ITEM #45

(Amended Motion Statement)

ADDITIONAL MATERIAL
REGULAR MEETING
APRIL 18, 2023

SUBMITTED AT THE REQUEST OF

AVIATION DEPARTMENT
 ITEM #45
Amended Motion Statement

A. MOTION TO APPROVE Forbearance Agreement between Broward County and

Silver Airways LLC, as successor in interest to Silver Airways Corp. (“Silver”), distributed
as additional information under Agenda Item 45, and authorize the County Administrator
to execute same.

B. MOTION TO DELEGATE AUTHORITY to the County Administrator to terminate,

on behalf of the County, the Terminal Building Lease Agreement and the Airline-Airport
Lease and Use Agreement (“Agreements”) between Broward County and Silver at the
Fort Lauderdale-Hollywood International Airport, including the authority to provide any
and all required notices, if Silver breaches any provision of the Forbearance Agreement
and fails to timely cure such breach; and to authorize the County Attorney to take all legal
steps necessary on behalf of Broward County to take possession of the applicable
premises and to recover all amounts owed under the Agreements upon termination of the
Agreements.
 FORBEARANCE AGREEMENT BETWEEN BROWARD COUNTY AND SILVER AIRWAYS LLC

This is a Forbearance Agreement (the Forbearance Agreement ) by and between

Broward County, a political subdivision of the State of Florida (the County ), and Silver Airways
LLC ( Silver ) (collectively, the Parties ) (individually, a Party ).

Recitals

A. The County and Silver s predecessor in interest entered into a Signatory Terminal
Building Lease Agreement Between Broward County and Silver Airways Corp., and an Airline-
Airport Lease and Use Agreement Between Broward County and Silver Airways Corp.
(collectively, the Agreements ), both dated January 13, 2015, regarding the Fort Lauderdale-
Hollywood International Airport. In 2016, Silver Airways LLC legally and effectively assumed all
rights and obligations of Silver Airways Corp. regarding the Agreements.

B. Disputes have arisen between the County and Silver concerning unpaid sums
owed by Silver to the County under the Agreements.

C. The County effectively declared Silver in default under the Agreements on

September 1, 2022, which default has continued and remained uncured to date.

D. The Parties have engaged in considerable discussions in an effort to amicably

resolve the financial dispute, which effort has resulted in this Forbearance Agreement.

Now, therefore, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties agree as follows:

1. Representations: The foregoing Recitals are true and correct and by this reference
thereto are incorporated herein and made a part hereof.

2. Terms of Forbearance:

2.1. The County shall forbear from terminating the Agreements for the duration of
Forbearance Agreement (the , provided Silver fully complies with
the terms and conditions of the Forbearance Agreement (if Silver does not fully comply,
the County, through the County Administrator or her designee, shall have the right to
terminate the Agreements).

2.2. Silver will make the following payments to County via ACH or EFT/wire transfer, per the
wire instructions emailed by the County:

2.2.1. $200,000 toward the outstanding balance, paid immediately upon receiving a
copy of the Forbearance Agreement executed by the County (to be sent by email
to the addresses listed in Section 3.1 below) (execution by the County will not

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 occur absent prior County Commission approval). This amount has been escrowed
with Silver s counsel, Smith, Gambrell & Russell, LLP, and counsel has
joined the Forbearance Agreement for the sole purpose of representing that they,
as escrow agent, have been irrevocably instructed to expeditiously wire this
payment to the County upon the sole condition of receiving a copy of the
Forbearance Agreement executed by the County. By signing below,
counsel also confirms receipt of the escrowed amount of $200,000 for payment
to the County subject to that sole condition.

2.2.2. An additional $300,000 toward the outstanding balance, paid by May 19, 2023.

2.2.3. $100,000 toward replenishment of the Security Deposit, paid by June 16, 2023.

2.2.4. An additional $100,000 toward replenishment of the Security Deposit, paid by

July 21, 2023.

2.2.5. For the nine-month period from August 18, 2023, through April 19, 2024, and on
the 18th day of each month or the first business day thereafter, nine (9) equal
monthly installments of the total outstanding amount owed, exclusive of Security
Deposit obligations . As of April 17, 2023, the
County has calculated the Total Outstanding Amount as $1,409,318.78, which
amount shall be adjusted for interest, late fees, payments toward arrearage made
in April 2023 prior to entry into this Forbearance Agreement, and payments
pursuant to Sections 2.2.1 and 2.2.2 above. By no later than May 19, 2023, the
parties shall agree in writing upon the actual Total Outstanding Amount, adjusted
for interest, late fees, and payments toward arrearage made in April 2023, with
the County acting through its County Administrator or her designee. If the parties
do not so agree in writing, the first eight (8) monthly installments shall each be
$100,000, the ninth monthly installment shall be in whatever amount Silver
acknowledges remains in arrears, and the parties shall reserve all rights and
defenses with regard to the balance in dispute.

2.2.6. Remainder of Security Deposit replenishment, by May 17, 2024. No later than
April 17, 2024, County will provide notice of the total remaining amount due for
replenishment of Security Deposit.

2.3. Silver acknowledges that, apart from past-due sums that will be repaid pursuant to the
terms of this Forbearance Agreement, it has payment obligations under the Agreements
that will accrue during the Forbearance Period, and Silver must and agrees to fully and
timely comply with all payment obligations that accrue during the Forbearance Period.

