Attached files

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EX-32 - EXHIBIT 32 - DELTA AIR LINES, INC.dal9302017ex32.htm
EX-31.2 - EXHIBIT 31.2 - DELTA AIR LINES, INC.dal9302017ex312.htm
EX-31.1 - EXHIBIT 31.1 - DELTA AIR LINES, INC.dal9302017ex311.htm
EX-15 - EXHIBIT 15 - DELTA AIR LINES, INC.dal9302017ex15.htm
10-Q - 10-Q - DELTA AIR LINES, INC.dal930201710q.htm




Lease No. AGB-113
                                                    





THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY





AMENDED AND RESTATED
AGREEMENT OF LEASE

by and between

THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY

and

DELTA AIR LINES, INC.
















Dated as of: SEPTEMBER 13, 2017            
                                                    



OHSUSA:765698154.37




                                                    
TABLE OF CONTENTS
Section 1.Definitions..........................................................................................................3
Section 2.Letting..............................................................................................................34
Section 3.Term.................................................................................................................38
Section 4.Conditions Precedent.......................................................................................39
Section 5.Design and Construction by the Lessee...........................................................40
Section 6.Port Authority D&C Payments........................................................................71
Section 7.Rental...............................................................................................................75
Section 8.Use of Premises................................................................................................81
Section 9.Ingress and Egress............................................................................................86
Section 10.Compliance with Governmental Requirements...............................................86
Section 11.Federal Regulation of Airports.........................................................................88
Section 12.Exclusive Area Agreement...............................................................................90
Section 13.Rules and Regulations......................................................................................93
Section 14.Various Obligations of the Lessee....................................................................94
Section 15.Prohibited Acts.................................................................................................98
Section 16.Care, Maintenance, Rebuilding and Repair by the Lessee............................100
Section 17.Damage to or Destruction of Premises..........................................................103
Section 18.Insurance........................................................................................................104
Section 19.Indemnity.......................................................................................................117
Section 20.Signs..............................................................................................................119
Section 21.Obstruction Lights.........................................................................................119
Section 22.Consolidated Ramp Control Operations........................................................120
Section 23.Other Redevelopments...................................................................................120
Section 24.Aviation Fueling.............................................................................................120
Section 25.Third-Party Contractors and Services............................................................120
Section 26.Handling Services..........................................................................................122
Section 27.Other Third-Party Service Contractors..........................................................122
Section 28.Permits and Payment Fees.............................................................................122
Section 29.Additional Rent and Charges.........................................................................123

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Section 30.Rights of Entry Reserved...............................................................................124
Section 31.Other Construction by the Lessee..................................................................125
Section 32.Subleases Generally.......................................................................................126
Section 33.Airline Subleases...........................................................................................134
Section 34.Concession Sublease......................................................................................135
Section 35.Assignment of Subleases...............................................................................144
Section 36.Concessions Revenue Share..........................................................................144
Section 37.Other Consumer Services..............................................................................145
Section 38.Compliance with TCAP Manual....................................................................146
Section 39.Club Rooms...................................................................................................147
Section 40.In-Flight Meals...............................................................................................147
Section 41.Requesting Airlines........................................................................................148
Section 42.Helicopter Operations....................................................................................157
Section 43.Intellectual Property.......................................................................................158
Section 44.Waiver of Depreciation..................................................................................160
Section 45.Condemnation................................................................................................161
Section 46.Termination by the Port Authority.................................................................163
Section 47.Right of Re-entry...........................................................................................167
Section 48.Waiver of Redemption...................................................................................167
Section 49.Survival of the Obligations of the Lessee......................................................167
Section 50.Reletting by the Port Authority......................................................................168
Section 51.Remedies to be Non-Exclusive......................................................................168
Section 52.Surrender........................................................................................................169
Section 53.Acceptance of Surrender of Lease.................................................................169
Section 54.Termination by Lessee...................................................................................169
Section 55.Effect of Termination by the Lessee..............................................................170
Section 56.Effect of Basic Lease.....................................................................................171
Section 57.Removal of Property......................................................................................172
Section 58.Limitation of Rights and Privileges Granted.................................................172
Section 59.Notices...........................................................................................................172
Section 60.Non-Discrimination.......................................................................................173
Section 61.Affirmative Action.........................................................................................174

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Section 62.Minimum Wage Requirements......................................................................176
Section 63.Construction and Application of Terms.........................................................177
Section 64.No Personal Liability.....................................................................................178
Section 65.Services to the Lessee....................................................................................178
Section 66.Automobile Parking.......................................................................................180
Section 67.Late Charges..................................................................................................181
Section 68.Place of Payments..........................................................................................181
Section 69.Business Development and Method of Operation.........................................182
Section 70.Effect of Use and Occupancy of Premises after Expiration or Termination..182
Section 71.Force Majeure................................................................................................183
Section 72.Security Deposit.............................................................................................184
Section 73.Condition of Premises....................................................................................184
Section 74.Joint Periodic Condition Survey....................................................................186
Section 75.Storage Tanks and Pipelines..........................................................................188
Section 76.Environmental Compliance and Related Matters..........................................192
Section 77.End of Term Obligations................................................................................201
Section 78.Application of Payments; Accord and Satisfaction.......................................202
Section 79.OFAC Compliance.........................................................................................202
Section 80.Labor Disturbances........................................................................................203
Section 81.Port Authority Reserved Uses........................................................................204
Section 82.Assignment....................................................................................................206
Section 83.Right to Perform the Lessee’s Obligations....................................................207
Section 84.[Reserved]......................................................................................................209
Section 85.[Reserved]......................................................................................................209
Section 86.[Reserved]......................................................................................................209
Section 87.Remedies under Bankruptcy and Insolvency Codes......................................209
Section 88.Brokerage.......................................................................................................210
Section 89.Project Financing...........................................................................................210
Section 90.Refinancing....................................................................................................220
Section 91.Quiet Enjoyment............................................................................................222
Section 92.Waiver of Trial by Jury; Counterclaims.........................................................222
Section 93.Relationship of the Parties.............................................................................222

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Section 94.Lessee’s Rights Non-Exclusive......................................................................223
Section 95.Third Party Beneficiaries...............................................................................223
Section 96.Books and Records........................................................................................223
Section 97.Counterparts...................................................................................................227
Section 98.Governing Law...............................................................................................227
Section 99.Entire Agreement...........................................................................................227
Section 100.Survival of Obligations..................................................................................227
Section 101.Chief Engineer’s Jurisdiction.........................................................................228


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Exhibits
Exhibit 1     List of Available Documents
Exhibit 2    O&M Responsibilities with respect to Certain Off-Premises Facilities
Exhibit 3    Permanent Rights of Access
Exhibit 4    Mandatory Sublease Provisions
Exhibit 5    Concessions Revenues True-Up Sample Calculation
Exhibit 6    Delta Leasehold
Exhibit 7    Additional Premises
Exhibit 8    RPW Effective Date Conditions Precedent
Exhibit 9    Form of Lessee Certification
Exhibit 10    D&C Work Scope Document
Annex A    New Terminal Building (on Premises)
Annex B    Aircraft Ramp and Apron Areas (on Premises)
Annex C
East Garage Expansion and New Terminal Facilities East Garage Pedestrian Bridge (Off-Premises)
Annex D
Public Airport Roadways Improvements and Taxi and FHV Lot
Annex E
New Terminal Facilities / West 102nd Street Connecting Structure (Off-Premises)
Annex F
New Terminal Facilities / Central Hall Landside Pedestrian Bridge (Off-Premises)
Annex G
AirTrain Right of Way (Off-Premises) - Arrivals
Annex H
[Reserved.]
Annex I
[Reserved.]
Annex J
AOA Access Gate and RVSR (Off-Premises)
Annex K
Electrical Substation
Exhibit 11
Temporary Rights of Access
Exhibit 12
Utility O&M Responsibilities
Exhibit 13
Payment and Milestone Schedule
Exhibit 14-1
Form of Contractor’s Conditional Lien Waiver
Exhibit 14-2
Form of Contractor’s Unconditional Lien Waiver
Exhibit 15
Schedule of Basic Rental Adjustment
Exhibit 16
Rentable Gate Replacement Dates and Gates
Exhibit 17
Baseline Port Authority Concessions Revenues
Exhibit 18
Airport Concession Disadvantaged Business Enterprise (ACDBE) Participation
Exhibit 19
Affirmative Action, Equal Opportunity, Minority Business Enterprise and Women-Owned Business Enterprise Requirements
Exhibit 20
Local Business Enterprise and Employment Opportunity
Exhibit 21
Baseline Environmental Assessment
Exhibit 22
Form of Lessee Assignment and Assumption Agreement
Exhibit 23
Form of Concession Sublessee Certification




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THIS AGREEMENT SHALL NOT BE BINDING UPON THE PORT AUTHORITY UNTIL DULY EXECUTED BY AN EXECUTIVE OFFICER THEREOF AND DELIVERED TO THE LESSEE BY AN AUTHORIZED REPRESENTATIVE OF THE PORT AUTHORITY


Lease No. AGB-113

AMENDED AND RESTATED
AGREEMENT OF LEASE

THIS AMENDED AND RESTATED AGREEMENT OF LEASE (this “Agreement”), made as of September 13, 2017 (the “Effective Date”), by and between THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY (hereinafter called the “Port Authority”), a body corporate and politic, established by Compact between the States of New York and New Jersey with the consent of the Congress of the United States of America, as lessor, having an office at 4 World Trade Center at 150 Greenwich Street, New York, New York 10007, and DELTA AIR LINES, INC. (hereinafter called the “Lessee”), a corporation formed under the laws of the state of Delaware, having an office address at 1030 Delta Boulevard, Department 877, Atlanta, Georgia, 30354, whose representative is the Vice President-Corporate Real Estate. The Port Authority and the Lessee are hereinafter sometimes referred to individually as a “Party” and collectively as the “Parties”.
WITNESSETH, That:
1.    WHEREAS, by that certain agreement of lease made effective as of December 10, 1980 and identified by the lease number AG-865 (which agreement of lease, as the same has been amended and supplemented, being hereinafter called the “Existing Terminal D Lease”), previously by and between the Port Authority and the Lessee, the Port Authority let to the Lessee, and the Lessee hired and took from the Port Authority, certain premises and certain common areas located at the Airport located in the Borough of Queens, New York, New York, as more particularly described in the Existing Terminal D Lease (said premises referred to herein as the “Existing Terminal D”);
2.    WHEREAS, by that certain agreement of lease made effective as of March 17, 1977 and identified by the lease number AG-751, previously by and between the Port Authority and the Lessee and that certain agreement of lease made effective as of June 2, 1989 and identified by the lease number AGA-126, previously by and between the Port Authority and the Lessee (which agreements of lease, as the same have been amended and supplemented, being hereinafter called the “Existing Terminal C Lease” and, together with the Existing Terminal D Lease, the “Existing

OHSUSA:765698154.37




Leases”), the Port Authority let to the Lessee, and the Lessee hired and took from the Port Authority, certain premises and certain common areas located at the Airport located in the Borough of Queens, New York, New York, as more particularly described in the Existing Terminal C Lease (said premises referred to herein as the “Existing Terminal C”, and together with Existing Terminal D, the “Existing Terminal Facilities”, and the premises subject to the Existing Leases, collectively, the “Existing Lease Premises”);
3.    WHEREAS, by that certain space permit made effective as of December 1, 2011 and identified by the agreement number AGA-971, which was succeeded by that certain space permit made effective as of January 1, 2016 and identified by the agreement number AGB-108 (such space permits, as amended and supplemented, collectively, the “Aircraft Parking Permit”), by and between the Port Authority and the Lessee, the Port Authority granted to the Lessee the exclusive right to occupy and use, and the Lessee accepted and has continuously occupied and used, a certain area located at the Airport located in the Borough of Queens, New York, New York, as more particularly described in the Aircraft Parking Permit (such area, the “Aircraft Parking Premises”);
4.    WHEREAS, by that certain space permit made effective as of December 1, 2011 and identified by the agreement number AGA-973, which was succeeded by that certain space permit made effective as of January 1, 2016 and identified by the agreement number AGB-088 (such space permits, as amended and supplemented, collectively, the “GSE Maintenance Facility Permit”), previously by and between the Port Authority and the Lessee, the Port Authority granted to the Lessee the exclusive right to occupy and use, and the Lessee accepted and has continuously occupied and used, a certain area located at the Airport located in the Borough of Queens, New York, New York, as more particularly described in the GSE Maintenance Facility Permit (such area, the GSE Maintenance Facility Premises”);
5.    WHEREAS, by that certain space permit made effective as of March 1, 2012 and identified by the agreement number AGA-978 (such space permit, as amended and supplemented, the “Trailer Site Permit” and, together with the Aircraft Parking Permit and the GSE Maintenance Facility Permit, the “Existing Permits,” and the Existing Permits and the Existing Leases, collectively, the “Existing Agreements”), previously by and between the Port Authority and the Lessee, the Port Authority granted to the Lessee the exclusive right to occupy and use, and the Lessee accepted and has continuously occupied and used, a certain area located at the Airport located in the Borough of Queens, New York, New York, as more particularly described in the Trailer Site Permit (such area, the “Trailer Site Premises” and together with the Aircraft Parking Premises and the GSE Maintenance Facility Premises, the “Existing Permit Premises”);
6.    WHEREAS, the premises under the Existing Agreements are contiguous, and in lieu of amending and supplementing each of the Existing Agreements, the parties wish to enter into a single new lease amending and restating the Existing Agreements, consolidating the respective premises under the Existing Agreements and providing for the Lessee to continue its occupancy of the Existing Premises, all in accordance with the terms and conditions of this Agreement;

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8.    WHEREAS, in entering into this Agreement, the parties intend that this Agreement and the letting hereunder shall be construed as if the Existing Agreements had been amended and restated in accordance with the terms and conditions provided below;
9.    WHEREAS, the Lessee has determined, with the Port Authority’s approval, to redevelop the Premises in accordance with the terms and conditions set forth herein;
10.    WHEREAS, in order to memorialize the agreements between the parties with respect to such redevelopment by the Lessee, the Port Authority and the Lessee intend to enter into this Agreement;
11.    WHEREAS, on July 21, 2016, the Board of Commissioners of the Port Authority issued the “LaGuardia Airport – Redevelopment of Terminal C & D – Authorization of Project Contributions”, which authorizes the Port Authority, amongst other things, to contribute certain funding to support a redevelopment of the Premises and the Off-Premises Facilities;
12.    WHEREAS, on January 5, 2017, the Board of Commissioners of the Port Authority issued an authorization titled “LaGuardia Airport – Authorization to Enter Amended and Restated Agreement for Lease of New Terminal C&D” which authorizes, amongst other things, the Port Authority to enter into an amended and restated lease on terms and conditions substantially consistent with such board authorization;
13.    WHEREAS, on July 20, 2017, the Board of Commissioners of the Port Authority issued an authorization titled “LaGuardia Airport – New Terminal C&D – Amended and Restated Agreement for Lease of New Terminal C&D – Amendment of Prior Resolution” which authorizes, amongst other things, the Port Authority to enter into an amended and restated lease on terms and conditions substantially consistent with the terms and conditions set forth herein; and
NOW THEREFORE, in consideration of the mutual promises herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the Lessee and the Port Authority hereby mutually agree that the Existing Agreements be amended and restated as of the Effective Date as follows:

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Section 1.Definitions
The following terms, when used in this Agreement, shall, unless the context shall require otherwise, have the respective meanings given below.
179D Deduction” shall have the same meaning as set forth in Section 6(e).
2017 Rent” shall have the same meaning as set forth in Section 7(b)(1).
2017 Per Gate Rental Rate” shall have the same meaning as set forth in Section 7(b)(3).
Accommodationsshall mean and include:
(A)
Use by a Requesting Airline of Gate(s) and Gate Related Premises for its scheduled passenger flight operations;
(B)
Utilities, janitorial services, security, maintenance and repair and other services and facilities necessary or desirable in connection with the use described in clause (A) above of this definition;
(C)
Relocation of one or more of the scheduled flight operations of the Lessee and/or Airline Sublessees within the Premises to accommodate such Requesting Airline; and
(D)
The towing of aircraft of the Lessee or any Airline Sublessee of the Lessee from a Gate if such Gate is needed to accommodate the scheduled passenger flight operations of a Requesting Airline.
Accommodations Agreement shall mean each agreement entered into between the Lessee and a Requesting Airline covering the Lessee's provision of Accommodations at the Premises pursuant to Section 41 (Requesting Airlines), each of which shall be subject to the prior consent of the Port Authority in accordance with this Agreement, which consent shall not be unreasonably withheld, conditioned or delayed. An “Accommodations Agreement” may be in the form of a sublease, an agreement licensing the use of property, a “Handling Agreement” or any combination thereof.
Accommodated Airline shall mean a Requesting Airline that is a party to an Accommodations Agreement with the Lessee.
Actual Port Authority Concessions Revenues” shall have the meaning set forth in Section 7(b)(4).
Additional Operator” shall have the meaning set forth in Section 37(a).
Additional Premises” shall have the meaning in Section 2(b).
Additional Premises Effective Date” shall have the meaning set forth in Section 2(b).
Aeronautical User” shall mean any provider of services (including Handling Services and repair and servicing of Aircraft) to the Lessee or any other air carrier in the Premises.

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Affected Party” shall have the meaning set forth in Section 71(a).
Affiliate” of any Person means any entity which, directly or indirectly, through one or more intermediaries, (a) has a ten percent (10%) or more voting or economic interest in such Person or (b) Controls, is Controlled by, or is under common Control with such Person; provided, that no shareholder, limited partner or other investor in an entity that has any direct or indirect voting or economic interest in such Person shall be deemed an “Affiliate” of such Person solely by virtue of clause (a).
Affiliated Scheduled Aircraft Operator” shall have the meaning set forth in Section 33(a).
Agreement” shall have the meaning set forth in the preamble hereto.
Aircraft” or “aircraft” shall mean airplanes, helicopters and every other contrivance now or hereafter used for the navigation of or flight in air or space.
Aircraft Operator” shall mean (A) a Person owning one or more aircraft which are not leased or chartered to any other Person for operation, or (B) a Person to whom one or more aircraft are leased or chartered for operation whether the aircraft so owned, leased or chartered are military or non-military, or are used for private business, pleasure or governmental business, or for carrier or non-carrier operations, or for scheduled or non-scheduled operations or otherwise. Said phrase shall not mean the pilot of an aircraft unless he or she is also the owner or lessee thereof or a Person to whom such aircraft is chartered.
Aircraft Parking Permit” shall have the meaning set forth in the recitals hereto.
Aircraft Parking Premises” shall have the meaning set forth in the recitals hereto.
Airline Sublease” means any Sublease between the Lessee and a Scheduled Aircraft Operator.
Airline Sublessee” shall have the meaning set forth in Section 32(d).
Airport” shall mean LaGuardia Airport, consisting of certain premises identified as “LaGuardia Airport” on Sheet LGA-1 of Exhibit A, and more particularly described in Exhibit B, each annexed to the Basic Lease, and such other property as may be acquired in connection with and added to such premises pursuant to the terms of the Basic Lease.
Airport Concession Disadvantaged Business Enterprises” or “ACDBE” shall mean Airport Concession Disadvantaged Business Enterprises, as defined in 49 C.F.R. Part 23.
Airport Operating Certificate” shall mean the airport operating certificate issued by the FAA pursuant to 14 C.F.R. Part 139 with respect to the Airport.
“Airport Security Manager” shall mean the Airport’s primary contact for civilian security related activities at the Airport, who is designated the “Airport Security Coordinator” as specified in 49 C.F.R. Part 1542.

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Airport Security Program” or “ASP” shall have the meaning set forth in Section 12(a).
Annual Variance” shall have the meaning set forth in Section 7(b)(4).
Applicable Issuer” shall mean the issuer of an issue of Tax-Exempt Bonds.
Applicable Law” or “Applicable Laws” shall mean any statute, law, code, regulation, ordinance, rule, common law, judgment, judicial or administrative order, decree, directive or other requirement having the force of law or other governmental restriction (including those resulting from the initiative or referendum process) or any similar form of decision of or determination by any Governmental Authority (including any applicable regulation, order or statement of policy of the Administrator of the FAA or any other governmental officer or body having jurisdiction over the enforcement of the obligations of the Port Authority under federal law), including any Environmental Requirements, whether taking effect before or after the Effective Date, in each case, as amended, revised, supplemented or otherwise modified from time to time. For the avoidance of doubt, the term “Applicable Laws” includes FAA Grant Assurances, TSA-issued requirements, PFC assurances and decisions and the Airport Operating Certificate, but excludes the Applicable Standards.
Applicable Standards shall mean (i) the Rules and Regulations and (ii) all applicable codes, standards, regulations, manuals, references, guidelines, policies, specifications, handbooks and advisory circulars, including such codes, standards, regulations, manuals, references, guidelines, policies, specifications, handbooks, advisory circulars and similar documents referenced within this Agreement and the Requirements and Provisions for Work issued or published by a Governmental Authority and any similar applicable documents referenced in the Basic Lease, as amended, revised, supplemented or otherwise modified from time to time.
Archaeological Remains” means antiquities, fossils, coins, articles of value, precious minerals, cultural artifacts, human burial sites, paleontological and human remains and other similar remains of archaeological or paleontological interest discovered on any part of the Premises or the areas subject to the Rights of Access or O&M Access Areas.
Architect of Record” or “AOR” shall mean the licensed professional architect in the State of New York employed by the Lessee with respect to the D&C Work.
Available Documents” means the documents listed in Exhibit 1 (List of Available Documents).
Bankruptcy Brokerage Commissions” shall have the meaning set forth in Section 87(c).
Baseline Environmental Assessment” shall have the meaning set forth in Section 77(a).
Baseline Port Authority Concessions Revenues” shall have the meaning set forth in Section 7(b)(4).
Baseline Schedule” shall mean an initial comprehensive baseline design and construction schedule for the D&C Work prepared by the Lessee in accordance with the requirements of the

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General Provisions and approved by the Port Authority in form and substance. The Lessee shall update the Baseline Schedule in accordance with the General Provisions and provide each update for the Port Authority’s review and comment (if any).
Basic Lease” shall mean the Amended and Restated Agreement of Lease of the Municipal Air Terminals between The City of New York, as landlord, and The Port Authority of New York and New Jersey, as tenant, dated as of November 24, 2004 and recorded in the office of the City Register of The City of New York, County of Queens, on December 3, 2004 with a City Register File Number of 2004000748687, as the same may have been or may be supplemented, amended and/or restated.
Basic Rent” shall have the meaning set forth in Section 7(b)(2).
Basic Rent Cessation Date” shall have the meaning set forth in Section 7(b)(3).
Best Management Practice” shall mean the exercise of the degree of skill, diligence, prudence and foresight that would reasonably and ordinarily be expected from time to time from a skilled and experienced designer, engineer, constructor, maintenance contractor, operator, consultant, analyst or the Lessee seeking in good faith to comply with its contractual obligations, complying with all Applicable Laws, Governmental Approvals and Applicable Standards, and engaged in the same type of undertaking under similar circumstances and conditions. Best Management Practice is not static but rather will change over time; provided, however, that Best Management Practice with respect to any particular activity will be determined at the time when such particular activity is performed.
Blocked Persons” shall have the meaning set forth in Section 79 (OFAC Compliance).
Blocked Persons Laws” shall have the meaning set forth in Section 79 (OFAC Compliance).
Bond-Financed Assets” shall mean those assets (or portions thereof) to which proceeds of the Tax-Exempt Bonds are allocated in accordance with the books and records of the Applicable Issuer (with the consent of the Port Authority if the Applicable Issuer is not the Port Authority, which consent shall not be unreasonably withheld).
Books and Records” shall have the meaning set forth in Section 96(b).
Business Day” means any day that is not a Saturday, Sunday or other day on which (a) the Port Authority is officially closed for business, (b) banks located in New York City are required or authorized by law or executive order to close or (c) the New York Stock Exchange is closed.
Calendar Year” means the consecutive twelve (12)-month period starting on January 1 and ending on December 31.
Central Hall” means a non-exclusive, central arrivals/departure hall to be located between the Terminal B Project and the future redeveloped Premises pursuant to this Agreement that will not preclude the future development of one or more of the following: an automated people mover

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and/or moving walkway, an air train station, conference and meeting room capacity, retail, food and beverage space and a hotel and related facilities.
CERCLA” shall have the meaning set forth in Section 18(a)(1).
Change Order Proposal” shall have the meaning set forth in Section 5(cc)(1)(ii).
Chief Engineer” shall mean the Chief Engineer of the Port Authority (or any successor officer serving the same or equivalent function, as notified in writing to the Lessee by the Port Authority).
Chief Security Officer or “CSO” shall mean the Port Authority’s Chief Security Officer or the CSO’s duly authorized representative, including but not limited to the Airport Security Manager.
City Insureds” shall mean the following entities: The City of New York, the officials and employees of The City of New York (to the extent that the officials and employees of the Port Authority of New York and New Jersey are likewise insured) and the EDC.
Civil Aircraft Operator” shall mean a person engaged in civil transportation by Aircraft or otherwise operating Aircraft for civilian purposes, whether governmental or private. If any such person is also engaged in the operation of Aircraft for military, naval or air force purposes, he shall be deemed to be a Civil Aircraft Operator only to the extent that he engages in the operation of Aircraft for civilian purposes.
Code” shall mean the Internal Revenue Code of 1986.
Code Change” shall mean any change to the Building Department Code, the Health Code, the Fire Department Code or other enactments, ordinances, resolutions, regulations or similar codes, documents, rules and regulations and issuances of the City of New York or its departments, boards and bureaus that (i) is applicable to the D&C Work or the Operations and Maintenance Work if the Port Authority were a private entity or any lessee or tenant of the Port Authority and (ii) takes effect after the Effective Date.
Common Use Space” shall mean the area adjacent to the Public Landing Area designated and made available from time to time by the Port Authority for common use for the loading or unloading of passengers or cargo to or from aircraft using the public landing area.
Compact” shall mean that certain compact between the States of New Jersey and New York, which, with the consent of the Congress of the United States of America, established that certain body corporate and politic, the Port Authority, as the same may be amended, supplemented or otherwise modified from time to time.
Completion Certificate” shall have the meaning set forth in Section 5(v)(1)(iv).
Completion Date” shall have the meaning set forth in Section 5(v)(1)(vi).

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Completion Delay Events” shall have the meaning set forth in Section 71(b).
Compliance Standard” shall have the meaning assigned to it in Section 76(j).
Comprehensive Concessions Plan” shall have the meaning set forth in Section 34(b).
Comprehensive Plan” shall have the meaning set forth in Section 5(a)(1).
Comprehensive Parking and Traffic Plan” shall have the meaning set forth in Section 4(j).
Concession Sublease” shall mean any Sublease entered into by and between the Lessee and a Concession Sublessee.
Concession Sublessee” shall mean any provider of concession goods and services with which the Lessee has entered into a Sublease in accordance with Section 34 (Concession Sublease).
Concessions Model Workbook” shall have the meaning set forth in Section 7(b)(4).
Concessions Share” shall have the meaning set forth in Section 36 (Concessions Revenue Share).
Condition Survey” shall mean an inspection by the Condition Survey Contractor of the Premises including, without limitation, the then current state of cleaning, maintenance and repairs, janitorial services, painting, structural and nonstructural conditions, surface and subsurface conditions, environmental conditions, lighting of building areas, ramp and apron areas, and the condition of utilities and utility systems, fire-fighting and fire protection equipment and systems, communications and communications systems, anti-pollution systems and devices, fuel facilities and systems, and the Lessee’s fixtures, equipment and personal property; provided that a Condition Survey will not include an inspection of subsurface conditions unless the Port Authority has a reasonable basis for believing there has been a material change to such conditions; and provided further, that a Condition Survey performed during the last twelve (12) months prior to the Expiration Date will not include activities Lessee performs or has performed under Section 77(b).
Condition Survey Contract” shall mean a contract awarded to a Condition Survey Contractor, or entered into between the Port Authority and a Condition Survey Contractor, for the performance by such Condition Survey Contractor of a Condition Survey at any of the applicable times specified in paragraph (b) of Section 74 (Joint Periodic Condition Survey).
Condition Survey Contractor” shall mean the reputable engineering firm, licensed or authorized to do business in the State of New York, to whom the Condition Survey Contract is awarded pursuant to paragraph (c) of Section 74 (Joint Periodic Condition Survey).
Condition Survey Costs” shall mean and include with respect to each Condition Survey all amounts paid and expenses incurred by the Port Authority including, without limitation, payments to third Persons and internal Port Authority costs and expenses as well as all interest, costs, damages and penalties, in accordance with the provisions of Section 74(a), and including, with respect to

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each Condition Survey Contract, all amounts paid or to be paid to the Condition Survey Contractor under the terms of its Condition Survey Contract, for, relating to or in connection with Condition Survey work to be performed under the Condition Survey Contract.
Condition Survey Report” shall mean the report prepared by the Condition Survey Contractor after its completion of the Condition Survey including, without limitation, any and all recommendations for repair, maintenance, rebuilding and cleaning of all items or areas covered by the Condition Survey.
Consent to Sublease” shall have the meaning set forth in Section 32(c).
Contiguous Travel Costs” shall have the meaning set forth in Section 96(e)(2).
Construction Application” shall have the meaning set forth in Section 5(g)(1).
Construction Coordination Agreement” shall mean the Construction Coordination Agreement, dated as of June 1, 2016, by and among the Port Authority, the Lessee and LaGuardia Gateway Partners, LLC, as amended, supplemented or otherwise modified from time to time.
Contract” shall mean any agreement, and any supplement or amendment thereto, between the Lessee and a Contractor, and any Contractor and any other Person at all tiers, to perform any part of the Work or provide any materials, equipment or supplies for any part of the Work.
Contractor” shall mean any Person with whom the Lessee has entered into any Contract, and any other Person with whom any Contractor has further subcontracted any part of the Work, at all tiers.
Control” (including the terms Controlling, Controlled by and under common Control with) shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise.
Corrective Action Plan” shall have the meaning set forth in Section 5(i)(2).
Covered Area” shall have the meaning set forth in Section 77(b).
CPI” shall mean the “Consumer Price Index – for all Urban Consumers” for the New York/Northern NJ/Long Island area (not seasonally adjusted) as published by the U.S. Department of Labor, Bureau of Labor Statistics; provided, however, that if the CPI is changed so that the base year of the CPI changes, the CPI shall be converted in accordance with the conversion factor published by the U.S. Department of Labor, Bureau of Labor Statistics. If the CPI is discontinued or substantially altered, the applicable substitute index will be that chosen by the Secretary of the Treasury for the Department of Treasury’s Inflation-Linked Treasuries as described at 62 Federal Register 846-847 (January 6, 1997), or if no such securities are outstanding, will be determined by the Parties in accordance with general market practice at the time.
CPI Percentage Increase” shall have the meaning set forth in Section 7(a).

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Customer Care Standards” shall mean The Port Authority of New York and New Jersey Customer Care Airport Standards Manual (5th edition) (July 2008), or any subsequent edition.
D&C Milestone Payment” shall have the meaning set forth in Section 6(a)(1).
D&C Work shall have the meaning set forth in Section 5(b)(1).
D&C Work Costs” shall mean the costs for or in connection with the D&C Work, including without limitation, all fees, costs or reserves related to the financing, refinancing, construction or installation of the New Terminal Facilities or in connection with the issuance of the Lessee Debt to finance D&C Work Costs.
D&C Work Period” shall mean the period commencing from the Effective Date until the Port Authority issues a “Final Certificate of Authorization to Occupy or Use” pursuant to Section 5(v)(1)(vii).
Date of Beneficial Occupancy” or “DBO” shall mean (i) with respect to any Partial Occupancy Portion or Installation Portion, the effective date of the applicable “Temporary Certificate of Authorization to Occupy or Use” issued by the Port Authority with respect to such Partial Occupancy Portion or Installation Portion, and (ii) with respect to the entirety of the New Terminal Facilities and the Off-Premises Facilities, the Completion Date.
Date of Taking” shall have the meaning set forth in Section 45 (Condemnation).
Debarment Regulations” means (a) Federal Executive Order no. 12549 (Feb. 18, 1986), (b) Federal Executive Order no. 12689 (Aug. 16, 1989), (c) 31 U.S.C. § 6101 note (Section 2455, Pub. L. 103-355, 108 Stat. 3327) and (d) 49 C.F.R. Part 29 “Government-wide Debarment and Suspension (Nonprocurement).”
Design and Construction Requirements” shall mean (i) the “Design and Construction Requirements for the New Terminal,” set forth as Part B.1 of the Requirements and Provisions for Work and (ii) the “Design and Construction Requirements for PANYNJ Improvements,” set forth as Part B.2 of the Requirements and Provisions for Work; in each case, as may be amended, revised, supplemented or otherwise modified from time to time.
Discharge” shall have the meaning set forth in Section 75 (Storage Tanks and Pipelines).
Early Termination” means the termination of this Agreement for any reason prior to the Expiration Date.
Early Termination Date” means the effective date of Early Termination.
East Garage” shall mean the existing multi-level parking structure located south of the existing Terminal C and east of the East End Substation, having approximately 1,100 parking spaces as of the Effective Date.

