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Item K5 K5 BOARD OF COUNTY COMMISSIONERS COUNTY of MONROE �� i Mayor Holly Merrill Raschein,District 5 The Florida Keys Mayor Pro Tern James K.Scholl,District 3 Craig Cates,District 1 Michelle Lincoln,District 2 ' David Rice,District 4 Board of County Commissioners Meeting November 19, 2024 Agenda Item Number: K5 2023-3289 BULK ITEM: Yes DEPARTMENT: Airports TIME APPROXIMATE: STAFF CONTACT: Richard Strickland N/A AGENDA ITEM WORDING: Approval and authorization for the Mayor to execute the Memorandum of Lease for Marathon Aviation Associates and the Memorandum of Lease for Coast FBO to be held in escrow by the County Attorneys Office pending the final review, editing and approval by the County Attorney or his designee of the documents. ITEM BACKGROUND: The MTH FBO's will be issuing tax exempt facility bonds for airports pursuant to section 142(a)(1) of the Internal Revenue Code of 1986, as amended and Section 66.0304 of the Wisconsin Statutes, as amended. The proceeds from the sale of the MTH FBO Bonds will be loaned to Marathon Aviation Associates LLC , a Florida limited liability company(the"Borrower"), and will be used to (a) finance the acquisition, construction and/or equipping of certain fixed base operator airport facilities (the "Facilities;"), (b)pay the portion of the issuance costs of the Bonds which is allocable to the MTH FBO Bonds, (d)pay capitalized interest with respect to the MTH FBO Bonds and(d) fund the portion of the debt service reserve fund for the Bonds which is allocable to the MTH FBO Bonds (collectively, the "Project"). The Facilities will be owned by the County and will be used and operated by the Borrower in its business of providing services to general aviation aircraft operators. The Facilities will be located in part on a 5.75-acre site with a street address of 8800 Overseas Highway (US Route 1), Marathon, Florida and in remaining part on a 8.61-acre site with a street address of 9850 Overseas Highway, Marathon, Florida. All of Facilities will be located at the Airport, which has street address of 9400 Overseas Highway in the City of Marathon, Monroe County, Florida and which occupies a 197 acre site along Overseas Highway between 72nd Street and 106th Street. The purpose for the memorandums is to place third parties on notice of the lease between the County and Marathon Aviation Associates and the County and Coast FBO, the 2 FBO's. PREVIOUS RELEVANT BOCC ACTION: Held a TEFRA hearing on July 17, 2024 for the purpose of receiving comments and hearing discussion concerning the proposed issuance of NTE $40,000,000.00 in aggregate principal amount by the Public 3948 Finance Authority, a joint powers commission created under Sections 66.0301, 66.0303 and 66.0304 of the Wisconsin Statutes. INSURANCE REQUIRED: No CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATION: Approval. DOCUMENTATION: MTH Lessor Consent (Coast FBO Lease).pdf MTH Lessor Consent (MAA FBO Lease).pdf FINANCIAL IMPACT: N/A 3949 CONSENT,NONDISTURBANCE AND ATTORNMENT AGREEMENT This CONSENT, NONDISTURANCE AND ATTORNMENT AGREEMENT (this "Consent Agreement") is made this _ day of 2024, by and between MONROE COUNTY, a political subdivision of the State of Florida ("County"), COAST FBO, LLC, a Florida limited liability company(together with its successors and assigns, FBO") and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association (together with its successors and assigns, "Master Trustee"), as Master Trustee under the Master Indenture (defined below). WITNESSETH WHEREAS, County owns and operates Florida Keys Marathon International Airport located in Marathon, Florida(the `Airport"); WHEREAS,pursuant to that certain Marathon Fixed Base Operator(FBO) Agreement, dated July 19, 2016, as amended by that certain First Amendment, dated December 19, 2018 and by Second Amendment, dated July 21, 2021 and by Third Amendment dated December 13, 2023 (collectively, the FBO Lease"), FBO leases (1) a 375,000 square foot parcel (described on Exhibit A-I to the aforesaid Third Amendment), (11) Adjacent Land(described on Exhibit A-2 to the aforesaid Third Amendment) and 62 parking spaces (described on Exhibit C to the aforesaid Third Amendment) at the Airport from the County, as more fully described on Exhibit A hereto ("Leased Premises"); WHEREAS, FBO and a group of entities affiliated with FBO (the "Obligated Group") which as of the date hereof consist of Marathon Aviation Associates,LLC,Austin FBO,LLC and Million Air Three LLC("Parent"),have heretofore entered into a Master Trust Indenture dated as of[ ] 1,2024 (as the same may be further amended and supplemented from time to time, the "Master Indenture") with Master Trustee and the Obligated Group pursuant to which the Obligated Group has secured certain indebtedness issued on behalf of the Obligated Group; WHEREAS, FBO is part of the Obligated Group in connection with the issuance of the (1) Public Finance Authority Special Facilities Revenue Bonds (Million Air Three LLC General Aviation Facilities Project)), Series 2024A (Tax-Exempt-AMT) and (11) Public Finance Authority Special Facilities Revenue Bonds (Million Air Three LLC General Aviation Facilities Project)), Series 2024B (Taxable) (the `Bonds"), a portion of the proceeds of which will be loaned to FBO to finance or refinance certain improvements made by FBO to the Leased Premises at the Airport and a portion of the proceeds of which will be loaned to certain other members of the Obligated Group to finance certain projects at the Airport or other airports and refinance indebtedness incurred in connection with certain projects at such airports (the `Bond Financing"); WHEREAS,in connection with the Bond Financing,FBO desires to encumber its leasehold interest in the FBO Lease by granting to Master Trustee a leasehold mortgage and such other security interests required or permitted to secure the obligations of FBO and the joint and several obligations of the Obligated Group under the Master Indenture (together with the Bond Financing, the `Financing"); WHEREAS, as additional security for the Financing,Parent has pledged its equity interests in FBO to Master Trustee pursuant to the certain Pledge Agreement, dated as of[ _] 2024 by Parent in favor of Master Trustee (the "Pledge Agreement"); and WHEREAS, FBO has requested that County enter into this Consent Agreement with FBO concerning the Financing. 