Okaloosa County BOCC — April 27, 2013 — MSA Amended and Restated Lease Agreement with Exhibits — reading text

that the Leased Premises are required for other airport purposes, and not for fixed based operations, the County shail have the right to terminate this Agreement by giving the Operator 90 days written notice; provided, however that County complies with the terms of Article XXVII. Cc. Lost Profits: The County shall not be responsible to the Operator for any lost profits, expenses, 26 liabilities or claims whatsoever that may result from termination by the Operator or the County pursuant to this Article, except for the reimbursement provided for under Article XVII. ARTICLE XXV ATTORNEYS FEES, COSTS AND EXPENSES OF LITIGATION In the event of a breach of this Agreement, the breaching party shall pay to the non- breaching party all attorneys’ fees, costs and other expenses incurred by the non- breaching party in enforcing its rights as a result of said breach. ARTICLE XXVI FORCE MAJEURE Subject to the provisions herein concerning the payment of fees and other monies by Operator to the County, and except as otherwise expressly provided herein, neither the County nor Operator shall be liable for any failure, delay or interruption in performing their obligations hereunder (other than the Operator's obligations to pay fees and other monies) due to causes or conditions beyond their control; by which is meant acts of God, the elements, weather conditions, earthquakes, fire, acts of governmental authority (other than the County or agency thereof), war, shortage of labor or materials, acts of third parties for which neither the County nor Operator is responsible, injunctions, labor troubles or disputes of every kind (including those affecting the County, Operator, their contractors, suppliers, or subcontractors), or any other condition or circumstance, whether similar to or different from the foregoing (it being agreed that the foregoing enumeration shall not limit or be characteristic of such conditions or circumstances), which is beyond the control of the County or Operator or which could not be prevented or remedied by reasonable effort and at reasonable expense. ARTICLE XXVII BUYOUT OF IMPROVEMENTS In the event of any cancellation or termination of this Agreement prior to the expiration date pursuant to Article XXIV(A)(1), Article XXIV(A)(2) or Article XXIV(B), the County shall, within ninety (90) days after the effective date of such termination or cancellation, pay the Operator the “undepreciated cost of leasehold improvements" for all Operator Improvements installed or constructed by the Operator which were approved by the County pursuant to the terms hereof, whether in place on the Commencement Date or constructed thereafter; provided, however, the County shall not make any payments hereunder for any Operator Improvements not then in existence at the time of any such cancellation or termination. For purposes of this provision, undepreciated cost of leasehold improvements shall be the cost of said improvements, less depreciation on a straight-line basis over their useful lives, as approved by the County pursuant to Article XIll. 27 ARTICLE XXVIII SURRENDER UPON TERMINATION Upon the expiration or sooner termination of this Agreement, for any reason whatsoever, Operator shall peaceably surrender to the County possession of the Leased Premises, together with any improvements, alterations, or fixtures previously constructed by Operator or the County within said Leased Premises, and any of the County's personal property located thereon, in as good a condition as the Leased Premises and improvements, alterations and fixtures constructed thereon were initially provided to, or constructed by, the County or Operator, ordinary wear and tear excepted, and, subject to terms of Article XXVII above, without any compensation whatsoever, and free and clear of any claims or interests of Operator or of any mortgages or any other third party whose position was derived from or through Operator. If any of said improvements, alterations or fixtures are encumbered by a mortgage or lien at the time of expiration or sooner termination of this Agreement, Operator shall be responsible for eliminating said mortgage or lien and shall hold the County harmless therefrom. Operator shall have the right to remove its items of personal property and trade fixtures and signs from the Leased Premises through 30 days after the close of business on the day of expiration or sooner termination of this Agreement. Should Operator fail to remove its personal property and trade fixtures and signs within said time, the County shall have the right to remove said personal property and trade fixtures and signs and to place said personal property and trade fixtures and signs into storage at Operator's behalf and at Operator's sole cost and expense. The County shall be entitled to reasonable rental from Operator for the use of the Leased Premises occupied by Operator's personal property and trade fixtures and signs, until the County places said property into storage. Title to all personal property and trade fixtures and signs not removed by Operator from the Leased Premises or claimed from storage within thirty (30) days of the expiration or sooner termination of this Agreement shall be subject to the County taking ownership of such personal property and trade fixtures and signs, without payment by the County to Operator of any compensation whatsoever, and said personal property and trade fixtures and signs shall thereafter be owned by the County free and clear of any claim or interest by Operator or of any mortgagee or any third party whose position was derived from or through Operator. ARTICLE XXIX HOLDING OVER If Operator remains in possession of the Leased Premises after the expiration of this Agreement without any written renewal thereof, such holding over shall not be deemed as a renewal or extension of this Agreement but shall create only a tenancy from month to month which may be terminated at any time by the County upon thirty (30) days written notice. Such holding over shall otherwise be upon the same terms and conditions as set forth in this Agreement. 