09/17/2014 Assignment of Lease & Sublease AMY HEAVILIN CPA
CLERK OF CIRCUIT COURT & COMPTROLLER
lit- l. MONROE COINT FLORIDA
DATE: October 03, 2014
TO: Peter Horton,
Director of Airports
ATTN: Judy Layne, Senior Coordinator
Airport Grants and Finance
FROM: Lindsey Ballard, D.C-
At the September 17, 2014, Board of County Commissioner's meeting the Board granted
approval and authorized execution of Item C6 Collateral Assignment of Lease by Marathon Aviation
Associates, LLC, a Florida limited liability company, hereinafter ASSIGNOR and CENTENNIAL
BANK, an Arkansas corporation, hereinafter ASSIGNEE.
Enclosed is a duplicate original executed on behalf of Monroe County,for your handling. Should you
have any questions,please feel free to contact me.
cc: County Attorney
Finance
Filed
500 Whitehead Street Suite 101,PO Box 1980,Key West,FL 33040 Phone:305-295-3130 Fax:305-295-3663
3117 Overseas Highway,Marathon,FL 33050 Phone:305-289-6027 Fax:305-289-6025
88820 Overseas Highway,Plantation Key,FL 33070 Phone:852-7145 Fax:305-852-7146
COLLATERAL ASSIGNMENT OF LEASE AND SUBLEASE
This Collateral Assignment of Lease and Sublease is hereby executed by
MARATHON AVIATION ASSOCIATES, LLC, a Florida limited liability company,
hereinafter ASSIGNOR and CENTENNIAL BANK, an Arkansas corporation,
hereinafter ASSIGNEE.
WHEREAS, pursuant to a Lease from Monroe County, Florida, ASSIGNOR
is the Lessee of a portion of the Marathon Airport located in Marathon, Monroe
County, Florida; and
WHEREAS, the said Lease has been assumed and modified by various
instruments since the original lease was issued on April 10, 1998; and
WHEREAS, pursuant to a Lease and Sublease dated April 21, 2010,
ASSIGNOR leased and subleased to Rich Aviation, Inc., a Florida corporation, a
portion of the property consisting of approximately 11,800 square feet (i.e., a
hangar on the property), said Lease and Sublease attached as Exhibit A hereto;
and
WHEREAS, as security for a loan being extended to ASSIGNOR by
ASSIGNEE, this Collateral Assignment of Lease and Sublease is being executed
and delivered.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00)
and other good and valuable consideration, it is hereby covenanted and agreed:
1. The ASSIGNOR hereby assigns, transfers and sets over unto the
ASSIGNEE, its successors and assigns, all interest of the ASSIGNOR under the
Lease and Sublease of the Premises and under any renewal, extension or
modification of the Lease; provided, however, that so long as the ASSIGNOR
shall not be in default of any of its obligations to the ASSIGNEE under the Loan,
the ASSIGNOR shall continue to enjoy all the rights and privileges of ASSIGNOR
under the Lease and Sublease.
2. In the event of any default by the ASSIGNOR in the payment or
performance of any of its obligations to the ASSIGNEE under the Loan, beyond
the expiration of any applicable grace or cure period, and in addition to any other
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rights the ASSIGNEE may have at law or in equity, the ASSIGNEE shall have the
immediate right to enter upon the Premises and take possession thereof. The
ASSIGNEE shall further have the option, whether or not the ASSIGNEE has
exercised its right to take possession of the Premises, to make this assignment
absolute, and thereby to become ASSIGNOR under the Lease and Sublease.
Upon the exercise by the ASSIGNEE of the option to make this assignment
absolute, the ASSIGNEE may thereafter, at its option, sell, assign or otherwise
dispose of the ASSIGNOR'S interest under the Lease and Sublease, as collateral,
in accordance with the provisions of Article 9 of the Florida Uniform Commercial
Code (the "Code"), and shall, with respect thereto, have all rights and remedies
of a secured party under the Code. Upon the exercise of this option to make this
assignment absolute, the ASSIGNOR shall have no further interest in or claim to
possession of the Premises, and shall have no further interest in the Lease and
Sublease. Neither the taking of possession of the Premises, nor the exercise of
the option to make this assignment absolute shall relieve the ASSIGNOR of any
of its obligations of performance or payment under the terms of the Lease and
Sublease.
3. In addition to the foregoing, the ASSIGNEE may, whether or not it
has exercised its right to take possession of the Premises, or its right to make
this assignment absolute, in its sole and absolute discretion, and without notice
to the ASSIGNOR, make payment of any defaulted obligation to the Lessor. Any
amount so paid by the ASSIGNEE shall constitute a demand obligation from the
ASSIGNOR to the ASSIGNEE. Nothing herein contained shall obligate the
ASSIGNEE to make such payment, nor shall the making of one or more such
payments constitute an agreement on the ASSIGNEE's part to take any further or
similar action.
4. The ASSIGNOR agrees that it will not alter, assign or transfer any
interest in or modify the Lease and Sublease or terminate the terms thereof or
surrender its right of possession to the Premises without the prior written
consent of the ASSIGNEE. The ASSIGNOR will fulfill or perform each and every
condition and covenant of the Lease and Sublease by the ASSIGNOR to be
fulfilled or performed, give prompt notice to the ASSIGNEE of any notice of
default by the ASSIGNOR under the Lease and Sublease received by the
ASSIGNOR, together with a complete copy of any such notice, and, at the sole
cost and expense of the ASSIGNOR, cure such default as required by the Lease
and Sublease. Any subsequent leases or agreements for use and occupancy of
the Premises or any part thereof shall be and are hereby made subject to all the
terms of this Collateral Assignment of Lease and Sublease and the ASSIGNOR
shall notify ASSIGNEE of any such instruments and provide copies to the
ASSIGNEE.
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STATE OF FLORIDA
COUNTY OF MONROE
The foregoing instrument was acknowledged before me this 7 day of August,
2014, by William G. Ehrhorn, Manager of Marathon Aviation Associates, LLC, a Florida
limited liability company who is personally known to me or who has produced
as idescation.
. ---et—et7 0(974—
NOTARY?UBLICSTATEOTELORIDA Notary Public, State of Florid
Thomas D. Wright Mycommission expires:
Commission#EE109052 P
+ 'Expires: JULY06,2015
BONDED THRU ATLANTIC BONDING CO,INC.
CENTENNIAL BANK, an Arkansas
corporation_ a
�� ��� By:_197
424? f
1 Mw•%5/a.le.,.
STATE OF FLORIDA
COUNTY OF MONROE
The foregoing instrument was acknowledged before me this S day of August,
2014, by / la-1S"G-"o.. SY. Vice ��csicieL. A of CENTENNIAL BANK,
an Arkansas corporation, is personally known to me or who has produced
Par.drl.,...-s l•ce-.0 as identification.
NOTARY pUThomas D. Fight Notary Public, State of Florida
,+ ••• Thomas D. Wright
Commission#EE109052 My commission expires:
,„. Expires: DULY 06,2015
BOND®TRW ATLANTIC BONDING CD.INC.
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CONSENT OF LESSOR
Monroe County, the lessor of the lease being assigned hereby consents to
this Collateral Assignment of Lease and Sublease.
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By.
f�, i `;S M yor Sy la Murphy
" -9,1 1\t i`J 1Y HEAVLIN, CLERK
Deputy Clerk
MONROE COUNTY ATTORNEY
APPROVED AS TO FORM
Pedro Mercado
Assistant County Attorney
MO,OE p A� • IORR Y— —
PEDRO !. r PcADO
AS
Date
This Document Prepared By:
Thomas D. Wright, Esq.
Law Offices of Thomas D. Wright, Chartered
9711 Overseas Highway
Marathon, FL 33050
(305) 743-8118
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EXHIBIT "A"
LEASE AND SUBLEASE
This is a Lease and Sublease Agreement("Sublease")dated as of April 21, 2010 between
MARATHON AVIATION ASSOCIATES, LLC, a Florida limited liability company located at
8800 Overseas Highway, Marathon, FL 33050 ("Landlord') and RICH AVIATION, INC, a
Florida corporation located at One Robert Rich Way, Buffalo, NY 14213 ("Tenant"). The
"Effective Date"shall mean the date that this Sublease is fully executed by Landlord and Tenant.