301565183 3950 NOW,THEREFORE,in consideration of the premises and mutual covenants hereinafter contained, the parties below,intending to be legally bound,hereto mutually covenant and agree as follows: SECTION 1: CONSENT. A. County hereby expressly consents to the Financing and that FBO's executing, delivery, and recording of that certain Leasehold Deed of Trust, Security Agreement, Fixture Filing, Financing Statement and Assignment of Leases an Rents, dated as of[ _], 2024 (as the same may be modified, amended, restated or supplemented time to time, the "Leasehold Mortgage"),as well as any and all financing statements or other documents required or permitted under the Uniform Commercial Code of the State of Florida. County hereby consents, subject to the following terms and conditions, to the assignment and mortgage of FBO's leasehold interest in and under the FBO Lease pursuant to the Leasehold Mortgage to secure the obligations of FBO and the Obligated Group in connection with the Financing, and to the recording of such documents required or permitted to perfect a security interest in FBO's leasehold interest in and under the FBO Lease. B. The Financing shall not operate to release or discharge FBO from any liability arising under the terms, conditions and covenants of the FBO Lease. C. It is agreed that: (1) County shall receive notice from Master Trustee of any default by FBO under the Master Indenture at the same time as FBO receives notice thereof, and(11)provided that Master Trustee provides the County with a written statement containing its name and address,Master Trustee shall receive notice from the County of any default by FBO under the FBO Lease at the same time as FBO receives notice thereof, and that no notice of default given to FBO, and no exercise of any remedy by County as a result of any such default, shall be effective unless such notice shall have been delivered to Master Trustee. D. The Financing shall be a lien on FBO's leasehold estate only,and shall not otherwise affect the fee title of the County, and the interest of the lienholder shall be subject to rights and remedies of the County under the FBO Lease; provided, however, that County hereby acknowledges and agrees that any mortgage now or hereafter encumbering County's fee interest or County's leasehold interest(if any)in and to the Leased Premises shall be subject and subordinate in all respects to the FBO Lease and to any mortgage of FBO's leasehold under the FBO Lease. E. In the event of partial or total destruction of the Leased Premises, or at a time when FBO shall be obligated under the FBO Lease to repair or reconstruct the Leased Premises, and FBO shall fail either to do so or to commence to do so as required, Master Trustee is hereby authorized to repair or reconstruct, at its sole election, the improvements located on the Leased Premises in compliance with the FBO Lease in order to prevent a forfeiture thereof by reason of the breach or default by FBO of any of the terms, conditions or covenants of the FBO Lease in that respect. In such event, Master Trustee shall be subrogated to all the rights of FBO under the FBO Lease to the insurance proceeds collected upon the Leased Premises, and shall be entitled to have said insurance proceeds paid out on such repair or reconstruction upon its own certification in the same manner in every respect as if Master Trustee were FBO. F. The Financing shall be assignable to any commercial lending institution that receives the prior written consent of the County in accordance with the terms of the FBO Lease, and such assignment or assignments shall not be deemed to be in violation of any of the terms of the FBO Lease. Provided however,if Master Trustee assigns the entirety of its interests in the leasehold mortgages of the Obligated Group, including the Leasehold Mortgage hereunder, as such interests are reflected in the Master Trust Indenture, County agrees that its consent shall not be required.No mortgagee or beneficiary, as such, shall -2- 301565183 3951 be deemed a FBO or transferee of the FBO Lease or of the leasehold estate so as to require such mortgagee or beneficiary,as such,to assume the performance of any of the terms, covenants,or conditions on the part of FBO to be performed under the FBO Lease. G. The County agrees that Master Trustee shall have the right, but not the obligation, to: (1) cure any default by FBO under the FBO Lease and Master Trustee shall be afforded(a) 60 days to cure any such default or(b)in the event that any such default cannot,with reasonable diligence,be cured within 60 days, such longer period as may be required to complete such cure including,without limitation, such time as may be required for Lender to gain possession of FBO's interest under the FBO Lease, provided that Master Trustee notifies County of its intention to cure such default and Master Trustee promptly commences and diligently pursues such cure to completion to cure any default,including a payment default, by FBO under the FBO Lease;and(11)exercise any extension options granted under the FBO Lease to FBO in accordance with the terms thereof. County further agrees that no exercise of any termination right by FBO under the FBO Lease, including under Section 22 of the FBO Lease shall be effective unless countersigned by Master Trustee. H. In the event of the foreclosure of the lien secured by any mortgage or deed of trust on the Leased Premises or other taking of possession of the Leased Premises by or on behalf of Master Trustee or its designee or by a purchaser in foreclosure, as the case may be, County agrees that delivery of a deed or assignment of the FBO Lease pursuant to foreclosure proceedings, or by deed or assignment in lieu of foreclosure or otherwise to Master Trustee or to any successors or assigns of Master Trustee (including, without limitation, any purchaser of the leasehold estate in and to the Leased Premises upon or following a foreclosure of the Leasehold Mortgage (or delivery of a deed or assignment of the FBO Lease in lieu of foreclosure)) shall not be subject to the prior written consent of County, and such party shall be considered the lessee under the FBO Lease for all purposes, the same as though such party were the original party to the FBO Lease, and shall be bound and obligated by all the provisions thereof. I. County hereby covenants and agrees that,in the event that the FBO Lease is terminated for any reason including, without limitation, as a result of a rejection of the FBO Lease in a bankruptcy proceeding, upon Master Trustee's request, County shall enter into a new lease with Master Trustee and such new lease shall be upon the same terms and conditions of the unexpired term of the FBO Lease immediately prior to such termination. J. County hereby covenants and agrees that Master Trustee shall be entitled to participate in any settlement regarding insurance or condemnation proceeds or awards, to collect and hold any such proceeds or awards and to determine and direct