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Home My WebLink About6. 12/05/2024 Consent, NonDisturbance and Attornment Agreement GVS COURTq° o: A Kevin Madok, CPA - �o ........ � Clerk of the Circuit Court& Comptroller Monroe County, Florida �z cooN DATE: December 20, 2024 TO: Pedro Mercado, Assistant County Attorney Abra Campo, Contract Administrator FROM: Liz Yongue, Deputy Clerk SUBJECT: November 19, 2024 BOCC Meeting The below item has been executed and added to the Official Record: K5 Memorandum of Lease for Marathon Aviation Associates and the Memorandum of Lease for Coast FBO to be held in escrow by the County Attorney's Office pending the final review, editing and approval by the County Attorney or his designee of the documents. K6 Consent, Non-disturbance and Attornment Agreement for Coast FBO and the Consent, Non-disturbance and Attornment Agreement for Marathon Aviation Associates to be held in escrow by the County Attorney's Office pending the final review, editing and approval by the County Attorney or his designee of the documents. Should you have any questions please feel free to contact me at(305) 292-3550. cc: Finance File KEY WEST MARATHON PLANTATION KEY 500 Whitehead Street 3117 Overseas Highway 88770 Overseas Highway Key West, Florida 33040 Marathon, Florida 33050 Plantation Key, Florida 33070 noc#2-483193 Bk#3303 Pg#976 Electronically Recorded 12/11/2024 at 9:54 AM Pages 14 Filed and Recorded in Official Records of MONROE COUNTY KEVIN MADOK ElectronicallyREC: $120.50 Prepared By and When Recorded Return to: Katten Muchin Rosenman LLP 50 Rockefeller Plaza New York,New York 10020 Attention:Michael S.McBride,Esq.- CONSENT,NONDISTURBANCE AND ATTORNMENT AGREEMENT This CONSENT NDISTURANCE AND ATTORNMENT AGREEMENT (this "Consent between MONROE COUNTY, a political b and b Agreement's is made this day of December, 2024, y 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). I WITNESSETH WHEREAS, County owns and operates Florida Keys Marathon International Airport located in Marathon,Florida(the "Airport"); WI1EREAS,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 (i) a 375,000 square foot parcel (described on Exhibit A-1 to the aforesaid Third Amendment),(ii)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("AMA"),Austin FBO,LLC and Million Air Three LLC("Parent"),have heretofore entered into a Master Trust Indenture dated as of December 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; i WHEREAS,FBO is part of the Obligated Group in connection with the issuance of the(i)Public Finance Authority Special Facilities Revenue Bonds(Million Air Three LLC General Aviation Facilities Project)), Series 2024A (Tax-Exempt-AMT), (ii) Public Finance Authority Special Facilities Revenue Bonds (Million Air Three LLC General Aviation Facilities Project)), Series 2024B (Taxable) and (iii) Public Finance Authority Special Facilities Revenue Bonds (Million Air Three LLC General Aviation Facilities Project)),Series 2024C(Taxable)(the `Bonds"),a portion ofthe 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 Iin 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"); 301565193 Dqc.#2483193,Page Number: 2 of 14 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 December ,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. 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 December 2024 by FBO and MAA in favor of Master Trustee (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. i ' 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:(i)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(ii)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,but shall not be obligated,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 ofthe 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. -2- 301565183 Doe.#203193 Page Number:3 of 14 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 leasebold 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. i G. - The County agrees that Master Trustee shall have the right,but not the obligation,to: (i) 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 FRO 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(ii)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 j 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. . � 1. 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. i _ 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. -3- 7 301565183 Doc.#24$3193,Page Number: 4 of 14 M. The terms and conditions of the FBO Lease shall not be canceled,terminated,amended or i 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. 