In consideration of the rents to be paid hereunder, the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged,Landlord and Tenant hereby covenant and agree as follows:
1. Demise of Hangar/Landlord Representations/Contingencies.
A. Representations. Landlord does hereby covenant,represent and warrant to Tenant
as follows: (i) Grantair Service, Inc, a Florida corporation ("Grantair") leases from Monroe
County,a political subdivision of the State of Florida("Monroe County")real property described
in attached Exhibit A ("Property") pursuant to a lease agreement entitled Marathon Fixed Base
Operator (FBO) Agreement effective April 10, 1998 between Monroe County and Grantair, as
amended by a Sixth Amendment dated September 28, 2005 (which rescinded all prior
amendments),a Seventh Amendment dated February 21,2007, and an Eighth Amendment dated
April 20, 2010(collectively "Underlying IAnse"), (ii) Monroe County is the sole owner, in fee
simple, of the Property, (iii) the Property is part of the Florida
Monroe County ("Airport"), (iv) pursuant to a Sublease dated Keys Marathon Airport serving
Sublease"), attached as Exhibit B hereto, Grantairrd' 1 has, 2ubl10 (these "UnderlyingLandlord
(as 'Subtenant' thereunder) a (as `consandlgrof subleased to L 40' by
105' portion of the Property consisting of an approximately 240' by
parcel of land, as said parcel is described on Annex 2 to said Underlying Sublease and
depicted on Annex 3 thereto (the foregoing parcel being referred to herein as the "Hangar
Property") and described in attached Exhibit A (second page) and depicted in attached Exhibit
Ala,(v)as described in the Underlying Sublease,the Commencement Date thereof is the date of
the Hangar Closing(as defined below),(vi)Landlord and Grassy Strip, LLC("Grassy Strip")are
parties to an Agreement dated April 21, 2010 (the "Hangar Contract"), with respect to the
existing aircraft hangar on the Hangar Property containing approximately 11,800
(the
"Hangar"), (vii) at a closing to be held pursuant to the Hangar Contract(the "H square Closing"),fee
Grassy Strip will (A) convey to Landlord all of GrassyStrip's right, ( "Hangar and
to
the Hangar, (B) terminate the Hangar Construction and P on4 title Agreementane interest in May 29,
2005, as amended (the includingatite iono Grassydarad t 's
"Grassy Strip Agreement"), a termination of Strip's
profit participation thereunder, and (C) terminate the related Memorandum of Occupancy and
Use dated May 4, 2007 (the "Memorandum of Occupancy"), (viii)Landlord anticipates that the
Hangar Closing shall occur not later than forty five(45)days after the Effective Date hereof, (ix)
the Hangar Contract will not be terminated or modified so as to extend the aforementioned
closing timeframe, unless there is a title or ownership issue with the Hangar, (x)once the Hangar
Closing has occurred, Landlord will control both the Hangar Property and the Hangar, (xi)
Access Rights(as hereinafter defined)are and shall be available to Tenant throughout the Initial
Term (as hereinafter defined), (xii) the Underlying Lease is now in full force and effect, has a
term which expires April 9,2028,and,other than has previously stated in(i)above, has not been
modified or amended,and neither Monroe County nor Grantair is in default thereunder,(xiii)the
Underlying Sublease is in full force and effect for a pre-commencement period of ninety (90)
days, and upon completion of the Hangar Closing,shall automatically continue to be in full force
and effect for an initial term which extends through the same date as the Underlying Lease(April
9, 2028), and the Underlying Sublease has not been modified or amended, and neither Grantair
nor Landlord is in default thereunder, (xiv) a certificate of occupancy evidencing completion of
construction of the Hangar was issued on April 20, 2009 ("Existing CO"), a copy of which was
provided to Tenant, (xv) the Hangar and/or Hangar Property is or shall be encumbered by a
security agreement, note and/or an assignment of rents (any of the foregoing, a "Hangar
Encumbrance")to be given by Landlord to Grassy Ship at the Hangar Closing,(xvi)memoranda
of the Underlying Lease and Underlying Sublease shall be recorded in the public records, (xvii)
Landlord shall not take any action to terminate or to modify (or to cause to be terminated or
modified) the Underlying Lease or the Underlying Sublease after the execution thereof, (xviii)
there are no mortgages encumbering all or any portion of the fee, leasehold or subleasehold
estates of the Hangar Property, but if there are or will be (or if Landlord grants any mortgage in
connection with its acquisition of the Hangar) Landlord shall ensure that the holders of any such
mortgages will consent to this Sublease, and will provide Tenant with a subordination, non-
disturbance and attornment agreements ("Consent and SNDA"), in the form of Exhibit C
attached hereto, (xix)the height of the Hangar, as renovated and modified pursuant hereto,shall
not exceed the applicable regulations or requirements, including those of the Federal Aviation
Administration, (xx) Tenant may have access to the Hangar upon the Effective Date hereof, and
may begin the renovation of the Hangar as described below and (xxi) Tenant shall obtain
Landlord and Monroe County's consent for the Plans (as hereinafter defined), which consent
shall not be unreasonably withheld.
B. Tenant to Renovate Hangar; Tenant's Contingencies. Tenant agrees to renovate
and modify the Hangar, at Tenant's sole and absolute expense, in accordance with (i) plans and
specifications to be obtained by Tenant which are subject to the approval of Landlord, which
approval shall not be unreasonably withheld, conditioned or delayed so long as the plans and
specifications are customary for an aircraft hangar, including the raising of the Hangar to
accommodate Tenant's aircraft, consistent with Tenant's proposed use of the Hangar
(collectively "Plans") and (ii) all applicable laws, statutes, codes, ordinances, orders, rules and
regulations concerning the modification of the Hangar(collectively"Laws"). Tenant shall apply
for and obtain a building permit,and all other requisite permits and approvals as may be required
by applicable Laws, and shall begin renovation and modification of the Hangar promptly
following the Commencement Date (as hereinafter defined) and the satisfaction or waiver by
Tenant of the Contingencies (as hereinafter defined). Completion, renovation and modification
of the Hangar shall be evidenced by issuance of the New Certificate of Occupancy (as
hereinafter defined). Tenant's obligations hereunder are contingent upon the satisfaction or
waiver by Tenant in writing of the following contingencies (collectively "Contingencies"): (i)
Tenant shall have received from Landlord written evidence of the successful completion of the
Hangar Closing, including copies of the following executed documents: (A) a bill of sale or
other reasonable documentation, evidencing Landlord's ownership of title to the Hangar and its
acquisition of the Hangar from Grassy Strip,(B)termination of the Grassy Strip Agreement,and
(C) temtination of the Memorandum of Occupancy, (ii) Tenant shall have received written
approval of the Plans from Landlord, (iii) Tenant shall have received the signed Consent and
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SNDA from any mortgage holders(if any),(iv)Tenant shall have received from Landlord a copy
of the Existing CO (Tenant acknowledges receipt of the same), (v) Tenant shall have received
from Landlord the executed Grantair Estoppel Certificate (as hereinafter defined), and (vi) the
memorandum of the Underlying Sublease,shall be(Idly executed. Landlord shall cooperate with
Tenant in connection with Tenant's applications for necessary permits,such as a building permit,
including execution of forms and applications if necessary.
C. Demise of Premises: Access Rights. Landlord hereby leases, subleases and sub-
subleases the Hangar(and only the land directly upon which the Hangar is located) to Tenant in
accordance with the terms and provisions hereof, together with the right of pedestrian and
vehicular access to the Hangar and the Airport's terminal from Overseas Highway/U.S. Highway
No. I and together with the right of aircraft access to the Airport and the Airport's terminal, fuel
depots, driveways, aprons, access roads, taxiways and runways (collectively "Access Rights")
subject to any and all restrictions provided in the Underlying I.P."ae and Underlying Sublease
regarding the same.
D. Termination Rights (Not Related to Hangar Closing). Tenant shall provide
Landlord with a complete set of the Plans following the Effective Date of this Sublease. Subject
to the proviso at the end of this Section 1.D, Tenant may terminate this Sublease on written
notice to Landlord if(i)for any reason the Airport is not being operated for a period of three(3)
months, (ii) Underlying Lease and/or the Underlying Sublease expire or are terminated, (iii)
Tenant shall not have received (a) Landlord's and Monroe Comity's written approval of the
Plans, (b)the necessary permits allowing renovation of the Hangar and(c)the new certificate of
occupancy evidencing completion of renovation and modification of the Hangar in accordance
with the terms hereof provided Tenant is in compliance with the terms of the Plans ("New
Certificate of Occupancy"), (iv) the Contingencies have not been satisfied or waived by Tenant
(in writing) or (v) Landlord breaches this Sublease; provided, however, that before terminating
this Sublease pursuant to subsections (ii), (iii), (iv) or (v) of this Section I.D, Tenant shall
provide Landlord with written notice specifying with reasonable clarity the basis for termination,
and allowing Landlord 90 days from the date of such written notice within which to remedy or
cure the deficiency which forms the basis upon which Tenant may terminate this Sublease,and if
Landlord fails to cure such deficiency within such 90-day period, Tenant may terminate this
Sublease on written notice to Landlord.
E. Termination Rights (Hangar Closing). At any time after expiration of the ninety
(90) day Pre-Commencement Period, either. Landlord or Tenant may terminate this Sublease on
written notice to the other party (a "Termination Notice") if Landlord has not accomplished the
following prior to the date that the Termination Notice is given: (I) successfully completed the
Hangar Closing, and (ii) given written notice thereof to Tenant(a"Notice of Closing"), together
with copies of the following executed documents: (A) a bill of sale or other reasonable
documentation,evidencing Landlord's ownership of title to the Hangar and its acquisition of the
Hangar from Grassy Strip, (B)termination of the Grassy Strip Agreement, (C)termination of the
Memorandum of Occupancy, and (D) the executed Underlying Sublease. Landlord shall use its
best efforts to complete the Hangar Closing no later than the closing date set forth in the Hangar
Contract.
