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HomeMy WebLinkAboutC-7340-5 - Lessor's Consent and Agreement Regarding Assignment for Financing 2025Recording Requested by Fidelity National Title RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Norton Rose Fulbright US LLP 7676 Forsyth Boulevard, Suite 2230 St. Louis, Missouri 63105 Attention: Danette Davis WITH A COPY TO: City of Newport Beach City Clerk's Office 100 Civic Center Drive Newport Beach, CA 92660 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder II I I II II I II I I III I II I I II I II 74.00 *$ R 0 0 1 5 1 3 1 8 4 5$ 2024000227429 8:00 am 09/04/24 90 CR-SC06 Al2 C34 21 0.00 0.00 0.00 0.00 60.00 0.00 0.000.000.00 0.00 [SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY] LESSOR'S CONSENT AND AGREEMENT REGARDING ASSIGNMENT FOR FINANCING THIS LESSOR'S CONSENT AND AGREEMENT ("Lessor's Consent') is given this day of September, 2024, by the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("Lessor"), and acknowledged and agreed to by Peninsula Village, LLC, a Delaware limited liability company ("Lessee" or "Assignee"), as successor -in -interest to Peninsula Village, LLC, a Delaware limited liability company, and Vue Investor Owner, LLC, a Delaware limited liability company (individually and collectively "Assignor"), as tenants in common, on the following terms and conditions: RECITALS A. On November 1, 2017, Lessor entered into that certain Lease Agreement With Option for Renewal ("Lease") with NPBeach Marina LLC, a Michigan limited liability company concerning certain real property generally described as Tidelands, as defined in the Lease, which is an independent site with no land access, consisting of an approximately 26,397 square ' feet water area located generally at 2300 Newport Boulevard in the City of Newport Beach, California ("Property"). B. On or about August 5, 2022, with the consent of the Lessor, NPBeach Marina LLC sold the Property to Assignor, as evidenced by a Memorandum of Assignment of Lease and Amendment to Lease Memorandum ("Memorandum of Assignment"), recorded on August 5, 2022, as Instrument No. 2022000270168 in the Official Records of Orange County. C. On or about September 29, 2022, Assignor transferred the Property to Assignee. With the consent of the Lessor, Assignor assigned to Assignee (and Assignee assumed from Assignor) all of Assignor's right, title, interest and obligations under the Lease, as evidenced by a Memorandum of Assignment of Lease and Amendment to Lease Memorandum ("Memorandum of Assignment"), recorded on September 30, 2022, as Instrument No. 2022000322308 in the Official Records of Orange County. D. On or about August 19, 2024, Lessee requested Lessor's approval to obtain financing of the Property ("Loan") pursuant to the loan documents ("Loan Documents") executed by and between Assignor and NORTH AMERICAN COMPANY FOR LIFE AND HEALTH INSURANCE, an Iowa corporation ("Lender"), including the recordation of that certain Deed of Trust, Security Agreement, Fixture Filing and Assignment of Leases and Rents made by Assignor in favor of Lender of even date herewith (Deed of Trust") against the Property to evidence the Loan. E. Pursuant to Section 16 of the Lease, the prior written consent of Lessor is required in connection with any transfer of the Lease, including the assignment of Lessee's interest in the Lease to Lender as collateral for the financing obligations pursuant to the Deed of Trust. CONSENT AND AGREEMENT NOW, THEREFORE, Lessor does hereby consent to the Loan Documents and resulting assignment of Assignee's interest in and to the Lease to Lender under the Deed of Trust and recordation of the Deed of Trust to evidence the Loan, subject to the following: 1. Said consent to assignment shall be subject to each and all of the covenants, conditions and restrictions set forth in the Lease and shall be subject to all rights and interest of Lessor thereunder, except as herein otherwise provided. 