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HomeMy WebLinkAboutC-519(K) - West Coast Highway, 1221 (Balboa Bay Resort) - Assignment and Assumption of Ground Lease Agreement 2000ASSIGNMENT AND ASSUMPTION OF GROUND LEASE AGREEMENT This Assignment an'd Assumption of Ground Lease Agreement ("Assignment') is made and entered into as of May 2000 ("Effective Date") by and between First American Trust Company, not personally, but solely as Trustee under Trust No. PLH-1187, a California corporation having an office at 421 N. Main Street, Santa Ana, California 92702 ("Trust), BBC Property, Inc., a New York Corporation ("Property's and Balboa Bay Club, Inc., a California corporation ("Assignee') with reference to the following: A. The City of Newport Beach and Assignee previously entered into that certain Lease between the City of Newport Beach and Balboa Bay Club, Inc. dated May 13, 1986 (the "Agreement"). Unless otherwise defined herein, all capitalized terms shall have the same meaning set forth in the Agreement. Trust and Property may hereinafter collectively be referred to as "Assignor". B. Assignee executed the Lease on behalf of Trust with the intention that Trust be the real party in interest to the Agreement. C. Pursuant to Lessee's Estoppel Certificate dated as of May 31, 1989, between Trust, International Bay Clubs, Incorporated, Property, FSA/IBC Credit Co., and Financial Security Insurance of Iowa (the "Estoppel Certificate"), which was ratified and confirmed by Lessee, it was acknowledged that the Lessee's interest in the Agreement vested in Trust and not Balboa Bay Club, Inc. D. Pursuant to the Memorandum of Lease dated as of May 31, 1989 between Trust, the City of Newport Beach, International Bay Clubs, Incorporated and Property (the "Memorandum of Lease'), it was similarly agreed that Lessee's interest in the Agreement was in Trust. E. Assignor has now agreed to assign all its right, title and interest under the Agreement to Assignee. F. In connection with the foregoing and pursuant to this Assignment, Assignor now desires to memorialize the Assignment conveyance to Assignee of all right, title and interest of Assignor under the Agreement and Assignee desires to assume all of Assignor's duties and obligations under and pursuant to the Agreement, as more particularly set forth below. NOW, THEREFORE, in consideration of the foregoing recitals and for valuable consideration the receipts of which are hereby acknowledged, the parties hereby agree as follows: 1. Assienmen t. As of the Effective Date, (a) Assignor hereby assigns, conveys, transfers and sets over to Assignee any and all right, title and interest of Assignor, in and to the Agreement including without limitation, all rights, pursuant to the Agreement, and (b) Assignor hereby covenants, represents and warrants to Assignee that Assignee shall be entitled to the benefit of NB7:470498.3 .0 0 0 and may enforce the provisions of the Agreement as if Assignee were the original party under the Agreement and the named Lessee under the Agreement. 2. Assumption. From and after the Effective Date, Assignee hereby assumes all of the Assignor's duties and obligations as Lessee under and pursuant to the Agreement, including any obligations which have accrued, which may exist from acts or failure to act on or prior to the Effective Date. 3. Representations and Warranties of Assignor. Assignor hereby represents and warrants to Assignee as follows: (a) Assignor has complied with all of its obligations under the Agreement required to be performed as of the date hereof, and no default by the Assignor exists thereunder; (b) the Agreement is unmodified and is in full force and effect; and (c) Assignor has not heretofore transferred its interest in and to the Lease to any other person or entity. 4. References in Memorandum of Lease and Agreement. All references to First American Trust Company as Lessee in the Memorandum of Lease and in the Agreement shall as of the Effective Date hereinafter mean and refer to Assignee. S. Governing Law. This Assignment shall be construed under and enforced in accordance with the laws of the State of California. 6. Further Assurance. The parties hereto each agree to execute and deliver to the other party, upon demand, such further documents, instruments and conveyances, and shall take such further actions, as are necessary or desirable to effectuate this Assignment. 7. Attorney's Fees; Costs. Upon the bringing of any action, suit or arbitration by any party against the others arising out of this Assignment or the subject matter hereof, the party in whose favor final judgment shall be entered shall be entitled to recover from the other parties all costs and expenses of suit including, without limitation, reasonable attorneys' fees and costs. 8. Successors and Assigns. This Assignment shall inure to the benefit of, and be binding upon, the successors, executors, administrators, legal representatives and assigns of the parties hereto. 9. Notice. Assignor hereby agrees to provide Assignee with any and all notices received pursuant to the Agreement, and all parties agree that the following additional parties should receive copies of notices. With a copy to: Balboa Bay Club, Inc. 1221 West Coast Highway Newport Beach, CA 92663 Attn: V.P./C.F.O. With a copy to: Pinto & Dubia, LLP 2 Park Plaza, Suite 300 NB1:470498.3 -2- Irvine, CA 92614-8513 Attention: Saul Pinto, Esq. With a copy to: Palmieri, Tyler, Wiener, Wilhelm & Waldron LLP 2603 Main Street, #1300 Irvine, CA 92614 Attention: George J. Wall, Esq. 10. Counterparts. This Assignment may be executed in any number of counterparts, each of which shall be deemed to be an original and all such counterparts taken together shall constitute one and the same instrument. Counterparts exchanged by facsimile transmission shall be valid as original counterparts. IN WITNESS WHEREOF, Assignor and Assignee have executed this assignment as of the date first set forth above. ASSIGNOR: FIRST AMERICAN TRUST COMPANY, not personally but solely as Trustee under Land Trust Number PLH-1187 By: Attorney in Fact ASSIGNEE: NB1:4704983 BBC PROPERTY, INC., a New York corporation By: `< u.==— Its: PrCsiacni BALBOA BAY CLUB, INC., a California corporation B , 4-4z' Its: Chief eVCCAAHVG eA1CLty 5E CONSENT OF THE CITY OF NEWPORT BEACH The undersigned hereby acknowledges that it consents to the foregoing Assignment and agrees that Assignee shall be entitled to the benefit of and may enforce the provisions of the Agreement. CITY OF NEWPORT EACH, a municipal corporation By: oe Its: G, -r4 M Acd*Z— as to form: Rdbert H. Burnham City Attorney NB1:470498.3