Premises Lease and Use Agreement for Orlando International Airport, between Greater Orlando Aviation Authority and All Aboard Florida Operations LLC, dated January 22, 2014

Additional defined terms appear in other provisions of this Agreement and will have the respective meanings assigned to them.

This Agreement shall commence upon the Effective Date. Rail Company’s obligation to pay rent shall commence upon the later of (i) commencement of Rail Company’s revenue-generating Rail Transportation Business at the Airport following completion of the Improvements to be completed by Rail Company pursuant to Section 6.02 hereof, or (ii) the Authority’s Substantial Completion of the South Airport APM Complex (the “Rent Commencement Date”). The term of this Agreement shall expire on the date that is fifty (50) years from Rent Commencement Date (hereinafter referenced to as the “Term”), unless sooner terminated in accordance with the terms and provisions hereof. The obligation of Rail Company to begin operation of it Rail Transportation Business is estimated to commence as provided in the Master Timeline as provided in the Rail Line Easement Agreement; provided, however, Rail Company’s obligation to commence its Rail Transportation Business is conditioned upon the Authority causing (i) the completion of the Rail Station Building (including all punch list items), (ii) completion of the Platform, (iii) the completion of all access roads so that the Rail Station Building has legal ingress and egress, (iv) completion of the APM, and (v) the commencement of operations by the rental car facilities on the Airport serving the Rail Station Building. The obligation of Rail Company to pay amounts owed hereunder for its use of the Premises shall survive expiration or earlier termination until such amounts are paid in full. It is the intention of the Authority and Rail Company that on the date that Rail Company commences its Rail Transportation Business, that all construction work in connection with the Rail Station Building, the Improvements and all other ancillary improvements shall be one hundred percent (100%) completed with no punch list items or other unfinished or defective items and all ancillary services which serve the Rail Station Building (including, without limitation, rental car services, concessions, etc.) shall be fully operational so that passengers, customers, guests and others who enter the Rail Station experience a fully operational passenger rail station with all complementary amenities.

3.01     Premises.

1.          The Premises is to be approximately 35,000 square feet located on the first, second and third floor of the Rail Station Building, which includes hold rooms, ticket counters and back office, approximately 3,000 square feet on the first, second and third floor for baggage operations, and approximately 83,500 square feet of Platform on the second floor, all of which is more specifically depicted on Exhibit “B.”

3.          The Authority hereby leases and demises to Rail Company and Rail Company agrees to lease and accept from the Authority, the Premises. Upon Substantial Completion of the Rail Station Building, Rail Company shall accept the Premises “as is”, generally in the same condition in which such space or any part thereof will be provided, however, the Authority shall assign any warranties on the construction, materials, equipment and other personal property incorporated into the Rail Station Building which are applicable thereto or shall cooperate with Rail Company in order to make claims as necessary under any such warranties. Rail Company agrees that the Authority shall have no obligation to do any work on, or make any improvements to or with respect to the Premises or the condition thereof, unless otherwise specifically agreed to by the Authority.

4.          The Authority may, in its reasonable discretion, (i) make changes in the Airport boundaries, the categories of space (e.g. Public Space to rentable space) or the configuration or amount of space (but not the Premises unless agreed to by Rail Company), and (ii) identify new, destroyed, demolished, untenable, decommissioned or re-commissioned facilities or space. In any such event, or upon any change in Premises made hereunder or to the premises leased by any other party, the Authority may amend Exhibits “A” and/or “B”, as appropriate, and, upon notice to Rail Company, such amended Exhibit shall replace any previous corresponding exhibits and shall become a part of this Agreement; provided, however, that Rail Company’s Rail Transportation Business shall not be adversely affected in any material respect by any such changes.

5.          Rail Company and the Authority agree that it is important to maximize the efficiency of space leased and used in the Rail Station Building, while also adhering to reasonable standards and levels of customer service for the traveling public. Throughout the Term of this Agreement, Rail Company and the Authority will continue to monitor and evaluate operations in an effort to achieve a reasonable balance between efficient railroad operations and level of customer service for the traveling public. Should the Authority notify Rail Company of its concern with regards to potential customer service issues, Rail Company agrees to discuss with the Authority, and take reasonable action to address and alleviate, the customer service issues. The Authority acknowledges and agrees that on or before Rail Company commences its Rail Transportation Business, it shall cause (i) rental car facilities to be open and operating on the Airport, (ii) completion of the APM, and (iii) all access roads in order for the Rail Station Building to have legal ingress and egress to have been completed.

6.          Rail Company may satisfy temporary or seasonal needs for additional space within the Rail Station Building (i.e. a change in demand for space expected to be temporary caused by unusual or special circumstances) through the use of a Space/Use Agreement. Rental rates payable by Rail Company under the Space/Use Agreement for additional space within the Rail Station Building shall be at the per square foot rent herein effect under this Agreement. At any time during the term of any Space/Use Agreement, Rail Company may request that the space leased thereunder be added to this Agreement. The Authority may approve or deny this request in its reasonable discretion. If the Rail Company requests additional space outside the Rail Station it shall be handled in the same manner with applicable rent to be agreed upon between the parties.

3.02         Station Equipment. Rail station equipment shall not be provided or owned by the Authority. The installation of any and all rail station equipment is subject to the prior written consent of the Authority except that no consent is needed for the installation of any equipment for Rail Company’s Rail Transportation Business.

3.03        Employee & Guest Parking. The Authority agrees to designate an area of Phase 1 of the Parking Garage which will be a Rail Company-branded area for the Rail Company’s use for its passengers’ and employees’ convenience. The Authority staff will review the ridership study to be provided by the Rail Company to determine the initial number of spaces to be set aside for the Rail Company. All parking fees will be collected directly by the Authority. The parties will cooperate to install directional and wayfinding signage in the Parking Garage in connection with Rail Company’s designated area.

4.01      Determination of Fair Market Rental Value. The initial Fair Market Value for the annual rental of the Premises is $73.58 sq. ft. for hold rooms, back office, and ticket counters, and $3.00 per sq. ft. for the Rail Platform, baggage makeup, baggage delivery and any other unconditioned space.

In the event the then Fair Market Value of the Premises has not been determined until after the date upon which the required adjustment is to become effective, the annual rent previously in effect shall continue until such Fair Market Value and the new annual rent is determined. Once determined, the new annual rent shall become effective, retroactive to the date upon which such adjustment was required, and within ten (10) days after the Rail Company has received notice of the new annual rent, Rail Company shall pay to the Authority any additional annual rent that is due and owing, if any. The rate making model is the same as used for determining rental rates for airlines at the North Terminal Complex with the exception that it does not include debt service.

4.02        Commencement of Rent and Payments. Payments of annual rent hereunder shall commence on the Rent Commencement Date. Commencing on the Rent Commencement Date, Rail Company shall make monthly payments of one-twelfth (1/12) of the total annual rent, as may be adjusted from time to time, for the Premises, without demand or invoice, on the first day of each month. Said rentals and charges shall be deemed delinquent if payment is not received by the fifteenth (15th) day of the month.

4.03        Change in Annual Rent. The initial determination of the annual rent shall be fixed for five (5) years commencing on the Rent Commencement Date. Thereafter, the Authority and Rail Company agree that, once every five (5) years the then current rate making model for airlines shall be applied, but shall not include debt service, miscellaneous direct reimbursements, airline equipment requirements, baggage system expenses, FIS requirements and available PFC Revenues to determine the Fair Market Value for conditioned space and unconditioned space. The rate making model uses a commercial compensatory ratemaking methodology in order to recover from the Rail Company its fairly allocated share of Airport costs in accordance with the U.S. Department of Transportation’s Policy Regarding Airport Rates and Charges. 61 Fed. Reg. 31994 (June 21, 1996) and other applicable law. The annual rent shall be adjusted for each such five (5) year period based on the then current rate making model but in no event shall the annual rent be reduced and shall not be increased by more than 35%.

4.04        Changes in Rates. Fees and Charges. Adjustments to rates for the annual rental shall apply without the necessity of formal amendment of this Agreement.

4.05        Sales, Use, Ad Valorem and Other Taxes. Rail Company shall be solely responsible for paying when due all applicable taxes, if any (including, without limitation, sales, use, ad valorem or leasehold intangibles taxes, if any are required to be paid), assessments (including , without limitation, stormwater utility charges) and impact fees levied against or in connection with the Premises, Rail Company’s leasehold interest therein, and any Improvements thereto, and shall pay when due all taxes and assessments levied against Rail Company’s personal property located on the Premises or otherwise arising out of Rail Company’s occupation, use of or operations on the Premises. In the event Rail Company fails to pay such taxes and assessments when due, Rail Company shall be obligated to pay all resulting interest and penalties on such delinquent taxes and assessments. To avoid delinquency, the Authority shall have the right, but not the obligation, to pay any such taxes or assessments on behalf of Rail Company and to collect the amount of such payment from Rail Company, together with interest assessed by any taxing authority having jurisdiction, as Additional Rent. If the Term of this Agreement expires or is earlier terminated prior to the close of the tax year for which any such tax is payable, or if the Term of this Agreement commences on a date other than the first day of such tax year, Rail Company shall be responsible for paying a percentage of the tax calculated by dividing the number of days that this Agreement was in effect during such tax year by the total number of days in such tax year. If this Agreement is in effect for a period less than any entire period for which an assessment other than a tax is imposed, Rail Company shall pay a percentage of the assessment calculated by dividing the number of days this Agreement was in effect during that assessment period by the total number of days in the assessment period.

4.06      Escrow Agreement. This Agreement is an Escrow Document to be held in Escrow by the Closing Agent, until satisfaction of each and every Escrow Condition as set forth in the Rail Line Easement Agreement. All capitalized terms in this section are defined in the Rail Line Easement Agreement.