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EDC” means the New York City Economic Development Corporation, a local development corporation formed pursuant to Section 402 of the Not-for-Profit Corporation Law of the State of New York, or such successor entity as may be designated by New York City under the Basic Lease.
Effective Date” shall mean the date of this Agreement.
Eligible Project Costs” shall have the meaning set forth in Section 6(d).
Endangered Species” shall mean any animal or plant species listed as endangered or threatened under an Environmental Requirement or that is protected from harm or harassment under an Environmental Requirement.
Engineer of Record” or “EOR” shall mean the licensed professional engineer in the State of New York employed by the Lessee with respect to the D&C Work.
Environment shall mean air, soils, surface waters, groundwater, land, stream sediments, surface or subsurface strata, biological resources, including endangered, threatened and sensitive species and natural systems, including ecosystems.
Environmental Conditions” shall have the meaning set forth in Section 100 (Survival of Obligations).
Environmental Damages” shall mean any one or more of the following: (i) the presence on, about or under the Existing Premises of any Hazardous Substance, (ii) the Release of Hazardous Substances, or violation of any Environmental Requirements pertaining to any such Hazardous Substances, by any Lessee-Related Entity or third party for which the Lessee is responsible under this Agreement with respect to the Premises, the Rights of Access, the O&M Access Areas and/or the activities thereon, and/or (iii) any personal injury (including wrongful death) or property damage arising out of or related to any such Hazardous Substance described in clause (i) or (ii) above.
Environmental Requirement” and “Environmental Requirements” shall mean all common law and all applicable past, present and future laws, statutes, enactments, resolutions, regulations, rules, directives, ordinances, codes, licenses, permits, orders, memoranda of understanding and memoranda of agreement, guidances, approvals, plans, authorizations, concessions, franchises, requirements and similar items of all governmental agencies, departments, commissions, boards, bureaus or instrumentalities of the United States of America, states and political subdivisions thereof, and all pollution prevention programs, “best management practices plans”, and other programs adopted and agreements made by the Port Authority (whether adopted or made with or without consideration or with or without compulsion), with any government agencies, departments, commissions, boards, bureaus or instrumentalities of the United States of America, states and political subdivisions thereof, and all judicial, administrative, voluntary and regulatory decrees, judgments, orders and agreements of all Governmental Authorities relating to the protection of human health or the environment, and in the event that there shall be more than one compliance standard, the standard for any of the foregoing to be that which requires the lowest level of a Hazardous Substance, the foregoing to include without limitation:

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(1)
all requirements pertaining to reporting, licensing, permitting, investigation, and Remediation of emissions, discharges, releases, or threatened releases of Hazardous Substances into the air, surface water, groundwater, or land, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of Hazardous Substances;
(2)
all requirements, pertaining to the protection of the health and safety of employees or the public;
(3)
all requirements adopted or promulgated under the Atomic Energy Act of 1954, 42 U.S.C. Section 2011 et seq.; the Clean Water Act also known as the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Section 136 et seq.; the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq.; the Superfund Amendments and Reauthorization Act of 1986, Section 2701 et seq.; the Emergency Planning and Community Right to Know Act, 42 U.S.C. Section 11001 et seq.; the Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. Section 5101 et seq.; the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; National Environmental Policy Act, 42 U.S.C. Sections 4321 et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Safe Drinking Water Act of 1974, 42 U.S.C. Sections 300f-300h-11 et seq.; the New York State Environmental Conservation Law; the New York State Navigation Law; together, in each case, with any amendment thereto, and the regulations promulgated thereunder and all amendments or modifications thereof, without regard to any exemptions from such laws or regulations that may pertain to the Port Authority; and
(4)
the requirements and conditions set forth in the FONSI, including any requirements and conditions set forth in the Record of Decision or the Environmental Assessment.
Established Integration Schedule” shall have the meaning set forth in the Construction Coordination Agreement.
Event of Default” shall have the meaning set forth in Section 46(a).
Exacerbate” or “Exacerbated” shall have the meaning set forth in Section 76(f)(3).
Excavation Boundary” shall mean the applicable Perimeter Dig Area, plus a ten (10) foot wide (measured at the surface of the ground from the boundary of the Perimeter Dig Area) strip of land adjacent to the Perimeter Dig Area; provided, that the ten (10) foot wide strip will (i) be limited to five (5) feet on either side of an excavation that is less than ten (10) feet wide, (ii) end at the nearest property boundary, building or structure if that distance is less than ten (10) feet from the excavation (or five (5) feet if clause (i) above is applicable), and (iii) be limited in depth to the depth

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of the shallower of average groundwater depth or one (1) foot below the intended bottom depth of the excavation within the Perimeter Dig Area.
Exclusive Area Agreement” or “EAA” means the Exclusive Area Agreement Security Program between the Port Authority and the Lessee with respect to the Premises, as in effect from time to time.
Exempt Sublease” shall have the meaning set forth in Section 32(a).
Existing Agreements” shall have the meaning set forth in the recitals hereto.
Existing Bond Mortgages” means (i) that certain Leasehold Mortgage by and from Continental Airlines, Inc., a Delaware corporation, and Eastern Air Lines, Inc., a Delaware corporation, to The Bank of New York, dated as of June 1, 1990 and recorded on June 12, 1990 in Reel 3009 Page 2322 in the official real property records of Queens County, New York, and (ii) that certain Leasehold Mortgage by the Lessee by and from Delta Air Lines, Inc., a Delaware corporation, to The Bank of New York, dated as of December 1, 1992 and recorded on December 30, 1992 in Reel 3471 Page 1176 in the official real property records of Queens County, New York.
Existing Leasehold Mortgages” means the Existing Bond Mortgages and the Existing Subordinated Mortgages.
Existing Leases” shall have the meaning set forth in the recitals hereto.
Existing Lease Premises” shall have the meaning set forth in the recitals hereto.
Existing Permit Premises” shall have the meaning set forth in the recitals hereto.
Existing Permits” shall have the meaning set forth in the recitals hereto.
Existing Premises” shall have the meaning set forth in Section 2(a).
Existing Storm Water Drainage Trunk Line” shall have the meaning set forth in Section 5(b)(2)(i)(c).
Existing Sublease Amendment” shall have the meaning set forth in Section 32(b)(ii).
Existing Subordinated Mortgages” means the First Subordinated Mortgage and the Second Subordinated Mortgage.
Existing Terminal C” shall have the meaning set forth in the recitals hereto.
Existing Terminal C Lease” shall have the meaning set forth in the recitals hereto.
Existing Terminal D” shall have the meaning set forth in the recitals hereto.
Existing Terminal D Lease” shall have the meaning set forth in the recitals hereto.

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Existing Terminal Facilities” shall have the meaning set forth in the recitals hereto.
Exit Baseline” shall have the meaning set forth in Section 77(b).
Expiration Date” shall have the meaning set forth in Section 3 (Term).
FAA” shall mean the United States Federal Aviation Administration.
FAA Grant Assurances” shall mean certain obligations with respect to the maintenance and operation of the Airport facilities required by the FAA in connection with any FAA-administered airport financial assistance programs.
Financing Documents” means the Funding Documents and the Security Documents and any Refinancing Documents.
Finding of No Significant Impact” or “FONSI” means a determination by the FAA that the FAA’s approval of the Proposed Action described in the East Side Reconfiguration at LaGuardia Airport, Draft Environmental Assessment, prepared for U.S. Department of Transportation, Federal Aviation Administration, sponsored by the Port Authority (dated March 2017), as amended or supplemented, if applicable, with respect to the Proposed Action, will not have a significant effect on the human environment and therefore an environmental impact statement does not need to be prepared in connection with such approval, as provided in 40 C.F.R. § 1508.13.
First Additional Rent” shall have the meaning set forth in Section 7(c).
First Subordinated Mortgage” means that certain Wraparound Subordinated Leasehold Mortgage and Assignment of Leases and Rents by and from Continental Airlines, Inc., a Delaware corporation to Eastern Air Lines, Inc., a Delaware corporation, dated as of August 2, 1991 and recorded on November 12, 1991 in Reel 3229 Page 506 in the official real property records of Queens County, New York.
Force Majeure” shall have the meaning set forth in Section 71 (Force Majeure).
Foreclosure Rights” mean the right, pursuant to the provisions of Section 89 (Project Financing), to foreclose upon the Leasehold Mortgage and to have this Agreement with respect to the Premises assigned to a Qualified Terminal Operator.
Fueling Service” shall have the meaning set forth in Section 24 (Aviation Fueling).
Funding Documents” means such all documents executed and delivered by the Lessee in connection with the incurrence of any Lessee Debt in accordance with this Agreement that are designated by the Lessee as “Funding Documents”, the repayment obligations of which are secured by one or more Leasehold Mortgages, and any subsequent amendment of or supplement to any such documents that is designated by the Lessee and, to the extent of any amendment or supplement that requires the consent of at least a majority in interest of the Lenders, or that could reasonably be expected to have an adverse effect on the Port Authority or its rights or obligations under this Agreement, approved and consented to by the Port Authority.

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Gate” shall mean an airline passenger Aircraft loading and unloading building gate position at the Existing Terminal Facilities or the New Terminal Facilities, as applicable.
Gate Related Premises” shall mean as to each Gate in the Premises, all related aircraft ramp and gate position capacity and related passenger terminal space and facilities including, but not limited to, passenger ticketing, passenger check-in, baggage handling and flight information systems, passenger lounge and waiting areas, holding rooms, loading bridges, baggage claims, and such other facilities reasonably required for the functional use of a Gate or Gates.
General Manager of the Airport” or “General Manager” shall mean the person or persons from time to time designated by the Port Authority to exercise the powers and functions vested in the General Manager by this Agreement; but until further notice from the Port Authority to the Lessee it shall mean the General Manager (or the temporary or acting General Manager) of the Airport for the time being, or his duly designated representative or representatives.
General Provisions” shall mean shall mean the “General Provisions,” set forth as Part A of the Requirements and Provisions for Work, as may be amended, revised, supplemented or otherwise modified from time to time.
Governmental Approval” shall mean all approvals, permits, permissions, consents, licenses, certificates (including sales tax exemption certificates), registrations, notices, exemptions, exceptions, waivers, filings and authorizations (whether statutory or otherwise), which are required from time to time under Applicable Law in order to authorize the Port Authority or the Lessee to perform all or any part of the D&C Work or take actions required to complete obligations in connection with the Comprehensive Plan, the Operations and Maintenance Work, or the lease and management of the Premises as provided for under this Agreement and that are issued or authorized by any Governmental Authority.
Governmental Authority” or “Governmental Agency” shall mean federal, state, municipal and other governmental authorities, boards and agencies of any state, nation or government including, without limitation, any court, and all agencies under the United States Departments of Interior, Commerce and Agriculture, the United States Food and Drug Administration and the United States Centers for Disease Control and Prevention, except that it shall not be construed to include The Port Authority of New York and New Jersey, the lessor under this Agreement.
Gross Earnings” shall have the meaning set forth in Section 18(d)(1).
Ground Rent” shall have the meaning set forth in Section 7(a).
GSE Maintenance Facility Permit” shall have the meaning set forth in the recitals hereto.
GSE Maintenance Facility Premises” shall have the meaning set forth in the recitals hereto.
Handling Agreement” shall mean a ground handling or handling agreement as such terms are used and understood in the aviation industry, or any other agreement entered in to between an

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Aircraft Operator and another party, including but not limited to, the Lessee, whereby such Aircraft Operator is provided Handling Services.
Handling Services” shall mean collectively, those services commonly known as “Ramp Services,” which include, Aircraft ground handling, interior and exterior Aircraft cleaning, baggage loading and unloading from Aircraft, those services commonly known as “cargo handling services”, the transportation of passengers to and from Aircraft for the purpose of enplanement and deplanement and the performance of ground services incidental to flight, such as pre-flight briefing of air crews, and those services commonly known as “passenger handling services”, which include passenger ticketing, passenger assistance and passenger information services.
Hazardous Substance” and “Hazardous Substances” shall mean any pollutant, contaminant, toxic or hazardous waste, dangerous substance, potentially dangerous substance, noxious substance, toxic substance, flammable, explosive, radioactive material, urea formaldehyde foam insulation, asbestos, polychlorinated biphenyls (PCBs), chemicals known to cause cancer or reproductive toxicity, petroleum and petroleum products and other substances which is, during the Term of this Agreement or in connection with any Lessee obligations that survive termination of this Agreement, listed, identified or declared by a Governmental Authority to be hazardous or toxic, or the removal of which is required by any Environmental Requirement, or the manufacture, preparation, production, generation, use, maintenance, treatment, storage, transfer, handling or ownership of which is restricted, prohibited, regulated or penalized by any Environmental Requirement.
In-Flight Meals” shall have the meaning set forth in Section 40 (In-Flight Meals).
Initial Lessee Debt” shall mean the first issuance of Lessee Debt pursuant to the Financing Documents.
In-Kind Rent” shall have that meaning as set forth in Section 7(e).
Installation” shall have the meaning set forth in Section 5(b)(2)(ii).
Installation Portion” shall have the meaning set forth in Section 5(v)(2)(i).
Institutional Lender” means (i) the United States of America, any state or commonwealth thereof or any agency or instrumentality of any of them, any municipal agency, public benefit corporation or public authority, advancing or insuring mortgage loans or making payments which, in any manner, assist in the financing, development, operation and maintenance of projects, (ii) any (A) savings bank, savings and loan association, commercial bank, trust company (whether acting individually or in a fiduciary capacity) or insurance company organized and existing under the laws of the United States of America or any state or commonwealth thereof, (B) foreign insurance company or commercial bank qualified to do business as an insurer or commercial bank as applicable under the laws of the United States of America (if such qualification is necessary in connection with the acquisition of Lessee Debt), (C) pension fund, foundation or university or college or other endowment fund or (D) real estate investment fund, infrastructure investment fund, investment bank, pension advisory firm, mutual fund, investment company or money management firm, (iii) any

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“qualified institutional buyer” under Rule 144(A) under the Securities Act of 1933, as amended, or any other similar law hereinafter enacted that defines a similar category of investors by substantially similar terms, (iv) a Governmental Authority acting (directly or through a trust or other single purpose vehicle controlled by it) as a conduit for the purpose of issuing private activity bonds authorized by law for the benefit of the Lessee or (v) any other financial institution or entity designated by the Lessee and approved by the Port Authority; provided, however, that each such entity or combination of such entities, if the Institutional Lender shall be a combination of such entities, shall have individual or combined assets, as the case may be, of not less than $1,000,000,000 and in no event shall be a Prohibited Party.
Insurance Subsidiary” means a direct or indirect subsidiary of Lessee that (A) is subject to regulation by the insurance regulatory authority of its jurisdiction of organization and (B) maintains solvency margins at least in the minimum amount required by the insurance regulatory authority of its jurisdiction of organization.
Intellectual Property means any and all patents, trademarks, service marks, copyright, database rights, moral rights, rights in a design, know-how, confidential information and all or any other intellectual or industrial property rights whether or not registered or capable of registration and whether subsisting in the United States of America or any other part of the world together with all or any goodwill relating or attached thereto, which is created, brought into existence, acquired, used or intended to be used by any Lessee-Related Entity for the purposes of carrying out the Work and/or otherwise for the purposes of this Agreement.
Itinerant Aircraft” shall have the meaning set forth in Section 8(f).
Labor Troubles” shall mean and include strikes, boycotts, picketing, work-stoppages, slowdowns, disputes, or any other type of labor trouble, regardless of the employer of the person involved or their employment status, if any.
LBEs” shall have the meaning set forth in Section 5(o)(3).
Leasehold Mortgage” shall mean, depending on the context, (i) collectively, any and all leasehold mortgages with respect to the rights of the Lessee under this Agreement entered into to secure the obligations of the Lessee under the Financing Documents, or (ii) collectively, any and all leasehold mortgages with respect to the rights of the Lessee under this Agreement entered into in connection with any Refinancing permitted under this Agreement, in each case in favor of the Recognized Mortgagee, in each case together with any amendment of or supplement thereto designated by the Lessee and, to the extent of any amendment or supplement that requires the consent of at least a majority in interest of the Lenders, or that could reasonably be expected to have an adverse effect on the Port Authority or its rights or obligations under this Agreement, approved and consented to by the Port Authority.
Leasehold Property” shall have the meaning set forth in Section 7(a).
Lenders” means, collectively, each bank or financial institution, or any other Person that has provided a commitment to underwrite or provide Lessee Debt or any guaranty (excluding any

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guaranty of Lessee Debt provided by the Lessee or an Affiliate thereof) or credit enhancement in respect thereof, together with their respective successors and assigns.
Lessee” shall have the meaning set forth in the preamble of this Agreement.
Lessee Assignment and Assumption Agreement” shall have the meaning set forth in Section 89(f)(i).
Lessee Change” shall have the meaning set forth in Section 5(cc)(2)(i).
Lessee Counterparty” shall have the meaning set forth in Section 62(b).
Lessee Debt” means, at the relevant time, the aggregate of (without double counting), any bona fide indebtedness of the Lessee (including bonds, bank debt, guaranties and credit support, subordinated indebtedness and all such obligations arising under such indebtedness) for or in respect of funds borrowed (including bona fide indebtedness with respect to any financial insurance issued for funds borrowed) or for the value of goods or services rendered or received in the performance of the Work, the repayment of which may be secured by one or more Leasehold Mortgages. Lessee Debt includes (i) principal, capitalized interest, interest by virtue of original issue discount, accrued interest (including default interest under the Financing Documents), (ii) customary and reasonable lender, financial insurer, agent and trustee fees, costs, expenses and premiums and reimbursement obligations owed to lenders, financial insurers, agents and trustees, with respect thereto, (iii) payment obligations under interest rate and inflation rate hedging agreements or other derivative facilities with respect thereto, (iv) reimbursement obligations with respect thereto, (v) lease financing obligations and (vi) prepayment premiums or penalties, make-whole payments or other prepayment amounts or breakage costs arising out of the repayment of such Lessee Debt, including in connection with the payment of any Unamortized Capital Investment. Lessee Debt excludes any increase in indebtedness to the extent resulting from an agreement or other arrangement the Lessee enters into or that the Lessee first incurs under a facility provided for or permitted by then-existing Financing Documents, in each case, after the occurrence of an event of termination giving rise to an obligation of the Port Authority to pay any termination compensation hereunder; provided, that subject to the following provisions of this definition, Lessee Debt will include any increase in indebtedness resulting from a Refinancing that occurs prior to an event of termination giving rise to an obligation of the Port Authority to pay any termination compensation hereunder and has complied with the requirements of Section 90 (Refinancing). In addition, no indebtedness will constitute Lessee Debt unless and until the Port Authority has been provided with written notice thereof and copies of any related Financing Documents, in accordance with Section 89(j), and the Port Authority has approved (at its sole discretion) such Lessee Debt and related Financing Documents to the extent required under this Agreement.
Lessee Tax-Exempt Bonds” shall mean any Tax-Exempt Bonds to the extent that the proceeds of such Tax-Exempt Bonds are treated for federal income tax purposes as loaned to the Lessee.

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Lessee’s Basis of Design” shall mean the document entitled “Delta Basis of Design Report,” prepared by the Lessee and approved by the Port Authority as of the Effective Date, and included as a Reference Document.
Lessee’s Pipeline” shall have the meaning set forth in Section 75(i).
Lessee’s Users” shall refer to the Airline Sublessees and their respective subsidiaries, Regional Affiliates, code share partners, subtenants, licensees and handled airlines operating from the Premises.
Lessee-Related Entity” shall mean (i) the Lessee, and (ii) the Lessee’s Affiliates, Contractors and any other Persons to the extent (x) using or occupying the Premises, or (y) performing any of the Work for or on behalf of the Lessee, including in all cases their respective employees, agents, officers, directors, shareholders, managers and members, general partners, authorized representatives, successors and assigns; provided that, in no event shall the Port Authority or any of its Commissioners, officers, employees or authorized representatives constitute a Lessee-Related Entity.
Letting” or “lettingshall mean the letting under this Agreement for the term stated herein.
LGP” shall mean LaGuardia Gateway Partners, LLC, a Delaware limited liability company.
LGP Lease” shall mean that certain Lease Agreement, dated June 1, 2016 and identified by the lease number AGB-104, by and between the Port Authority and LGP.
Lien” means any pledge, lien, security interest, mortgage, deed of trust or other charge or encumbrance of any kind, or any other type of preferential arrangement (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, any lease in the nature of a security instrument and the filing of or agreement to file any financing statement under the applicable State’s Uniform Commercial Code).
Losses” shall mean any loss, damage, injury, liability, obligation, cost, response cost, expense (including the fees and expenses of attorneys (whether those of the Port Authority Law Department or otherwise), accountants and expert witnesses incurred in connection with the enforcement of any provision of this Agreement), fee, charge, judgment, penalty, or fine, including as a result of any injury to or death of persons, or damage or loss of property.
Material Part” shall have the meaning set forth in Section 45 (Condemnation).
Matter” shall have the meaning set forth in Section 76 (Environmental Compliance and Related Matters).
Metro Area” shall have the meaning in Section 34(h).
Milestone” shall have the meaning in Section 6(a)(1).
Minimum Construction Amount” shall have the meaning set forth in Section 5(b)(5).

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Minimum Wage Policy” has the meaning set forth in Section 62 (Minimum Wage Requirements).
Monthly Per Gate Rental Rate” shall have the meaning set forth in Section 7(b)(3).
New Airport Design Guidelines” shall mean the “New LaGuardia Airport Plan and Design Guidelines,” as amended, revised, supplemented or otherwise modified from time to time, and included as a Reference Document.
New Terminal Facilities” shall have the meaning set forth in Section 5(b)(2)(i).
New Agreement” shall have the meaning set forth in Section 89(g)(i).
New Storm Water Drainage Trunk Line” shall have the meaning set forth in Section 5(b)(2)(i).
New Substation” shall have the meaning set forth in Section 5(b)(2)(ii)(j).
New York City” shall mean the City of New York, in the State of New York.
NFA” have the meaning set forth in Section 76(j)(3).
Non-Discriminatory Manner” means, with respect to requirements of the Port Authority that are imposed pursuant to this Agreement, that the Port Authority imposes the same requirements on all subtenants at the Airport that are subject to the same factual circumstances and legal requirements, including the relevant time period during which such requirements are implemented. The Port Authority may implement changes in requirements that affect current or future actions, construction or other work performed by subtenants and establish requirements or restrictions that do not apply to past actions, construction or other work performed by subtenants, and remain in compliance with requirements to implement such changes in a Non-Discriminatory Manner.
Nonconforming Work” shall have the meaning set forth in Section 5(i)(2).
Notice” shall have the meaning set forth in Section 59 (Notices).
NTF Milestone Payment” shall have the meaning set forth in Section 6(d).
NYSDEC” shall have the meaning set forth in Section 73(b).
O&M Access Areas means areas over which the Port Authority grants Lessee rights of way, access and use rights, including easements, whether temporary, or permanent for the Term, authorized in writing by the Port Authority for the purpose of performing Operations and Maintenance Work outside of the Premises (and not including Temporary Rights of Access for D&C Work), including for the maintenance, replacement, repair and upkeep of Operational Systems. All such rights of way, access and use rights to the O&M Access Areas are non-exclusive in nature and use of any property subject to such rights is subject to any prior rights, interests, or charge or encumbrance of any kind.

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OFAC shall have the meaning set forth in Section 79 (OFAC Compliance).
Off-Premises Facilities” shall have the meaning set forth in Section 5(b)(2)(ii).
Operating Authorization or Slot shall refer to an “operating authorization” for one landing or takeoff at the Airport during a specific time period, subject to a scheduling order issued by the FAA at the Airport, as defined in the Final Order, Operating Limitations at New York LaGuardia Airport, Docket No. FAA 2006-25755 issued December 13, 2006, published in the Federal Register at 71 Fed. Reg. 77,854 (Dec. 27, 2006), as such order has been and may be amended or re-codified from time to time, and in any subsequent similar scheduling order issued by the FAA or any other federal agency with appropriate jurisdiction, as such order may be amended or re-codified from time to time.
Operational Systems” means the operating systems, components, information technology hardware and software, and equipment that are necessary to the Lessee’s performance of the Operations and Maintenance Work in the ordinary course at any time during the Term, including, without limitation, elevators, escalators, fire detection and suppression systems, HVAC and security systems and the computer hardware and software relating thereto.
Operations and Maintenance Work” means all work related to the operation, testing, management, administration and maintenance of (i) the Premises; provided, that, the Lessee shall not be responsible for the operation, testing, management, administration and maintenance of (x) the access roadway identified as “Elevated Roadway Excluded from Delta O&M Responsibility” and shown in red vertical hatching on Exhibit 6 (Delta Leasehold) (page 2 of 2) or any paving, lighting, signage, storm drains, culverts, cables, supporting structures, cleaning and snow and ice removal in connection therewith, or (y) other than as specified in the following clause (iii), any Utilities upon the Premises that either (1) are not specifically identified as the Lessee’s responsibility on Exhibit 12 (Utility O&M Responsibilities) or (2) are specifically identified on such Exhibit 12 (Utility O&M Responsibilities) as the responsibility of the Port Authority or other non-Lessee party, (ii) the New Substation and related systems to the extent described as the Lessee’s responsibility on Exhibit 2 (O&M Responsibilities with respect to Certain Off-Premises Facilities) and (iii) (x) subject to clause (y) above, all Utilities located upon the Premises that exclusively serve the Premises and (y) certain Utilities upon the Premises and off the Premises as required by Section 16(c) and identified as the Lessee’s responsibility on Exhibit 12 (Utility O&M Responsibilities); including, in each of clauses (i), (ii) and (iii), any repair, modification, reconstruction, rehabilitation, restoration, renewal and replacement of each of the foregoing, all as required under this Agreement, but excluding the D&C Work. For the avoidance of doubt, except as expressly included in this definition of “Operations and Maintenance Work,” the Lessee shall not be responsible for performing Operations and Maintenance Work with respect to any Off-Premises Facilities whether or not any portion of such Off-Premises Facilities are located within the lease lines of the Premises. For further clarity, the Port Authority shall be responsible for performing, or causing to be performed, the operation, testing, management, administration and maintenance of the portions of the pedestrian bridge connecting the New Terminal Facilities to the East Garage described in Section 5(b)(2)(ii)(a), the unifying architectural connecting structure described in Section 5(b)(2)(ii)(c) and the New Substation and related systems, except to the extent described as the Lessee’s responsibility on

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Exhibit 2 (O&M Responsibilities with respect to Certain Off-Premises Facilities), in each case shown in green cross-hatching on Exhibit 2 (O&M Responsibilities with respect to Certain Off-Premises Facilities).
Operations and Maintenance Requirements” shall mean (i) the “Operational Requirements,” set forth as Part C of the Requirements and Provisions for Work and (ii) the “Maintenance Requirements,” set forth as Part D of the Requirements and Provisions for Work; in each case, as may be amended, revised, supplemented or otherwise modified from time to time.
Other Event of Default” shall have the meaning set forth in Section 89(c).
Outside Completion Date” shall have the meaning set forth in Section 5(v)(1)(i).
PA Wireless Provider” shall have the meaning set forth in Section 81(b).
Partial Approval” shall have the meaning set forth in Section 5(u)(1).
Partial Approval Work” shall have the meaning set forth in Section 5(u)(1).
Partial Approval Work Plans” shall have the meaning set forth in Section 5(u)(1).
Partial Occupancy Portion” shall have the meaning set forth in Section 5(v)(2)(i).
Party” and “Parties” shall have the respective meanings set forth in the introductory paragraph to this Agreement.
Passenger Facility Charges” or “PFC” shall mean passenger facility charges covered by 14 C.F.R. Part 158, imposed by a public agency on passengers enplaned at a commercial service airport it controls.
Payment and Milestone Schedule” shall have the meaning set forth in Section 6(a)(1).
Payment Event of Default” shall have the meaning set forth in Section 89(c).
Perimeter Dig Area” shall mean the boundary or boundaries around the perimeter of the footprint, as actually excavated, of the applicable D&C Work, together with additional excavated areas adjacent thereto for which excavation is performed pursuant to the Comprehensive Plan for purposes of completing the applicable D&C Work.
Permanent Rights of Access” shall mean those certain easements, rights of way and other agreements for access to those portions of the Airport shown on Exhibit 3 (Permanent Rights of Access) for ingress and egress on foot and in vehicles, utilities and other purposes during the Term and as set forth in this Agreement or otherwise granted by the Port Authority to the Lessee.
Permitted Liens” shall mean (i) the liens created pursuant to the Leasehold Mortgage or any other Security Document, or pursuant to any Existing Leasehold Mortgage, (ii) liens pursuant to materialmen’s, mechanics’, workers’, repairmen’s, employees’ or other like liens on the Lessee’s

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interest in this Agreement arising in the ordinary course of business in connection with the Work, either for amounts not yet past due or for amounts being contested in good faith and by appropriate proceedings, and (iii) liens imposed in respect of unpaid tax claimed against the Lessee that is being contested in good faith and by appropriate proceedings, in each case of (ii) and (iii), so long as (1) such proceedings shall not involve any substantial danger of the forfeiture or loss of the Premises and shall not interfere in any material respect with the ownership, occupation, use or disposition of the Premises, and (2) a bond or other security consistent with Applicable Law acceptable to the Port Authority has been posted or provided in such manner and amount as to assure the Port Authority such proceedings shall not involve any substantial danger of the sale, forfeiture or loss of the Premises upon adverse resolution of such proceedings.
Person” shall mean not only a natural person, corporation or other legal entity, but also two or more natural persons, corporations or other legal entities acting jointly as a firm, partnership, unincorporated association, consortium, joint adventurers or otherwise.
PIDS” shall have the meaning set forth in Section 5(c)(1).
Pipeline” or “Pipelines” shall have the meaning set forth in Section 75(i).
Port Authority” shall have the meaning set forth the preamble to this Agreement.
Port Authority Amount” shall have the meaning set forth in Section 45(b)(5).
Port Authority Changes” shall have the meaning set forth in Section 5(cc)(1)(i).
Port Authority Indemnified Party” or “Port Authority Indemnified Parties” shall mean The City of New York, EDC and the Port Authority, each Commissioner of the Port Authority and each officer, director, employee, agent and authorized representative of The City of New York, EDC and the Port Authority.
Port Authority Insurance Change” shall have the meaning set forth in Section 18(f)(10).
Port Authority Reserved Uses” shall have the meaning set forth in Section 81 (Port Authority Reserved Uses).
Port Authority Sign Standards” shall mean the Port Authority of New York and New Jersey Signing and Wayfinding Airport Standards Manual, as amended, revised, supplemented or otherwise modified from time to time.
Port Authority Support Costs” shall mean direct and indirect costs of the Port Authority relating to the inspection, engineering, management, general administration (including salaries, benefits, fees and disbursement for goods and services and other overhead expenses) and oversight of the D&C Work by the Port Authority, which the parties agree shall be equal to Forty Million Dollars and Zero Cents ($40,000,000.00), which will be offset by the Port Authority from the D&C Milestone Payments payable to the Lessee, all in accordance with the Payment and Milestone Schedule.

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Port Authority Termination Notice” shall have the meaning set forth in Section 46(a).
Port of New York District” or “Port District” shall have the meaning set forth in Article II of the Compact.
Predecessor Concession” shall have the meaning set forth in Exhibit 4 (Mandatory Sublease Provisions), Part C.
Premises” shall mean (i) the Existing Premises and (ii) at such time the letting thereof has become effective pursuant to Section 2(b), the Additional Premises; provided that the Premises shall not include any Section 41 Terminated Gates or the New Substation and, at such time the letting thereof has been terminated pursuant to Section 2(c), the Surrendered Premises.
Pro-Rata Shareshall have the meaning set forth in Section 41(b)(5).
Prohibited Party” means any Person who is:
(1)    debarred, suspended, proposed for debarment with a final determination still pending, declared ineligible or voluntarily excluded (as such terms are defined in any of the Debarment Regulations) from participating in procurement or nonprocurement transactions with the Federal government or any department, agency or instrumentality thereof pursuant to any of the Debarment Regulations;
(2)    indicted, convicted or had a civil or administrative judgment rendered against such Person for any of the offenses listed in any of the Debarment Regulations and an event has occurred or a condition exists that is likely to result in the debarment or suspension of such Person from contracting with the Federal government or any department, agency or instrumentality thereof;
(3)    listed on the “Lists of Parties Excluded from Federal Procurement and Nonprocurement Programs” issued by the U.S. General Services Administration;
(4)    located within, or doing business or operating from, a country or other territory subject to a general embargo administered by OFAC;
(5)    designated on the OFAC list of “Specially Designated Nationals”;
(6)    otherwise targeted under economic or financial sanctions administered by the United Nations, OFAC or any other Federal economic sanctions authority or any divestment or sanctions program of the State of New York or New Jersey;
(7)    a banking institution chartered or licensed in a jurisdiction against which the United States Secretary of the Treasury has imposed special measures under Section 311 of the USA PATRIOT Act;

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(8)    located within or is operating from a jurisdiction that has been designated as non-cooperative with international anti-money laundering principles by the Financial Action Task Force on Money Laundering;
(9)    a financial institution against which the United States Secretary of the Treasury has imposed special measures under Section 311 of the USA PATRIOT Act;
(10)    a “senior foreign political figure” or a prohibited “foreign shell bank” within the meaning of 31 C.F.R. § 103.175; or
(11)    an entity with whom the Port Authority is engaged in litigation relating to performance of contract or business practices (unless the Port Authority has first waived (in Port Authority’s sole discretion) by written notice to the transferring equity holder, with a copy to the Lessee, the prohibition on a transfer to such Person during the continuance of the relevant litigation).
Project Documents” shall mean (i) this Agreement and exhibits hereto, (ii) the Reference Documents, (iii) the Construction Coordination Agreement, and (iv) the Site Access and Indemnification Agreement, to be entered into by and among LGP, the Lessee and the Port Authority, and any amendments to or replacements of any of the foregoing undertaken in accordance with the terms hereof or thereof, and any other document that the Port Authority and the Lessee may deem jointly to be a “Project Document” from time to time after the date hereof, together with any amendments of or supplements thereto.
Public Aircraft Facilities” shall mean the following facilities, as they may from time to time be provided and maintained by the Port Authority at the Airport for public and common use, including use by Civil Aircraft Operators, for the following purposes and which (except by reason of any Force Majeure event) are usable for such purposes regardless of whether or not they are actually used or usable in whole or in part by the Lessee:
(a)Public Aircraft Parking and Storage Space – by which is meant space at the Airport for the purpose of parking and storing aircraft, for the purpose of servicing aircraft with fuel and lubricants and other supplies for use thereon, and for the purpose of making minor or emergency repairs to aircraft; and
(b)Public Ramp and Apron Area – by which is meant area adjacent to the Public Landing Area designated and made available from time to time by the Port Authority for common use for the loading and unloading of passengers or cargo to or from aircraft using the Public Landing Area; and
(c)Runways (including approaches thereto) – by which is meant the portion of the Airport used for the purpose of the landing and taking-off of aircraft; and
(d)Taxiways – by which is meant the portion of the Airport used for the purpose of the ground movement of aircraft to, from and between the runways, the Public Ramp and Apron Area, the aircraft parking and storage space and other portions of the Airport (not including, however,

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any taxi lanes, the exclusive use of which is granted to the Lessee or any other person by lease, permit or otherwise); and
(e)Facilities Incidental to the Runways, Public Ramp and Apron Area, Public Aircraft Parking and Storage Space and Taxiways - by which is meant facilities for the purpose of controlling or assisting arrivals, departures and operation of Aircraft using the Airport, such as control towers, signals, beacons, wind indicators, flood lights, landing lights, boundary lights, obstruction lights, navigation lights, radio and electronic aids, or other aids to operation, navigation or ground control of Aircraft, whether or not of a type hereinbefore enumerated, and even though located at sites away from the other Public Aircraft Facilities or outside the Airport.
Public Aircraft Parking and Storage Space” shall have the meaning set forth in the definition of “Public Aircraft Facilities.”
Public Ramp and Apron Area” shall have the meaning set forth in the definition of “Public Aircraft Facilities.”
Public Landing Area” shall mean the area of land at the Airport including runways, taxiways and the areas between and adjacent to runways and taxiways, designated and made available from time to time by the Port Authority for the landing and taking-off of aircraft.
Qualified Affiliate” shall have the meaning set forth in Section 33(a).
Qualified Terminal Operator shall mean a Person who is not a Prohibited Party and who has been determined by the Port Authority, acting at its sole discretion, to be a qualified terminal operator. In determining whether to issue such determination, the Port Authority shall only consider whether such Person has: (x) sufficient experience or personnel, or access to sufficient experience or personnel of an Affiliate under common Control with it, with sufficient experience in operating and maintaining airline passenger terminals on a basis consistent with the standards and requirements set forth in this Agreement, (y) a reputation for honesty, integrity and reliability and (z) the financial capability to operate and maintain the Premises on a basis consistent with the standards set forth in this Agreement, with such Person being deemed to have such requisite financial capability if such Person has or is projected to have sufficient capital (or access to capital), whether by virtue of cash on hand, sponsor support commitments, projected revenues, any combination thereof, or otherwise, to meet all of such Person’s operations and maintenance expenses and, with respect to the Lessee, obligations to make rental and other payments to the Port Authority in respect of the Premises for the one (1) year period following the date on which such Person would become a Qualified Terminal Operator.
Qualifying D&C Change” shall have the meaning set forth in Section 5(cc)(1)(vii).
RCRA shall have the meaning set forth in Section 18(a)(1).
Recognized Mortgagee” shall have the meaning set forth in Section 89(b)(i).