3. Termination:

3.1. If Silver fails to fully and timely comply with any obligation of the Forbearance Agreement,
including with regard to amounts that accrue on a monthly basis during the Forbearance

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 Period, County, through the County Administrator or her designee, will provide written
notice to Silver at the following email address(es), including any substitute email
addresses provided by email from Silver s counsel, Smith, Gambrell & Russell, LLP (any
substitutions will be effective five (5) business days after receipt by the County):
steve.rossum@silverairways.com, alex.alvarez@silverairways.com,
jmccachren@sgrlaw.com, nkalkines@sgrlaw.com, and dhsmith@sgrlaw.com. Silver will
have until the close of business on the third business day after such notice to cure; if not
fully cured by that time, County will be entitled to terminate the Agreements effective
immediately (acting through the County Administrator or her designee), recover
. Notice of such
termination shall be effective if sent by the County Administrator or her designee to the
same email addresses stated above in this section.

3.2. This Forbearance Agreement shall be automatically terminated without the need for any
notice to Silver or opportunity to cure upon any of the following: (i) voluntary or
involuntary proceedings by or against Silver are instituted in any bankruptcy court in the
United States; (ii) a receiver or custodian is sought or appointed for Silver; (iii) a petition
for the assignment for the benefit of creditors is filed by or against Silver; or (iv) all or
substantially all of the assets of Silver are pledged, transferred, assigned, or sold to
another entity outside the ordinary course.

3.3. Upon any termination pursuant to this Section 3, the County shall have no obligation to
forbear for any remainder of the Forbearance Period and may immediately and without
any further delay proceed to take action including with regard to or in connection with
the termination of the Agreements, retaking of possession of property leased to Silver,
and the seeking of damages.

3.4. If this Forbearance Agreement is terminated for any reason, all amounts paid by Silver in
accordance with the Forbearance Agreement shall be retained by the County and applied
toward the outstanding balance owed by Silver.

4. No Waiver: Except as expressly stated herein, nothing in this Forbearance Agreement

shall waive, or is intended to waive, any right of the County under either of the Agreements.
Except for the obligations of the County to forbear for the Forbearance Period subject to the full
compliance of Silver with its obligations stated in this Forbearance Agreement, nothing in this
Forbearance Agreement shall preclude the County from exercising any right or authority under
the Agreements.

5. Venue: The Parties acknowledge and agree that this Forbearance Agreement shall be
interpreted and construed in accordance with and governed by the laws of the State of Florida.
Any controversies or legal problems arising out of this Forbearance Agreement and any action
involving the enforcement or interpretation of any rights hereunder shall be submitted
exclusively to the jurisdiction of the state courts of the Seventeenth Judicial Circuit of Broward
County, Florida, the venue situs, and shall be governed by the laws of the State of Florida. To
encourage prompt and equitable resolution of any litigation that may arise hereunder, each Party

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hereby waives any rights it may have to a trial by jury of any litigation arising out of or relating to
this Forbearance Agreement.

6. Merger: This document incorporates, includes, and supersedes all prior negotiations,
correspondence, conversations, agreements, and understandings
forbearance from its right to terminate (or not rescind any termination of) the Agreements; and
the Parties agree that there are no commitments, agreements, or understandings concerning
that subject matter that are not contained in this document.

7. Joint Preparation: The Parties acknowledge that they have sought and received whatever
competent advice and counsel as was necessary for them to form a full and complete
understanding of all rights and obligations herein and that the preparation of this Forbearance
Agreement has been their joint effort. The language agreed to expresses their mutual intent and
the resulting document shall not, solely as a matter of judicial construction, be construed more
severely against one Party than the other Party.

8. Representation of Authority: Silver represents and warrants that this Forbearance

Agreement constitutes the legal, valid, binding, and enforceable obligation of Silver, that
execution of this Forbearance Agreement is within legal powers, and that the individual
executing this Forbearance Agreement on behalf of Silver is duly authorized by all necessary and
appropriate action to do so on behalf of Silver and does so with full legal authority.

9. Third-Party Beneficiaries: The Parties agree that there are no intended third-party
beneficiaries to this Forbearance Agreement.

10. Counterparts: This Forbearance Agreement may be executed in any number of

counterparts, whether signed physically or electronically, each of which, when executed and
delivered, shall be an original, but such counterparts shall together constitute one and the same
instrument.

11. Titles; Captions: The titles and captions of the paragraphs of this Forbearance Agreement
are for convenient reference only and shall not affect the construction or interpretation of any
of the terms and provisions set forth herein.

12. Modification: No change or modification of this Forbearance Agreement shall be valid

unless in writing and signed by all Parties hereto. No waiver of any of the provisions of this
Forbearance Agreement shall be valid unless in writing and signed by the Party against whom it
is sought to be enforced.

Remainder of this page is intentionally blank.

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IN WITNESS WHEREOF, the Parties have made and executed this Forbearance Agreement on the
respective dates under each signature: Broward County through its Board of County
Commissioners, signing by and through its County Administrator, authorized to execute same by
Board action on the 18th day of April, 2023, and Silver Airways LLC, signing by and through its
Chief Executive Officer, Steven A. Rossum, duly authorized to execute same.

COUNTY

BROWARD COUNTY, by and through

its Broward County Administrator

By: ____________________________
Monica Cepero,
Broward County Administrator

____ day of ______________, 2023

Approved as to form by
Andrew J. Meyers
Broward County Attorney
115 South Andrews Avenue, Suite 423
Fort Lauderdale, Florida 33301
Telephone: (954) 357-7600

By: _____________________________
Alexander J. Williams Date
Senior Assistant County Attorney

By: _____________________________
René D. Harrod Date
Chief Deputy County Attorney

Silver Forbearance Agreement

4/17/23
#1006612.3