5.01      Design Coordination.

2.    The Authority and Rail Company shall meet as often as necessary to determine the scope of the Rail Station Building to be constructed, including but not limited to whether it is to be built in phases, how the connection from Rail Station Building to the APM Station will occur, design criteria common to all structures in rail corridor (e.g. third (3^rd ) level great hall, clearance for first (1^st) floor, etc.) and milestones for design completion of the Rail Station Building and APM Station and related infrastructure.

3.    The Authority shall provide its design plans and specifications to the Rail Company at thirty percent (30%), sixty percent (60%), ninety percent (90%) and one hundred percent (100%) completion for the Rail Company’s review and approval, which shall not be unreasonably withheld. Any comment must be provided with specificity and shall be submitted to the Authority within fifteen (15) business days of receipt of plans and specifications. If the comment relates to the Premises or impacts the Rail Project, the parties shall meet to resolve the comments to Rail Company’s reasonable satisfaction. Any comments from Rail Company regarding items that do not impact the Rail Project or the Premises are strictly informational and the Authority may choose, in its sole discretion, not to incorporate the same.

4.    The design shall be complete within one hundred eighty (180) days of the Effective Date.

6.01      Alterations and Improvements by Rail Company. Pursuant to the terms set forth herein, Rail Company may construct and install, at Rail Company’s sole expense, such Improvements in its Premises as Rail Company deems to be necessary for its operations; provided, however, that the Plans and Specifications for such Improvements shall be approved by the Executive Director in writing prior to the commencement of any and all such construction or installation and that Rail Company complies with the reasonable requirements of the Authority in effect from time to time. Said approval shall not be unreasonably withheld, conditioned or delayed. No reduction or abatement of rentals, fees, and charges shall be allowed for any interference with Rail Company’s operations by such construction, except in the event of a Force Majeure Event (as hereinafter defined).

1.   Rail Company shall be responsible for undertaking at its own cost and expense the installation of all Improvements, fixtures, furnishings, signage, trade fixtures and equipment necessary to conduct their operations at the Premises, including, but not limited to, all interior and exterior finishes, counter shelving, cabinets, display cases, air conditioning and heating ductwork and controls for air distribution within the Premises, lighting, communication and power fixtures, all wiring, accessories and panels required to bring power from the main electrical panel, and any water piping, control and drainage facilities (if the same are required for its operations on the Premises). Additionally, the Rail Company shall provide air handlers, variable volume controllers, fan coil, distribution ductwork, chilled water piping, etc., for heating and air conditioning throughout the Premises. Air handlers, and/or fan coils shall be controlled by space temperature sensors and microzone controllers (HVAC suppliers utilize microflow controllers) provided by the Rail Company tied to the building automation system that will be required by the Authority. The Rail Company shall at its expense provide the necessary hardware and installation to connect their electrical services to the Authority’s automation system. (Terminal units shall be controlled by Rail Company provided thermostats that are interlocked to close when the associated air handler is shut down). To ensure construction of first class facilities in the public areas of the Premises, the Rail Company agrees to utilize finishes that are comparable in quality and cost to the Public Space finishes installed by the Authority in the Rail Station Building, which Public Space finishes are described in Exhibit “D” attached hereto and incorporated herein by this reference. In addition, to avoid ambiguity between the base building and shell improvements being made by the Authority to the Rail Station Building and the Improvements that will be required to be made by Rail Company, Exhibit “E” attached hereto and incorporated herein by this reference sets forth a description of the base building and shell improvements being made by the Authority to the Rail Station Building.

2.    The Rail Company shall abide by the design criteria which has been provided to Rail Company (hereinafter referred to as “Tenant Design Criteria”). Upon reasonable prior notice, the Executive Director shall have the right at any time during the Term of this Agreement during normal business hours to enter the Premises to ensure that Rail Company’s operations conform to the Tenant Design Criteria. Promptly upon its receipt of written notice from the Executive Director that it has been determined that Rail Company’s display, design, or operations are not in compliance with the Tenant Design Criteria or the other provisions of the Agreement, the Rail Company shall make modifications necessary to achieve compliance; provided that if Rail Company disagrees with any such determination, the Authority and Rail Company shall meet in order to resolve any disagreements.

3.     The Rail Company shall construct, replace or remodel the Premises and install new fixtures and furnishings in accordance with the provisions of this Article 6.

a.          Any clocks exposed to public view shall be compatible with and be connected to the Authority’s master clock system, at Rail Company’s expense and with the prior written approval of the Executive Director.

b.          Any televisions located in the Premises must be enclosed in cabinetry without any exposed wiring and shall not face the public area outside of the Premises, except as may be approved by the Executive Director.

i.    All   Improvements   to   the   Premises,   including   any   Improvements constructed, installed or altered thereafter by the Rail Company and all furnishings, fixtures, signage, trade fixtures and equipment to be installed by the Rail Company on or in the Premises, and the Plans and Specifications therefor, must be in accordance with the Tenant Design Criteria and must have been submitted to and approved in writing by the Executive Director prior to construction, alteration or installation, such approval not to be unreasonably withheld, conditioned or delayed. In the case of signage, the size, location, text, material, and appearance thereof shall also be subject to such approval, such approval not to be unreasonably withheld, conditioned or delayed. Following approval by the Executive Director, such Improvements shall be made or altered, and such furnishings, fixtures, signage, trade fixtures and equipment shall be installed in accordance with such Plans and Specifications, subject to minor modifications required to be made due to field conditions and in accordance with all applicable statutes, ordinances, building and health codes, rules and regulations, the Tenant Design Criteria, the Airport Development Standards, and all applicable provisions of the Authority’s Policy and Procedures Manual as the same may be reasonably amended from time to time, each of which will be provided to Rail Company upon request.

5.    No Liens.

The Rail Company shall obtain all necessary licenses and permits to accomplish such work and the Rail Company hereby warrants to the Authority that all such Improvements installed by or on behalf of the Rail Company shall be free and clear of any claims, liens, and encumbrances and the Rail Company shall indemnify and save the Authority and the City harmless from and against any and all losses, damages and costs, including Attorneys’ Fees, with respect thereto. If any such claim or lien shall be filed against the Premises or any Improvements thereto or the Rail Company’s rights under this Agreement, the Rail Company shall, within thirty (30) days after notice of the filing thereof, cause the same to be discharged of record by payment, deposit, bond, order of a court of competent jurisdiction or otherwise.

6.    Actions After Completion of Improvements.

Within ninety (90) days after completion of construction in each portion of the Premises, the Rail Company shall, at its expense, provide the Executive Director with record drawings showing the “as built” condition of all Improvements constructed by the Rail Company, as the case may be, on the Premises in both hard copy and electronic format reasonably acceptable to the Authority as outlined in the Tenant Design Criteria. The Rail Company shall further provide the Executive Director with such information and supporting documents pertaining to the cost and replacement value of the Improvements to the Premises as the Executive Director may from time to time request.

7.    Time Schedule Preparation and Approval of Plans and Specifications.

a.          Preliminary Plans and Specifications for all Improvements to be made to the Premises by the Rail Company shall be submitted to the Authority after the date of this Agreement in a reasonable time frame. Final Plans and Specifications for all Improvements shall be submitted to the Executive Director within a reasonable time frame after the Rail Company receives written notice from the Executive Director that the Executive Director has approved the preliminary Plans and Specifications therefor.  The Executive Director shall, within thirty (30) days after his receipt of preliminary or final Plans and Specifications, either approve or disapprove such Plans and Specifications so submitted, which approval shall not be unreasonably withheld, conditioned or delayed. The Executive Director’s right to reasonably approve or reject such plans and specifications shall extend to all matters relating thereto, including, without limitation, architectural, engineering, and aesthetic matters, and the Executive Director shall specifically have the right to reject any designs submitted and to require the Rail Company to resubmit designs and layout proposals until they meet his reasonable approval.

b.          In the event the Executive Director disapproves any portion of the preliminary or final Plans and Specifications, the Rail Company shall promptly submit necessary modifications and revisions thereof. No changes or alterations shall be made in said Plans or Specifications after approval by the Executive Director without the approval of such changes or alterations by the Executive Director. One copy of Plans and Specifications for all Improvements or subsequent alterations thereof shall, within fifteen (15) days after their approval by the Executive Director, be signed by the Rail Company and deposited with the Executive Director as an official record thereof.

c.          The Executive Director’s approval of any Plans and Specifications submitted by the Rail Company shall not constitute the assumption of any liability by the Executive Director or the Authority for the compliance or conformity of such Plans and Specifications with applicable building codes, zoning regulations and municipal, county, state and federal laws, ordinances and regulations, including, without limitation, the Americans with Disabilities Act or any accessibility guidelines promulgated thereunder, or for their accuracy or suitability for the Rail Company’s intended purpose, and the Rail Company, as the case may be, shall be solely responsible for such Plans and Specifications. The Executive Director’s approval of such Plans and Specifications shall not constitute a waiver of the Executive Director’s right thereafter to require the Rail Company, at their expense as the case may be, to amend the same so that they comply with applicable building codes, zoning regulations and municipal, county, state and federal laws, ordinances and regulations, and to make such construction changes as are necessary so that the completed work is in conformity with such amended Plans and Specifications.

