HomeMy WebLinkAboutC-7408-3 - Beacon Bay, 3 - Agreement to Lease 1985AGREEMENT TO LEASE
THIS AGREEMENT TO LEASE, made and entered into on
the 20thda_v of December, 1985, by and between the CITY OF NEWPORT
BEACH, a chartered municipal corporation, hereinafter "City,"
and WILLIAM A. HOWARD and PATSY R. HOWARD, husband and wife, as
community property, as to an undivided one-half interest, and
ROBERT W. HOWARD and CLEVA JO HOWARD, husband and wife, as community
property, as to an undivided one-half interest, as Tenants -in -Common
and, hereinafter "Sublessee."
'D L'f'TTTT Q
A. City holds title to and is the owner of certain
harbor frontage and tidelands, together with certain uplands
abutting thereon known as Beacon Bay and more particularly
described in Exhibit "1" attached hereto and made a part hereof
by this reference.
B. Carroll B. Beek, Barton Beek, Joseph Allan Beek,
Jr., and Seymour Beek jointly hold a Master Lease to said proper-
ty dated January 9, 1950, which Master Lease expires on December
31, 1987.
C. The "Westerly Portion" of the Beacon Bay property
has been divided into individual lots and subleased for
residential purposes.
D. All of said subleases expire on the same date as
the Master Lease, to wit: December 31, 1987.
E. City believes it to be in the best interest and
welfare of City: (1) that the portion of Beacon Bay which is
currently leased for residential purposes remain residential in
character; and (2) to enter into new agreements to lease with
the sublessees under the terms, conditions and for the considera-
tion as hereinafter set forth.
F. It is the judgment of City that the leasing of the
property hereinafter described is consistent with the trust pur-
poses imposed upon such portions of the leased land which may
1
constitute tidelands as authorized by Chapter 74, Statutes of
1978.
G. It is further the judgment of City that in entering
into this Agreement to Lease in the future, City is acting pur-
suant to its proprietary powers.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING
RECITALS AND THE MUTUAL COVENANTS set forth below, City and Sub-
lessee hereby agree as follows:
1. City hereby agrees to lease to Sublessee and Sub-
lessee hereby agrees to lease from City the real property
described in Exhibit "2" attached hereto and by this reference
made a part hereof (hereinafter the "Leased Land") pursuant to a
lease substantially in the form of Lease which is attached hereto
marked Exhibit "C" and by this reference made a part hereof, and
under the terms and conditions as set forth below.
2. In consideration of City's agreement to lease to
Sublessee hereunder, Sublessee agrees to pay to City on the lst
day of each month following the date of this Agreement and on the
lst day of each month thereafter through the lst day of December,
1987, a sum determined by subtracting from the fair market rental
value of $14,875.00 (annualized) on December 20, 1985
(the "Effective Date"), the payments made by Sublessee under a
sublease on the Leased Land to the Master Lessee of Beacon Bay
described in Paragraph A of the Recitals above.
3. The Base Rental under Paragraph 3 of the Lease,
Exhibit "C" attached hereto, shall be the fair market rental
value of the land on the Effective Date subject to adjustment of
the base rental, hereafter "Adjusted Base Rental", as set forth
in paragraphs 4 or 5 hereof.
2
4. Should any Sublessee not execute this Agreement on
or prior to the Effective Date, but execute this Agreement after
Effective Date and prior to December 31, 1987, the rental sum to
be used in paragraph 2 hereof and the Base Rental under Paragraph
3 of the Lease, Exhibit "C" attached hereto, shall be the total
of the fair market rental value of the land as established by the
Appraisal Report prepared by George Hamilton Jones, M.A.I., dated
November 5, 1980, plus an amount equal to the L.A. - Long Beach
Consumer Price Index (C.P.I.) increase, from July 1, 1981 to the
date of execution, or 1% per month increase from July 1, 1981,
whichever is greater, plus an amount equal to the increase in
rental value change due to the reduced lease advantage, as of the
date of execution, as set forth in the effective rental value
change sheet attached hereto as Exhibit "D", said total rental
rate shall be referred to as Adjusted Base Rental. The different
Adjusted Base Rental provided for in this paragraph is imposed
unilaterally by the City out of what is deemed to be fair and
equitable to those Sublessees who choose to enter into this
Agreement on its Effective Date. Said difference in Adjusted
Base Rentals is in no manner to be considered a penalty but
moreover a procedure developed solely by City to provide the
incentive to enter into this Agreement of Lease at the earliest
date possible. Commencing January 1, 1988 City is under no
obligation to enter into this Agreement or a Lease in the form of
Exhibit "C" attached hereto with any sublessee who has not
executed this Agreement and shall be free to deal with respect to
the lease of any unleased portions of Beacon Bay on any terms and
conditions it deems fit, either with third parties or prior
sublessees.
