Rail Line Easement Agreement, among City of Orlando, Greater Orlando Aviation Authority and All Aboard Florida Operations LLC, dated January 22, 2014

Exhibit 10.11

RAIL LINE EASEMENT AGREEMENT

THIS RAIL LINE EASEMENT AGREEMENT (the “Rail Line Easement Agreement” or “Agreement”) is made by and among 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, 400 S. Orange Avenue, Orlando, Florida ###-###-#### (the “City”) and 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 One Jeff Fuqua Boulevard, Orlando, Florida ###-###-#### (the “Authority”), and ALL ABOARD FLORIDA – OPERATIONS LLC, a Delaware limited liability company authorized to conduct business in Florida, whose mailing address is 2855 LeJeune Road, 4^th Floor, Coral Gables, Florida, 33134 (“Rail Company”).

W I T N E S S E T H :

WHEREAS, pursuant to an agreement dated September 27, 1976, as amended, with the City, City Document Number 13260-1, the Authority controls, operates, and maintains an airport in Orange County, State of Florida, known as Orlando International Airport (hereinafter referred to as the “Airport”); and

WHEREAS, included in the Airport property is that certain real property located in Orange County, Florida and more particularly described on Exhibit “1” attached hereto and incorporated herein by reference (the “Rail Line Easement Property” (and as more particularly described in this Agreement)); and

WHEREAS, Rail Company is developing an inter-city commercial passenger rail connection between Miami and Orlando with the Orlando terminus located at the South Airport APM Complex at the Airport (the “Rail Project”), which will be a common carrier service and system, open to the public for transportation-related purposes and shall create a rail system that fulfills an essential public purpose; and

WHEREAS, the parties believe that the Authority’s South Airport APM Complex development, the planned multi-modal transportation corridor which includes the APM and APM Station and the Rail Company’s Rail Project will complement the other and serve the important purpose of providing multiple transit modes at the Airport; and

WHEREAS, the Authority is simultaneously herewith entering into the Premises Lease and Use Agreement with Rail Company whereby the Authority is leasing the Rail Company Premises (as hereinafter defined) to Rail Company which will be the Orlando terminus of the Rail Project; and

WHEREAS, the Authority is simultaneously herewith entering into the Vehicle Maintenance Facility Ground Lease Agreement with Rail Company whereby the Authority is leasing the Maintenance Facility (as hereinafter defined) to Rail Company which will serve as the repair and maintenance facility for the entire Rail Project; and

WHEREAS, Rail Company has requested and the Authority and City have agreed to grant to Rail Company an exclusive, ninety-nine (99) year, rail easement under, over, through and across the Rail Line Easement Property, pursuant to the terms set forth in this Rail Line Easement Agreement, for the installation, construction, use, operation, maintenance and repair of two (2) rail lines for the Rail Project, all as more specifically set forth herein, subject to the terms and conditions of this Rail Line Easement Agreement.

NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein set forth, and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby expressly acknowledged, the parties hereto covenant and agree as follows:

1.             Recitals. The foregoing recitals are true and correct and incorporated herein by this reference.

2.             Definitions.

a.             Abandonment has the meaning set forth in Paragraph 7.a.ii, below.

b.             Agreement means this Rail Line Easement Agreement by and between the City, the Authority and Rail Company

c.             Agreement Period means each twelve-month period beginning on ________ and ending on ________ during the Term of this Agreement; provided, however, that with respect to any year in which the Term of this Agreement expires or is terminated in accordance with the provisions of this Agreement, Agreement Period shall mean the period from the first day of the Agreement Period to the date of expiration or termination of the Term.

d.            Airport means Orlando International Airport, owned by the City and operated by the Authority, including all real property easements or any other interest therein as well as all improvements and appurtenances thereto, structures, buildings, fixtures, and all tangible personal property or interest in any of the foregoing, now or hereafter owned, leased or operated by the Authority. The boundaries of the Airport may be modified from time to time, and at any time, in the exclusive discretion of the Authority.

e.             APM means the automatic people mover to be constructed by the Authority to move people between the North Terminal and the South Airport APM Complex.

f.             Attorney’s Fees means reasonable attorneys’ fees and costs, including, without limitation, fees and charges for the services of paralegals or other personnel who operate for and under the supervision of attorneys and whose time is customarily charged to clients.

g.            Authority means the Greater Orlando Aviation Authority, created pursuant to Chapter 57-1658, Special Laws of Florida 1957, as replaced by Chapter 98-492, Laws of Florida, as amended, and, for purposes of carrying out and exercising the obligations, rights and duties of such entity hereunder, its board and executive staff, as the context requires.

h.             Base Year Income shall mean the Income from Rental Car Operations for the year prior to the commencement of operations in which passengers are paying for being transported in the Rail Company rail services to or from the Airport.

i.              City shall mean the City of Orlando, Florida.

j.              Closing Agent has the meaning set forth in Paragraph 6.a of this Agreement.

k.             Critical Rail Corridor Improvements has the meaning set forth in Paragraph 5.a of this Agreement.

l.              Effective Date means the date of Escrow release pursuant to paragraph d. of the Escrow Provisions set forth in Exhibit “12” attached hereto.

m.            Escrow Conditions has the meaning set forth in Paragraph 6.b of this Agreement.

n.             Event of Default means either a Termination Event of Default or a Non-Termination Event of Default.

o.             FAA means the Federal Aviation Administration, or its authorized successor(s).

p.             Fair Market Value (FMV) shall have the same definition as defined by the FAA as follows: “the highest price estimated in terms of money that a property will bring if exposed for sale in the open market allowing a reasonable time to find a purchaser or tenant who buys or rents with knowledge of all the uses to which it is adapted and for which it is capable of being used. It is also frequently referred to as the price at which a willing seller would sell and a willing buyer buy, neither being under abnormal pressure. Fair Market Value will fluctuate based on the economic conditions of the area.”