2. The Property is subject to the Lease, which is summarized in "Exhibit A", attached hereto. The Lease constitutes the entire agreement of Lessee and Lessor regarding the Property. The Lease is in full force and effect and unmodified. All rents and other charges due have been paid, there are no other defaults and the Lease is in good standing. Lessor has no knowledge of any facts which now or after the passage of time or the giving notice, or both, would constitute a default under the Lease. The payments required under the Lease are set forth in Exhibit A. Payments and notices to Lessor are deliverable as set forth in Exhibit A. Lessor has no claims outstanding against Lessee in connection with the Property. 3. Lessee has satisfied the provisions of Section 16(d) of the Lease, and confirms that in no event shall the leasehold mortgage exceed a loan -to -value ratio of seventy-five percent (75%) of the Property. Lessee confirms that it will ensure Lender contemporaneously provides Lessor with any notices of default and notices of foreclosure Lender sends to Lessee as a result of Lender allowing Lessee to use Lessee's interest in the Property as collateral for the refinancing obligations contemplated herein. 4. Lessee acknowledges that any leasehold mortgage now or hereafter placed on Lessee's interest in the Property shall be subject and subordinate to any limitations in the Tidelands Grants, Lessor's interest in the Tidelands, the Lease, and any mortgage now in existence on the leasehold estate. Lessee shall not use, encumber or transfer this 3036/037324-0006 20967249.4 a09/03/24 -2- Lease or the Property as security or collateral for any action unless directly related to the Tidelands and the permitted uses allowed by the Lease. 5. Lessee acknowledges this Lessor's Consent and the provisions of Section 16 of the Lease do not give any entity the right to mortgage, hypothecate, cause a transfer of, or otherwise encumber or cause any liens to be placed against the Lessor's interest in the Property as trustee of the tidelands, nor shall anything in this Lessor's Consent or the Lease be construed as resulting in a subordination in whole or in part of Lessor's interests. 6. Lessor consents to the granting of a security interest in Lessee's interest in the Lease to Lender. Lessor agrees to send concurrently to Lender copies of any notices sent to Lessee pertaining to Lessee's default or Lessor's intent to terminate the Lease or any part thereof by certified U.S. mail. Notice will be provided to Lender at the same time as the notices are sent to Lessee. Notice will be sent by certified mail at the following address: North American Company For Life and Health Insurance c/o Guggenheim Partners Investment Management, LLC 100 Wilshire Boulevard, Suite 500 Santa Monica, California 90401 Attention: Head of Real Estate With a copy to: North American Company For Life and Health c/o Guggenheim Partners Investment Management, LLC 1 N. Brentwood Boulevard, Suite 910 St. Louis, Missouri 63105 Attention: Jennifer A. Marler And a copy to: Norton Rose Fulbright US LLP 7676 Forsyth Boulevard, Suite 2230 St. Louis, Missouri 63105 Attention: Danette Davis, Esq. 7. Should Lessee be in default of the Lease, the Lease shall continue upon satisfaction of the terms, conditions, requirements, and procedures set forth in Section 16(d) of the Lease. 8. This Lessor's Consent shall not operate to change or supersede the terms and conditions of the Lease and in the event of a conflict the terms of the Lease shall prevail. 3036/037324-0006 20967249.4 a09/03/24 -3- 9. For purposes of the Lease, Lessor acknowledges that Lender is hereby designated as a "Leasehold Mortgagee" and that the Deed of Trust is hereby designated as a "Leasehold Mortgage." For the avoidance of doubt, Lessor hereby acknowledges that Lender may foreclose the lien of the Deed of Trust pursuant to Section 16(d) of the Lease without obtaining any further consent of Lessor as related to the initiation and completion of foreclosure, however, no other transfer to an assignee, future transferee or purchaser by foreclosure of the Deed of Trust shall be effective without Lessor's prior written consent, which shall not be unreasonably withheld. [SIGNATURES ON FOLLOWING PAGE] 3036/037324-0006 20967249.4 a09/03/24 -4- IN WITNESS WHEREOF, the duly authorized representatives of Lessee and Lessor have executed this Lessor's