5. Sublessee may sell, assign, exchange or convey his
interest in this Agreement without prior written consent of the
City, provided that upon any such transfer the provisions of
3
Section 4 of the Lease Exhibit "C" attached hereto, shall
determine the amounts to be paid by assignee to City, and further
provided that the assignee execute an acceptance of the
assignment and an agreement to be bound by all the terms of this
Agreement and to make the payments provided for hereunder which
Assignment and acceptance shall be delivered to and accepted by
City. Upon such assignment and acceptance, Sublessee shall be
released of any further obligation and liabilities under this
Agreement to Lease.
6. The parties agree to execute the Lease, Exhibit "C"
hereto, during the month of December, 1987 and concurrently
therewith to execute and record a short form memorandum thereof.
7. Time and each of the terms, covenants and
conditions hereof are expressly made the essence of this
Agreement.
If Sublessee shall fail to comply with any of the
terms, covenants or conditions of this Agreement, including
making the payments provided for herein at the time and in the
amount herein required, and shall fail to remedy such default
within sixty (60) days and thereafter diligently prosecute the
same to completion, or if a Sublessee shall abandon or vacate the
Leased Land, City may, at its option and without further demand,
terminate this Agreement. Upon service by City on Sublessee of
Notice of Termination of this Agreement to Lease, notice being
given in the same manner as provided in paragraph 19 of the Lease
appended hereto as Exhibit "C" this Agreement to Lease shall be
terminated as to Sublessee and City's obligation to enter into
the Lease appended hereto as Exhibit "C" is likewise terminated
and City is under no obligation whatsoever to enter into said
Lease with Sublessee.
In addition to termination of this Agreement to
Lease, City may -recover from Sublessee all damages incurred by
4
City by reason of said breach, including, without limitation, any
payments due and owing from Sublessee to City and any other costs
due and owing from Sublessee to City at the date of termination
of this Agreement to Lease.
Should either City or Sublessee be required to
employ counsel to enforce the terms, conditions and covenants of
this Agreement to Lease, the prevailing party shall recover all
reasonable attorney's fees (and court costs if applicable)
incurred therein whether or not court proceedings were commenced.
8. Sublessee agrees that he will hold and save City,
its officers, agents and employees harmless from any and all
claims or demands of any kind or nature whatsoever arising out
of, or incident to, the use and occupancy of the Leased Land, and
to indemnify City for any cost, liability or expense caused by or
arising out of any injury or death of persons or damage to
property which may occur upon or about the Leased Land or caused
by or arising out of any activities or omission of Sublessee, his
agents, employees, licensees, and/or invitees, including, without
limitation, injury or death of Sublessee, his agents, employees,
licensees and invitees and damage to his property or Sublessee's
property; except for any damage or injury of any kind arising
out of the negligence of City, its agents or employees.
9. Each and every covenant, condition and agreement
hereof, in accordance with the context, shall inure to the
benefit of City and apply to and bind Sublessee, their respective
heirs, legatees, devisees, executors, administrators, successors,
assigns, licensees, permittees, or any person who may come into
possession or occupancy of the Leased Land, or any part thereof
in anv manner whatsoever.
5
IN WITNESS WHEREOF, the parties have caused this Agree-
ment to Lease to be executed on the date first above written.