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Reference Documents” shall mean (i) the Requirements and Provisions for Work, (ii) the Lessee’s Basis of Design, (iii) the Comprehensive Plan, (iv) the New Airport Design Guidelines and (v) any approved Construction Applications.
Reference Month” shall have the meaning set forth in Section 7(a).
Refinancing” shall have the meaning set forth in Section 90.
Refinancing Documents” shall mean such documents executed after the date hereof in connection with a Refinancing permitted to be incurred in accordance with Section 90, that are designated by the Lessee as “Refinancing Documents”, together with any amendment of or supplement thereto designated by the Lessee and, to the extent of any amendment or supplement that requires the consent of at least a majority in interest of the Lenders, or that could reasonably be expected to have an adverse effect on the Port Authority or its rights or obligations under this Agreement, approved and consented to by the Port Authority.
Regional Affiliate shall mean a regional Scheduled Aircraft Operator that operates under the Lessee’s or an Airline Sublessee’s airline identification code at the Airport.
“Release” shall mean any pumping, pouring, venting, emitting, emptying, leakage, deposit, disposal, spill, discharge or other releasing, including a “Discharge” as defined in Section 75(d).
Relocation Work” shall have the meaning set forth in Section 5(s)(1).
Remediate” or “Remediation” shall mean the investigation (including any feasibility studies or reports), cleanup, removal, abatement, transportation, disposal, treatment (including in-situ treatment), management, stabilization, neutralization, collection, or containment of a Hazardous Substance or contamination implemented to comply with Environmental Requirements or more stringent standards established by this Agreement including, without limitation, any closure, restoration or monitoring, operations and maintenance activities that are required by any Governmental Authority after the completion of such investigation, cleanup, removal, transportation, disposal, treatment, neutralization, collection, or containment activities as well as the performance of any and all obligations imposed by any Governmental Agency in connection with such investigation, cleanup, removal, transportation, disposal, treatment (including in situ treatment), management, stabilization, neutralization, collection, or containment (including any such obligation that is imposed pursuant to an environmental permit or a consent order).
Rentable Gates” shall have the meaning set forth in Section 7(b)(3).
Rentable Gate Replacement Date” shall have the meaning set forth in Section 7(b)(3).
Rental Income” shall have the meaning set forth in Section 18(d)(1).
Rental Tax Treatment” shall have the meaning set forth in Section 7(e).
Replacement Gate” shall have the meaning set forth in Section 7(b)(3).

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Report Date” shall have the meaning set forth in Section 74(e).
Requesting Airline” shall mean any Scheduled Aircraft Operator that possesses, has an unconditional right to possess, or a contractual option under, subject to no other condition than acquisition of a right to use a Gate at the Airport, an Operating Authorization, or the right to use an Operating Authorization, (A) which “Requesting Airline” has made a request of the Port Authority to make Accommodations available to it at the Premises, or (B) which the Port Authority has determined must be accommodated at the Premises as provided for in Section 41 (Requesting Airlines).
Requirements and Provisions for Work” shall mean a Reference Document consisting of (i) the General Provisions, (ii) the Design and Construction Requirements and (iii) the Operations and Maintenance Requirements.
Reserved Uses” shall have the meaning set forth in Section 81 (Port Authority Reserved Uses).
Resident Engineer” shall mean the Port Authority’s Resident Engineer Office for the Airport.
Rights of Access” shall mean Temporary Rights of Access and Permanent Rights of Access.
Rules and Regulations” shall mean applicable rules, regulations, policies, manuals, publications, standards, practices and guidelines issued or published by the Port Authority (including any of the foregoing resulting from any directive or requirement by the FAA, the TSA or any other Governmental Authority); in each case, as may be amended, revised, supplemented or otherwise modified from time to time pursuant to a Rules and Regulations Change.
Rules and Regulations Change” shall mean (i) any new Rule and Regulation, (ii) any change to an existing Rule and Regulation (including by an amendment or supplement thereto) or (iii) a repeal of any existing Rule and Regulation; in each case that takes effect after the Effective Date.
Runways” shall have the meaning set forth in the definition of “Public Aircraft Facilities.”
Scheduled Aircraft Operator” shall mean a Civil Aircraft Operator engaged in transportation by aircraft operated wholly or in part on regular flights to and from the Airport in accordance with published schedules; but so long as the Federal Aviation Act of 1958, or any similar federal statute providing for the issuance of Foreign Air Carrier Permits or Certificates of Public Convenience and Necessity or substantially similar permits or certificates, is in effect, no Person shall be deemed to be a Scheduled Aircraft Operator within the meaning of this Agreement unless it also holds such a permit or certificate.
Scheduled Completion Date” shall mean April 17, 2026 (as such date may be adjusted only as expressly permitted under this Agreement).

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Second Subordinated Mortgage” means that certain Wraparound Second Subordinated Leasehold Mortgage and Assignment of Leases and Rents by and from USAir, Inc., a Delaware corporation to Continental Airlines, Inc., a Delaware corporation, dated as of January 17, 1992 and recorded on March 4, 1992 in Reel 3280 Page 1073 in the official real property records of Queens County, New York.
Section 41 Gate Termination” shall have the meaning set forth in Section 41(b)(7).
Section 41 Gate Termination Date” shall have the meaning set forth in Section 41(b)(7).
Section 41 Gate Termination Notice” shall have the meaning set forth in Section 41(b)(7).
Section 41 Notice Period” shall have the meaning set forth in Section 41(b)(3)(i).
Section 41 Notice to Provide Accommodations” shall have the meaning set forth in Section 41(b)(3)(i).
Section 41 Terminated Gate” shall have the meaning set forth in Section 41(b)(7).
Security Agreement” means that certain security agreement made effective as of December 9, 2010 and identified by agreement number AX-852, as amended, modified, supplemented, restated or replaced from time to time.
Security Documents” means such documents that are designated by the Lessee as “Security Documents” in connection with the incurrence of any Lessee Debt by the Lessee in accordance with this Agreement, the repayment obligations of which are secured by one or more Leasehold Mortgages, and any subsequent amendment of or supplement to any such documents that is designated by the Lessee and, to the extent of any amendment or supplement that requires the consent of at least a majority in interest of the Lenders, or that could reasonably be expected to have an adverse effect on the Port Authority or its rights or obligations under this Agreement, approved and consented to by the Port Authority.
Segment” shall have the same meaning as set forth in Section 7(b)(3).
Soft Costs” shall have the meaning set forth in Section 18(d)(1).
Statement of Estimated Liabilities” means a statement by the Port Authority setting forth (i) all amounts that (A) are estimated to be due and payable by the Lessee to the Port Authority under this Agreement as of the date of such statement or (B) to the best of the Port Authority’s knowledge, are expected to become due and payable by the Lessee under this Agreement on or prior to the date that is thirty (30) days after the date of such statement, (ii) to the extent not included in clause (i) above, all other obligations of the Lessee under this Agreement known to the Port Authority that should have been, but have not been, performed as of the date of such statement and (iii) to the extent not included in clauses (i) or (ii) above, all costs and expenses (including legal fees), taxes, fees, charges and disbursements estimated to be paid or incurred by the Port Authority in connection with any applicable Event of Default, the termination of this Agreement, the recovery of possession

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from the Lessee, and the preparation, execution and delivery of the New Agreement and related agreements, in each case, to the extent applicable.
Street Prices” shall have the meaning set forth in Section 34(h).
Sublease” or “sublease” shall mean any sublease (including a sub-sublease or any further level of subletting) and any occupancy, license, franchise or concession agreement applicable to the Premises or any portion thereof.
Sublease Fee” shall have the meaning set forth in Section 32(j)(i)(B).
Sublease Payments shall have the meaning set forth in Section 32(j)(i)(A).
Sublessee” shall have the meaning set forth in Section 32(d).
Subtenant” or “subtenant” shall mean any subtenant (including a sub-subtenant or any further level of subtenant), operator, licensee, franchisee, concessionaire or other occupant, pursuant to a Sublease.
Successor Recognized Mortgagee means a successor to a Recognized Mortgagee selected and appointed in accordance with the Leasehold Mortgage; provided, that such successor is an Institutional Lender (or agent or trustee acting on behalf thereof) and not a Prohibited Party.
Surface Carrier” shall have the meaning set forth in Section 25(a).
Surrendered Premises” shall have the meaning in Section 2(c).
Surrendered Premises Effective Date” shall have the meaning set forth in Section 2(c).
Taking” shall have the meaning set forth in Section 45 (Condemnation).
Tank” or “Tanks” shall have the meaning set forth in Section 75(a).
Target Entity” shall have the meaning set forth in Section 62(a).
Tax-Exempt Bonds” shall mean any obligations the interest on which is excludable from gross income for federal income tax purposes under section 103(a) of the Code, except for any period that any such obligations shall be held by a “substantial user” or “related person” of facilities provided from the proceeds of such obligations, within the meaning of section 147(a) of the Code, to the extent that the proceeds of such obligations are allocated to facilities leased by the Lessee under this Agreement. For the avoidance of doubt, the term “Tax-Exempt Bonds” may include any such bonds issued by the Port Authority, to the extent the proceeds of such bonds have been used (i) to finance construction of improvements in the Existing Premises, (ii) as a source of funds for the NTF Milestone Payments applied to the Eligible Project Costs with respect to the New Terminal Facilities or (iii) as a source of funds for any investment described in Section 6(a)(4) on components of the New Terminal Facilities.

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Taxilane M” shall have the meaning set forth in Section 2(b)(4).
Taxiways” shall have the meaning set forth in the definition of “Public Aircraft Facilities”.
TCAP Manual” shall mean The Port Authority of New York and New Jersey’s Tenant Construction and Alteration Process Manual (March 2017), and any subsequent edition or replacement thereof.
Temporary Rights of Access” shall have the meaning set forth in Section 5(b)(3).
Tenant Alteration Application” shall mean a tenant alteration application in the form prescribed by the Port Authority from time to time pursuant to the TCAP Manual.
Term” shall have the meaning set forth in Section 3 (Term).
Terminal B Project” shall mean the redevelopment of the Central Terminal Building located at the Airport pursuant to the LGP Lease.
Trailer Site Permit” shall have the meaning set forth in the recitals hereto.
Trailer Site Premises” shall have the meaning set forth in the recitals hereto.
Travel Costs” shall have the meaning set forth in Section 96(e)(2).
True-Up Balance” shall have the meaning set forth in Section 7(b)(4).
True-Up Balance Formula” shall have the meaning set forth in Section 7(b)(4).
True-Up Payment” shall have the meaning set forth in Section 7(b)(4).
True-Up Payment Cap Formula” shall have the meaning set forth in Section 7(b)(4).
True-Up Period” shall have the meaning set forth in Section 7(b)(4).
True-Up Reconciliation” shall have the meaning set forth in Section 7(b)(4).
TSA” means the Transportation Security Administration created under the Aviation and Transportation Security Act, 49 U.S.C. § 40101 et seq., or any successor agency thereto.
Unamortized Capital Investment” shall mean, as of any date of determination,
(a)    for purposes of Section 41 (Requesting Airlines) of this Agreement, the sum of:
(i)    the amount of Lessee Debt incurred by the Lessee in accordance with this Agreement to pay or reimburse D&C Work Costs outstanding as of the date of payment pursuant to Section 41(b)(8)(i); and

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(ii)    the aggregate amount of all equity used by the Lessee for the payment or reimbursement of D&C Work Costs;
provided, that if the Lessee has incurred Lessee Debt, the Unamortized Capital Investment or a portion thereof payable by the Port Authority pursuant to clause (a) above shall be further reduced by an amount equal to the pro-rated portion of any cash reserves then on deposit in the Lessee’s collateral accounts;
(b)    for all other uses in this Agreement, the sum of:
(i) the lesser of (1) the amount of Lessee Debt incurred by the Lessee in accordance with this Agreement to pay or reimburse the D&C Work Costs and outstanding as of the applicable date of payment hereunder, and (2) the amount of the Lessee Debt incurred by the Lessee in accordance with this Agreement to pay or reimburse the D&C Work Costs which would be outstanding as of such date assuming a straight-line amortization of the aggregate amount of Lessee Debt in accordance with the initial Financing Documents (or, in the case of any permitted Refinancing, the Refinancing Documents for such permitted Refinancing); and
(ii) the aggregate amount of all equity used by the Lessee for the payment or reimbursement of D&C Work Costs,
provided, that if the Lessee has incurred Lessee Debt in connection with the D&C Work Costs, the Unamortized Capital Investment or a portion thereof payable by the Port Authority pursuant to this clause (b) shall be further reduced by an amount equal to the pro-rated portion of any cash reserves then on deposit in the Lessee’s collateral accounts.
Unknown Archeological Remains” shall mean any Archaeological Remains that, as of the Effective Date, (a) are not known to the Lessee or were not notified to the Lessee by the Port Authority and (b) could not reasonably have been identified by an appropriately qualified and experienced contractor or engineer exercising due care and skill and Best Management Practice in the same or equivalent circumstances through review and analysis of Available Documents or publicly available information.
Unknown Conditions” shall mean (i) Unknown Archaeological Remains, (ii) Unknown Endangered Species and/or (iii) Unknown Facilities.
Unknown Endangered Species” shall mean any Endangered Species discovered on the Premises: (i) the continual or habitual presence of which was not identified or described in Available Documents or publicly available information as of the Effective Date or (ii) which could not reasonably be expected to be found continually or habitually on the Premises based on a review and analysis of the Available Documents or publicly available information as of the Effective Date, and (iii) in either case, which, as of the Effective Date, are not known to the Lessee or were not notified to the Lessee by the Port Authority.
Unknown Facilities” shall mean a Utility (including wiring, piping, batteries, mobile equipment and other supporting conduits or cables) or Tank present on the Premises or the areas

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subject to the Rights of Access and O&M Access Areas which, as of the Effective Date, (i) is not known to the Lessee or was not notified to the Lessee by the Port Authority, (ii) is not identified in, or is not apparent upon inspection of, or cannot be reasonably inferred from, the Available Documents or publicly available information, and (iii) could not reasonably have been identified by an appropriately qualified and experienced contractor or engineer exercising due care and skill and Best Management Practice in the same or equivalent circumstances through review and analysis of Available Documents or publicly available information as of the Effective Date; provided, that any Utility for which the actual centerline location is located at, or less than twenty (20) feet distant from, the horizontal centerline location indicated therefor (without regard to vertical location) in the Available Documents, shall in no event constitute an Unknown Facility.
Utility” shall mean a privately, publicly, or cooperatively owned line, facility, or system (including conduits and concrete structures in which utility lines are contained) for transmitting or distributing communications, power, electricity, light, heat, gas, oil, crude products, water, steam, waste, storm water not connected with the highway drainage, or other similar commodities, including wireless telecommunications, television transmission signals and publicly owned fire and police signal systems, which directly or indirectly serve the public. The necessary appurtenances to each Utility facility shall be considered part of such Utility.
Utility Restoration” shall have the meaning set forth in Section 30(b)(1).
Utility Servicing” shall have the meaning set forth in Section 30(b)(1).
Value Engineering Lessee Changes” shall have the meaning set forth in Section 5(cc)(2)(iii).
Work” shall mean the D&C Work and the Operations and Maintenance Work. For the avoidance of doubt, all work and services required to be furnished, performed and provided by the Lessee under the Project Documents shall constitute either D&C Work or Operations and Maintenance Work.
Section 2.    Letting.
(a)Existing Premises. Pursuant to the Existing Agreements, the Port Authority (i) has let to the Lessee and the Lessee has hired and taken from the Port Authority at the Airport in the County of Queens, City and State of New York, upon all the terms, conditions, provisions and agreements of the Existing Agreements, the Existing Lease Premises, and the Existing Permit Premises (the corresponding lease lines identified as “Former Delta Lease Line” shown on Exhibit 6 (Delta Leasehold)), and further, the Port Authority shall continue to let to the Lessee and the Lessee shall continue to hire and take from the Port Authority the Existing Lease Premises and the Existing Permit Premises for the Term of this Agreement in accordance with the terms and conditions hereof, together with all buildings, structures, fixtures, improvements and other property of the Port Authority located therein, thereon or thereunder, and all structures, improvements, additions, buildings, installations and facilities located, constructed or installed, or which may be located, constructed or installed therein, thereon or thereunder, and the equipment permanently affixed or permanently located therein, such as electrical, plumbing, sprinkler, fire protection and fire alarm,

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heating, steam, sewage, drainage, refrigerating, communications, gas and other systems, and their pipes, wires, mains, lines, tubes, conduits, equipment and fixtures, and all paving, drains, culverts, ditches and catch-basins constructed therein, thereon or thereunder as of the Effective Date (the “Existing Premises”) and (ii) grants to the Lessee and the Lessee hereby hires and takes from the Port Authority at the Airport the Permanent Rights of Access. The Lessee hereby agrees to accept the Existing Premises “as is” in the condition as of the Effective Date and, to assume all responsibility for any and all risks, costs and expenses of any kind whatsoever caused by, arising out of or in connection with the condition of the Existing Premises, whether any aspect of such condition existed prior to, on or after the Effective Date and to indemnify and hold harmless the Port Authority Indemnified Parties for all such risks, responsibilities, costs and expenses (excepting, with respect to the Lessee’s obligations to indemnify the Port Authority and its officers, employees, agents and authorized representatives, only such risks, responsibilities, costs and expenses arising solely from the negligence or willful misconduct of the Port Authority or any officer, employee, agent or authorized representative of the Port Authority), including, without limitation, attorney’s fees (including fees of in-house and outside counsel to the Port Authority) and disbursements to the extent required under Section 19 (Indemnity). Pursuant to this Section 2(a), Lessee assumes responsibility for all risks, costs and expenses of any kind whatsoever caused by, arising out of or in connection with Environmental Requirements applicable to the Existing Premises, including in connection with the Lessee’s use, occupancy and activities under this Agreement, provided however, that nothing in this Section 2(a) is intended to expand or limit the Lessee’s obligations relating to Hazardous Substances in Section 73(b), Section 76(d), or the Lessee’s obligations in Sections 75(e) or 76(i), or the Lessee’s obligations as set forth in Section 75 (Storage Tanks and Pipelines), 76 (Environmental Compliance and Related Matters) and 77 (End of Term Obligations).
(b)Additional Premises. Effective at 12:01 am New York City time on one or more dates to be agreed between the Port Authority and the Lessee (each, an “Additional Premises Effective Date”) after the implementation by the Lessee of the Comprehensive Parking and Traffic Plan delivered as a condition precedent to the Effective Date pursuant to Section 4(j), in addition to the Existing Premises heretofore let to the Lessee under this Agreement, the letting of which shall continue in full force and effect, the Port Authority shall let to Lessee, and the Lessee shall hire and take from the Port Authority at the Airport in the County of Queens, City and State of New York, upon all the terms, conditions, provisions and agreements of this Agreement, the following (in whole or in one or more portions thereof, and concurrently or at different times, as agreed between the Parties):
(1)    public parking lot P4 as the Parties have agreed is required to support the development of the Lessee’s new headhouse building and roadway network located closer to the Grand Central Parkway shown in shading on Exhibit 7 (Additional Premises);
(2)    public parking lot P5 to support airside operation improvements, including aircraft parking hardstands, maintaining the restricted vehicles service roads (provided that such restricted vehicles service roads, when constructed by the Lessee, shall be deemed the Off-Premises Facilities), associated taxi lanes, deicing pads and the terminal gate reconfiguration shown in shading on Exhibit 7 (Additional Premises);

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(3)    a taxihold area between the Existing Terminal Facilities as the Parties have agreed, shown in shading on Exhibit 7 (Additional Premises); and
(4)    an area identified as taxiway M (“Taxilane M”), as the Parties have agreed is required to support airside operation improvements, including aircraft parking hardstands, maintaining the restricted vehicles service roads (provided that such restricted vehicles service roads, when constructed by the Lessee, shall be deemed the Off-Premises Facilities), associated taxi lanes, deicing pads and the terminal gate reconfiguration shown in shading on Exhibit 7 (Additional Premises);
(5)    the bus turnaround area located between the public parking lot P5 and Existing Terminal D shown in shading on Exhibit 7 (Additional Premises);
(6)    Air Operations Area (AOA) between Existing Terminal D and the Existing Terminal D hardstands shown in shading on Exhibit 7 (Additional Premises); and
(7)    the approach roadways to the New Terminal Facilities headhouse and the roadways exiting the New Terminal Facilities, as the Parties have agreed, shown in shading on Exhibit 7 (Additional Premises).
and, with respect to each of sub-clauses (1) through (7) above, together with all buildings, structures, fixtures, improvements and other property of the Port Authority located therein, thereon or thereunder, and all structures, improvements, additions, buildings, installations and facilities located, constructed or installed, or which may be located, constructed or installed therein, thereon or thereunder, and the equipment permanently affixed or permanently located therein, such as electrical, plumbing, sprinkler, fire protection and fire alarm, heating, steam, sewage, drainage, refrigerating, communications, gas and other systems, and their pipes, wires, mains, lines, tubes, conduits, equipment and fixtures, and all paving, drains, culverts, ditches and catch-basins constructed therein, thereon or thereunder as of the applicable Additional Premises Effective Date (each, an “Additional Premises”), all of the foregoing which after the applicable Additional Premises Effective Date shall become a part of the Premises. The Lessee hereby agrees to accept each Additional Premises “as is” in the condition as of the Additional Premises Effective Date and, to assume all responsibility for any and all risks, costs and expenses of any kind whatsoever caused by, arising out of or in connection with the condition of the Additional Premises, whether any aspect of such condition existed prior to, on or after the applicable Additional Premises Effective Date and to indemnify and hold harmless the Port Authority Indemnified Parties for all such risks, responsibilities, costs and expenses (excepting, with respect to the Lessee’s obligations to indemnify the Port Authority and its officers, employees, agents and authorized representatives, only such risks, responsibilities, costs and expenses arising solely from the negligence or willful misconduct of the Port Authority or any officer, employee, agent or authorized representative of the Port Authority), including, without limitation, attorney’s fees (including fees of in-house and outside counsel to the Port Authority) and disbursements to the extent required under Section 19 (Indemnity). Pursuant to this Section 2(b), Lessee assumes responsibility for all risks, costs and expenses of any kind whatsoever caused by, arising out of or in connection with Environmental Requirements applicable to the Additional Premises, including in connection with the Lessee’s use, occupancy and activities under this Agreement, provided however, that nothing in this Section 2(b) is intended

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to expand or limit the Lessee’s obligations relating to Hazardous Substances in Section 73(b), Section 76(d), or Lessee’s obligations in Sections 75(e) or 76(i), or the Lessee’s obligations as set forth in Section 75 (Storage Tanks and Pipelines), 76 (Environmental Compliance and Related Matters) and 77 (End of Term Obligations). For the avoidance of doubt, any Temporary Rights of Access that constitute Additional Premises shall no longer constitute Temporary Rights of Access as of the applicable Additional Premises Effective Date.
The Parties shall from time to time agree to modifications to the drawings identified as “Final Delta Lease Line” in Exhibit 6 (Delta Leasehold) as necessary to reflect the final lease lines corresponding to any Additional Premises let to the Lessee in accordance with this Section 2(b). Drawings that have been modified in accordance with the foregoing shall be incorporated into this Agreement pursuant to an agreement in writing by the Parties.
(c)Surrendered Premises. Effective at 12:01 am New York City time on one or more dates to be agreed between the Port Authority and the Lessee (each, a “Surrendered Premises Effective Date”), the Lessee (i) shall terminate its occupancy of, and (ii) shall, and shall cause all Lessee-Related Entities to, vacate, and (iii) shall deliver to the Port Authority actual, physical possession of, one or more portions of the Premises as agreed between the Parties, including the following areas:
(1)    the Air Operations Area (AOA) north of the Existing Terminal C shown in green cross-hatching and numbered “S5” on Exhibit 7 (Additional Premises);
(2)    the Air Operations Area (AOA) north of the Existing Terminal D hardstands, adjacent to the East Field Lighting Vault, shown in green cross-hatching and numbered “S1” on Exhibit 7 (Additional Premises);
(3)    portions of the approach roadways to Existing Terminal D shown in green cross-hatching and numbered “S2” and “S3”  on Exhibit 7 (Additional Premises); and
(4)    the landside area southwest of Existing Terminal C shown in green cross-hatching and numbered “S4” on Exhibit 7 (Additional Premises);
and, with respect to each of sub-clauses (1) through (4) above and any other portions of the Premises surrendered to the Port Authority pursuant to this Section 2(c), together with all buildings, structures, fixtures, improvements and other property of the Lessee located therein, thereon or thereunder, and all structures, improvements, additions, buildings, installations and facilities located, constructed or installed, or which may be located, constructed or installed therein, thereon or thereunder, and the equipment permanently affixed or permanently located therein, such as electrical, plumbing, sprinkler, fire protection and fire alarm, heating, steam, sewage, drainage, refrigerating, communications, gas and other systems, and their pipes, wires, mains, lines, tubes, conduits, equipment and fixtures, and all paving, drains, culverts, ditches and catch-basins constructed therein, thereon or thereunder as of the applicable Surrendered Premises Effective Date (each, a “Surrendered Premises”), all of the foregoing which after the applicable Surrendered Premises Effective Date, shall not be a part of the Premises. The termination of the Lessee’s occupancy of each such Surrendered Premises and delivery thereof to the Port Authority shall in

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each case be subject to and in accordance with the requirements of Sections 52 (Surrender) and 53 (Acceptance of Surrender of Lease) hereof.
The Parties shall from time to time agree to modifications to the drawings identified as “Final Delta Lease Line” on Exhibit 6 (Delta Leasehold) as necessary to reflect the final lease lines following the surrender of any Surrendered Premises in accordance with this Section 2(c). Drawings that have been modified in accordance with the foregoing shall be incorporated into this Agreement pursuant to an agreement in writing by the Parties.
(d)Finalization of Certain Exhibits.
(1)    The Parties acknowledge that the lease lines and corresponding coordinates and area tabulations on the drawings set forth in Exhibit 2 (O&M Responsibilities with respect to Certain Off-Premises Facilities), Exhibit 6 (Delta Leasehold), Exhibit 7 (Additional Premises) and Exhibit 11 (Temporary Rights of Access) as of the Effective Date (collectively, the “Effective Date Drawings”) are subject to final verification by the Parties. The Port Authority and the Lessee agree to work together to verify the same.
(2)    Following the Completion Date, the drawing identified as “Final Delta Lease Line” on Exhibit 6 (Delta Leasehold) shall be amended, as necessary, to reflect the final design and construction of the New Terminal Facilities and Off-Premises Facilities.
(3)    Drawings that have been modified in accordance with any of the foregoing shall be incorporated into this Agreement pursuant to an agreement in writing by the Parties.
(e)Subordination. The Premises are let to the Lessee and the Lessee takes the same subject to all the following: (i) easements, restrictions, reservations, covenants and agreements, if any, to which the Premises may now be subject, and rights of the public in and to any public street; (ii) rights, if any, of any enterprise, public or private, which is engaged in furnishing heating, light, power, gas, telecommunications, telephone, steam, or transportation services and of New York City and the State of New York; (iii) permits, licenses, regulations and restrictions, if any, of the United States of America, New York City or the State of New York or other Governmental Authority and (iv) the Basic Lease.
(f)FAA Requirements. The Lessee shall be obligated to negotiate a reimbursable agreement directly with the FAA to cover reasonable costs associated with FAA review of Form 7460 evaluations, engineering support necessary to process FAA permits and approvals, and required FAA special evaluations or analysis. The Port Authority shall cooperate with the Lessee and shall exercise reasonable efforts to cause its respective contractors to cooperate with the Lessee, in respect of the Lessee’s satisfaction of associated FAA requirements, and the costs and expenses thereof shall constitute Port Authority Support Costs.
(g)Non-Residential. The parties acknowledge that the Premises constitute non-residential real property.

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(h)No Rights in Air Space. Except to the extent required for the performance of any of the obligations of the Lessee hereunder, nothing contained in this Agreement shall grant to the Lessee any rights whatsoever in the air space above any Partial Occupancy Portion above the heights of the structures thereon as of the DBO of such Partial Occupancy Portion.
Section 3.    Term. The term of the letting under this Agreement (the “Term”) with respect to the Existing Premises shall commence upon the Effective Date, and with respect to the Additional Premises shall commence upon the applicable Additional Premises Effective Date, and in each case shall end on the earlier of (i) 11:59 o’clock p.m. on the 30th day of December 2050, or the date of termination of the Basic Lease, whichever is earlier (the “Expiration Date”) and (ii) any earlier termination of this Agreement in accordance with its terms.
Section 4.    Conditions Precedent. On or prior to the Effective Date, each of the following conditions shall have been satisfied in full, unless waived in writing by the Port Authority or the Lessee, as the case may be:
(a)delivery by the Lessee to the Port Authority of the Baseline Schedule approved in form and substance by the Port Authority;
(b)delivery by the Lessee to the Port Authority of the Steel Sourcing Plan (as defined in the General Provisions) approved in form and substance by the Port Authority, together with the certificate of an authorized officer of the Lessee meeting the requirements of Section 6.2 of the General Provisions or a request for waiver meeting the requirements of Section 6.3 of the General Provisions;
(c)delivery by the Lessee to the Port Authority of the submittals listed in Exhibit 8 (RPW Effective Date Conditions Precedent) that are required to be delivered by Lessee to the Port Authority in accordance with the Requirements and Provisions for Work (each such item, as approved in form and substance by the Port Authority or as was subject to the Port Authority’s comment, as applicable);
(d)delivery by the Lessee to the Port Authority of the Payment and Milestone Schedule approved in form and substance by the Port Authority;
(e)delivery by the Lessee to the Port Authority of evidence that each of the Governmental Approvals required to be obtained by the Lessee prior to the Effective Date or necessary for the commencement of the D&C Work has been obtained and is full force and effect;
(f)delivery by the Lessee to the Port Authority of certificates of insurance evidencing the procurement of all relevant insurance required to be maintained pursuant to this Agreement (other than insurance coverage not required to be in effect until a later date pursuant thereto) and delivery of a certification of the Lessee’s insurance broker or insurance consultant stating that (i) such insurance broker or insurance consultant has reviewed the insurance required to be in place as of the Effective Date, (ii) the Lessee has obtained all insurance required to be in effect as of the Effective Date and such policies comply with the requirements set forth in this Agreement (in form and substance), (iii) such policies are in full force and effect as of the Effective

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Date and (iv) as of the Effective Date, all premiums due and payable on such policies have been paid in full, each in form and substance approved by the Port Authority;
(g)(i) delivery by the Lessee of the first Construction Application and each of the Reference Documents (excluding the Requirements and Provisions for Work), in each case in form and substance approved by the Port Authority; and (ii) delivery by the Port Authority of the Requirements and Provisions for Work;
(h)the FONSI has been issued;
(i)[Reserved];
(j)delivery by the Lessee to the Port Authority of a parking and traffic mitigation plan that describes, among other things, alternative parking solutions for each phase of the D&C Work and other parking mitigation plans, traffic circulation and control management, roadway paving, staging, level of maintenance service, pedestrian walkways and site logistics, during the D&C Work Period, approved in form and substance by the Port Authority (the “Comprehensive Parking and Traffic Plan”);
(k)delivery by the Lessee to the Port Authority of an environmental management plan meeting the requirements of Section 76(t), approved in form and substance by the Port Authority;
(l)delivery by the Lessee to the Port Authority of a letter describing the Lessee’s planned tax treatment with respect to this Agreement and the Premises, in form and substance approved by the Port Authority; and
(m)delivery by the Lessee of a certification, in substantially the form attached hereto as Exhibit 9 (Form of Lessee Certification).
Section 5.    Design and Construction by the Lessee.
a.
Comprehensive Plan.
(1)    As of the Effective Date, the Lessee has submitted to the Port Authority and the Port Authority has approved plans and specifications with respect to the D&C Work based on the Lessee’s Basis of Design (such plans and specifications, as approved by the Port Authority from time to time as required by this Agreement, the “Comprehensive Plan”). The redevelopment of the Existing Terminal Facilities, including landside and airside, shall be coordinated with the New Airport Design Guidelines.
(2)    The Lessee shall update the Comprehensive Plan with respect to any changes that would materially impact the operations (including operational capacity), quality or functionality of the New Terminal Facilities and/or the Off-Premises Facilities and shall submit to the Port Authority for its prior approval any amendment, revision or modification thereof resulting from such update, each of which shall not become effective until the same has been approved by the Port Authority.

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b.D&C Work.
(1)    D&C Work. Subject to this Section 5 (Design and Construction by the Lessee) and the other provisions of this Agreement, the Lessee agrees, at its sole cost and expense, to design and to construct the New Terminal Facilities on the Premises as described in Section 5(b)(2)(i) below and to design and construct the Off-Premises Facilities outside the Premises as described in Section 5(b)(2)(ii) below, all as set forth in the Comprehensive Plan and the Project Documents and in accordance with Applicable Law and Applicable Standards (collectively, the “D&C Work”). Removal and disposal of Hazardous Substances conducted or required to be conducted to perform the D&C Work as described in Section 73(b) hereof is not Remediation for purposes of this Agreement.
(2)Scope of D&C Work.
(i)Scope of D&C Work on the Premises. Without limiting the generality of Section 5(b)(1), the Lessee agrees that the Comprehensive Plan shall include the D&C Work identified on Exhibit 10 (D&C Work Scope Document), attached hereto and hereby made a part hereof and entitled “D&C Work Scope Document” and, more generally, shall include the following:
(a)    the decommissioning and demolition of certain existing structures, fixtures and other improvements comprising the Existing Terminal Facilities; and
(b)    the design and construction on and under the Premises of among other things, the following:
(i)
a passenger terminal building consisting of approximately 1,140,000 square feet of floor space, the foregoing together with all associated and related areas and facilities, including but not limited to concourses, supporting buildings, utility and mechanical rooms, concession areas, stairwells, stairways, escalators and elevators, and all fixtures, furnishings and equipment necessary for the operation of a first-class domestic airport passenger terminal facility, to replace the Existing Terminal C and the Existing Terminal D, which new terminal building shall include a minimum of thirty-seven (37) Aircraft loading and unloading gate positions, as generally shown on Annex A (New Terminal Building (On-Premises)) of Exhibit 10 (D&C Work Scope Document);
(ii)
all necessary and appropriate contiguous aircraft ramp and apron areas for the New Terminal Facilities, and contiguous frontage roads on the Premises that are

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adjacent or parallel to the New Terminal Facilities, as generally shown on Annex B (Aircraft Ramp and Apron Areas (On-Premises)) of Exhibit 10 (D&C Work Scope Document);
(iii)
all necessary and appropriate temporary facilities on the Premises to support passenger terminal services during the construction of the New Terminal Facilities;
(iv)
all necessary and appropriate work together with all associated and related areas and facilities on the Premises for the connecting of the New Terminal Facilities with the East Garage;
(v)
all appropriate lines, mains, cables, manholes, wires, conduits and other facilities required in connection with or relating to the mechanical, utility, electrical, storm sewer, sanitary sewer, telephone, fire alarm, fire protection, gas and other systems on the Premises needed for the New Terminal Facilities, including all necessary relocations and upgrades with sufficient capacity for the New Terminal Facilities, de-icing fluid recovery systems, communication systems, and all work necessary or required to tie the foregoing to the utility access stubs now existing on or off the Premises which include water, electrical power, sanitary service lines, including all necessary valves and other equipment and accessories necessary to the use and operation of the heating, electrical, water and other utility systems which are to serve the Premises;
(vi)
work on Premises to facilitate the relocation of the existing taxi and for-hire vehicle hold lots between Existing Terminal C and Existing Terminal D to parking lot P-5, in accordance with Section 5(b)(2)(ii)(g);
(vii)
all grading and paving of ground areas and appropriate landscaping for the New Terminal Facilities, together with all associated and related areas on the Premises; and
(viii)
all necessary or required blast fences and other fencing on the Premises.