Consent effective as of the day of September, 2024. LESSEE/ASSIGNEE Peninsula Village, LLC, a Delaware limited liability company LESSOR City of Newport Beach, a California municipal corporation and charter city By: PV Newport, LLC, a Delaware limited liability company, its Sole Member By By: Peninsula Village JV, LLC, a Delaware limited liability company, its Sole Member By: RW Industrial II LLC, a Delaware limited liability company, its Administrative Member By: Signed in Counterpart John Pomer, Authorized Representative By: Vue Investor, LLC, a Delaware limited liability company, its Managing Member By: PIV 1, LLC, a California limited liability company, its Manager BySigned in Counterpart Adon A. Panattoni, Manager CitvcMe K. Leung anager LESSEE/ASSIGNEE SIGNATURES MUST BE NOTARIZED ATTEST: {pY Lila i I. Brown City Clerk APPRO D AS TO FORM: `gc,Foa �r Aaron . Harp City At rney 3036/037324-0006 20967249.4 a09/03/24 ' 1' IN WITNESS WHEREOF, the duly authorized representatives of Lessee and Lessor have executed this Lessor's Consent effective as of the __ day of September, 2024. LESSEE/ASSIGNEE Peninsula Village, LLC, a Delaware limited liability company By: PV Newport, LLC, a Delaware limited liability company, its Sole Member By: Peninsula Village JV, LLC, a Delaware limited liability company, its Sole Member By: RW Industrial II LLC, a Delaware limited liability company, its Administrative Member By: JAfi Pomer, Authorized Representative By: Vue Investor, LLC, a Delaware limited liability company, its Managing Member By: PIV 1, LLC, a California limited liability com any, its MI r / - By: % c Adon A. Panattoni, Man er LESSOR City of Newport Beach, a California municipal corporation and charter city go Grace K. Leung City Manager LESSEE/ASSIGNEE SIGNATURES MUST BE NOTARIZED ATTEST: Leilani I. Brown City Clerk APPRO D AS TO FORM: Aaron . Harp City At rney 3036/037324-0006 20967249.4 a09/03/24 - 1 - 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 QQp�,AG,v } ss. On 20 DA before me, AY•d.x��ad��\�i���h�tihy , Notary Public, personally appeared who proved to me on the basis of satisfactory evid nce to be the person(} whose name{sj- is/are subscribed to the within instrument and acknowledged to me that he/sl--- executed the same in his4�e r- authorized capacity0c-), and that by his/he#theif- signatures(s-) on the instrument the person(&), or the entity upon behalf of which the person{-s-) acted, executed the instrument. certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNES nd and official seal. ure 3036/037324-0006 20967249.4 a09/03/24 -2- ANDREZA DO VALLE ROCHA BLEASBY r COMM. #2336834 M N " �'-:.' Notary Public -California 0 LL ORANGE COUNTY LL u y My Comm. Expires Nov 8, 2024 �( Y (seal) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 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 Califo6r" County of On egoy 3, before me, Date � A ��n re Ins /Nc)me and T� e of the Officer personally appeared �e`'I►"7�`�' Nome(s) of Signer(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. --M: Fo'' ,•'• Z4�432jF1''`, i r � r •. F CK •• %RED AEG ' Place Notary Seal and/or Stamp Above 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 �)( 14 Signat re of Notary Public Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document �f Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: 02017 National Notary Association Number of Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: 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 012 ANA('E } ss. On SF-pTe=Mt3EYL 3, 20 Zy before me, JENNIFE9_ IANN {MVL-VE7 Notary Public, personally appeared GIZIA LE k • Lr-V i.LC, , 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-mV hand and official seal. S re 3036/037324-0006 20967249.4 a09/03/24 -2- JENNIFER ANN MULVEY �` = Notary Pub4c • California �; d Orange County Commission # 2375299 �.