whether any such proceeds or awards are made available for the restoration of the Leased Premises or are applied to the repayment of the Bonds. K. County hereby consents to the Pledge Agreement and agrees that in the event Master Trustee or designee of either Master Trustee take ownership of the membership interests of Tenant such action shall not be deemed violation of the Lease. L. County hereby agrees that its security interests under Section 4 of the FBO Lease are subject and subordinate to the lien of the Leasehold Mortgage. M. The terms and conditions of the FBO Lease shall not be canceled,terminated, amended or modified in any respect whatsoever without FBO's, County's and Master Trustee's written consent thereto, and that any such action taken without such written consent shall not be binding on FBO, County or Master Trustee. -3- 301565183 3952 N. In the event that all or a portion of the Leased Premises is acquired by any governmental authority by condemnation or the exercise of any eminent domain power, FBO shall be entitled to seek compensation from such acquiring governmental authority for value of the leasehold interest of the FBO in the portion of the Leased Premises so acquired by such authority(but not the County's residual fee simple interest in the portion of the Leased Premises so acquired), together with the value of all improvements thereon, and all other compensation to which FBO may be entitled under applicable law(including,without limitation, the costs of repair,reconfiguration and restoration). In the event that the condemning authority shall acquire the entire Leased Premises,the FBO Lease shall terminate upon the date of acquisition of title by the condemning authority and FBO shall have no further obligations under the FBO Lease after the date of acquisition. In the event that the condemning authority shall acquire less than the entire Leased Premises then (1) in the event that FBO shall determine that it shall not be feasible to profitably operate FBO's business in the remaining portion of the Leased Premises,FBO may terminate this the FBO Lease by notice not later than ninety (90) days after the date of acquisition of title by the condemning authority and(n) in the event that the FBO Lease shall not have elected(or shall not have the right)to terminate the FBO Lease pursuant to the preceding clause (11), then the Lease shall terminate only with respect to the portion of the Leased Premises so taken and the rent payable by FBO shall be reduced on a pro rata basis (based on the square feet of the Leased Premises so taken relative to the overall Leased Premises prior to such taking). SECTION 2: COUNTY CONFIRMATIONS: (a) County is the owner and holder of the landlord's interest under the FBO Lease; (b) a true, correct and complete copy of the FBO Lease is attached hereto as Exhibit B; (c) the FBO Lease is in full force and effect and has not, except as specifically stated in Recitals to this Consent Agreement, been modified or amended and constitutes the entire agreement between the parties thereto with respect to the subject matter thereof, (d) the present tenant under the FBO Lease is FBO; (e) the expiration date of the Lease is April 5,2041, extendable to May 31,2055 upon satisfaction of specified conditions set forth in the FBO Lease; (f) subject, in each case, to the qualification statement set forth below, as of the date of this Consent Agreement, to County's actual knowledge, FBO is not in default under any of the terms, covenants or conditions of the FBO Lease on the part of FBO to be observed or performed,and to County's actual knowledge, no event has occurred which with the passage of time or the giving of notice, or both, would constitute a default by FBO under the FBO Lease; (g) neither County nor, to County's actual knowledge, FBO, has commenced any action or has given or received any notice for the purpose of terminating the FBO Lease; (h) the person signing this Agreement on behalf of County is a duly authorized representative of County; and (1) The monthly rent payable by FBO under the FBO Lease for the current calendar year is (1) $19,159.84 (inclusive of sales tax), subject to annual adjustment based on the consumer price index (other than the rent payable in respect of the parking spaces described on Exhibit C to the Third -4- 301565183 3953 Amendment described above). Rent in respect of the premises described on Exhibit A-2 to the above described Third Amendment does not commence until January 1, 2026. All rents, additional, rents and other sums due and payable under the FBO Lease have been paid in full through October 31,2024. County knows of no defenses, offsets, credits, claims or counterclaims to FBO's or County's obligations under the FBO Lease. There are no security deposits or prepaid rent or liens, except as set forth therein. SECTION 3: MISCELLANEOUS. A. All notices, demands, requests, consents, and approvals desired, necessary, required or permitted to be given pursuant to the terms of this Agreement and the Lease shall be in writing and shall be deemed to be have been properly given (i) upon actual delivery if delivery is by hand, (ii) on the third day following the date on which such notice is deposited, postage prepaid, in the United States mail, certified, return receipt requested, or (iii) on the next business day after being sent by a nationally recognized overnight courier service which provides proof of receipt. All notices shall be directed at the address indicated below, or to any other address as the parties may designate by notice delivered pursuant to this provision. Rejection or other refusal to accept or inability to deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice or request. TO COUNTY Marathon Airport Manager 9400 Overseas Highway, Suite 200 Marathon, FL33050 TO FBO: Coast FBO, LLC c/o REW Investments 7555 Ipswich Road Houston, TX 77061 Attention: Roger E. Woolsey TO BENEFICIARY: The Bank of New York Mellon Trust Company, N.A. Attention: B. This Consent Agreement may not be changed, modified, discharged or terminated except by a writing executed by FBO, Master Trustee and County,its successors or assigns, expressly so doing. C. This Agreement shall be binding on and inure to the benefit of Master Trustee, FBO, County and their respective successors and assigns. D. This Consent Agreement shall not be binding on any party hereto unless and until it has been executed by all parties hereto. This Consent Agreement may be executed in counterparts,which when taken together, shall constitute one instrument. -5- 301565183 3954 E. Except as specifically set forth in this Consent,in the event of a conflict between the terms of this Consent Agreement and the