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(c)    the re-alignment and installation of new storm water drainage pipe (the “New Storm Water Drainage Trunk Line”), of equal functionality to the existing 72”/78” RCP storm water drainage trunk line to the extent currently located within the Premises and under the footprint of the Existing Terminal D building (the “Existing Storm Water Drainage Trunk Line”), to another location on the Premises that is not under the footprint of the New Terminal Facilities (except as otherwise agreed by the Parties with respect to the relocation of the Existing Storm Water Drainage Trunk Line), and the appropriate disposal of the Existing Storm Water Drainage Trunk Line (and the content thereof) that is no longer in service due to replacement by a New Storm Water Drainage Trunk Line.
All of the foregoing demolition, design, construction and installation work in this Section 5(b)(2)(i) shall be performed by the Lessee on the Premises and shall be and become a part of the Premises under this Agreement and is sometimes collectively referred to herein as the “New Terminal Facilities.” The Parties agree that the term “New Terminal Facilities” shall not include the Lessee’s personal property, trade fixtures or equipment, but shall include any systems and equipment as are affixed to the realty or are necessary for the proper operation of the New Terminal Facilities.
(ii)Scope of D&C Work for the Off-Premises Facilities. In addition to all hereinabove mentioned, the Lessee shall include as part of its Comprehensive Plan the design and construction of the following work, which construction, however, shall not be on the Premises and shall not be part of the Premises under this Agreement:
(a)expansion of the East Garage to match the design, height and finishes of the existing parking garage to accommodate a total of 2,000 patron parking spaces, and construction of the pedestrian bridge connecting the New Terminal Facilities to the East Garage as described in more detail in Annex C (East Garage Expansion and New Terminal Facilities East Garage Pedestrian Bridge (Off-Premises)) of Exhibit 10 (D&C Work Scope Document);
(b)certain improvements to the public airport roadways as shown on Annex D (Public Airport Roadways Improvements and Taxi and FHV Lot) of Exhibit 10 (D&C Work Scope Document), together with all appropriate ground lighting, lines, pipes, drains, wires, cables, manholes and conduits and other related facilities and infrastructure work;
(c)construction of a unifying architectural connecting structure and all required appurtenances/utilities, to connect from the New Terminal Facilities to a location terminating on the west side of 102nd Street as shown on Annex E (New Terminal Facilities / West 102nd Street Connecting Structure (Off-Premises)) of Exhibit 10 (D&C Work Scope Document). The D&C Work includes the construction of such unifying architectural connecting structure but excludes the construction of the section of the unifying architectural connecting structure over the future AirTrain station. The unifying architectural connecting structure shall be constructed by the Lessee in a manner consistent with the requirements of the New Airport Design Guidelines and to allow for future connection to the section of the unifying architectural connecting structure over the future AirTrain station;

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(d)construction of a portion of the landside pedestrian bridge to connect the New Terminal Facilities and the future Central Hall at a location terminating on the west side of 102nd Street as shown on Annex F (New Terminal Facilities / Central Hall Landside Pedestrian Bridge (Off-Premises)) of Exhibit 10 (D&C Work Scope Document). The landside pedestrian bridge to be constructed by the Lessee shall be installed above 102nd Street and shall allow for future construction within the AirTrain guiderail/structure south of the electrical substation and the East Garage, as shown on Annex F (New Terminal Facilities / Central Hall Landside Pedestrian Bridge (Off-Premises)) of Exhibit 10 (D&C Work Scope Document). The landside pedestrian bridge must be constructed to allow for the future East AirTrain station and AirTrain rails within the right of way limits of the AirTrain from the 102nd Street Bridge to the east end of the East AirTrain Station, as shown on Annex G (AirTrain Right of Way (Off-Premises) - Arrivals) of Exhibit 10 (D&C Work Scope Document). The pedestrian bridge shall be consistent with the requirements of the New Airport Design Guidelines;  
(e)all appropriate lines, mains, cables, manholes, wires, conduits and other facilities required in connection with or relating to the mechanical, utility, electrical, storm sewer, sanitary sewer, telephone, fire alarm, fire protection, gas and other systems off the Premises needed for the New Terminal Facilities, including all necessary relocations and upgrades with sufficient capacity for the New Terminal Facilities, de-icing fluid recovery systems, communication systems, and all work necessary or required to tie the foregoing to the utility access stubs now existing on or off the Premises which include water, electrical power, sanitary service lines, including all necessary valves and other equipment and accessories necessary to the use and operation of the heating, electrical, water and other utility systems which are to serve the Premises;
(f)construction of a new taxi and for-hire-vehicle (FHV) parking and staging lot providing parking and staging spaces, on the eastern side of the site adjacent to the roadway network to accommodate approximately 300 vehicles, at the location shown on Annex D (Public Airport Roadways Improvements and Taxi and FHV Lot) of Exhibit 10 (D&C Work Scope Document);
(g)temporary relocation of the existing taxi and for-hire vehicle hold lots between Existing Terminal C and Existing Terminal D to parking lot P-5 to support terminal access improvements;
(h)all grading and paving of ground areas and appropriate landscaping for the Off-Premises Facilities;
(i)construction of the new Air Operations Area (AOA) access gate and the Restricted Vehicle Service Road (RVSR), approximately at the location shown on Annex J (AOA Access Gate and RSVR (Off-Premises)) of Exhibit 10 (D&C Work Scope Document); and
(j)construction of a new electrical substation on the Premises in the area shown on Annex K (Electrical Substation) of Exhibit 10 (D&C Work Scope Document), minimum of 12MVA, to serve the electrical needs of the Lessee and to service the additional electrical load required for the D&C Work, the entirety of which shall be turned over to

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the Port Authority for operation and maintenance upon substantial completion thereof as an Installation Portion in accordance with this Agreement (the “New Substation”). The Lessee shall perform all installation, testing and commissioning of equipment required for the operation of the New Substation.
All of the foregoing design, construction and installation work in this Section 5(b)(2)(ii) shall be performed by the Lessee off the Premises and shall not be or become a part of the Premises under this Agreement. Each of the foregoing is hereinafter sometimes referred to as an “Installation” and all Installations covered under this Section 5(b)(2)(ii) are sometimes hereinafter collectively referred to as the “Off-Premises Facilities.”
(3)Temporary Access Rights.
(i)    Subject to the terms and conditions set forth in this Agreement, including, specifically, the immediately succeeding sentence in clause (3)(ii), and by no later than the dates that permit the Lessee to perform, or cause to perform, the D&C Work consistent with the Baseline Schedule and, if applicable, the Established Integration Schedule, the Port Authority will grant to the Lessee, and the Lessee will take, for use by the Lessee and its Contractors, those certain rights of way and access and use of those off-Premises portions of the Airport shown on Exhibit 11 (Temporary Rights of Access) (“Temporary Rights of Access”) for ingress and egress, on foot and in vehicles, storage of materials, staging of construction, support, drainage, temporary utilities and other purposes with respect to the D&C Work during the D&C Work Period and consistent with the purposes of this Agreement, all as set forth on Exhibit 11 (Temporary Rights of Access).
(ii)    The Parties acknowledge and agree that, as of the Effective Date, the rights to occupy and use the portion of the Airport shown in diagonal hatching on Exhibit 11 (Temporary Rights of Access) has been granted exclusively to LGP. The Lessee shall expeditiously and in good faith, in accordance with its obligations under the Construction Coordination Agreement (including Section 1.1(a) thereof), coordinate with LGP to receive rights of way and access and use of such portions of the Airport as is necessary to support the D&C Work, and the Port Authority shall provide PA Support Services (as defined in the Construction Coordination Agreement) in connection therewith in accordance with its obligations under the Construction Coordination Agreement. Any such portion of the Airport to which the Lessee receives any rights of way or access or use in accordance with the foregoing shall be treated as Temporary Rights of Access for purposes of this Agreement.
(iii)    Temporary Rights of Access are non-exclusive in nature and use of any property subject to a Temporary Right of Access is subject to any prior rights, interests, or charge or encumbrance of any kind.
(iv)    The Parties may from time to time agree to modifications to the drawings set forth in Exhibit 11 (Temporary Rights of Access) as necessary to reflect changes in any Temporary Rights of Access identified therein. Drawings that have been modified in accordance with the foregoing shall be incorporated into this Agreement pursuant to one or more agreements in writing by the Parties.

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(4)Quality of D&C Work. In the performance of the D&C Work, in addition to complying with Section 10 (Compliance with Governmental Requirements) and other applicable provisions of this Agreement, the Lessee shall comply with applicable industry “best practices” guidelines.
(5)Minimum Construction Amount. The Lessee shall expend not less than Three Billion Dollars and Zero Cents ($3,000,000,000.00) (hereinafter the “Minimum Construction Amount”) for the D&C Work (including the Off-Premises Facilities), consisting of the sum of: (i) the amounts paid by the Lessee to its Contractors for work actually performed and labor and materials actually furnished in connection with the D&C Work to ready the Premises for initial occupancy by the Lessee and to ready the Off-Premises Facilities for operational use; and (ii) the payments made and expenses incurred by the Lessee, in connection with such construction, for engineering, architectural, professional and consulting services and the supervision of the D&C Work.
c.Port Authority Perimeter Intrusion Detection System (PIDS).
(1)The Parties acknowledge that the Perimeter Intrusion Detection System (“PIDS”) may be located and operated, at all times during the Term, from the Premises and the Lessee shall allow such equipment to remain and be operated at the Premises without any consideration therefor, and allow the Port Authority and its designees ingress and egress to the Premises, and access to the PIDS, so that the same can be maintained, repaired, replaced, substituted or removed, in each case, by the Port Authority. In the event the Port Authority determines that it is necessary, as a result of the D&C Work, to remove, relocate or replace any portion of the PIDS to maintain required security coverage during the D&C Work Period, it shall be entitled to direct the Lessee to do so, at the Lessee’s cost and expense, following written notification thereof to the Lessee.
(2)The Lessee and the Port Authority shall cooperate with each other, and exercise reasonable efforts to cause their respective contractors to cooperate with each other, in negotiations with the Port Authority’s PIDS provider and in reaching an agreement mutually agreed by the Parties with the Port Authority’s PIDS provider. The Lessee shall comply with the reasonable written notification and contracting requirements of the Port Authority’s PIDS provider and shall directly contract with the Port Authority’s PIDS provider as described in the Requirements and Provisions for Work.
d.Risk of Loss.
(1)    The Lessee hereby assumes the risk of loss or damage to all of the D&C Work prior to the completion thereof and the risk of loss or damage to all property of the Port Authority arising out of or in connection with the performance of the D&C Work. In the event of such loss or damage, the Lessee shall forthwith repair, replace and make good the D&C Work and the property of the Port Authority without cost or expense to the Port Authority.
(2)    The Lessee shall itself, and shall also impose and enforce obligations on its Contractors to, indemnify and hold harmless the Port Authority Indemnified Parties from and

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against all claims and demands, just or unjust, of third persons (including employees, officers and agents of the Port Authority) arising or alleged to arise out of the performance of the D&C Work and for all expenses incurred by it and by them in the defense, settlement or satisfaction thereof including, without limitation, claims and demands for death, for personal injury or for property damage, whether they arise from the acts or omissions of the Lessee, of any of its Contractors, of the Port Authority, or of third persons, or from acts of God or of the public enemy, or otherwise (including claims of New York City against the Port Authority pursuant to the provisions of the Basic Lease whereby the Port Authority has agreed to indemnify New York City against claims), excepting, with respect to the Lessee’s obligations to indemnify the Port Authority and its officers, employees, agents and authorized representatives, only such risks, responsibilities, costs and expenses arising solely from the negligence or willful misconduct of the Port Authority or any officer, employee, agent or authorized representative of the Port Authority, with respect to the D&C Work. If so directed, the Lessee shall at its own expense defend any suit based upon such claim or demand (even if such suit, claim or demand is groundless, false or fraudulent), and in handling such it shall not, without obtaining express advance written permission from the General Counsel of the Port Authority, raise any defense involving in any way the jurisdiction of the tribunal over the person of the Port Authority, the immunity of the Port Authority, its Commissioners, officers, agents or employees, the governmental nature of the Port Authority, or the provisions of any statutes respecting suits against the Port Authority.
e.Contractors Approval; Required Contract Provisions.
(1)No later than sixty (60) days prior to entering into a Contract or Contracts for any part of the D&C Work, the Lessee shall submit to the Port Authority for its approval (i) the names of the proposed contractors (including architects and engineers) or potential bidders to whom the Lessee may award a Contract or Contracts with respect to the D&C Work, and (ii) the type of D&C Work that the Lessee anticipates each of such contractors or bidders would perform. The Port Authority may, within ten (10) Business Days of such Lessee’s submission, comment on the proposed contractors or potential bidders. The Lessee shall not employ or approve any contractor or bidder to which the Port Authority has reasonable objection and has notified the Lessee in writing of such objection and the basis therefor within such ten (10) Business Days’ period.
(2)Without limiting the other provisions in this Agreement and the Requirements and Provisions for Work with respect to the provisions required to be contained in the Contracts for the performance of the D&C Work, the Lessee shall expressly include in all Contracts it executes for the performance of the D&C Work the following provisions, and agrees that it shall require all of its Contractors to include in all of their respective Contracts for the performance of the D&C Work a provision that obligates each Contractor to be subject to the corresponding payment requirements as specified in this Section 5(e)(2) below with respect to each lower-tier Contractor:
“If (i) the Contractor fails to perform any of his obligations under the Contract, including his obligation to the Lessee to pay any claims lawfully made against him by any materialman, subcontractor or workman or other third person which arises out of or in connection with the performance of the Contract or (ii) any claim (just or unjust) which arises out of or in

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connection with the Contract is made against the Lessee or (iii) any subcontractor under the Contract fails to pay any claims lawfully made against him by any materialman, subcontractor, workman or other third persons which arise out of or in connection with the Contract or if in the Lessee’s opinion any of the aforesaid contingencies is likely to arise, then the Lessee shall have the right, in its discretion, to withhold out of any payment (final or otherwise and even though such payments have already been certified as due) such sums as the Lessee may deem ample to protect it against delay or loss or to assume the payment of just claims of third persons, and to apply such sums in such manner as the Lessee may deem proper to secure such protection or satisfy such claims.
All sums so applied shall be deducted from the Contractor’s compensation. Omission by the Lessee to withhold out of any payment, final or otherwise, a sum for any of the above contingencies, even though such contingency has occurred at the time of such payment, shall not be deemed to indicate that the Lessee does not intend to exercise its right with respect to such contingency. Neither the above provisions for rights of the Lessee to withhold and apply monies nor any exercise or attempted exercise of, or omission to exercise, such rights by the Lessee shall create any obligation of any kind to such materialmen, subcontractors, workmen or other third persons. Until actual payment is made to the Contractor, his right to any amount to be paid under the Contract (even though such amount has already been certified as due) shall be subordinate to the rights of the Lessee under this provision.”
(3)Without limiting the other provisions in this Agreement with respect to the provisions required to be contained in the Contracts for the performance of the D&C Work, the Lessee shall, exercising Best Management Practice, in each Contract for the performance of the D&C Work that the Lessee executes, at a minimum:
(i)    require the Contractor to carry out the D&C Work in accordance with Applicable Law, Applicable Standards, all Governmental Approvals, Best Management Practice and the terms, conditions and standards set forth in the Project Documents;
(ii)    include a covenant to maintain all Governmental Approvals required by Applicable Law and Applicable Standards for the performance of the applicable D&C Work;
(iii)    set forth customary representations, warranties, guaranties, performance security and liability provisions of the Contractor in accordance with Best Management Practice for work of similar scope and scale;
(iv)    require the Contractor to obtain and maintain in force such insurance coverages as is described in Section 18 (Insurance);
(v)    expressly require the Contractor to participate in meetings between the Lessee and the Port Authority (if such participation is requested or approved by the Port Authority) concerning matters pertaining to such Contractor, the D&C Work or the coordination of the D&C Work with other Contractors and the contractors working at the Airport; provided, that

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all direction to such Contractor shall be provided by the Lessee but nothing herein shall limit the authority of the Port Authority to give such direction or take such action as in its opinion is necessary to remove an immediate and present threat to the safety of life or property;
(vi)    include an agreement by the Contractor to participate in any dispute resolution proceeding pursuant to this Agreement if such participation is requested by the Port Authority;
(vii)    without cost to the Port Authority and subject to the rights of the Lenders, expressly permit assignment to the Port Authority, or its successor, assignee or designee, of all Lessee’s rights under the Contract, contingent only upon delivery of a written request from the Port Authority following termination or expiration of this Agreement, allowing the Port Authority or its successor, assignee or designee to assume the benefit of the Lessee’s rights with liability only for those remaining obligations of the Lessee accruing after the date of assumption, such assignment to include the benefit of all Contractor warranties, indemnities, guarantees and performance security, and expressly state that any acceptance of assignment of the Contract by the Port Authority, or its successor, assignee or designee, shall not operate to make the Port Authority, or its successor, assignee or designee, responsible or liable for any breach of the Contract by the Lessee or for any amounts due and owing under the Contract for work or services rendered prior to assignment;
(viii)    subject to the rights of the Lenders, expressly include a covenant, expressly stated to survive termination of the Contract, to promptly execute and deliver to the Port Authority or its successor, assignee or designee a new contract between the Contractor and the Port Authority or its successor, assignee or designee on the same terms and conditions as the Contract, if (A) the Contract is rejected by the Lessee in bankruptcy or is wrongfully terminated by the Lessee and (B) the Port Authority delivers written request for such new contract within sixty (60) days following termination or expiration of this Agreement;
(ix)    expressly include requirements that the Contractor will comply with the applicable provisions of Section 96 (Books and Records);
(x)    expressly include the Port Authority Indemnified Parties as indemnitees, with direct right of enforcement, in any indemnity given by the Contractor under the Contract;
(xi)    expressly include an acknowledgement that the Contractor has no right or claim to any Lien with respect to the Work or the Premises for failure of the other contracting party to pay amounts due the Contractor, and a waiver of any such right or claim that may exist at law or in equity;
(xii)    subject to the rights of the Lenders, expressly include (A) the right of the Lessee to terminate the Contract upon any termination of this Agreement or (B) that the Contract automatically terminates upon any termination of this Agreement, in each case without liability of the Port Authority for the Contractor’s lost profits or business opportunity; and

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(xiii)    expressly provide that any purported amendment with respect to any of the foregoing matters set forth in clauses (i) through (xii) above without the prior written consent of the Port Authority shall be null and void ab initio and of no force and effect.
(4)The Lessee shall provide to the Port Authority (i) a copy of any suspension, demobilization, default or termination notice provided to the Lessee by any Contractor, within five (5) days of the receipt thereof by the Lessee or (ii) a written notice of any suspension, demobilization, default or termination under any Contract within five (5) days of the Lessee becoming aware thereof.
(5)Notwithstanding the incorporation in any Contract of the Port Authority requirements, and notwithstanding any rights the Port Authority may have reserved to itself hereunder, the Port Authority shall have no liabilities or obligations of any kind to any Contractors engaged by the Lessee or for any other matter in connection with the relevant Contract, and the Lessee hereby releases and discharges the Port Authority of and from any and all such liability and obligations (excepting only such risks, responsibilities, costs and expenses arising solely from the negligence or willful misconduct of the Port Authority or any of its officers, employees and agents).
fConstruction Security.
The Lessee shall cause each of its Contractors providing, in accordance with Section 5(e)(3)(iii), a guaranty, letter of credit, surety bond or any other form of performance security under its Contract executed with the Lessee for the performance of the D&C Work, to expressly name the Port Authority an assignee beneficiary, a transferee beneficiary, an additional obligee or other applicable type of beneficiary thereof with the right to enforce such security once the Port Authority succeeds the position of the Lessee under such Contract pursuant to Section 5(e)(3)(vii) above. The Lessee shall deliver a duplicate original of each such guaranty or surety bond (or other form of security, as applicable) to the Port Authority before its effective date. The existence of any such security shall not limit or alter any other remedies of the Port Authority under this Agreement or Applicable Law.
gConstruction Application; Submittals.
(1)    Prior to the commencement of the D&C Work (except as permitted in accordance with Section 5(u) and this Section 5(g)) and in addition to the Comprehensive Plan, the Lessee shall execute and submit to the Port Authority for the Port Authority’s approval one or more construction applications in the form prescribed by the Port Authority and including plans and specifications of the D&C Work pursuant to and in accordance with the TCAP Manual (hereinafter, collectively with such plans and specifications, the “Construction Application”). Each Construction Application shall set forth in detail by appropriate plans and specifications for the D&C Work the Lessee proposes to perform and the manner of and time periods for performing the same including, without limitation, a schedule listing each contract proposed to be entered into for the performance of the D&C Work pursuant to such Construction Application and the estimated cost of the D&C Work to be performed under each such contract. The data to be supplied by the

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Lessee shall identify each of the items constituting the D&C Work to be performed pursuant to such Construction Application, and shall describe in reasonable detail the related systems, improvements, fixtures and equipment to be installed by the Lessee.
(2)    All D&C Work shall be performed in accordance with the Construction Application and related plans and specifications that have been submitted to and approved by the Port Authority prior to the commencement of the D&C Work (except as permitted in accordance with Section 5(u) and this Section 5(g)(2)). The Port Authority may approve the Construction Application or may, in accordance with the TCAP Manual, issue a “Conditional Approval to Construct Letter.” Such conditional approval may be granted for only specific areas within the Premises. Upon issuance of such conditional approval by the Port Authority, the Lessee may commence relevant D&C Work only in the approved areas. The Lessee shall continue to resubmit plans and specifications as required until the Port Authority has issued its final approval of the applicable Construction Application. Upon approval of such plans and specifications by the Port Authority, the Lessee shall, subject to the foregoing provisions of this Section 5(g)(2), proceed diligently at its sole cost and expense to perform the D&C Work. All D&C Work, including workmanship and materials, shall be of first class quality. The Lessee shall re-do, replace or construct at its own cost and expense, any D&C Work not done in accordance with the approved Construction Application, the requirements of the Project Documents, Applicable Standards or Applicable Law.
(3)    The Lessee shall be responsible at its sole expense for retaining all architectural, engineering and other technical consultants and services and for developing, completing and submitting Construction Applications for the Port Authority’s approval. The plans and specifications to be submitted by the Lessee shall be in sufficient detail for Contractors to perform the D&C Work and shall bear the seal of a qualified and licensed architect or professional engineer. A qualified and licensed architect or professional engineer shall be responsible for the administration of the D&C Work. In connection with review by the Port Authority of the Lessee’s submissions under this Section 5(g), the Lessee shall submit to the Port Authority, at the Port Authority’s request, such additional data, detail or information as the Port Authority may find necessary. Following the Port Authority’s receipt of the Lessee’s complete Construction Application and related plans and specifications, the Port Authority shall give its written approval, conditional approval or rejection thereof, or shall request such revisions or modifications thereto as the Port Authority may find necessary. If the Port Authority approves or conditionally approves a Construction Application, the Lessee may, subject to Section 5(g)(2), commence performance of the proposed D&C Work as set forth therein.
(4)    The Port Authority may refuse to grant approval of any plans and specifications or any portion thereof, any submittals in connection with the Comprehensive Plan, a Construction Application or any other submittals in connection with the D&C Work, if, in its opinion, any such submittal or the proposed D&C Work as set forth therein (all of which shall be in such detail as may reasonably permit the Port Authority to make a determination as to whether the requirements hereinafter referred to are met) shall:
(i)    be unsafe, unsound, hazardous or improper for the use and occupancy for which it is designed; or

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(ii)    not comply with the Comprehensive Plan or the New Airport Design Guidelines; or
(iii)    not comply with the Rules and Regulations with respect to external and interior building materials and finishes of similar existing or future improvements at the New Terminal Facilities; or
(iv)    be designed for use for purposes other than those authorized under this Agreement; or
(v)    set forth ground elevations or heights other than those prescribed by the Port Authority; or
(vi)    not provide adequate and proper circulation areas; or
(vii)    not be at locations or not be oriented in accordance with the Comprehensive Plan; or
(viii)    not comply with the provisions of the Basic Lease, including, without limiting the generality thereof, those provisions of the Basic Lease providing that the Port Authority will conform to the enactments, ordinances, resolutions and regulations of New York City and its various departments, boards and bureaus in regard to construction and maintenance of buildings and structures and in regard to health and fire protection which would be applicable if the Port Authority were a private corporation to the extent that the Port Authority finds it practicable so to do; or
(ix)    be in violation or contravention of any other provisions and terms of this Agreement; or
(x)    not comply with Applicable Laws, Governmental Approvals or Applicable Standards; or
(xi)    not comply with all applicable requirements of the National Board of Fire Underwriters and the Fire Insurance Rating Organization of New York; or
(xii)    not comply with the Rules and Regulations with respect to landscaping; or
(xiii)    not comply with the Rules and Regulations with respect to noise, air pollution, water pollution or other types of pollution (including as described in this Agreement); or
(xiv)    not comply with the Americans with Disabilities Act of 1990 and all federal rules, regulations and guidelines pertaining thereto including, but not limited to, the American National Standard Specifications for Making Buildings and Facilities Accessible to and Usable by Physically Handicapped People, ANSI A117.180; or

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(xv)    not provide for sufficient clearances for taxiways, runways and apron areas; or
(xvi)    permit aircraft to overhang the boundary of the Premises, except when entering or leaving the Premises; or
(xvii)    not comply with the provisions of any Project Document.
(5)    In addition to and without limiting the foregoing, with respect to the portion of the D&C Work representing the Off-Premises Facilities or any Installation forming a part thereof, the Lessee’s design thereof and the said plans and specifications shall be subject to the complete prior written approval of the Port Authority and the Lessee shall make all changes and modifications to the said design, plans and specifications as may be required by the Port Authority pursuant to Section 5(cc)(1); provided, that the foregoing shall not limit the Lessee’s right to request that the Port Authority grant Partial Approval for Partial Approval Work with respect to the Off-Premises Facilities or any Installation forming a part thereof pursuant to Section 5(u).
(6)    The Lessee shall furnish or require its architect to furnish a full time resident engineer or, with the consent of the Port Authority, a representative of the Lessee authorized to act on behalf of the Lessee, during the D&C Work Period. The Lessee shall require certification by a licensed engineer of all pile driving data and of all controlled concrete work and such other certifications as may be required by the Port Authority from time to time.
hNo Port Authority Responsibility for Plans and Specifications. The Lessee agrees to be solely responsible for any plans and specifications used by it and for any loss or damages resulting from the use thereof, notwithstanding the same have been approved by the Port Authority and notwithstanding the incorporation therein of Port Authority recommendations or requirements.
iWarranties; Nonconforming Work.
(1)    The Lessee shall obtain from all of its Contractors performing any portion of the D&C Work appropriate representations, warranties, guarantees and obligations in accordance with Best Management Practice, for work of similar scope and scale. The Lessee shall use commercially reasonable efforts to cause any warranties so obtained to be expressly extended to the Port Authority; provided, that upon the occurrence of the DBO of any Installation Portion, the Lessee shall assign in favor of the Port Authority the Lessee’s rights under the relevant design and construction contracts with respect to the warranty coverage for such Installation Portion under terms that provide for the warranties to run solely for the benefit of the Port Authority. To the extent that any Contractor warranty is voided by reason of the Lessee’s negligence or failure to comply with the requirements of this Agreement in incorporating material or equipment into the Off-Premises Facilities or by reason of the Lessee’s failure to comply with the operations and maintenance instructions provided by such Contractor, the Lessee shall be responsible, at the Lessee’s sole cost and expense, for correcting any defects or deficiencies in the Off-Premises Facilities that would have been covered by such warranty had it not been voided. The Contractor warranties are in addition to all rights and remedies available to the Port Authority under this

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Agreement or Applicable Law, and shall not limit the Lessee’s liability or responsibility imposed by this Agreement, Applicable Standards or Applicable Law with respect to the D&C Work.
(2)    The Lessee shall be responsible for the rectification of all D&C Work that does not conform to the requirements of the Project Documents (“Nonconforming Work”), including, to the extent necessary, through removal and/or replacement, whether discovered by the Lessee or by the Port Authority. The Lessee shall prepare and submit for Port Authority approval a Corrective Action Plan meeting the requirements of Section 3.10 of the General Provisions (a “Corrective Action Plan”) developed by the Lessee with respect to any Nonconforming Work. The Lessee shall promptly implement the Corrective Action Plan approved by the Port Authority. If the Lessee fails, within thirty (30) days after receipt of written notice from the Port Authority of any Nonconforming Work, to provide a Corrective Action Plan acceptable to the Port Authority regarding correction of such Nonconforming Work or thereafter fails to commence and diligently continue correction of such Nonconforming Work pursuant to such Corrective Action Plan, the Port Authority may, without prejudice to any other remedy the Port Authority may have hereunder or under Applicable Law, correct the same or cause it to be corrected, and the cost thereof shall be payable to the Port Authority by the Lessee upon demand.
(3)    Without limiting or affecting any other term or provision of this Agreement, the Lessee shall be solely responsible for the design, adequacy and operation of any utility, mechanical, electrical, communications and other systems installed in the Premises by the Lessee as D&C Work and any other improvements, additions, fixtures, finishes, decorations and equipment made or installed by the Lessee in the Premises as D&C Work and shall do preventive maintenance and make such repairs, replacements, rebuilding (ordinary or extraordinary, structural or non-structural) and painting necessary to keep such systems, improvements, additions, fixtures, finishes, decorations and equipment (whether the same involves structural or non-structural work) in the condition they were in when made or installed except for reasonable wear which does not adversely affect the efficient or proper utilization of any part of the Premises.
jThird-Party Claims. The Lessee shall pay or cause to be paid all claims lawfully made against it by its Contractors and all claims lawfully made against it by other third persons arising out of or in connection with or because of the performance of the D&C Work, and shall cause its Contractors to pay all such claims lawfully made against them; provided, however, that nothing herein contained shall be construed to limit the right of the Lessee or any of its Contractors to contest any claim of a Contractor, or other person and no such claim shall be considered to be an obligation of the Lessee within the meaning of this Section 5(j) unless and until the same shall have been finally adjudicated. The Lessee shall diligently seek to resolve any such claims and shall keep the Port Authority fully informed of its actions with respect thereto. Nothing herein contained shall be deemed to constitute consent to the creation of any liens or claims against the Premises nor to create any rights in said third persons against the Port Authority or the Lessee.
kTitle to Improvements. Title to all the D&C Work shall pass to New York City as the same or any part thereof is erected, constructed or installed and the portion thereof representing the New Terminal Facilities shall be and become a part of the Premises hereunder.