ATTEST:
City Clerk
APPROVED AS TO FORM:
ity ttorney
CITY OF NEWPORT BEACH
Sublessee
12-20-85
�0
WILLIY A. HOWARD and PATSY/R. HOWARD
husbad and wif as community property,
as t undi ded one-half interest, and
R B RT W. HOWARD and CLEVAO'HOWARD
usband and wife, as community property,
as to an undivided one half interest, as
Tenants -in -Common and, hereinafter
"Sublessee."
M.
�..
ESCROW CLOSING LETTER Escrow No. ins- 11797D
Escrow Department Date 1-30-86
24032 EI Toro oa
Office
Laguna liills, California 92653 Calif.
(714) 855-2626
Mr, Kenneth J, Delino, Executive Assistant #3 Beacon Bay, Newport Beach, Ca.
City of Newport Beach, Office City Manager Escrow closed today, kindly direct all
3300 Newport Boulevard future billings and correspondence to:
Newport Beach, Ca. 92663 Mr, Robert W. Howard
L 4350 Von Karman Ave,, Suite 350
—� Newport Beach, Ca. 9266
In connection with the above numbered escrow we enclose the following documents indicated by cross (X), r alt /
Meow ecknowledye mceipt on duplicate of this letter, if one is enclosed.
❑ Policy of Title Insurance No. issued by F'
❑ Note for , executed by
div y•
❑ Statement of account t 9
❑ Disclosure/Settlement Statement (Statement of Settlement Costs as required by RESPA Seth dV i �o
❑ insurance Policy No. for $ issued by
M Check No. 209197 for.$1,173.44 - Monthly rent for Feb, 1986 -paid by Howard.
" 209198 if $ 871.35 - monthly rent for Jan. 1985 -paid by Seller.
X Copy of Consent to Assignment of Agreement to Lease which was recorded today.
❑ _ ..
Notification re Encumbrances
First instalment real property taxes: delinquent December 10 at 5 P.M.; second instalment: delinquent April 10 at 5 P.M. failure
to receive or secure tax bill does not relieve owner of penalties. Where city taxes are not included in county tax bill, obtain informo-
tion from City Tax Collector. If bill is not received prior to November 15, obtain by writing or appearing in person of Tax Collector's
Off ice.
Any recorded documents to which you are entitled will be forwarded direct from the office of the County Recorder.
Any Insurance in this escrow, not held by first encumbrance holder (if any) and not enclosed herewith, will be
forwarded to you later.
Date
Receipt of the above in a satisfactory condition and in
compliance with my instructions is hereby acknowledged.
Signature
Streit and No.
City Zone
ES -500 51e2
FIRST INTERSTATE BANK OF CALIFORNIA
By
ASSISTANT VICE PRESIDENT
WHEN RECORDED MAIL TO:
Imperial Savings Association
9596 Chesapeake Drive
P. 0. Box 23727
San Diego, CA 92123
ATTN: Loan Service
Space above line for Recorders name only.
CONSENT TO ASSIGNMENT
OF
AGREEMENT TO LEASE
THIS Consent is given this 21st day of January ,
1986, by the City of Newport Beach, a Chartered Municipal Corporation
(hereinafter the
if on the following terms and conditions:
RECITALS
A. The City entered into an Agreement to Lease dated
December 20, 1985, (the "Agreement") with William A. and Patsy
R. Howard and Robert W. and Cleva Jo Howard (hereinafter the
"Sublessee",)cotr g certain real property described as the westerly
45 feet f Lot 3 nd the easterly 10 feet of Lot 2 as shown upon
a Record ey Map recorded in Book 9, pages 42 and 43 of the
Record of Surveys, in the Office of the County Recorder, County
of Orange (hereinafter 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
December 20, 1950, and was recorded on December 29, 1950, in Book
2122, Page 277 of the Official Records of Orange County, California.
C. The Sublease expires on December 31, 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 upon expiration of the Sublease until July 1,
2006. Said direct lease is to be in the form of Exhibit C to the
Agreement (the "Direct Lease").
D. Sublessee has applied to Imperial Savings Association,
a California Corporation ("Lender"), for a Four Hundred Forty -Six
Thousand Two Hundred Fifty Dollar ($446,250) First Trust Deed 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.
