HomeMy WebLinkAboutAssignment & Assumption of Site Leaser
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ATTN: Christian A. Farmakis, Esquire
Babst, Calland, Clements and Zomnir, P.C.
Two Gateway Center, 6Floor
Pittsburgh, PA 15222
(412) 394-5400
118�3739
cIRCUfT COURT
JOSEPH E. SMITH, CLERK OF: THE
SAINT LUCIE COUNT` 04:32 PM oT a ASGMIT
SLE # 3461258 04126/2010 at 2752 Do YP
OR BOOK M PAGE 2734 "
�icORD1140: $163.00
ASSIGNMENT AND ASSUMPTION OF
SITE LEASE RECEIVE®
APR 99 2021
for the Tower Site located at: 8T. Lucie county, Permitting
Tower Site: Fox
Street Address: 5041 St. Lucie Boulevard
City: Fort Pierce
County: St. Lucie
State: Florida -
between
PJ DEVELOPMENT, LLC, as "Assignor"
and
TOWER DEVELOPMENT CORPORATION, as "Assignee"
Return to: M. Cater
Fidelity National Title
7130 Glen Forest Dr. #300
Richmond, VA 23226
BU Number 5800245
(BO1423951)
ASSIGNMENT AND ASSUMPTION OF
SITE LEASE
(PJ Development — Fox)
THIS ASSIGNMENT AND ASSUMPTION OF SITE LEASE (this "Assignment") is
hereby made and entered into as of the 9`h day of April, 2010 (the "Closing Date"), by and
between PJ DEVELOPMENT, LLC, a Florida limited liability company, with its principal
place of business located at 7341 Westport Place, Unit A, West Palm Beach, Florida 33413
("Assignor"), and TOWER DEVELOPMENT CORPORATION, a Maryland corporation,
having a mailing address of c/o Crown Castle USA Inc., 2000 Corporate Drive, Canonsburg,
Pennsylvania 15317 ("Assignee"), by and through its attorney -in -fact, CROWN CASTLE USA
INC., a Pennsylvania corporation, with its principal place of business located at 2000 Corporate
Drive, Canonsburg, Pennsylvania 15317 ("Crown").
RECITALS
A. Assignor and Charles H. Fox, an individual, David A. Hoines and Bonnie K.
Hoines, husband and wife, and David E. Chapper, an individual, (collectively, the "Landlord"),
entered into that certain Lease Agreement for Property Located in the State of Florida dated May
14, 2008, as amended by that certain First Amendment to Site Lease Agreement dated July 10,
2008, as further amended by that certain Second Amendment to Site Lease Agreement dated
February 18, 2009 and recorded in the real estate records of St. Lucie County, Florida on May 12,
2009 at Deed Book 3088, Page 1631, and as further amended by that certain Agreement
Regarding Lease dated April 7, 2010 and recorded in the real property records of St. Lucie
County, Florida (collectively, the "Site Lease Agreement") pursuant to which Assignor leased
from Landlord certain real property owned by Landlord located in St. Lucie County, Florida and
by which Landlord granted Assignor certain access and utility easements (the "Leased
Premises"). The Leased Premises are hereinafter further described on Exhibit A attached hereto.
B. Assignor, David A. Hoines and Charles H. Fox recorded a Memorandum of
Agreement with the Clerk of St. Lucie County, Florida on May 20, 2008 at Deed Book 2975,
Page 759 (the "Initial Memorandum of Lease").
C. To confirm execution by all fee owners of the Premises, Assignor and Landlord
executed a second Memorandum of Agreement evidencing the existence of the Site Lease
Agreement which was recorded in the real estate records of St. Lucie County, Florida on August
25, 2008 at Deed Book 3007, Page 2695 (the "Second Memorandum of Lease") (the Site Lease
Agreement, the Initial Memorandum of Lease and the Second Memorandum of Lease
collectively referred to herein as the "Site Lease").
D. On or about November 20, 2007, Assignor and Crown entered into a Master Asset
Purchase Agreement (the "Asset Purchase Agreement") and a Tower Build Affiliate Agreement
(the "Affiliate Agreement") pursuant to which, among other matters, Assignor agreed to assign
its interest in the Site Lease to Crown or its assignee, as more specifically set forth herein and in
BU Number 5800245
{D0142)95.11
i
the Asset Purchase Agreement. This Assignment is being delivered pursuant to the Asset
Purchase Agreement and the Affiliate Agreement.