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lLabor Harmony. In the performance of the D&C Work, the Lessee will not permit any situation or condition to arise or continue that causes any Labor Troubles at, or emanating from, the Premises which interferes with the operations (including any D&C Work) at the Premises. The determination of the Port Authority shall be conclusive on the Lessee and upon written notice from the Port Authority of the threat of any such Labor Troubles, the Lessee will (or will cause its Contractors to, as applicable) use all reasonable and diligent efforts to immediately rectify any condition causing or contributing to Labor Troubles as specified in such notice, but nothing in this Section 5(l) shall require the Lessee or its Contractors to waive any existing legal right. In the event of failure by the Lessee (or any of its Contractors, as applicable) to timely comply with the requirements of this Section 5(l), the Port Authority will have the right, by notice from the Port Authority to the Lessee, to suspend the Port Authority’s permission to the Lessee to proceed with the applicable portion of each specific construction project or, as applicable, of the D&C Work being performed by or on behalf of the Lessee and the Lessee will thereupon immediately cease the same. When Labor Troubles will be so settled that such interference or the threat of such interference no longer exists, the Port Authority by notice to the Lessee will reinstate the permission to the Lessee to perform the D&C Work on all the same terms and conditions as before the suspension.
mNo Third Party Beneficiary. Nothing contained in this Agreement shall grant or be deemed to grant any Contractor or any other person engaged by the Lessee or any of its Contractors in the performance of any part of the D&C Work any right of action or claim against the Port Authority, its Commissioners, officers, agents and employees with respect to any work any of them may do in connection with the D&C Work or otherwise. Nothing contained herein shall create or be deemed to create any relationship between the Port Authority and any such Contractor, or any other person engaged by the Lessee or any of its Contractors in the performance of any part of the D&C Work and the Port Authority shall not be responsible to any of the foregoing for any payments due or alleged to be due thereto for any work performed or materials purchased in connection with the D&C Work.
nAffirmative Action. Without limiting any of the terms and conditions of this Agreement, the Lessee understands and agrees that it shall put into effect prior to the commencement of any D&C Work an affirmative action program and Minority Business Enterprise (MBE) program and Women-owned Business Enterprise (WBE) program in accordance with the provisions of Exhibit 19 (Affirmative Action, Equal Opportunity, Minority Business Enterprise and Women-Owned Business Enterprise Requirements), attached hereto and hereby made a part hereof. The said Exhibit 19 (Affirmative Action, Equal Opportunity, Minority Business Enterprise and Women-Owned Business Enterprise Requirements) shall be applicable to the Lessee’s Contractors at any tier of construction and the Lessee shall include the provisions of said Exhibit 19 (Affirmative Action, Equal Opportunity, Minority Business Enterprise and Women-Owned Business Enterprise Requirements) within all of its construction Contracts so as to make said provisions and undertakings the direct obligation of all construction Contractors at any tier of construction. The Lessee shall, and shall require its Contractors to furnish to the Port Authority such data, including but not limited to, compliance reports relating to the operation and implementation of the affirmative action, MBE and WBE programs called for hereunder as the Port Authority may request at any time and from time to time regarding the affirmative action, MBE and WBE programs of the Lessee and its Contractors at any tier of construction, and the Lessee shall, and shall also require that its Contractors

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at any tier of construction to, make and put into effect such modifications and additions thereto as may be directed by the Port Authority pursuant to the provisions hereof and said Exhibit 19 (Affirmative Action, Equal Opportunity, Minority Business Enterprise and Women-Owned Business Enterprise Requirements) to effectuate the goals of the affirmative action, MBE and WBE programs.
oNon-Discrimination.
(1)    In addition to and without limiting any terms and provisions of this Agreement, the Lessee shall provide in its Contracts covering the D&C Work, or any portion thereof, that:
(i)    The Contractor shall not discriminate against employees or applicants for employment because of race, religion, color, national origin or sex, and shall undertake or continue existing programs of affirmative action to ensure that minority group persons are afforded equal employment opportunity without discrimination. Such programs shall include, but not be limited to, recruitment, employment, job assignment, promotion, upgrading, demotion, transfer, layoff, termination, rates of pay or other forms of compensation, and selections for training or retraining, including apprenticeships and on the job training;
(ii)    At the request of either the Port Authority or the Lessee, the Contractor shall request such employment agency, labor union or authorized representative of workers with which it has a collective bargaining or other agreement or understanding and which is involved in the performance of the contract with the Lessee to furnish a written statement that such employment agency, labor union or representative shall not discriminate because of race, religion, color, national origin or sex, and that such union or representative will cooperate in the implementation of the Contractor’s obligations hereunder; and
(iii)    The Contractor will state, in all solicitations or advertisements for employees placed by or on behalf of the Contractor in the performance of the Contract, that all qualified applicants will be afforded equal employment opportunity without discrimination because of race, religion, color, national origin or sex.
(2)    The Contractor will include the provisions of Section 5(o)(1) in every Contract or purchase order in such a manner that such provisions will be binding upon each Contractor or vendor as to its work in connection with the Contract.
(3)    Without limiting any of the foregoing provisions and in addition thereto and without limiting any other terms or provisions of this Agreement, the Lessee agrees that the Lessee shall, and shall require its Contractors to use good faith efforts to maximize the participation of local business enterprises (“LBEs”) in the D&C Work in accordance with the provisions of Exhibit 20 (Local Business Enterprise and Employment Opportunity) hereof. It is specifically understood and agreed that the requirements set forth herein for the participation of LBEs shall not alter, limit, diminish or modify any of the obligations under this Agreement including, without limitation the obligation to put into effect the affirmative action program and the MBE and WBE programs in accordance with the provisions above set forth and set forth in Exhibit 19

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(Affirmative Action, Equal Opportunity, Minority Business Enterprise and Women-Owned Business Enterprise Requirements) hereof.
pPort Authority Inspections; No Duty to Inspect.
(1)    The Port Authority shall have the right, through its duly designated representatives, to inspect the D&C Work and the plans and specifications thereof, at any and all times during the progress thereof and from time to time, in its discretion, to take samples and perform testing in any part of the D&C Work; provided, however, that the Port Authority shall coordinate and schedule with the Lessee so as to minimize any interference and delay in the D&C Work to the extent reasonably practicable.
(2)    It is hereby further understood and agreed that the Port Authority has no duty or obligation of any kind whatsoever to inspect or police the performance of the D&C Work by the Lessee, and the rights granted to the Port Authority hereunder shall not create or be deemed to create such a duty or obligation. Accordingly, the fact that the General Manager has not exercised the Port Authority’s right to require the Lessee to cease its construction of all or any part of the D&C Work shall not be or be deemed to be an agreement or acknowledgment on the part of the Port Authority that the Lessee has in fact performed such portion of the D&C Work in accordance with the terms of this Agreement or the Construction Application nor shall such fact be or be deemed to be a waiver by the Port Authority from the requirement of compliance by the Lessee with the provisions of this Agreement and the Construction Application with respect to the D&C Work.
qForecasts. Upon the request of the Port Authority from time to time, the Lessee shall submit to the Port Authority its forecasts of the number of people who will be working at various times during the period of construction and the term of the letting hereunder at the Premises, the expected utility demands, noise profiles and such other information as the Port Authority may require. The Lessee shall continue to submit its latest forecasts and such other information as may be required as aforesaid as the Port Authority shall from time to time and at any time request.
rNo Engineer Approval Authority. It is hereby expressly understood and agreed that neither the field engineer nor the Resident Engineer nor the General Manager has any authority to approve any plans and specifications of the Lessee with respect to the D&C Work, to approve the construction by the Lessee of any portion of the D&C Work or to agree to any variation by the Lessee from compliance with the terms of this Agreement, or the Construction Application or any Partial Approval with respect to the D&C Work. Notwithstanding the foregoing, should the field engineer or the Resident Engineer or the General Manager give any directions or approvals with respect to the Lessee’s performance of any portions of the D&C Work which are contrary to the provisions of this Agreement, the Construction Application or any Partial Approval, said directions or approvals shall not affect the obligations of the Lessee as set forth herein nor release or relieve the Lessee from the strict compliance therewith. It is hereby further understood and agreed that the Port Authority has no duty or obligation of any kind whatsoever to inspect or police the performance of the D&C Work by the Lessee and the rights granted to the Port Authority hereunder shall not create or be deemed to create such a duty or obligation. Accordingly, the fact that the field engineer, Resident Engineer or the General Manager has not exercised the Port

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Authority’s right to require the Lessee to cease its construction of all or any part of the D&C Work shall not be or be deemed to be an agreement or acknowledgment on the part of the Port Authority that the Lessee has in fact performed such portion of the D&C Work in accordance with the terms of this Agreement, the Construction Application or any Partial Approval nor shall such fact be or be deemed to be a waiver by the Port Authority from the requirement of strict compliance by the Lessee with the provisions of this Agreement, the Construction Application and any Partial Approval with respect to the D&C Work.
sRelocation of Utilities.
(1)    The Lessee understands that there may be communications and utility lines and conduits located on or under the site on which D&C Work is performed, which do not, and may not in the future, serve the Premises. The Lessee agrees, at its sole cost and expense, if directed by the Port Authority to do so (the Port Authority agreeing not to act unreasonably herewith) prior to the issuance by the Port Authority of the Completion Certificate, to relocate and reinstall such communications and utility lines and conduits as may be deemed necessary by the Port Authority in connection with the D&C Work, on the Premises or off the Premises as directed by the Port Authority, and to restore all affected areas (such work being hereinafter collectively called the “Relocation Work”). The Lessee shall perform the Relocation Work subject to and in accordance with all the terms and provisions of this Section 5(s), other provisions of this Agreement, the other Project Documents, Applicable Law and Applicable Standards, and the Relocation Work shall be and become a part of the D&C Work; it being understood, however, that the Relocation Work shall not be or become a part of the Premises hereunder; provided that communications and utility lines and conduits subject to Relocation Work that are located upon and exclusively serve the Premises shall be part of the Premises. Notwithstanding the foregoing or any other provision of this Agreement, the Parties agree that the Lessee shall not be required to relocate certain utilities in accordance with the applicable Tenant Alteration Application as approved by the Port Authority.
(2)    The Port Authority shall cooperate, as reasonably requested by the Lessee, and provide its reasonable assistance in good faith, in connection with the negotiation of any agreements for utility relocation with third parties owning utilities and the resolution of any disputes with such third parties; the costs incurred by the Port Authority in so cooperating with the Lessee shall be included in Port Authority Support Costs.
(3)    The Lessee understands that from time to time during any repair, maintenance, reconstruction, enlargement or replacement of the New Storm Water Drainage Trunk Line, the Lessee may be denied use of portions of the Premises and agrees that such denial of use will not be or be deemed to be grounds for diminution or abatement of rental hereunder or grounds for any claim by the Lessee against the Port Authority for damages sustained thereby or claims arising therefrom whether direct or consequential. Without limiting, and subject to, any other term or provision of this Agreement, it is hereby agreed that, as between the Port Authority and the Lessee, the Lessee shall be solely responsible for any loss or damage to the Existing Storm Water Drainage Trunk Line or the New Storm Water Drainage Trunk Line, and any loss or damage to the New Terminal Facilities, the Off-Premises Facilities or any other part of the Airport, in each case arising out of or in connection with the performance of the D&C Work, or arising out of any damage to

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the New Storm Water Drainage Trunk Line by any Lessee-Related Entity in the performance of the D&C Work or arising out of the use or operation of the New Terminal Facilities, and at the election of the Port Authority, the Lessee shall, at its sole cost and expense, repair, replace or rebuild the same; provided, that the Lessee shall only be obligated to replace or rebuild all or any portion of the New Storm Water Drainage Trunk Line if the Port Authority’s Chief Engineer has determined that such loss or damage cannot be rectified by repair.
tUtilities. The Lessee shall, at its sole cost and expense, and if and to the extent required, bring appropriate roadway access stubs and service lines for the supply of cold water, electric power, telephone communications, and sanitary and storm sewers (said service lines and sanitary and storm sewers being hereinafter collectively referred to as “utility service lines”) to such locations at the perimeter of the Premises or to the nearest manhole or to other locations off the Premises as the Port Authority, in consultation with the Lessee, shall determine. The Lessee at its sole cost and expense is hereby obligated to tie its utility lines and roadways into such locations at or near the perimeter of the Premises where such utility service lines and roadway access stubs will be brought by the Lessee hereunder.
uPartial Construction Commencement.
(1)    If the Lessee desires to commence construction of any portion of the D&C Work prior to the approval by the Port Authority of a complete Construction Application and plans and specifications covering all of such work, the Lessee shall submit to the Port Authority a separate Construction Application for each portion of the D&C Work the Lessee so desires to commence (each such portion of the Lessee’s D&C Work being hereinafter designated as “Partial Approval Work” and the Port Authority’s approval thereof, the “Partial Approval”), which shall be executed by an authorized officer of the Lessee and shall be accompanied by appropriate plans, specifications, drawings, and data with respect to such portion of the D&C Work (such plans, specifications, drawings, and data covering each such portion of the Lessee’s D&C Work are hereinafter referred to as the “Partial Approval Work Plans” with respect to such portion of the D&C Work) setting forth in reasonable detail the work to be performed in connection with each such portion of the D&C Work. The Port Authority shall use its discretion to determine whether to permit the Lessee to proceed with the performance of any Partial Approval Work. If the Port Authority consents to the performance of any Partial Approval Work, the Port Authority shall review the Construction Application covering such work and shall give its written approval or rejection of the Partial Approval Work Plans with respect thereto or shall request such revisions or modifications thereto as the Port Authority may find necessary, in all cases in accordance with the TCAP Manual.
(2)    Upon the Port Authority’s approval of the Construction Application covering an item of Partial Approval Work and its approval of the Partial Approval Work Plans with respect thereto, the Lessee may proceed to perform such item of Partial Approval Work subject to and in accordance with the following terms and conditions:
(i)    The performance by the Lessee of any item of Partial Approval Work in accordance with the Port Authority’s approval will be at its sole risk and if for any reason the plans and specifications for the balance of the D&C Work or, any part thereof, are not approved by the Port Authority (provided, that review by the Port Authority shall be consistent

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with the design assumptions of previously approved plans and specifications) or if the approval thereof calls for modifications or changes in any item of Partial Approval Work undertaken by the Lessee under any approval granted by the Port Authority pursuant to this Section 5(u), the Lessee will, as directed by the Port Authority, and at the Lessee’s sole cost and expense, either restore the area affected to the condition existing prior to the commencement of such item of Partial Approval Work or make such modifications and changes to such work as may be required by the Port Authority.
(ii)    Nothing contained in any approval given by the Port Authority pursuant to this Section 5(u) shall constitute a determination or indication by the Port Authority that the Lessee has complied with any laws, rules, orders, ordinances, enactments, resolutions, regulations, statutes, requirements, codes, directions, and executive orders including, but not limited to, those of the State of New York, Borough of Queens or City of New York, which may pertain to the Partial Approval Work to be performed.
(iii)    Each item of Partial Approval Work shall be performed in accordance with and subject to the terms and provisions of this Agreement covering the Lessee’s D&C Work and in accordance with the approved Construction Application covering such item of Partial Approval Work and in accordance with the approved Partial Approval Work Plans constituting a part of such Construction Application, and subject to any requirements, stipulations, and provisions which the Port Authority may impose in its approval of the performance of such item of Partial Approval Work.
(iv)    No Partial Approval Work performed by the Lessee pursuant to the provisions of this paragraph shall affect or limit the obligations of the Lessee with respect to the Lessee’s D&C Work or any prior approvals thereof.
(v)    The Lessee specifically understands that neither the Port Authority’s approval of any Construction Application and Partial Approval Work Plans covering any item of Partial Approval Work nor the performance by the Lessee of any item of Partial Approval Work pursuant to such approval shall obligate the Port Authority to approve the Construction Application and plans and specifications submitted by the Lessee for the balance of the Lessee’s D&C Work or shall create or be deemed to create any obligation on the part of the Port Authority to permit subsequent Partial Approval Work to be performed. Without limiting the generality of the provisions of this Section 5(u), it is specifically understood that the Port Authority may withhold its approval of a Construction Application and Partial Approval Work Plans covering any item of Partial Approval Work if the Port Authority determines that review of subsequent items of Partial Approval Work is required before the Port Authority can approve, reject, or comment upon such Partial Approval Work Plans.
(vi)    In the event that the Lessee shall at any time during the construction of any portion of the D&C Work under a Partial Approval granted by the Port Authority pursuant to this Section 5(u) fail, in the opinion of the General Manager of the Airport, to comply with any of the applicable provisions of this Agreement with respect to such D&C Work, the Construction Application or the Partial Approval covering the same, or be, in the opinion of the General Manager in breach of any of the provisions of this Agreement, the Construction Application or the Partial Approval covering the same, the Port Authority shall have the right, acting through

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said General Manager, (A) after providing written notice to the Lessee and (B) except in a situation involving an emergency or a life, health, security, safety or environmental hazard, following the expiration of the reasonable time period specified in such Port Authority’s notice for the Lessee to cure the breach or the non-conforming work, to request the Lessee to cease all or such part of the D&C Work as is being performed in violation of this Agreement, the Construction Application or the Partial Approval. Upon such written direction from the General Manager, the Lessee shall promptly cease construction of the portion of the D&C Work specified. The Lessee shall thereupon submit to the Port Authority for its written approval the Lessee’s proposal for making modifications, corrections or changes in or to the D&C Work that has been or is to be performed so that the same will comply with the provisions of this Agreement, the Construction Application and the Partial Approval covering the applicable portion of the D&C Work. The Lessee shall not commence construction of the portion of the D&C Work that has been halted until such written approval has been received. Nothing in this Section 5(u)(2)(vi) is intended to limit or derogate from the Port Authority’s rights under Section 5(i)(2) with respect to the Port Authority’s right to correct the Nonconforming Work and the Lessee’s obligation to prepare the Corrective Action Plan as set forth in such section.
(vii)    Without limiting the discretion of the Port Authority hereunder, the Port Authority hereby specifically advises the Lessee that even if the Port Authority hereafter in the exercise of its discretion wishes to grant Partial Approvals under this Section 5(u), it may be unable to do so, so as to permit the Lessee to continue work without interruption following its completion of the work covered by any prior Partial Approval hereunder. The Lessee hereby acknowledges that if it commences work pursuant to this Section 5(u), it shall do so with full knowledge that there may not be continuity by it in the performance of its D&C Work under the procedures of this Section 5(u).
(viii)    No prior approval of any work in connection with the D&C Work shall create or be deemed to create any obligation on the part of the Port Authority to permit subsequent work to be performed in connection with such D&C Work prior to the approval by the Port Authority of the Lessee’s complete plans and specifications thereof. It is understood that no such prior approval shall release or relieve the Lessee from its obligation to submit complete plans and specifications for the D&C Work and to obtain the Port Authority’s approval of the same as set forth in Section 5(v) hereof. It is further understood that in the event the Lessee elects not to continue to seek a further Partial Approval pursuant to this Section 5(u), the obligations of the Lessee to restore the area and to make modifications and changes as set forth in Section 5(u)(2)(i) above shall be suspended until the Lessee’s submission of its complete plans and specifications.
vCompletion of the D&C Work.
(1)    Completion of the D&C Work.
(i)    The Lessee shall, subject only to the provisions of Section 71(b), complete the D&C Work (other than punch-list items approved by the Port Authority) by no later than the date that is eighteen (18) months after the Scheduled Completion Date (as such date

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may be adjusted from time to time only as expressly permitted under this Agreement, the “Outside Completion Date”).
(ii)    When all the D&C Work is substantially completed and ready for use, including as evidenced by the issuance by the Port Authority of a “Temporary Certificate of Authorization to Occupy or Use” for each Installation Portion and Partial Occupancy Portion of the D&C Work pursuant to Section 5(v)(2) below, the Lessee shall advise the Port Authority to such effect and shall deliver to the Port Authority a certificate by an authorized officer of the Lessee and the Lessee’s architect or engineer certifying that the requirements of this Section 5(v)(1) have been met and that the D&C Work has been constructed in accordance with the Project Documents, approved plans and specifications and the provisions of this Agreement and in compliance with all Applicable Laws and Applicable Standards (including installation, commissioning and activation of all equipment and systems required to be installed, commissioned and activated by the Lessee in accordance with this Agreement and the Comprehensive Plan).
(iii)    Without limiting the generality of the foregoing, the Lessee shall have satisfied (x) all of the applicable conditions set forth in the TCAP Manual with respect to all of the D&C Work and (y) the following conditions:
(a)    (1) all certifications for mechanical, electrical, electronics and other systems that are essential to the operation, functionality and safety of the Operations and Maintenance Work of the New Terminal Facilities shall have been received; and (2) all inspection reports for such systems shall have been made; in each case in accordance with the requirements of the Project Documents, Applicable Law and Applicable Standards;
(b)    the Lessee shall have certified that the Lessee has received, and paid all associated fees due and owing for, all applicable Governmental Approvals required for performing Operations and Maintenance Work of the New Terminal Facilities, and shall have provided accurate and complete copies thereof to the Port Authority, such Governmental Approvals shall be in full force and effect, and there shall exist no uncured violation of the terms and conditions of any such Governmental Approval;
(c)    all plans and manuals for mechanical, electrical, electronics and other systems that are essential to the operation, functionality and safety of the Operations and Maintenance Work of the New Terminal Facilities and are required in accordance with the Project Documents, Applicable Law or Applicable Standards shall have been submitted and, if required under the Project Documents, Applicable Law or Applicable Standards, shall have received Port Authority approval;
(d)    all other submittals required by the Project Documents, Applicable Law or Applicable Standards to have been provided by the Lessee prior to or on the Completion Date shall have been submitted and, if required under this Agreement, the Project Documents, Applicable Law or Applicable Standards, shall have been approved by the Port Authority; and

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(e)    the Lessee shall have prepared, in consultation with the Port Authority (including with respect to the Port Authority’s right to add or remove items to or from the punch list in its discretion), the punch list in respect of the D&C Work, and such punch list shall have received Port Authority approval.
(iv)    Following delivery of the above referenced certificate to the Port Authority, the D&C Work will be inspected by the Port Authority (and the Lessee shall be required to cooperate and coordinate with the Port Authority to facilitate such inspection and allow the Port Authority to perform an audit review of all compliance-related documents in accordance with the TCAP Manual), and if the same has been completed as certified by the Lessee and the Lessee’s architect or engineer, and the Lessee has complied, in all respects, with the requirements of this Agreement, the other Project Documents, Applicable Standards and Applicable Law, a certificate to such effect shall be issued to the Lessee by the Port Authority (as so issued by the Port Authority, the “Completion Certificate”); provided, that, (A) except as otherwise set forth expressly in this Agreement, all risks thereafter with respect to the construction and installation of the New Terminal Facilities and any liability therefor for negligence, defects, deficiencies or other reason shall be borne by the Lessee and (B) the Lessee shall promptly thereafter transfer custody and control of the Off-Premises Facilities to the Port Authority.
(v)    Subject to Section 5(v)(2) below, the Lessee shall not use or permit the use of the D&C Work with respect to the New Terminal Facilities or any portion thereof for the purposes set forth in this Agreement until such Completion Certificate is received from the Port Authority, and the Lessee shall not use or permit the use of such D&C Work or any portion thereof even if such Completion Certificate is received if such Completion Certificate provides that the same cannot be used until certain specified portions are completed to a specified level or other conditions as specified therein are satisfied.
(vi)    The date specified in the Completion Certificate shall be referred to in this Agreement as the “Completion Date” and shall be the date on which substantial completion of the D&C Work (i.e., completion of all D&C Work other than punch list items approved by the Port Authority) has been achieved and DBO with respect to the New Terminal Facilities and Off-Premises Facilities has occurred.
(vii)    Following the Completion Date, the Lessee shall promptly proceed to complete all outstanding punch list items for the D&C Work and submit to the Port Authority a “Request for Final Inspection” in accordance with the TCAP Manual. Following (A) a final inspection by the Port Authority of the D&C Work under the TCAP Manual, (B) confirmation by the Port Authority that all outstanding punch list items for the D&C Work have been completed and (C) the submission of all required documentation by the Lessee to the Port Authority and the approval thereof by the Port Authority where such approval is required in accordance with the Project Documents, Applicable Law or Applicable Standards, the Port Authority shall promptly issue a “Final Certificate of Authorization to Occupy or Use” under the TCAP Manual.
(2)    Partial Completion.

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(i)    Notwithstanding the provisions of, and without affecting the obligations of the Lessee under, Section 5(v)(1) above to achieve the Completion Date with respect to the entire D&C Work, when a material portion of the D&C Work is substantially completed or is properly usable for the purposes set forth in Section 8 (Use of Premises) (any portion of the D&C Work relating to an Installation or a portion thereof, hereinafter called an “Installation Portion,” and any portion of the D&C Work relating to the New Terminal Facilities, hereinafter called a “Partial Occupancy Portion”), the Lessee may advise the Port Authority to such effect and may deliver to the Port Authority: (A) a certificate signed by an authorized officer of the Lessee certifying that the requirements of this Section 5(v)(2) have been met and that the Installation Portion or the Partial Occupancy Portion, as applicable, has been constructed, in all respects, in accordance with all approved plans and specifications and the provisions of the Project Documents and all Applicable Law and Applicable Standards (including installation, commissioning and activation of all equipment and systems required to be installed, commissioned and activated by the Lessee in accordance with this Agreement and the Comprehensive Plan); (B) a certificate signed and sealed on behalf of the Architect of Record by a New York State licensed architect on its staff certifying that the approved plans and specifications relating to such Installation Portion or Partial Occupancy Portion, as applicable, are in compliance, in all respects, with the Project Documents, Applicable Law and Applicable Standards and; and (C) a certificate signed and sealed on behalf of the Engineer of Record by a New York State licensed engineer on its staff certifying that such Installation Portion or Partial Occupancy Portion, as applicable, has been constructed, in all respects, in accordance with the Project Documents, Applicable Law and Applicable Standards. The Lessee shall also certify that such Installation Portion or Partial Occupancy Portion, as applicable, can be properly used without interfering with the completion of the remaining D&C Work. Without limiting the generality of the foregoing, the Lessee shall have satisfied all of the applicable conditions set forth in the TCAP Manual and the conditions set forth in Section 5(v)(1)(iii) above but solely with respect to the Installation Portion or the Partial Occupancy Portion.
(ii)    Following delivery of the above referenced certificates to the Port Authority, the Port Authority may inspect the Installation Portion or Partial Occupancy Portion and perform an audit review of all compliance-related documents in accordance with the TCAP Manual, and the Lessee shall be required to cooperate and coordinate with the Port Authority to facilitate such inspection and allow such audit review. The Port Authority in its discretion may issue a “Temporary Certificate of Authorization to Occupy or Use” in accordance with the TCAP Manual with respect to solely the Installation Portion or Partial Occupancy Portion, as applicable; provided, that, (A) all risks thereafter with respect to the construction and installation of the Partial Occupancy Portion and any liability therefor for negligence or other reason shall be borne by the Lessee, (B) the Lessee shall thereafter promptly transfer custody and control of any Installation Portion to the Port Authority, (C) the Lessee shall not use or permit the use of any Partial Occupancy Portion until a “Temporary Certificate of Authorization to Occupy or Use” is received from the Port Authority, and the Lessee shall not use or permit the use of such Partial Occupancy Portion or any portion thereof even if such “Temporary Certificate of Authorization to Occupy or Use” is received if the certificate provides that the applicable portion of the D&C Work cannot be used until other specified portions are completed to a specified level or other conditions as specified therein are satisfied and (D) the foregoing is subject to the Lessee’s risks as set forth above in Section 5(u)

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relating to Partial Approval Work in the event that the Port Authority shall not then have approved the complete plans and specifications for the D&C Work.
(iii)    The effective date specified in the “Temporary Certificate of Authorization to Occupy or Use” under the TCAP Manual with respect to an Installation Portion or a Partial Occupancy Portion shall be the date on which substantial completion of such portion (i.e., completion of all D&C Work relating to such portion, other than punch list items approved by the Port Authority) has been achieved and DBO with respect to such portion has occurred. Following such effective date with respect to an Installation Portion or a Partial Occupancy Portion, the Lessee shall promptly proceed to complete all punch list items for such Installation Portion or Partial Occupancy Portion as set forth in, and in accordance with, the TCAP Manual.
wLease Controls. The Lessee shall comply with all the terms and provisions of the approved Construction Application. In the event of any inconsistency between the terms of any Construction Application and the terms of this Agreement, the terms of this Agreement shall prevail and control, unless the Port Authority has expressly conditioned the approval of the Construction Application on conditions that supersede, or are additional to, the provisions of this Agreement, provided that such conditions are consistent with, and do not materially alter, the Lessee’s rights and obligations under this Agreement or the Lessee agrees to such conditions.
x“As-Built” Drawings. The Lessee agrees that it shall deliver to the Port Authority two (2) sets of “as built” drawings of the D&C Work in an electronic CADD data file in a format to be designated by the Port Authority, all of which shall conform to the specifications of the Port Authority (the receipt of a copy of said specifications prior to the execution of this Agreement being hereby acknowledged by the Lessee), together with two (2) complete hard copies of such drawings, all engineering reports, engineering analysis, boring logs, survey information and engineering design calculations and operation and maintenance manuals in a comprehensive, coordinated package. The Lessee shall during the Term of this Agreement keep said drawings and said data file current showing thereon any changes or modifications which may be made. No changes or modifications shall be made without prior Port Authority consent.
yCooperation.
(1)    The Lessee and the Port Authority agree to cooperate with each other, and to exercise reasonable efforts to cause their respective contractors to cooperate with each other, in connection with the D&C Work and any other construction or redevelopment activities at the Airport authorized by the Port Authority and to identify and coordinate their efforts and interfere as little as possible with each other’s design and construction activities being undertaken with respect to the D&C Work and any other construction or redevelopment activities at the Airport authorized by the Port Authority.
(2)    The Lessee and the Port Authority each acknowledges the execution and delivery by it of the Construction Coordination Agreement.
zAirline Co-Locations. The Parties shall work expeditiously, and cooperate in good faith with American Airlines, Inc. and JetBlue Airways Corporation, to execute an agreement

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mutually agreeable to all parties by the end of Calendar Year 2017 that sets forth the agreed co-location arrangements, including timing for co-location maneuvers and activities, and allocation among the parties of the costs associated with such arrangements.
aaParking. As of the Effective Date, the Lessee has proposed in writing, and the Port Authority has approved in its discretion, taking into account interests of the entire Airport, the Comprehensive Parking and Traffic Plan, that identifies and implements replacement temporary and permanent parking needs and solutions, which support the New Airport Design Guidelines and the Comprehensive Plan, and a related traffic management plan during all phases of the D&C Work approved by the Port Authority. The Parties acknowledge that certain parking facilities will be made available at the times set forth in the Comprehensive Parking and Traffic Plan and until such facilities are made available, the substitute parking may be provided as set forth in such plan.
bb.    Shared Taxilanes; Aircraft Start-Up Positions. Within 270 days following the Effective Date, the Port Authority and the Lessee shall agree to comprehensive plans addressing the control and use of shared taxilanes and aircraft start-up positions during the D&C Work Period and during the Term.
cc.    D&C Work Changes.
(1)Port Authority Changes.
(i)    The Port Authority shall have the right from time to time during the D&C Work Period to effectuate changes in the design and in the construction of the D&C Work, to substitute materials and methods and to order extra work that the Port Authority, in its discretion, deems necessary or appropriate (the “Port Authority Changes”); provided, that the Lessee may, within thirty (30) days from the receipt of a proposed Port Authority Change, reject any Port Authority Change or any portion thereof if the Lessee can reasonably demonstrate, to the Port Authority’s satisfaction, that such Port Authority Change or a portion thereof would result in (x) a material delay to the achievement by the Lessee of DBO with respect to any applicable phase of the D&C Work (relative to the applicable then scheduled DBO) or the Completion Date (relative to the Scheduled Completion Date), or (y) a material adverse change to the functionality of the immediate and adjacent areas of the New Terminal Facilities affected by the Port Authority Change, provided, that the Lessee shall consider in good faith alternatives proposed by the Port Authority that would mitigate the impact of the proposed Port Authority Change on the functionality of such areas.
(ii)    As soon as practicable but in no event later than thirty (30) days after the receipt of the Port Authority request, the Lessee shall prepare and submit to the Port Authority for the Port Authority’s approval a proposed change order covering the requested Port Authority Change (the “Change Order Proposal”). The Change Order Proposal shall set forth, as applicable, the estimated incremental costs (including applicable soft costs) of (A) the Lessee during the D&C Work Period, including any applicable adjustments to the Baseline Schedule and/or the Payment and Milestone Schedule, (B) the Lessee’s performance of the Operations and Maintenance

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Work; in each case for (A) and (B), that are directly associated with the requested Port Authority Change, and (C) any other relevant information related to the requested Port Authority Change.
(iii)As soon as practicable after the Port Authority receives a complete and sufficiently substantiated Change Order Proposal from the Lessee, the Port Authority and the Lessee shall meet to discuss the terms thereof, following which the Lessee may revise its Change Order Proposal within ten (10) days after the meeting. The Port Authority shall provide its approval or disapproval of the Change Order Proposal within thirty (30) days after the later of (A) the meeting between the Port Authority and the Lessee, or (B) if a complete and sufficiently substantiated revised Change Order Proposal was provided by the Lessee, the receipt thereof by the Port Authority; provided, that if the Port Authority believes it requires additional time to review the Change Order Proposal, the Port Authority may notify the Lessee thereof within the applicable thirty (30)-day period and the Port Authority shall issue a response to the Lessee within the time period specified in such notice, not to exceed an additional ten (10) days. If the Port Authority does not respond within the applicable time period, the proposed Port Authority Change shall be deemed withdrawn. If the Port Authority approves the Change Order Proposal, the Port Authority and the Lessee shall enter into a change order setting forth the agreed terms (including the payment terms) with respect to the respective Port Authority Change, which change order will become a part of the Construction Application, and the Lessee shall design and make such Port Authority Change. If applicable, the Scheduled Completion Date shall be extended to a new date reflected in the approved change order.
(iv)The Lessee shall be entitled to claim reimbursement from the Port Authority for any actual and reasonable incremental costs (including applicable soft costs) incurred by the Lessee during the D&C Work Period and/or in the performance of the Operations and Maintenance Work, in each case that are directly associated with the impacts of any Port Authority Change; provided, that the Lessee incurred such costs notwithstanding the exercise by the Lessee of its efforts to mitigate such impacts in accordance with Best Management Practice.
(v)The Port Authority may also propose, during the D&C Work Period, a Port Authority Change that removes from the Lessee’s scope of the D&C Work a substantial portion of any of the Off-Premises Facilities, and the Parties shall follow the process set forth above in this Section 5(cc)(1) to implement such deductive Port Authority Change and agree to a change order, which will set forth, among other things, appropriate adjustments to the D&C Milestone Payments specified in the Payment and Milestone Schedule. If applicable, the Scheduled Completion Date shall be extended to a new date reflected in the approved change order. Deductive Port Authority Changes shall be subject to the Lessee’s right to reject certain Port Authority Changes or portions thereof as set forth in Section 5(cc)(1)(i), and Lessee shall also be permitted to reject a deductive Port Authority Change or any portion thereof if the Lessee can reasonably demonstrate, to the Port Authority’s satisfaction, that such deductive Port Authority Change or a portion thereof would have a material adverse effect on the Lessee’s use and operation of the Existing Terminal Facilities or the New Terminal Facilities. In addition to the foregoing, the Port Authority shall consult with the Lessee prior to proposing any such deductive Port Authority Change that could materially impact the design of the affected Off-Premises Facilities.

