no event of default has occurred under the Lease, nor has any event occurred which,
with the giving of notice or lapse or time, or both, would constitute an event of default under the
Lease.
B. Consents to the Loan, including, but not limited to, the granting by Lessee
of the Deed of Trust as an encumbrance on Lessee's leasehold interest in the Premises to the extent
the Deed of Trust does not modify the Lease, the land use restrictions applicable to the Premises
or other restrictions on the Premises. Lessor is providing this Consent, Non -Disturbance and
Attornment Agreement of Leasehold Interest based upon the understanding that the Loan shall be
fully subordinate to Lessor's title in and to the Premises and all of Lessor's rights set forth in the
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Lease. Lessor shall provide notice to Lender of any default under the Lease, and Lender shall have
the right, but not the obligation, to cure such breaches or defaults.
C. Lessor agrees to provide written notice to Lender of any modification,
amendment, change, or alteration to the Lease.
3. It is further hereby declared, understood and agreed as follows:
A. That Lessor will not declare a termination or forfeiture of the Lease, without
first providing written notice to Lessee and Lender of default or other grounds upon which Lessor
could terminate the Lease or declare a forfeiture, the notice to be given as set forth in
subparagraph 5.B below, Lender:
(1) Within thirty (30) days after Lessor's written notice, cures any
breach or default by Lessee of any covenant to pay rent or other sum of money expressly provided
for in the Lease (hereinafter referred to as a "Monetary Default"), and
(2) Within forty-five (45) days after Lessor's written notice, with
respect to any other breach or default by Lessee other than a Monetary Default (hereinafter such
other default is referred to as a "Nonmonetary Default"): (i) commences a judicial or nonjudicial
foreclosure under the Deed of Trust and diligently pursues such foreclosure to completion, and (ii)
cures any and all Nonmonetary Defaults then existing within said forty-five (45) day period, or,
Lender diligently pursues such cure to completion but in no case, no longer than 90 days. For
purposes of this Agreement, a "Nonmonetary Default" which can be cured by Lender shall not be
deemed to include the commencement of any case by or against Lessee under the U.S. Bankruptcy
Code, the appointment of a receiver or other custodian to take possession of the Premises (whether
by Lender or any other holder of a lien or security interest in Lessee's interest under the Lease or
improvements upon the Premises), or abandonment or other breach or default of the Lease which
is not reasonably capable of being cured by Lender; provided, however, that Lessor may,
notwithstanding the foregoing provisions to the contrary, elect to terminate the Lease based upon
such default and may elect to enter into a new lease with Lender.
B. That if, as and when Lender shall acquire Lessee's interest in the Lease, as
a result of a sale under said Deed of Trust, whether pursuant to judgment of foreclosure or trustee's
sale, or through any transfer in lieu of foreclosure, or through settlement of or arising out of any
pending or contemplated foreclosure action or proceeding, and provided Lender shall have cured
all Monetary Defaults, and cured all Nonmonetary Defaults within said forty-five (45) day period,
Lessor will recognize Lender as the tenant under the Lease as though Lender were a signatory to
said Lease as such tenant and will not in any way deem such sale or transfer of Lessee's interest to
Lender to be a violation, breach or default of said Lease.
C. Any transfer of the Lease to a third party purchaser (i) at foreclosure, or (ii)
following Lender taking title, shall be subject to Lessor's prior written consent and all other
applicable assignment terms and conditions set forth in the Lease. Upon subsequent conveyance,
sale or transfer of the Lender's leasehold interest in the Premises, pursuant to and in accordance
with the Lease, Lender shall be relieved and discharged of any further obligations or
responsibilities under the Lease, which accrue or otherwise occur after said transfer.
3
D. That if, by reason of any default or delinquency of Lessee, or otherwise as
a result or consequence of the insolvency or bankruptcy of Lessee, or any of its successors or
assigns, or any proceedings relating thereto, the Lease shall be terminated by Lessor or by a trustee
(as defined in the Bankruptcy Code) prior to the stated expiration thereof, Lessor may upon request
of Lender, made at any time within thirty (30) days after such termination of the Lease, enter into
a new Lease with Lender to the extent permitted by state law for the remainder of the term of the
Lease, or any extension thereof, effective as of the date of such termination; provided that Lender
agrees to cure any then existing Monetary Default within said 30 day period, and, within forty-five
(45) days after such termination, to cure any and all Nonmonetary Defaults within said forty-five
(45) day period.
E. That if Lender shall become a tenant under paragraph 3.D, above, and all
subleases which had been assigned to Lessor shall be assigned to Lender.