FBO Lease,the terms of this Consent Agreement shall prevail. . (Execution Page Follows) -6- 301565183 3955 IN WITNESS WHEREOF, the parties hereto have caused this Consent Agreement to be executed by their duly authorized officers, as of the date and year first written above. ATTEST: KEVIN MADOK, MONROE COUNTY BOARD CLERK OF MONROE COUNTY,FLORIDA OF COUNTY COMMISSIONERS By: By: As Deputy Clerk Mayor Holly Merill Raschein 301565183 3956 COAST FBO, LLC, a Florida limited liability company By: Name: Title: STATE OF: COUNTY OF: Subscribed and sworn to (or affirmed)before me,by means of❑physical presence or ❑ online notarization, on (date)by (name of affiant). He/She is personally known to me or has produced (type of identification) as identification. NOTARY PUBLIC 301565183 3957 THE BANK OF NEW YORK MELLON TRUST COMPANY,N.A., a national banking association, as Master Trustee By: Name: Title: STATE OF: COUNTY OF: Subscribed and sworn to (or affirmed)before me,by means of❑physical presence or ❑ online notarization, on (date)by (name of affiant). He/She is personally known to me or has produced (type of identification) as identification. NOTARY PUBLIC 301565183 3958 EXHIBIT A DESCRIPTION OF PREMISES COAST FBO PREMISES A portion of land located at Marathon Airport, and being a part of Section 1, Township 66 South, Range 32 East, Key Vaca, Monroe County, Florida and being more particularly described as follows: Leeal Description to be inserted for: (1) 375,000 square foot parcel(as described on Exhibit A-I to Third Amendment) and (11) Adjacent Land (as described on Exhibit A-2 to Third Amendment) and 62 parking spaces (as described on Exhibit C to the Third Amendment). A-I 301565183 3959 EXHIBIT B LEASE (To be omitted from counterpart submitted for recording) B-1 301565183 3960 CONSENT,NONDISTURBANCE AND ATTORNMENT AGREEMENT This CONSENT, NONDISTURANCE AND ATTORNMENT AGREEMENT (this "Consent Agreement") is made this _ day of 2024, by and between MONROE COUNTY, a political subdivision of the State of Florida("County'), MARATHON AVIATION ASSOCIATES, LLC, a Florida limited liability company(together with its successors and assigns, FBO") and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association (together with its successors and assigns, "Master Trustee"), as Master Trustee under the Master Indenture (defined below). WITNESSETH WHEREAS, County owns and operates Florida Keys Marathon International Airport located in Marathon, Florida(the `Airport"); WHEREAS, pursuant to that certain Marathon Fixed Base Operator (FBO) Agreement, dated [November 4][October 21]i, 2020, as amended by that certain First Amendment, dated July 21, 2021 and by Second Amendment, dated December 13, 2023 (collectively, the FBO Lease"), FBO leases (1) a 250,800 square foot parcel (described on Exhibit A to the aforesaid Second Amendment), (11) 151,006 square foot parcel (described on Exhibit B to the aforesaid Second Amendment) and (111) a 50,000 square foot parcel (described on Exhibit C to the aforesaid Second Amendment) at the Airport from the County, as more fully described on Exhibit A hereto ("Leased Premises"); WHEREAS, FBO and a group of entities affiliated with FBO (the "Obligated Group") which as of the date hereof consist of Coast FBO, LLC, Austin FBO, LLC and Million Air Three LLC ("Parent") have heretofore entered into a Master Trust Indenture dated as of[ ] 1,2024(as the same may be further amended and supplemented from time to time,the "Master Indenture")with Master Trustee and the Obligated Group pursuant to which the Obligated Group has secured certain indebtedness issued on behalf of the Obligated Group; WHEREAS, FBO is part of the Obligated Group in connection with the issuance of the (1) Public Finance Authority Special Facilities Revenue Bonds (Million Air Three LLC General Aviation Facilities Project)), Series 2024A (Tax-Exempt-AMT) and (11) Public Finance Authority Special Facilities Revenue Bonds (Million Air Three LLC General Aviation Facilities Project)), Series 2024B (Taxable) (the `Bonds"), a portion of the proceeds of which will be loaned to FBO to finance or refinance certain improvements made by FBO to the Leased Premises at the Airport and a portion of the proceeds of which will be loaned to certain other members of the Obligated Group to finance certain projects at the Airport or other airports and refinance indebtedness incurred in connection with certain projects at such airports (the `Bond Financing"); WHEREAS,in connection with the Bond Financing,FBO desires to encumber its leasehold interest in the FBO Lease by granting to Master Trustee a leasehold mortgage and such other security interests required or permitted to secure the obligations of FBO and the joint and several obligations of the Obligated Group under the Master Indenture (together with the Bond Financing, the `Financing"); WHEREAS, as additional security for the Financing,Parent has pledged its equity interests in FBO to Master Trustee pursuant to the certain Pledge Agreement, dated as of[ _] 2024 by Parent in favor of Master Trustee (the "Pledge Agreement"); and 'First and Second Amendments are inconsistent about this date. 301557129 3961 WHEREAS, FBO has requested that County enter into this Consent Agreement with FBO concerning the Financing. NOW,THEREFORE,in consideration of the premises and mutual covenants hereinafter contained, the parties below,intending to be legally bound,hereto mutually covenant and agree as follows: SECTION 1: CONSENT. A. County hereby expressly consents to the Financing and that FBO's executing, delivery, and recording of that certain Leasehold Mortgage, Security Agreement,Fixture Filing,Financing Statement and Assignment of Leases an Rents, dated as of[ 1, 2024 (as the same may be modified, amended, restated or supplemented time to time, the "Leasehold Mortgage"),as well as any and all financing statements or other documents required or permitted under the Uniform Commercial Code of the State of Florida. County hereby consents, subject to the following terms and conditions,to the assignment and mortgage of FBO's leasehold interest in and under the FBO Lease pursuant to the Leasehold Mortgage to secure the obligations of FBO and the Obligated Group in connection with the Financing, and to the recording of such documents required or permitted to perfect a security interest in FBO's leasehold interest in and under the FBO Lease. B. The Financing shall not operate to release or discharge FBO from any liability arising under the terms, conditions and covenants of the FBO Lease. C. It is agreed that: (1)County shall receive notice from Master Trustee of any default by FBO under the Master Indenture at the same time as FBO receives notice