q.             Force Majeure Event shall have the meaning set forth in Paragraph 17.1, below.

r.              Gambling means any form of game of chance regardless of its operator that is defined as Class II or Class III gaming in the Federal Indian Gaming Regulatory Act as of the date of this Agreement or any form of gambling added to the definition of Class II or Class III gaming in the future. Gambling shall also include any electronic gambling devices, simulated gambling devices, video lottery devices, internet sweepstakes devices, and any other form of electronic or electromechanical facsimiles of any game of chance, slot machine, or casino-style game, regardless of how such devices are defined under the Federal Indian Gaming Regulatory Act (“FIGRA”).

s.             Gambling Restriction shall have the meaning set forth in Paragraph 5.h.iii, below.

t.              Improvement or Improvements means the rail base required to support the rail, all rail components and such other items as are required to be affixed or installed within the Rail Line Easement Property for the operation of the Rail Project.

u.             Income from Rental Car Operations shall mean the income received by the Authority from the rental car companies.

v.             Modified Threshold Average Income shall mean the Threshold Average Income adjusted for income reductions caused by the Outside Influences.

w.            Non-Termination Event of Default shall have the meaning set forth in Paragraph 7.b, below.

x.             North Terminal Complex means collectively the central Landside building and satellite airside buildings, the hotel, all ancillary buildings and all the roadways on the Airport existing as of the Effective Date of this Agreement.

y.            Outbound Passenger means any person boarding the Rail Company’s train outbound from the Airport, regardless of whether revenue producing (except for Rail Company employees and crew actively working).

z.             Outside Influences shall mean any adverse effect on the Income from Rental Car Operations not caused by the Rail Transportation Business, including, but not limited to, any effect, change, event, occurrence or state of facts relating to the economy in general, including, but not limited to, the increase in gasoline prices, the transportation industry, the commencement of Sunrail or other transportation alternative at the Airport, and any changes in applicable laws.

aa.           Premises Lease and Use Agreement means that certain Lease and Use Agreement between Rail Company and the Authority for the lease and use of the Rail Company Premises.

bb.          Rail Airport Fee means the privilege fee paid as part of the consideration to the Authority in return for the Authority granting the right to the Rail Company to engage in the business of operating inter-city commercial passenger rail to and from the Airport as set forth in this Rail Line Easement Agreement.

cc.           Rail Airport Fee Increase shall mean the amount calculated as follows: Base Year Income - Threshold Income Average/Threshold Passenger Count less the Rail Airport Fee = Rail Airport Fee Increase, if any, which Rail Airport Fee Increase shall not exceed $0.50 per Outbound Passenger.

dd.          Rail Company Premises means the area upon which Rail Company is granted the right to develop, lease, market and manage the rail service in the Rail Station Building pursuant to the Premises Lease and Use Agreement and includes Rail Company’s platform in the Rail Station Building.

ee.           Rail Corridor means an area established by the Authority on the Airport as more particularly shown on Exhibit “2” attached hereto and incorporated herein by reference upon which the Rail Line Easement will be located and upon which other forms of rail service may be planned, constructed and operated by the Authority and/or third parties in the future.

ff.            Rail Line Easement means that certain exclusive (subject to the Authority’s reserved rights), non-perpetual easement granted by the Authority to the Rail Company over the Rail Line Easement Property for the operation and maintenance of same in connection with Rail Company’s rail operations at the Airport, the form of which is attached hereto as Exhibit “6” and incorporated herein by this reference.

gg.          Rail Line Easement Property means an area located along certain Airport property from where it enters the Airport, continuing into and out from the Rail Station Building, and continuing to the Maintenance Facility, as approximately shown on attached Exhibit “1.” When on ground level the Rail Line Easement Property shall comprise the area from four (4) feet below the ground surface up to eighteen (18) feet above the top of the rail and +/- fifty (50) feet in width though it may exceed 50 feet in width where it includes property that is rendered unusable (i.e. slivers of property north of Rail Line Easement Property south of S.R. 528 or embankments and slopes along the route). When on structure, the Rail Line Easement Property shall comprise the area below the rail to the base of the viaduct or bridge structure (approximately 10 feet) up to 18 feet above the rail and a width of +/- 50 feet which may be up to 145 feet wide through the Rail Station Building excluding platforms. The final Rail Line Easement Property location will be established by survey acceptable to the Authority, City and Rail Company attached to the Rail Line Easement. The maximum height of the Rail Line Easement Property in the area where the Rail Line Easement will be within the Runway Protection Zone for Runway 17L of the Airport will be 108 feet above mean sea level. The Rail Line Easement Property shall also include the foundation and bridge structures through the Rail Station Building and other bridge structures and foundations if they serve only the Rail Company.

hh.          Rail Line Slope Easement means that certain non-exclusive (subject to the Authority’s reserved rights) non-perpetual easement granted by the Authority to the Rail Company over the Rail Line Slope Easement Property for the operation and maintenance of same in connection with Rail Company’s rail operations at the Airport, the form of which is attached hereto as Exhibit “6.”

ii.             Rail Line Slope Easement Property means an area located adjacent to the Rail Line Easement Property outside of the +/- 50 feet corridor that the Rail Company is utilizing to support its Improvements. The Rail Line Slope Easement Property begins at the outside of the Rail Line Easement Property and its width is defined by where the slope from the Rail Line Easement Property matches existing grade. This area does not include slivers and property made unusable by the Rail Project. The final Rail Line Slope Easement Property location will be established by survey acceptable to the Authority and Rail Company attached to the Rail Line Easement.

jj.             Rail Station Building means that building to be located, designed, engineered, permitted and constructed by the Authority adjacent to the South Airport APM Complex at the Airport which will include Rail Company Premises (which includes the platform).

kk.           Rail Transportation Business means that business operated by Rail Company at the Airport for the commercial transportation by rail of persons and baggage from Miami, Florida to Orlando, Florida.