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2. Tenant's Right to Withhold Rent Payments. In the event that Landlord has already
purchased the Hangar,but Landlord has not provided all of the aforementioned items set forth in
Section LE hereof then Base Rent and all other sums due hereunder shall cease being payable
until such time as all the items are provided.
3. Tenn.
The term of this Sublease (the "Term") shall consist of: (a)a pre-commencement period
(the "Pre-Commencement Period") commencing upon the Effective Date, and expiring on the
Commencement Date (or sooner, if this Sublease is earlier terminated in accordance with its
terms); (b) an initial period (the"Initial Period") which shall commence on the Commencement
Date,and shall expire on April 9,2028;and(c) such renewal periods as may be mutually agreed-
upon in writing between Landlord and Tenant. The teen"Commencement Date",as used herein,
shall mean the date when Landlord gives Tenant a valid Notice of Closing (as defined in T1.E
above), together with all documents required to be delivered together therewith, including the
following: (A) a bill of sale or other reasonable documentation, evidencing Landlord's
acquisition of title to the Hangar from Grassy Strip, (B) termination of the Grassy Strip
Agreement, (C) termination of the Memorandum of Occupancy, and (D) the executed
Underlying Sublease (which has been furnished to Tenant). Landlord and Tenant shall confirm
at the appropriate time when the Commencement Date has begun. Tenant shall have access to
the Hangar prior to the Commencement Date in order to be able to prepare the Plans and begin
renovation of the Hangar.
4. Rent.
A. During the Initial Period, Tenant shall pay Landlord annual base rent in the
amount of $144,000 ($12,000/month) ("Base Rent"). Unless this Sublease is terminated in
accordance with the provisions hereof,Base Rem shall increase each year by an amount equal to
3%of the Base Rent for the previous year. Tenant's obligation to pay Base Rent shall begin on
the first day of the month next following the Commencement Date.
B. Tenant shall pay Landlord annual Base Rent in equal monthly installments on the
first day of each month during the Initial Period. In the event Landlord has not received the MI
amount of any payment of Base Rent within five(5)days from the date that said payment is due,
Tenant shall pay a late charge to Landlord in the amount equal to 10%of said payment The late
charge shall be due and payable immediately but shall be paid only once on each late payment.
Until further written notice is received by Tenant, all payments (including Base Rent) shall be
sent to Landlord at the address set forth in the heading of this Sublease.
---- In the event Monroe County becomes the Tenant's Landlord, the following Base Rent
shall apply if agreed upon by Tenant and Monroe County: Base Rent may be received after the
first 12 months following Monroe County being Tenant's Landlord, and annually thereafter, in
accordance with the percentage change in the Consumer Price Index for all urban consumers
(CPI-U)for the most recent 12 months available.
C. In addition to the annual Base Rent paid in equal monthly installments, Tenant
shall pay Landlord the monthly pro-rata portion of the cost of the insurance required under
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Section 13.A. of this Lease unless Tenant obtains and pays for such insurance directly with the
insurers. If Landlord must procure the insurance set forth in Section 13.A. hereof,then Tenant
shall reimburse Landlord via monthly pro-rata insurance payments, which shall be remitted
along with the monthly Base Rent payments, provided that Landlord furnishes Tenant with
written evidence of the cost of such insurance.
5. Management Fee. Tenant shall pay to Landlord a monthly management fee in the
amount of$1,000.00, which fee will be adjusted at yearly intervals as of January I"of each year
by a number equal to the annual increase in the United States Department of Labor Consumer
Price Index for the geographical area nearest that of the Hangar.
6. Taxes. Landlord shall pay when due all real property taxes and assessments (and
payments in lieu thereof) relating to the Hangar Property. Landlord shall promptly provide
Tenant with copies of receipts for all such taxes and assessments (and payments in lieu thereof)
paid by Landlord. Tenant shall pay any sales tax imposed on Base Rent or otherwise required
under Florida law.
7. Use of Hangar. Tenant may use and occupy the Hangar solely for the purposes of storing,
maintaining,repairing,cleaning and operating aircraft,and all other uses ancillary and incidental
thereto, in accordance with Section 19 hereof, unless and until the parties mutually agree in
writing to permit otherwise.
S. Utility Expenses. Landlord shall install separate utility meters at the Hangar, and shall
ensure that all utilities (including water, electricity, telephone, computer and cable) and trash
removal are available at the Hangar. Tenant agrees to
Hangar. pay all utility charges applicable to the
9. Underlying Lease.
A. Landlord shall be liable to Tenant for actual out-of-pocket damages incurred by
Tenant(i.e., excluding consequential damages)in the event that the Underlying Lease and/or the
Underlying Sublease terminates or expires due to Landlord's gross negligence or intentional
action.
B. As a condition of Tenant's obligations hereunder, Landlord shall obtain from
Grantair and shall furnish Tenant an estoppel certificate and agreement in the form attached
hereto as Exhibit D("Grantair Estoppel Certificate").
C. Landlord shall obtain consents and non-disturbance agreements from the holders
of any and all leasehold mortgages/deeds of trust encumbering any and all leasehold and
subleasehold interests in the Hangar and land upon which the Hangar is lore* including the
Consent and SNDA,in the form of Exhibit C attached hereto.
D. All references herein to Monroe County shall be deemed to include all successors,
assigns and grantees of Monroe County.
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1 0. Reoairs and.
A. Tenant shall be responsible for all repairs and maintenance of the Hangar made
after the renovation and modification by Tenant; provided, however, that to the extent Landlord
receives any insurance proceeds (as loss payee on any of the property and/or casualty insurance
policies obtained by Tenant in accordance with Section 13 below), then Tenant's obligation to
repair and maintain the Hangar pursuant to this Section 10 shall be subject to Landlord making
all insurance proceeds available to Tenant. Tenant shall be responsible to repair(at Tenant's sole
expense) any and all design, construction, renovation and/or modification defects respecting the
Hangar, including pertaining to the renovation of the Hangar undertaken by Tenant, but not
limited to all structural components thereof such as the roof, walls, ceilings, floors, doors and
foundation, as well as all mechanical systems such as the heating, ventilating, air conditioning,
plumbing, electrical, drainage and security systems. Insofar as the claims, actions, causes of
action, litigation, proceedings, costs or expenses relate to faulty construction by th enant, this
Section will survive the expiration of the term of this Sublease. In no event shall Monroe County
be responsible for any costs of repair necessitated by Tenant's faulty construction. Tenant does
hereby covenant to keep the Hangar in clean and sanitary condition during the Term, and will
comply with all Laws and directions of proper public officers in connection with Tenant's
businees operation at the Hangar, and will yield up the Hangar at the end of the Term, in good
condition,ordinary wear and tear and casualty damage excepted.
B. ns non and Mainte_naj of the Ha ar by Monroe C r Monroe County
and its authorized officers, employees, agents, contractors, su
representatives shall have the right to enter bcesia and othern ,
repair, relocation, or removal of existing upgr the and overheade ir wires,essentialpipes, drains,
cable,
and conduits now located on or across the Ha underground and construct, a n a , pai , relocate,
and remove such facilities in the future as necessary Hangar,toand to e aster Plana, o fdev lop ent
of the Airport; provided, however, that carryn out the d of development
said work, shalle in no event undulyu interfere including
with the
operations of Tenant and shall,provided further, that the entire cost of such work, including but
not limited to the cost of rebuilding,removing,relocating,protection or otherwise modifying any
fixed improvements at any time erected or installed in or upon the Hangar by Tenant, Monroe
County or third parties, as a result of the exercise by Monroe County of its rights hereunder, and
all damage to such fixed improvements causes thereby,shall be borne by Monroe County.
11. Alterations by Tenant. Landlord agrees that Tenant may make, at its own expense, any
minor nonstructural alterations,repairs,replacements or additions to the Hangar,provided:
A. Any such alterations, repairs, replacements or additions shall not lessen the value
of the Hangar; and,
B. Tenant shall perform such alterations, repairs, replacements or additions, in
accordance with all Laws and orders of all public or quasi-public authorities having jurisdiction
thereof and in accordance with the rules and regulations of the local board of Fire Insurance
Underwriters; and,
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C. The Hangar shall at all times be kept free and clear of all mechanic's,
rnaterialmen's, labor or other liens or claims of liens, and if any lien shall be filed against the
Hangar,then the Tenant shall cause the same to be discharged;and
D. At all reasonable times during the progress of such construction work Landlord,
or persons authorized by Landlord,shall have the right to go upon the Hangar for the purpose of
inspecting any construction work then in progress.