thereof, and(11)provided that Master Trustee provides the County with a written statement containing its name and address,Master Trustee shall receive notice from the County of any default by FBO under the FBO Lease at the same time as FBO receives notice thereof, and that no notice of default given to FBO, and no exercise of any remedy by County as a result of any such default, shall be effective unless such notice shall have been delivered to Master Trustee. D. The Financing shall be a lien on FBO's leasehold estate only,and shall not otherwise affect the fee title of the County, and the interest of the lienholder shall be subject to rights and remedies of the County under the FBO Lease; provided, however, that County hereby acknowledges and agrees that any mortgage now or hereafter encumbering County's fee interest or County's leasehold interest(if any)in and to the Leased Premises shall be subject and subordinate in all respects to the FBO Lease and to any mortgage of FBO's leasehold under the FBO Lease. E. In the event of partial or total destruction of the Leased Premises, or at a time when FBO shall be obligated under the FBO Lease to repair or reconstruct the Leased Premises, and FBO shall fail either to do so or to commence to do so as required, Master Trustee is hereby authorized to repair or reconstruct, at its sole election, the improvements located on the Leased Premises in compliance with the FBO Lease in order to prevent a forfeiture thereof by reason of the breach or default by FBO of any of the terms, conditions or covenants of the FBO Lease in that respect. In such event, Master Trustee shall be subrogated to all the rights of FBO under the FBO Lease to the insurance proceeds collected upon the Leased Premises, and shall be entitled to have said insurance proceeds paid out on such repair or reconstruction upon its own certification in the same manner in every respect as if Master Trustee were FBO. F. The Financing shall be assignable to any commercial lending institution that receives the prior written consent of the County in accordance with the terms of the FBO Lease, and such assignment or assignments shall not be deemed to be in violation of any of the terms of the FBO Lease. Provided -2- 301557129 3962 however,if Master Trustee assigns the entirety of its interests in the leasehold mortgages of the Obligated Group, including the Leasehold Mortgage hereunder, as such interests are reflected in the Master Trust Indenture, County agrees that its consent shall not be required.No mortgagee or beneficiary, as such, shall be deemed a FBO or transferee of the FBO Lease or of the leasehold estate so as to require such mortgagee or beneficiary,as such,to assume the performance of any of the terms, covenants,or conditions on the part of FBO to be performed under the FBO Lease. G. The County agrees that Master Trustee shall have the right, but not the obligation, to: (1) cure any default by FBO under the FBO Lease and Master Trustee shall be afforded(a) 60 days to cure any such default or(b)in the event that any such default cannot,with reasonable diligence,be cured within 60 days, such longer period as may be required to complete such cure including,without limitation, such time as may be required for Lender to gain possession of FBO's interest under the FBO Lease, provided that Master Trustee notifies County of its intention to cure such default and Master Trustee promptly commences and diligently pursues such cure to completion to cure any default,including a payment default, by FBO under the FBO Lease;and(11)exercise any extension options granted under the FBO Lease to FBO in accordance with the terms thereof. County further agrees that no exercise of any termination right by FBO under the FBO Lease, including under Section 22 of the FBO Lease shall be effective unless countersigned by Master Trustee. H. In the event of the foreclosure of the lien secured by any mortgage or deed of trust on the Leased Premises or other taking of possession of the Leased Premises by or on behalf of Master Trustee or its designee or by a purchaser in foreclosure, as the case may be, County agrees that delivery of a deed or assignment of the FBO Lease pursuant to foreclosure proceedings, or by deed or assignment in lieu of foreclosure or otherwise to Master Trustee or to any successors or assigns of Master Trustee (including, without limitation, any purchaser of the leasehold estate in and to the Leased Premises upon or following a foreclosure of the Leasehold Mortgage (or delivery of a deed or assignment of the FBO Lease in lieu of foreclosure)) shall not be subject to the prior written consent of County, and such party shall be considered the lessee under the FBO Lease for all purposes, the same as though such party were the original party to the FBO Lease, and shall be bound and obligated by all the provisions thereof. I. County hereby covenants and agrees that,in the event that the FBO Lease is terminated for any reason including, without limitation, as a result of a rejection of the FBO Lease in a bankruptcy proceeding, upon Master Trustee's request, County shall enter into a new lease with Master Trustee and such new lease shall be upon the same terms and conditions of the unexpired term of the FBO Lease immediately prior to such termination. J. County hereby covenants and agrees that Master Trustee shall be entitled to participate in any settlement regarding insurance or condemnation proceeds or awards, to collect and hold any such proceeds or awards and to determine and direct whether any such proceeds or awards are made available for the restoration of the Leased Premises or are applied to the repayment of the Bonds. K. County hereby consents to the Pledge Agreement and agrees that in the event Master Trustee or designee of either Master Trustee take ownership of the membership interests of Tenant such action shall not be deemed violation of the Lease. L. County hereby agrees that its security interests under Section 4 of the FBO Lease are subject and subordinate to the lien of the Leasehold Mortgage. M. The terms and conditions of the FBO Lease shall not be canceled,terminated, amended or modified in any respect whatsoever without FBO's, County's and Master Trustee's written consent thereto, -3- 301557129 3963 and that any such action taken without such written consent shall not be binding on FBO, County or Master Trustee. N. In the event that all or a portion of the Leased Premises is acquired by any governmental authority by condemnation or the exercise of any eminent domain power, FBO shall be entitled to seek compensation from such acquiring governmental authority for value of the leasehold interest of the FBO in the portion