HomeMy WebLinkAboutC-3067(I) - Jamboree, 3300 - Consent, Non-Disturbance and Attornment Agreement of Leasehold Interest 2022 - Fletcher Jones MotorcarsRecorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Miller, Canfield, Paddock and Stone, P.L.C.
Attention: Shawn N. Hopper
150 W. Jefferson Avenue, Suite 2500
Detroit, Michigan 48226
With a conformed copy to:
City of Newport Beach
Attn: City Clerk
100 Civic Center Drive
Newport Beach, CA 92660
111111111 111 111 111111111
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2022000093236 10:36 am 03/09/22
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SPACE ABOVE THIS LINE FOR RECORDER'S USE
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 day of Nt. , 2022, by and among
COMERICA BANK, a Texas corporation ("Agent"), as the administrative agent for the Lenders
(as hereinafter defined); 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 pursuant to
that certain Master Credit Agreement dated as of June 10, 2021 (as amended, restated or
otherwise modified from time to time, (the "Credit Agreement"), by and among: (1) Lessee, (2)
each of the other borrowers from time to time signatory thereto, (3) the Agent, and (4) the financial
institutions from time to time signatory thereto (any and all such financial institutions, each
individually and all of them collectively, the "Lenders"), the Agent and the Lenders have agreed
to extend credit to the Lessee on the terms set forth in the Credit Agreement. Lessee's obligations
under the Credit Agreement (including a term loan in a principal amount equal to $58,897,668.00
(the "Loan") are 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 was recorded as Instrument
No. 2021000386506.
C. Agent and Lenders are willing to make the Loan if, and only if, in addition to all
other terms and conditions set forth in the loan documents among Agent, Lenders, and Lessee
concerning the making of the Loan, Lessee grants to Agent, 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
Agent a deed of trust encumbering Lessee's leasehold interest in the Premises, in accordance
with the loan documents among Agent, Lenders and Lessee and a Deed of Trust, Security
Agreement and Fixture Filing (with Assignment of Rents and Leases) (the "Deed of Trust"), all
dated June 10, 2021, 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 Agent, which consent Agent may give or withhold
in its sole and absolute opinion and judgment.
C. Lessee hereby covenants and agrees with and for the benefit of Agent and
Lenders, that without Agent's prior written consent, which consent Agent 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, Agent'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 Agent's or Lenders' 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
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in the Lease. Lessor shall provide notice to Agent of any default under the Lease, and Agent shall
have the right, but not the obligation, to cure such breaches or defaults.
C. Lessor agrees to provide written notice to Agent 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 Agent 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, Agent:
(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,
Agent diligently pursues such cure to completion but in no case, no longer than ninety (90) days.
For purposes of this Agreement, a "Nonmonetary Default" which can be cured by Agent 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 Agent 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 Agent; 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 Agent.
B. That if, as and when Agent 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 Agent shall have
cured all Monetary Defaults, and cured all Nonmonetary Defaults within said forty-five (45) day
period, Lessor will recognize Agent as the tenant under the Lease as though Agent 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 Agent 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 Agent 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 Agent's leasehold interest in the Premises, pursuant to and in accordance
with the Lease, Agent shall be relieved and discharged of any further obligations or responsibilities
under the Lease, which accrue or otherwise occur after said transfer.
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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 Agent, made at any time within thirty (30) days after such termination of the
Lease, enter into a new Lease with Agent 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 Agent agrees to cure any then existing Monetary Default within said thirty (30) day
period, and, within forty-five (45) days after such termination, to cure any and all Nonmonetary
Defaults.
E. That if Agent shall become a tenant under paragraph 3.D, above, and all
subleases which had been assigned to Lessor shall be assigned to Agent.
F. That the agreements and covenants provided for herein, and each of them,
are made with agreement that Agent, in making disbursements under the Loan, is under no
obligation or duty to, nor has Agent represented that it will, see to the application of such loan
proceeds by the person or persons to whom Agent 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 Agent 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 Agent as a loss payee, and Agent 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 Agent, subject to
the Lessor's rights to same under the Lease.
