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HomeMy WebLinkAbout2007 Second AmendmentSECOND AMENDMENT OF AIRPORT NON-AVIATION LEASE AGREEMENT THIS SECOND AMENDMENT of that certain AIRPORT NON-AVIATION LEASE AGREEMENT by and between the CITY OF SEBASTIAN (hereinafter called "Landlord") and Steven Philipson, dated January 30, 2004, (hereinafter called "Lease"), as subsequently amended and assigned to SEBASTIAN AIRPORT STORAGE, LLC (hereinafter called "Tenant") by agreement dated July 14, 2004 (hereinafter called "Amendment One"), provides as follows: WITNESSETH: WHEREAS, the Landlord is the owner of certain property located in the County of Indian River, Florida; and WHEREAS, the Landlord agreed to lease such property under the Lease, as subsequently amended and assigned to Tenant, and WHEREAS, Tenant wishes to modify said amended Lease, and Landlord wishes to have a pending option held by Tenant lapse; and WHEREAS, Tenant and Landlord are mutually agreeable to said changes; NOW, THEREFORE, in consideration of the mutual covenants hereinafter provided, the receipt and sufficiency of which are hereby acknowledged, the parties have agreed as follows: 1. Article XVII, Leasehold Encumbrances, of the Lease is hereby amended to read as follows: ARTICLE XVII LEASEHOLD ENCUMBRANCES 17.1 Mortgage Authorized: Tenant may encumber only its leasehold estate by the execution and delivery of a Mortgage. Landlord's written consent is required before any mortgage, other than one for construction of the approved structures for the site plan for the Premises, is made which encumbrances said Leasehold estate. Landlord will not subordinate its interest in the Premises or in this Lease to any Mortgage. The Mortgagee of any such Mortgage may deliver to Landlord a written notice specifying (i) the amount of the obligation secured by the Mortgage and the date(s) of the maturity thereof; and (ii) the name and address of the Mortgagee. After receipt of such notice, Landlord shall serve such Mortgagee by certified or registered mail, at the latest address furnished by such Mortgagee, a copy of every notice of default or demand served by Landlord upon Tenant under the terms and provisions of this Lease so long as such Mortgage is in effect. In the event of any assignment of a Mortgage or in the event of a change of address of the Mortgagee or of an assignee of such Mortgage, notice of the new name and address shall be provided to Landlord. 17.2 Mortgagee's Rights. Upon receipt of a notice of default, Mortgagee shall have thirty (30) days after receipt of such notice within which, at Mortgagee's election, either: to cure the default if it can be cured by the payment or expenditure of money; to perform such other action as may be necessary to cure the default- or if the default is not a default in the payment or expenditure of money and is curable but cannot be cured within thirty (30) days, to commence performance within such thirty (30) day period and thereafter diligently prosecute the same to completion, in which event the default will be deemed to have been cured. In the event it is necessary for Mortgagee to obtain possession of the Premises in order to cure a default, Mortgagee shall be deemed to have cured said default if it institutes foreclosure proceedings within such thirty (30) day period and completes such foreclosure proceedings or otherwise acquires Tenant's interest under this Lease with diligence and continuity and thereafter commences and diligently proceeds to cure such default; provided, however, that Mortgagee shall not be required to continue such possession or continue such foreclosure proceedings if the default which would have been the reason for serving a default notice shall be cured, and provided further, that nothing in this Article shall preclude Landlord from exercising any rights or remedies under this Lease with respect to any other default by the Tenant during any period of such forbearance. 17.3 Additional Rights of Mort ag gee. In the event of foreclosure by any Mortgagee, the purchaser at the foreclosure sale or the Person acquiring Tenant's interest in lieu of foreclosure shall succeed to and be bound by all of Tenant's rights, interests, duties and obligations under this Lease. In the event that a Mortgagee shall become the owner or holder of the Tenant's interest by foreclosure of its Mortgage or by assignment of this Lease in lieu of foreclosure or otherwise, the term "Tenant", as used in this Lease, means only the owner or holder of the Tenant's interest for the time being so that, in the event of a sale, assignment or other disposition of the Tenant's interest in this Lease by the Mortgagee, the Mortgagee shall be entirely freed and relieved of all covenants and obligations of the Tenant under this Lease arising after the date of such sale, assignment or other disposition, and it shall be deemed and construed, without further agreement between Landlord and Mortgagee or between Landlord, Mortgagee and the Mortgagee's purchaser or assignee at any such sale or upon assignment of Tenant's interest, that the purchaser or assignee of Tenant's interest has assumed and agreed to carry out any and all covenants and obligations of Tenant. In the event of the termination of this Lease or of any extension of said Lease prior to its stated expiration date, or in the event of the termination of Tenant's right to possession of the Premises as a result of an event of default by Tenant hereunder, Landlord will enter into a new lease of the Premises with Mortgagee or, at the request of such Mortgagee, with a corporation which is wholly owned by such Mortgagee, for the remainder of the term effective on the date of such termination of this Lease (or termination of Tenant's right to possession of the Premises) at the Rent and upon the covenants, agreements, terms, provisions and limitations contained in this Lease, provided that such Mortgagee makes written request and executes, acknowledges and delivers to Landlord such new lease within thirty (30) days from the date of such termination of this Lease (or termination of Tenant's right to possession of the Premises) and such written request and such new lease are accompanied by payment to Landlord of all amounts then due to Landlord, including 2 CITY OF SEBASTIAN PAGE 01 "03/12i~2007 07:46 7725895570 Attorneys' Fees inc:~urod by Landlord in connection with :my such default and termination as well a9 i~a com~cction with the execution and delivery of such new lam, ~ addition, iwmediatelp upoa eacecutian of such taesw lease, Landlord shall execute, aclmowledge and deliver to Mortgagee a~i assignment of all subleases covering the Pt+emises which thecebofore nosy ha`~e been assigned and ~ to Landlord. Such a~igpament by Landlord shall bo deemed m be without recowcse as against I,emdlord. Re£er+ence im this I.aase to a Mortgagee sha11 be doomed to refer, where circumstances require, to any aasigoes of a Marr$sgee; provided that such assigneo shall forward to the Landioxd a daplicatc original ~~f the assigpment of the Moztgage, together with a written notice xttiag forth d~c name and address of the assigacc. 2. Taaent hereby agrees to allow the Option lxdd vn the eve acres parcelad~oining the leased prennises to the north to lapse an shall rnalac no £~uther claim of right to said laatds through the Lease, Amer-dmmt One or any options or equitable ciai~; otherwise. 3. All running tus and editions of the initial Lease, as amended, shall remaim in full force and e$ect. IN WI1TiFS5 F, the parties hereto have set their haTUis and seals this ~~ day of F, 2007 ~~ CT>t'Y OF SEBA:>TTAN ATTEST: A Municipal Cor~orntion .- ._ ~ ., Sally A. 'o, MMC City C Approved as to Form aad I,egatity for Reliance by the City of Sebastiaa only: Rich Stringer, Ci ter, III, City Manager TENANT: Sebastian Airport :>torage, LLC ~-~~~~~