ll.             South Airport APM Complex means the planned APM and other rail related facilities to be constructed by the Authority to consist of infrastructure including a garage structure with at least approximately One Thousand Five Hundred (1,500) automobile spaces, roadways, and stormwater drainage to service said complex.

mm.         South Terminal Complex means the planned additional terminal building and facilities to be constructed by the Authority which will ultimately connect with the South Airport APM Complex and the North Terminal Complex.

nn.          Stabilization Date shall have the meaning set forth in paragraph 5.h.ii.

oo.          Substantial Completion means the date on which the Rail Company’s primary engineer of record, ___________ (or a successor primary engineer of record), provides an AIA Certificate of Substantial Completion certifying to the Authority that all Improvements reasonably required to be constructed for the operation of the Rail Project on the Rail Line Easement, together with all Critical Rail Corridor Improvements are substantially complete so as to permit use, operation, and occupancy thereof.

g.          Reservation Of Rights. The Authority, and City as specifically set forth below, reserve for themselves and all grantees, licensees, permittees, and others claiming by, through, or under the Authority or the City, the right at all times during the Term of this Agreement to enter the Property at all reasonable times and upon reasonable prior notice in the following circumstances, subject to the specified conditions of this Agreement:

i.          Authority retains all rights to cross under or over the Property and to continue utilization and allow continued public utilization of all existing roadways and driveways that cross the Property. Although the parties desire to minimize the establishment of any at-grade crossings, if the Authority finds it necessary to establish one or more new at-grade pedestrian and vehicular crossings, then to the extent such at-grade crossings do not adversely impact the operation of the Rail Project in any material respect and provided the plans and specifications therefor are approved by Rail Company, which shall not be unreasonably withheld, the parties shall enter into a License Agreement allowing such crossings without any payment of rent or license fees, which shall include, without limitation, (x) the installation of any work related to the at-grade crossing, including signalization and other equipment, shall be performed by Rail Company at the cost of the Authority, (y) maintenance of the crossing shall be performed by Rail Company at the Authority’s expense, and (z) an indemnity from the Authority in favor of Rail Company as contemplated below. The standards applicable to any new at-grade crossings which will comparable to at-grade crossings established by Rail Company for such crossings along the remainder of the route outside of the Airport. The existing temporary at grade construction haul road crossing near to or within the Vehicle Maintenance Facility Ground Lease area will be Rail Company’s responsibility and will be included within Rail Company’s indemnification provisions below. In the event the parties establish any new at-grade pedestrian and/or vehicular access points across the Rail Line Easement Property as set forth above, the License Agreement will include an indemnity by the Authority in favor of Rail Company equivalent to the indemnity provided by Rail Company to Authority pursuant to Paragraph 14.a. below, except it shall be limited by provisions of Fla. Stat. §768.28, as such statutory limitation may be amended from time to time. Any at-grade crossings desired by third parties (light rail or otherwise) shall be subject to Rail Company and such third parties entering into a License Agreement allowing such crossings.

ii.         Rail Company acknowledges that the Authority will need access to and across the Property and over, across, or under the Rail Project in order to perform maintenance on other Authority facilities that may be located on, over, under, or adjacent to the Property.

iii.        If an Event of Default by Rail Company then exists, the Authority may enter the Property to perform any work necessary and take any reasonable actions to cure the applicable default in order to protect the interests of the Authority under this Agreement or ensure the continued safety of the traveling public, including the remediation of any release of hazardous substances in violation of this Agreement.

iv.        In the event of an actual or reported emergency, danger, or threat that is reasonably believed by the Authority or police, fire, emergency services, armed forces, and any other governmental security or emergency personnel to have caused (or to present the imminent potential to cause) injury to individuals, damage to Property, or threat to the environment or to public safety, the Authority or police, fire, emergency services, armed forces, and any other governmental security or emergency personnel may enter the Property to take, at such times as the Authority or other governmental entity determines necessary in its reasonable discretion and with such notice to Rail Company as is practicable under the circumstances, such actions as the Authority or other governmental entity determines necessary to respond to or to rectify such emergency, danger, or threat.

v.         In the event of any circumstance or event affecting the Rail Project that is not an actual or reported emergency, danger, or threat addressed by subparagraph iv. above, but is reasonably believed by the Authority to have caused an impairment to the continuous safe operation of any portion of the Airport, and if the Authority in its reasonable discretion determines that, following its written notice to Rail Company describing the circumstance or event with particularity, Rail Company is not taking the steps reasonably necessary to respond to or to rectify such circumstance or event within a reasonable time as is practicable under the circumstances, the Authority may enter the Property to take, at such times as the Authority determines necessary in its reasonable discretion, and with prior written notice to Rail Company, such actions as the Authority determines may be necessary to respond to or to rectify such circumstance or event or to restore the safe operation of the affected transportation facility, with it being understood and agreed that the use of the Property for the Rail Project in accordance with applicable law, including the operation of a passenger rail service and its ancillary train noise and emissions, shall not be deemed to cause an impairment to the continuous safe operation of any portion of the Airport or any other Authority owned facility.

vi.        Rail Company acknowledges that the Authority has issued licenses for the installation and maintenance of utilities within the Rail Line Easement Property and, may issue such licenses in the future. The Authority, City and the owners of any utilities existing as of the Effective Date, may install, permit, design, manage, maintain, inspect, repair and rehabilitate any of their utilities (whether provided by the Authority, City, the State of Florida or third parties) in, on, under, across, over or through the Rail Line Easement Property (including water and sewer lines, power transmission lines, fiber optic cable, surveillance equipment and other communications), upon reasonable notice in compliance with the Authority’s rules and in any manner that does not affect Rail Company’s use and operation of the Rail Project in any material respect (with it being understood that it is material for Rail Company to be able to operate, maintain and improve the Rail Project in a safe and continuous manner in order to deliver uninterrupted service to its passengers). Rail Company shall have the right, but not the obligation, at all times during the Term, to install, design, manage, maintain, repair, and rehabilitate utilities or other services for its own account to the extent that the said utilities or services are necessary or desirable for the Rail Project.