8.    Completion of Improvements.

a.          Upon the Executive Director’s approval of the Rail Company’s Plans and Specifications and when authorized to occupy the Premises and proceed with construction of Improvements in accordance with the provisions of this Article 6, and applicable law, the Rail Company, as applicable, shall promptly begin construction and installation of the approved Improvements, furnishings, fixtures, signage and trade fixtures at the portion of the Premises approved and prosecute the same diligently to completion, subject to Force Majeure Events. The Rail Company’s designer of record and the Rail Company’s mechanical, electrical and plumbing contractors or subcontractors: shall (a) provide construction administration and observation services throughout construction on the Premises, one (1) inspection bi-monthly at a minimum, and (b) shall attend bi-monthly construction meetings with the Rail Company’s and the Authority’s representatives. The Rail Company agrees (i) that its Improvements, fixtures, furnishings, trade fixtures and equipment to be constructed or installed in each portion of the Premises shall be completed after the Authority notifies the Rail Company that the Premises are ready for the Rail Company to begin build out of Improvements in the applicable portion of the Premises in accordance with the timeline/schedule attached as an exhibit to the Rail Line Easement Agreement, and (ii) that a delay in completion of any Improvements beyond such date will not postpone the Rail Company’s obligation to open for business, unless the Rail Company has failed to complete construction of its Improvements to the Premises because it has not been afforded sufficient access by the Authority to the Premises for purposes of such construction (in which event the Rail Company’s obligation to open for business and commence paying with respect to the Premises shall be delayed by, as applicable, the number of days that the causes described in such proviso delayed the Rail Company’s construction of its Improvements to the Premises or the number of days necessary to afford the Rail Company sufficient time to complete construction of its Improvements to the Premises as contemplated in such timeline/schedule).

c.           The Rail Company’s Improvements to each portion of the Premises are required to be substantially completed as determined by the Rail Company’s architect and engineer and the Executive Director prior to opening of that portion of the Premises for business. All punch list work shall be completed within thirty (30) days of substantial completion subject to such additional time as may be necessary to order materials. In the event the punch list work has not been completed within thirty (30) days of substantial completion (subject as aforesaid), the Authority shall have the right, but not the obligation, to hire a contractor to complete the Improvements, and the Rail Company for the portion of the Premises impacted, shall be obligated to reimburse the Authority for all costs incurred by the Authority plus a ten percent (10%) administration fee within thirty (30) days of written notice by the Authority.

d.           At all times during the construction and installation of all Improvements and all fixtures, trade fixtures, furnishings and equipment by the Rail Company, the Rail Company shall coordinate the activities of its contractors and installers on the Premises with the Authority.

6.03    Surety Bonds. Alternative Format Security and Sureties’ Qualifications.

1.          Surety Bonds.

a.          Prior to the commencement of any improvements greater than $200,000 at the Airport, Rail Company shall obtain, or cause to be obtained by its Contractor(s), and deliver to the Authority and record in the public records of Orange County, payment and performance bonds in sums equal to the full amount of the construction contract awarded by Rail Company for the improvements, as described more fully herein.

b.           Such payment and performance bonds required hereunder shall name the Contractor of Rail Company as principal, shall name the Authority as an additional obligee thereunder through a multiple obligee rider and shall be drawn from such company licensed to do business in the State of Florida, subject to the Authority’s reasonable approval.

d.           All performance bonds required hereunder from any Contractor of Rail Company shall guarantee the faithful performance of said construction contract and shall protect the obligees from losses, damages, expenses, costs, and attorney’s fees, including appellate proceedings that the obligees sustain because of a default by the Contractor under the contract.

e.           Bonds required hereunder shall be submitted in the forms that fully comply, both in form and substance, with the requirements of Section 255.05, Fla. Stat., any successor thereto and any other applicable law or regulation and shall be reasonably acceptable to the Authority. Rail Company shall provide the Authority with a certified copy of the bonds as evidence of thereof, which shall be recorded by the Rail Company, if requested by the Authority.

f.            Any construction or installation work by or for Rail Company at the Airport shall not unreasonably interfere with the operation of the Airport, or otherwise unreasonably interfere with the permitted activities of other tenants and users. Upon completion of approved construction and within sixty (60) days after Rail Company’s receipt of a certificate of occupancy, a complete set of as-built drawings shall be delivered to the Executive Director in a media type and format reasonably acceptable to the Authority for the permanent record of the
Authority.

2.          Alternate Form of Security.

a.          In lieu of a payment bond and a performance bond in the amount of any contract between Rail Company and a Contractor, pursuant to Section 255.05, Fla. Stat., Rail Company may furnish or caused to be furnished to the Authority an alternate form of security in the form of cash, a money order, a certified check, a cashier’s check, an irrevocable letter of credit, or security of a type listed in Part II of Chapter 625, Fla. Stat., in the amount of the underlying contract Any such alternative form of security shall be for the same purpose and be subject to the same conditions as those applicable to the bond for which the alternative form of security is being substituted. The determination of the value of an alternative form of security shall be reasonably made by the Authority.

3.          Sureties’ Qualifications.

a.          It is further mutually agreed between Rail Company and the Authority that if at any time, the surety that issued a bond no longer meets the requirements set forth in subsection b below, Rail Company shall, at its expense, within fifteen (15) days after the receipt of notice from the Authority to do so, furnish or cause to be furnished an additional or replacement bond or bonds from a surety that meets the requirements hereof.

b.           Any bond shall be on a form to be provided by the Authority and shall be written by a company that meets at least one of the following criteria: (A) has at least one investment grade long-term debt rating from Moody’s Investors Service (“Moody’s”), Standard & Poor’s Financial Services (“S&P”) or Fitch Ratings (“Fitch”); or (B) has a Financial Strength rating of A- or better from A.M. Best Company (“A.M. Best”). Any Letter of Credit provided hereunder shall be on a form provided by the Authority and shall be issued by an FDIC-insured bank that meets a minimum of one of the following criteria: (A) has at least one investment grade long-term debt rating from Moody’s, S&P or Fitch; or (B) has a Financial Strength rating of A- or better from A.M. Best; or (C) has at least $100 million in total assets, has maintained this asset level for the past three years, and has maintained a Tier 1 (core) risk based capital ratio of at least 6.0% for the past three years. In addition, no bank that is subject to a current enforcement action by any regulatory agency may provide a bond or Letter of Credit. Finally, bonds and Letters of Credit must be provided by institutions physically located within the United States.

6.04        Contractor Insurance. Rail Company shall require contractors to maintain, and provide evidence reasonably satisfactory to the Authority of, insurance (including, but not limited to, worker’s compensation/employer’s liability insurance, commercial general liability insurance, automobile liability insurance, and builder’s risk insurance), in such amounts and in such manner as the Authority may reasonably require as set forth herein. The Authority may require additional insurance for any alterations or improvements approved hereunder, in such limits as the Authority reasonably determines to be necessary.

6.05        Responsibility for Construction. Aside from the obligation of the Authority to construct the Rail Station Building, any construction or installation by or for the benefit of Rail Company shall be at the sole risk of Rail Company and shall be in accordance with the Tenant Work Permit Program and all applicable state and local codes and laws and subject to inspection by the Executive Director.

6.06        Ownership of Improvements. All Improvements made to Premises and additions and alterations thereto made by Rail Company, except those financed by the Authority (if any), shall be and remain the property of Rail Company until expiration of the Term of this Agreement. Upon termination or cancellation of this Agreement, said additions and alterations shall become the property of the Authority; provided, however, that any trade fixtures, signs, equipment and other movable personal property of Rail Company not permanently affixed to Premises shall remain the property of Rail Company and shall be removed by Rail Company at the expiration of the Term.

a.          The Authority hereby grants to Rail Company the non-exclusive right and privilege subject to the provisions hereof, and Rail Company hereby assumes the right to develop, lease, manage, market, occupy and maintain space within the Premises for the operation of news and gifts and food and beverage in the portions of the Premises to be determined through the design phase of this Agreement, and in accordance with the provisions of this Agreement, but not to exceed 1,000 square feet (the “Concession Premises”).

b.           Rail Company shall operate the Concession on its own behalf or through negotiation and execution of Subconcessionaire Agreements as approved by the Executive Director from time to time. Rail Company’s form of Subconcession Agreement submitted to and approved by the Authority is attached as Exhibit “F.”

c.           Rail Company shall be entitled to make modifications and changes to the Subconcession Agreement as may be required from time to time in negotiations with potential Subconcessionaires, subject to the Executive Director’s prior consent which shall not be unreasonably withheld or delayed.

d.           Rail Company shall not use or permit the Concession Premises to be used for any purposes other than as described in Section 7.02 without the prior written approval of the Authority nor for any use in violation of any applicable building codes, zoning regulations, municipal, county, state or federal laws, ordinances or regulations. The Authority hereby represents and warrants to Rail Company that the intended use of the Concession Premises for the operation of retail concessions complies with any applicable zoning regulations and municipal ordinances or regulations as of the Effective Date of this Agreement.

2.      Occupancy of Concession Premises.

a.          Rail Company shall be granted occupancy of the Concession Premises as part of the Premises and shall be required to commence paying the Concession Fees on the Rent Commencement Date. Payment of the Concession Fees shall be in accordance with Section 7.04.

3.      Non-Exclusivity. It is expressly provided that the rights and privileges granted hereunder are non-exclusive, and nothing contained herein shall preclude the Authority from entering into an agreement with any other parties during the Term of this Agreement for the sale of news and gifts or food and beverage items in any part of the Rail Station Building or Terminal Complex or elsewhere on the Airport of the same or similar items which Rail Company and it Subconcessionaires are permitted to sell hereunder, whether such agreements are awarded competitively or through negotiations and whether or not the terms of such agreements are more or less favorable than the terms of this Agreement.

