HomeMy WebLinkAboutC2011-356 - 10/11/2011 - ApprovedASSIGNMENT AND ASSUMPTION OF GROUND LEASE
STATE OF TEXAS
COUNTY OF NUECES
KNOW ALL BY THESE PRESENTS:
THIS ASSIGNMENT AND ASSUMPTION OF GROUND LEASE (the "Assignment ")
is effective as of the _L[� of 6V,,. , 2011 (the "Effective Date "), by and between
CORPUS CHRISTI DEVELOPMENT 1, L.L.C., a Missouri limited liability company d /b /a Corpus
Christi FXG, L.L.C. ( "Assignor ") and MREIC CORPUS CHRISTI TX, LLC, a Texas limited liability
company ( "Assignee "), with mailing address of Juniper Business Plaza, 3499 Route 9 North, Suite 3 -C,
Freehold, New Jersey 07728, Attn: Mr. Eugene W. Landy, President.
RECITALS
WHEREAS, Assignor, as "Developer ", has entered into a Ground Lease dated October 12, 2010,
with CITY OF CORPUS CHRISTI ( "Master Landlord"), as "Tenant ", covering certain real property
located in Nueces County, Texas, as more particularly described on EXHIBIT A attached hereto and
incorporated herein by reference (the "Property"), a true and correct copy of which is attached hereto as
EXHIBIT B ( "Lease ").
WHEREAS, Assignor desires to assign and transfer to Assignee all of the rights and benefits of
Assignor as "Developer" under the Lease upon the terms set forth below.
WHEREAS, by Assignment and Assumption of Sublease of even date herewith, Assignor has
granted, sold, and conveyed to Assignee all of Assignor's interest as "Landlord" under that certain
Sublease dated October 4, 2010, between Assignor and FedEx Ground Package System, lint. covering the
Property.
WHEREAS, at public hearing on August 23, 2011, the City Council of the CITY OF CORPUS
CHRISTI ( "City Council") consented to this Assignment and Assumption of Lease and authorized the
City Manager to execute the Landlord's Consent and Estoppel Certificate appended hereto.
AGREEMENT
NOW, THEREFORE, for and in consideration of the sum of TEN DOLLARS ($10.00) and
other good and valuable consideration paid by Assignee to Assignor, the receipt and sufficiency of which
are hereby acknowledged, Assignor hereby ASSIGNS, TRANSFERS, SETS OVER, CONVEYS, and
DELIVERS unto Assignee all of Assignor's interest in the Lease.
TO HAVE AND TO HOLD the Assignor's interest in the Lease, together with all and singular
the rights and appurtenances thereto in anywise belonging, unto Assignee, Assignee's successors and
assigns forever; and Assignor does hereby bind Assignor, and Assignor's successors and assigns, to
WARRANT and FOREVER DEFEND, all and singular, the Assignor's interest in the Lease, unto
Assignee, and Assignee's successors and assigns, against every person whomsoever lawfully claiming or
to claim the same or any part thereof.
By execution hereof, Assignee assumes and is obligated to keep, fulfill, observe, perform and
discharge each and every covenant, duty, debt, and obligation of the "Developer" that may accrue and
- - -- `- - --' ' - - I ..-- -, r owing on after the Effective Date under the terms, provisions and conditions
2011 -356
Ord. 029237
101ll /11 -
C.C. Development 1, L.L.C.
I N V
Assignor agrees to indemnify Assignee against and hold Assignee harmless from any and all cost,
liability, loss, damage, or expense, including, without limitation, reasonable attorneys' fees, arising from
or in any way connected with Assignor's performance of or failure to perform any duties or obligations
accruing under the Lease prior to the Effective Date. Assignee agrees to indemnify Assignor against and
hold Assignor harmless from any and all cost, liability, loss, damage, or expense, including, without
limitation, reasonable attorneys' fees, arising from or in any way connected with Assignee's performance
of or failure to perform any duties or obligations accruing under the Lease on or after the Effective Date.