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:
I. 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 unde the Sublease and the
rights of Sublessee under the Agreement, or (b) a date of six (6)
months after acquisition by Lender of the subleasehold interest
under the Sublease by foreclosure or Deed or other assignment 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
of Sublessee under the Agreemen
to the subleasehold interest and
liable to perform the obligations
t only so long as Lender holds title
er 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 earlier
(1) judicial foreclosure or (2) the exercise of the power
of sale under and pursuant to the Deed of Trust in the
manner provided by law or (3) accept from the Sublessee
a Deed or other 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; 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 for 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 sale under Lender's
Trust Deed, under judicial foreclosure or by a. Deed or other
assignment in lieu of foreclosure or 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 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.
-2-
Any subsequent assignment, sublease or transfer of the
Agreement shall be made subject to the conditions relating thereto
as set forth in the Agreement. Upon any such subsequent transfer,
Section 4 of the Direct Lease shall determine the amounts to be
paid by the assignee, sublessee or transferee to the City.
1. 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
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 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 shall be deemed given
hereunder seventy-two (72) hours after deposit of such notice or
communication in a United States post office as certified or
registered mail with postage prepaid and duly addressed to the
party to whom such notice or communication is to be given as follows:
"LENDER"
"THE CITY"
Imperial Savings Association City of Newport Beach
9596 Chesapeake Drive 3300 Newport Boulevard
P. 0. Box 23727 Newport Beach, CA 92663
San Diego, CA 92123 ATTN: Mayor; City Manager
ATTN: Loan Service or City. Clerk
Any such party may change said party's address for purposes of
this Section 8 by giving 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 to the 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.
10. This Consent to Assignment of Agreement to Lease shall
not be effective until recorded.
IN WITNESS WHEREOF, the City has executed this Consent
as of the day and year first above written.
ATTEST:
City Clerk
APPR
AS TO FORM AND CONTENT.
r/VEQ
City Attorney
-3-
CITY OF NEWPORT BEACH
Its City Manager
Sublessee:
Lender:
STATE OF CALIFORNIA )
) ss.
County of Orange_ )
On23C, li. f � before me, the undersigned,
a Notary Pu is In and said County and State, personally appeared
�, �- personally
known to me to be the Cit Manager of the Municipal Corporation
that executed the within instrument and acknowledged that such
Municipal Corporation executed the same.
WITNESS my hand and official seal.
/�D
[SEAL]
My Commission Expires:
j,SII �
-4-
Notary Public
a.
..•... OFFICIAL SEAL
r DOROTHY L. PALEN
mom' NOTARY PUBLIC • CALIFORNIA
` PRINCIPAL OFFICE IN
ORANGE COUNTY
°•...o. My CommissW Exp. Apr. 5, 1969
Q
m
Q c
LL E
C U
o
m c
n�
c
1
N
00
CD
N
O
O
C13
I
0
V
°u
•
V
C
0
J
STATE OF CALIFORNIA )
) ss.
County of Orange )
Sublessee:
&jz�' a, — C=�
Lender:
IMPERIAL SAVINGS ASSOCIATION
BY: Frank Martorano - Manager
Residential Lending
On !y�'�o , before me, the undersigned,
a Notary P in al fpr said County and State, personally appeared
(,�/ personally
known to me to be the C y Manager of the Municipal Corporation
that executed the within instrument and acknowledged that such
Municipal Corporation executed the same.
WITNESS my hand and official seal.
[SEAL]
r'Iy Commission Expires:
W
.r
-6-0
.V -q
8
�z
z9
� 3
4
tip
STATE OF CALIFORNIA )
ss.
County of nRAN ,F. )
Notary Public
OFFIc" SEAL
DORQTIAY L. PALE14
NOTARf�eUBUC - CALIFORNIlk
PRMl 01+WE iN
ORANGE CWNW
MV CIliissim E* AV, 5, 1959
(Individual Acknowledgment)
On this 21st day of January , in the year 19 86 , before me, the under-
signed, a Notary Public in and for said County and State, personally appeared
William G. Howard
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name i c subscribed to this instrument and acknowledged that he
executed it.
WITNESS my hand and official seal.
Notary Pubic in and for said County and State.
