FIFTH AMENDMENT TO ESCROW EXTENSION AGREEMENT
Exhibit 10.26
FIFTH AMENDMENT TO
THIS FIFTH AMENDMENT TO ESCROW EXTENSION AGREEMENT (the
“Fifth Amendment to Extension Agreement”) is made by and among THE GREATER ORLANDO AVIATION AUTHORITY, a public and governmental body created as
an agency of the City, existing under and by virtue of the laws of the State of Florida, whose mailing address is Xxx Xxxx Xxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000-0000 (the “Authority”), and BRIGHTLINE TRAINS LLC
F/K/A ALL ABOARD FLORIDA - OPERATIONS LLC, a Delaware limited liability company authorized to conduct business in Florida, whose mailing address is 0000 XxXxxxx Xxxx, 0xx Xxxxx, Xxxxx Xxxxxx, Xxxxxxx, 00000 (“Rail Company”), joined by the CITY OF ORLANDO, a municipal corporation created by and existing under the laws of the State of Florida, whose address is P.O. Box 4990, 000 X. Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000-0000 (the “City”).
WI TN E S S E TH:
WHEREAS, the Parties entered into that certain Rail Line Easement Agreement dated of January 22, 2014, as amended by that certain First Amendment to the Rail Line Easement Agreement dated October 3, 2014, that
certain Second Amendment to the Rail Line Easement Agreement dated October 26, 2015, that certain Third Amendment to the Rail Line Easement Agreement dated December 21, 2015, that certain Fourth Amendment to the Rail Line Easement Agreement
dated January 27, 2017, that certain Fifth Amendment to the Rail Line Easement Agreement dated December 28, 2017 and that certain Sixth Amendment to the Rail Line Easement Agreement dated June 11, 2018 (collectively, the “Easement Agreement”),
which governs the parties rights and obligations related to the development of an inter-city rail project at the Orlando International Airport, that certain Premises Lease and Use Agreement with an effective date of January 22, 2014, as amended
by that certain First Amendment to the Premises Lease and Use Agreement dated September 25, 2014, that certain Second Amendment to the Premises Lease and Use Agreement dated January 26, 2016, that certain Third Amendment to the Premises Lease
and Use Agreement dated January 30, 2017 and that certain Fourth Amendment to the Premises Lease and Use Agreement dated December 28, 2017 (collectively, the “Lease Agreement”), which governs the parties’ rights and obligations related to the development of the Rail Station Building and the Rail Company Premises and that certain
Vehicle Maintenance Facility Ground Lease Agreement dated January 22, 2014, as
amended by that certain First Amendment to the Vehicle Maintenance Facility Ground Lease Agreement dated October 28, 2015 and that Second Amendment to the Vehicle Maintenance Facility Ground Lease Agreement dated December 23, 2015 (collectively
the “VMF Agreement”) (the Easement Agreement, Lease Agreement and VMF Agreement shall be collectively referred to as the “Escrow Agreements”); and
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City Council Meeting: 1-14-19
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Item: K-6 Documentary: 190114K06
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WHEREAS, the Parties entered into that
certain Escrow Extension Agreement with an effective date of December 23, 2015, as amended by that certain First Amendment to Escrow Extension Agreement dated January 30, 2017, that Second Amendment to Escrow Extension Agreement dated December
18, 2017, that Third Amendment to Escrow Extension Agreement dated June 11, 2018 and that Fourth Amendment to Escrow Extension Agreement dated June 11, 2018 (collectively, the “Escrow Extension Agreement”);
WHEREAS, the Escrow Agreements are being held
in escrow pursuant to the terms of the Easement Agreement until December 31, 2018 at which time all Escrow Conditions must be met; and
WHEREAS, Rail Company has requested an
extension of six (6) months to the Escrow Term until June 30, 2019 to meet all the Escrow Conditions; and
WHEREAS, the Parties agree to amend the
Escrow Agreements to extend the Escrow Term until June 30, 2019; and
NOW, THEREFORE, for and inconsideration of
the premises and of the mutual covenants hereinafter contained, the parties hereto do hereby agree as follows:
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1.
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Recitals. The above recitals are true and
correct and are hereby incorporated herein by this reference.
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2.
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Definitions. Capitalized terms shall have the
same meaning as set forth in the Escrow Agreements or as defined herein.
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3.
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Escrow Term Extension. The Authority agrees to
extend the Escrow Term until June 30, 2019 (the “Escrow Extension”), subject the Rail Company shall fund the Aviation Authority Owner’s Authorized Representative team in an amount equal to $3,770,156.00 as set forth in the Seventh
Amendment to the Easement Agreement executed contemporaneously with this Fifth Amendment to Escrow Extension Agreement.
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4.