of the Leased Premises so acquired by such authority(but not the County's residual fee simple interest in the portion of the Leased Premises so acquired), together with the value of all improvements thereon, and all other compensation to which FBO may be entitled under applicable law(including,without limitation, the costs of repair,reconfiguration and restoration). In the event that the condemning authority shall acquire the entire Leased Premises,the FBO Lease shall terminate upon the date of acquisition of title by the condemning authority and FBO shall have no further obligations under the FBO Lease after the date of acquisition. In the event that the condemning authority shall acquire less than the entire Leased Premises then (1) in the event that FBO shall determine that it shall not be feasible to profitably operate FBO's business in the remaining portion of the Leased Premises,FBO may terminate this the FBO Lease by notice not later than ninety (90) days after the date of acquisition of title by the condemning authority and(n) in the event that the FBO Lease shall not have elected(or shall not have the right)to terminate the FBO Lease pursuant to the preceding clause (11), then the Lease shall terminate only with respect to the portion of the Leased Premises so taken and the rent payable by FBO shall be reduced on a pro rata basis (based on the square feet of the Leased Premises so taken relative to the overall Leased Premises prior to such taking). SECTION 2: COUNTY CONFIRMATIONS: (a) County is the owner and holder of the landlord's interest under the FBO Lease; (b) a true, correct and complete copy of the FBO Lease is attached hereto as Exhibit B; (c) the FBO Lease is in full force and effect and has not, except as specifically stated in Recitals to this Consent Agreement, been modified or amended and constitutes the entire agreement between the parties thereto with respect to the subject matter thereof, (d) the present tenant under the FBO Lease is FBO; (e) the expiration date of the Lease is June 30, 2046, extendable to October 31, 2054 upon satisfaction of specified conditions set forth in the FBO Lease; (f) subject, in each case, to the qualification statement set forth below, as of the date of this Consent Agreement, to County's actual knowledge, FBO is not in default under any of the terms, covenants or conditions of the FBO Lease on the part of FBO to be observed or performed,and to County's actual knowledge, no event has occurred which with the passage of time or the giving of notice, or both, would constitute a default by FBO under the FBO Lease; (g) neither County nor, to County's actual knowledge, FBO, has commenced any action or has given or received any notice for the purpose of terminating the FBO Lease; (h) the person signing this Agreement on behalf of County is a duly authorized representative of County; and -4- 301557129 3964 (1) The monthly rent payable by FBO under the FBO Lease for the current calendar year is (1) $10,298.84 (inclusive of sales tax), subject to annual adjustment based on the consumer price index.Rent for the premises described on Exhibit C to the Second Amendment described above has not yet commenced. All rents, additional,rents and other sums due and payable under the FBO Lease have been paid in full through October 31, 2024. County knows of no defenses, offsets, credits, claims or counterclaims to FBO's or County's obligations under the FBO Lease. There are no security deposits or prepaid rent or liens, except as set forth therein. SECTION 3: MISCELLANEOUS. A. All notices, demands, requests, consents, and approvals desired, necessary, required or permitted to be given pursuant to the terms of this Agreement and the Lease shall be in writing and shall be deemed to be have been properly given (i) upon actual delivery if delivery is by hand, (ii) on the third day following the date on which such notice is deposited, postage prepaid, in the United States mail, certified, return receipt requested, or (iii) on the next business day after being sent by a nationally recognized overnight courier service which provides proof of receipt. All notices shall be directed at the address indicated below, or to any other address as the parties may designate by notice delivered pursuant to this provision. Rejection or other refusal to accept or inability to deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice or request. TO COUNTY Marathon Airport Manager 9400 Overseas Highway, Suite 200 Marathon, FL33050 TO FBO: Marathon Aviation Associates, LLC c/o REW Investments 7555 Ipswich Road Houston, TX 77061 Attention: Roger E. Woolsey TO BENEFICIARY: The Bank of New York Mellon Trust Company, N.A. Attention: B. This Consent Agreement may not be changed, modified, discharged or terminated except by a writing executed by FBO, Master Trustee and County,its successors or assigns, expressly so doing. C. This Agreement shall be binding on and inure to the benefit of Master Trustee, FBO, County and their respective successors and assigns. -5- 301557129 3965 D. This Consent Agreement shall not be binding on any party hereto unless and until it has been executed by all parties hereto. This Consent Agreement may be executed in counterparts,which when taken together, shall constitute one instrument. E. Except as specifically set forth in this Consent,in the event of a conflict between the terms of this Consent Agreement and the FBO Lease,the terms of this Consent Agreement shall prevail. . (Execution Page Follows) -6- 301557129 3966 IN WITNESS WHEREOF, the parties hereto have caused this Consent Agreement to be executed by their duly authorized officers, as of the date and year first written above. ATTEST: KEVIN MADOK, MONROE COUNTY BOARD CLERK OF MONROE COUNTY,FLORIDA OF COUNTY COMMISSIONERS By: By: As Deputy Clerk Mayor Holly Merill Raschein 301557129 3967 MARATHON AVIATION ASSOCIATES, LLC, a Florida limited liability company By: Name: Title: STATE OF: COUNTY OF: Subscribed and sworn to (or affirmed)before me,by means of❑physical presence or ❑ online notarization, on (date)by (name of affiant). He/She is personally known to me or has produced (type of identification) as identification. NOTARY PUBLIC 301557129 3968 THE BANK OF NEW YORK MELLON TRUST COMPANY,N.A., a national banking association, as Master Trustee By: Name: Title: STATE OF: COUNTY OF: Subscribed and sworn to (or affirmed)before me,by means of❑physical presence or ❑ online notarization, on (date)by (name of affiant). He/She is personally known to me or has produced (type of identification) as identification. NOTARY PUBLIC 301557129 3969 EXHIBIT A DESCRIPTION OF PREMISES A portion of land located at Marathon Airport. and being a part of Section 