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(vi)If the Parties are unable to reach an agreement on a proposed Port Authority Change (other than a Port Authority Change that the Lessee has rejected pursuant to Section 5(cc)(1)(i) above), the Port Authority may, in its sole discretion, direct the Lessee in writing to proceed with the implementation of the Port Authority Change and the Lessee shall perform the work in question as so directed and will be entitled to claim reimbursement from the Port Authority for any actual and reasonable incremental costs (including applicable soft costs) incurred by the Lessee during the D&C Work Period and/or in the performance of the Operations and Maintenance Work, in each case that are directly associated with the impacts of any directed Port Authority Change; provided, that the Lessee incurred such costs notwithstanding the exercise by the Lessee of its efforts to mitigate such impacts in accordance with Best Management Practice.
(vii)Rules and Regulations Changes; Changes to the New Airport Design Guidelines and the Requirements and Provisions for Work. The Lessee shall at all times comply with all Rules and Regulations (including Rules and Regulations Changes), the New Airport Design Guidelines and the Requirements and Provisions for Work and any changes thereto, in addition to the other Project Documents, Applicable Law and Applicable Standards. However, if, during the D&C Work Period, the Port Authority issues or publishes any Rules and Regulations Change or any change to the Requirements and Provisions for Work or informs the Lessee of any change to the New Airport Design Guidelines, which, in each case, takes effect after the Effective Date and materially adversely impacts the Lessee’s cost of performing the D&C Work or the Operations and Maintenance Work or causes a material delay in the Lessee’s performance of the D&C Work (such a change, subject to the provisos set forth below in this Section 5(cc)(1)(vii), a “Qualifying D&C Change”), the Lessee shall be entitled to claim reimbursement from the Port Authority for any actual and reasonable incremental costs (including applicable soft costs) incurred by the Lessee during the D&C Work Period and/or in the performance of the Operations and Maintenance Work, in each case that are directly associated with the impacts of the Qualifying D&C Change; provided, that the Lessee incurred such costs notwithstanding the exercise by the Lessee of its efforts to mitigate such impacts in accordance with Best Management Practice; and provided, further, that any Qualifying D&C Change shall not include any Rules and Regulations Change, which is (A) issued or promulgated by the Port Authority in order to comply with or implement any Code Change or any federal or state Applicable Law (whether existing or new), or any change, amendment, supplement thereto, (B) based upon a Port Authority direction as provided in Sections 5(dd) and 11 (Federal Regulation of Airports) and/or (C) issued or promulgated by the Port Authority in order to address an emergency or any life, health, security, safety, environmental or operational deficiency or hazard. Any Qualifying D&C Change shall be deemed a Port Authority Change and the Parties shall follow the process set forth in Section 5(cc)(1)(ii) through (iv) to implement such Port Authority Change. If applicable, the Scheduled Completion Date shall be extended to a new date reflected in the approved change order.
(2)Lessee Changes.
(i)The Lessee may propose to the Port Authority during the D&C Work Period, for the Port Authority’s approval, (A) with respect to the New Terminal Facilities, a change in the D&C Work that increases or reduces the scope, function or intent of, such D&C Work as described in the Project Documents, or changes the requirements of, or the Parties’ rights and/

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or obligations set forth in, the Project Documents, or that is required to conform the D&C Work to Applicable Law or Applicable Standards; (B) with respect to the Off-Premises Facilities, a change in the D&C Work that is required to conform the D&C Work to Applicable Law or Applicable Standards; or (C) a variance from the Rules and Regulations, the requirements of the New Airport Design Guidelines or the Requirements and Provisions for Work, in each case, with respect to the D&C Work but excluding any proposed variance that is related to a Value Engineering Lessee Change (such change, a “Lessee Change”).
(ii)As soon as practicable after the Port Authority receives the proposed Lessee Change, the Port Authority and the Lessee shall meet and discuss the matters referred to therein. The Port Authority may request additional information from the Lessee to enable it to fully evaluate the proposed Lessee Change, propose modification to, or approve or reject the Lessee Change in the Port Authority’s sole discretion; provided that the Port Authority shall not reject the Lessee Changes required to conform the D&C Work to Applicable Law or Applicable Standards. Following such discussions and receipt of any additional information the Port Authority has requested, the Port Authority shall issue a response to the Lessee as soon as practicable. If the Port Authority rejects any Lessee Change, subject only to the proviso set forth in this Section 5(cc)(2)(ii) above, such rejection shall not be subject to challenge by the Lessee. If the Port Authority approves the Lessee Change, the Lessee shall prepare and submit to the Port Authority for its approval a proposed change order covering the approved Lessee Change. If the Port Authority approves the proposed change order, the Port Authority and the Lessee shall enter into a change order, which will become a part of the Construction Application and the Lessee shall design and/or make such Lessee Changes at the Lessee’s sole cost and expense. If applicable, the Scheduled Completion Date shall be extended to a new date reflected in the approved change order.
(iii)Value Engineering Lessee Changes. The Lessee may also propose to the Port Authority, during the D&C Work Period, certain changes in the D&C Work that represent value engineering modifications to the scope of the D&C Work (the “Value Engineering Lessee Changes”) and will provide to the Port Authority such data, metrics and/or modeling results that support the Lessee’s rationale for the proposed Value Engineering Lessee Changes. The Port Authority shall consider all reasonable Value Engineering Lessee Changes and may approve or disapprove such Value Engineering Lessee Changes in its sole discretion; provided that the Port Authority shall accommodate such Value Engineering Lessee Changes that (A) do not materially affect the functionality, operability, safety or security of the New Terminal Facilities or the other parts of the Airport, and (B) are generally consistent with the intent of the New Airport Design Guidelines. As soon as practicable after the Port Authority receives the proposed Value Engineering Lessee Change, the Port Authority and the Lessee shall meet and discuss the matters referred to therein. The Port Authority may request additional information from the Lessee to enable it to fully evaluate the proposed Value Engineering Lessee Change or propose modifications thereto. Following such discussions and receipt of any additional information the Port Authority has requested, the Port Authority shall issue a response to the Lessee as soon as practicable. If the Port Authority rejects any Value Engineering Lessee Change, subject only to the proviso above in this Section 5(cc)(2)(iii), such rejection shall not be subject to challenge by the Lessee. If the Port Authority approves the Value Engineering Lessee Change, the Lessee shall prepare and submit to the Port Authority for its approval a proposed change order covering the approved Value Engineering

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Lessee Change. If the Port Authority approves the proposed change order, the Port Authority and the Lessee shall enter into a change order, which will become a part of the Construction Application and the Lessee shall design and/or make such Value Engineering Lessee Changes at the Lessee’s sole cost and expense. If applicable, the Scheduled Completion Date shall be extended to a new date reflected in the approved change order. For the avoidance of doubt, solely the provisions of this Section 5(cc)(2)(iii) apply with respect to Value Engineering Lessee Changes and the other provisions of Section 5(cc) shall not apply.
dd.    Compliance Directives. In performing the D&C Work, the Lessee shall promptly comply, at the Lessee’s cost and expense, with any direction issued by the Port Authority (including any bulletin, directive or other official instruction issued by the General Manager of the Airport) to (i) remedy any emergency or life, health, security, safety, environmental or operational deficiency or hazard, or (ii) cause the Lessee to comply with any Applicable Law, Applicable Standard, the Exclusive Area Agreement, the Airport Security Program or any TSA-issued security directives, information circulars and public advisories which the Lessee has failed to comply with (but nothing in this Section 5(dd) shall preclude, expand or otherwise limit the Lessee's right to seek reimbursement of certain costs as provided for in Section 5(cc)(1)(vii) for Qualifying D&C Changes).
ee.    Project Documents; Order of Precedence.
(1)In the event of any conflict, ambiguity or inconsistency between any terms or provisions of this Agreement, the order of precedence, from highest to lowest, shall, except as provided otherwise in the other provisions of this Section 5(ee), be as follows:
(i)    the main body of this Agreement;
(ii)    Exhibits to this Agreement; and
(iii)    Reference Documents.
(2)In the event of any conflict, ambiguity or inconsistency between the General Provisions, the Applicable Standards and/or the Requirements and Provisions for Work (excluding the General Provisions), the order of precedence, from highest to lowest, shall, except as provided otherwise in this Section 5(ee), be as follows:
(i)    General Provisions;
(ii)    the Requirements and Provisions for Work (excluding the General Provisions); and
(iii)    the Applicable Standards.
(3)If any portion of the Applicable Standards conflicts with or is less stringent than Applicable Laws, such conflicting or less stringent portions of Applicable Standards shall not be deemed “applicable.” If any of the Applicable Standards (other than a Rule and Regulation) conflicts with or is less stringent than a Rule and Regulation, such Rule and Regulation

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will prevail. If any of the provisions of this Agreement conflicts or is inconsistent with any Rule and Regulation, such provision of this Agreement will prevail; provided, that with respect to any conflict or inconsistency directly bearing on public health, welfare or safety, the applicable Rule and Regulation will prevail (subject to the provisions of this Agreement concerning Qualifying D&C Changes).
(4)In the event of any conflict, ambiguity or inconsistency between or among any of the provisions in this Agreement, or between two (2) or more Project Documents having the same order of precedence, the standard more stringent to the Lessee will prevail.
(5)Additional or supplemental details or requirements in a lower priority Project Document shall be given effect except to the extent they irreconcilably conflict with requirements, provisions and practices contained in the higher priority Project Document.
(6)Notwithstanding the order of precedence among Project Documents set forth in this Section 5(ee), in the event of a dispute arising from a conflict between the Design and Construction Requirements and the Applicable Standards, or any dispute arising out of clause (4) above with respect to a technical or engineering matter that is governed by or based upon the Applicable Standards or any of the Reference Documents, the provisions of Section 101 (Chief Engineer’s Jurisdiction) shall apply.
Section 6.    Port Authority D&C Payments.
(a)Payment and Milestone Schedule and Payment Procedures.
(1)    As of the Effective Date, the Lessee and the Port Authority have developed and mutually agreed to a payment and milestone schedule attached hereto as Exhibit 13 (Payment and Milestone Schedule) (the “Payment and Milestone Schedule”) that sets forth (i) design and construction milestones with respect to the D&C Work for which D&C Milestone Payments are required to be made by the Port Authority under this Agreement (each, a “Milestone”) and (ii) fixed amounts corresponding to each of the Milestones (the “D&C Milestone Payments”). The Payment and Milestone Schedule may be revised or updated from time to time upon the mutual agreement of the Lessee and the Port Authority.
(2)    The D&C Milestone Payments shall consist of the following:
(i)    a total sum of Two Hundred Million Dollars and No Cents ($200,000,000.00) for the costs of the D&C Work pertaining solely to the New Terminal Facilities and the Port Authority Support Costs related thereto, in each case as set forth in the Payment and Milestone Schedule; and
(ii)    a total sum of Four Hundred Million Dollars and No Cents ($400,000,000.00) for the costs of the D&C Work pertaining to the Off-Premises Facilities described in Section 5 (Design and Construction by the Lessee) and the “D&C Work Scope Document”, and the Port Authority Support Costs related thereto, in each case as set forth in the Payment and Milestone Schedule.
(3)    Subject to any adjustment to the Payment and Milestone Schedule pursuant to Section 5(cc)(1)(v), the entire obligation of the Port Authority under this Agreement for the cost of the D&C Work shall not exceed a total sum of Six Hundred Million Dollars and No Cents ($600,000,000.00) (subject to the Port Authority’s right to offset the Port Authority Support Costs from such amount) and shall be limited to the allocation of said sum as set forth in Section 6(a)(2) above. Except as otherwise provided expressly in this Agreement and other than the incurrence of Port Authority Support Costs, the Port Authority shall have no other obligation or liability with respect to the cost of the D&C Work, and the Lessee shall be responsible for all increases to costs for the D&C Work and any reduction in revenues resulting from any failure of performance of the D&C Work; provided, that nothing in this Section 6(a)(3) shall be construed to limit the Lessee’s remedies at law or the Port Authority’s liability to the Lessee, pursuant to a final, non-appealable decision by a court of competent jurisdiction, resulting from a breach or default by the Port Authority hereunder.
(4)    As part of the Port Authority’s ongoing assessment of the capital needs of the Airport, the Port Authority commits to make one or more investments in the aggregate amount of no less than Three Hundred Fifty Million Dollars ($350,000,000) at the Airport that would provide benefit to the users of the New Terminal Facilities. The investments are expected to take place between 2027 and the Expiration Date, and would be made as capital expenses are incurred. The Port Authority will consult with the Lessee on potential capital investments, and will review proposals and plans submitted with respect to the capital investment needs of the New Terminal Facilities. The Lessee hereby acknowledges and agrees that any investments at the Airport by the Port Authority will be subject to prior authorization by the Board of Commissioners of the Port Authority. Absent such authorization, the foregoing shall not constitute any obligation on the part of the Port Authority to make any such investments, and shall not form the basis for a cause of action against the Port Authority to compel such investments. Without limiting the Port Authority’s discretion to expend the contemplated investments described in this paragraph (4) in any way, the Parties agree that any investment by the Port Authority pursuant to this paragraph (4) on the New Terminal Facilities shall be made solely on components of the New Terminal Facilities that have an anticipated economic useful life (as of the date(s) on which such components are placed in service) at least equal to 125% of the (then remaining) Term, as determined by Lessee (with the consent of the Applicable Issuer, which such consent shall not be unreasonably withheld), unless otherwise agreed by Lessee.
(b)Requisition Request Requirements.
(1)    When the Lessee wishes to requisition a D&C Milestone Payment from the Port Authority for the achievement by the Lessee of the corresponding Milestone, the Lessee shall deliver to the Port Authority (in any event no more frequently than one time per calendar month), a certificate which shall be signed by a responsible fiscal officer of the Lessee, sworn to before a notary public, and shall set forth the items specified in this Section 6(b).
(2)    Each certificate shall set forth all due and payable amounts included by the Lessee in previous certificates against which a D&C Milestone Payment has been made by the Port Authority to the Lessee.
(3)    Each such certificate shall also certify that: (i) the Milestone for which payment is requested has been achieved; (ii) each portion of the D&C Work covered by said certificate has been performed in accordance with the terms of this Agreement and the other Project Documents, Applicable Law and Applicable Standards and (iii) the Premises, any interests and estates therein and all improvements and materials placed thereon, for which the payment has been received by the Lessee, are free and clear of any and all Liens and claims arising out of or in connection with the performance of the D&C Work, except for Permitted Liens.
(4)    The Lessee shall also deliver concurrently with such certification a copy of a release and waiver of Liens, in the forms attached hereto as Exhibit 14-1 (Form of Contractor’s Conditional Lien Waiver) and Exhibit 14-2 (Form of Contractor’s Unconditional Lien Waiver), as applicable, from each Contractor employed by the Lessee with a contract of Five Hundred Thousand Dollars ($500,000) or more in value, individually or in the aggregate, or, if the Lessee is unable to obtain any such waiver, a letter of credit or bond that has received the approval of the Port Authority to protect the Port Authority, the D&C Work and the Premises from any and all related claims or Liens.
(c)Payment Procedures.
(1)    Within thirty (30) days after the delivery of duly submitted certificates by the Lessee, as aforesaid, the Port Authority shall, subject to the other provisions of this Section 6(c), pay to the Lessee the undisputed portions of the D&C Milestone Payment indicated in the Payment and Milestone Schedule corresponding to the relevant Milestone, subject to the Port Authority’s right to offset the portion of the Port Authority Support Costs indicated in the Payment and Milestone Schedule corresponding to the relevant Milestone; provided, however, if (i) a notice of termination has been delivered to the Lessee in accordance with this Agreement, (ii) the Lessee is in default under any term or provision hereof with respect to the D&C Work or the Lessee’s obligation relating thereto, which default continues beyond any applicable cure period, or (iii) the Lessee has failed to achieve the Milestone for which payment is requested, the Port Authority shall have the right, in its discretion, to withhold the payment of any D&C Milestone Payment (or a portion thereof) to the Lessee and; provided, further, no payment or withholding of a D&C Milestone Payment shall be or be deemed to be a waiver of any rights of the Port Authority with respect to the termination of this Agreement, a default by the Lessee under any term or provision thereof, a failure to achieve the Milestone or the withholding or payment of future D&C Milestone Payments, or with respect to any determination as to the usability of any item of work as aforesaid. The Lessee shall re-invoice any D&C Milestone Payment, or the applicable portion thereof, withheld by the Port Authority once the cause for such withholding has been removed or resolved, and the Port Authority shall make such payment to the Lessee within thirty (30) days of receipt of such re-invoice if all the conditions thereof have been satisfied or resolved. It is hereby understood and agreed that nothing in this Section 6 (Port Authority D&C Payments) shall be or be deemed to be for the benefit of any Contractor.
(2)    It is further understood that at the election of the Port Authority, no payment will be made if the Port Authority’s inspection or audit does not substantiate the contents of any of said certificates and until such matters have been resolved to the satisfaction of the Port Authority, but the Port Authority shall have no obligation to conduct any such inspection or audit at such time. The certificate shall also contain such further information and documentation with respect to the Lessee’s costs as the Port Authority may from time to time require, which information, documentation and certification shall be given on such forms as may be adopted by the Port Authority.
(3)    If for any reason, including but not limited to a redesign of the D&C Work or any portion thereof by the Lessee, the design or construction of the D&C Work or any portion thereof is not performed in accordance with the terms and provisions of (i) this Agreement or any other Project Document, (ii) the Construction Application (including the final plans and specifications) as finally approved by the Port Authority, and (iii) any Partial Approvals, it is understood and agreed that (A) the Port Authority shall not be responsible for such work or any costs in connection with the removal, restoration, modification, correction or change required to cause such work to comply with such terms and provisions, (B) such portion of the D&C Milestone Payment corresponding to such work shall not be deemed due and payable by the Port Authority to the Lessee until such work has been rectified in accordance with the Corrective Action Plan as set forth in Section 5(i)(2) and (C) in the event that the Port Authority shall have made a D&C Milestone Payment for such work, the Port Authority shall have the right to withhold and credit future D&C Milestone Payments against any such amount, or upon demand of the Port Authority, the Lessee shall pay to the Port Authority the amount of any such D&C Milestone Payment or portion thereof covering such work.
(4)    Without limiting any of the foregoing, any amounts due and payable by the Lessee to the Port Authority pursuant to Section 83 (Right to Perform the Lessee’s Obligations) as a result of Lessee’s failure to pay or perform when due any of its obligations under this Agreement with respect to the D&C Work may be offset by the Port Authority from the D&C Milestone Payments. Any amounts to be offset against the D&C Milestone Payments by the Port Authority pursuant to this clause (4) or clause (1) of this Section 6(c) shall be offset by the Port Authority against the next immediately succeeding D&C Milestone Payment payable to the Lessee under this Section 6(c). If the amount to be offset by the Port Authority exceeds the amount of the next immediately succeeding D&C Milestone Payment payable to the Lessee, the Lessee shall pay to the Port Authority the amount of such deficiency within thirty (30) days from the notice by the Port Authority to the Lessee thereof. If the Lessee fails to pay the amount of such deficiency within thirty (30) days, the Port Authority shall be entitled to offset the deficiency against the next immediately succeeding D&C Milestone Payment payable to the Lessee. This clause (4) shall be applied with respect to any amount due to the Port Authority under Section 83 until such amount has been offset or paid directly by the Lessee in full.
(5)    If the Lessee has included in any portion of the cost of the D&C Work any item as having been incurred, but which in the opinion of the Port Authority was not so incurred, or which in the opinion of the Port Authority if so incurred is not an item properly chargeable to such element of cost under sound accounting practice, or does not represent an appropriate division of the costs of a particular contract which are required to be designated according to time of performance or delivery, and the Parties have been unable to resolve their differences within ninety (90) days after the Port Authority gave its notice objecting to the same, either Party may refer the matter to the Chief Engineer pursuant to Section 101 (Chief Engineer’s Jurisdiction).
(d)The Parties agree that the D&C Milestone Payments set forth in Section 6(a)(2)(i) for the costs of the D&C Work pertaining to the New Terminal Facilities (the “NTF Milestone Payments”) shall be available solely to pay for Eligible Project Costs. As used herein, “Eligible Project Costs” shall mean costs and expenses incurred by or on behalf of the Lessee to perform the D&C Work related to those components of the New Terminal Facilities that have an anticipated economic useful life (as of the later of the Effective Date and the date(s) on which such components are placed in service) at least equal to 125% of the (then remaining) Term, as determined by Lessee (with the consent of the Applicable Issuer, which consent shall not be unreasonably withheld).
(e)Upon receipt of documentation that satisfies the requirements of section 179D of the Code, the Port Authority shall designate the Lessee, within the meaning of section 179D(d)(4) of the Code, as the person primarily responsible for designing the New Terminal Facilities and any related facility qualifying as an “energy efficient commercial building property” as defined in section 179D(c) of the Code, and shall allocate one hundred percent (100%) of the allowable deduction (a “179D Deduction”) to the Lessee pursuant to the procedures set forth in IRS Notice 2008-40. Notwithstanding any such allocation, the Lessee shall pay to the Port Authority a portion of the monetary value generated from any such 179D Deduction. The Lessee shall provide prior written notice to the Port Authority of its intent to take the 179D Deduction. Subject to this Section 6(e), the Port Authority and the Lessee (or its authorized designee) shall enter into a written agreement memorializing the terms agreed with respect to the 179D Deduction, including the method of determining the monetary value of the 179D Deduction and the method of sharing such value. The Lessee (or its authorized designee) shall provide information reasonably requested by the Port Authority in connection with the taking of a 179D Deduction, including the calculation and estimated value of the 179D Deduction. The Port Authority shall be under no obligation to allow the Lessee (or its authorized designee) to take a 179D Deduction or to cooperate with the Lessee (or its authorized designee) or to take any action whatsoever in connection with the taking by the Lessee (or its authorized designee) of a 179D Deduction if the Port Authority determines in its sole discretion that a 179D Deduction could result in an adverse tax, accounting, financial or other commercial consequence to the Port Authority, or could be inconsistent with Applicable Law (including the Code, the Treasury Regulations promulgated under the Code and any Revenue Procedure, Revenue Ruling, advice, statement, notice, announcement or proclamation, or other applicable guidance, written advice, or statements of the IRS, and any applicable court decisions interpreting federal income tax law) or with other arrangements or agreements to which the Port Authority is a party. The Lessee shall be solely responsible for all costs and expenses incurred in connection with the pursuit of a 179D Deduction pursuant to this Section 6(e).
Section 7.    Rental.
(a)    Ground Rent.
(1)During the Term, the Lessee shall pay to the Port Authority a rental equal to $165,035.00 per acre, per annum, as such amount may be adjusted annually in accordance with clause (a)(2) of this Section 7 (the “Ground Rent”), with respect to (x) the acreage subject to the Existing Leases as of the Effective Date defined by the lease lines identified as the “Former Delta Lease Line” on Exhibit 6 (Delta Leasehold) and (y) commencing on each Additional Premises Effective Date, the acreage comprising each Additional Premises (or any portion thereof) that is leased to the Lessee on the relevant Additional Premises Effective Date, as agreed between the Parties in accordance with Section 2(b); provided that the calculation of the Ground Rent shall exclude any acreage comprising Surrendered Premises (collectively, the “Leasehold Property”).
(2)The Ground Rent shall be payable by the Lessee in advance on the Effective Date and monthly thereafter on the first day of each calendar month, in an amount equal to one-twelfth (1/12) of the annual Ground Rent; provided, that if (i) the Effective Date shall be other than the first day of a calendar month, the first monthly installment of Ground Rent shall be the monthly installment prorated by the fraction consisting of the number of days elapsed from and including the Effective Date to the last day of the calendar month in which the Effective Date occurred, divided by the actual number of days in such month, (ii) the last date of the Term shall be other than the last day of a calendar month, the last monthly installment of Ground Rent shall be prorated by the fraction consisting of the number of days elapsed from and including the first day of such calendar month to the last day of the Term, divided by the actual number of days in such month, and (iii) if the acreage comprising the Leasehold Property changes during a calendar month, the Ground Rent for such calendar month shall be prorated accordingly based upon such change in acreage.
(3)From the period commencing January 1, 2020, to and including the Expiration Date, on January 1 of each Calendar Year, the per acre rate for Ground Rent for such Calendar Year will equal the sum of (A) the per acre rate of the previous Calendar Year plus (B) the per acre rate for the previous Calendar Year multiplied by the greater of (x) a percentage composed of the CPI Percentage Increase (but not to exceed six percent (6%) in any Calendar Year), and (y) two percent (2%) per annum.
For the purposes of this Section 7(a), the following capitalized terms shall have the meaning set forth herein:
CPI Percentage Increase” means, with respect to any Calendar Year, the annual percentage increase, if any, in the CPI yielded by dividing (x) the amount of the increase, if any, in the CPI for the Reference Month of the year that is immediately preceding such Calendar Year, as compared to the CPI for the Reference Month of the year that is two (2) years prior to such Calendar Year, by (y) the CPI for the earlier of the two (2) Reference Months.
Reference Month” means the month of August.
(b)    Basic Rent.
(1)For the period from the Effective Date to and including December 31, 2017, the Lessee shall pay to the Port Authority a rental equal to the sum of, in every month during such period, (i) the product of the number of Rentable Gates at Terminal C East and the applicable 2017 Per Gate Rental Rate, (ii) the product of the number of the Rentable Gates at Terminal C West and the applicable 2017 Per Gate Rental Rate, and (iii) the product of the number of the Rentable Gates at Existing Terminal D and the applicable 2017 Per Gate Rental Rate (the “2017 Rent”); provided, that if the Effective Date shall be other than the first day of a calendar month, the first monthly installment of 2017 Rent shall be prorated by the fraction consisting of the number of days elapsed from the Effective Date to the last day of the calendar month in which the Effective Date occurred, divided by the actual number of days in such month.
(2)Without limiting the last sentence of this Section 7(b)(2), for the period from January 1, 2018 to and including the Basic Rent Cessation Date for the last Rentable Gate to be replaced, the Lessee shall pay to the Port Authority a rental equal to the sum of, in every month during such period, the product of the number of Rentable Gates in service as of the first day of such month and the Monthly Per Gate Rental Rate (the “Basic Rent”). The Basic Rent shall be payable by the Lessee monthly, in advance on January 1, 2018 and thereafter on the first day of each calendar month; provided, if the Basic Rent Cessation Date for a Rentable Gate occurs on a day other than the last day of a calendar month, the Lessee shall receive a credit to be allocated to the following amount of Basic Rent to be paid in an amount equal to the Monthly Per Gate Rental Rate prorated by the fraction consisting of the number of days elapsed from the date of such Basic Rent Cessation Date to the last day of such calendar month, divided by the actual number of days in such month. The Parties agree that, if the Lessee does not cease use of a Rentable Gate to load and unload Aircraft passengers on or before the date on which the “Temporary Certificate of Authorization to Occupy or Use” for such Rentable Gate’s Replacement Gate is actually issued, the Lessee shall resume paying or continue paying, as the case may be, Basic Rent for such Rentable Gate, at the then-applicable Monthly Per Gate Rental Rate, on the date on which the “Temporary Certificate of Authorization to Occupy or Use” for such Replacement Gate is actually issued, until the date that the Lessee permanently ceases use of such Rentable Gate that has been replaced by a Replacement Gate.
(3)The Basic Rent payable by the Lessee shall be adjusted annually in accordance with the adjustments set forth in Exhibit 15 (Schedule of Basic Rental Adjustment); provided that the aggregate adjustment amount shall not exceed a downward adjustment of $36,690,000.
For the purposes of this Section 7(b), the following capitalized terms shall have the meaning set forth herein:
Basic Rent Cessation Date” means, with respect to a Rentable Gate, the Rentable Gate Replacement Date for the Replacement Gate that replaces such Rentable Gate.
Excused Gate Replacement Delay Event” means any (i) Force Majeure event, (ii) the discovery of any Unknown Conditions and (iii) act or omission or the Port Authority, excluding any act or omission committed (1) in order to comply with, implement or prepare for any existing or pending Code Change or any existing or pending federal or state Applicable Law (whether existing or new), or any existing or pending change, amendment, or supplement thereto, or (2) in order to address an emergency or any life, health, security, safety, or environmental deficiency or hazard or any such emergency, deficiency or hazard that the Port Authority reasonably determines may exist, or (3) as required to comply with the Basic Lease.
2017 Per Gate Rental Rates” means, with respect to each Segment, for each month in the period between the Effective Date and December 31, 2017, the amounts set forth for the applicable Segment in the table below.
Terminal C East
Terminal C West
Terminal D
$105,548
$108,061
$139,978