F. That the agreements and covenants provided for herein, and each of them,
are made with agreement that Lender, in making disbursements under the Loan, is under no
obligation or duty to, nor has Lender represented that it will, see to the application of such loan
proceeds by the person or persons to whom Lender disburses such Loan proceeds, and any
application or use of such proceeds for purposes other than those provided for in such loan
documents shall not defeat the agreements or covenants herein made, or any of them, in whole or
in part.
G. That the Loan being made by Lender to Lessee is being made in reliance
upon all of the agreements and covenants of Lessor and Lessee contained in this Agreement.
H. That all hazard insurance policies on the property carried by Lessee shall
name Lender as a loss payee, and Lender shall be named as an additional insured under Lessee's
comprehensive general liability policy or policies, and that all insurance proceeds and
condemnation proceeds, payable to Lessee under the lease shall be payable to Lender, subject to
the Lessor's rights to same under the Lease.
4. Lender agrees that upon Lender becoming a tenant under the Lease or under any
new lease, as hereinabove described, to attorn to and recognize Lessor as its landlord in regard to
the Premises, subject to the provisions of paragraph 3.0 above.
5. Miscellaneous
A. This Agreement shall bind and inure to the benefit of and be enforceable by
the parties hereto and their respective successors and assigns.
B. Except as otherwise provided by law, all notices, requests, demands,
directions and other communications provided for hereunder must be in writing and must be
mailed or delivered by nationally recognized overnight courier to the appropriate party at its
respective address set forth below or, as to any party, at any other address as may be designated
by it in a written notice sent to the other parties in accordance with this subparagraph.
4
If any notice is given by mail it will be effective five (5) calendar days after
being deposited in the mails, certified return receipt requested; if given by overnight courier; or if
given by personal delivery, when delivered.
To Lender:
Such notices will be given to the following:
MERCEDES BENZ FINANCIAL SERVICES USA LLC
36455 Corporate Drive
Farmington Hills, Michigan 48331
Attention: General Counsel
With copy to: DICKINSON WRIGHT PLLC
2600 West Big Beaver Rd., Suite 300
Troy, Michigan 48084
Attention: Attorney in Charge of MERCEDES-BENZ FINANCIAL
SERVICES USA LLC Matters
To Lessor:
CITY OF NEWPORT BEACH
100 Civic Center Drive
Newport Beach, California 92660
Attention: City Manager
To Lessee: FLETCHER JONES MOTOR CARS, INC.
3300 Jamboree Road
Newport Beach, California 92660
Attn: Fletcher Jones, Jr.
with copies to: UNDERWOOD & ROBERTS, PLLC
3110 Edwards Mill Road
Suite 100
Raleigh, NC 27612
Attn: Jeffrey G. Roberts, Esq.
C. This Agreement contains the entire agreement between the parties and
cannot be changed, modified, waived or canceled, except by an agreement in writing executed by
the party against whom enforcement of such modification, change, waiver or cancellation is
sought.
D. This Agreement shall be construed and enforced in accordance with the
laws of the State of California. Any action brought to enforce the terms of this Agreement shall
be brought in the State of California, County of Orange.
5
IN WITNESS WHEREOF, Lender hereby has duly executed this Agreement as of the day
and year first above written.
LENDER
MERCEDES-BENZ FINANCIAL
SERVICES USA LLC
By:
ACKNOWLEDGMENT
STATE OF TEXAS )
) SS.
COUNTY OF TARRANT )
The foregoing instrument was acknowledged before me this
2020, by rir vkn 6 3 g. 6ia.,)✓1 , the maa
of MERCEDES-BENZ FINANCIAL SERVICES USA LLC,
company, on behalf of the company.
a� t` day of llAy
Ti&v1 c4 ar(():AV1 5
a Delaware limited liability
Notary Public, Tarrant County,
State of Texas
My Commission Expires: se-4Q ✓vt toe( k` / ),u 3
AIMING
`4?1Y ��,,,� KERRI DAYNE DAVIS
' �: Notary Public, State of Texas
• `cam Comm. Expires 09-26-2023
,/, cl;o`' Notary ID 130239115
6
IN WITNESS WHEREOF, the parties hereby have duly executed this Agreement as of the
day and year first above written.
Approved As To Form:
By:
IQame: ron C. Harp
Its: Cit Attorney
Attest:
By:
Name: Leilani I. Br
Its: City Clerk
LESSOR
CITY OF NEWPORT BEACH
By:
Na T Grace K. Leung
I ..City Manager
LESSEE
FLETCHER JONES MOTOR CARS, INC.