June Anderson
i.0
OFFICIAL SEAL
JUNE ANDERSON
Notary Public -California
Principal Office In
ovN Orange County
My Comm. Exp. Jan 27, 1987
I
STATE OF CALIFORNIA Iss.
COUNTY OF ORANM I
On JANUAW 214 1986 before me, the undersigned, a Notary Public in and for
said State, personally appeared FRANK M EMIRANO and
, personally known to me (or proved to me on the
basis of satisfactory evidence) tto/be the
✓persons who executed the within instrument as BRANCH
behalf of
TMPF.RTAL SAVINGS ASSOCIATION
the corporation therein named, and acknowledged to me that
such corporation executed the within instrument pursuant to its
by -taws or a resolution of its board of directors.
WITNESS my hary4 and official seal. n
`1
Sisnature
LISA SBEFIJ2,' -
OFFICIAL SEAL
LISA SHEFLIN
N0OTARY PUBLIC • CALIFORNIA
PRINCIPAL OFFICE IN
m
ORANGE COUNTY
My Commission Expires January 24, 1986
(This area for official notarial seal)
WHEN RECORDED MAIL TO:
Imperial Savings Association
9596 Chesapeake Drive
P.O. Box 23727
San Diego, CA 92123
ATTN: Loan Service
Space above line for Recorder's name only.
CONSENT TO ASSIGNMENT
OF
AGREEMENT TO LEASE
THIS CONSENT is given this 20th day of December, 1985, 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
December 20, 1985 (the "Agreement"), with William A. & Patsy R.
Howard and Robert W. & Cleva Jo Howard (hereinafter the "Sub-
lessee")
) covering certain real property described as the north-
westerly 45 feet of Lot 3 and the south-easterly 10 feet of
Lot 2 in Book 9, Pages 42 and 43 of Record of Surveys, in the
Office of the County Recorder., County of Orange (hereinafter
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 December 20,1950 and was recorded on December 29, 1950
in Book 2122, Page 277 of the Official Records of Orange County,
California.
C. The Sublease expires on December 31, 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 upon expiration of the Sublease until
July 1, 2006. Said direct lease is to be in the form of Exhibit C
to the Agreement (the "Direct Lease").
D. Sublessee has applied to Imperial Savings Association,
a California Corporation ("Lender"), for a Four Hundred Forty -Six
Thousand Two Hundred Fifty Dollar ($446,250) First Trust Deed
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.
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 con-
ditions 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 (6) months after acquisition by Lender of the
subleasehold interest under the Sublease by foreclosure or Deed
or other assignment 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 ai:iy such assignment to
Lender, the provisions of the Agreement ;Ball control.
4. Lender shall be liable to pf,rform 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 ter-
minate the Agreement for such default or breach, shall:
(a) Cure such default or
be cured by -the payment or
provided to be paid under
Agreement; or
breach if the same can
expenditure of money
the terms of the
(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 either (1) judicial
foreclosure or (2) the exercise of the power of
sale under and pursuant to the Deed of Trust in
the manner provided by law or (3) accept from the
Sublessee a Deed or other 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; 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 for 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 sale under Lender's
Trust Deed, under judicial foreclosure or by a Deed or other
assignment in lieu of foreclosure or to any subsequent assignment
by Lender if Lender is the purchaser at such foreclosure sale;
2
provided th-" in either such event Lend forthwith gives notice
to the City _n writing of any such assiy.iment 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 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 shall be deemed
given hereunder seventy-two (72) hours after deposit of such
notice or communication in a United States post office as cer-
tified or registered mail with postage prepaid and duly addressed
to the party to whom such notice or communication is to be given
as follows:
"LENDER"
"THE CITY"
Imperial Savings Association City of Newport Beach
9596 Chesapeake Drive 3300 Newport Boulevard
P. 0. Box 23727 Newport Beach, Ca 92663
San Diego, Ca 92123 A'TTN: Mayor, City Manager or
ATTN: Loan Service 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 WITNESS WHEREOF, the City has executed this Consent
as of the day and year first above written.
ATTEST
City Clerk
CITY OF NEWPORT SEACH
_uh
By -----
City Manager
Approved as to formnd content.
City Attorney
3