E. Pursuant to that certain Amended and Restated Tower Facility Development and
Acquisition Agreement effective as of May 29, 2009 (the "Development and Acquisition
Agreement"), and other transactional documents relating thereto,. by and between Crown and
Assignee, among others, Crown has previously assigned its rights to acquire the Site Lease to
Assignee.
F. Pursuant to that certain Limited Power of Attorney dated August 18, 2009 (the
"Limited Power of Attorney"), a copy of which is attached hereto as Exhibit B, by and between
Crown and Assignee, Crown is authorized to review, negotiate, and execute this Assignment on
Assignee's behalf.
G. Assignor desires to assign the Site Lease to Assignee, and Assignee desires to
assume certain rights and obligations under the Site Lease.
NOW, THEREFORE, in consideration of the promises and mutual covenants contained
herein and other good and valuable consideration, each to the other in hand paid, and the
premises and covenants hereinafter set forth, Assignor and Assignee agree as follows, intending
to be legally bound hereby:
1. IneWoration of Recitals. The foregoing recitals are true and correct and are
expressly incorporated herein by this reference. Any capitalized terms not defined herein shall
have those meanings as set forth in Exhibit A to the Affiliate Agreement.
2. Assignment of Site Lease. Subject to Section 3 below, Assignor hereby grants,
conveys, sells, assigns, transfers and delivers to Assignee all of its rights, title, interest, duties and
obligations under the Site Lease (free and clear of all Encumbrances, except Permitted
Encumbrances). In addition, Assignor hereby grants, conveys, assigns, transfers and delivers to
Assignee: (a) all of Assignor's rights to easements and/or licenses which authorize ingress and
egress to the Leased Site described in the Site Lease and/or placement of guy wires, anchors and
utilities; and, (b) all other rights, privileges and appurtenances including, without limitation,
Appurtenant Rights owned by Assignor, reversionary or otherwise, and in any way related to the
Site Lease.
3. AssumDtion of Assumed Liabilities. Assignee hereby accepts the assignment of
the Site Lease as herein set forth, and assumes, and otherwise agrees to pay, satisfy and discharge
all Liabilities of Assignor under the Site Lease, but only to the extent that such Liabilities are
expressly identified as Assumed Liabilities in Section 4.1 of the Asset Purchase Agreement.
Notwithstanding the assumption of the Assumed Liabilities with respect to the Site Lease as set
forth above, nothing herein shall be deemed or construed to relieve Assignor, or to be. an
assumption by Assignee, of any Retained Liability or of any Liability arising from any event,
condition, occurrence or other matter which is the subject of a Default by Assignor of a
representation, warranty or covenant contained' in the Asset Purchase Agreement, irrespective of
BU Number 5800245
(B0142395.1)
whether such Liability arises or matures on, before or after the Closing Date. It is expressly
agreed by the parties that Assignee assumes no obligation or Liability with regard to, and
Assignor shall indemnify and hold Assignee harmless from any Liabilities resulting from, the
failure to comply with, or default under, Part (A)(9) of that certain Order Granting Approval for a
Minor Site Plan for the Project known as ",SL 2617 for Telecommunication Tower," dated
September.11, 2009 and recorded in the real property records of St. Lucie County, Florida on
September 28, 2009 in Deed Book 3 13 1, Page 2447.
4. Reliance on the Limited Power of Attorney. Crown is authorized to review,
negotiate, and execute this Assigmnent pursuant to the rights granted it by Assignee pursuant to
the Development and Acquisition Agreement and the Limited`Power of Attorney. Assignor is
entitled to accept and rely on the Limited Power of Attorney as proof that Crown is duly
authorized to review, negotiate, and execute this Assignment for and on behalf of Assignee. As
of the effective date of this Assignment, the Limited Power of Attorney is in full effect and has
not been revoked by Assignee.
5. Execution and Counterparts. To facilitate execution, the parties hereto agree that
this Assignment may be executed and telecopied or emailed to the other party and that the
executed telecopy or emailed document shall be binding and enforceable as an original; provided,
however, that at least one original signature of Assignor is provided to Assignee for recordation
purposes. This Assignment may be executed in as many counterparts as may be required and it
shall not be necessary that the signature of, or on behalf of, each party, or that the signatures of
all persons required to bind any party, appear on each counterpart; it shall be sufficient that the
signature of, or on behalf of, each party, or that the signatures of the persons required to bind any
party, appear on one or more of such counterparts.