Tenant covenants and agrees with Landlord that Tenant shall not make any material
additions or alterations or structural changes in or about the Hangar, without first submitting
plans and specifications thereof to Landlord, and obtaining the written approval of Landlord,
which approval shall not be unreasonably withheld, conditioned or delayed. Upon obtaining
such written approval, Tenant may make such additions or alterations at Tenant's sole cost and
expense and subject to the obligations of sub-paragraphs(A)-(D)above, inclusive,and providing
that such additions or alterations do not damage the Hangar or endanger its support or stability.
Such additions, alterations or improvements (except trade fixtures) put in at the expense of
Tenant,as aforesaid,shall be and become a part of the Hangar at the temtination of this Sublease,
and therefore the property of Landlord. Tenant shall have the right to remove Tenant's trade
fixtures provided the walls, floors and ceilings are restored to a condition similar to the condition
existing on the Commencement Date.
12. Signs, Awnings and Canon*. Tenant shall not place or maintain any sign, awning or
canopy in, upon or outside the Hangar without first obtaining Landlord's written consent in each
instance, which consent shall not unreasonably be withheld, conditioned or delayed and, if
required under the Underlying Lease,the consent of Monroe County. Tenant shall maintain any
such signs or other installation,as may be approved,in good condition and repair.
13. Insurance.
A. At all times during the Term, Tenant shall maintain at Tenant's sole cost and
expense, the following types of insurance:
(i) Fire and extended coverage multi-peril insurance in an amount equal to
100%of the full replacement cost of the Hangar and all furniture,fixtures and equipment located
on the Hangar. Any policy providing such coverage shall contain the so-called special coverage
all risk endorsement and the full replacement cost endorsement.
(ii) Flood insurance, wind insurance and hurricane insurance in the maximum
coverage available.
(iii) Plate glass insurance on the Hangar in an amount sufficient to cover the
value of the plate glass which is located on the Hangar.
(iv) Builders risk insurance, for any improvements and/or construction
undertaken by Tenant or its contractors.
B. At all times during the Term, Tenant shall maintain at Tenant's sole cost and
expense liability insurance for claims for personal injury or property damage under a policy of
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general public liability insurance with limits of at least One Million and No/100 Dollars
($1,000,000.00) in respect to bodily injury and Five Hundred Thousand and No/100 Dollars
($500,000.00)for property damage. Coverage shall include as a minimum:Premises Operations,
Products and Completed Operations,Blanket Contractual Liability, Personal Injury Liability and
Expanded Definition of Property Damage.
C. At all times during the Term, Tenant shall maintain at Tenant's sole cost and
expense Airport and Hangarkeepers legal liability insurance with limits of at least One Million
and No/100 Dollars($1,000,000.00).
Policies for such insurance shall be in a form and with an insurer reasonably acceptable
to Landlord and Tenant, and shall require at least fifteen (15)days written notice of termination
or material alteration. If requested by either party, the other party shall from time to time
promptly deliver certified copies or other evidence of such polices,and satisfactory evidence that
all premiums hereon have been paid and the policies are in full force and effect. Landlord,
Orantair, and Monroe County Board of County Commissioners shall be named as additional
insureds(as their interests may appear)on all liability insurance policies required by this Section
13,and as loss payees(as their interests may appear)on all property or casualty policies.
D. Prior to the commencement of the Initial Period and/or before renovation and
modification of the Hangar has been completed by Landlord, Landlord shall maintain at its sole
expense general liability. Landlord shall furnish copies of such policies, or certificates thereof,
to Tenant.
14. Taking and Damages/Casualty.
A. In the event that a part of the Hangar is taken by reason of the exercise of the right
of eminent domain by any public or quasi-public authority, or be conveyed in settlement of
threatened eminent domain proceedings(both of which are referred to as a"Taking"), there shall
be an equitable abatement of Base Rent and all other sums due hereunder. Such equitable
abatement shall result in the decrease of Base Rent and other sums payable by the percentage
decrease in the square footage of the Hangar resulting from the Taking. If the Taking involves
the entire Hangar, or such a substantial and material portion of the Hangar as will reasonably
preclude Tenant from operating Tenant's business at the Hangar, then this Sublease shall
automatically terminate as of the date the condemning authority acquires possession of the
Hangar. Tenant may terminate this Sublease if any Taking materially affects Tenant's parking or
its Access Rights, unless Landlord provides uninterrupted alternate parking and Access Rights
reasonably acceptable to Tenant. Landlord reserves unto itself all rights to damages accruing on
account of any Taking of any part of the Hangar, or by reason of any act of any public or quasi-
public authority for which damages are payable; provided, however, that Tenant may recover
from the condemning authority moving expenses, business damages, loss of trade fixtures and
the value of the unexpired Term(excluding any renewal periods which have not yet begun).
B. If approximately fifty percent (50%) or less of the Hangar is damaged or
destroyed by fire, wind, flood or other cause, then Landlord shall with all due diligence repair
and restore the Hangar. Until the repairs and restoration are complete, Base Rent and all other
sums due hereunder shall abate in proportion to the portion of the Hangar that remains usable by
8
Tenant for its intended purposes (if there is total or substantial destruction of the Hangar, Base
Rent and all other sums due hereunder shall totally abate). Notwithstanding the foregoing, if the
Hangar is totally, substantially or more than 50%destroyed, then either Tenant or Landlord may
elect to totally rebuild the Hangar or either party may terminate this Sublease provided said
terminating party gives the other party thirty (30) days written notice of such termination;
provided, however, that if Tenant elects to rebuild the Hangar, this Sublease shall remain in
effect,and all property and casualty insurance proceeds shall be made available to Tenant. In the
event Landlord rebuilds the Hangar under this Section 14.B., then provided Landlord has not
made any progress or a good faith effort to repair the damage, Tenant may also terminate this
Sublease if Landlord does not complete restoration within nine (9) months following the date
that the damage occurred to the Hangar. If Tenant terminates this Sublease, the insurance
proceeds may be used by Landlord to rebuild the Hangar or to pay off Landlord's mortgage or
Landlord's obligations to Grantair or Monroe County under the Underlying Lease or Underlying
Sublease(as applicable). If the damage occurs during the last two(2)years of the Initial Period,
Tenant may tenninate this J Page on written notice to Landlord.
15. Default/Remedies:
A. The following events shall be deemed to be events of default by Tenant under this
Sublease: (1)if Tenant shall fail to pay any installment of Base Rent within five (5) days
following the due date therefor(provided, however, that Landlord agrees to give Tenant written
notice of default with to the first [11 default in any consecutive twelve [12] month
period, and Tenant shall not be in default if Tenant pays the installment within five (5) days of
Tenant's receipt of Landlord's written notice; no notice shall be required for any subsequent
default within said twelve [12] month period); (2) if Tenant shall fail to pay any other sum other
than Base Rent within five (5)days following receipt by Tenant of written notice that any such
payment is past due; (3) if Tenant shall fail to comply within a reasonable time (but not longer
than thirty(30)days from receiving written notice from Landlord)of such failure with any other
term,provision, condition or covenant of this Sublease;provided,however, that Tenant shall not
be in default if the cure cannot be completed within thirty (30) days so tong as Tenant
commences the cure within such 30-day period and thereafter diligently completes the cure;
(4) if Tenant shall desert, abandon or vacate the Hangar for a consecutive period of sixty (60)
days; (5)if any petition shall be filed by or against Tenant under any section or chapter of the
present or any future Federal Bankruptcy Code or under any similar law or statute of the United
States or any state thereof(and if against Tenant such petition is not discharged in sixty (60)
days),or Tenant shall be adjudged bankrupt or insolvent in proceedings file under any section or
chapter of the present or any future Federal Bankruptcy Code or under any similar law or statute
of the United States or any state thereof;(6)if Tenant shall become insolvent or make a transfer
in fraud of creditors; (7)if Tenant shall make an assignment for the benefit of creditors; or(8)if
a receiver or trustee shall be appointed for Tenant or any of the assets of Tenant.
B. Upon occurrence of any event of default,Landlord shall have the option to do any
one or more of the following:
(i) Terminate this Sublease, in which event Tenant shall immediately
surrender the Hangar to Landlord, but if Tenant shall fail so to do, Landlord may enter upon and
9
take possession of the Hangar and expel or remove Tenant and its effects without being liable to
prosecution or any claim for damages therefor.
(ii) Enter upon and take possession of the
as the agent of Tenant
without being liable to prosecutionr any claim or damages therefor,r and Landlord may relet
the Hangar as the agent of Tenant and receive the rent thereof,in which event Tenant shall pay to
Landlord on demand the reasonable cost of renovating, repairing and altering the Hangar for use
by a new tenant as an aircraft hangar, and recover any deficiency that may arise by reason of
such reletting; provided, however, that Landlord shall make a good faith effort to relet the
Hangar in order to mitigate damages.