7.02  Use Of Concession Premises.

1.  Permitted Uses.

a.          The Concession Premises shall be used by Rail Company during the Term hereof only for the operation of concessions in accordance with the terms of this Agreement of concepts typically found at shopping malls and other major urban airports located in the United States and which are approved by the Executive Director. The parties have agreed that, subject to the provisions of this Section, the following concepts are acceptable concepts: news and gifts and grab and go food and beverage which is deemed to include (without limitation) the retail sale of items typically sold in news and gifts and grab and go food and beverage stores at the Airport. Notwithstanding the foregoing or any other provision of this Agreement, Rail Company and its Subconcessionaires will not be permitted to sell any of the following types of merchandise:

i.     Theme Retail Merchandise – Theme Retail Merchandise means products relating to a theme park, motion picture studio tour or other theme attraction located within a fifty (50) mile radius from the FAA control tower on the Airport as of the Effective Date owned or operated by a person or entity which the Authority permits to operate (or will in the future permit to operate) a theme retail concession in the Terminal Complex, or another person or entity which it controls, is controlled by or is under common control with (“Affiliated Entity”) which: (i) are marked with the logo of such theme retail concessionaire or such Affiliated Entity; or (ii) represent, incorporate or are directly related to characters owned by, or under license to such theme retail concessionaire or such Affiliated Entity or buildings, rides or activities at a theme park or other attraction owned or operated by such theme retail concessionaire or an Affiliated Entity. Currently, Walt Disney World Hospitality & Recreation Corporation (Disney), Busch Entertainment Corporation (Sea World and Busch Gardens), Universal City Florida Partners (Universal Studios) and Delaware North Park Service of Spaceport, Inc. (Kennedy Space Center, NASA) operate theme retail concessions in the Terminal Complex. Rail Company shall be permitted to sell theme retail merchandise at the Concession Premises if the applicable theme retail concessionaire or an Affiliated Entity confirms in writing to the Authority that Rail Company is permitted to sell theme retail merchandise at the Concession Premises;

ii.  Tax free and/or duty-free merchandise; and

iii.  The following news/sundries concession items: cigarettes, cigars and tobacco; pipes and pipe supplies, cigarette and cigar holders; non-prescription drugs (except for over-the-counter drugs and medications typically sold in news and gifts stores at the Airport); camera film and camera accessories (other than batteries), except in connection with a camera shop or electronics shop; and greeting cards and stationary (i.e., Rail Company shall not be permitted to create a “sundries” shop, provided that Rail Company may create a “sundries” shop until such a time as the Authority opens or permits to be open a “sundries” concession in the South Terminal Complex).

iv. Game of chance tickets or Gambling activity.

7.03    Discontinuance, Addition, Deletion of Items.

1.    In the event the Executive Director determines that any news or sundry, offered for sale or sold by Rail Company or its Subconcessionaires are objectionable for display or sale at the Airport as a result of security concerns or their impact upon the public’s health, safety and welfare, Rail Company shall, upon written notice from the Executive Director, immediately require Rail Company to remove or cause such item to be removed from display and Rail Company agrees that it shall ensure such item will not thereafter be displayed or offered for sale. This restriction will be uniformly enforced by the Authority throughout the Airport, and Rail Company and its Subconcessionaires shall not be treated in a discriminatory manner.

2.     Rail Company may request authorization on behalf of itself or a Subconcessionaire to sell additional items not initially approved by the Executive Director, provided such additional items are consistent with the general news and sundry concepts authorized under this Agreement and do not conflict with privileges authorized to others or reserved by the Authority for future authorization to others. Rail Company may sell or allow a Subconcessionaire to sell such additional items only with the prior written approval of the Executive Director.

3.     Rail Company agrees that it will not allow any Subconcessionaire to sell or dispense of, chewing gum or popcorn in any form in or upon the Concession Premises. This restriction will be uniformly enforced by the Authority throughout the Airport.

7.04    Concession Fee (Percentage Fee).

1.          Fee. The annual “Concession Fee” shall equal fifteen (15%) percent of Rail Company’s Gross Receipts (also called the “Percentage Fee”). The Concession Premises are included within the overall Premises Annual Rent and the Concession Fee is paid in addition to the Annual Rent with no set off or adjustment.

2.          Monthly Payments of Fees.

The Rail Company shall pay to the Authority, without demand, at the office of the Director of Finance, on the twenty fifth (25^th) day of the month of each calendar month of the Term hereof, a sum of money equal to the Percentage Fee for that month and shall provide the Director of Finance, with a copy to the Director of Concessions, with a statement, in the form of the “Gross Receipts Report” attached hereto as Exhibit “G” which form the Executive Director may amend from time to time in his reasonable discretion on not less than thirty (30) days prior written notice to Rail Company, which sets forth Rail Company’s Gross Receipts for the then current calendar month and is signed by an officer or designee of Rail Company, and which sets forth Rail Company’s Gross Receipts during the then current calendar month and identifies all receipts derived by Rail Company during such calendar month which have been excluded from the computation of Rail Company’s Gross Receipts without deduction or set-off.

3.          Sales, Use, Ad Valorem and Other Taxes. Rail Company and Subconcessionaires, as the case may be, shall be solely responsible for the payment of all sales, use, ad valorem and other taxes levied upon the Concession Premises and also upon the fees and other charges payable by Rail Company to the Authority hereunder, whether or not the same shall have been billed or collected by the Authority, together with any and all interest and penalties levied thereon. To the extent not paid by the Subconcessionaires (except for any such ad valorem taxes for Rail Company’s office space in the Terminal) Rail Company hereby agrees to indemnify the Authority and hold it harmless from and against all claims by any taxing authority that the amounts, if any, collected from Rail Company and remitted to the taxing authority by the Authority, or the amounts, if any, paid directly by Rail Company to such taxing authority, were less than the total amount of taxes due, and for any sums including interest and penalties payable by the Authority as a result thereof. The provisions of this paragraph shall survive the expiration or prior termination of this Agreement.

1.     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 of all receipts and disbursements from its operations on the Concession Premises, in a form consistent with generally accepted accounting principles, and cause to be installed for use at all times in the Concession Premises such cash registers, invoicing machines, sales slips and other accounting equipment, devices and forms as are reasonably necessary to record properly, accurately and completely all transactions from the Concession Premises. Rail Company’s books and records shall be maintained in sufficient detail to allow the Authority or its representatives to inspect, examine or audit, in accordance with generally accepted auditing standards, Rail Company’s Gross Receipts. Such books and records of Rail Company shall be maintained in a form consistent with generally accepted accounting principles, and shall contain itemized records of all Gross Receipts by such categories of transactions are specified in Article 1.16 above (or such other categories as the Authority may reasonably require time to time) and of all other transactions and receipts derived by Rail Company from its operations. Rail Company shall supply to the Authority, within thirty (30) calendar days of the Authority’s written request, the books and records required to be maintained and any other financial or statistical reports or records that the Authority may reasonably request for the purpose of determining the accuracy of the Gross Receipts reported by Rail Company. Rail Company shall account for all revenues of any nature related to transactions in connection with the Concession Premises in a manner which segregates in detail those transactions from other transactions of Rail Company and which supports the amounts reported to the Authority in Rail Company’s monthly “Gross Receipts Report.” Employment records and reports will not be considered business records available for inspection by the Authority. At a minimum, Rail Company’s accounting for such receipts shall include the following:

a.          One (1) separate, sequential numbering series exclusively for the Authority for all transactions in connection with this Agreement.

b.          Rail Company’s bank account statements (separate bank accounts shall be maintained for all receipts from the Concession and no receipts from any other source shall be deposited in such accounts);

c.          A compiled report of transactions from the Concession Premises showing all Gross Receipts and all exclusions from Gross Receipts by category, which report shall be subtotaled by month and totaled by year. The monthly total shall correspond with the amounts reported to the Authority on Rail Company’s monthly Gross Receipts Reports and shall be reconciled to the amounts posted on Rail Company’s general ledger if different, or offset, or netted with other amounts posted to the general ledger; and

d.          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 Gross Receipts in accordance with the generally accepted auditing standards and the provisions of this Agreement.

e.          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.

f.          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 similar format acceptable to the Authority. Records in electronic media shall be maintained as provided in Article 7. The Executive Director may require other records necessary in his determination to enable the accurate inspection, examination, or audit of Rail Company’s Gross Receipts hereunder, including, but not limited to amounts billed or received from third parties. In order to facilitate the inspection, examination, 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 audit report on behalf of Rail Company, pursuant to Article 7.04 above, to make available to the Authority’s designated representative(s) for review, any and all working papers relevant to the audit performed by the independent certified public accountant. Rail Company (at no cost to Rail Company) shall also lend such assistance and support to the Authority and the Authority may reasonably request in the conduct of any Rail Project passenger origin/destination, or other survey as the Authority reasonably deems necessary. Upon thirty (30) calendar days prior written notice from the Executive Director, all such books and records, including the general ledger and bank statements and all state and local sales tax returns relating to Rail Company’s Gross Receipts, 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 calendar year 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 Gross Receipts are not supported or substantiated by such records, all such amounts shall be deemed Gross Receipts for purposes of determining amounts payable to the Authority. If, prior to the expiration of the above stated four (4) year record retention period, any inspection, examination, audit or investigation is commenced by the Authority, or any claim is made or litigation commenced relating to the Agreement by the Authority, Rail Company, or a third party, Rail Company shall continue to maintain all such records, and the Authority shall continue to have the right to inspect such records in the manner stated above, until the inspection, examination, audit, claim, or litigation is finally resolved (including the determination of any and all appeals or the expiration of time for an appeal). This provision shall survive the expiration or earlier termination of this Agreement. 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, Rail Company shall have the option of either having said books and records transported to a location at the primary offices of the Authority for said inspection, examination, or audit, or having the inspection, examination, or audit performed at a location where Rail Company maintains its records within thirty (30) calendar days of the Authority’s written request. 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 first inspections, examination, or audit is completed, the Authority will bill Rail Company for such travel expenses and Rail Company shall promptly pay such bill. The Authority shall further have the right, upon reasonable written notice to Rail Company from the Executive Director and at the sole cost of the Authority except as specified below, to inspect examine or audit, or designate a representative to inspect examine or audit the books and records of Rail Company which relate to its operations hereunder to determine the correctness of the Concession Fees paid by Rail Company to the Authority for any or all of the Agreement Periods. Such shall include, but is not limited to, a review of the general input, processing and output controls, information systems, using read only access, for all computer applications used to record financial transactions and information. If, as a result of such inspection examination or audit, it is established that the Concession 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 Interest Rate, from the date such amount or amounts should have been paid. Further, if such examination establishes that Rail Company has underpaid Concession Fees and/or Annual Rent for any Agreement Period 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 Concession Fees for the Agreement Period have been overpaid, then the amount of overpayment shall be credited to the Concession 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 Section shall survive the expiration or earlier termination of the Term of this Agreement. In the event of any conflict between any provision of this Agreement and generally accepted accounting principles, or generally accepted auditing standards or attestation standards, the provisions of this Agreement shall control even where this Agreement references such principles or standards. In particular, without limitation, Rail Company shall maintain all records required under this 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.