6. Further Assurances; Recordation. The parties hereby covenant and agree to
execute and have executed all such further assignments, instruments of transfer and agreements
and to take (or cause to be taken) all such further actions as may reasonably be necessary or
appropriate in order to accomplish more fully and effectively the assignmenti and assumption of
the Site Lease contemplated hereby. Assignor and Assignee acknowledge that this Assignment
will be -recorded, and each party shall cooperate with each other and take all commercially
reasonable steps to ensure that it is properly recorded.
[The remainder of this page is left blank intentionally.]
BU Number 5800245
(80142395.11
IN WITNESS WHEREOF, the parties have executed this Assignment as of the Closing
Date.
ATTEST:
ASSIGNOR:
PJ DEVELOPMENT, LLC
Print Name: �� i c-tR�f iG� Vi hmzan Name: Paul Scott
Title: Manaping Partner
An me:
NOTARIAL AFFIDAVIT
STATE OF FLORIDA
j,SS:
COUNTY OF_ �G_ IG
I,Wfj�l1'tSn�n , a Notary Public within and for the State of Florida, duly
commissioned and acting, do hereby certify that on this 9. day of April, 2010, personally appeared
before me Paul Scott of PJ Development, LLC, a Florida limited liability company, to me personally
known to be the person who signed the foregoing Assignment and Assumption of Site Lease, and who,
being by me duly sworn and being informed of the contents of said instrument, stated and acknowledged
under oath that he is the managing partner of the said entity and, as such, is a duly certified individual
who may enter into agreements on behalf of that entity. Moreover, he has acknowledged.that the entity
has executed the same as its voluntary act and deed and was voluntarily executed by himself, on behalf of
said entity, for the uses, purposes and consideration therein mentioned and set forth.
WITNESS m
4otja�TyPu y hand and seal as such Notary Public the day and year above written..h My Commission Expires:
Nolary Public State of Florida
°I Stacey Erickson
my Commisslon=80899
rfl°� ExRires0812112090
[SIGNATURE PAGE TO AS DEVELOPMENT AN TA SU PTION OF SITE LEASE]
[PJE
BU Number 5800245
(130142395.1)
ATTEST: ASSIGNEE:
TOWER DEVELOPMENT CORPORATION
a Maryland corporation
By: Crown Castle USA Inc.,
a Pennsylvania corporation, lawful agent and
attorney -in -fact for Tower Development
Corporation
B c
Y•
Print Name. Michelle Salisb Name: David J. czos
ate-- Title: Vice Pre 'dent — Natio to Development
Print
NOTARIAL AFFIDAVIT
COMMONWEALTH OF PENNSYLVANIA
. SS:
COUNTY OF WASHINGTON
I, Sheila Osborne, a Notary Public within and for the Commonwealth of Pennsylvania, duly
commissioned and acting, do hereby certify that on this 0 day of April, 2010, personally appeared
before me David J. Tanezos, of Crown Castle USA Inc., the attorney -in -fact for Tower Development
Corporation, a Maryland corporation, to me personally known to be the person who signed the foregoing
Assignment and Assumption of Site Lease, and who, being by me duly sworn and being informed of the
contents of said instrument, stated and acknowledged under oath that he is the Vice President — National
Site Development of said entity, and, as such, is a duly certified individual who may enter into
agreements on behalf of that entity. Moreover, he has acknowledged that the entity has executed the same
as its voluntary act and deed and was voluntarily executed by himself, on behalf of said entity, for the
uses, purposes and consideration therein mentioned and set forth.
WITNESS my hand and seal as such Notary Public the day and year above written.
If�A
Notary Public My Commission Expires: 11/13/10
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Shells Oabame, Notary Public
Canonsburg 8=, Waftgton County
My Commiesbn Bo me N6v 13, 2010
Member, Pennsylvania AssoalaUon of Notsdlee
[SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION OF SITE LEASE)
W DEVELOPMENT —FOX)
BU Number 580245
(so142395.1)
EXHIBIT A
Leased Premises
PARENT PARCEL
(PARCEL 2 IN OFFICIAL RECORD BOOK 2301, PAGE 2012)
THE N.W. 1/4 OF SECTION 31, TOWNSHIP 34 SOUTH, RANGE 40 EAST, ST. LUCIE COUNTY, FLORIDA,
LESS THE EAST 342.25 FEET THEREOF;
LESS AND EXCEPT THE FOLLOWING DESCRIBED PARCEL: PARCEL ONE, THE SOUTH 139.33 FEET
OF THE NORTH 237.33 FEET OF THE WEST 312.25 FEET OF THE EAST 684.50 FEET OF THEN.E.