Assignor represents and warrants to Assignee that as of the Effective Date:
(a) Assignor is the current owner and holder of all rights, titles, and interests of the
"Developer" under the Lease, and Assignor's rights, title, and interest in the Lease have not been
assigned, transferred, or mortgaged to any other party;
(b) there are no uncured defaults by Assignor under the Lease nor does any condition
exist that, with the passage of time or the giving of notice or both, would constitute a default of
Assignor under the Lease;
(c) to the best of Assignor's knowledge, there is no uncured default by time or the
giving of notice or both, would constitute a default by Master Landlord under the Lease;
(d) Attached hereto as EXI MIT B is a true, correct and complete copy of the
Lease, including all amendments, addenda, and other modifications thereto;
(c) The Lease contains the entire agreement between Assignor and Master Landlord
and has not been amended, modified, or changed in any respect except as reflected in
EXHIBIT B;
(f) the Lease is in full force and effect;
(g) there are no lease commissions or other fees payable to any real estate broker or
agent in connection with this transaction arising by, through, or under Assignor; and.
(h) Master Landlord agrees to pay to Assignor $25,801.80 upon issuance of the
Certificate of Occupancy, in full satisfaction of Paragraph 6 of the Lease. .
Assignor and Assignee each agree to execute and deliver such other documents and instruments
as may be necessary or appropriate to transfer, assign, convey and deliver the Lease and to otherwise
accomplish the purposes and intent of this Assignment.
Assignee shall promptly record a copy of the fully executed Assignment and Assumption
Agreement in the Official Public Records ofNueces County, Texas.
Assignee may not assign or transfer the Lease without the prior written consent of the City
Council expressed by Ordinance.
This Assignment is binding Upon and inures to the benefit of the parties and their respective legal
representatives, successors, and assigns.
This Assignment may be executed in any number of counterparts, each of which will be deemed
an original, and all of which -- taken together -- will constitute a single instrument. Executed pages from
any counterpart maybe attached to another counterpart to. forma complete document.
Assignment and Assumption RHF 8 -17 -lib (2)1 2
Corpus Christi, Texas
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dates set
forth below, but to be effective as of the Effective Date,
STATE OF A-E t 5.S & 0 e 1 §
COUNTY OF JAcks §
ASSIGNOR
CORPUS CHRISTI DEVELOPMENT 1, L.L.C.,
a Missouri limited liability company
d /b /a Corpus Chr}sti FXG, !
By: P Name: Kevin Kevin R. Jones
Title: Manager
This instrument was acknowledged before me on the 4t* day of Se ..t- �f , 2011, by
Kevin R. Jones the Manager of CORPUS
CHRISTI DEVELOPMENT 1, LLC., a Missouri limited liability company, on behalf of said entity.
A ° .
E NOTARY SEAL
of Missour
38011M CO"Y
. ! MY' C:bmmir " Expi"
o ►° April 42, 2042
oil" "
o ry Public, State of r 5 s p a ry 1
Printed Name: k
My commission expires: , Y — /9-
(Signatures continued on next page)
Assignment and Assumption RHF 8- 17 -11b
Corpus Christi, Texas
ASSIGNEE
MREIC CORPUS CHRISTI( TX, LLC,
a Texas limited liability company
By: Monmouth Real Estate Investment Corporation,
a Maryland corporation,
its Member
STATE OF §
COUNTY OF I nGl? §
This instrument was acknowledged before me on the day of & -, 2011, by
— / ?1 or c(O(h , the �)Po0 t (ufel — of Monmouth keal Estate Investment
Corporation, a M aryland corporation, member, on behalf of MREIC CORPUS CHRISTI TX, LLC, a
Texas limited liability company.
Notary Public, State V' MAJ
Printed Name 1 ,0
My commission expires: ROBINFOFFSEY
NOTARY PUBLICOF NEW JERSEY
MY COMMISSION EXPIRES DEC, 9, 2014
Assignment and Assumption RHF 8- 17 -11b (2)1 4
Corpus Christi, Texas
EXHIBIT A
LEGAL DESCRIPTION
LNV Inc.