1.          Subconcessionaires of Rail Company shall provide Rail Company on the fifteenth (15^th ) day of the month following the end of each calendar month during the term of a Subconcession Agreement, at the place designated by Rail Company, a statement in the form substantially similar to the “Gross Receipts Report” attached hereto as Exhibit “H”, which form the Executive Director may amend from time to time in his discretion on not less than thirty (30) days prior written notice to Rail Company, which Subconcessionaires’ Gross Receipts Report sets forth the Subconcessionaires’ Gross Receipts, defined in the subconcession agreement during the preceding monthly term and identifies all receipts derived by each Subconcessionaire during such monthly term which have been excluded from the computation of Subconcessionaires’ Gross Receipts, and is signed by an officer (if Subconcessionaire is a corporation), partner (if Subconcessionaire is a partnership), managing member (if Subconcessionaire is a limited liability company), or owner (if Subconcessionaire is a sole proprietorship), or other appropriate official of Subconcessionaire. The Authority hereby acknowledges and agrees that under no circumstances shall Rail Company have any responsibility or liability to the Authority or any other party for the information provided by the Subconcessionaires to Rail Company, it being recognized that the Subconcessionaire’s information is being provided by third parties over whom Rail Company has no control.

No deduction shall be made from a Subconcessionaire’s Gross Receipts by reason of any credit loss sustained, bad checks, or financing discount that may be applicable by reason of the acceptance, or use of credit cards, or by reason of any other credit arrangements. If any charge customarily made by Subconcessionaires for goods and services authorized to be sold or rendered pursuant to the terms and conditions of a Subconcession Agreement or other operations or businesses is not assessed, charged or collected, for any reason other than pursuant to a written bona fide marketing plan approved in advance by Concessionaire and the Executive Director (e.g., reasonable Airport or airline employee discounts), then the amount of Subconcessionaire’s customary charge therefore shall nevertheless be included in determining the Subconcessionaire’s Gross Receipts.

Subconcessionaire’s Gross Receipts shall include all mail or telephone orders filled at or from the Premises, all deposits not refunded to purchasers, and all orders taken in and from the Premises, whether or not such orders are filled elsewhere.

2.          Within ninety (90) days after the close of each Agreement Period of the Term hereof, Subconcessionaires shall be required, at their own cost and expense, to provide to Rail Company schedules of Subconcessionaire’s Gross Receipts, hereinafter defined, and the Concession Fee (“Schedules”) for such Agreement Period prepared in accordance with generally accepted accounting principles applied on a consistent basis for its operations at the Concession Premises, together with a report on examination of such Schedules made in accordance with generally accepted auditing standards by an independent certified public accountant, licensed in the state of Florida, ,or a certified public accountant who holds a valid temporary permit to practice in the state of Florida at the time the certification is issued and who is not an employee of Subconcessionaires, or an out of state licensed Certified Public Accountant who at the time the certification is issued, the NASBA National Qualification Appraisal Service has verified to be in compliance with the CPA licensure requirements of the AICPA/NASBA Uniform Accountancy Act and who is not an employee of Subconcessionaires. The audited Schedules must be accompanied by an independent auditor’s report expressing an unqualified opinion on examination of those Subconcessionaires’ Schedules and such calculation by the independent certified public accountant in accordance with generally accepted auditing standards. In particular, without limitation, Subconcessionaires shall maintain all records required under the Subconcession Agreement to the full extent required thereunder, even if some or all of such records would not be required under such general principles or standards. Rail Company will provide the Authority with copies of the annual certification as described in this Section 7.06. upon receipt of such certification by Rail Company from each Subconcessionaire, and if applicable, the Master Retail Concession Manager.

3.          Subconcessionaires shall, at all times during the Term hereof, maintain at their principal business office in the United States and make available at the Premises or at an office in Orange County, Florida, complete and accurate books and records of all receipts and disbursements from its operations on the Concession Premises, in a form consistent with generally accepted accounting principles, and cause to be installed for use at all times in the Concession Premises such cash registers, invoicing machines, sales slips and other accounting equipment, devices and forms as are reasonably necessary to record properly, accurately and completely all of Subconcessionaire’s sales from the Concession Premises. Subconcessionaire’s books and records shall be maintained in sufficient detail to allow Rail Company, the Authority or their representatives to audit, in accordance with generally accepted auditing standards, Subconcessionaire’s Gross Receipts. Each Subconcessionaire shall account for all receipts of any nature related to transactions in connection with its Subconcession Agreement in a manner which segregates in detail those transactions from other transactions of Subconcessionaire and which supports the amounts reported to Rail Company in the Subconcessionaire’s monthly “Subconcessionaire’s Gross Receipts Report” schedules prepared in accordance with Section 7.06. At a minimum, Subconcessionaire’s accounting for such receipts shall include the following:

a.          Daily dated cash register tapes, including tapes from temporary registers;

b.          Serially numbered sales slips, using a numbering system for transactions under the Subconcession Agreement which is separate from any numbering system used by Subconcessionaires for other transactions;

c.          Subconcessionaire’s bank account statements (separate bank accounts shall be maintained for all receipts from operations on the Premises and no receipts from any other source shall be deposited in such accounts);

d.          A compiled report of transactions from the Premises showing all Subconcessionaire’s Gross Receipts and all exclusions from Subconcessionaire’s Gross Receipts by category (as set forth in the Subconcession Agreement), which report shall be subtotaled at a minimum by month and totaled by month and year. The monthly total shall correspond with the amounts reported to Rail Company on Subconcessionaire’s monthly “Subconcessionaire’s Gross Receipts Reports” under the Subconcession Agreement. If requested, Subconcessionaires shall provide Rail Company and the Authority a computer text file that details monthly Subconcessionaire’s Gross Receipts information by transaction; and

e.          Such other records, if any, which would normally be examined by an independent certified public accountant in performing an examination of Subconcessionaire’s Gross Receipts in accordance with generally accepted auditing standards and the provisions of the Subconcession Agreement.

Such records may be in the form of (a) electronic media compatible with the computers available to the Authority, or (b) a computer run hard copy. The Executive Director may require other records necessary in his determination to enable the accurate audit of Subconcessionaires’ hereunder. In the event that Concession Fees payable to the Authority are derived from Subconcessionaires’ Gross Receipts, the Authority shall further have the right, upon reasonable written notice to Rail Company and the applicable Subconcessionaire from the Executive Director and at the sole cost of Authority, except as specified below to examine or designate a representative to examine the books and records of any or all Subconcessionaires which relate to operations on the Premises for any or all of the four (4) Agreement Periods immediately preceding such examination. Upon thirty (30) days written notice from the Executive Director, all such books and records, including the general ledger and bank statements and all federal, state and local sales tax returns relating thereto, shall, be made available at the offices of the Authority for inspection by the Authority through its duly authorized representatives at any time for up to three (3) years after the end of the Subconcession Agreement Period to which such books and records relate (and Subconcessionaires shall not be obligated to retain such books and records subsequent to the termination of such three (3) year period). Provided, however, that any such inspection of the Premises 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 Subconcessionaire’s business. If, as a result of such audit or examination, it is established that the Subconcessionaires Gross Receipts and/or the Concession Fee for any Agreement Period have been under-reported to the Authority, Subconcessionaire shall forthwith, upon written demand from the Executive Director, pay any resulting amount due to Rail Company and the Authority, together with interest thereon at the rate set forth in Article 17.F., below, from the date such amount or amounts should have been paid. Further, if such audit or examination establishes that the Subconcessionaire has under-reported Gross Rents and/or Concession Fees for any Agreement Period by two percent (2%) or more, then the entire expense of such audit or examination shall be borne by the Subconcessionaire. In the event that a Subconcessionaire fails to maintain adequate books and records on the Premises or make them available in Orange County, Florida as provided above, Subconcessionaires shall reimburse Rail Company and the Authority for reasonable expenses incurred by representatives of Rail Company and the Authority in traveling to examine such books and records at a separated location whether or not any sums are found to be due and owing to Rail Company; provided further that any such inspection at such separate location shall be conducted during reasonable business hours and in such a manner and at such time as not to interfere unduly with the conduct of Subconcessionaire’s business. Rail Company’s and the Authority’s rights under this Article 5.E. shall survive the expiration or earlier termination of the term of the Subconcession Agreement.

Rail Company shall, if requested by the Executive Director, conduct an audit of the books and records of up to any three (3) Subconcessionaires during any Agreement Period.

7.07         Cash Handling Procedures. Rail Company shall at all times observe prudent cash handling procedures, and it shall promptly implement any new procedures, or revise any existing procedures in such capacity as a manager of the Concession in such a manner as the Executive Director may reasonably and uniformly require from time to time, provided that the Executive Director gives written notice thereof to Rail Company. Additionally, Rail Company shall likewise require prudent cash handling procedures from its Subconcessionaires pursuant to the terms of the Subconcession Agreement. Before beginning operations, Rail Company shall require each Subconcessionaire to submit its proposed cash handling procedures to Rail Company and the Executive Director for review and approval.

7.08         Additional Sums Due the Authority. If the Authority has paid any sum or has incurred any obligation or expense for which Rail Company agreed in this Agreement or otherwise previously in writing to pay or reimburse the Authority, or if the Authority is required or elects to pay any sum or incur any obligation or expense because of the failure, neglect or refusal of Rail Company to perform or fulfill any of the terms or conditions of this Agreement following applicable notice and cure periods, then the same shall be deemed additional fees due hereunder, and Rail Company shall, upon demand by the Executive Director, reimburse the Authority within fifteen (15) days after receipt of an invoice therefor.