�o•"'' My Comm. Expires Oct 12, 2025 (seal) EXHIBIT "A" SUMMARY OF LEASE 1. Borrower (Lessee) Name: Peninsula Village, LLC 2. Property Address: 2300 Newport Boulevard, Newport Beach, CA 92663 3. Property Description: See Attachment 1 — Property Depiction 4. Lease (including all amendments and dates): See Attachment 2 - Memorandum of Lease 5. Borrower (Lessee) Current Monthly Lease Payment: $ 2,441.72 6. Payments are current (circle one): Yes or No Through: September 2024 7. Deliver notices and payments to Lessor at: City of Newport Beach Attn: Real Property Administrator 100 Civic Center Drive Newport Beach, CA 92660 8. Term of Lease: One (1) year Expires on: November 30, 2018 Options: One (1) consecutive renewal term of twenty- three (23) years. 3036/037324-0006 20967249.4 a09/03/24 -3- EXHIBIT "A" — ATTACHMENT 1 Property Depiction 3036/037324-0006 20967249.4 a09/03/24 -4- EXHIBIT "A" — ATTACHMENT 2 Memorandum of Lease 3036/037324-0006 20967249.4 a09/03/24 'S' Recording Requested by Fidelity National Title D BY AND WHEN RECORDED RETURN TO; City of Newport Beach City Clerk's Office 100 Civic Center Drive Newport Beach, CA 92660 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder II I j III III III j I I I j III $�j III I jj 35,00 *$ R 0 0 1 3 9 8 6 8 2 3 $ * 2022000322308 3:17 pm 09/30122 9 RW9A M 13 A17 8 0.00 0.00 0.00 0.00 21.00 0.00 0.000.000.00 0.00 SPACE ABOVE THIS LINE FOR RECORDER'S USE MEMORANDUM OF ASSIGNMENT OF LEASE AND AMENDMENT TO LEASE MEMORANDUM (2300 Newport Boulevard, Newport Beach, CA) THIS MEMORANDUM OF ASSIGNMENT OF LEASE AND AMENDMENT TO LEASE MEMORANDUM ("Memorandum") is made and executed in connection with that certain Assignment and Assumption of Lease Agreement dated on or aboutSyLu�b ?,I, 2022 ("Assignment"), by Peninsula Village, LLC, a Delaware limited liability company, and Vue Investor Owner, LLC, a Delaware limited liability company (individually and collectively "Assignor"), and Peninsula Village, LLC, a Delaware limited liability company ("Assignee"). RECITALS A. Assignor and the City of Newport Beach, a California municipal corporation and charter city ("City") are parties to a certain Lease Agreement with Option for Renewal dated November 1, 2017 ("Lease"), respecting the Tidelands generally located at 2300 Newport Boulevard in Newport Beach, California (the "Property"), as evidenced by a Memorandum of Assignment of Lease And Amendment to Lease Memorandum recorded on August 5, 2022, in the Official Records of Orange County, California, as Instrument No. 2022000270168 ("August 2022 Memorandum"). B. In connection with the transfer of the Property from Assignor to Assignee, which closed escrow on or about �(Ck(A�7St7.o2Z Assignor and Assignee executed the Assignment pursuant to which Assignor assigned to Assignee (and Assignee assumed from Assignor) all of Assignor's right, title, interest, and obligations under the Lease. C. On or aboutS(P%bt�Z1 , 2022, City consented to the Assignment by and between Assignor and Assignee pursuant to a certain Consent to Assignment of Lease recorded on ��kwj� 2022, and recorded in the Official Records of Orange County, California, as Instrument No. 207_2o o0 3221 S1 which shall be further evidenced by this Memorandum to be immediately recorded thereafter. AGREEMENTS NOW, THEREFORE, the parties acknowledge and agree as follows: 1. Purpose of Memorandum. This Memorandum is being recorded to place the public on notice of the terms and provisions of the Lease, which terms and provisions are hereby incorporated by reference into this Memorandum, of the Assignment, and to amend the August 2022 Memorandum. In the event of any conflict between the terms and conditions of this Memorandum and the Lease, the terms and conditions of the Lease shall prevail. 2. Amendment of Lease Memorandum. The August 2022 Memorandum is amended such that the "Lessee" identified therein shall mean and refer to Assignee from and after the date of recording of this document. 