vii.       Authority reserves the right of access to the Property as is reasonably necessary for the Authority to take any reasonable actions required to be taken to address any release of hazardous substances that may have occurred prior to the Effective Date, including, but not limited to, sampling of soil and groundwater, monitoring well installations, soil excavation, and groundwater remediation.

viii.      Upon reasonable prior notice, Rail Company shall allow the Authority reasonable access to the Property for activities incidental to Authority planning efforts, including surveying and conducting an environmental assessment.

ix.         Upon reasonable prior notice, Rail Company shall allow the Authority reasonable access to the Property to do any other act or thing the Authority may be obligated to do, or have a right to do, pursuant to the terms of this Agreement.

x.          As to the Rail Line Slope Easement Property, the Authority reserves the right to impact the Rail Line Slope Property by installing retaining walls at the Authority’s expense to provide support to the Rail Line Easement Property. The Authority shall provide written notice and design construction plans to Rail Company for its review and approval. Rail Company shall have thirty (30) days to provide comments on the plans submitted. If no response is received within thirty (30) days, the plans are deemed approved.

The reservation of a right by the Authority to enter upon the Property and perform any act shall not be deemed to: impose any obligation on the Authority to do so; make the Authority responsible to Rail Company or any third party for the failure to do so; or relieve Rail Company from any of its obligations under this Agreement.

It is acknowledged and agreed that it is material for Rail Company to be able to operate, maintain and improve the Rail Project in a safe and continuous manner in order to deliver uninterrupted service to its passengers. The Authority and City shall exercise their access rights under this Agreement in a reasonable manner so as to minimize interference with Rail Company’s use and enjoyment of the Property and safe and reliable operation of the Rail Project subject to the provisions of this Agreement. With regard thereto, any such access to the Property may be limited to specific times and will need to be coordinated with Rail Company following reasonable notice and shall be subject to Rail Company’s standards and requirements for entries onto railroad property, which include, without limitation, the positioning of flag persons, and insurance requirements that are uniformly applicable to contractors performing work within the boundaries of the Rail Project (provided, any such insurance requirement or any indemnification requirement shall apply to the Authority’s and the City’s contractors, but shall not require the Authority or City to purchase insurance or to make any indemnification in connection with any access that it may exercise through its contractors or employees in connection with any activity otherwise authorized by this Agreement). With regard thereto, it is also acknowledged by the Authority and City that access to the Property following the commencement of operations of the Rail Project will need to be subject to rules and procedures in order to protect the safety of the public and prevent injury or loss to persons and property, including, without limitation, rules and regulations mandated by the Federal Railroad Administration (“FRA”) regarding access to rights of way used for railroad purposes. Without limitation of the foregoing, certain rules that shall govern access before, and after, the commencement of operation of the Project are set forth on Exhibit “8” hereto, as same may be modified from time to time (the “Rules”). The Authority and City shall require that all access to the Property by or through the Authority, City or their respective agents and/or employees shall conform to the Rules. Without limiting the generality of the foregoing, any Authority employees or other Airport employees or City employees that utilize any access over the Property must undergo specific right-of way training.

h.          Right to Operate Rail/Rail Airport Fee/Restrictions.

i.          Right to Operate Rail at the Airport.

Upon recording of the Rail Line Easement, the Authority shall grant to Rail Company the right to operate rail service as described herein into and out of the Airport subject to the terms and conditions set forth herein. All of Rail Company’s trains utilizing the Rail Line Easement shall stop at the Rail Station Building and accommodate for the boarding and alighting of passengers. This provision shall not apply to trains being operated to or from the Maintenance Facility and not carrying or available to carry passengers.

ii.         Rail Airport Fee.

In return for the grant of the privilege to utilize the Airport as the terminal station for its rail service between Miami and Orlando, Rail Company shall remit to the Authority a Rail Airport Fee of ONE AND 50/100 DOLLARS ($1.50) per Outbound Passenger (the “Rail Airport Fee”). Notwithstanding the above, the Authority hereby agrees to waive a portion of the Rail Airport Fee equal to Zero and 50/100 Dollars ($.50) per Outbound Passenger until the earlier of the date that: (A) Rail Company reaches one million four hundred thousand (1,400,000) total Outbound Passengers over a twelve (12) month rolling calendar (“Stabilization Date”) or (B) the Authority operates bona fide passenger air services at the South Terminal Complex. Upon the earlier to occur of the dates set forth in subsections (A) and (B), the Rail Airport Fee shall be ONE AND 50/100 DOLLARS ($1.50) per Outbound Passenger. At the Authority’s option, the Rail Airport Fee shall be adjusted every five (5) years by the most currently issued Consumer Price Index - U.S. City average for urban wage earners and clerical workers all items (1982-84 equals 100) (“CPI-U”) as follows: The per-Outbound Passenger Rail Airport Fee shall be multiplied by a fraction, the numerator of which shall be the CPI-U for the month preceding the month of adjustment, and the denominator of which shall be the CPI for the month in which the Rail Airport Fee first commenced to be paid as provided hereinabove. If CPI-U is no longer being calculated, the Authority will reasonably select a similar measurement. In no event shall the Rail Airport Fee be adjusted below ONE AND 50/100 DOLLARS ($1.50) per Outbound Passenger.