Monthly Per Gate Rental Rate” means, for each month, $150,227, which amount shall be increased on January 1 of each Calendar Year, commencing with the Calendar Year starting on January 1, 2019, by three percent (3%).
Rentable Gate Replacement Date” means, for a Replacement Gate, the date specified in Exhibit 16 (Rentable Gate Replacement Dates and Gates); provided that, if a “Temporary Certificate of Authorization to Occupy or Use” for such Replacement Gate is not issued by such date for any reason not primarily caused by an Excused Gate Replacement Delay Event, then the Rentable Gate Replacement Date shall be the later date on which the “Temporary Certificate of Authorization to Occupy or Use” for such Replacement Gate is actually issued.
Rentable Gates” means, on each date of determination, the 31 Gates (i.e., Gates excluding hardstand Gates) in the Existing Terminal Facilities on the Effective Date, less any Section 41 Terminated Gates in the Existing Terminal Facilities and Gates in the Existing Terminal Facilities for which the corresponding Replacement Gate has reached its Rentable Gate Replacement Date as of such date of determination.
Replacement Gate” means, on each date of determination, a Gate in operation by the Lessee at the New Terminal Facilities that has replaced a Gate in the Existing Terminal Facilities.  
Segment” means the eastern portion of the Existing Terminal C (referred to herein as Terminal C East), the western portion of the Existing Terminal C (referred to herein as Terminal C West) and the Existing Terminal D.
(4)As of the Effective Date, the Parties have agreed to a forecast of revenues projected to be payable to the Port Authority in connection with the Lessee’s operation of concessions and other consumer services (including concessions and other consumer services permitted or caused to be operated by the Lessee) at the Premises (excluding Reserved Uses) for each calendar year of the Term (the “Baseline Port Authority Concessions Revenues”), based on a Delta enplanement forecast, certain concessions-specific assumptions, and other general assumptions collectively forming the basis for the Baseline Port Authority Concessions Revenues, all as set forth in the model spreadsheet entitled “NewTerminalCConcessionsRevenueAssumptions.xlsx” (the “Concessions Model Workbook”) and delivered by the Lessee to the Port Authority in electronic format on the Effective Date in mutually agreed form, receipt of which is hereby acknowledged by the Port Authority. The Concessions Model Workbook also includes a separate row identified as “Incremental Revenue To “No-Build” Concessions Revenue Assumption” showing a component of the Baseline Port Authority Concessions Revenues for each calendar year of the Term reflecting the incremental amount of such concessions revenues forecasted to be earned as a result of the redevelopment of Terminals C and D pursuant to this Agreement, above the concessions revenues that would be expected to be generated from the Existing Terminal Facilities. 
Commencing with the calendar year beginning on January 1, 2023 and for every calendar year thereafter (each, a “True-Up Period”), no later than thirty (30) days following the end of each such True-Up Period, the Lessee shall calculate: (i) the actual revenues paid or payable to the Port Authority in connection with the Lessee’s operation of concessions and other consumer services (including concessions and other consumer services permitted or caused to be operated by the Lessee) at the Premises (excluding Reserved Uses) (the “Actual Port Authority Concessions Revenues”) with respect to such True-Up Period, (ii) the variance, if any, obtained by subtracting (A) the Baseline Port Authority Concessions Revenues projected for such True-Up Period, from (B) the Actual Port Authority Concessions Revenues for such True-Up Period, which shall be stated in dollars as a positive amount, a negative amount, or zero (if there is no variance for such True-Up Period) (any such amount, the “Annual Variance” for the applicable True-Up Period), and (iii) the “True-Up Balance” for such True-Up Period in accordance with the applicable mathematical formulas embedded in rows 13-20 of the Concessions Model Workbook (the “True-Up Balance Formula”) by applying the Annual Variance for such True-Up Period to the True-Up Balance for the immediately preceding True-Up Period (as determined in accordance with the True-Up Balance Formula), which True-Up Balance shall be stated in dollars as a positive amount, a negative amount, or zero, provided that the Annual Variance for the first True-Up Period shall be applied to zero in order to calculate the True-Up Balance as of the end of such first True-Up Period. The Parties acknowledge that the True-Up Balance Formula includes an upward adjustment to any positive True-Up Balance calculated for any given True-Up Period equal to 5.0% of such balance, and such True-Up Balance (inclusive of such adjustment) is used in calculating True-Up Payments (as defined below) and True-Up Reconciliations (as defined below).  The Lessee shall deliver to the Port Authority a certificate setting forth in reasonable detail the foregoing calculations as of the end of each True-Up Period no later than thirty (30) days following the end of such True-Up Period.  The Parties acknowledge that the True-Up Balance shall be cumulative, and that:
(i)    If the True-Up Balance calculated as of the end of a True-Up Period is negative and the True-Up Balance for the immediately preceding True-Up Period was zero or positive, the Lessee shall pay to the Port Authority an amount equal to the absolute value of such negative True-Up Balance;
(ii)    If the True-Up Balance calculated as of the end of a True-Up Period is negative and the True-Up Balance for the immediately preceding True-Up Period was negative, then (x) if the Annual Variance for such True-Up Period was negative, the Lessee shall pay to the Port Authority an amount equal to the absolute value of such Annual Variance, and (y) if the Annual Variance for such True-Up Period was zero or positive, the Lessee shall be entitled to offset an amount equal to the absolute value of such Annual Variance against the amount the Lessee is required to pay the Port Authority pursuant to Section 36 (Concessions Revenue Share) of this Agreement;
(iii)    If the True-Up Balance calculated as of the end of a True-Up Period is zero or positive and the True-Up Balance for the immediately preceding True-Up Period was negative, the Lessee shall be entitled to offset an amount equal to the absolute value of the True-Up Balance for the immediately preceding True-Up Period against the amount the Lessee is required to pay the Port Authority pursuant to Section 36 (Concessions Revenue Share) of this Agreement; and
(iv)    If the True-up Balance calculated as of the end of a True-Up Period is zero or positive and the True-Up Balance for the immediately preceding True-Up Period was zero or positive, neither Party shall be entitled to a True-Up Payment (as defined below) or True-Up Reconciliation (as defined below), as applicable, with respect to such True-Up Period.
Each such payment by the Lessee to the Port Authority pursuant to the foregoing provisions shall be a “True-Up Payment”, and each such offset by the Lessee against the amount the Lessee is required to pay the Port Authority pursuant to Section 36 (Concessions Revenue Share) of this Agreement pursuant to the foregoing provisions shall be a “True-Up Reconciliation”. Each True-Up Payment and True-Up Reconciliation required to be made pursuant to the foregoing provisions shall be paid or offset, respectively, by the applicable Party to the other Party no later than thirty (30) days following the end of the applicable True-Up Period unless the calculation of any portion of any True-Up Payment or True-Up Reconciliation is the subject of a bona fide dispute between the Parties. If either Party disputes or disagrees with the calculation of any portion of any True-Up Payment or True-Up Reconciliation, the Parties shall confer with each other in good faith to resolve the same; provided that the calculation of any Actual Port Authority Concessions Revenues shall be determined by reference to the Port Authority’s audit functions, if the Port Authority so elects. Notwithstanding any provision hereof to the contrary, in no event shall the Lessee be required to make aggregate net True-Up Payments (net of True-Up Reconciliations) to the Port Authority pursuant to the foregoing provisions with a present value (as of the Effective Date at a discount rate of 5.0%) in excess of $36,690,000.00, as determined in accordance with the applicable mathematical formulas embedded in rows 23-28 of the Concessions Model Workbook (the “True-Up Payment Cap Formula”).
Exhibit 5 (Concessions Revenues True-Up Sample Calculation) contains a hypothetical example of the Concessions Model Workbook that applies the calculations described in this Section 7(b)(4), including the True-Up Balance Formula and the True-Up Payment Cap Formula, to hypothetical Actual Port Authority Concessions Revenues, Annual Variances and True-Up Balances, and is attached to this Agreement solely to provide a numerical illustration of such application, and shall not be relied upon by the Parties for any other purpose.
(c)    First Additional Rent.    In the event that the Lessee has entered into a Leasehold Mortgage, the Lessee hereby agrees to pay the Port Authority Five Hundred Thousand Dollars ($500,000) for each such mortgage on December 1st of each Calendar Year commencing in the Calendar Year in which substantial completion of the D&C Work (i.e., completion of all D&C Work other than punch list items approved by the Port Authority) shall occur, and thereafter on December 1st of each Calendar Year until all amounts secured by such mortgage have been repaid in full and such mortgage shall have been released (the “First Additional Rent”).
(d)    Abatement of Rental.    If at any time the Lessee shall become entitled to an abatement of rent pursuant to the provisions of Section 41 (Requesting Airlines) of this Agreement or otherwise (apart from any adjustment to Basic Rent pursuant to Section 7(b)), only Ground Rent, 2017 Rent or Basic Rent, shall be abated. Such abatement shall be determined on an equitable basis. There shall be no abatement of any other rental, including without limitation the First Additional Rent, under this Agreement.
(e)    Tax Treatment; Rental Allocation.    The Parties intend that the Lessee for its purposes, including for federal income tax purposes (so that Lessee may cost effectively access the financing contemplated in the Financing Documents and construct the New Terminal Facilities to the benefit of the Lessee and the public), will treat the costs and expenses incurred by or on behalf of the Lessee in connection with the D&C Work relating to the portion of the New Terminal Facilities funded by the Lessee as rent (“In-Kind Rent”). The Port Authority, as a federally tax-exempt entity, does not intend to take a federal income tax position contrary to the Lessee’s treatment of the In-Kind Rent as rent for federal income tax purposes. The Port Authority expresses no opinion and makes no representation, express or implied, as to the treatment for federal income tax purposes of the provisions of this Section 7(e), the treatment of In-Kind Rent as rent for federal income tax purposes, or the inclusion of such provisions in this Agreement (collectively, the “Rental Tax Treatment”); and the Lessee acknowledges that the Port Authority has agreed to the Rental Tax Treatment at the request of the Lessee. The Parties agree that the Rental Tax Treatment shall not affect the amounts and timing of the installments of rental actually payable by the Lessee, as set forth in this Agreement, and shall not affect (or be deemed to affect) the manner in which the Port Authority accounts for or reports such rental payments. Without limitation as to the generality of the provisions of Section 19 (Indemnity) of this Agreement, the Lessee hereby agrees to indemnify, hold harmless and defend the Port Authority Indemnified Parties from and against all claims, damages, losses, liabilities, obligations, penalties, actions, causes of action, judgments, suits, costs, expenses, or disbursements (including, without limitation, reasonable attorneys’ and consultants' fees and expenses (including all costs and expenses of the Port Authority in connection therewith)), except for those arising solely from the negligence or willful misconduct of a Port Authority Indemnified Party, resulting from the Rental Tax Treatment (but excluding any claim by a third party to benefit directly from the Rental Tax Treatment), and the Lessee shall, upon demand by any Port Authority Indemnified Party, pay to such Port Authority Indemnified Party all reasonable costs and expenses incurred by such Port Authority Indemnified Party in enforcing any rights under this Section 7(e). If so directed, the Lessee shall at its own expense defend any investigation, suit or other proceeding, whether administrative or judicial, and in handling such it shall not, without obtaining express advance permission from the General Counsel of the Port Authority, raise any defense involving in any way the jurisdiction of the tribunal over the person of the Port Authority, the immunity of the Port Authority, its Commissioners, officers, agents or employees, the governmental nature of the Port Authority, or the provisions of any statutes respecting suits against the Port Authority.
Section 8.    Use of Premises.
(a)The Lessee hereby agrees to and shall use and operate the Premises as an airline passenger terminal and related purposes, including the use and occupancy by (i) the Lessee, (ii) Scheduled Aircraft Operators who are Airline Sublessees, (iii) Concession Sublessees and other Sublessees, (iv) Governmental Agencies and (v) the Port Authority, in each instance in accordance with, pursuant to and subject to the terms of this Agreement. In connection with such use and operation of the Premises, the Lessee hereby agrees to perform the Operations and Maintenance Work.
(b)It is understood and agreed that, subject to Section 8(f) the Premises shall be used by the Lessee and Scheduled Aircraft Operators who are Airline Sublessees pursuant to this Agreement or who have arrangements with an Airline Sublessee, solely in connection with their business of transportation by Aircraft, for the following purposes and for activities reasonably required for such purposes:
(1)the reservation of space and the sale of tickets for transportation by Aircraft operated by the Lessee and each Airline Sublessee or Scheduled Aircraft Operator who has arrangements with the Lessee or an Airline Sublessee;
(2)the reservation of space and the sale of tickets for transportation by other Scheduled Aircraft Operators but only as an incident to or in connection with transportation performed or to be performed by the Lessee, an Airline Sublessee or a Scheduled Aircraft Operator who has arrangements with the Lessee or an Airline Sublessee, or as an incident to or in connection with the cancellation of such transportation, or for the accommodation or convenience of the incoming or outbound passengers of the Lessee, an Airline Sublessee or a Scheduled Aircraft Operator who has arrangements with the Lessee or an Airline Sublessee at the Premises. The occasional reservation of space and the sale of tickets for transportation by other Scheduled Aircraft Operators shall not be deemed to be prohibited by this Section 8(b)(2);
(3)the clearance, checking and rendering of service by the Lessee and each Airline Sublessee or Scheduled Aircraft Operator who has arrangements with an Airline Sublessee to its passengers and for the furnishing of information service to its passengers and the general public;
(4)providing lounges, rooms or space for the special handling of or the furnishing of special services by, the Lessee and each Airline Sublessee or Scheduled Aircraft Operator who has arrangements with the Lessee or an Airline Sublessee to its passengers, guests, or invitees, subject to and except as otherwise provided in Section 39 (Club Rooms);
(5)the handling of baggage by the Lessee and each Airline Sublessee or Scheduled Aircraft Operator who has arrangements with the Lessee or an Airline Sublessee of its passengers, including baggage and parcels such passengers decide to send as air cargo;
(6)the handling of unclaimed baggage and lost and found articles;
(7)the conduct of operations, communications, reservations and administrative office functions and activities in connection with air transportation performed by the Lessee and each Airline Sublessee or Scheduled Aircraft Operator who has arrangements with the Lessee or an Airline Sublessee;
(8)the preparation, packaging and storage of food, beverages and commissary supplies to be consumed on Aircraft operated to and from the Premises by the Lessee and each Airline Sublessee or Scheduled Aircraft Operator who has arrangements with the Lessee or an Airline Sublessee;
(9)the storage of repair parts, supplies and other personal property owned or leased by the Lessee and each Airline Sublessee or by a Scheduled Aircraft Operator who has arrangements with the Lessee or an Airline Sublessee, and for the performance of minor repairs to personal property of the Lessee, such Airline Sublessee or such Scheduled Aircraft Operator;
(10)the storage of such automotive fuel and lubricants as may be approved by the Port Authority;
(11)use as crew quarters to be used by personnel of the Lessee and each Airline Sublessee or Scheduled Aircraft Operator who has arrangements with the Lessee or an Airline Sublessee, during layovers between flights and for the establishment of lounges for employees of the Lessee, such Airline Sublessee or such Scheduled Aircraft Operator;
(12)the loading and unloading of passengers, baggage, mail, air cargo and commissary supplies of the Lessee, each Airline Sublessee or Scheduled Aircraft Operator who has arrangements with the Lessee or an Airline Sublessee; provided, however, that the use of the Premises for the unloading and loading of passengers and their baggage from ground transportation vehicles shall be subject to limitations and restrictions, from time to time, as set forth in Section 26(a);
(13)the parking and storage of Aircraft and ramp equipment operated by the Lessee and each Airline Sublessee or Scheduled Aircraft Operator who has arrangements with the Lessee or an Airline Sublessee;
(14)the fueling and routine servicing of Aircraft and ramp equipment operated by the Lessee and each Airline Sublessee or Scheduled Aircraft Operator who has arrangements with the Lessee or an Airline Sublessee and for the maintenance of said ramp equipment;
(15)the performance of emergency or turn-around Aircraft maintenance on Aircraft operated by the Lessee and each Airline Sublessee or Scheduled Aircraft Operator who has arrangements with the Lessee or an Airline Sublessee;
(16)the training of personnel employed or to be employed by the Lessee and each Airline Sublessee or Scheduled Aircraft Operator who has arrangements with the Lessee or an Airline Sublessee or other Persons engaged in commercial transportation by Aircraft; provided, that unless consented to by the Port Authority, neither the Lessee nor any Airline Sublessee or Scheduled Aircraft Operator who has arrangements with the Lessee or an Airline Sublessee shall engage in the training of Persons employed by the Lessee, any Airline Sublessee or Scheduled Aircraft Operator if such training competes with the business of any concessionaire, permittee or licensee of the Port Authority providing training at the Airport (other than another Person engaged in the business of transportation by Aircraft);
(17)the temporary storage of baggage and mail;
(18)the occasional and temporary storage of air cargo;
(19)aircraft line maintenance;
(20)ground service equipment (GSE) maintenance;
(21)Aircraft deicing;
(22)cabin cleaning;
(23)operation of an employee parking shuttle;
(24)operation of passenger shuttle;
(25)acceptance and release of cargo, mail and express packages;
(26)charter operations by the Lessee, Airline Sublessees or Scheduled Aircraft Operators who have arrangements with the Lessee or an Airline Sublessee;
(27)such other ancillary uses as are customary for a commercial air terminal and air transportation business; and
(28)any other use approved in advance by the Port Authority in writing.
(c)It is understood and agreed that, subject to Section 8(f), the Existing Terminal Facilities and the New Terminal Facilities shall be used by the Lessee, Airline Sublessees and Aeronautical User Sublessees solely in connection with airline passenger terminal-related services at the Premises and for activities reasonably required for such purposes and for such purposes and activities only.
(d)It is understood and agreed that the Existing Terminal Facilities and the New Terminal Facilities shall be used by Concession Sublessees solely in connection with retail sales of goods and services at the Premises and for activities reasonably required for such purposes and for such purposes and activities only. Further, the Lessee or any Airline Sublessee may use the Existing Terminal Facilities and the New Terminal Facilities for the retail sales of goods and for activities, subject to Section 36 (Concessions Revenue Share).
(e)It is understood and agreed that the Premises may be used by the Lessee and its Sublessees and their agents, Contractors, employees and authorized representatives in the performance of the Work and for its administrative offices. The Lessee and its Sublessees, and their respective Affiliates, may conduct airport-related training programs for its employees at the Premises.
(f)The Port Authority hereby grants to the Lessee the privilege of permitting the occasional use of the Premises by non-scheduled commercial carriers for the sole purpose of discharging or picking up passengers, business guests and other invitees of the Lessee or scheduled commercial carriers that have been diverted to the Airport due to their being precluded from normal arrival at another airport (“Itinerant Aircraft”). In connection with its use of the Airport, all operations of such Itinerant Aircraft shall be in compliance with all the terms and provisions of this Agreement and with the Rules and Regulations. As between the Port Authority and the Lessee, the Lessee shall be fully responsible for all acts and omissions of said Itinerant Aircraft in connection with the use by the Itinerant Aircraft of the Airport. The Port Authority shall have the right to cancel the privilege granted to the Lessee herein, in whole or in part, or with respect to any particular Itinerant Aircraft at any time and from time to time and without cause upon thirty (30) days’ written notice to the Lessee, and upon the effective date of such notice the Lessee shall no longer have the right to permit all or any specific Itinerant Aircraft, as specified in such notice, to use the Premises as hereinabove provided, but the same shall not affect this Agreement or any of the terms, rentals, fees, provisions or agreements hereof, all of which shall continue in full force and effect. For the avoidance of doubt, the Lessee shall not have the right to charge or collect flight fees or parking and storage fees for Itinerant Aircraft parked or stored in the Public Aircraft Facilities in connection with the occasional use of the Premises by Itinerant Aircraft in accordance with this Section 8(f).
(g)The Lessee may use the Premises for any other purpose or activity, in addition to those specified in this Section 8 (Use of Premises), for which the Premises are expressly authorized to be used by any other provision of this Agreement, including for the performance of the Work required under this Agreement, and for activities reasonably required for such purposes and for such purposes and activities only.
(h)No greater rights or privileges with respect to the use of the Premises or any part thereof are granted or intended to be granted to the Lessee by this Agreement, or by any provision thereof, than the rights and privileges expressly and specifically granted hereby.
(i)Neither this Agreement, nor anything contained herein, including this Section 8 (Use of Premises), shall or shall be deemed to grant to the Lessee any right, privilege or permission to perform any sale, service or any other activity other than as is expressly provided herein and upon the terms and conditions hereof, including the obligation to make the payments called for in this Agreement.
(j)The Lessee hereby acknowledges that this Agreement does not grant to it any right and the Lessee does not have any right to use or permit the use of any portion of the Premises for the landing or taking off of helicopters, rotary wing, tilt-rotor or other similar Aircraft, except as may be necessary in the event of an emergency with notice to the Port Authority. In the event that the Port Authority determines that approval for such use will be given at any time hereafter, the same shall be granted only in accordance with such terms and conditions, including but not limited to fees, charges and rights of user, as the Port Authority may set forth in a supplement to this Agreement, which is duly executed by the Lessee and the Port Authority. The Lessee shall comply with any directive by the Port Authority or the FAA to permit the use of the Premises by commercial carriers or other aircraft in the case of an emergency.
(k)In connection with the lease of the Premises pursuant to Section 2 (Letting), the Port Authority hereby grants to the Lessee the exclusive right to, and the Lessee accepts such right and acknowledges its obligation to (i) perform the Operations and Maintenance Work with respect to the Existing Terminal Facilities and the New Terminal Facilities, (ii) charge, collect and retain revenues derived from the operation of the Existing Terminal Facilities and the New Terminal Facilities in accordance with and subject to the terms and conditions of this Agreement and (iii) enter into Subleases subject to Section 32 (Subleases Generally), and charge, collect and retain revenues derived in connection therewith; provided that the Lessee shall have preferential and not exclusive use of all Gates in the New Terminal Facilities and any Airline Subleases entered into with respect to the New Terminal Facilities shall not reflect exclusive use.
Section 9.    Ingress and Egress.
(a)The Lessee, its Sublessees, and their respective officers, employees, customers, patrons, invitees, Contractors, suppliers of materials and furnishers of services shall have the right of ingress and egress between the Premises and city streets or public ways outside the Airport by means of existing roadways to be used in common with others having rights of passage within the Airport; provided, however, that the Port Authority may from time to time substitute other reasonably equivalent means of ingress and egress as provided in Section 9(c).
(b)The Lessee and its Airline Sublessees and any Affiliated Scheduled Aircraft Operators shall have the right of ingress and egress between the Premises and the Public Landing Area at the Airport, by means of existing taxiways to be used in common with others having rights of passage thereon; provided, however, that the Port Authority may from time to time substitute other reasonably equivalent means of ingress and egress as provided in Section 9(c).
(c)The use of all roadways and taxiways shall be subject to the Rules and Regulations which are now in effect or which may hereafter be promulgated for the safe and efficient operation of the Airport. The Port Authority may, at any time, temporarily or permanently close, or consent to or request the closing of, any such roadway, any taxiways and any other area at the Airport presently or hereafter used as such, so long as (i) means of ingress and egress reasonably equivalent to that provided in paragraphs (a) and (b), above, are concurrently made and remain available to the Lessee. Provided that the Port Authority has complied with its obligations in this clause (c), the Lessee hereby releases and discharges the Port Authority, its successors and assigns, of and from any and all claims, demands or causes of action which the Lessee may now or at any time hereafter have against any of the foregoing, arising or alleged to arise out of the closing of any street, roadway, taxiway or other area used as such whether within or outside the Airport.
(d)The Lessee shall not do or permit anything to be done which will interfere with the free access and passage of others to space adjacent to the Premises or in any streets, ways and walks near the Premises.
Section 10.    Compliance with Governmental Requirements
(a)Obligation to Comply. The Lessee shall promptly comply, and shall impose and enforce requirements on all Lessee-Related Entities to comply with, observe and execute all Applicable Laws, Applicable Standards, including, without limitation, all Environmental Requirements, Transportation Security Regulations under 49 C.F.R §§ 1520, 1540-1542 and all Rules and Regulations applicable to (i) the Premises, the Rights of Access, the O&M Access Areas, or soil or groundwater thereunder, (ii) the operations of the Lessee on the Premises, the Rights of Access, the O&M Access Areas or at the Airport in connection with this Agreement, and/or (iii) the occupancy or use of the Premises, the Rights of Access or the O&M Access Areas; provided, that without limiting the applicability of any other applicable provision of this Agreement, Lessee’s compliance obligations are subject to Section 73(b), Section 76(d) and Lessee’s Remediation obligations for the Additional Premises and Rights of Access are subject to Section 76(f)(3) and Section 76(f)(4). The Lessee shall, in accordance with and subject to the provisions of Section 5 (Design and Construction by the Lessee), as applicable, make any and all structural and non-structural improvements, alterations or repairs of the Premises and, if necessary to complete the D&C Work within the Rights of Access or the O&M Access Areas, on or within the Rights of Access or the O&M Access Areas, in all such cases, as required in order to fully satisfy the compliance obligations set forth herein. The Lessee shall impose and enforce requirements on third parties using or occupying the Premises to comply with all such Applicable Laws, Applicable Standards, including, without limitation, all Environmental Requirements and all Rules and Regulations.
(b)Obligation to Procure Authorizations. The Lessee shall procure and shall be responsible for the procurement by its employees or any other person on the Premises, of all Governmental Approvals, including all licenses, certificates, permits or other authorizations, which may be necessary for the conduct of the D&C Work and the Operations and Maintenance Work from all Governmental Authorities having jurisdiction over the operations of the Lessee hereunder, and shall maintain in full force and effect throughout the Term such Governmental Approvals. The Lessee shall be responsible for its compliance, and for imposing and enforcing requirements upon all Lessee-Related Entities to comply, with all such Governmental Approvals during the D&C Work and the Operations and Maintenance Work as part of the obligation to comply with all Environmental Requirements set forth in Section 10(a) above. The Lessee shall be responsible for obtaining any amendments, modifications, revisions or supplements to all Governmental Approvals (including the FONSI) where such amendments, modifications, revisions or supplements are necessary for the D&C Work and Operations and Maintenance Work; it being understood that if the application or request for such amendment, modification, revision or supplement can only be made in the name of the Port Authority or the Port Authority’s participation in such application or request process is necessary or desirable, the Parties shall cooperate with each other and the Lessee shall provide all information to the Port Authority to facilitate such process and shall reimburse the Port Authority for all incremental costs (external and internal) incurred by the Port Authority in excess of the normal level of costs and expenses the Port Authority would customarily incur in connection with the Tenant Alteration Application process.
(c)No Submission by Port Authority. The obligation of the Lessee to comply with governmental requirements is provided herein for the purpose of assuring proper safeguards for the protection of persons and property on the Premises. Such provision is not to be construed as a submission by the Port Authority to the application to itself of such requirements or any of them.
(d)Obligation under Basic Lease. Since the Port Authority has agreed in the Basic Lease to conform to the enactments, ordinances, resolutions and regulations of New York City and its various departments, boards and bureaus in regard to the construction and maintenance of buildings and structures and in regard to health and fire protection which would be applicable if the Port Authority were a private corporation to the extent that the Port Authority finds it practicable so to do, the Lessee shall comply with all such enactments, ordinances, resolutions and regulations which would be applicable to its operations hereunder if the Port Authority were a private corporation, except in cases where the Port Authority either notifies the Lessee that it need not comply with or directs it not to comply with any such enactments, ordinances, resolutions or regulations which are applicable only because of the Port Authority’s agreement in the Basic Lease. The Lessee shall, for the Port Authority’s information, deliver to the Port Authority promptly after receipt of any notice, warning, summons, or other legal process for the enforcement of any such enactment, ordinance, resolution or regulation a true copy of the same. Any direction by the Port Authority to the Lessee not to comply with any such enactment, ordinance, resolution or regulation shall be given only pursuant to a resolution duly adopted by the Board of Commissioners of the Port Authority or by an authorized committee of the Board of Commissioners of the Port Authority and if any such direction is given by the Port Authority to the Lessee, the Port Authority, to the extent that it may lawfully do so, shall indemnify and hold the Lessee harmless from and against all claims, actions, damages, liabilities, fines, penalties, costs and expenses suffered or incurred by the Lessee as a result of non-compliance with such enactment, ordinance, resolution or regulation. Nothing herein contained shall release or discharge the Lessee from compliance with any other provision hereof respecting governmental requirements.
Section 11.    Federal Regulation of Airports.
(a)Federal Regulations. Operation of the Airport by the Port Authority is governed by federal statutes and regulations, in addition to other Applicable Laws and Applicable Standards.
(b)Federal Grants and Permissions.
(1)    The Port Authority has applied for and received a grant or grants of money from the Administrator of the FAA pursuant to the Airport and Airways Development Act of 1970, as the same has been and may hereafter be amended and supplemented or superseded by similar federal legislation, and under prior federal statutes which said Act superseded and the Port Authority may in the future apply for and receive further such grants, and the Port Authority has applied for and received permission to collect and use Passenger Facility Charges pursuant to An Act To Revise, Codify, And Enact Without Substantive Change Certain General And Permanent Laws, Related To Transportation, Pub: Law 103-272, 108 Stat 745 (July 5, 1994), as the same has been and may hereafter be amended and supplemented or superseded by similar federal legislation, and under prior federal statutes which said Act superseded, and the Port Authority may in the future apply for and receive further permission to collect such Passenger Facility Charges. In connection therewith, the Port Authority has undertaken and may in the future undertake certain obligations respecting its operation of the Airport and the activities of its contractors, lessees and permittees thereon. The performance by the Lessee of the covenants, promises and obligations contained in this Section 11 (Federal Regulation of Airports) and in Section 60 (Non-Discrimination), is therefore a special consideration and inducement to the execution of this Agreement by the Port Authority, and the Lessee further covenants and agrees that if the Administrator of the FAA or any other governmental officer or body having jurisdiction over the enforcement of the obligations of the Port Authority in connection with the federal airport aid, shall make any orders, recommendations or suggestions in written form respecting the performance by the Lessee of such covenants, promises and obligations, the Lessee will promptly comply therewith, at the Lessee’s cost and expense, at the time or times when and to the extent that the Port Authority may direct.
(2)    The Port Authority may apply for and receive such grants and permissions in the future.
(c)The Port Authority has undertaken, and may in the future undertake, certain obligations respecting its operation of the Airport and the activities of its contractors, lessees and permittees thereon in applications for such grants and permissions.
(d)The Lessee acknowledges the statements in paragraphs (a) and (b) of this Section 11 (Federal Regulation of Airports) and that the performance by the Lessee of the covenants and obligations contained in this Agreement is a special consideration and inducement to the making of this Agreement by the Port Authority.
(e)The Lessee further covenants and agrees that:
(1)    The Lessee, at its cost and expense, shall follow any direction issued by the Port Authority to comply with any Applicable Law, or with any applicable regulation, order, statement of policy, or recommendation or suggestion in written form, of the Administrator of the FAA, TSA or any other governmental officer or body having jurisdiction over the enforcement of the obligations of the Port Authority under federal law, or arising from the applications described in subsections (a) and (e) of this Section.
(2)    For the purpose of this paragraph, “governmental officer or body” shall not be construed to refer to or include the Port Authority.
(3)    The direction of the Port Authority made under this paragraph (3) under this subsection (e) shall include, but not be limited to, a direction to Lessee to take an action, to not take an action, or to cease an action, including but not limited to the granting of a contract or permission or directing another person to take an action, refrain from taking an action, or cease an action.
(4)    The Lessee covenants and agrees that the Port Authority's interpretation of any such Applicable Law, order, statement of policy, recommendation or suggestion in written form, including those of a general nature which do not refer specifically to the Airport or any specific person, shall be final and determinative for the purposes of this section, except as provided in Section 11(e)(6)(iii).
(5)    The Lessee covenants and agrees that the Port Authority may require any permittee, Sublessee, subtenant, licensee or Contractor of the Lessee who acts for or on behalf of the Lessee in or regarding the Premises to perform the obligations imposed by, and be subject to, the terms of this Section 11 (Federal Regulation of Airports), as if such permittee, Sublessee, subtenant, licensee or Contractor were the Lessee with respect to the obligations of the Lessee set forth in this Section 11 (Federal Regulation of Airports).
(6)    Interpretation.
(i)    In the event of any disagreement between the Lessee and the Port Authority with respect to the interpretation of a federal law, regulation, order, statement of policy or written recommendation or suggestion of the FAA, TSA or other governmental body, the Port Authority and the Lessee shall immediately meet and negotiate in good faith to attempt to resolve such disagreement.
(ii)    Either Party may elect to challenge in an administrative or judicial proceeding, or seek guidance with respect to, any such law, regulation, order, statement of policy or written recommendation or suggestion of the FAA or such other governmental body.
(iii)    Unless the Port Authority’s interpretation of federal law, regulation order, statement of policy or written recommendation or suggestion of the FAA, TSA or other governmental body is irrational or exhibits a manifest disregard of the law, such interpretation shall be determinative unless and to the extent that the Lessee challenges such interpretation and such interpretation is determined by a governmental body having jurisdiction to rule on such interpretation or to issue guidance as set forth in Section 11(e)(6)(ii), to be incorrect and unenforceable.
(f)The Port Authority shall use commercially reasonable efforts to include in all agreements, and in all amendments, supplements or extensions of agreements, offered to an airline for occupancy or use the Airport to conduct scheduled passenger flight operations a provision or provisions substantially similar to this Section 11 (Federal Regulation of Airports).
Section 12.    Exclusive Area Agreement.
(a)The Lessee has been advised that the Port Authority is obligated to have in effect and does now have in effect an airport security program (as may be amended from time to time, the “Airport Security Program” or “ASP”) approved by the TSA, which complies with 49 C.F.R Part 1542 and includes, as a portion thereof, the Port Authority’s obligations under 49 C.F.R. Part 1542 to provide security within the Airport, including the Premises. The Lessee covenants and agrees to maintain in full force and effect during the Term the Exclusive Area Agreement and comply with the terms of such agreement.
(b)The Lessee covenants and agrees that the Lessee shall promptly comply with any direction issued by the Port Authority (including any bulletin, directive or other official instruction issued by the General Manager, Chief Security Office or their designee) to the extent reasonably necessary to remedy any security deficiencies, to respond to a threat as reasonably determined by the Port Authority or to comply with Applicable Law, the Exclusive Area Agreement, the Airport Security Program and any TSA-issued security directives, information circulars and public advisories.
(c)In the event the Port Authority determines that the Lessee has failed to comply with any term of the Exclusive Area Agreement, it shall provide notice to the Lessee to cure any default by the time as provided in the Exclusive Area Agreement, and if Lessee fails to cure such default as required pursuant to a notice under the Exclusive Area Agreement, such failure shall be deemed to constitute an event of default under Section 46(a)(10) and the Lessee shall be liable for all damages, including, for the avoidance of doubt, any fines or penalties, to the Port Authority due to such default, including any cost incurred by the Port Authority to cure the Lessee’s default.
(d)Notwithstanding any provision to the contrary in the Exclusive Area Agreement, the Lessee shall promptly provide notice to the Airport Security Manager of Lessee’s knowledge of any material security incidents, including security violations issued to it by the TSA, and any material deficiency or malfunction of any security system.
(e)Amendments or Revisions to Exclusive Area Agreement.
(1)    Without limiting any term or provision hereof, during the performance of the Work or any modification of the Premises or any other change in conditions at the Premises which shall require or make desirable any revisions to the Exclusive Area Agreement, the Lessee shall submit for the Port Authority’s Airport Security Manager approval the proposed amended Exclusive Area Agreement along with a reasonably detailed narrative describing the differences between such proposed amended Exclusive Area Agreement and the Exclusive Area Agreement then in effect. After the Port Authority has approved the revised Exclusive Area Agreement, the Port Authority shall, in a timely manner, amend the Airport Security Program, if necessary, and submit such amended Airport Security Program to the TSA for approval pursuant to 49 C.F.R. Part 1542 if the Port Authority determines in its sole discretion that such amendment to the Airport Security Program is necessary. Upon Port Authority approval of the revised Exclusive Area Agreement, the Lessee shall implement the same and in any event shall maintain, at all times, the required level of security under the Exclusive Area Agreement and comply with all requirements of the Exclusive Area Agreement. The Lessee may not implement any amendment to the Exclusive Area Agreement unless and until such amended Exclusive Area Agreement has been approved by the Port Authority and any implementation prior to such approval shall be at the Lessee’s sole cost and expense and shall subject the Lessee to a breach of its obligations under this Agreement.
(2)    From time to time, as may be required pursuant to Applicable Law (including, but not limited to, the regulations set forth in 49 C.F.R. Parts 1520, 1542 and 1544), a security directive or applicable changes in circumstances, the Port Authority shall notify the Lessee of the actions so required and the Lessee shall prepare and shall submit for approval pursuant to Section 12(e)(1), in a timely manner, any revisions or updates to the Exclusive Area Agreement that may be required.
(f)Other Safety and Security Responsibilities of the Lessee.
(1)    For the D&C Work, in accordance with Section 4 of the General Provisions, the Lessee shall apply to the Port Authority for the issuance of identification for its Contractors and other Lessee-Related Entities and their respective employees for access as may be required generally for employees at the Airport or under the Exclusive Area Agreement or for access to the site of the D&C Work, and shall establish its own security badging office for the issuance of “Delta Redevelopment Project Photo IDs.” In connection therewith, the Lessee shall conduct or cause to be conducted all investigations and background checks which may be required and shall prepare and submit to the Port Authority all forms and applications and other material as the Port Authority may require. In the event any Contractor or its employees requires unescorted access to security restricted area, such individual must obtain an airport security identification card as required under 49 C.F.R. §1542.205-213.
(2)    In accordance with Section 2.6.1 of the “Operational Requirements” portion of the Operations and Maintenance Requirements, the Lessee shall be responsible for all personnel training with respect to all persons employed by the Lessee, including its security personnel, as required by the Operations and Maintenance Requirements, Applicable Law, Managers’ Bulletins or the Exclusive Area Agreement.
(3)    In accordance with Section 2 of the “Operational Requirements” portion of the Operations and Maintenance Requirements, the Lessee shall integrate its safety and security systems with the Port Authority’s Airport safety and security systems and programs and shall be responsible for coordinating with its Sublessees and the Port Authority an integrated security approach for the Airport, as may be required under the Exclusive Area Agreement, Applicable Law or otherwise by the Port Authority.
(4)    In accordance with Section 2.8 of the “Operational Requirements” portion of the Operations and Maintenance Requirements, the Lessee shall be responsible for developing contingency plans that include deplaning procedures with respect to lengthy ground delays, as required in the LaGuardia Airport Tarmac Delay Contingency Plan, the Port Authority Passenger Relief in Cooperation with Airlines and the Customer Care Standards, provided that the Lessee shall not be required to comply with any portion of the foregoing to the extent the same are preempted or superseded by Applicable Law.
(5)    In accordance with Section 2.12 of the “Operational Requirements” portion of the Operations and Maintenance Requirements, the Lessee shall maintain, and shall impose and enforce requirements on its Sublessees and the Lessee-Related Entities to maintain, a safe working environment for the general public, passengers, patrons and employees and shall be required to implement and enforce the requirements of, and cause Lessee-Related Entities to implement and enforce the requirements of, a comprehensive safety management system plan satisfying the requirements of Section 2.12.1 of the “Operational Requirements” portion of the Operations and Maintenance Requirements.
(g)Without limiting the generality of any other term or provision of this Agreement, the Port Authority at any time, and from time to time, shall have the right to enter upon the Premises and to take over the operation, implementation, maintenance or any other aspects of the Exclusive Area Agreement, in whole or in part, and with or without cause. Upon notice from the Port Authority of its intention to do so, the Lessee will immediately turn over to the Port Authority access to and control of all material, equipment, supplies, personnel and records necessary for the implementation of the Exclusive Area Agreement and shall accord the Port Authority complete access to the Premises and cooperation for the purpose of taking over and carrying out the Exclusive Area Agreement; provided, however, that the Port Authority shall use reasonable efforts to minimize the effect and duration of any disruption to or impairment of the Work or the use and occupancy of the Premises. The Port Authority’s incremental cost of operation, implementation and maintenance of the Exclusive Area Agreement and compliance with any security directives or similar orders or directives shall be paid by the Lessee to the Port Authority.
(h)The Port Authority is entitled to seek specific performance, injunction or any other remedies at law or in equity with respect to any breach of the Lessee’s obligations under this Section 12 (Exclusive Area Agreement).
(i)Pursuant to Section 19 (Indemnity), the Lessee shall indemnify and hold harmless the Port Authority Indemnified Parties from and against all claims and demands for death, personal injuries, property damages, fines (including any fines from the TSA), penalties, liquidated damages or other monies arising out of any act or omissions of the Lessee with respect to the operation, maintenance and implementation of the Exclusive Area Agreement (except, with respect to the Lessee’s obligations to indemnify the Port Authority and its officers, employees, agents and authorized representatives, to the extent third party claims or demands arise solely from the Port Authority’s negligence or willful misconduct of the Port Authority or any officer, employee, agent or authorized representative of the Port Authority.) The Lessee shall have no obligation to the Port Authority and the Port Authority shall assume responsibility for any claims or demands in connection with the Exclusive Area Agreement: (i) arising because the Port Authority has failed to provide to the Lessee a notice regarding material information concerning the Exclusive Area Agreement and about which the Lessee is otherwise unaware or (ii) arising after the Port Authority has taken over and is implementing the Exclusive Area Agreement (except to the extent the Port Authority’s actions arise from the Lessee’s willful misconduct, negligence or any other conduct of the Lessee inconsistent with the Exclusive Area Agreement).
Section 13.    Rules and Regulations
(a)The Lessee covenants and agrees to observe and obey, at the Lessee’s cost and expense, except to the extent set forth in Section 5(cc)(1)(vii) with respect to Qualifying D&C Changes (and to require all its officers, employees, members (if the Lessee is a limited liability entity), managers (if the Lessee is a limited liability entity), partners (if the Lessee is a partnership), Sublessees, guests, patrons, invitees, Contractors and furnishers of services and those doing business with it, to observe and obey) the existing Rules and Regulations and airport standards of the Port Authority and such Rules and Regulations Changes and airport standards of the Port Authority governing the conduct and operations of the Lessee and others on the Premises as may from time to time during the letting be promulgated by the Port Authority in the public interest or for reasons of security, safety, health, sanitation, good order and the economic and efficient operation of the Airport. The obligation of the Lessee to require such observance and obedience on the part of its Sublessees, guests, patrons, invitees, business visitors, Contractors and furnishers of services, and those doing business with it, shall apply only while such persons are on the Premises or the Rights of Access, or are otherwise engaged in activities in connection with this Agreement whether within the Airport or otherwise. The Port Authority agrees that, except in cases of emergency or a life, health, security, safety, environmental or operational deficiency or hazard, it will give notice to the Lessee of every Rules and Regulations Change adopted by it at least ten (10) days before the Lessee shall be required to comply therewith, (i) by delivery of a copy thereof to the Lessee, (ii) by making a copy available at the office of the Secretary of the Port Authority (with a notice to the Lessee informing the Lessee that such copy is available at such office) or (iii) by making an electronic copy available on the Port Authority website www.panynj.gov (with a notice to the Lessee informing the Lessee that such copy has been posted to the website).
(b)The use by the Lessee and its officers, employees, members (as aforesaid), managers (as aforesaid), partners (as aforesaid), Sublessees, guests, patrons, invitees, Contractors, furnishers of services and those doing business with it, of the Public Aircraft Facilities, if permitted hereunder, and any and all other portions of the Airport which it may be entitled to use under this Agreement (other than space leased to the Lessee for its exclusive use), shall be subject to the existing Rules and Regulations and Airport Standards Manual of the Port Authority and, such Rules and Regulations Changes and airport standards as the Port Authority may from time to time promulgate in the public interest or in the interest of health, safety, sanitation, good order and the economic and efficient operation of the Airport. Without limiting the foregoing, the Port Authority may take into account in adopting any Rules and Regulations Changes and airport standards the adequacy, capacity, security and suitability of (i) aircraft using the Airport, (ii) passenger handling facilities at the Airport, (iii) the Public Aircraft Facilities at the Airport, (iv) the roadways and (v) the parking facilities. In the event the Port Authority promulgates Rules and Regulations Changes or airport standards pursuant to this paragraph (b), the Port Authority may devise and implement procedures governing the affected use of the Public Aircraft Facilities including, but not limited to, allocations among lessees at the Airport.
Section 14.    Various Obligations of the Lessee.
(a)Conduct of Operations.
(1)    The Lessee shall conduct its operations hereunder in an orderly and proper manner so as not to annoy, disturb or be offensive to others at or off the Airport. The Lessee shall take all reasonable measures, consistent with those required by Section 14(a)(2), to eliminate vibrations originating on the Premises tending to damage any equipment, structure, building or portion of a building, which is on the Premises, or is a part thereof, or is located elsewhere on or off the Airport.
(2)    The Lessee shall diligently conduct all its operations at the Premises in a safe and careful manner, following in all respects the best practices of the Lessee’s industry in the United States of America.
(b)In performing the Operations and Maintenance Work, the Lessee shall promptly comply, at the Lessee’s cost and expense, with any direction issued by the Port Authority (including any bulletin, directive or other official instruction issued by the General Manager of the Airport), including, but not limited to, installing façade glass protection, frontage bollards or specific additions to fencing (i.e., concertina wire), public address system, patron signage, physical equipment, access control system, comprehensive CCTV coverage or other situation awareness equipment (which may include providing the Port Authority with access to CCTV for situation awareness), in each case, to (i) remedy any emergency or life, health, security, safety, environmental or operational deficiency or hazard, or (ii) cause the Lessee to comply with Applicable Law, Applicable Standards, the Exclusive Area Agreement, the Airport Security Program or any TSA-issued security directives, information circulars and public advisories which the Lessee has failed to comply with.
(c)Lessee’s Employees. The Port Authority shall have the right to object to the Lessee regarding the conduct and demeanor of Sublessees and of the employees of the Lessee whereupon the Lessee will take all steps reasonably necessary to remove the cause of the objection. If requested by the Port Authority, the Lessee shall supply and shall require its employees and Sublessees’ employees to wear or carry badges or other suitable means of identification, which shall be subject to the prior and continuing approval of the General Manager of the Airport or the Port Authority’s Chief Security Officer or designee.
(d)Vehicular Traffic. The Lessee shall control all vehicular traffic on the roadways and other areas within the Premises and shall take all precautions necessary to promote the safety and security of its customers, patrons, business visitors and all other persons, and the Premises itself. The Lessee shall employ such means as may be necessary to direct the movement of vehicular traffic within the Premises to prevent traffic congestion on the public roadways leading to the Premises.
(e)Waste Disposal. The Lessee shall remove from the Airport or otherwise dispose of in a manner approved by the General Manager of the Airport all garbage, debris, and other waste materials (whether solid or liquid) arising out of its occupancy of the Premises or out of its operations, including within the Rights of Access or the O&M Access Areas, in compliance with all Environmental Requirements. Any such waste materials which may be temporarily stored in the open shall be kept in suitable garbage and waste receptacles, the same to be made of metal or other suitable material and equipped with tight fitting covers and to be of a design safely and properly to contain whatever material may be placed therein. The Lessee shall use extreme care when effecting removal of all such waste materials and shall effect such removal at such times and by such means as first are approved in advance in writing by the Port Authority. No such garbage, debris, or other waste materials shall be or be permitted to be thrown, discharged or deposited into or upon the waters at or bounding the Airport.
(f)Fire Safety. From time to time and as often as required by the Port Authority, the Lessee shall conduct pressure, water-flow, and other appropriate tests of the fire-extinguishing system and apparatus, fire-alarm and smoke detection systems and any other fire protection systems which constitute a part of the Premises. The Lessee shall keep in proper functioning order all fire-fighting equipment, fire alarm and smoke detection equipment on the Premises. The Lessee shall at all times maintain on the Premises adequate stocks of fresh, usable chemicals for use in such systems and apparatus in accordance with the Environmental Requirements. The Lessee shall notify the Port Authority prior to conducting such tests. If requested by the Port Authority, the Lessee shall furnish the Port Authority with a copy of written reports of such tests.
(g)Minimization of Pollution and Noise. In addition to compliance by the Lessee with all Applicable Laws and Applicable Standards, including, without limitation, all Environmental Requirements and Rules and Regulations now or at any time in effect during the Term hereunder which as a matter of law are applicable to the operation, use or maintenance by the Lessee of the Premises or the operations of the Lessee under this Agreement (the foregoing not to be construed as a submission by the Port Authority to the application to itself of such requirements or any of them), the Lessee agrees that it shall perform the D&C Work exercising the highest degree of safety and care, and shall conduct the Operations and Maintenance Work under this Agreement and shall operate, use and maintain the Premises in accordance with the highest standards and in such manner that there will be at all times a minimum of air pollution, water pollution or any other type of pollution and a minimum of noise emanating from, arising out of or resulting from the operation, use or maintenance of the Premises by the Lessee and from the operations within the Premises, the Rights of Access and the O&M Access Areas or otherwise conducted by or under the direction of the Lessee within the Airport under this Agreement. Accordingly, and in addition to all other obligations imposed on the Lessee under this Agreement and without diminishing, limiting, modifying or affecting any of the same, the Lessee shall be obligated to construct as part of the D&C Work hereunder such structures, fences, equipment, devices and other facilities as may be necessary to accomplish the foregoing and each of the foregoing shall be and become a part of the D&C Work hereunder. In addition, the Port Authority reserves the right from time to time and at any time during the Term subsequent to the completion of the D&C Work to require the Lessee, and the Lessee agrees, at its sole cost and expense, to design and construct such further structures, fences, equipment, devices and other facilities as may be necessary to accomplish the objectives as set forth in the first sentence of this Section 14(g), provided that such requirements are imposed in a Non-Discriminatory Manner. All locations, the manner, type and method of construction and the size of any of the foregoing shall be determined by the Port Authority. The Lessee shall submit for Port Authority approval in accordance with this Agreement and the TCAP Manual its plans and specifications covering the required work and upon receiving such approval shall proceed diligently to construct the same. All other provisions of Sections 5 (Design and Construction by the Lessee), 73(b) and 76 (Environmental Compliance and Related Matters) shall apply and pertain with like effect to any work that the Lessee is obligated to perform pursuant to this Section 14(g) and upon completion of each portion of such work it shall be and become a part of the Premises. The obligations assumed by the Lessee under this paragraph shall not be relieved or diminished by the fact that the Port Authority shall have approved any construction application and supporting plans, specifications and contracts covering D&C Work, or that the Port Authority’s recommendations or requirements have been incorporated therein.
(h)Noise from Aircraft Engine Operations. It is the intention of the parties hereto that noise caused by aircraft engine operations shall be held to a minimum considering the nature of the Lessee’s operations. To this end the Lessee shall conduct its operations in such a manner as to keep the noise produced by aircraft engines to a minimum and where appropriate shall employ noise arresting and noise reducing devices that are suitable. Aircraft testing and aircraft run-ups will be conducted only in such areas as shall meet with the prior and continuing approval of the Port Authority. The obligations assumed by the Lessee under this Section 14(h) shall not diminish, limit, modify or affect all other obligations of the Lessee with respect to noise under this Agreement.
(i)Jet or Prop Blast Interference. In its use of the Premises, the Lessee shall use its best efforts to minimize jet or prop blast interference to aircraft operating on or to buildings and structures now located on or which in the future may be located on areas adjacent to the Premises. In the event the Port Authority determines at any time and from time to time that the Lessee has not so minimized the jet or prop blast interference, it may serve a notice on the Lessee to such effect and if the condition is not corrected to the satisfaction of the Port Authority within thirty (30) days after the service of said notice, the Lessee hereby covenants and agrees to erect and maintain at its own expense such structure or structures as may be necessary to minimize the said jet or prop blast interference, subject, however, to the prior written approval of the Port Authority as to the type, manner and method of construction. The obligations assumed by the Lessee under this paragraph shall not diminish, limit, modify or affect all other obligations of the Lessee with respect to interference under this Agreement.
(j)Security Plan. The Lessee must provide and implement a security plan that is in compliance with the TCAP Manual and the Lessee must maintain such compliance and implementation of a security plan throughout the term of the letting hereunder.
(k)Oil Separators. The Lessee shall periodically inspect, clean out and maintain the oil separators, if any, located on the Premises, and the oil separators located outside the Premises, if any, if they exclusively serve the Premises.
(l)Access to Public Landing Area.
(1)    The Lessee shall prevent access by persons or vehicles (unless duly authorized by the Port Authority) to the Public Landing Area from the Premises except for aircraft, which aircraft shall be equipped with radio receivers tuned to control tower frequencies and adequately manned in accordance with applicable Port Authority Rules and Regulations. Such aircraft may be towed by a motor vehicle equipped with a radio receiver tuned to the appropriate control tower frequency and adequately manned, or by such other means as may be approved by the Port Authority. The Lessee shall control access by its passengers and patrons from and to aircraft ramp, apron and parking areas on the Premises and shall maintain control of its passengers and patrons while they are upon said areas by proper measures to insure that the highest standards of safety are maintained.
(2)    The Lessee shall furnish adequate security and guard service on a 24-hour, seven day‑a‑week basis (or take such comparable measures as approved by the Port Authority from time to time) for the prevention of access to and control of persons on the aeronautical operations areas of the Premises and the prevention of access to the Public Landing Area.
Section 15.    Prohibited Acts.
(a)Nuisance. The Lessee shall commit no unlawful nuisance, waste or injury on the Premises or at the Airport and shall not do or permit to be done anything which may result in the creation or commission or maintenance of such nuisance, waste or injury on the Premises or at the Airport.
(b)Obnoxious Odors, Etc. The Lessee shall not create nor permit to be caused or created upon the Premises any obnoxious odors or smokes, or noxious gases or vapors. The creation of exhaust fumes by the operation of the Lessee’s internal-combustion engines or aircraft engines of other types, so long as such engines are maintained and are being operated in a proper manner, shall not be a violation of this paragraph.
(c)No Interference with Systems. The Lessee shall not do or permit to be done anything which may interfere with the effectiveness or accessibility of the drainage and sewerage system, water system, communications system, fuel system, electrical system, fire-protection system, sprinkler system, alarm system, fire hydrants and hoses and other systems, if any, installed or located on, under, or in the Premises.
(d)Safety Violations. The Lessee shall not itself do nor shall the Lessee give its permission to any other to do any act or thing upon the Premises or at each of the Existing Terminal Facilities and New Terminal Facilities (1) which will invalidate or conflict with any fire insurance, extended coverage or rental insurance policies covering the Premises or any part thereof, or the Existing Terminal Facilities and New Terminal Facilities or any part thereof, or (2) which, in the opinion of the Port Authority, may constitute an extra-hazardous condition so as to increase the risks normally attendant upon the operations contemplated by Section 8 (Use of Premises). The Lessee shall promptly observe, comply with and execute the provisions of any and all present and future rules and regulations, requirements, orders and directions of the Insurance Services Offices of New York and the National Fire Protection Association, or of any other board or organization exercising or which may exercise similar functions, which may pertain or apply to the operations of the Lessee on the Premises, and the Lessee shall, subject to and in accordance with the provisions of Section 5 (Design and Construction by the Lessee), make any and all structural and non-structural improvements, alterations or repairs of the Premises that may be required at any time hereafter by any such present or future rule, regulation, requirement, order or direction. If by reason of any failure on the part of the Lessee to comply with the provisions of this paragraph any fire insurance rate, extended coverage or rental insurance rate on the Premises or any part thereof, or on each of the Existing Terminal Facilities and New Terminal Facilities or any part thereof, shall at any time be higher than it would be if the Premises were properly used for the purposes permitted by Section 8 (Use of Premises), then the Lessee shall pay to the Port Authority, as an item of additional rent, that part of all insurance premiums paid by the Port Authority which shall have been charged because of such violation or failure by the Lessee.
(e)Obstacles. The Lessee agrees that it will not erect, construct or maintain or otherwise create or continue any obstacle or park or store any aircraft or other object on the Premises so as to create any obstacle that will hamper or interfere with the free, orderly, unobstructed and uninterrupted passage of vehicles or aircraft while such vehicle is operating or aircraft is taxiing or being transported or towed along the runways, taxiways and roads outside of and adjacent to the Premises.
(f)Waste. The Lessee shall not dispose of nor permit any one to dispose of any waste material (whether liquid or solid) by means of the toilets, manholes, sanitary sewers or storm sewers in the Premises or on the Airport except after treatment in installations or in equipment included in plans and specifications submitted to and approved by the Port Authority.
(g)Automotive Operation. The Lessee shall not operate any engine or any item of automotive equipment in any enclosed space on the Premises unless such space is adequately ventilated and unless such engine or item of automotive equipment is equipped with a proper spark-arresting device which has been approved by the Port Authority.
(h)Vending Machines; Sale of Merchandise or Other Services.
(1)    The Lessee shall not install, maintain or operate, or permit the installation, maintenance or operation on the Premises of any vending machine or device designed to dispense or sell food, beverages, tobacco, tobacco products or merchandise of any kind whether or not included in the above categories, or of any restaurant, cafeteria, kitchen, stand or other establishment of any type for the preparation, dispensing or sale of food, beverages, tobacco, tobacco products, or merchandise of any kind, whether or not included in the above categories, or of any equipment or device for the furnishing to the public of service of any kind including, without limitation, thereto, telephone pay-stations, unless the Lessee obtains the prior written consent of the Port Authority.
(2)    The Port Authority, by itself or by contractors, lessees or permittees, shall have the exclusive right to install, maintain and receive the revenues from all coin-operated or other vending machines or devices installed by it and operated on the Premises for the sale of merchandise of all types or for the rendering of services; provided, however, that no such machine or device shall be installed except upon the request of the Lessee. If the Port Authority does not install and maintain any such machine that the Lessee may reasonably request, the Lessee shall have the right to do so; provided, however, (1) that the Lessee shall pay or cause to be paid to the Port Authority each month for each machine upon the same basis for the preceding month as any concessionaire, permittee or licensee of the Port Authority then operating machines at the Airport for the sale of similar merchandise or the rendering of similar services, and (2) that in the event the Lessee exercises such right, the Port Authority at any time thereafter, may substitute for the Lessee’s machines other machines selling similar merchandise or services operated by the Port Authority or by its licensee, permittee or concessionaire, and thereupon the Lessee shall remove its machines.
(i)Floor Overload. The Lessee shall not overload any floor and shall repair any floor, including supporting members, and any paved area damaged by overloading. Nothing in this paragraph or elsewhere in this Agreement shall be or be construed to be a representation by the Port Authority of the weight any floor or paved area will bear.
(j)Fueling. The Lessee shall not fuel or defuel its automotive vehicles or other equipment in the enclosed portion of the Premises without the prior approval of the General Manager of the Airport.
(k)Cleaning Materials. The Lessee shall not use any cleaning materials having a harmful or corrosive effect, on any part of the Premises, except those cleaning materials that are used in the ordinary course of office and cargo handling operations; provided, however, that, the storage and use of any such harmful or corrosive materials are in compliance with all Applicable Laws, rules, ordinances, resolutions or regulations of the type and nature described in Sections 10 (Compliance with Governmental Requirements) and 13 (Rules and Regulations) and complying with the provisions of Section 76(a)(1).
(l)Use of Structural Members. The Lessee shall not use or permit the use of any truss or structural supporting member of the building or roof or any part thereof for the storage of any material or equipment, or to hoist, lift, move or support any material or equipment or other weight or load, by means of said trusses or structural supporting members, without the prior written approval of the Port Authority.
(m)Flammable Liquids. The Lessee shall not keep or store during any twenty-four (24) hour period flammable liquids within the enclosed portion of the Premises in excess of the Lessee’s working requirements during the said twenty-four (24) hour period. Any such liquids having a flash point of less than 110° F, shall be kept and stored in safety containers of a type approved by the Underwriter Laboratories of the Factory Mutual Insurance Association. The Lessee shall not keep or store in the Premises explosives, flammable liquids or solids or oxidized materials, except in accordance with the requirements of this paragraph (m).
(n)Storage of Aviation Fuel.     The Lessee shall not keep or store aviation fuel on the Premises, except that fueling equipment may be operated on the Premises in accordance with the provisions of Section 75 (Storage Tanks and Pipelines) and with the Port Authority Rules and Regulations pertaining thereto, and with Airport fueling agreements covering underground fueling systems that are approved in writing by the Port Authority, if applicable.
Section 16.    Care, Maintenance, Rebuilding and Repair by the Lessee.
(a)Operations. The Lessee shall, throughout the Term, be responsible for and shall commence and continue performance of all Operations and Maintenance Work. Notwithstanding anything to the contrary herein, the Lessee’s obligation to perform the Operations and Maintenance Work with respect to (i) each portion of the Existing Terminal Facilities shall commence on the Effective Date and continue until the date on which such portion is no longer being operated by the Lessee and its Sublessees as a component of an airline passenger terminal, and (ii) each Partial Occupancy Portion of the New Terminal Facilities that is available for use and occupancy by the Lessee and its Sublessees shall commence on the date on which a “Temporary Certificate of Authorization to Occupy or Use” such Partial Occupancy Portion is issued pursuant to Section 5(v)(2) and shall continue until the Expiration Date or an earlier termination date, except as otherwise provided herein or otherwise agreed by the Lessee and the Port Authority.
(b)Maintenance and Repair. The Lessee shall, throughout the Term, assume the entire responsibility and shall relieve the Port Authority from all responsibility for Operations and Maintenance Work whatsoever in the Premises (subject to Section 16(c)), whether such Operations and Maintenance Work be ordinary or extraordinary, partial or entire, inside or outside, foreseen or unforeseen, structural or otherwise, and without limiting the generality of the foregoing, the Lessee shall:
(1)Be responsible for all subleasing within the Premises, ramp control, consumer/concessions services development and management, branding and facility maintenance, vertical transportation, people moving systems, loading bridge and bag system maintenance and janitorial services;
(2)Keep at all times in a clean and orderly condition and appearance, the Premises and all the Lessee’s fixtures, equipment and personal property which are located in any part of the Premises which is open to or visible by the general public;
(3)Remove all snow and ice on the Premises and perform all other activities and functions necessary or proper to make the Premises available for use by the Lessee and its Sublessees and invitees, patrons, contractors, suppliers and others;
(4)Take good care of the Premises and maintain the same at all times in first-class condition, perform all necessary preventive maintenance including, but not limited to, painting (the exterior of the structures on the Premises and areas visible to the general public to be painted only in colors which have been approved by the Port Authority); and make all repairs and replacements and, subject to and in accordance with the provisions of Section 5 (Design and Construction by the Lessee), do all rebuilding, inside and outside, ordinary and extraordinary, partial and entire, foreseen and unforeseen, structural or otherwise, which repairs, rebuilding and replacements by the Lessee shall be in quality and class not inferior to the original in materials and workmanship; and to pay promptly the cost and expense of such repairs, replacements and maintenance;
(5)Without limiting its obligations elsewhere in this Section, the Lessee agrees to perform all decorating and painting (including redecorating and repainting) so that at all times the Premises and all parts thereof are in first-class appearance and condition;
(6)Provide and maintain all obstruction lights and similar devices on the Premises, and provide and maintain all fire-protection and safety equipment and all other equipment of every kind and nature required by any law, rule, ordinance, resolution or regulation of the type and nature described in Sections 10 (Compliance with Governmental Requirements), 13 (Rules and Regulations) and 21 (Obstruction Lights). The Lessee shall insure that all fire alarm signals with respect to the Premises shall also be transmitted to the Airport’s police emergency alarm board or to such other location on the Airport as the General Manager of the Airport may direct. The Lessee’s obligations hereunder shall in no way create any obligation whatsoever on the part of the Port Authority;
(7)Take such anti-erosion measures and maintain the landscaping on the Premises at all times in good condition including, but not limited to, periodic planting and replanting, as the Port Authority may require, and perform and maintain such other landscaping with respect to all portions of the Premises not paved or built upon as the Port Authority may require;
(8)Repair any damage to the paving or other surface of the Premises caused by any oil, gasoline, grease, lubricants or other flammable liquids and substances having a corrosive or detrimental effect thereon;
(9)Be responsible for all paving, lighting, signage, storm drains, culverts, cables, supporting structures, cleaning and snow and ice removal in connection with existing and future access roadways which are located on the Premises, other than the access roadway identified as “Elevated Roadway Excluded from Delta O&M Responsibility” and shown in red vertical hatching in Exhibit 6 (Delta Leasehold) (page 2 of 2), which shall be the Port Authority’s responsibility; and
(10)Repairs to security systems, including but not limited to CCTV or access control, to be commenced within two (2) hours of detection of any such system malfunction or, if detection is made at times other than ordinary business hours, as soon as practicable pursuant to diligent efforts by the Lessee to arrange for repair at the earliest feasible time.
(c)Maintenance of Utilities. The Lessee shall be responsible for the maintenance, testing and repair of the Utilities, whether located upon the Premises or off the Premises, (i) that serve the Premises exclusively (other than such Utilities located on the Premises and specifically identified on Exhibit 12 (Utility O&M Responsibilities) as the responsibility of the Port Authority or other non-Lessee party as well as the off-Premises portion of such Utilities), and (ii) such other Utilities specified as the Lessee’s responsibility on Exhibit 12 (Utility O&M Responsibilities). The Parties acknowledge that Exhibit 12 (Utility O&M Responsibilities) is for the sole purpose of identifying the Utilities for which the Lessee shall be responsible for maintaining, testing and repairing, and not necessarily to depict the precise locations and routing of such Utilities; notwithstanding any inaccuracies with respect to location or routing on such Exhibit, the Lessee shall be responsible for such Utilities in accordance with this Section 16(c). The Port Authority agrees to cooperate with the Lessee in arranging for access by the Lessee to all such Utilities off the Premises. The Lessee shall have no obligation to maintain, test or repair any other Utilities upon the Premises or off the Premises.
(d)Operations and Maintenance Work Standards. The Lessee shall carry out the Operations and Maintenance Work in accordance with (i) Best Management Practice, (ii) the requirements, terms and conditions set forth in this Agreement and the other Project Documents, all Applicable Laws and Applicable Standards, and (iii) the requirements, terms and conditions set forth in all Governmental Approvals.
(e)Airport Performance. The Lessee shall at all times perform the Operations and Maintenance Work to ensure ongoing compliance with the “Airport Performance Measurement Program” established in the Customer Care Standards and shall meet or exceed the Customer Care Standards, provided that the Lessee shall not be required to comply with any portion of such Customer Care Standards to the extent such Customer Care Standards are preempted or superseded by Applicable Law.
(f)Port Authority Right to Perform at Lessee’s Cost.
(1)In the event the Lessee fails to commence to maintain, clean, repair, replace, rebuild or paint within a period of thirty (30) days after notice from the Port Authority so to do (or, with respect to a security system malfunction, within the time frame required by Section 16(b)(10)) or in the event that the said notice specifies that the required work to be accomplished by the Lessee includes maintenance or repair other than preventive maintenance, or within a period of ten (10) days if the said notice specifies that the work to be accomplished by the Lessee involves preventive maintenance only, or fails diligently to continue to completion the repair, replacement, rebuilding or painting of all of the Premises required to be repaired, replaced, rebuilt or painted by the Lessee under the terms of this Agreement, the Port Authority may, at its option and in addition to any other remedies which may be available to it, repair, replace, rebuild or paint all or any part of the Premises included in the said notice, and the cost thereof shall be payable by the Lessee upon demand.
(2)If the performance of any of the foregoing repair, maintenance, replacement, repainting or rebuilding obligations of the Lessee requires work to be performed near an active Taxiway or where safety of operations is involved, the Lessee shall at its own expense, unless otherwise permitted by the Port Authority in writing, post guards or take such other appropriate measures as may be directed by the General Manager of the Airport to ensure that such work is performed safely.
Section 17.    Damage to or Destruction of Premises
(a)Removal of Debris.  If the Premises, or any part thereof, shall be damaged by fire, the elements, the public enemy or other casualty, the Lessee shall promptly remove all debris resulting from such damage from the Premises, and to the extent, if any, that the removal of debris under such circumstances is covered by insurance, the proceeds thereof (other than proceeds of any business interruption or similar insurance) actually made available to the Lessee shall be used by the Lessee for that purpose in compliance with paragraph (b) below, subject to any requirements in the Lessee’s Financing Documents, if any, regarding the conditions to the release of the proceeds of casualty insurance from the collateral account of the Lessee.
(b)Damage to the Premises.  If the Premises, or any part thereof, shall be damaged by fire, the elements, the public enemy or other casualty, the Premises shall be restored, replaced and rebuilt by the Lessee with due diligence in accordance with the plans and specifications for the Premises, including, without limitation, the same or higher quality of materials, as they existed prior to such damage by and at the expense of the Lessee and if such damage is covered by insurance, the proceeds thereof (other than proceeds of any business interruption or similar insurance) actually made available to the Lessee shall be used by the Lessee for that purpose, subject to any requirements in the Lessee’s Financing Documents if any, regarding the conditions to the release of the proceeds of casualty insurance from the collateral account of the Lessee; it being understood that, notwithstanding anything to the contrary in the Lessee’s Financing Documents, no portion of casualty insurance proceeds can be used for any purpose other than the restoration, replacement and rebuilding of the Premises until the Premises have been restored as required by this paragraph (b), to the Port Authority’s satisfaction. Provided that the Lessee has carried insurance required by this Section 17 (Damage to or Destruction of the Premises), in the event that a casualty event occurs (other than a result of the breach, gross negligence or willful misconduct of the Lessee, its agents, employees, officer, directors, shareholders, managers, members or partners, or any of its Contractors, as applicable, in which case the Lessee shall not be entitled to propose a plan as provided in this sentence) with respect to which the amount of insurance proceeds received by the Lessee is insufficient to restore, replace and rebuild the affected facilities as set forth above, then the Lessee may promptly propose a plan with respect to (i) reasonable modifications to the affected facilities that would allow such facilities to be restored, replaced and rebuilt, solely with the insurance proceeds made available for such purpose (including by making use of reasonable value engineering or other design approaches to reduce applicable rebuilding costs) at least to the extent of the value and as nearly as possible to the condition, quality and class of such affected facility existing immediately prior to such casualty and (ii) any modifications to the technical requirements of this Agreement applicable to the D&C Work (including the Requirements and Provisions for Work) that may be necessary or appropriate to implement the proposed modifications to the affected facilities. The Lessee’s plan will be subject in all respects to the Port Authority’s approval in its sole discretion, such approval to be received before any restoration, replacement or rebuilding may commence. If the Lessee has exercised its right to terminate the letting hereunder in accordance with Sections 54 (Termination by Lessee) and 55 (Effect of Termination by Lessee), subject to the rights of the Recognized Mortgagee pursuant to Section 89 (Project Financing), the Lessee shall turn over all casualty insurance proceeds to the Port Authority promptly as and when received or otherwise ensure receipt by the Port Authority of all casualty insurance proceeds.
(c)Section 227 of the RPL. The Lessee hereby expressly acknowledges and agrees that, except to the extent provided in Section 54(a)(1)(i), no damage or destruction of the Premises shall entitle the Lessee to terminate or suspend the letting hereunder, or to be released or relieved of its obligations hereunder, including without limitation the obligation to pay all rentals. The parties hereby stipulate that the provisions of this Section constitute an “express agreement to the contrary” pursuant to Section 227 of the Real Property Law of New York, and neither the provisions of Section 227 of the Real Property Law of New York nor those of any similar statute shall extend or apply to this Agreement.

