Okaloosa County BOCC — January 30, 2013 — Sublease Agrmt Regal Air and VSC — reading text

pursuant to any proceeding other.than under the -provisions.-of the Bankruptcy Reform Act of 1978, or:if a Receiver for Operator's assets is appointed, or‘ if ‘Operator ‘shall be ‘divested :of ‘its rights, powers, .and privileges under this agreement by other operation of jaw, other.than under the 23 Bankruptcy Act of 1978. Subject to casualty and the terms of Article XVIII hereof, abandonment 6. . _of Operator's operations, which shall be defined.as Operator's failure to “conduct réegular:and continuing operations on the Leased ‘Premises in accordance with the requirements hereof for thirty (30) days.2os.* 7. A default in, or the’ termination-of any other agreement between Operator and the County, or default in or the termination of any sublease executed between Operator and any third party pursuant to ‘which: Operator is entitled access to: land, buildings,:improvements, or ~ “any portions thereof, located .on the Airport, or ‘to -do-business:.on.the ~ Airport. Cigha DNB Sb ae 8S Bai bes se hee ge ov Anon Should the County so request in writing after ‘execution.of this. Agreement, :Operator shall provide a copy ‘of the additional agreements -pursuant.to which. Operator is _ authorized to do.business ‘on the <Airport,“within ten (10).days-of said notice. ‘The failure to provide copies of said agreements shall also constitute a default on Operator's part and shall entitle the County to exercise any and all of its default powers set forth in this Agreement: = Remedies Upon Default: Upon the occurrence of.any of the events of default-set forth above, the County may exercise any one or more.of the following:r emedies.. These remedies shall be cumulative and not alternative: The County may. sue for recovery of all.damages incurred by the County, including incidental damages, consequential. damages, if any, 7 and attorney's fees. “2. The sCounty: may utilize -any portion, or vail, of. the :security deposit provided by Operator to remedy. :the default andto: reimburse the County for any damages, including attorney's fees and other expenses ~~ of collection’ that it may -sustain as -a-result of:the-default. - In. such event, Operator shall not be permitted to resume. operations under this - Agreement-until such time-as it furnishes.another security deposit that -<gaitisfies “the requirements ‘of Article -VIll.-- However,:this Agreement - shall not be deemed. terminated during said period unless-written notice of termination shall have been»given and become. effective in accordance with subparagraph 3, below. - The County may terminate :this Agreement and, atthe option of the County, any other agreement in -effect between. the .County and Operator. The termination of these agreements, however, shall only be = effective: Upon:written notice.of same provided by. the County to - Operator'as required in Article XXIII, Remedies Upon Default, No. 6. In - “ho. avent shall-this Agreement be construed to be terminated unless and until such-notice is provided..With respect to Article XXIII, Events of Default, Nos. 3 and -6,- only, the -termination. may be effective 24 | “conditions,” terms’ and: obliga immediately upon provision of said notice, or at. any other time specified in the notice. If this Agreement is terminated, Operator shall continue to be liable for: (a) the performance of all terms and conditions ~and the payment of all monies due hereunder prior to the effective date of said termination; (b) all damages, including attorney's fees and other "expenses of collection, incurred-as a result-of any default; and (c) all ations in “Article ~X!° of this Agreement, entitled Insurance and Indemnification, ~“ without ‘terminating 'the “Agreement by so doing,-and ‘without further ~“ notice to Operator, the County may reenter:the Leased Premises with process of law, repossess the Leased Premises’ and. all fixtures and ~improvements thereon, and remove Operator and any. third parties who may be occupying or within. the Leased -Premises.and all of their respective personal property, by using either such reasonable force as may be necessary, summary proceedings, ejectment, or any other means the County, in “its sole discréetion,;deems appropriate without being deemed guilty of trespass, eviction, or forcible entry and detainer by so doing. In such case, the County: shall:be obligated:toattempt, in -good faith, to negotiate the reletting of the Leased Premises, and any. improvements’ thereon, or any ‘portion ‘thereof, on behalf of Operator, "> “for such ‘period of time ‘arid “upon. Such ‘terms and -conditions asthe ~""Bremises, Ope County deems appropriate. The County shall in no'way -be:obligated. ___under the terms of this subparagraph to relet all.or any portion ofthe ~~" Leased premises, or any improvement:thereon, to any third party,. or ~~ Upon ‘terms ‘and ‘conditions that are not acceptable to the County, or ~~ “which the County, in its sole discretion, does not feel:to be in the best ~ “interests ‘of thé’ Airport; nor shall:the County be “responsible for any failure