Notwithstanding the foregoing, the Authority shall be entitled, within the ninety (90) days following the Threshold Date, to a one-time review as to whether the Rail Airport Fee adequately compensated the Authority for any reduction in the Income from Rental Car Operations. First, the Authority will determine whether the Threshold Average Income is less than the Base Year Income. If the Threshold Average Income is equal to or greater than the Base Year Income, the Authority agrees that the Rail Airport Fee fairly compensated the Authority and no further review is required. If the Threshold Average Income is less than the Base Year Income, the Authority will hire a consultant reasonably acceptable to Rail Company to determine whether the reduction in Income from Rental Car Operations was caused by the Rail Company Rail Transportation Business taking into account any Outside Influences. If after taking into account the Outside Influences on the Income from Rental Car Operations the consultant determines that the Income from Rental Car Operations was reduced by the Rail Transportation Business, the Authority shall be entitled to increase the Rail Airport Fee by the Rail Airport Fee Increase, if any.

iii.         Limitations.

(a)        Gambling Restriction.

Rail Company shall not operate nor allow any Gambling on board the trains being operated as part of the Rail Project for the entire length of the line from Orlando to Miami Florida. Additionally, Rail Company shall not promote, advertise or encourage, or otherwise allow any third party to promote, advertise, encourage or otherwise allow Gambling on any portion of the trains being operated as part of the Rail Project. The foregoing is referred to as the “Gambling Restriction.” Notwithstanding the above, a third party magazine available on the train that does not primarily promote Gambling, but contains some Gambling advertising along with numerous other non-Gambling advertising such as an in-flight magazine on an airplane, shall not constitute a violation of the Gambling Restriction. However, a brochure or pamphlet which is primarily focused on advertising Gambling shall be prohibited. The Gambling Restriction shall remain in effect until such a time as Gambling is legal in both Miami- Dade County, Florida and Orange County, Florida and the Authority has adopted a policy allowing Gambling or Gambling promotion on the Airport. In the event Gambling becomes legal in both Miami-Dade County and Orange County, Florida, and the Authority adopts a policy allowing Gambling and/or Gambling promotion on the Airport, then the Gambling Restriction above shall be modified to match the policy adopted by the Authority regarding Gambling and/or Gambling promotion. Rail Company shall only operate the Rail Transportation Business while on Airport property and shall not operate any concessions on Airport property except as otherwise permitted under this Agreement, the Premises Lease and Use Agreement or the Vehicle Maintenance Facility Ground Lease Agreement. Rail Company, without the Authority’s consent, may elect to enter into concession and similar agreements for various services to be provided on the trains such as food and beverages, newsstand, and Wi-Fi. Rail Company’s Wi-Fi service shall be coordinated with the Wi-Fi to be provided by the Authority in the Rail Station Building. It is understood that the foregoing does not require the Rail Company to limit access to internet sites by the passengers.

b.         Fueling Restriction.

Rail Company shall not allow any fueling of the locomotives or any other equipment on or within the Property, or within the Rail Company Premises. All fueling activities of any kind shall occur at the Vehicle Maintenance Facility.

c.          Display Advertising.

Rail Company shall not install or allow any display advertisements within the Rail Line Easement Property. Notwithstanding the prohibition on display advertising within the Rail Line Easement Property, Rail Company may utilize display advertising in the form of “wrapping” of trains. Such display advertising shall be subject to the review and approval or disapproval of the Authority, which shall not be unreasonably withheld. Rail Company anticipates that the Authority will not object to “wrapping” of trains to promote the Rail Company and/or the Rail Project and/or Rail Transportation Business or if it relates to civic or sporting events; however, said display advertising is still subject to the Authority’s review as set forth above. If a display advertising request by Rail Company is submitted as time-sensitive due to the activity to be promoted, the Authority shall review the request on an expedited-basis, with the intent that the request be review and approved (or denied) by the Authority’s Director of the Development Review Committee without setting the item for a full committee or Authority Board approval. The review and approval process by the Authority shall be consistent with its advertising standards and regulations generally applicable to the Airport. In no event shall any display advertising include pornographic or sexually explicit content.

d.         Non-Emergency Repairs.

The Rail Company shall not conduct any non-emergency maintenance or repairs of its train sets on the Property. All such activities shall occur at the Maintenance Facility.

iv.        Payments and Passenger Count Report.

The Rail Airport Fee for each month shall be remitted to the Authority at the office of the Director of Finance without set off or demand on the tenth (10^th) day of each month following provision of rail service based on the previous month’s Outbound Passengers at the Airport and provide the Authority at the office of the Director of Finance a Passenger Count Report in the form attached hereto as Exhibit “9”, which form the Executive Director may amend from time to time at his reasonable discretion upon thirty (30) days’ notice. The Passenger Count Report shall set forth the prior month’s Outbound Passenger count and be signed by an officer or designee of the Rail Company.

v.         Annual Certification of Outbound Passenger Count and Rail Airport Fees.

Without demand, within one hundred twenty (120) calendar days after the close of each Agreement Period of the Term hereof, Rail Company at its own cost and expense shall provide statements prepared in accordance with generally accepted accounting principles applied on a consistent basis for its Outbound Passenger counts and Rail Airport Fees due and amounts paid, together with a report on examination of such statements made in accordance with attestation standards established by the AICPA by an independent Certified Public Accountant (CPA), licensed in the state of Florida or a CPA who holds a valid temporary permit to practice in the state of Florida, and who is not an employee of Rail Company, or by an out of state licensed CPA who the National Association of State Boards of Accountancy (NASBA) has verified to be in compliance with the CPA licensure requirements of the American Institute of CPAs/NASBA Uniform Accountancy Act and who is not an employee of Rail Company (the “Report”). The Report must be accompanied by: (1) a schedule of Outbound Passenger Count and Rail Airport Fees and amounts paid by calendar month and in total for such Agreement Period; and (2) an unqualified opinion on examination of those schedules and such calculation by the independent certified public accountant, in accordance with attestation standards and the terms and provisions of this Agreement, including, without limitation, the definitions of Outbound Passenger and Rail Airport Fees as set forth above. There may be no limitation on the scope of the examination that would preclude the independent certified public accountant from expressing an unqualified opinion as to the correctness and completeness of the schedules for each month and for the Agreement Period.