Signed in Counterpart
By:
7
Name: Fletcher Jones, Jr.
Its: President
IN WITNESS WHEREOF, the parties hereby have duly executed this Agreement as of the
day and year first above written.
Approved As To Form: LESSOR
By: �
Name: • aron C. Harp
Its: Cit j Attorney
Attest:
CITY OF NEWPORT BEACH
By:
By: SDI w-e 3 /> c CA-wkr-a r)
Narte: Leilani I. Brown
Its: City Clerk
5f1/41A e r
Name: Grace K. Leung
Its: City Manager
LESSEE
CettAie
FLETCHER JONES MOTOR CARS, INC.
By:
ame: Fletcher Jo s Jr.
Its: President
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ACKNOWLEDGMENTS
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California
County of O/214)
On Jl? e-i 2 Z 2020 before me,
JGr4NiFea. i4NN MULVE
Here Insert Name and Title of the Officer
personally appeared C,Ci4 LE: k, L.EvNG
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/afe
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in hisfher/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.
• °"'<. Jennifer Ann Mulvey
COMM #2214138 A
u, } Notary Public - California g
a \ ORANGE COUNTY
*Commission Expires Oct 12, 2021
(SEAL)
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my ha •. and official seal.
k A
gnat'W •
Signature
8
Public
ACKNOWLEDGMENTS
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California
County of 0 r (ry.e
On 'D ( 2020 before me,
\heA f i s-�.e�, cf2", (l ,ir �o1 b i i c
�D i � n .— e Here hrse1� Name and Title of the Officer
personally appeared C.k .e �o S
.Namelsr ofSigner(s/
who 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.
SHELLEY CHRISTENSEN
' Notary Public - California
8i Orange County i
z c.Z449 Commission # 2167009
1_ _ _ tau`� _ My Comm. Expires 31 Oct , 2020 C
(SEAL)
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
8
4/61%24\b/\
re ofNotary Public
EXHIBIT "A"
LEGAL DESCRIPTION
Land situated in the City of Newport Beach, County of Orange, State of California is described as
follows:
PARCEL C:
That portion of Block 51 of Irvine's Subdivision, in the City of Newport Beach, County of Orange,
State of California, as shown on a Map thereof recorded in Book 1, Page 88 of Miscellaneous
Record Maps, in the Office of the County Recorder of said county, described as follows:
That portion of Parcel 10094 granted to the San Joaquin Hills Transportation Corridor Agency by
a deed recorded September 3, 1993 as Instrument No. 93-0598813 Official Records of said Orange
County, lying Northerly of the following described line:
Beginning at a point in Course No. 6, in the Southeasterly line of said Parcel 10094, described as
"South 13 degrees 03 minutes 02 seconds West, 163.41 feet" in said deed, for the purpose of the
description, the bearing will be South 13 degrees 05 minutes 41 seconds West, said point being
South 13 degrees 05 minutes 41 seconds West, 15.84 feet from the Northeasterly terminus thereof;
said point also being the Northeasterly terminus of a course in the Northwesterly line of Parcel No.
300092 granted to the San Joaquin Hills Transportation Corridor Agency by a deed recorded July
1, 1994 as Instrument No. 94-0436936 of said Official Records, said course described as "North
13 degrees 03 minutes 02 seconds East, 147.57 feet" in said deed; thence departing from said
Course No. 6, North 68 degrees 28 minutes 13 seconds West 121.20 feet; thence North 14 degrees
22 minutes 47 seconds West 28.85 feet; thence North 73 degrees 59 minutes 06 seconds West
15.00 feet to the Northwesterly line of said Parcel 10094.
Unless otherwise noted, all bearings and distances in this description are grid based on California
Coordinate System (NAD 83), Zone 6, 1988 Orange County Adjustment.
To obtain ground distances, divide the grid distance shown herein by 0.9999431
Tax ID Number; 442-071-20 (Parcels A and B) and 442-071-23 (Parcel C)
EXHIBIT "A" — PAGE 1
NB-1»►
11 e T n r! H
tr-
EXHIBIT "B"
PREMISES DEPICTION
0
Feet
C scla mer.
Every reasr able ef'ort has bee^ made to assure the
accuracy of r e a ata prov:.ra, however, The C y cr
Newport Beath and is employees and agents
disclatm any and a.. respons from or relating tc
any results obtac n its se
4850-2709-6243 v5 [45041-9571
EXHIBIT "B" - PAGE 1