ENGINEERS & CONSULTANTS
801 Navigation, Suite 300
Corpus Christi, Texas 78408
Phone: (361) BB"984 Fax: (361) OBB4980
Field note description for an 8.18 acre tract of land out of Block 23, J. C. Russell Farm Blocks, a sub-
division of Nuaces County, Texas, recorded in Volume 3, Page 53, Map Records, Nuaces County, Texas
Map Records, said 8.18 acre tract of land being more particularly described by metes and bounds as
follows:
Beginning at a 518 inch iron rod set in the Northeast right of way line of Pinson Drive, for the most
Westerly and beginning corner of the tract herein described, from whence the intersection of the Northeast
right of way line of said Pinson Drive and the Southwest right of way line of State Highway 44, bears
North 37 07' -37" West, a distance of 743.39 feet;
Thence North 45 1 - 18' -15" East, within said Block 23, 1. C. Russell Farm Blocks, at approximately 380
feet, pass the center of a pipeline runnin East -West, as per survey done by Maverick Engineering, Inc.,
dated September 25, 2006, in all, a distance of 517.77 feet to a 518 inch iron rod set for the Northwest
comer of the tract herein described;
Thence South 89 °- 59' -43" East, a distance of 159.83 feet to a 518 inch iron rod set for a corner of the tract
herein described;
Thence South 44 °- 41' -45" East, at approximately 160 feet pass said pipeline as per Maverick Engineering,
Inc. in all a distance of 393.51 feet to a 518 inch iron rod set for a corner of the tract herein described;
Thence South 18 °- 39' -58" Last, still within said Block 23, 1. C. Russell Farm Blocks, a distance of 163.72
feet to a 518 inch iron rod found in the adopted north right of way line of Business Centre Boulevard, for
the most Easterly comer ofthe tract herein described;
Thence in a Westerly and Southwesterly direction with said adopted North and Northwest right of way line
of said Business Centre Boulevard, and with the arc of a circular curve to the left, whose Central Angle is
43 01' -52 ", whose Radius is 330.00 feet, Chord Hearing N 67 07' -49" E, an Are Distance of 247.84
feet tot a 518 inchAron rod found for the P,T, of said curve and for a comer of the tract herein described;
Thence South 45 36' -53" West, with the adapted Alort$ west right of way line of said Business Centre
Boulevard, a distance of 319.92 feet to a 518 inch iron rod found for the Point of Curve of a circular curve
in the Northeast right of way line of said Pinson Drive and for a comer of the point herein described;
PAGE 1
Assignment and Assumption RI4F 8 -17 -11 b (2 )1
Thence in a Westerly and Northwesterly direction, with the are of said circular curve, whose Central
Angle is 89 %41' -22" whose Radius is 15.00 feet, a Chord Bearing N 89 -26" W, an Are Distance of
23.48 feet to a5/8 inch iron rod found for the Point of Tangency of said curve and for a comer of the tract
herein described;
Thence North 44 ]Vest, with the Northeast right of way line of said Pinson Drive, a distance of
546.32 feet to the Point of Beginning.
Cont aining more or less 8.I8 acres of land.
Basis for Bearings Texas State Plane, Zone 4205, Texas South Zone (NAD -83).
State of Texas
County of Nueces
I, Horacio Oliveira, a Registered Professional Land Surveyor, of LNV Inc, do hereby certify that the
foregoing Field Note Description was prepared from information of record and from a survey made on the
ground under my direction, and that this description conforms to the current Texas Surveyor's Association
Standards and Specifications for a Category 1 -A, Land Title Survey.
This the Z.4'— ay of /g&Le4l 2010.
n6b, Horacio Oliveira
State ofTexas License No. 1415
PAGE
no
EXHIBIT "B"
[Omitted for Recordation]
7
LANDLORD'S CONSENT AND ESTOPPEL CERTIFICATE
THIS LANDLORD'S CONSENT AND ESTOPPEL CERTIFICATE ( "Certificate ") dated
06-bo 6,r
bep tembm-
1( , 2011, is made by the City of Corpus Christi ( "Landlord ") to the above ASSIGNMENT AND
ASSUMPTION OF GROUND LEASE ( "Assignment and Assumption of Ground Lease ") for the benefit
of CORPUS CHRISTI DEVELOPMENT 1, L.L.C., a Missouri limited liability company d /b /a Corpus
Christi FXG, L.L.C., ( "Assignor "); and MREIC CORPUS CHRISTI TX, LLC, a Texas limited liability
company ( "Assignee "), with mailing address of Juniper Business Plaza, 3499 Route 9 North, Suite 3 -C,
Freehold, New Jersey 07728.