(iii) Landlord may declare all of the rent due hereunder for the duration of the
Term immediately due and payable. Upon such declaration, Landlord shall be entitled to proceed
to collect all unpaid Rent by distress or other procedure, except that this remedy of acceleration
shall not apply if Tenant is delayed in making payment by virtue of a Force Majeure. A "Force
Majeure" involves delays caused by acts of God (such as floods and hurricanes), fire or other
casualty,strikes, labor disputes,riots,terrorism or government action.
Notwithstanding the foregoing, in the event that Landlord receives any rent, additional
rent or other sums from any third party applicable to the Initial Period and/or the Hangar(or any
portion thereof), Landlord may promptly credit all such rent, additional rent and other sums to
the accelerated Base Rent paid by Tenant, and Landlord shall make immediate payment to
Tenant on account thereof. This obligation of Landlord shall survive the expiration and/or
termination of this Sublease.
(iv) Landlord may perform Tenant's obligations under this Sublease, and may
enter the Hangar without being liable to prosecution or any claim for damages therefor in order
to accomplish this purpose. Tenant agrees to reimburse Landlord immediately upon demand for
any reasonable expenses which Landlord may incur thus effecting compliance with this Sublease
on behalf of Tenant, and Tenant further agrees that Landlord shall not be liable for any damages
resulting to Tenant from such action.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any of the other
remedies herein provided or any other remedies provided by law.
C. In the event of a default hereunder by Landlord,Landlord shall be liable to Tenant
for all actual out of pocket damages incurred by Tenant(excluding consequential damages).
16. Accord and Satisfaction. No payment by Tenant or receipt by Landlord of a lesser
amount than the Base Rent herein stipulated shall be deemed to be other than on account of the
earliest stipulated Base Rent, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as rent deemed an accord and satisfaction, and Landlord
may accept such check or payment without prejudice to Landlord's rights to recover the balance
of such Base Rent or pursue any other remedy in this Sublease provided.
10
17. Quiet Eniovment. Landlord covenants that so long as Tenant pays the Base Rent and any
other sums due under this Sublease, and performs its agreements hereunder, Tenant shall have
the right to quietly enjoy and use the Hangar for the Term,subject to the provisions hereof.
18. Holding Over. Any holding over after the expiration of the Term shall be construed to be
a tenancy-at-will at 150% of the Base Rent herein specified(prorated on a daily basis)and shall
otherwise be on the terms herein specified so fax as applicable. Acceptance of any Base Rent
after a holdover begins shall not be deemed to renew this Sublease nor shall this provision be
deemed a waiver of Landlord's right to terminate Tenant's tenancy or to pursue other remedied
for Tenant's failure to vacate.
19. Parking.
A. Tenant shall have the right to use the parking areas on the Hangar Property.
B. Tenant will comply with reasonable rules and regulations established by Landlord
regarding the parking of Tenant and it employees.
19. Tenant to Observe Laws. Rules and Regulations. With the exception of any provisions
herein to the contrary, Tenant agrees, insofar as applicable to Tenant's responsibility during the
term of this Sublease,to promptly observe,comply with and execute at its own cost and expense
all Laws relating to the use of the Hangar by Tenant. Tenant, however, may contest, review or
appeal any governmental orders and directions provided Tenant shall, prior to contesting the
same, notify Landlord in writing of its intention to do so,and provided that all such proceedings
shall be promptly commenced by Tenant and diligently prosecuted by Tenant at its expense to a
speedy and final conclusion.
20. Other Rules and Regulations.
A. Compliance. In connection with Tenant's use of the Hangar, Tenant shall
comply with the Minimum Standards for Commercial Aeronautical Activities by Fixed Base
Operators and Other Aeronautical Service Providers at Monroe County Airport and all
ordinances of the County, including any reasonable rules and regulations with respect to use of
Airport property, as the same may be amended from time to time (which rules, regulations and
amendments are furnished to Tenant), all additional laws, statutes, ordinances, regulations and
rules of the federal,state and county governments,and any and all plans and programs developed
in compliance therewith, which may be applicable to its operations, including specifically,
without limiting the generality thereof, federal air and safety laws and regulations and federal,
state , and county environmental, hazardous waste and materials and natural resources laws,
regulations and permits and FAA Airport Improvement Program Grant Compliance requirements.
This Sublease is subordinate to the County's obligations under federal aviation law and
contractual commitments to the federal government. Upon a formal written declaration by the
Federal Aviation Administration ("FAA") that a term or provision of this Sublease is
inconsistent with federal aviation law or a contractual commitment to the FAA, the
impermissible term shall be severed, without affecting the remainder of this Sublease. The
parties may agree to amend this Sublease as provided herein as necessary to comply with the
FAA's formal written declaration.
11
B. Violations. Tenant agrees to pay on behalf of Monroe County any penalty,
assessment,or fine, issued against Monroe County, or to defend in the name of Monroe County
any claim, assessment, or civil action, which may be presented or initiated by any agency or
office of the federal, state, or county governments, based in whole or substantial part upon a
claim or allegation that Tenant, its agents, employees or invitees have violated any law,
ordinance,regulation,rule or directives described in Section 20.A. above respecting Tenant's use
of the Hangar.
21. Environmental.
A. Neither Landlord nor Tenant shall release any Hazardous Material in, on or wider
the Hangar. "Hazardous Material" shall mean without limitation, any flammable, explosive or
radioactive material, lead paint, asbestos or asbestos containing material, urea formaldehyde,
polychlorinated biphenyl, fungal microorganism or component thereof (including, without
limitation, Stachybotrys chartarurn Aspergillus/pennoilfum, Tri
Cylindrocarpon xhns v Acremonium, Trichothecium, Myrothecium or Alte nania,a�and/or any
micotod by fungal microorganisms) capable of causing pulmonary, respiratory,
neurological or other illnesses after exposure, petroleum or petroleum product or constituent,
methane, hazardous material, hazardous waste or any other hazardous or toxic substance or
related material, as defined in the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. §§9601, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. Appendix §§1801, et seq.), the Resource
Conservation and Recovery Act,as amended, (42 U.S.C. §§960I, et. seq.), the Toxic Substances
Control Act, as amended (IS U.S.C. §§2601, et. seq.), or any other federal, state or local laws
and regulationsregulating the environment.
B. Tenant shall not be liable or responsible for any environmental contamination of
the Hangar not caused by Tenant; nor shall Tenant be liable or responsible for the condition of
the Hangar as exists prior to the date that Tenant occupies the Hangar. Landlord shall be
responsible for any investigation, response, remediation and/or clean-up of Hazardous Material
on and/or under,and/or environmental contamination of,the Hangar not caused by Tenant and/or
that already existed prior to the date that Tenant occupies the Hangar.
C. Tenant shall defend, indemnify and hold harmless Landlord from any and all
claims, orders, demands, causes of action, damages, proceedings, judgments, suits, liabilities,
losses, fines, penalties, costs and expenses (including, without limitation, consultant fees, court
costs and reasonable legal fees) arising out of any Hazardous Material in the Hangar that was
brought upon the Hangar by Tenant (or its agents, employees or contractors). This
indemnification obligation shall not apply to (i)the condition of the Hangar as existed prior to
Tuu,t'n occupancy of the Hangar or (ii)the release of any Hazardous Material on, or the
contamination of all or any part of the Hangar not caused by Tenant (or its agents, employees,
contractors,customers or in the course of business of Tenant).
D. Landlord shall defend, indennify and hold harmless Tenant from any and all
claims, orders, demands, causes of action, damages, proceedings,judgments, suits, liabilities,
losses, fines,penalties, costs and expenses (including, without limitation, consultant fees, court
costs and reasonable legal fees)arising out of(a)Hazardous Material on, in or under the Hangar
12
(and/or the land on which the Hangar is built)that is or was brought upon,in or under the Hangar
(and/or the land on which the Hangar is built) by Landlord (or its agents, employees or
cractors) or any third party other than Tenant (or Tenant's agents, employees or contractors,
and/ (b)Hazardous Material that was already present on or under the Hangar prior to the date
that Tenant occupies the Hangar.
E. Tenant shall not construct or install any underground or above-ground fuel tanks.
22. Entry anon Hangar. Tenant agrees that Landlord mayat during the business hours of Tenant, after first withan reasonable time or times
upon the Hangar for the providingng hese Tenant make necessary
notice, enter
Landlord is obligated to make such repairs or where same, is delinquent re makinga repairs wheret
obligated to make. Tenant further agreeserrant d in repairs it isall
reasonable times after firstn to with
allow oLnable notice,toenterfor he purpose the of
at g
or servicingproviding Tenant cables,
water r lies, roernsimil r
electrical wiring, telephone cables, water and sewer lines, or other similar
transmission lines.