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 oftitle 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 (i) 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(ii)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(ii),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 I square feet of the Leased Premises so taken relative to the overall Leased Premises prior to such taking). i r• 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 6 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; ' ;y (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, ;j 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; -4- ;i 301565183 Dpe.#2483193,Page Number: 5 of 14 (h) the person signing this Agreement on behalf of County is a duly authorized representative.of County;and (i) The monthly rent payable by FBO under the FBO Lease for the current calendar j year is(i) $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 j 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. i 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 I 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 'I deemed to be receipt of the notice or request. TO COUNTY Marathon Airport Manager 9400 Overseas Highway, Suite 200 j 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. 601 Travis Street,Floor 16 Houston,Texas 77002 Attention: Corporate Trust—Million Air Three LLC Special Facility Revenue Bonds 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- 301565183 i Dpe.#2483193,Page Number: 6 of 14 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. . i (Execution Page Follows) i ;j i E f I I -6- 301565183 Doc.#24$3193 Page Number: 7 of 14 1N WITNESS W HEREOF the parties hereto have caused this Consent Agreement to be executed by their duty authorized officers,as of the date and year first written above. MADOK, MONROE COUNTY BOARD v�= ONROE COUNTY,FLORIDA OF COUNTY COMMISSIONERS 'f as ! t► fL G � �'.. C�' I pulp Clerkn� By. ayor lames"Sch--f �.. ROE COUNTY AT UhNty C ED i srMT Zy I Data, ;1 I' II I C I it i i i - I i i I I i i i i `s 301565183 Doc.#24$3193 Page Number:8 of 14 a 1j i COAST F$O,LLC,a Florida limited liability company ' r By:REW Investments,Inc.,its Manager _ By.Name' r E.Woolsey Title:President and Chief Executive Officer I j i' i i STATE OF TEXAS i COUNTY OF HARRIS Subscribed and sworn to (or affirmed) before me, by means of physical presence or ❑ online notarization,on Novembe;'&2024(date)by Roger E.Woolsey(name of affiant),as President and Chief Executive Officer of REW Investments,.Inc.,a Texas corporation,for Coast FBO,LLC,a Florida limited liability company. He is personally known to me or ❑ _ has produced (type of identification)as identification. L.AURA WILLIAMS MY COMMISSION EXPIRES ` O7/2212025 e NOTARY ID:1253659M -----T- - TARY PUBLIC 1 j 301565183 I 1 I Doe.#2483193 Page Number:9 of 14 . 1 THE BANK OF NEW YORK M ELLON TRUST COMPANY,N.A.,anational banking association,as Master Trustee Name:Mary Jo VWgener Title: \ceWPresident STATE OF Texas COUNTY OF Harris Subscribed and sworn to (or affirmed) before me, by means'of `d physical presence or ❑ online notarization, on December 4 2024(date) by MaryJo Wagener (name of affiant), as vine President (title)for The Bank of New York Mel Ion Trust Company,N.A.,a national banking association. f'She Fq is personally known to me or ❑ has produced _._ �...� (type ) of iderrtification asidentificEtion. Got',V) Name: NOTARY PUBLIC i Colin H Latimer j My Commisaien Expires I r,30/2028 Notary ID136016122 i i l 3015B5183 Dpe.#2483193, Page Number: 10 of 14 Exhibit A COAST FBO LEASE PREMISES 1 a i t ' II �I yl I i ?I 1 302121744 �1 Dpc.#2483193 Page Number: 11 of 14 - i 1 LEASE AREA-"C"(COAST FBO, LLC) Il i A parcel of land lying within Section 1,Township 66 South, Range 32 East,Key Vac a(Marathon),Monroe County,Florida, being more particularly described as follows: i COMMENCING at the Southwest corner of Lot One(1)of SCHMITT SUBDIVISION,according to the Plat thereof,as recorded in Plat Book 1, page 151 of the Public Records of Monroe County,State of Florida, thence N67°19'49"E along the Southerly boundary line of said Lot One(1)and the Northeasterly extension thereof,the said Southerly boundary line and Northeasterly extension thereof also being the Northerly Right-Of-Way line of Old State Road 4A,for a distance of 5,493.13 feet to a point;thence N22040'11"W and leaving said Northerly Right-Of-Way line of Old State Road 4A,for a distance of 56.62 feet to a point,said point being the Point of Beginning of the parcel of land hereinafter described; thence N22"40'11"W for a distance of 156.40 feet to a point;thence N67"19'49"E for a distance of 150.60 feet to a point,thence S22°40'11"E for a distance of 156.40 feet to a point on the Northerly Right-Of-Way line of Old State Road 4A;thence S67°19'49"W along said Northerly Right-Of--Way line of Old State Road 4A,for a distance of 150.60 feet back to the Point of Beginning.Said parcel of land contains 23,553.84 Square Feet or 0.54 Acres,more or less. li I a i ,i i i �i 302121543 Doc.