1/4FLORIDA.F
THE N.W. 1/4 OF SECTION 31, TOWNSHIP 34 SOUTH, RANGE 40 EAST, ST. LUCIE COUNTY,
ALSO LESS AND EXCEPT SUCH OF THE FOLLOWING DESCRIBED PARCEL AS LIES WITHIN PARCEL
2: COMMENCE AT THE NORTH QUARTER (N 1/4) CORNER OF SECTION 31, TOWNSHIP 34 SOUTH,
RANGE 40 EAST; THENCE S 00109'12" W A DISTANCE OF 98.00 FEET; THENCE N 8904872" W TO THE
WEST LINE OF THE EAST 684.50 FEET OF THE NORTHEAST 114 OF THE NORTHWEST 1/4 OF SAID
SECTION 31, A DISTANCE OF 684.50 TO THE POINT OF BEGINNING; THENCE S 89148'22" E, A
DISTANCE OF 7.01 FEET; THENCE S 00° 12'28" W, A DISTANCE OF 605.53 FEET; THENCE N 89°47'43" W,
A DISTANCE OF 6.43 FEET; THENCE N 00109'12" E, A DISTANCE OF 605.53 FEET TO THE POINT OF
BEGINNING.
SUBJECT TO AN EASEMENT OVER THE EAST 30 FEET THEREOF.
TOWER PARCEL
(OFFICIAL RECORD BOOK 3088, PAGE 1631)
A PORTION OF SECTION 31, TOWNSHIP 34 SOUTH, RANGE 40 EAST, ST. LUCIE COUNTY, FLORIDA,
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE NORTH QUARTER CORNER OF SAID SECTION 31; THENCE SOUTH 00°09'12"
WEST, ALONG THE EAST LINE OF SAID SECTION 31, A DISTANCE OF 98.00 FEET TO THE SOUTH
RIGHT OF WAY LINE OF ST. LUCIE BOULEVARD; THENCE DEPARTING SAID EAST LINE, NORTH
89°48'22" WEST, ALONG SAID SOUTH RIGHT OF WAY LINE, A DISTANCE OF 342.25 FEET; THENCE
DEPARTING SAID SOUTH RIGHT OF WAY LINE, SOUTH 00°09112" WEST, A DISTANCE OF 766.00 FEET;
THENCE NORTH 89048'22" WEST, A DISTANCE OF 54.96 FEET TO THE POINT OF BEGINNING;
THENCE SOUTH 00011'38" WEST, A DISTANCE OF 60.00 FEET; THENCE NORTH 89°48'22" WEST, A
DISTANCE OF 120.00 FEET; THENCE NORTH 00011'39" EAST, A DISTANCE OF 60.00 FEET; THENCE
SOUTH 89°48'22" EAST, A DISTANCE OF 120.00 FEET TO THE POINT OF BEGINNING.
CONTAINING 0.1653 ACRES OR 7200 SQUARE FEET, MORE OR LESS.
INGRESS, EGRESS AND UTILITY EASEMENT
(OFFICIAL RECORD BOOK 3088, PAGE 1631)
A PORTION OF SECTION 31, TOWNSHIP 34 SOUTH, RANGE 40 EAST, ST, LUCIE COUNTY, FLORIDA.
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE NORTH QUARTER CORNER OF SAID SECTION 31; THENCE SOUTH 00009' 12"
WEST, ALONG THE EAST LINE OF SAID SECTION 31, A DISTANCE OF 98.00 FEET TO THE SOUTH
RIGHT OF WAY LINE OF ST. LUCIE BOULEVARD; THENCE DEPARTING SAID EAST LINE, NORTH
89°48'22" WEST, ALONG SAID SOUTH RIGHT OF WAY LINE, A DISTANCE OF 342.25 FEET; THENCE
DEPARTING SAID SOUTH RIGHT OF WAY LINE, SOUTH 00°09' 12" WEST, A DISTANCE OF 786.00 FEET
TO THE POINT OF BEGINNING; THENCE SOUTH 00°09'12" WEST, A DISTANCE OF 20.00 FEET;
THENCE NORTH 89048'22" WEST, A DISTANCE OF 54.99 FEET; THENCE NORTH 00°11'38" EAST, A
DISTANCE OF 20.00 FEET; THENCE NORTH 89°48'22" EAST, A DISTANCE OF 54.98 FEET TO THE
POINT OF BEGINNING.
CONTAINING 0.0252 ACRES OR 1099 SQUARE FEET, MORE OR LESS.
BU Number 5800245
(BOM395.1)