14.04      Rights of a Recognized Mortgagee. The Authority hereby consents to the following rights of a Recognized Mortgagee, and agrees that a Recognized Mortgage may contain provisions for any or all of the following:

a.          An assignment of Rail Company’s share of the net proceeds from available insurance coverage or from any award or other compensation resulting from a total or partial taking of the Premises by condemnation (including a Recognized Mortgagee’s right to disburse such proceeds in accordance with the terms of the Recognized Mortgage);

b.          The entry by Recognized Mortgagee upon the Premises, upon reasonable notice to the Authority and Rail Company as necessary to insure the safety of the Rail Project operations and the safety of the travelling public, to view the state of the Premises;

c.          A default by Rail Company under this Agreement being deemed to constitute a default under the Recognized Mortgage;

d.          An assignment of Rail Company’s right, if any, to terminate, cancel, modify, change, supplement, alter, renew, or amend this Agreement;

e.          The following rights and remedies (among others) to be available to Recognized Mortgagee upon the default under any Recognized Mortgage (although the Authority has no responsibility or obligation, to cause these rights and remedies to occur):

i.                 To the extent permitted by applicable law, the foreclosure of the Recognized Mortgage pursuant to a power of sale, by judicial proceedings or other lawful means and the sale of Rail Company’s interest in the Premises to the purchaser at the foreclosure sale and a subsequent sale or transfer of Rail Company’s interest in the Premises by such purchaser if the purchaser is a Recognized Mortgagee or its nominee or designee; provided however, that the right of a Recognized Mortgagee to sell or transfer Rail Company’s interest in the Premises will be subject to:

A.           the proposed transferee (unless it is the Recognized Mortgagee or its designee or nominee) entering into an agreement with the Authority, in form and substance satisfactory to the Authority in its sole discretion, wherein the transferee acquires the rights and assumes the obligations of Rail Company and agrees to perform and observe all of the obligations and covenants of Rail Company under this Agreement;

B.           the proposed transfer, and subsequent operation of the Rail Project, being permitted by applicable law and being permitted by the applicable rules and regulations of all entities having jurisdiction over the Rail Project, including, but not limited to, the Federal Railroad Administration; and

C.           the Authority’s reasonable determination that the proposed transferee (unless it is the Recognized Mortgagee or its designee or nominee) is capable of performing the obligations and covenants of Rail Company under this Agreement, which determination shall be based upon and take into account the following factors: (1) the financial strength and integrity of the proposed transferee, any guarantors, its direct or indirect beneficial owners, any proposed managers or operating partners and each of their respective affiliates; (2) the experience of the proposed transferee or any operator to be engaged by the proposed transferee in operating rail systems similar to the Rail Project and performing other relevant projects; (3) the background and reputation of the proposed transferee, its direct or indirect beneficial owners, any proposed managers or operating partners, each of their respective officers, directors and employees and each of their respective affiliates (including the absence of criminal, civil or regulatory claims or actions against or initiated by any such person and the quality of any such person’s past or present performance on other projects).

 

 

ii.                   The appointment of a receiver, irrespective of whether a Recognized Mortgagee accelerates the maturity of all indebtedness secured by the Recognized Mortgage;

iii.                  The right of a Recognized Mortgagee or the receiver appointed under subparagraph (ii) above to enter and take possession of the Premises, to manage and operate the Rail Project, to collect the income generated by the Rail Project or the operation thereof and to cure any default under the Recognized Mortgage or any default by Rail Company under this Agreement within the time allowed; or

iv.                  An assignment of Rail Company’s right, title and interest under this Agreement and to any deposit of cash, securities or other property which may be held to secure the performance of all obligations of Rail Company to the Recognized Mortgage, including, without limitation, the covenants, conditions and agreements contained in the Recognized Mortgage, in the premiums for or dividends upon any insurance provided for the benefit of any Recognized Mortgagee or required by the terms of the Agreement, as well as in all refunds or rebates of taxes or assessments upon or other charges against the Premises, whether paid or to be paid;

f.           If the ownership of the leasehold and mortgage lien interests of the Premises become vested in the same person or entity, then as long as the Recognized Mortgage shall remain outstanding, at Recognized Mortgagee’s option, such occurrence shall not result in a merger of title. Rather, this Agreement and the Recognized Mortgage lien thereon shall remain in full force and effect; and

g.         The Recognized Mortgage may be assigned by Recognized Mortgagee in accordance with its terms. Promptly after an assignment written notice will be provided to the Authority, and the assignee will provide the Authority with a true and complete copy of such assignment, and such assignee’s contact information.

During any period in which the Recognized Mortgagee itself or by an agent or a receiver or a receiver and manager is the owner, or is in control or possession of, Rail Company’s interest in the Premises, it shall be bound by all liabilities and obligations of Rail Company accruing under this Agreement. Once the Recognized Mortgagee goes out of possession or control of Rail Company’s interest in the Premises or transfers Rail Company’s interest in the Premises to another person in accordance with the provisions of this Agreement, the Recognized Mortgagee shall cease to be responsible for any of Rail Company’s obligations under this Agreement accruing thereafter, and to the extent assumed by any transferee or any other person acceptable to the Authority, for any of Rail Company’s obligations under this Agreement accrued during the period in which the Recognized Mortgagee itself or by an agent or a receiver and manager was the owner, or was in control or possession of, Rail Company’s interest in the Premises, and shall cease to be entitled to any of Rail Company’s rights and benefits contained in this Agreement, except, if the Recognized Mortgage remains outstanding, by way of security.

 

14.05     New Lease After Termination. If this Agreement is terminated due to a rejection in a bankruptcy, the Recognized Mortgagee may elect to demand a new agreement with respect to the Premises (the “New Agreement”) by written notice to the Authority within thirty (30) days after such termination. The Authority agrees, if there are outstanding obligations of Rail Company to the Recognized Mortgagee, to enter into a new agreement with respect to the Premises with the Recognized Mortgagee (or its designee or nominee; provided that such designee or nominee either is controlled by the Recognized Mortgagee or meets the requirements of Section 14.04(e)(i)(A), (B) and (C)) for the remainder of the Term of this Agreement upon all of the covenants, agreements, terms, provisions and limitations of this Agreement, effective as of the date of such termination. The Authority’s obligation to enter into a New Agreement pursuant to the preceding sentence is subject to the following requirements, conditions, and provisions:

a.           Recognized Mortgagee shall cure all pre-existing monetary defaults, and all pre-existing non-monetary defaults that are capable of being cured, including defaults prior to termination through rejection in bankruptcy.

b.          The New Agreement shall be for the remainder of the Term of the Agreement, effective on the date of termination, and shall contain the same covenants, agreements, conditions, provisions, restrictions and limitations as are then contained in the Agreement.

c.           The New Agreement shall be executed by the parties within thirty (30) days after receipt by the Authority of notice of Recognized Mortgagee’s or such other acquiring person’s election to enter into a New Agreement.

d.          Any New Agreement and the easement created thereby shall, subject to the same conditions contained in the Agreement, continue to maintain the same priority as the Agreement with regard to any Recognized Mortgage or any other lien, charge or encumbrance affecting the Premises. Concurrently with the execution and delivery of the New Agreement, the Authority shall assign to the rail company named therein all of its right, title and interest in and to moneys, if any, then held by or payable to the Authority which Rail Company would have been entitled to receive but for the termination of the Agreement.

e.           If Rail Company refuses to surrender possession of the Premises, the Authority shall, at the request of Recognized Mortgagee or such other acquiring person, institute and pursue diligently to conclusion the appropriate legal remedy or remedies to oust or remove Rail Company and all other occupants who are not authorized to remain in possession hereunder to the extent the Authority has the right to do so under the Agreement and applicable law. Any such action taken by the Authority at the request of Recognized Mortgagee or such other acquiring person shall be at Recognized Mortgagee’s or such other acquiring person’s sole expense which shall be paid in advance on a retainer basis with the retainer to be replenished, in advance, as needed from time to time.

The provisions of this Paragraph 14.05 shall survive the expiration or earlier termination of this Agreement.

14.06     Liens. In order to facilitate a Recognized Mortgage as well as other financing by Rail Company for trade fixtures and equipment, the Authority hereby subordinates any statutory, constitutional, and/or contractual liens against the assets or property of Rail Company. Although such subordination is hereby deemed to be automatic and self-executing, the Authority agrees to execute and deliver to Rail Company within thirty (30) days following request therefor such subordinations and confirmations as Rail Company may request to evidence the foregoing, as well as consents to assignment that may be reasonably requested, provided same shall not: (i) obligate the Authority in any manner not contained in this Agreement, (ii) contain any representations, warranties or indemnifications by the Authority not contained in this Agreement, and (iii) contain any remedy against the Authority not contained in this Agreement. Nothing herein shall obligate the Authority to consent to service of process, or enter into any agreement not governed by Florida law.

15.01     Government Agreements. This Agreement shall be subordinate to, and shall be automatically modified to comply with, the provisions of any existing or future agreements between the Authority and the United States Government or other governmental authority, relative to the operation or maintenance of the Airport, the execution of which has been or will be required as a condition precedent to the granting of federal or other governmental funds for the development of the Airport, to the extent that the provisions of any such existing or future agreements (a) are generally required by the United States or other governmental authority as a condition to receiving such funds, and (b) do not adversely affect Rail Company’s Rail Transportation Business in any material respect, it being understood and agreed that it is of the utmost importance for Rail Company to be able to operate the Rail Transportation Business in a convenient, safe, efficient and continuous manner in order to deliver uninterrupted service to its passengers.