If such schedules indicate the Rail Airport Fees for the Agreement Period have been overpaid, then the amount of overpayment shall be credited to the Rail Airport Fees, next due and owing from Rail Company, unless the Term hereof has expired, in which event such amount shall be promptly refunded by the Authority to Rail Company. If such schedules indicate that the Rail Airport Fees for such Agreement Period have been underpaid, the Rail Company shall submit payment therefor to the Authority at the office of the Director of Finance at the same time it submits to the Director of Finance the statements required under this Article 5.h.v, together with interest on any underpaid Rail Airport Fees at the rate set forth in Article 5.h.vi.d. below, from the date such fees should have been paid.

vi.        Books and Records/Authority’s Right to Audit.

Rail Company shall, at all times during the Term hereof, maintain at its principal business office located in the United States and make available to the Authority in Orange County, Florida complete and accurate books and records, in a form consistent with generally accepted accounting principles, and cause to be installed for use at all times during the Term of this Agreement such cash registers, point of sale systems, credit card processing equipment, devices and forms, invoicing machines, sales slips, passenger counting systems, and other accounting equipment, devices and forms as are reasonably necessary to record properly, accurately and completely all ticket sales and actual Outbound Passenger boardings. Rail Company’s books and records shall be maintained in sufficient detail to allow the Authority or its representatives to review, examine, or audit, in accordance with generally accepted auditing or attestation standards, the Outbound Passenger counts. Rail Company’s federal, state and local income tax returns, and employment records and reports will not be considered business records available for inspection by the Authority, except to the extent necessary to confirm exclusion of employees and crew from the Outbound Passenger count. Rail Company shall account for all transaction of any nature related to Rail Company’s operations in a manner which segregate in detail those Outbound Passenger transactions from other transactions of Rail Company and which supports the amounts reported to the Authority in Article 5.h.iv. At a minimum, Rail Company’s accounting for Outbound Passengers shall include the following:

a)         A compiled report of transactions showing all Outbound Passenger counts prepared in accordance with the Passenger Count Report prepared in accordance with Paragraph 5.h.iv above. That report shall be subtotaled by day, totaled by month and the monthly total shall correspond with the amounts reported to the Authority under Paragraph 5.h.v and shall be reconciled to the amounts posted in Rail Company’s general ledger if different or offset or netted with other amounts posted to the general ledger.

b)         Such other records (including but not limited to, original source documents) which would normally be examined by an independent certified public accountant in performing an examination of Rail Company’s books and records to verify Outbound Passenger counts.

c)         If any such reports or records provided to the Authority contain any trade secrets, commercial or financial information that Rail Company requests in writing to be kept confidential, such information shall be confidential and shall not be disclosed by the Authority other than to carry out the purposes hereof; provided, however, the Authority shall be permitted to divulge the contents of any such reports or records in connection with any administrative or judicial proceedings in which the Authority is involved where the Authority may be required to divulge such information provided the Authority gives Rail Company prompt notice and a reasonable opportunity to object to such disclosure. The foregoing confidential requirement is subject to applicable public records laws and freedom of information laws of the State of Florida.

d)         Such records may be in the form of (a) electronic media generally compatible with the Authority’s computers, or (b) a computer run hard copy, or (c) upon request, a computer text file recorded on electronic media in a format that is compatible with, and that can be imported into Microsoft Excel or other acceptable format, that details monthly transaction information. The Executive Director may reasonably require other records necessary in his determination to enable the accurate audit of Rail Company’s Outbound Passenger counts hereunder. In order to facilitate the review, inspection, or audit performed by the Authority, Rail Company agrees to make suitable arrangements with the independent certified public accountant who is responsible for preparing the annual certification on behalf of Rail Company pursuant to Paragraph 5.h.v, to make available to the Authority’s designated representative(s) for review, any and all working papers relevant to the examination performed by the independent certified public accountant. Rail Company shall also lend such assistance and support to the Authority as the Authority may reasonably request in the conduct of any passenger origin/destination or other survey as the Authority reasonably deems necessary in order to accurately determine Rail Company’s Outbound Passenger counts hereunder. Upon thirty (30) calendar days’ prior written notice from the Executive Director, all such books and records including the General Ledger and any other financial or statistical reports or records that the Authority may reasonably request for the purpose of determining the accuracy of the Outbound Passenger counts reported by Rail Company, shall be made available, either at Rail Company’s office located in the Terminal Complex, or at the Executive Director’s option, at the offices of the Authority, for inspection by the Authority through its duly authorized representatives at any time for up to four (4) years subsequent to expiration of the period to which such books and records relate (and Rail Company shall not be obligated to retain such books and records subsequent to the termination of such four (4) year period); provided, however, that any such inspection will be conducted during reasonable business hours and in such a manner and at such time as not to interfere unduly with the conduct of Rail Company’s business. In the event that exclusions, deductions or allocations reducing the number of Outbound Passengers are not supported or substantiated by such records, all such amounts shall be deemed included in Outbound Passenger counts for the purpose of determining amounts payable to the Authority. Notwithstanding the foregoing, should Rail Company not wish to make its books and records available for inspection, examination or audit at Rail Company’s office located in the Terminal Complex or at the offices of the Authority, Rail Company shall have the option of having the audit performed at a location where Rail Company maintains its records. If Rail Company elects to have the inspection, examination or audit performed at a location outside the Orlando MSA, Rail Company shall pay the Authority for travel and lodging expenses actually incurred in connection with such inspection, examination or audit, in accordance with the Authority’s adopted travel policies, from the auditor’s duty station to the location at which the books and records are maintained for each day of travel and on-site work. After the inspection, examination or audit is completed, the Authority will bill Rail Company for such travel expenses and Rail Company shall promptly pay such bill. If, as a result of such examination, it is established that the Rail Airport Fees for any Agreement Period have been underpaid to the Authority, Rail Company shall forthwith, upon written demand from the Executive Director, pay the difference to the Authority, together with interest thereon at the highest lawful rate minus three percent (3%) from the date such amount or amounts should have been paid. Further, if such examination establishes that Rail Company has underpaid Rail Airport Fees for any year by two percent (2%) or more, then the entire reasonable expense of such examination shall be borne by Rail Company. If such examination indicates the Rail Airport Fees for the Agreement Period have been overpaid, then the amount of overpayment shall be credited to the Rail Airport Fees, next due and owing from Rail Company, unless the Term hereof has expired, in which event such amount shall be promptly refunded by the Authority to Rail Company. The Authority’s rights under this paragraph shall survive the expiration or earlier termination of the Term of this Rail Line Easement Agreement. In the event of any conflict between any provision of this Rail Line Easement Agreement and generally accepted accounting principles or generally accepted auditing standards, or attestation standards the provisions of this Rail Line Easement Agreement shall control even where this Rail Line Easement Agreement references such principles or standards. In particular, without limitation, Rail Company shall maintain all records required under this Rail Line Easement Agreement to the full extent required hereunder, even if some or all of such records would not be required under such general principals or standards.