1, Township 66 South, Range 32 East, Key Vaco, Monroe County, Florida and being more particularly described as follows: Leeal Description to be inserted for: (1)250,800 square foot parcel(as described on Exhibit A to Second Amendment) and (11) 151,006 square foot parcel (as described on Exhibit B to Second Amendment) and (111) 50,000 square foot parcel (as described on Exhibit C to the Second Amendment) A-I 301557129 3970 EXHIBIT B LEASE (To be omitted from counterpart submitted for recording) B-1 301557129 3971 Liz Yongue From: Gomez-Krystal <Gomez-Krystal@MonroeCounty-FL.Gov> Sent: Friday, November 15, 2024 9:37 AM To: Ballard-Lindsey; County Commissioners and Aides; Kevin Madok; Pamela Hancock; Senior Management Team and Aides; Liz Yongue; InternalAudit Cc: Shillinger-Bob; Williams-Jethon; Cioffari-Cheryl; Livengood-Kristen; Rubio-Suzanne; Pam Radloff; County-Attorney; Allen-John; Danise Henriquez; Hurley-Christine; Rosch- Mark; Gambuzza-Dina; Beyers-John; InternalAudit; Kevin Madok; Valcheva-Svilena; Powell-Barbara; Guerra-Cynthia Subject: Item K5 BOCC 11/19/2024 REVISED BACKUP & REVISED ITEM BACKGROUND WORDING Attachments: AIS K5 3289.pdf, MEMORANDUM OF LEASE (Marathon FL - Coast FBO)-301731322- v3.pdf, MEMORANDUM OF LEASE (Marathon FL -MAA)-30156921 1-v7.pdf Good Morning, Please be advised that the agenda item backup has been revised for item K5. "Approval and authorization for the Mayor to execute the Memorandum ofLease for Marathon Aviation Associates and the Memorandum ofLease for Coast FBO to be held in escrow by the County Attorneys Office pending the final review, editing and approval by the County Attorney or his designee of the documents. " Sincerely, Executive Administrator Monroe County Administrator's Office 1100 Simonton Street, Suite 2-205 Key West, FL 33040 (305)292-4441 (Office) (305)850-8694(Cell) Courier Stop#1 Notary Public w.r o n r y e c_ u�n1y:�:V_e.gpy i».c z..- Y .�.. _rn groecou�_n�.Y..-.�..:.i» .Y. PLEASE NOTE: FLORIDA HAS A VERY BROAD RECORDS LAW. MOST WRITTEN COMMUNICATIONS TO OR FROM THE COUNTY REGARDING COUNTY BUSINESS ARE PUBLIC RECORDS AVAILABLE TO THE PUBLIC AND MEDIA UPON REQUEST. YOUR EMAIL COMMUNICATION MAY BE SUBJECT TO PUBLIC DISCLOSURE. 1 K5 BOARD OF COUNTY COMMISSIONERS COUNTY of MONROE i Mayor Holly Merrill Raschein,District 5 The Florida Keys Mayor Pro Tern James K.Scholl,District 3 Craig Cates,District 1 Michelle Lincoln,District 2 ' David Rice,District 4 Board of County Commissioners Meeting November 19, 2024 Agenda Item Number: K5 2023-3289 BULK ITEM: Yes DEPARTMENT: Airports TIME APPROXIMATE: STAFF CONTACT: Richard Strickland N/A AGENDA ITEM WORDING: Approval and authorization for the Mayor to execute the Memorandum of Lease for Marathon Aviation Associates and the Memorandum of Lease for Coast FBO to be held in escrow by the County Attorneys Office pending the final review, editing and approval by the County Attorney or his designee of the documents. ITEM BACKGROUND: The MTH FBO's will be issuing tax exempt facility bonds for airports pursuant to section 142(a)(1) of the Internal Revenue Code of 1986, as amended and Section 66.0304 of the Wisconsin Statutes, as amended. The proceeds from the sale of the MTH FBO Bonds will be loaned to Marathon Aviation Associates LLC , a Florida limited liability company(the"Borrower"), and will be used to (a) finance the acquisition, construction and/or equipping of certain fixed base operator airport facilities (the "Facilities;"), (b)pay the portion of the issuance costs of the Bonds which is allocable to the MTH FBO Bonds, (d)pay capitalized interest with respect to the MTH FBO Bonds and(d) fund the portion of the debt service reserve fund for the Bonds which is allocable to the MTH FBO Bonds (collectively, the "Project"). The Facilities will operated by the Borrower in its business of providing services to general aviation aircraft operators. The Facilities will be located in part on a 5.75-acre site with a street address of 8800 Overseas Highway (US Route 1), Marathon, Florida and in remaining part on a 8.61-acre site with a street address of 9850 Overseas Highway, Marathon, Florida. All of Facilities will be located at the Airport, which has street address of 9400 Overseas Highway in the City of Marathon, Monroe County, Florida and which occupies a 197 acre site along Overseas Highway between 72nd Street and 106th Street. The purpose for the memorandums is to place third parties on notice of the lease between the County and Marathon Aviation Associates and the County and Coast FBO, the 2 FBO's. PREVIOUS RELEVANT BOCC ACTION: Held a TEFRA hearing on July 17, 2024 for the purpose of receiving comments and hearing discussion concerning the proposed issuance of NTE $40,000,000.00 in aggregate principal amount by the Public 1 Finance Authority, a joint powers commission created under Sections 66.0301, 66.0303 and 66.0304 of the Wisconsin Statutes. INSURANCE REQUIRED: No CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATION: Approval. DOCUMENTATION: MEMORANDUM OF LEASE (Marathon FL - Coast FBO)-301731322-v3.pdf MEMORANDUM OF LEASE (Marathon FL -MAA)-30156921 I-v7.pdf FINANCIAL IMPACT: N/A 2 PREPARED BY AND AFTER RECORDING RETURN TO: Katten Muchin Rosenman LLP 50 Rockefeller Plaza New York, NY 10020 Attn: Michael S. McBride, Esq. This space reserved or Recorder's use only. MEMORANDUM OF LEASE THIS MEMORANDUM OF LEASE(this "Memorandum"), dated as of the day of , 2024 ("Effective Date") is made by and between the COUNTY OF MONROE, a political subdivision of the State of Florida ("County") and COAST FBO, LLC, a Florida limited liability company ("FBO"). RECITALS A. Pursuant to that certain unrecorded Marathon Fixed Base Operator (FBO) Agreement of Lease, dated as of July 19, 2016, between County and FBO, as amended by that certain First Amendment, dated December 19, 2018 and further amended by that certain Second Amendment, dated as of July 21, 2021 and further amended by that certain Third Amendment, dated as of December 13, 2023 (as so amended, and as the same may be further amended and modified the "Lease"), Landlord has agreed to lease to Tenant, and Tenant has agreed to lease from Landlord, the land more particularly described on Exhibit A (the "Land""), together with all buildings and improvements now or hereafter located thereon, as more particularly set forth in the Lease (together with Land, the "Premises"). B. County and FBO desire to provide notice to third parties that the Premises is subject to the Lease and Tenant's rights thereunder. NOW, THEREFORE, for and in consideration of the rents reserved and the covenants and conditions set forth in the Lease, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, County and FBO do hereby agree as follows: 1. Definitions. Capitalized terms used herein which are not otherwise defined herein shall have the respective meanings ascribed to them in the Lease. 