3. Counterparts. This Memorandum may be executed in one or more counterparts, each of which shall be deemed an original, but all which together shall constitute but one and the same instrument. [SIGNATURES ON FOLLOWING PAGE] Page 2 IN WITNESS WHEREOF, the duly authorized representatives of Assignor, Assignee and City have executed this Memorandum effective as of the 'L�- day of S(doAkky- 2022. "Assignor" "Assignee" Peninsula Village, LLC, a Delaware limited Peninsula Village, LLC, a Delaware limited liability company liability company By: PV Newport, LLC, a Delaware limited liability company, its Sole Member By: Peninsula Village JV, LLC, a Delaware limited liability company, its Sole Member By: RW Industrial II LLC, a Delaware limited liability company, its Administrative Member By: �R Jolin Pomer, Authorized Representative By: Vue Investor, LLC, a Delaware limited liability company, its Managing Member By: PIV 1, LLC, a California limited liability company, its Manager la Adon A. Panattoni, Manager Vue Investor Owner, LLC, a Delaware limited liability company By: Vue Member, LLC, a Delaware limited liability company, its Sole Member Adon A. Panattoni Authorized Representative By: PV Newport, LLC, a Delaware limited liability company, its Sole Member By: Peninsula Village JV, LLC, a Delaware limited liability company, its Sole Member By: RW Industrial II LLC, a Delaware limited liability company, its Administrative Member By: John Pomer, Authorized Representative By: Vue Investor, LLC, a Delaware limited liability company, its Managing Member By: PIV 1, LLC, a California limited liability company, its Manager By: Adon A. Panattoni, Manager ASSIGNOR AND ASSIGNEE SIGNATURES MUST BE NOTARIZED Page 3 IN WITNESS WHEREOF, the duly authorized representatives of Assignor, Assignee and City have executed this Memorandum effective as of theday of SQ ft("4Vt1r , 2022. "Assignor" "Assignee" Peninsula Village, LLC, a Delaware limited Peninsula Village, LLC, a Delaware limited liability company liability company By: PV Newport, LLC, a Delaware limited liability company, its Sole Member By: Peninsula Village JV, LLC, a Delaware limited liability company, its Sole Member By: RW Industrial II LLC, a Delaware limited liability company, its Administrative Member By: John Pomer, Authorized Representative By: Vue Investor, LLC, a Delaware limited liability company, its Managing Member By: PIV 1, LLC, a California limited liability company, its Manager By: /'��% Adon A. Panattoni, Manager Vue Investor Owner, LLC, a Delaware limited liability company By: Vue Member, LLC, a Delaware limited liability company, its Sole Me ber By:� r Adon A. Panattoni Authorized Representative By: PV Newport, LLC, a Delaware limited liability company, its Sole Member By: Peninsula Village JV, LLC, a Delaware limited liability company, its Sole Member By: RW Industrial II LLC, a Delaware limited liability company, its Administrative Member in John Pomer, Authorized Representative By: Vue Investor, LLC, a Delaware limited liability company, its Managing Member By: PIV 1, LLC, a California limited liability company, its Manager By:�// Adon A. Panattni, Manager ASSIGNOR AND ASSIGNEE SIGNATURES MUST BE NOTARIZED Page 3 «City„ CITY OF NEWPORT BEACH, a California muni ipaI corporation Date: K. Leung Manager ATTEST: Date: �j 1. �r, -y10 � n�2- Leilani I. Brown City Clerk APPROVED AS TO FORM: B+nH A�rpL41 as VAI• C Page 4 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 012 Af.1 L. } ss. On I. 2.$ - ZZ before me, JENN l Fert Noo--j 00 Notary Public, personally appeared GaALE k. LeyM, , 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. WITNESIS"viv hand and official seal. Signatu JENNIFER ANN MULVEY Notary Public • Cadfornia z Orange county 7 Commission # 2375299 ■ (seal) Page 5 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 �y(,,,/,,��7Z before me, Notary Public, personally appeared c7o/a el&'- , 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 he/she/they executed the same in his/herltheir 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 ha d I seal. Signature (seal) °�.IIIIIIIII IIIIIIIIII IIIIIIIIIIItIII11tIIIII II1111111NIlIIxpIII8Wt111111I11111111 ull�. JAMEY JUAREZ Notary Public • California = ,.! Orange County Commission # 2293794 My Comm. Expires Jun 26, 2023 m I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I1111111II I I I I I I I I I I I I I I II I I I HI I I H I I I I II I I I I II I I I I) if Page 5 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 U County of o12l H "1 e } ss. rr On Uobev Z.v22 befor e, �� , Notary Public, personally appeared n l�Gt , 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. jell Signature (seal) ,� aY PV ••e i Chi WU � e e r e e �� e e4L GE c Page 5