#2483193 Page Number: 12 of 14 - i t 1 i i LEASE AREA-"D"(COAST FBO,LLC) A parcel of land lying within Sectionl,Township 66 South,Range 32 East,and Section 6,Township 66 j South,Range 33 East,Key Vaca(Marathon),Monroe County,Florida,being more particularly described as follows: COMMENCING at the Southeast corner of lands described in Official Records Book 1023, Page 186 of the Public Records of Monroe County,State of Florida,said point being the intersection of the East boundary line of Government Lot 2 of said Section 6,Township 66 South,Range 33 East,.the said East boundary line also being the West Right-of-Way line of 107th Street(AKA Industrial Avenue),and the Northerly Right-of-Way line of Old State Road 4A,said point being 116.00 feet as measured at right angles from the Survey Baseline of U.S.Highway 1;thence 577°19'57"W along said Northerly Right-of- Way line of Old State Road 4A for a distance of 855.82 feet to a Point of Curvature(PC);thence :p continuing along said Northerly Right-of-Way line of Old State Road 4A on a curve to the left having a radius of 2,983.79 feet,a central angle of 09"32'48",a chord bearing of S72"33'14"W,for an arc length of 497.16 feet to a point,said point being the Point of Beginning of the parcel of land hereinafter described;thence continuing along said Northerly Right-of-Way line of Old State Road 4A on a curve to the left having a radius of 2,983.79 feet,a central angle of 00'26'42",a chord bearing of S67°33'28"W, for an arc length of 23.18 feet to a Point of Tangency(PT);thence S67°19'49"W continuing along said Northerly Right-of-Way line of Old State Road 4A for a distance of 1,476.82 feet to a point;thence N22°40'11"W and leaving said Northerly Right-Of--Way line of Old State Road 4A,for a.distance of 251.60 feet to a point,thence N67 19 49 E for a distance of 1,500.00 feet to a point;thence S22°40'11"E for a distance of 251.69 feet back to the Point of Beginning. Said parcel of land contains 377,400.72 Square Feet or 8.66 Acres,more or less. ,I m i 302121543 Doc.#2483193 Page Number: 13 of 14 { LEASE AREA-"E"(COAST FBO,LLC) i A parcel of land lying within Section 6,Township 66 South,Range 33 East, Key Vaca (Marathon),Monroe County,Florida, being more particularly described as follows: COMMENCING at the Southeast corner of lands described in Official Records Book 1023, Page 186 of the Public Records of Monroe County,State of Florida,said point being the intersection of the East boundary line of Government Lot 2 of said Section 6,Township 66 South,Range 33 East,said East boundary line also being the West Right-of-Way line of 107th Street(AKA Industrial Avenue),and the Northerly Right-of-Way line of Old State Road 4A,said point being 116.00 feet as measured at right angles from the Survey Baseline of U.S.Highway 1;thence S77°19'57"W along said Northerly Right-of- Way line of Old State Road 4A for a distance of 855.82 feet to a Point of Curvature(PC);thence continuing along said Northerly Right-of-Way line of Old State Road 4A on a curve to the left having a radius of 2,983.79 feet,a central angle of 01°33'10",a chord bearing of S76°33'03"W,for an arc length j 1 j of 80.87 feet to a point,said point being the Point of Beginning of the parcel of land hereinafter i described;thence continuing along said Northerly Right-of-Way line of Old State Road 4A on a curve to the left having a radius of 2,983.79 feet,a central angle of 04°0120 ,a chord bearing of 573°45'48"W, for an arc length of 209.46 feet to a point;thence N22°40'11"W and leaving said Northerly Right-Of- Way line of Old State Road 4A,for a distance of 260.48 feet to a point,thence N67°19'49"E for a distance of 209.10 feet to a point;thence S22°40'11"E for a distance of 283.95 feet back to the Point of Beginning.Said parcel of land contains 56,391.03 Square Feet or 1.29 Acres,more or less. j �I MA ll -1 d 302121543 Doc.#2483193 Page Number: 14 of 14 i EIOIT B I I LEASE i (To be omitted from counterpart submitted for recording) i I �j ;I �f .I I. I i J � � I I j I t n yI I B-1 301565183 i