i.           Operation. Rail Company shall operate the Rail Project constructed on the Property in a safe and reliable manner, in compliance with the terms of this Agreement, and all applicable federal, state, and local governmental laws and regulations. If at any time the Authority has reason to believe that Rail Company is not operating the Rail Project in accordance with the requirements of this paragraph, then the Authority shall provide written notice to Rail Company and an opportunity to address and/or cure a failure to comply with the terms of this Agreement or any applicable federal, state, and local governmental laws and regulations within thirty (30) calendar days from its receipt of such notice. If Rail Company fails to cure any such failure within such thirty (30) days, or fails to commence and pursue the cure of any such failure that cannot be cured within such thirty (30) days, then the Authority shall provide written notice to Rail Company as provided below for notice upon the occurrence of an Event of Default.

j.           Maintenance. Rail Company shall perform such activities as are set forth in Rail Company’s maintenance management plan, to be provided to and approved by the Authority during the Escrow Term. Improvements shall be maintained by Rail Company in a manner consistent with FRA regulations applicable to FRA Class 6 and AREMA standards. Rail Company shall also otherwise generally keep and maintain the Property, the portions of the Improvements located on the Property, and any other structure erected on the Property by Rail Company, in good working order and safe condition and repair at Rail Company’s own expense during the Term of this Agreement, and shall keep the Property free and clear of weeds, brush, and debris of any kind, and of overgrowth of grass, so as to prevent the same becoming unsightly, dangerous, inflammable, or objectionable. Ballast shall be maintained so that it remains within the rail bed and shall be kept reasonably clean and free of grass and debris. Maintenance shall be accomplished in a manner so as to cause no unreasonable interference with the use of the Airport property. The Authority and City shall have no duty to inspect or maintain any of the land, Property or Improvements, if any, during the Term of this Agreement; however, the Authority shall have the right, upon no less than two (2) business days’ written notice to Rail Company, at the Authority’s sole expense, to enter the Property for purposes of inspection, including conducting an environmental assessment if the Authority has reason to believe that a legal violation exists on the Property. Such assessment may include but would not be limited to: surveying, sampling of building materials, soil and groundwater, monitoring well installations, soil excavation, groundwater remediation, emergency asbestos abatement, operation and maintenance inspections, and any other action which might be required by applicable law or commercially reasonable industry practice. The Authority’s right of entry shall not obligate inspection of the Property by the Authority, nor shall it relieve Rail Company of its duty to maintain the Property. Any such inspection by the Authority shall not affect Rail Company’s use and operation of the Rail Project in any material respect (with it being understood that it is material for Rail Company to be able to operate, maintain and improve the Rail Project in a safe and continuous manner in order to deliver uninterrupted service to its passengers). If proper maintenance has not been performed by Rail Company and Rail Company does not cure the failure within thirty (30) days of the date of its receipt of notice from the Authority, then the Authority may perform or have others perform such maintenance and charge the reasonable and necessary cost of such maintenance to Rail Company, with it being understood and agreed that the use of the Property for rail purposes (including without limitation train emissions) in accordance with applicable laws shall not require remedial action. Upon notice from the Authority to Rail Company of such charges incurred by the Authority for the performance of maintenance pursuant to this section, such charges shall become due and payable within thirty (30) days.

6.          Closing Procedures.

a.          Conveyance of Property Interests. Simultaneously with the execution of this Agreement, Rail Company, the City and the Authority shall deliver to Marchena & Graham, P.A., c/o Marcos R. Marchena, Esq. (“Closing Agent”) executed originals of the Temporary Construction Easement, the Rail Line and Slope Easement, the Premises Lease and Use Agreement, and the Vehicle Maintenance Facility Ground Lease Agreement (such documents and other documents subsequently delivered to Closing Agent are collectively referred to as the “Escrow Documents”). Closing Agent shall hold all of the Escrow Documents in escrow until Rail Company and the Authority have jointly notified Closing Agent that the Escrow Conditions (as hereinafter defined) have been satisfied. Upon receipt of such notice, Closing Agent shall promptly record the Temporary Construction Easement and release the Vehicle Maintenance Facility Ground Lease. Closing Agent shall continue to hold in escrow the Rail Line and Slope Easement and the Premises Lease and Use Agreement, until Substantial Completion has been certified as to the Critical Rail Corridor Improvements and as to the Improvements, whereupon Closing Agent shall deliver executed originals to the parties. The conveyance contemplated by this paragraph is sometimes referred to as the “Closing.”

b.          The conditions to be satisfied in order to release the escrow documents are set forth in Exhibit “11” hereto (the “Escrow Conditions”). Closing Agent shall hold all Escrow Documents in escrow from the date hereof until the earlier of the following dates (the “Escrow Term”): (i) the satisfaction or waiver (any such waiver to be in the sole discretion of the waiving party) of the Escrow Conditions or (ii) June 30, 2014, as such date may be amended by the parties in writing (the “Escrow Termination Date”). The Authority’s Executive Director is authorized to extend the Escrow Termination Date for up to ninety (90) days.