301731322 2. Lease of the Premises. County leases to FBO, and FBO leases from Landlord,the Premises for the term and upon the terms, covenants and conditions contained in the Lease. 3. Term of Lease. The term of the Lease commenced on July 19, 2016 and terminates on April 5, 2041, unless FBO qualifies for an extension to May 31, 2055 pursuant to Section 5(b) of the Lease as such term is more particularly described in the Lease, unless sooner terminated in accordance with the terms of the Lease. 4. Purpose. The parties acknowledge that this Memorandum does not contain all of the terms, covenants or provisions of the Lease but is only intended to provide notice by virtue of being recorded with the Clerk of the Circuit Court of Monroe County,Florida. The Lease shall control and govern with respect to any conflict between the terms or provisions herein set forth and those in the Lease. 5. Binding Effect. The terms and provisions of this Memorandum shall be binding upon and shall inure to the benefit of the respective successors and assigns of County and FBO. 6. Counterparts. This Memorandum may be executed in any number of counterparts, each of which shall be deemed an original,but all of which when taken together shall constitute one and the same instrument. [SIGNATURES ON FOLLOWING PAGE] 2 301731322 IN WITNESS WHEREOF, the parties have hereunto set their hands under seal on the day and year first above written. ATTEST: KEVIN MADOK, MONROE COUNTY BOARD CLERK OF MONROE COUNTY, FLORIDA OF COUNTY COMMISSIONERS By: By: As Deputy Clerk Mayor 3 301731322 FBO: COAST FBO, LLC, a Florida limited liability company By: Name: Title: STATE OF: COUNTY OF: Subscribed and sworn to (or affirmed)before me, by means of❑ physical presence or ❑ online notarization, on (date)by (name of affiant). He/She is personally known to me or has produced (type of identification) as identification. NOTARY PUBLIC 301731322 Exhibit A Premises COAST FBO PREMISES A portion of land located at Marathon Airport, and being a part of Section 1, Township 66 South, Range 32 East, Key Vaca, Monroe County, Florida and being more particularly described as follows: Legal Description to be inserted for: (i) 375,000 square foot parcel (as described on Exhibit A- 1 to Third Amendment)and(ii)Adjacent Land(as described on Exhibit A-2 to Third Amendment) and 62 parking spaces (as described on Exhibit C to the Third Amendment). 5 301731322 PREPARED BY AND AFTER RECORDING RETURN TO: Katten Muchin Rosenman LLP 50 Rockefeller Plaza New York, NY 10020 Attn: Michael S. McBride, Esq. This space reserved or Recorder's use only. MEMORANDUM OF LEASE THIS MEMORANDUM OF LEASE(this "Memorandum"), dated as of the day of , 2024 ("Effective Date") is made by and between the COUNTY OF MONROE, a political subdivision of the State of Florida ("County") and MARATHON AVIATION ASSOCIATES, LLC, a Florida limited liability company ("FBO"). RECITALS A. Pursuant to that certain unrecorded Marathon Fixed Base Operator (FBO) Agreement of Lease, dated as of November 1, 2020, between County and FBO, as amended by that certain First Amendment, dated July 21, 2021 and further amended by that certain Second Amendment, dated as of December 13, 2023 (as so amended, and as the same may be further amended and modified the "Lease"), Landlord has agreed to lease to Tenant, and Tenant has agreed to lease from Landlord, the land more particularly described on Exhibit A (the "Land""), together with all buildings and improvements now or hereafter located thereon, as more particularly set forth in the Lease (together with Land, the "Premises"). B. County and FBO desire to provide notice to third parties that the Premises is subject to the Lease and Tenant's rights thereunder. NOW, THEREFORE, for and in consideration of the rents reserved and the covenants and conditions set forth in the Lease, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, County and FBO do hereby agree as follows: 1. Definitions. Capitalized terms used herein which are not otherwise defined herein shall have the respective meanings ascribed to them in the Lease. 301569211 2. Lease of the Premises. County leases to FBO, and FBO leases from Landlord,the Premises for the term and upon the terms, covenants and conditions contained in the Lease. 3. Term of Lease. The term of the Lease commenced on November 1, 2020 terminates on June 30 2046, unless FBO qualifies for an extension to October 31, 2054 pursuant to Section 5(b) of the Lease as such term is more particularly described in the Lease,unless sooner terminated in accordance with the terms of the Lease. 4. Purpose. The parties acknowledge that this Memorandum does not contain all of the terms, covenants or provisions of the Lease but is only intended to provide notice by virtue of being recorded with the Clerk of the Circuit Court of Monroe County,Florida. The Lease shall control and govern with respect to any conflict between the terms or provisions herein set forth and those in the Lease. 5. Binding Effect. The terms and provisions of this Memorandum shall be binding upon and shall inure to the benefit of the respective successors and assigns of County and FBO. 6. Counterparts. This Memorandum may be executed in any number of counterparts, each of which shall be deemed an original,but all of which when taken together shall constitute one and the same instrument. [SIGNATURES ON FOLLOWING PAGE] 2 IN WITNESS WHEREOF, the parties have hereunto set their hands under seal on the day and year first above written. ATTEST: KEVIN MADOK, MONROE COUNTY BOARD CLERK OF MONROE COUNTY, FLORIDA OF COUNTY COMMISSIONERS By: By: As Deputy Clerk Mayor 3 FBO: MARATHON AVIATION ASSOCIATES, LLC COAST FBO, LLC, a Florida limited liability company By: Name: Title: STATE OF: COUNTY OF: Subscribed and sworn to (or affirmed)before me, by means of❑ physical presence or ❑ online notarization, on (date)by (name of affiant). He/She is personally known to me or has produced (type of identification) as identification. NOTARY PUBLIC 301569211 Exhibit A Premises MARATHON AVAITION ASSOCIATES PREMISES A portion of land located at Marathon Airport. and being a part of Section 1, Township 66 South, Range 32 East, Key Vaco, Monroe County, Florida and being more particularly described as follows: Legal Description to be inserted for: (i) 250,800 square foot parcel (as described on Exhibit A to Second Amendment) and (ii) 151,006 square foot parcel (as described on Exhibit B to Second Amendment) and (iii) 50,000 square foot parcel (as described on Exhibit C to the Second Amendment) 5