RECITALS
A. Landlord has leased the Real Property to Assignor pursuant to a ground lease (the "Lease ") dated
October 12, 2010, a copy of which is attached to the above Assignment and Assumption of
Ground Lease The following information is a summary of the basic terms and conditions of the
Lease:
a. The Lease is for abase term of thirty (30) years commencing on the sixty -first (61st) day
following final approval by the Landlord's City Council. The Lease commenced
December 12, 2010, and shall expire December 11, 2040.
b. Rent is abated for the period beginning on the commencement date until the date of
beneficial occupancy as determined by the issuance of a certificate of occupancy by the
Landlord ( "Certificate of Occupancy ") or September 1, 2011, whichever is earlier.
c. Rent is due and payable on the first day of each calendar month of the Lease Term. Rent
will be assessed as further defined in Section 7 of the lease, for the gross square footage
of the Premises and paid on an annual basis to the Airport at the address show in Section
30 of the lease.
d. The Lease covers the real property described in the above Assignment and Assumption of
Ground Lease.
e. The Real Property or its address is commonly known as 246 Glasson Drive, Corpus
Christi, Texas 78406.
B. Unless otherwise defined below, the capitalized terms herein shall have the meanings as set forth
in the Assignment and Assumption of Ground Lease.
AGREEMENT
To induce Assignee to acquire Assignor's leasehold interest and for other valuable consideration, with
knowledge that Assignee is relying thereon, Landlord hereby agrees with Assignee as follows:
1. CONSENT. Landlord acknowledges and agrees that it has fully consented to the assignment and
transfer of Assignor's interest in the Lease to Assignee and to the assumption by Assignee of all
obligations under the Lease. Additionally, Landlord consents to the lien of Sun National Bank
and its successors and assigns attaching to Assignor's interest in the Lease. This consent will not
be construed as a waiver of any rights Lessor may have against Assignor by reason of the past
performance of Assignor. No provision of this consent alters or modifies any of the terms and
conditions of the Lease, including the requirement that the written consent of Lessor be obtained
with respect to any future assignment of the Lease.
2. ESTOPPEL. Landlord represents and warrants to Assignee that:
2.1. Lease in Effect - A true and correct copy of the Lease is attached to Assignment and
Assumption of Ground Lease. The Lease (i) has been duly executed and accepted by
Landlord and Assignor, (ii) is in frill force and effect, and (iii) has not been modified or
changed, either in writing or orally.
2.2. Waiver of Cancellation Right: Landlord hereby waives any and all rights to cancel the Lease
due to the failure of Assignor and FedEx Ground Package System, Inc. ( "Sublessee ") to
execute a build to suit sublease on or before October 1, 2010, as required by Paragraph 4 of
the Lease. Landlord acknowledges and agrees that Assignor executed such sublease with
Sublessee on October 4, 2010, and that such sublease is in full force and effect and is
permitted under the terms of the Lease.
2.3. Workers' Compensation Insurance Landlord acknowledges and agrees that the requirement
for the "Lessee" under the Lease to carry workers' compensation and employer's liability
insurance does not apply to any such "Lessee" that does not have employees. However,
worker's compensation insurance is required once Lessee hires paid employees.
2.4. No Default As of the date of this Certificate and to Landlord's best knowledge and belief:
(i) all conditions and obligations to be performed by either Landlord or Assignor under the
Lease to the date hereof have been satisfied; (ii) there exists no breach, default, or event or
condition which the giving of notice or the passage of time, or both, would constitute such a
breach or default tinder the Lease: and (iii) there are no existing claims, defenses or offsets
against obligations of either Landlord or Assignor under the Lease, including any against
rents due or to become due under the terms of the Lease. Further, Landlord agrees to pay to
Assignor $25,801.80 upon issuance of the Certificate of Occupancy, in full satisfaction of
Paragraph 6 of the Lease.