28 ARTICLE XXX RENEWAL Provided that Operator is not currently in default of any of the terms of this Agreement, including those contained in Exhibit D, Operator shall be provided one (1) 10-year renewal option, exercisable no sooner than January 1, 2032, by providing County with written notice at least one hundred eighty (180) days prior to the expiration of the lease term. All of the terms and conditions of the lease shall apply during the renewal term including CPI increases to the lease payments at each successive five (5) year period. ARTICLE XXXI SUBSTITUTION OF PREMISES Operator understands and agrees that the County has the right to take all or any portion of the Leased Premises, and any additions, alterations, or improvements thereon, should the County, in its sole discretion, determine that said portion of the Leased Premises, and improvements thereon, are required for other Airport purposes and not for fixed base aircraft operations. If such action is taken, the County may terminate this Agreement in accordance with Article XXIV, NON- DEFAULT TERMINATION EVENTS, or may and if the County intends to maintain a Fixed Base Operation at the Airport will substitute in a reasonable time using reasonable diligence comparable areas within the Airport, brought to the same level of improvement to the area taken. The County shall bear all expenses of bringing the substituted area to the same level of improvement as the area taken, and of moving Operator's improvements, equipment, furniture and fixtures to the substituted area. If any of Operator's improvements, equipment, furniture, or fixtures cannot be relocated, the County shall replace, at its own expense, such non-relocatable improvements and other property with comparable property in the substituted area, and the County shall be deemed the owner of the non-relocated improvements and other property, free and clear of all claims of any interest or title therein by Operator, or any mortgagee or other third party. It is the specific intent of this paragraph that Operator be placed, to the extent possible, in the same position it would have been had the County not substituted new premises for the Leased Premises, provided, however, that the County shall not be obligated to reimburse Operator for lost profits or revenues due to such substitution. ARTICLE XXxXli AIRPORT DEVELOPMENT RIGHTS Subject to the provisions of Article XXXI concerning Substitution of Premises rights above, the County reserves the right to further develop or improve all areas within the Airport, including landing areas, as the County may determine in its sole discretion, which discretion shall not unreasonably be exercised, to be in the best interests of the Airport, regardless of the desires or views of Operator, and without further interference or hindrance from Operator. Except as may be required by this Agreement or any other agreement between the 29 parties, the County reserves the right, but shall not be obligated to Operator, to keep and repair all areas, including landing areas, of the Airport. ARTICLE XXxill SUBORDINATION This Agreement shail be subordinate to existing and future Airport Bond Resolutions. This agreement shall also be subject to and subordinate to agreemenis between the County and State and Federal agencies for grants-in-aid and to the provisions of any agreements heretofore made between the County, the City, and the United States, relative to the operation or maintenance of the Airport, the execution of which has been required as a condition precedent to the transfer of federal rights of property to the County for Airport purposes, or to the expenditure of federal funds for the extension, expansion, or development of the Airport, including the expenditure of federal funds for the development of the Airport in accordance with the provisions of the Federal Airport Act of 1958, as it has been amended from time to time. Any agreement hereafter made between the County, the City, and the United States will not be inconsistent with rights granted to Operator herein. ARTICLE XXXIV ASSIGNMENT Operator shall not assign its rights, title and interest herein nor allow or effectuate a "change ‘in control" of Operator's entity without the prior payment of an assignment fee of $1,000.00 and the prior written consent of the County, said consent not to be unreasonably denied or delayed. If an assignment or change of control is made, Operator shall continue to be liable, jointly and severally, with its assignee or successor, ‘for the fulfillment of all terms and conditions arising under this Agreement subsequent to the assignment, unless the County releases Operator in writing from such liability for future obligations, which release shall not be unreasonably withheld. The release shall be effective only if made in writing. All subsequent assignors and assignees shall be subject to the terms and conditions of this Agreement, including this Section, as if they were the original operator/assignor. For purposes of this provision and this Agreement, "change of control" shall mean any transfer in control of Operator's entity structure, whether by action of Operator or by operation of law. Without limiting the generality of the foregoing, for purposes of this Agreement, the transfer of forty percent (40%) or more of Operator's stock (if a corporation) during any 12-month period shall constitute a change in control. Any transfer of control not so approved by County shall be a violation of the covenants of Article XXIV enabling County to exercise any and all rights of County pursuant to Article XXIII. ARTICLE XXXV SUBLEASE Operator may not sublease all or any portion of the Leased Premises or all or any portion of the improvements thereon, without first obtaining written consent of the County, said consent not