23. Asstmnmem . This Sublease shall bind and shall inure to the benefit of the
parties hereto and their respective successors and assigns,
assignees of Landlord and purchasers of any and shallAny allu grantees and
grantee of all or any part of the Hangar portione same the Hangar.thAny purchaser Tenantenr may
not assign this Sublease, or sublet the Hangar
orre any
subject thereof,t this hout La priorri
written anre so abl pbet ithhel without Landlord's d
consent, which consent shall not unreasonably be withheld, conditioned or delayed
provided said assignment does not violate any applicable Monroe County rules or regulations or
the Underlying I rage. The written consent by Landlord to any assignment or sublease shall not
constitute a waiver of the necessity for such consent to any subsequent assignment or sublease.
Receipt by Landlord of Base Rent hereunder from any party other than Tenant shall not be
deemed to be consent to any such assignment or sublease or relieve Tenant of its obligation to
pay Base Rent or other charges under this Sublease. Tenant may assign this Sublease, or sublet
the Hangar or any part thereof; to any parent,subsidiary or affiliate of Tenant without Landlord's
consent provided that Tenant will still remain liable for all rights and obligations under this
Sublease iinLape‘tive of any such assignment or sublet. Landlord's consent shall not be required
in connection with any assignment related to a sale or transfer of Tenant's assets or stock.
24. T' rmance by Landlord of Te s Obli ati
compelled to pay a sum of money,or to do�ch the event Landlordmentof shall pay or bey
reason of the failure of Tenant toa which requires the payment any money,be
kept and performed byTenant, perform one event,or more of the sums scoveo paidi hereinbycontaineddlor , together
be
then in such the sum or so by Landlord,
with all interest, expense or obligations incurred by Landlord, shall be considered as additional
rent and shall be added to the Base Rent becoming due and shall be collectible in the same
manner and with the same remedies as if they had been rents originally resented.
25. Indemnification.
A. Tenant agrees to indemnify,defend and hold Landlord harmless from and against
any and all claims, liabilities, damages and expenses (including reasonably attorneys' fees)
respecting personal injury and/or property damage arising from the use or occupancy of the
13
Hangar by Tenant, and any other parties at any time utilizing the Hangar through Tenant, other
than those claims related to or arising out of Landlord's acts, omissions, gross negligence or
willful misconduct.
B. Landlord agrees to indemnify, defend and hold Tenant harmless from and against
any and all claims, liabilities, damages and expenses (including reasonably attorneys' fees)
relating to(i) Landlord's(and Landlord's agents', employees' and contractors')gross negligence
and/or willful misconduct and (ii) any breach of any material representation, warranty or
covenant of Landlord set forth herein that cannot be cured by Landlord within sixty(60)days of
Landlord receiving notice of such breach from Tenant, including Landlord's representation and
warranty that Landlord is the current lessee under the Underlying Lease. This subsection shall
not apply to Monroe County in the event the Landlord defaults and Monroe County becomes the
Landlord under this Sublease.
26. Nhtic.�g. All notices, requests, demands, and other communications pertaining to this
Sublease shall be in writing and shall be deemed duly given and effective (a) on the day when
sent by facsimile transmission (provided that the sender thereof has confirmation of receipt by
the intended recipient), (b) on the day when delivered personally (which shall include delivery
by Federal Express or other nationally recognized,reputable overnight courier service that issues
a receipt or other confirmation of delivery) and/or (c) three (3) days after any such notice was
given by certified U.S.mail,return receipt requested,postage prepaid,addressed as follows;
If to Landlord:
--- --- Bill Ehrhom
Marathon Aviation Associates, LLC
8800 Overseas Highway
Marathon,FL 33050
With a copy to:
David S.Band,Esq.
One South School Avenue,Suite 500
Sarasota, FL 34237
If to Tenant:
William E.Grieshober,Jr.,Esq.
Rich Products Corporation
--_ 1150 Niagara Street
Buffalo,NY 14213
14
With a copy to:
John A. Pappano,Esq.
Phillips Lytle LLP
3400 HSBC Center
Buffalo,NY 14203
Effective notices hereunder may be given by either party's counsel on behalf of such
Party.
27. Waiver. In the event Landlord does not insist on a strict performance of any of the terms
and conditions hereof, such decision shall not be deemed a waiver of the rights or remedies that
Landlord shall have to insist upon strict performance of any such terms or conditions in the
future or any other conditions and terms of this Sublease.
28. Entire Atueement Severability. This Sublease, and any exhibits annexed hereto,
contains the entire agreement between Landlord and Tenant,and any agreement hereafter made
between Landlord and Tenant shall be ineffective to change,modify, waive, release, discharge,
terminate or effect an abandonment of this Sublease, in whole or in part, unless such agreement
is in writing and signed by both Landlord and Tenant. If any term or provision of this Sublease
or the application thereof to any present or future circumstances, to any extent, be held to be
invalid or unenforceable by a court of competent jurisdiction, the remainder of this Sublease
shall be in full force and effect, and only the provision found to be unenforceable shall be
stricken from the terms hereof.
29. Governing Law: Venue. This Sublease shall be governed by the internal laws of the State
of Florida,without regard to the principles of conflicts of laws,with venue in Monroe County.
30. Invalidity of Anv Provisions. If any term, covenant, condition or provision of this
Sublease shall be held to any extent to be invalid or unenforceable under applicable law, the
remaining terms, covenants, conditions and provisions of this Sublease shall not be affected
thereby and shall remain in full force and effect.
31. Waiver of Jury Trial. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of them against the other or any matters
whatsoever arising out of or in any way connected with this Sublease, the relationship of
Landlord and Tenant, Tenant's use or occupancy of the Hangar, and/or claim of injury or
damage.
32. - Legal Expenses. Should either party employ an attorney or attorneys to interpret or
enforce any of the provisions hereof,or to protect its interest in any matter involving,arising out
of, or otherwise relating to this Sublease, or to recover damages for the breach of this Sublease,
the party prevailing shall be entitle to recover from the other party all reasonable fees, costs,
charges and expenses, including but not limited to,attorney and legal assistant fees,expended or
incurred in connection therewith from the initial request for redress through trial, appeal and
collection.
15
33. Relationship of the Parties. Nothing herein contained shall be deemed or construed as
creating the relationship of principal and agent or of partnership or joint venture between
Landlord and Tenant it being understood and agreed that neither the method of computing Base
Rent nor any other provision contained herein nor any acts of Landlord and Tenant shall be
deemed to create any relationship between the parties other than that of Landlord and Tenant.
34. Counterparts. This Sublease may be signed in counterparts, and by facsimile or e-mail
signatures,which originals, facsimile and/or e-mail counterparts shall be deemed originals for all
purposes,and which together shall be deemed one agreement.
35. Miscellaneous: Captions. The masculine, feminine or neuter gender, wherever used
herein, shall be deemed to include the masculine, feminine and neuter whenever and wherever
applicable herein. Whenever the singular is used it shall be deemed to include the plural
whenever and wherever applicable herein. Captions and headings in this Sublease are for
convenience. They do not define or limit the scope of any provision set forth herein.
36. Memorandum of Sublease. Upon execution of this Sublease, Landlord and Tenant shall
execute a memorandum of sublease in the form attached hereto as Exhibit E("Memorandum").
Landlord or Tenant shall record the Memorandum in the Public Records of Monroe County. If
not already recorded,memoranda of the Underlying Lease and Underlying Sublease shall also be
recorded in the Public Records of Monroe County. All recording fees and taxes required to be
paid in connection with this Section 36 shall be paid by Landlord.
37. Survival. The indemnification obligations set forth herein, and landlord's
representations and warranties shall survive the expiration or earlier termination of this Sublease,
for a period of nine(9)months.
38. FAA Required Clauses.
A. Tenant for itself and its surreaaora in interest and assigns, as a part of the
consideration hereof, does hereby covenant and agree that (i) no person on the grounds of race,
color, or national origin shall be excluded from participation in, denied the benefits of, or be
otherwise subjected to discrimination in the use of the Hangar, (ii)that in the construction of any
improvements on,over or under the Hangar and the furnishing or services thereon,no person on
the grounds of race, color, or national origin shall be excluded from participation in, denied the
benefits of, or be otherwise subjected to discrimination, (iii)that Tenant shall use the Hangar in
compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal
Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21,
Nondiscrimination in Federally-assisted programs of the Department of Transportation-
Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be
amended. That in the event of breach of any of the above nondiscrimination covenants,
Landlord and Monroe County shall have the right to terminate this Sublease and to re-enter the
Hangar as if this Sublease had never been made or issued. This provision shall not be effective
until the procedures of Title 49, Code of Federal Regulation, Part 21 are followed and completed
including exercise or expiration of appeal rights.
16
B. It shall be a condition of this Sublease that Monroe County reserves for the use
H�benefit of the public, a right of flight for the passage of aircraft in the airspace above the
gar, together with the right to cause in said airspace such noise as may be inherent in the
operation of aircraft,now known or hereafter used,for navigation of or flight in the said airspace,
and for use of said airspace for landing on,taking off from or operating on the Airport.