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Monthly Coordination Fee. Beginning on January
1, 2019, on the first day of each month thereafter, Rail Company shall pay the Authority a coordination fee in an amount equal to $57,000 per month (the
“Monthly Coordination Fee”). Rail Company shall continue to pay the Monthly Coordination on a monthly basis until the date of termination of escrow.
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5.
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Modification. Except as expressly amended and
supplemented in this Fifth Amendment to Escrow Extension Agreement, all other terms of the Escrow Extension Agreement shall remain in full force and effect as originally executed.
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[THIS SPACE LEFT INTENTIONALLY BLANK]
[SIGNATURE LINES ON NEXT PAGE]
IN WITNESS
WHEREOF, the parties hereto have each caused this Fifth Amendment to be executed by its authorized representative on the date so indicated below.
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“GOAA”
GREATER ORLANDO AVIATION
AUTHORITY
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ATTEST:
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By:
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/s/ Xxxxxxx X. Xxxxx
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/s/ Xxxxx X. Xxxxxxxx-Xxxxxx
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Xxxxxxx X. Xxxxx. A.A.E.,
Chief Executive Officer
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Xxxxx X. Xxxxxxxx-Xxxxxx,
Assistant Secretary
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Date: 12/18, 2018
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Two WITNESSES:
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APPROVED AS TO FORM AND LEGALITY this
14th day of December, 2018, for the use
and
reliance by the GREATER ORLANDO AVIATION
AUTHORITY, only.
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| /s/ Xxxxxxx Xxx-Xxxxxxx | |||
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Printed Name: Xxxxxxx Xxx-Xxxxxxx
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Xxxxxxxx and Xxxxxx, P.A., Counsel.
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| /s/ Xxxx X. Xxxxxx | |||
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Printed Name: Xxxx X. Xxxxxx
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By:
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/s/ Xxxxxxxx and Xxxxxx, P.A.
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Xxxxxxxx and Xxxxxx, P.A.
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STATE OF FLORIDA
COUNTY OF ORANGE
Before me, the undersigned authority, duly authorized under the laws of the State of Florida to take acknowledgments, this day
personally appeared Xxxxxxx Xxxxx and Xxxxx X. Xxxxxxxx-Xxxxxx respectively Chief Executive Officer and Assistant Secretary of the Greater Orlando Aviation Authority, who are personally known to me to be the individuals and officers described in
and who executed the foregoing instrument on behalf of said Greater Orlando Aviation Authority, and severally acknowledged the execution thereof to be their free act and deed as such officers and that they were duly authorized so to do.
In witness whereof, I have hereunto set my hand and official seal at Orlando, in the County of Orange, State of Florida, this 18
day of December, 2018.
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My commission expires: July 19, 2019
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Notary Public
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BRIGHTLINE TRAINS LLC F/K/A
ALL ABOARD FLORIDA –
OPERATIONS LLC
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ATTEST:
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By:
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/s/ Xxxxxxx Xxxx | |||
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Printed Name:
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Printed Name:
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Xxxxxxx Xxxx | |||
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Title:
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Title:
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Vice President | |||
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Date: December 10th, 2018
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TWO WITNESSES:
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| /s/ Xxxxxxx Xxxxxx | |||
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Printed Name:
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Xxxxxxx Xxxxxx | ||
| /s/ Xxxxxxx Xxxxxxxxx | |||
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Printed Name:
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Xxxxxxx Xxxxxxxxx | ||
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STATE OF FLORIDA
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)
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COUNTY OF
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MIAMI-DADE |
)
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The foregoing instrument was acknowledged before me this 10th day of December, 2018 by Xxxxxxx Xxxx, as Vice President of Brightline Trains LLC f/k/a All Aboard Florida – Operations, a Delaware limited liability company, on behalf on the limited
liability company. He/She is personally known to me or produced a valid driver’s license as identification.
| /s/ Xxxxxxx Xxxxxxxxx | |||
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Notary Public
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Print name:
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Xxxxxxx Xxxxxxxxx | ||
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XXXX XX XXXXXXX, XXXXXXX, a Florida
municipal corporation
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ATTEST:
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BY:
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/s/ Xxxxxx Xxxxxxxx |
By:
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/s/ Xxxxxx X. Xxxx | ||
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Printed Name:
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Xxxxxx Xxxxxxxx |
Printed Name:
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Xxxxxx X. Xxxx | ||
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Title:
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CITY CLERK |
Title:
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MAYOR PRO TEM | ||
| Date: | JANUARY 14, 2019 | ||||
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[Official Seal]
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APPROVED AS TO FORM AND LEGALITY FOR
THE USE AND RELIANCE OF THE CITY OF
ORLANDO, ONLY, THIS 4 DAY OF
JAN, 2019.
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By:
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/s/ Xxx Xxxx |
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Title:
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Printed Name:
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Xxx Xxxx | ||||
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City Council Meeting: 1-14-19
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Item: K-6 Documentary: 190114K06
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