15.02     Federal Government’s Emergency Clause. All provisions of this Agreement shall be subordinate to the rights of the United States of America to operate the Airport or any part thereof during time of war or national emergency. Such rights shall supersede any provisions of this Agreement inconsistent with the operations of the Airport by the United States of America. This paragraph does not affect Rail Company’s rights under Section 12.03.

15.03     Nondiscrimination.

The Rail Company assures that it will comply with pertinent statutes, Executive Orders and such rules as are promulgated to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age or handicap be excluded from participating in any activity conducted with or benefitting from Federal assistance. This Provision obligates the Rail Company or its transferee for the period during which Federal assistance is extended to the airport program, except where Federal assistance is to provide, or is in the form of personal property or real property or interest therein or structures or improvements thereon. In these cases, the Provision obligates the Rail Company for the longer of the following periods: (a) the period during which the property is used by the Authority or any transferee for a purpose for which Federal assistance is extended, or for another purpose involving the provision of similar services or benefits; or (b) the period during which the Authority or any transferee retains ownership or possession of the property. In the case of contractors, this Provision binds the contractors from the bid solicitation period through the completion of the contract.

15.04    Security. Rail Company, its officers, employees, agents, and those under its control, shall comply with all security measures required of Rail Company by the Authority, TSA, FAA or contained in any Airport master security plan approved by the TSA or FAA. If Rail Company, its officers, employees, agents, or those under its control shall fail or refuse to comply with said measures and such non-compliance results in a monetary penalty being assessed against the Authority, then, in addition to any other remedies available to the Authority, Rail Company shall be responsible for, and shall reimburse the Authority in the full amount of, any such monetary penalty or other damages. The Authority shall not enact security measures that adversely affect Rail Company’s Rail Transportation Business in any material respect, it being understood and agreed that it is of the utmost importance for Rail Company to be able to operate the Rail Transportation Business in a convenient, safe, efficient and continuous manner in order to deliver uninterrupted service to its passengers.

16.01     Nonwaiver. No waiver of default by either party of any of the terms, covenants, or conditions of this Agreement to be performed, kept, and observed by the other party shall be construed to be or act as a waiver of any subsequent default of any of the terms, covenants, and conditions to be performed, kept, and observed by the other party and shall not be deemed a waiver of any right on the part of the other party to cancel this Agreement as provided herein.

16.02     Rights Non-Exclusive. Notwithstanding anything herein contained that may be or appear to the contrary, the rights, privileges, and licenses granted under this Agreement, are “non-exclusive” and the Authority reserves the right to grant similar privileges to others, provided, however, the Authority shall not grant any other party rights to use or occupy the Premises.

16.03     Quiet Enjoyment. The Authority agrees that Rail Company shall peaceably have and quietly enjoy its Premises and all rights, privileges, and licenses of the Airport, its appurtenances and facilities granted herein, subject to the terms and conditions herein contained.

16.04     Performance. The parties expressly agree that time is of the essence in this Agreement. Failure by a party to complete performance within the time specified, or within a reasonable time if no time is specified herein, shall relieve the other party, without liability, of any obligation to accept such performance (subject to Force Majeure Events).

16.05     Waiver of Jury Trial. RAIL COMPANY AND THE AUTHORITY HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATED TO, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, CONDITIONS, AND COVENANTS OF THIS AGREEMENT. Initials             Initials               Initials              

 

 

16.06     No Individual Liability. No member, officer, agent, director, or employee of the Authority or Rail Company shall be charged personally or held contractually liable by or to the other party under the terms or provisions of this Agreement or because of any breach thereof or because of its or their execution or attempted execution.

16.07     Relationship of Parties. Nothing contained herein shall be deemed or construed by the parties hereto, or by any third party, as creating the relationship of principal and agent, partners, joint venturers, or any other similar such relationship between the parties hereto. It is understood and agreed that neither the method of computation of rentals, fees, and charges, nor any other provisions contained herein, nor any acts of the parties hereto, creates a relationship other than the relationship of landlord and tenant.

16.08     Capacity to Execute. The individuals executing this Agreement have full authority to execute this Agreement on behalf of the entity for whom they are acting herein.

16.09     No Construction Against the Drafter. The parties hereto acknowledge that they have thoroughly read this Agreement, including any exhibits or attachments hereto and have sought and received whatever competent advice and counsel was necessary for them to form a full and complete understanding of all rights and obligations herein. The parties further acknowledge that this Agreement is the result of extensive negotiations between the parties and shall not be construed more strictly against the Authority or Rail Company by reason of the preparation of this Agreement by one of the parties.

16.10     Incorporation of Exhibits. All exhibits and attachments referred to in this Agreement are intended to be and are hereby specifically made a part of this Agreement.

16.11     Titles. Paragraph titles are inserted only as a matter of convenience and for reference, and in no way define, limit, or describe the scope or extent of any provision of this Agreement.

16.12     Severability In the event that any covenant, condition, or provision of this Agreement is held to be invalid by any court of competent jurisdiction, the invalidity of such covenant, condition, or provision shall not materially prejudice either the Authority or Rail Company in their respective rights and obligations contained in the valid covenants, conditions, or provisions of this Agreement.

16.13     Other Agreements; Amendments. Nothing contained in this Agreement shall be deemed or construed to nullify, restrict, or modify in any manner the provisions of any other lease or contract between the Authority and Rail Company authorizing the use of the Airport, its facilities, and appurtenances. This Agreement together with the Rail Line Easement Agreement and Vehicle Maintenance Facility Ground Lease Agreement constitute the entire agreement between the parties hereto with respect to the leasing of the Premises and it is understood and agreed that all undertakings, negotiations, representations, promises, inducements and agreements heretofore had between the parties with respect to the leasing of the Premises are merged herein. This Agreement may not be modified or amended verbally. Any modification or amendment shall be binding on the parties hereto only if such modification or amendment is in writing and signed by both the Authority and Rail Company and joined by the City. No waiver of any of the provisions in this Agreement shall be valid unless in writing and signed by the party against whom such waiver is sought to be enforced.

 

16.14     Approvals. Unless otherwise stated, whenever this Agreement calls for approval by the Authority, such approval shall be evidenced by the written approval of the Executive Director.

16.15     Notice. Any notices which may be permitted or required hereunder shall be in writing and shall be deemed to have been duly given as of (i) the date and time the same are personally delivered at the address set forth below, (ii) on the same day if sent between 8:00 A.M. and 5:00 P.M. on Monday through Friday via facsimile transmission to the respective facsimile numbers set forth below, with receipt acknowledged upon transmission as evidenced by a contemporaneous writing, or (iii) within three (3) days after depositing with the United States Postal Service, postage prepaid by registered or certified mail, return receipt requested, (iv) within one (1) business day after depositing with Federal Express or other overnight delivery service from which a receipt or written confirmation may be obtained, and addressed as follows:

1.       If intended for the Authority, notices shall be delivered to:

Telephone:          (407) _______

Telecopy:            (407) _______

With a copy to:

Marchena and Graham, P.A.

976 Lake Baldwin Lane, Suite 101

Orlando, FL 32814

Attn: Marcos R. Marchena, Esq.

Telephone:           ###-###-####

Telecopy:             ###-###-####

City of Orlando, Florida

400 South Orange Avenue

Orlando, FL 32801

Attn: Chief Administrative Officer

Telephone: (407) 246-2221

Telecopy: (407) 246-2842

 

City of Orlando, Florida

400 South Orange Avenue, Third Floor

Orlando, FL 32801

Attn: City Attorney’s Office

Telephone: (407) 246-2295

Telecopy: (407) ________         

or to such other address as may be designated by the Authority by written notice to Rail Company.

2.       Notices to Rail Company shall be delivered to:

With a copy to:

Akerman LLP

or to such other address as may be designated by Rail Company by written notice to the Authority.

16.16         Agent For Service. It is expressly understood and agreed that if Rail Company is not a resident of the State of Florida, or is an association or partnership without a member or partner resident of said state, Rail Company shall appoint an agent for the purpose of service of process in any court action between it and the Authority arising out of or based upon this Agreement. Rail Company shall, upon request, notify the Authority, in writing, of the name and address of said agent. Such service shall be made as provided by the laws of the State of Florida for service upon a non-resident engaging in business in the State.

16.17         Governing Law and Legal Forum. This Agreement is to be read and construed in accordance with the laws of the State of Florida. Exclusive venue for all dispute resolution, including litigation, concerning or arising out of this Agreement shall be in Orange County, Florida. The parties submit to the personal jurisdiction of the state and federal courts in and for Orange County, Florida.

16.18        Force Majeure. Neither the Authority nor Rail Company shall be deemed to be in default hereunder if either party is prevented from performing any of its obligations hereunder, other than the payment of rentals, fees, and charges hereunder, by reason of fire or other casualty, act of nature, earthquake, flood, hurricane, lightning, tornado, epidemic, landslide, war, terrorism, riot, civil commotion, general area-wide unavailability of materials, strike, labor dispute, governmental laws or regulations, delays caused by the other party to this Agreement, or other occurrence beyond Rail Company’s or the Authority’s reasonable control, prevent performance of this Agreement in accordance with its provisions (each, a “Force Majeure Event”), provided that such Force Majeure Event does not arise by reason of the negligence or misconduct of the performing party.

16.19        Radon Gas. As required by Florida law, the Authority hereby includes the following notification:

Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county health department.

16.20        Public Entity Crimes Act.

Section 287.133(2)(a), Florida Statutes, provides that:

An entity under the control of any natural person who is active in the management of the entity and who has been convicted of a public entity crime. The term “affiliate” includes those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in the management of an affiliate. The ownership by one person of shares constituting a controlling interest in another person, or a pooling of equipment or income among persons when not for fair market value under an arm’s length agreement, shall be a prima facie case that one person controls another person. A person who knowingly enters into a joint venture with a person who has been convicted of a public entity crime in Florida during the preceding 36 months shall be considered an affiliate.