C. Tenant expressly agrees for itself, its successors and assigns,to restrict the height
of structures, objects of natural growth and other obstructions on the Hangar to such height so as
to comply with Federal Aviation Regulations, Part 77. Tenant expressly agrees for itself, its
successors and assigns,to prevent any use of the Hangar which would interfere with or adversely
affect the operation or maintenance of the Airport,or otherwise constitute an Airport hazard.
D. This Sublease and all provisions hereof are subject to any ordinances, rules or
Ammon which have been, or may hereafter be adopted by, Monroe County pertaining to the
rt.
17
IN WITNESS WHEREOF, Landlord and Tenant have signed this Sublease as of the day
and year first above written.
"LANDLORD"
MARATHON AVIATION
ASSOCIATES,LLC
By:
Nam . :\ . a.
Title:
"TENANT"
RICH AVIATION,INC.
By. ip SY?r/..
N 4/4. Date
Titl . V P
SAgi
Doc ICI-22995IS.26
18
EXHIBIT A (First Pa e)
Jet Port 00�snt CRIPTON (LEASE AREA):
A portion of land booted al Marathon Apart. and being o port al Section I. Townsh ,
described• Range
lips:al, Key Vaeo, Manna County, Florida and boyq.man particularlyIP
COMWENCINO et a N.O.S. sa1 control
EfR 6JH199, nd rhoe FStole Plans CoorCoordinates ore 420 ad EJIOS (g6 8n
fE Wong the or 20.00 Iset to the Point of Spinning ( N 142009.67, E 638064.90 ): Nene� 11'49'3
thence S 22'555'552• E for 23636 fes of an asphalt tc to ar 704.93 chain NMI(once 142281.48.
21420/1.756E) N 6TIg
thence 5 6T06'4r W and 15.33 );
838159.14 ); thence N 23'02'4 W sold
along an chain k edge of a asphalt surface e for 704.44 fed ( Nfor� .4 feet to the Point of Beginning.
Containing•
166,672.27 240.74
Square Ful ar 3.67 Acres, more ar lees.
11111M413211,5"..1 cornet
technical etelnderell into t best o4 E 4bfee age one TeNll• n g-msiK the rai imam
fFloa-'Florid n E
7II.0 and Me Nnaleenel red M Association,
onWhr g10I7-6.
'FQFQ„ 4 aNssa sperm M�nen.lilM ARoogo9on. and UM
--
Professional land Suc nyer No. 2749
Professional Engineer He. 36610
Stale M Foida
•
NOT V.WD UNLESS EMBOSSW Whit RAISED SEAL & SIGNATURE
Sheol 2 0:
'h .y •' FREDERICK H. HILDEBRANDT
r<.u®® l PIAMNER 51611£YOR
i:Swam II0i o.r.
T Rey W.n,R JI01a
Ott) pfl-aqt
ra.... put sI-a>n
r
EXHIBIT A (Second Page)
i, Deed Wade
� � Po177
EXHIBIT'A"
Area of real property as described
�a stde inanent� AM'ham the moons of 240 x 105'
In IPora(ed ha*by reference. This 2240x 105ased're area. Exhibitty may Ma Is be used
and
newlyfor the
site of a County approved corporate hangar,*Craft aonsaucted 11,800(appicadmately)squats root
dedOWTed,and aviation witty only.
•
/
EXHIBIT Ala
i
i
ExhibitAa
/
pp at na S
Mi. r t. t -=
Ela
`'! .
_6
a
J
a =+�JO
)
M.
.' 21 0a�
y
•
SRHIBIT B
•
SUBLEASE AGREEMENT
SUBLEASE AGREEMENT(this"Sublease")by and between GRANTAIR SERVICE,
INC., a Florida corporation("Sublandlord"), and MARATHON AVIATION ASSOCIATES,
LW,a Florida limited liability company("Subtenant"). The"Effective Date"of this Sublease
shall be the date when this Sublease is executed by the last party hereto.
RECITALS:
A. Monroe County,Florida,a political subdivision of the State of Florida("Monroe
County is the fee simple owner of that certain parcel of real property described in Annex I
attached hereto(the"Overall Property").
B. Pursuant to a lease agreement entitled Marathon Fixed Base Operator (FBO)
Agreement dated of rctive April 10, 1998,as amended by a Sixth Amendment dated September
28,2005 (which rescinded all prior amendments),and by a Seventh Amendment dated February
21, 2007 (collectively, the"Prime Lease"), Monroe County leased the Overall Property to
Sublandlord.
C. A portion of the Overall Property consists of an approximately 240 by 105 foot
parcel of land,as said parcel Is described on Annex 2 hereto and depicted on Annex 3 hereto(the
foregoing parcel, together with aB improvemmb thereon and all easements, appurtenances, •
_rights and privileges appertaining thereto,the"Premised'and/or the"Hangar Property').
D. Sublandlord desires to sublease the Premises to Subtenant,and Subtenant desires
to sublease the Premises from Sublandlord pursuant to the provisions of this Sublease.
NOW, THEREFORE, in consideration of the foregoing recitals, and for good and
valuable consideration,the receipt and sufficiency of which is hereby acknowledged,the parties
hereby agree as follows:
1. LEASE OF PREMISES. Sublandlord hereby subleases to Subtenant and
Subtenant hereby subleases from Sublandlord,the Premises.
2. SUBLEASE TERM AND COMMENCEMENT DATE.
(a) Teton. The initial term of this Sublease(the'Initial Term") shell commence
on the Commencement Date (as defined below), and shall terminate on April 9, 2028 (the
"Termination Date"), unless otherwise extended by the mutual agreement of Sublandlord and
Subtenant upon the expiration of the Initial Tenn. This Sublease is subject to all of the terms and
conditions of the Prune Lease,a copy of which Subtenant acknowledges having received.
(b)Commencement Date. The term"Commencement Date"shall mean the date
of the Hangar Closing(as defined below),so long as a Notice of Closing (as defined below)is
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given to Sublandlord on or before expiration of the Pre-Commencement Period (as defined
below). The patties acknowledge that Subtenant either has already entered iinto,or is in active
negotiations to enter is an agreement (the "Hangar Contract") with Grassy Strip, LW
("Grassy Strip"). At a closing to take place pursuant to the Hangar Contract (the "Hangar
Closing"),Grassy Strip will(i)convey to Subtenant all of Grassy Strip's right,title and interest
in and to the aircraft hangar constructed by Grassy Strip on the Premises (the"Hangar'). (d)
terminate the Conshmction and Operation Agreement (the "Hangar Operation Ay...arcuf')
between Greavy Strip and Sublandlord (Granmlr), and (iii) terminate the Memorandum of
Occupancy and Use,which was executed pursuant to the Hangar Operation Agreement. Upon
completion of the Hangar Closing, Subtenant shall send written notice to Sublandlord that the
Hangar Closing is completed(a'Notice of Closing"). The Notice of Closing may be given at
any time during the period beginning on the Effective Date and expiring on the date which is
ninety (90) days after the Effective Date (the "Pre-Commencement Period"). If no Notice of
Closing is given on or before expiration of the Pre-Commencement Period,then this Sublease
shall automatically expire,without any action by any party hereto, upon expiration of said Pre-
Commencement Period, If a Notice of Closing Is timely given,then the Initial Term shall begin
as of the date of the Hangar Closing(which shall be the Commencement Date).
3. RENT. The annual base rent for the Premises shall be an ammamt equal to the
annual rent payable by Sublandlord to Monroe County for the Premises under the tams of the
Prime Lease(the"Base Rent"),together with any sales tax imposed by the State of Florida. In
addition,Subtenant agrees to pay to Sublandlord any and all amounts or charges other than Base
Rent (e.g., fuel flowage fees, property taxes if applicable, etc.) for which Sublandlord is
obligated to make payments to Monroe County with respect to the Premises under the terms of
the Prime Lease (collectively, "Additional Rant"), together with any sales tax imposed by the
State of Florida. If and to die extent that Subtenant is late in making any payments of Base Rent
or Additional Rent to Sublandlord Standen then Subtenant shall be liable for paying We fees
and other charges to Sublandlod, in such amounts as are the some as any late fees or other
Barges which Sublandlord is liable to Monroe County under the terms of the Prime Lease.
4. USE. Subtenant shall be permitted to use the Premises for any and all uses that
are permitted to be made of the Premises under the terms of the Prime Lease,and subject to any
limitations thereon as set forth in said Prime Lease(including any exhibits thereto and/or any
laws,rules,regulations and/or ordinances to which the Premises are subject).
5. ADDITIONAL OBLIGATIONS. Subtenant hereby undertakes to assume any
and all other obligations, in favor of Sublandlord, for which Sublandlord has an obligation In
favor of Monroe County (with respect to the Premises) under the terms of the Prime Lease.