4. Agent agrees that upon Agent 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.
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.
4
Such notices will be given to the following:
To Agent: COMERICA BANK
Comerica Bank Center
Attn: Corporate Finance — MC 3289
411 W. Lafayette St.
Detroit, Michigan 48226
With copy to:
To Lessor:
To Lessee:
MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.
150 West Jefferson, Suite 2500
Detroit, Michigan 48226
Attention: Shawn N. Hopper
CITY OF NEWPORT BEACH
100 Civic Center Drive
Newport Beach, California 92660
Attention: City Manager
FLETCHER JONES MOTOR CARS, INC.
7300 West Sahara
Las Vegas, Nevada 89117
Attn: Shawn Dettrey
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.
[SIGNATURES ON FOLLOWING PAGE]
5
IN WITNESS WHEREOF, Agent hereby has duly executed this Agreement as of the day
and year first above written.
STATE OF T •
COUNTY OF TA
t7
T
dei;t4
AGENT:
COMERICA BANK
By: L/Lite7-&
Name: 1ici6hc ,Iflj,1,41
•
Its: Ike rei/(Mlr
ACKNOWLEDGMENT
) SS.
The foregoing instrument was cknowledg d before me this '...-1` day of ci ,
202g by -ef i <'rff-
, , he
of COMERICA BANK, a Texas banking association,
on behalf of the association.
NotrPibIic,
State of A4)f-il
My Commission Expires:
DERRICK J. ACKLIN
NOTARY PUBLIC
SOUTH CAROLINA
MY COMMISSION EXPIRES 09-21-31
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: /
Name: Aaron C. Harp
Its: City Attorney
Attest:
By:
Name: Leilani I. Brown
Its: City Clerk
"LESSOR"
CITY OF NEWPORT BEACH
By:
Name: ' ce K. Leung
Its: ity Manager
"LESSEE"
FLETCHER JONES MOTOR CARS, INC.
Signed in Counterpart
By:
Name: Fletcher Jones, III
Its: Secretary
7
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: •cam._ _C
Name: Aaron C. Harp
Its: City Attorney
Attest:
By:
Name: Leilani I. Brown
Its: City Clerk
"LESSOR"
CITY OF NEWPORT BEACH
By:
Name: Grace K. Leung
Its: City Manager
"LESSEE"
FLETCHER JONES MOTOR CARS, INC.
By:
Name: Fletcher Jones, III
Its: Secretary
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ACKNOWLEDGMENT
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 -f-
County of 0�x.°`
} ss.
On -:.'.n , 20 before me,
Notary Public, personally appeared F a�t
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 signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
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
LESUE BOEDDEKER
of
No. 96-1579-1
Exp. 1, 2024
(seal)
ACKNOWLEDGMENT
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 } ss.
On , 20 before me,
Notary Public, personally appeared
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 signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
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 (seal)
8
ACKNOWLEDGMENT
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
} ss.
On °� , 20 before m l
Notary Public, personally appeared t . L ,
who proved to me on the basis of satisfactory evidence to be the persons) whose name(s), is/are
subscribed to the within instrument and acknowledged to me that helshe/they executed the same
in his/her/their authorized capacity ' ), and that by er/their signatures(s4 on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITS my hand and official seal.
Signatu
JENNIFER ANN MULVEY
Notary Public • California z Orange County
Commission 4 2375299
My Comm. Expires Oct 12, 2025
(seal)
ACKNOWLEDGMENT
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 } ss.
On , 20 before me,
Notary Public, personally appeared
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 signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
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 (seal)
8
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
0
EXHIBIT "B"
PREMISES DEPICTION
10
Feet
i
Every reasrabk eon has tee- matte to assure the
a ::racy of the Oata prov ,:÷_. however. The : ry cs
Newport Beath and ..s e-+pkyees and agents
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any results xaa . . n is se
EXHIBIT "B" - PAGE 1