of the sub operator or néw tenant-to pay rent-or to perform any _other conditions due upon such reletting. Operator hereby expressly ‘authorizes the County to ‘make any reasonable repairs necessary to relet the Leased Premises or any improvements théréon,.on Operator's _ behalf. Assuming the County attempts to relet the Leased Premises in ~~good faith, whether or not the County is able to relet the Leased rator shall remain Jiable for the performance of all terms and conditions of the Agreement and the payment of all fees due under the terms of the Agreement for the remainder of the Leasehold term, although Operator shall receive ‘credit for any:fees paid or..conditions' performed as a result of subletting. Operator shall also be responsible ~ for reimbursing the County for all costs and “expenses. the County ~~ incurs in reletting or attempting to relet the Leased Premises, including: “commission/broker fees and ‘reasonable repair costs. Finally, if asa result of such reletting, thé County becomes entitled to receive excess fees or other benefits over and above what the County would-have been entitled to receive under this Agreement, the Operator shall be entitled to retain all such surplus fees and other ‘benefits;and the . County shall have no rights or interest therein. 25 The County may utilize any other remedy provided bY law or equity as 5. a result of any events of default. 6. Notwithstanding anything i in this Lease. to o the contrary, Operator will not : be.in default-under Article XXIII, Events - of .Default;.Nos. 1, 2, 4, 5, 6 -.and-7,-of this Lease unless and until Operator defaults. in the payments of ‘rent, and fails to pay said -:rent for a period . of. thirty. (30) days after receipt of written.:notice - from. County, perator defaults in the performance of any provision under this Lease and fails to cure said ~~ default within thirty, (30) -days:of receipt-of written notice from.County, orp if such default:is of a nature. that it-could not. Teasonably be cured within thirty.(30) days after.receipt of. such.written.notice and Operator does not commence -and ‘Droeeed: with reasonable. diligence and in good f faith lo cure ? such defautt.: Pnridec ass NONADEFAULT TERMINATION E EVENTS. | AL - NonDefau T ermination E Events: a ult termination The ¢ occurrence f any..of: the following shall constitute. anol al giving ninety (90) hereunder and. entitle: the: = Operator | to. jerminate this Agreement by days wtlitenn: notice: : oe erica, or any --authorized. agency. thereof, 0) the. operation, -control _or use of the Alport or any: substantial: part.or parts thereof,.in ‘such a. manner as to i from for a period eld for a period An the event: this Agreement. is terminated.under.Article XXIV(A)(1) or -- under:Article XXIV(A)(2), above, a the Counts obligated tc to. > comply with wipes the terms of Article XVI Termination for Other Purposes: In accordance wit Article XXXI, ‘if the County ; at any time ‘dur g the term of this Agreement determines, in its sole judgment; that. the Leased Premises are required for other airport purposes, -and not for-fixed based operations, the County shall have the right to:terminate.this-Agreement by giving the Operator. 90. days. written notice; provided, however that County complies Ww 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. ARTICLEXXV. es ES OF LITIGATION. *. ATTORNEYS FEES, COSTS AND EXPENS ‘Inthe event of a breach of this Agreement, the breaching party shall pay to th “breaching party all attorneys’ fees, costs and:other expenses. incurred -by.t breaching party in enforcing its rights as a result of said breach, =¢ <= - = FORCE:MAJEURE:. . « ‘Subject to the provisions herein ‘concerning the paym ent of fees and other. Operator:to the County, and ‘except.as -otherwise expressly provided here 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 imental authority (other'than the County or agencysthereof), war, hortage .o Is) ty nor:Operator.is regoing (it eing ‘agreed eth it the foregoing: enumeration . shall. characteristic of such: conditions or:circumstances),which is bey: the County or Operator.or which could:not:be prevented or remedied by: effort and at reasonable expense. — ondition “or. circumstan ce, whether.:similar » In the ‘event of “any. cancellation“or termination of this Agreement. prior: expiration date pursuant to ‘Article XXIV(A)( 4), Article XXIV(A)(2) or-Article XX : 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 XI oy oy 27 ARTICLE XXVIII SURRENDER UPON TERMINATION ermination of this Agreement, for any reason Upon the expiration or sooner t session of the whatsoever, Operator shall peaceably surrender to the County pos Leased Premises, together with any improvements, alterations, :or fixtures p reviously 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 vas the Leased Premises and improvements, «alterations and _ fixtures constructed -thereon. were initially provided to, or coristructed by, the County or-Operator, ordinary. wear cand 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 is Agreement; Operator :shall-be responsible for:eliminating said