Without limiting the generality of the foregoing, Subtenant hereby undertakes: (a) to keep the
Premises in good order and condition, to the same extent that Sublandlord has obligated itself to
Monroe County under the terms of the Prime Lease; (b)to comply with all governmental laws,
rules, regulations, ordinances, decrees. etc., to the same extent that Sublandlord has obligated
itself to Monroe County under the terms of the Prime Lease;(c)to secure and maintain any and
all insurance policies with respect to the Premises, to the same extent that Sublandlord has
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agreed to secure and maintain the same under the terms of the Prime Lease (including the
provision of any and all endorsements in favor of Monroe County and Sublandlord), and to
comply with all ode,rules and regulations of the Board of Underwriters and of any insurance
companies insuring the Premises;(d)to pay all taxes and assessments,including any sales or use
taxes, imposed or levied by any governmental agency with respect to Subtenant's operations,to
the same extent that Sublandlord has obligated itself to Monroe County under the terms of the
Prime Lease; and (e) to comply with any and all limitations, conditions or restdcdom as
Sublandlord may be subject to Monroe County under the terms of the Prime Lease.
6. ASSIGNMENT/SUBLETTING. Provided Subtenant is not in default of this
Sublease, Subtenant shall be permitted to assign this Sublease, or sublet all or any part of the
Premises, upon obtaining the prior written count of Sublandlord,which consent shall not be
unreasonably withheld or delayed. Notwithstanding any assignment or sublease,Subtenant shall
remain Wily primarily liable hereunder and shall not be released from any obligations or
performing any of the tans of this Sublease. Sublandlord hereby preapproves of Subtenant
entering into a Sublease with Rich Aviation.Inc.,substantially upon the terms and conditions set
forth in the draft Sublease Agreement attached as Annex 4 hereto.
7. LIABI JTY/INDEMNIPICATION.
A. Subtenant shall indemdfy Subiandlord end hold it harmless from suits,
actions,damages„liability and expenses In connection with loss of life,bodily or personal injury
or property damages arising from or out of the use or occupancy of the Premises or any part
thereof or occasioned wholly or in part by any act or omission of Subtenant, its agents,
contractors,employees,servants,invitees,licensees or concessionaires, Including the sidewalks,
the parking facilities, and 9oilldes within any buildings located thereon, except in the case of
negligence on the pert of Sublandlord or their respective employees,servants and agents;
B. Subtenant shall store its property in and shall occupy the Premises at its
own risk and releases Sublandlord,to full extent permitted by law,from all claims of may kind,
smutting in Ion of life,personal or bodily injury or property damage;and
C. Sublandlord shall not be responsible or liable at any time or any loss or
damage to Subtenant's equipment, fixtures, and otba persons property of Subtenant or to Subtenant's business.
8. DEFAULT AND REMEDIES.
A. Events of Default The following events shall be deemed to be events of
default by Subtenant under this Sublease: (i) Subtenant shall fail to pay any Base Rent,
Additional Rent or other sums payable by Subtenant hereunder as and when such rents or other
sums become due and payable; (Ii)Subtenant shall Pail to comply with any other obligation of
Subtenant hereunder, which failure shall have the effect of causing Sublandlord to be in default
to Monroe County under the terra of the Prime Lease;or(iii)any other circumstance shall occur
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with respect to Subtenant (e.g., if a receiver or trustee shall be appointed in any bankruptcy
proceeding) which shall have the effect of causing Sublandlord to be in default to Monroe
County under the tams of the Prime Lease..
B. Remedies. At any time after the occurrence of an Event of Default,
Sublandlord shall have the right to exercise any and all remedies against Subtenant(including
termination) which Monroe County may exercise against Sublandlord for the same Event of
Default, and subject to any notice requirements set forth in the Prime Lease(i.e.,if and to the
extent that Monroe County shall have the obligation to notify Sublandlord of any Event of
Detbult under the terms of the Prime Lease, then Sublandlord shall likewise have the same
obligation to notify Subtenant of such Event of Default under the terms of this Sublease).
9. SUBORDINATION. This Sublease and the Subtenant's fattiest hereunder shall
be subject and subordinate to any mortgage,leasehold mortgage,deed of trust,or any method of
financing or refinancing now or hereafter placed against the Overall Property and/or the
Premises and/or any and all of the build'mga now or hereafter built, and to all renewals,
modifications,replacements,consolidations and extensions thereof
to. ATTOIINMENT. Subtenant shall in the event of the sale or assignment of
Sublandlord's interest in the Premises, or in the event of any proceedings brought for the
foreclosure of or in the event of exercise of the power of sale under any mortgage made by
Sublandlord covering the Rend See, attom to the purchasers or foreclosing mortgagee and
recognized such purchaser or foreclosing mortgagee es Sublandlord under this Subleases
11. NO WAIVER Failure of Sublandlord or Subtenant to insist upon the strict
performance of any provision of this Sublease or to exercise any option or any rules and
regulations herein contained shall not be construed as a waiver for the flame of any such
provision,rule or option. The receipt by Sublandlord of rent with knowledge of the breach of
any provision of this Suhln.e shall not be deemed a waiver of such breach:No provision of this
Sublease shall be deemed to have been waived unless such waiver is in writing signed by the
pay seeking to enforce such provision.
12. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided, all •
provisions herein shall be binding upon and shall inure to the benefit of the parties,their legal
representative,successors and assigns.
13. ENTIRE AGREEMENT, ETC. This Sublease and the Exhibits, Annexes,
Riders and/or Addenda, if any attached, set forth the entire agreement between the pat My
prior conversations or writing are merged herein and extinguished.
14. GOVERNING LAW;VENUE. This agreement shall be governed in all respect
by the laws of the State of Florida, and the parties agree that the appropriate venue for any
lawsuit involving issues arising from this agreement shall be Monroe County,Florida.
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15. WAIVER OF JURY TRIAL. SUBLANDLORD AND SUBTENANT
HEREBY WAIVE,TO THE EXTENT NOT PROHIBITED BY LAW,THE RIGHT TO A
JURY TRIAL IN ANY ACTION, SUMMARY PROCEEDING, OR LEGAL
PROCEEDING BETWEEN OR AMONG THE PARTIES OR THEIR SUCCESSORS
ARISING OUT OF THIS SUBLEASE, SUBTENANT'S RIGHT OF OCCUPANCY OF
THE PREMISES,OR SUBTENANT'S RIGHT TO OCCUPY THE PREMISES.
IN WITNESS WHEREOF,the parties hereto have hereunto set their hands and seals
this day and year first above written.
$abindlord: GRANTAIR SERVICE,INC.,
a Florida corporation
nazvait,t)
By: .Mti r-e2.Print Name:Qi coLA gcmr a1a-TO William O.Bhrhom,President
esident
�po ))ems:April m,20I0
Print Nome: be �,6 e .ii
$mbtenwt: MARATHON AVIATION ASSOCIATES,LLC,
_ a Florida limited liability company
(�'�+(��( �
Print Name: s,J re.ea.R B o`la ,XI\ Witham O.Ehrhom,Manage
rd^heC/.. Dated: April 15,2010 !'
Pndt Name! d/'e r.(to' a4,
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ear I
(Overall Property)
LEGAL OE C1 PTION (LEASE AREA):
Jet Port Canton
A portion of kind located at Marathon ABpod. and being 6 port at Section I. TowaMp 66
South, Flange
d ge t32eK a VomitVo . Monroe Caonb, Florida of bath more particularly
COMMENCING at a N.O.S. Ndantal control monument *belied MMNC 1989, and whoa Florida
State Pea Coordinate* are N 142029.09 and E 038051.76 (1983/90); thence S 14149133' E
for 20.09 Rd to the Pala! al ee94alng ('N 142009.$7, E 030064.90 ); thence N 67'19'19-
E along the doll or on asphalt surface for 704.93 fat ( N 142281.46, E 83a710.33 );
Bence S 2255 52' E for 238.56 fat to a chain Ink fence ( N 142061.75, E 630808.28):
thanes S 0200142' W cod along the meld chain link tens for 704.44 feet ( N 141708.14, E
830159.14 ): thence N 23'02'48' W •and along an edge of a asphalt surface for 240.74
feet to the Point of Beginrdng.
COMeinlnq 188,672.27 Square Feat or 3.87 Acre, more or len.
Area of real property as described In Bdtlbt A1A,having the*pensions of 240 x 105'and abutting the west side of the current leased area. BddbtAla Is attached and
incorporated herein by utterance. This 240'x 105'real property may be used for the F
County approved newly constructed 11,800(appradmately)square foot
corporate hangar,aircraft tledowns,and aviation activity only.
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ANNEX 2
(The Premises/Hangar Property)
(Legal Description)
Area of real property as described In Exhibit AlA, having the dimensions of 240 x 105'
abuttingand the west'slde of the current leased area. eithIbit Ala Is attached and
h dtedwipo herein by reference. This 24 105'real property may be used for the
site of a County approved newly constructed 11,800(approximately)square foot
corporate hangar,aircraft tledoms,and aviation aWvMy only.
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(The Pramisea/Henpar Property)
(Survey/Depiction)
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