2.5. Entire Agreement. The Lease constitutes the entire agreement between Landlord and
Assignor with respect to the Lease of the Real Property,
2.6. No Prepaid Rent No deposits or prepayments of rent have been made in connection with the
Lease except as may be described above in the summary description of the Lease.
3. MISCELLANEOUS PROVISIONS This Certificate shall extend to and bind the respective heirs,
personal representatives, successors and assigns of the parties to this Certificate. This Certificate shall
be governed by and construed in accordance with the laws of the State of Texas. If Landlord is other
than an individual, any agent or other person executing this Certificate on behalf of Landlord
represents and warrants to Assignee that he or she has full power and authority to execute this
Certificate on Landlord's behalf. Assignee shall not be deemed to have waived any rights under this
Certificate unless such waiver is in writing and signed by Assignee. No delay or omission on the part
of Assignee in exercising any right shall operate as'a waiver of such right or any other right. A waiver
by Assignee of a provision of this Certificate shall not constitute a waiver of or prejudice Assignee's
right otherwise to demand strict compliance with that provision or any other provision. Commerce
9
Bank N.A. has provided Assignor and Landlord with written consent of this Assignment and
Assumption Agreement, and a copy of consent by Commerce Bank N.A. is attached.
THIS CERTIFICATE IS DATED September L, 2011
�,.12..ii
App W t0 i0rM. f--~
Lisa Agull r
Assist&nt Attorney
For CWY Attorney
LANDLORD
CITY OF CORPUS CHRISTI
B
MA
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f
STATE OF TEXAS §
COUNTY OF NUECES §
This instrument was acknowledgeq before me on the JZ� of , 2011, by
the on behalf of the City of Corpus Christi.
f�L E -'-NDA L. GMSZ Notary Public State of: ex
spar auy�F,
zpf ` Notary Public Printed Name:
". STATE OF TEXAS
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10
CONSTRUCTION LENDER'S CONSENT TO ASSIGNMENT
This Consent ( "Consent ") is made August _ 201.1, by Commerce Bank, a Missouri bank and trust company,
formerly known as Commerce Bank, N.A. of 1000 Walnut, 18th Floor, Kansas City, Missouri 64106 (Lender) for
the benefit of the CITY OF CORPUS CHRISTI ("Ground Lessor").
RECITALS
A. Lender is the beneficiary of a Deed of Trust ("Deed of Trust ' ) dated December 13, 2010 filed under
Instrument File Number 2010045615 and refiled as Number 2011002256, Official Records of Nueces
County, TX executed by Corpus Christi Developments 1, L.L.C. ("Ground Lessee') securing a note of
even date in the amount of $3,400,000.
B. The Deed of Trust encumbers the property particularly described on EXHIBIT A attached hereto and
incorporated herein by reference (the "Real Property").
C. Ground Lessee, as "Developer ", has entered into a Ground Lease dated October 12, 2010, with Ground
Lessor covering the Real Property ("Ground Lease").
D. Ground Lessee is assigning its interest in the Ground Lease to MREIC CORPUS CHRISTI TX, LLC, a
Texas limited liability company (Assignee'), with mailing address of Juniper Business Plaza, 3499
Route 9 North, Suite 3-C, Freehold, New Jersey 07728.
CONSENT
Lender hereby consents to the assignment of the Ground Lease by Ground Lessee to Assignee, provided however,
that concurrent with the assignment, Lender is paid in full.
IN WITNESS WHEREOF, the Lender has caused this Consent to be executed as of the day and year first above
written.
Commerce Bank, a Missouri bank and trust company, formerly
known as Commerce Bank, N.A. ,
By:'
Ab'fuA , Mikelson, Senior Vice -P4ident
STATE OF MISSOURI
COUNTY OF JACKSON
This instrument was acknowledged before me on the day of August, 2011, by John S. Mikelson, the Senior
Vice - President, on behalf of Commerce Bank, a Missouri bank and trust company, formerly known as Commerce
Bank, N.A.
DONNA K. SAMS
Notary Public -Notary Seal
STATe OF MISSOURI
Jackson County
My Commission expires Dec. 1, 2012
Commission #'08692664
Notary Public, State of
Printed Name rug
My commission expires: