HomeMy WebLinkAboutC-7345-2 - Beacon Bay, 58 - Consent to Assignment of Agreement to Lease 1982Space above line for Recorder's use only
CONSENT TO ASSIGNMENT
19
N34
AGREEMENT TO LEASE
THIS CONSENT is given this 13th day
of January , 1982, by the CITY OF NEWPORT
BEACH, a Chartered Municipal Corporation (hereinafter the
"City") on the following terms and conditions:
RECITALS
A. The City entered into an Agreement to Lease
dated June 18, 1981 (the "Agreement"), with Thomas A.
Gillen ("Sublessee") covering certain real property
described as Lot 58 in the City of Newport Beach, County
of Orange, State California, as per Record of Survey
Map filed .in Book 9, Pages 42 and 43 of Record of Surveys,
in the Office of the County Recorder of said County (the
"Property") .
B. Sublessee is currently subleasing the
Property from Carroll B. Beek and others under that
certain Master Lease with the.City covering the area known
as Beacon Bay dated January 9, 1950 (the "Master Lease").
Said sublease (the "Sublease") is dated March 14, 1951,
and.was recorded on July 16, 1951, in Book 2136, Page 601
of the Official Records of Orange County, California.
C. The Sublease expires in 1987. Pursuant to
the Agreement, the City has agreed that, provided
Sublessee does not default under the Agreement, it will
lease the Property directly to Sublessee for a term of
twenty-five years upon expiration of the Sublease. Said
direct lease is to be in the form of Exhibit C to the
Agreement (the "Direct Lease").
D. Sublessee has applied to Orange Coast
Savings and Loan Association ("Lender"), for a real estate
loan to be secured by Sublessee's interest in the
Property. Sublessee has also agreed to assign Sublessee's
rights under the Agreement to Lender. As a condition to
making such loan, Lender has required that the City
(notwithstanding Paragraph 5 of the Agreement) consent to
such assignment of the Agreement according to the terms
hereof.
WPN: 1985B
CONSENT
NOW, THEREFORE, the City does hereby consent to
the assignment to Lender of Sublessee's rights under the
Agreement and further agrees in favor of Lender as follows:
1. Should Sublessee default under the loan
described above and Lender foreclose on the subleasehold
interest under the Sublease, the City agrees that it shall
confirm in writing to Lender or any other purchaser of
such subleasehold interest at the foreclosure sale that
Lender or such other purchaser has the rights of Sublessee
under the Agreement and is entitled to enter into a Direct
Lease with the City pursuant to the terms and conditions
of the Agreement. The foregoing agreement of the City
shall apply with equal force if the subleasehold interest
under the Sublease is assigned to Lender in lieu of
foreclosure. The amounts to be paid to the City pursuant
to the Agreement shall be adjusted pursuant to Section 5
of the Agreement upon the earlier of (a) any transfer by
Lender of the subleasehold interest under the Sublease and
the rights of Sublessee under the Agreement, or (b) a date
six months after acquisition by Lender of the subleasehold
interest under the Sublease by foreclosure or in lieu of
foreclosure.
2. Said assignment of the Agreement to Lender
and all rights acquired thereunder shall be subject to
each and all.of the covenants, conditions and restrictions
set forth in the Agreement and to all rights and interest
of the City thereunder, except as herein otherwise
provided.
3. In the event of any conflict between the
provisions of the Agreement and the provisions of any such
assignment to Lender, the provisions of the Agreement
shall control.
4. Lender shall be liable to perform the
obligations of Sublessee under the Agreement only so long
as Lender holds title to the subleasehold interest under
the Sublease.
5. The City agrees that it will not terminate
the Agreement because of any default or breach thereunder
on the part of Sublessee if Lender, within sixty (60) days
after service of written notice on Lender by the City of
its intention to terminate the Agreement for such default
or breach, shall:
(a) Cure such default or breach if the same
can be cured by the payment or expenditure of money
provided to be paid under the terms of the Agreement; or
(b) If such default or breach is not so
curable, cause the Trustee under the Trust Deed securing
Lender's loan to Sublessee to commence and thereafter to
diligently pursue to.completion steps and proceedings for
judicial foreclosure, the exercise of the power of sale
under and pursuant to said Trust Deed in the manner
provided by law, or accept from the Sublessee an
assignment in lieu of foreclosure; and
(c) Keep and perform all of the covenants
and conditions of the Agreement requiring the payment or
expenditure of money by Sublessee until such time as said
subleasehold shall be sold upon foreclosure pursuant to
said Trust Deed, be released or reconveyed thereunder,
sold upon judicial foreclosure or transferred by
assignment in lieu of foreclosure; provided, however, if
Lender.shall fail or refuse to comply with any and all of
the conditions of this paragraph, then and thereupon the
City shall be released from the covenant of forebearance
herein contained.
6. The prior written consent of the City shall
not be required:
(a) To a further assignment by Lender of
its rights under the Agreement in
connection with a transfer of the
subleasehold interest under the
Sublease at foreclosure sold under
Lender's Trust Deed, under judicial
foreclosure'or.by an assignment in lieu
of foreclosure, or
(b) To any subsequent assignment by Lender
if Lender is the purchaser at such
foreclosure sale;
provided that in either such event Lender forthwith gives
notice to the City in writing of any such assignment
setting forth the name and address of the assignee, the
effective date of such assignment and the express
agreement of the assignee assuming and agreeing to perform
all of the obligations of the Agreement together with a
copy of the document by which such assignment was made.
Any assignee under the above shall be liable to
perform the obligations of Sublessee under the Agreement
only so long as such assignee holds title to the
subleasehold interest under the Sublease. Any subsequent
assignment of the Agreement shall be made subject to the
conditions relating thereto as set forth in the Agreement.
7. The City hereby represents and warrants to
Lender that there exists no default under the Agreement or
the Master Lease by any party thereto. Without limiting
the generality of the foregoing sentence, there is no
defense or offset to the enforcement of any of the rights
of Sublessee under the Agreement and Sublessee is not in
default of any of Sublessee's monetary obligations
thereunder.
8. All notices and other communications
required or permitted under this Consent to Assignment
shall be in writing, served personally on, or mailed by
certified or registered United States mail to, the party
to be charged with receipt thereof. Notices and other
communications served by mail or communication in a United
States post office in Orange County, California, as
certified or registered mail with postage prepaid and duly
addressed to the party to whom such notice or
communication is to be given, in the case of Lender,
3
at 1700 Adams Avenue, Costa Mesa, California 92626, Attn:
Loan Servicing, or the City of Newport Beach at
3300 Newport Boulevard, Newport Beach, California 92663,
Attn: Mayor, City Manager or City Clerk. Any such party
may change said party's address for purposes of this
Section 8 by giving to the party intended to be bound
hereby, in the manner provided herein, a written notice of
such change.
9. The provisions hereof shall be binding -upon
and inure to the benefit of Lender and its transferee(s).
In this context, the City acknowledges that Lender intends
to assign its interest under the Agreement and the loan to
Sublessee, and the City consents thereto under the terms
hereof.
IN WITNESS WHEREOF, the City has executed this
Consent as of the day and year first above written.
ATTES :
City Clerk
Approved as to form and content.
C ty Attorney
State of California
County of Orange ) ss
CITY OF NEWPORT BEACH
By i
City Manager
C I IED AS TRUE ORRECT COPY
,Z ..
CIVY CLERK OF THE CITY OF NEWPORT BEACH
On this 13th day of January , in the year 1982 before me
Dorothy L. Palen personally appeared Robert L. Wynn known to
me (or proved to me on the oath of ) to be City Manager
of Newport Beach and known to me to be the person who executed
the within instrument on behalf of said public corporation, agency or
political subdivision, and acknowledged to me that such City
executed the same.
My C.7r.717 P. [A ;c Apd 5, 1385
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