16.21        Third-Party Beneficiary. The parties hereto agree that the City is a third party beneficiary to this Agreement with full rights of enforcement herein. Otherwise, except for the City, there are no third-party beneficiaries to this Agreement.

16.22         City as Authority’s Successor. The Authority presently operates the Airport under an Operation and Use Agreement with the City dated September 27, 1976, as amended (such Operation and Use Agreement, as amended, is herein the “Operation and Use Agreement”), which provides that on its termination for any reason, responsibility for operating the Airport would revert to the City. Authority, Rail Company, and by its execution of the joinder attached hereto, the City, agree that on the termination for any reason of the Operation and Use Agreement between the City and Authority: (i) the City shall be deemed to be the lessor hereunder and shall be bound by all provisions of this Lease, and (ii) all references contained herein to “Authority” shall be deemed to refer to the City. Notwithstanding the foregoing, however, Rail Company hereby acknowledges and agrees to the following: if the Operation and Use Agreement, as amended, between the City and the Authority expires or is terminated prior to the expiration or earlier termination of this Lease, and the City succeeds to the interests of the Authority under this Lease, then all of the City’s obligations under this Lease shall be payable solely from the revenues generated for the City at the Orlando Executive Airport and the Orlando International Airport, and the City shall have no obligation to use any of its other revenues in the performance of such obligations.

16.23         Recording. This Agreement shall not be recorded. Simultaneously herewith, the parties will execute a Memorandum of Lease in the form attached hereto as Exhibit “I”, which will be recorded by the Authority in the Public Records of Orange County, Florida.

16.24         Estoppel Certificates. Each of the parties shall, from time to time, upon thirty (30) days’ written request, provide to the requesting party or any other person identified by the requesting party with an estoppel certificate stating whether the other party is in default hereunder, whether this Agreement is in full force and effect, whether this Agreement has been modified, and containing such other certifications as may be reasonably requested.

16.25         Reasonableness. Unless this Agreement specifically provides for the granting of consent or approval at a party’s sole discretion, then consents and approvals which may be given or requested by a party under this Agreement shall not (whether or not so indicated elsewhere in this Agreement) be unreasonably withheld or conditioned by such party and shall be given or denied within the time period provided, and if no such time period has been provided, within a reasonable time. Upon disapproval of any request for a consent or approval, the disapproving party shall, together with notice of such disapproval, submit to the requesting party a written statement setting forth with specificity its reasons for such disapproval.

16.26         Representations.

Rail Company warrants, represents and covenants that:

a.               Rail Company is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and is duly qualified to conduct business in the State of Florida.

b.              Rail Company has full power and authority to enter into this Agreement and to comply with the provisions of this Agreement.

 

c.               This Agreement has been duly authorized, executed and delivered by Rail Company and constitutes a valid and legally binding obligation of Rail Company, enforceable against Rail Company in accordance with the terms hereof.

d.               No consent is required to be obtained by Rail Company from, and no notice or filing is required to be given by Rail Company to or made by Rail Company with, any person (including any governmental authority) in connection with the execution, delivery and performance by Rail Company of this Agreement. The foregoing does not apply to the necessary licenses, permits, and other approvals to be applied for by Rail Company in connection with the Rail Project.

e.               Rail Company currently is not the subject of bankruptcy, insolvency, or reorganization proceedings and is not in material default of, or otherwise subject to, any agreement or any law, administrative regulation, judgment, decree, note, resolution, charter or ordinance which would currently restrain or enjoin it from entering into, or complying with, this Agreement, in any material respect.

f.                There is no material action, suit, proceeding, inquiry or investigation, at law or in equity, before any court or public body, pending or, to the best of Rail Company’s knowledge, threatened, which seeks to restrain or enjoin Rail Company from entering into or complying with this Agreement.

g.              The execution, delivery, and performance of this Agreement will not conflict with, be inconsistent with, or result in any breach or default of any of the terms, covenants, conditions, or provisions of any indenture, bank loan, credit agreement, or other agreement or contract of any kind or nature to which Rail Company is a party or by which Rail Company may be bound.

16.27         The Authority warrants, represents and covenants that:

a.              The Authority has the power and authority to enter into this Agreement and to do all acts and things and execute and deliver all other documents as are required hereunder to be done, observed or performed by it in accordance with the terms hereof. The Authority has approved the execution and delivery of this Agreement and authorized the performance of its obligations hereunder.

b.               This Agreement has been duly authorized, executed and delivered by the Authority and constitutes a valid and legally binding obligation of the Authority, enforceable against the Authority in accordance with the terms hereof.

c.               No consent is required to be obtained by the Authority from, and no notice or filing is required to be given by the Authority to or made by the Authority with, any person (including any governmental authority) in connection with the execution, delivery and performance by the Authority of this Agreement which has not been obtained.

d.               Pursuant to the Operation and Use Agreement, the Authority has been in control and control and maintained the Premises in compliance, in all material respects, with all applicable laws and the Authority is not in breach of any applicable law that would have a material adverse effect on the Premises or this Agreement.

e.               There is no action, suit or proceeding, at law or in equity, or before or by any governmental authority, pending nor, to the best of the Authority’s knowledge, threatened against the Authority which would (i) have a material adverse effect on the Premises or (ii) materially affect the validity or enforceability of this Agreement.

f.                There are no pending or threatened claims known to the Authority arising out of hazardous substances or otherwise arising under Environmental Laws that could have a material adverse effect on the Premises or this Agreement.

g.               To the best of the Authority’s knowledge, there have not been any environmental enforcement actions in the past and none are threatened or pending that could have a material adverse effect on the Premises or this Agreement.

h.               The Authority currently is not the subject of bankruptcy, insolvency, or reorganization proceedings and is not in material default of, or otherwise subject to, any agreement or any law, administrative regulation, judgment, decree, note, resolution, charter or ordinance which would currently restrain or enjoin it from entering into, or complying with, this Agreement, in any material respect.

i.               The execution, delivery, and performance of this Agreement will not conflict with, be inconsistent with, or result in any breach or default of any of the terms, covenants, conditions, or provisions of any indenture, bank loan, credit agreement, or other agreement or contract of any kind or nature to which the Authority is a party or by which the Authority may be bound.

The parties anticipate Rail Company requiring use of the Premises at the Rail Station Building beyond the 50 year Term of this Agreement in order for use of the Premises to continue during the remaining term of the Rail Line Easement. If this Agreement is terminated as a result of a default by the Authority or if Rail Company and the Authority have not entered into an amendment to this Agreement or a new lease regarding the Premises prior to the expiration of the 46^th Agreement Period, then no later than the expiration of the 47^th Agreement Period, Rail Company and the Authority shall enter into good faith negotiations for a new agreement for the Premises. Such good faith negotiations shall continue for a period of 12 months which shall include, if necessary to achieve an agreement, 5 meetings to attempt to negotiate the terms of a new agreement. In the event the parties are unable to agree upon terms acceptable to both parties for a new agreement for the Premises, the Authority shall make the Platform spaces for boarding and exiting passengers available for use by the Rail Company upon financial terms equal to those being charged by the Authority to airlines for hold room and gate space in effect at the expiration of this Agreement. Said rates may be modified by the Authority annually consistent with any modifications to the rates then being charged to airlines. In the event the method for charging airlines for the use of hold room and gate space has been modified by the time the Authority implements the rates to be charged to Rail Company for the use of Platform space, then the Authority may utilize a formula reasonably consistent with the formula utilized for charges to airlines to establish the rates to be paid by Rail Company. The legal terms utilized for the use by Rail Company of Platform space shall also be consistent with the terms applicable to airlines at the expiration of this Agreement except to the extent the application of such terms are prohibited by federal or state law or regulations, in which event the legal terms applicable to the use of Platform space by Rail Company shall be consistent with the terms utilized by the Authority applicable to concessionaires. Notwithstanding anything to the contrary otherwise contained in this Lease, the term of this Lease shall not be for a term greater than fifty (50) years.

Before me, the undersigned authority, duly authorized under the laws of the State of Florida to take acknowledgments, this day personally appeared Phillip N. Brown and ___________, respectively Chairman and ______ of the Greater Orlando Aviation Authority, personally known to me to be the individuals and officers described in and who executed the foregoing instrument on behalf of said Greater Orlando Aviation Authority, and severally acknowledged the execution thereof to be their free act and deed as such officers and that they were duly authorized so to do.

In witness whereof, I have hereunto set my hand and official seal at Orlando, in the County of Orange, State of Florida, this 22^nd day of January, 2014.

 

		/s/ Gina M. Conte
		Notary Public
		My commission expires:
		Notary Public State of Florida (407) 398-0153	GINA M. CONTE MY COMMISSION # EE 160283 EXPIRES January 17, 2016 FloridaNotaryService.com

The foregoing instrument was acknowledged before me this 30^th day of October, 2013 by Kolleen Cobb the vice president, of  All Aboard Florida – Operations LLC, a Delaware limited liability company, on behalf of the limited liability company. He/She ___ is personally known to me or ____has produced ____________ as identification.

The City of Orlando hereby joins in the Orlando International Airport Premises Lease and Use Agreement dated __________,  20 ____ between the, Greater Orlando Aviation Authority and All Aboard Florida - Operations LLC. solely to acknowledge the City’s consent to the term of the Lease of more than ten (10) years, under the terms and conditions of Section 16.22 of this Lease.

Before me, the undersigned authority, duly authorized under the laws of State of Florida to take acknowledgments, this day personally appeared Samuel Ings and Alana C. Brenner, respectively Mayor Pro Tem and City Clerk of the City of Orlando, who are personally known to me to be the individuals and officers described in and who executed the foregoing instrument on behalf of said Greater Orlando Aviation Authority, and severally acknowledged the execution thereof to be their free act and deed as such officers and that they were duly authorized so to do.