c.          The recording of the Rail Line Easement shall occur within thirty (30) days of Substantial Completion of the Critical Rail Corridor Improvements and completion of the Improvements. However, the Authority’s and City’s obligation with respect thereto is specifically contingent upon the Substantial Completion of the Critical Rail Corridor Improvements and the Improvements on or before the date for Substantial Completion reflected in Exhibit “7” hereto (the “Substantial Completion Deadline”) (subject to extension for Force Majeure Events). In addition, if not Substantially Completed by such date but Rail Company is diligently proceeding with construction of the Critical Rail Corridor Improvements, then such date shall be extended until construction is abandoned.

d.          Additional provisions applicable to the escrow established hereunder are set forth in Exhibit “12” hereto.

7.          Events of Default.

a.          Termination Events of Default by Rail Company: The events described below shall each be deemed to be a “Termination Event of Default” by Rail Company as such may result in termination of the Rail Line Easement hereunder:

i.          The conduct by Rail Company of any business on the Property not specifically authorized herein, and such business does not cease within thirty (30) days after receipt of the Authority’s written notice to cease such business or acts.

ii.         The failure of Rail Company to make any payment required to be made by Rail Company hereunder when due as herein provided, which failure is not remedied within one hundred eighty (180) days after receipt by Rail Company of the Executive Director’s written demand, provided that if the amount demanded is in dispute, by payment within such one hundred eighty (180) days of (A) the full portion of the amount due which is not in dispute to the Authority and (B) the full portion of the amount which is in dispute into escrow under protest.

iii.        The repeated failure (defined for this purposes at least six (6) such failures with any consecutive twelve (12) month period) to make any payment required to be made by Rail Company under this Rail Line Easement Agreement when due and as herein provided (provided that notice of such failure shall have been given to Rail Company, but whether or not Rail Company shall have remedied any such failure within the time provided for in such notice).

iv.        Abandonment of use of the Rail Line Easement by Rail Company. “Abandonment” shall be deemed to occur only if the Rail Company, or its properly assigned successor, ceases rail service to be provided by Rail Company to the Airport for a period of 180 days consecutively (subject to extension for Force Majeure Events) provided however if the Rail Company, or its properly assigned successor, is reorganizing, then Abandonment shall be deemed to occur only if rail services to be provided by Rail Company to the Airport cease for a period of 365 days consecutively (subject to extension for Force Majeure Events).

v.         The Rail Company’s regularly scheduled operation of any trains on the Rail Line Easement Property which fail to stop and provide passenger rail service at the Rail Company Premises (or at the Rail Company’s platform in the Rail Station Building if the Premises Lease and Use Agreement is no longer in effect). This provision shall not apply to trains being operated to the Maintenance Facility and not carrying or available to carry passengers (other than employees and crew).

vi.        Upon the filing by or against Rail Company of any proceeding under federal bankruptcy laws, if Rail Company has defaulted in the performance of any provision of this Rail Line Easement Agreement within the 90 days preceding such filing and such default was not cured prior to filing, the Authority shall have the right to cancel this Rail Line Easement Agreement, in addition to other remedies provided under provisions of the Federal Bankruptcy Rules and Regulations and Federal Judgeship Act of 1984, as such may be subsequently amended, supplemented, or replaced. If the filing is an involuntary filing, the Authority shall have no rights under this paragraph if Rail Company causes such filing to be dismissed within one hundred twenty (120) days. Nothing contained in this paragraph shall be deemed to limit Rail Company’s ability to assert rights that may be available under the federal bankruptcy code or rules.

b.          Non-Termination Events of Default by Rail Company: The events described below shall each be deemed to be a “Non-Termination Event of Default” by Rail Company which may result in the Authority pursuing any available right or remedy except for the termination of the Rail Line Easement:

i.          The discovery by the Executive Director that any material statement of fact furnished by Rail Company in connection with this Rail Line Easement Agreement is false or materially misleading and is not made correct within thirty (30) days after written notice.

ii.         The commencement by Rail Company in any court pursuant to any statute of the United States or of any State, territory or government of an insolvency or bankruptcy proceeding, including, without limitation, a proceeding for liquidation, reorganization or for the adjustment of its indebtedness and such proceeding has not been completed or Rail Company discharged within one hundred eighty (180) days after the commencement thereof.

iii.        The failure by Rail Company to cure a default in the performance of any of the terms, covenants, and conditions required herein not otherwise listed in this Section 7.b. within thirty (30) days after receipt of written notice from the Authority of such default; or, if by reason of the nature of such default, the same cannot be cured within thirty (30) days following receipt by Rail Company of written demand from the Authority to do so, Rail Company fails to commence curing such default within such thirty (30) days following such written notice, or having so commenced, shall fail thereafter to continue with diligence the curing thereof and, in any event, fails to cure such default within a reasonable time or ninety (90) days after receipt of notice of such default, whichever is earlier. Rail Company shall have the burden of proof to demonstrate (i) that the default cannot be cured within thirty (30) days, and (ii) that it is proceeding with diligence to cure said default, and that such default can be cured within the earlier of a reasonable period of time or ninety (90) days.

iv.        The placement of any construction lien upon the Rail Line Easement Property as a result of Rail Company’s failure to pay for any work for any Critical Rail Corridor Improvements or any Improvements which were installed by or on behalf of Rail Company and which is not bonded over or discharged of record within thirty (30) days after receipt of notice by Rail Company or any levy under any such lien.

v.         The failure of Rail Company to provide any report required to be submitted to the Authority with respect to the Rail Airport Fee when due as herein provided, which failure is not remedied within twenty (20) days after receipt by Rail Company of the Executive Director’s written demand.