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Section 18.    Insurance
(a)D&C Work Insurance. The Lessee shall procure, maintain and pay for, or cause its Contractors to procure, maintain and pay premium on, the following insurance policies until completion of the D&C Work, and for such longer period of time as specified herein:
(1)    Environmental Liability Insurance, providing coverage for environmental liability, including, but not limited to, coverage for sudden and accidental, and gradual, discharge of pollutants, by or on behalf of the Lessee (or any other insured). Coverage must have limits not less than $25,000,000 per occurrence and $50,000,000 in the aggregate, covering bodily injury, property damage (including natural resource damage) or environmental damage caused by pollution conditions resulting from operations performed by or on behalf of the Lessee. Coverage shall include clean-up of land/soil and structures thereon, air and of water (including groundwater) for which the insured(s) is legally liable. Should the policy be placed on a claims-made form, the retro period shall begin on the date that work commenced on the project; it shall also contain a 10-year reporting/discovery period, with discovery period commencing on the Completion Date. If placed on an occurrence form, the policy shall include a 10-year Completed Operations Period. The Lessee shall cause, or shall cause its Contractors to cause, its or their respective insurance carriers to automatically renew the environmental liability policy(ies) required herein on the same terms and conditions, including the same commencement date of the retro period. Such environmental liability policy(ies) shall (a) expressly include coverage for transportation exposures and non-owned disposal sites, (b) state that claims, disputes and coverage shall be litigated in United States courts having jurisdiction, and not be limited to arbitration, and (c) acknowledge the Lessee’s disclosure to the insurance carrier that the materials present on the Premises or otherwise subject to the insurance policies may be considered hazardous or toxic wastes or substances under Applicable Law including, but not limited to, the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. Section 6901 et. seq. and/or the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. Section 9601 et. seq. and/or the Toxic Substances Control Act, 15 U.S.C. Section 2601 et. seq. An extracted copy of this Section 18 (Insurance) of this Agreement shall be provided to the applicable insurance carrier(s). The Lessee has represented that it will procure and maintain a Contractor Pollution Liability CIP policy and a Pollution Legal Liability policy in order to satisfy the requirements herein. For purposes of this Section 18, “CIP” shall mean Contractor Controlled Insurance Program. The CPL policy must not include an asbestos, lead or microbial matter exclusion. Non-owned disposal sites must be licensed to accept hazardous waste.
(2)    Commercial General Liability Insurance, including Product Liability and Completed Operations coverage, with not less than a combined single limit of $100,000,000 per occurrence and $605,000,000 for bodily injury and property damage, and written on an ISO form CG 00 01 04 13 or its equivalent. Such insurance shall be maintained for a minimum of five (5) years after the Completion Date and shall:
(i)    include coverage for operation of mobile equipment within the insureds care, custody, and control;
(ii)    not contain exclusions for “action-over” claims;

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(iii)    not contain exclusion(s) pertaining to damage to aircraft;
(iv)    provide coverage for explosion, collapse, and underground property damage;
(v)    not contain exclusions for independent contractors; and
(vi)    not contain exclusion for “insured vs. insured” suits.
(3)    Commercial Automobile Liability Insurance covering owned, non-owned, and hired vehicles, automatically covering newly acquired vehicles, with limits of not less than $25,000,000 each accident combined single limit.
(4)    Workers’ Compensation Insurance and Employer’s Liability Insurance, each in accordance with the requirements of law, and provide waiver of subrogation in favor of the Port Authority and the City Insureds.
(5)    Professional Liability Insurance from the lead architect and designer, with a limit of $10,000,000 per claim and policy aggregate, providing coverage for the D&C Work, and all other architects, designers, engineers and others rendering professional services in connection with the D&C Work covered with a limit of $3,000,000 per claim and policy aggregate. If such insurance is provided on a claims-made basis, coverage shall be maintained for a period of not less than ten (10) years following the Completion Date, either by way of annual renewal to a corporate professional liability program or the purchase of an extended reporting period.
(6)    Owners Protective Professional Indemnity (OPPI) policy, with a limit of not less than $25,000,000 per claim and policy aggregate.
The Lessee shall have the right to satisfy the requisite insurance coverage amounts for such insurance through a combination of primary policies and umbrella and/or excess liability insurance policies, other than with respect to paragraph (4) above. Umbrella and/or excess liability insurance policies shall comply with all insurance requirements, terms and provisions set forth in this Agreement for the applicable type of coverage.
(b)Builder’s Risk Insurance. In addition to the insurance required in Section 18(a), the Lessee shall procure and maintain Builder’s Risk (All Risk) Completed Value Insurance on a completed value form, including coverage (to the maximum extent that each such coverage is commercially available) for terrorism, flood, earthquake, mold (to the extent ensuing from a separately covered cause of loss), delay in startup, and property in transit covering the D&C Work during the performance thereof, including material delivered to the Premises or off-Premises but not attached to the realty, or existing property, until the D&C Work is completed. Notwithstanding the foregoing, it is agreed by the Parties that in order to accommodate the construction phasing and sequencing of the D&C Work, the Lessee shall be permitted to procure and maintain Builder’s Risk coverage at any given time only with respect to those phases of the D&C Work which is being performed by the Lessee, and upon the issuance of a “Temporary Certificate of Authorization to Occupy or Use” in accordance with the TCAP Manual with respect to any Partial Occupancy Portion

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or Installation Portion, the Lessee shall no longer be required to maintain such policy with respect thereto; provided, that such Partial Occupancy Portion or Installation Portion is, as of the date of issuance of the applicable Temporary Certificate of Authorization to Occupy or Use, subject to coverage under an Operational Property policy satisfying the applicable requirements set forth in clauses (c) and (d) of this Section 18 (Insurance), such that no element, phase or completed portion shall be uninsured or underinsured with a Builder’s Risk policy or an Operational Property policy, as applicable, at any time. The Port Authority and the City Insureds shall be named as “additional named insureds” under the Builder’s Risk policy, and such policy shall provide that the loss shall be adjusted with and payable to the Lessee and to the Port Authority as each party’s interests may appear. Notwithstanding anything in this Agreement to the contrary, such proceeds shall be used by the Lessee for the restoration, replacement or rebuilding of the D&C Work.
(c)Operational Property Insurance. The Lessee shall, during the term of this Agreement, (including, for the avoidance of doubt, the D&C Work Period and any and all extensions) procure, maintain, and pay premium for, property insurance on the Premises on full replacement cost basis, including coverage for all buildings, structures, improvements, installations, facilities and fixtures now or in the future located on the Premises (including all or any portion of the Existing Terminal Facilities prior to demolition thereof). Such insurance shall be on an “all risk” policy form and include equipment breakdown insurance, and include coverage (to the maximum extent that each such coverage is commercially available) for terrorism, fire, flood and earthquake, and if not commercially available, then against such hazards and risks as may now or in the future be included under a standard “all risk” property insurance form in the State of New York. The foregoing insurance shall name the Port Authority and the City Insureds as “additional named insureds.” Proceeds of Operational Property insurance shall be used by the Lessee for the restoration, replacement, or rebuilding of the Premises.
(d)Business Interruption Insurance.
(1)    The following terms, when used in this clause (d), shall, unless the context shall require otherwise, have the respective meanings given below:
Gross Earnings” shall mean the amount not realized by the named insured during the period of indemnity which would have been earned from the commencement of operations or use and occupancy of the work if the delay had not occurred, consisting of:
(i)    The sum of:
(a)    Total net sales value of production;
(b)    Total net sales of merchandise; and
(c)    Other earnings derived from operations of the business;
(ii)    Less the cost of:

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(a)    Raw stock from which such production is derived;
(b)    Supplies consisting of materials consumed directly in the conversions of such raw stock into finished stock or in supplying the service(s) sold by the named insured;
(c)    Merchandise sold, including packaging materials thereof; and
(d)    Service(s) purchased from outsiders (i.e., not employees of the named insured) for resale which do not continue under contract.
No other cost shall be deducted in determining Gross Earnings.
Rental Income” shall mean revenues from rentals and leases not realized during the period of indemnity, which would have been earned by the named insured if the delay had not occurred, less non-continuing expenses.
Soft Costs” shall mean expenditures which are necessarily incurred during the period of indemnity, which would not have been incurred by the named insured if the delay had not occurred, including:
(i)Interest expense on construction loan(s);
(ii)Advertising and promotional expense;
(iii)Legal and accounting fees;
(iv)Commissions incurred upon renegotiation of leases;
(v)Fees for licensing and permits;
(vi)All insurance premiums related to the Operations and Maintenance Work;
(vii)Real estate taxes and assessments;
(viii)Project administration expense; and
(ix)Other, as accepted by the applicable insurer and scheduled.
(2)The Lessee shall, during the term of this Agreement, (including any and all extensions) procure, maintain, and pay premium for, business interruption insurance as shall be at least sufficient to cover, and applicable to, all Gross Earnings of the Premises on an actual loss sustained basis, including the Port Authority’s portion of concessions revenues pursuant to Section 36 (Concessions Revenue Share), all Rental Income (including the portion of such Rental Income that would be paid to the Port Authority as Ground Rent, Basic Rent and First Additional

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Rent pursuant to Section 7 (Rental)), and all Soft Costs, in each case, for a period no less than to the date of completion of any restoration, replacement or rebuilding of the Premises, for any business interruption losses in business revenue that occur when the Premises or any portion thereof is unusable or is out of operation due to any risks or hazards covered under the property insurance required by Section 18(c). The Lessee shall also procure a minimum of 365 days of extended period of indemnity covering the Business Interruption insurance required in this clause (d). The insurance coverages required by Section 18(c) and Section 18(d) and renewals thereof shall insure the Port Authority, the Lessee and the City Insureds, as their interests may appear. Losses shall be adjusted with the Lessee and the Port Authority and payable to the Lessee and, if the Lessee has incurred Lessee Debt, applied in accordance with the cash waterfall set forth in the applicable Financing Documents then in effect.
(e)Operational Liability Insurance. In addition to all other insurance required under this Section 18 (Insurance), the Lessee shall procure, maintain, and pay premium for, the following insurance policies during the term of this Agreement covering operations at both Existing Terminal Facilities or any portion thereof prior to demolition, and all or any portion of the New Terminal Facilities as they are completed:
(1)Commercial General Liability Insurance with not less than a combined single limit of $300,000,000 per occurrence for bodily injury and property damage, including, but not limited to, Terrorism, Products and Completed Operations and Premises Liability coverages. Such insurance shall be broadened to include, or equivalent separate policies shall provide, Cargo and Baggage Legal Liability and Liquor Liability.
(2)Commercial Automobile Liability Insurance covering owned, non-owned and hired vehicles and including automatic coverage for newly acquired vehicles, with limits of not less than $25,000,000 per accident combined single limit.
(3)Workers’ Compensation Insurance and Employer’s Liability Insurance, each in accordance with the requirements of law, and provide waiver of subrogation in favor of the Port Authority and the City Insureds.
(4)Environmental Impairment Liability Insurance with a combined single limit of $25,000,000 per claim and $50,000,000 in the aggregate for death, bodily injury, clean-up costs and property damage liability (including natural resource damage), business interruption/extra expenses and soft costs, covering both gradual and sudden and accidental pollution conditions. Such environmental impairment liability policy(ies) shall (a) expressly include coverage for transportation exposures and non-owned disposal sites, (b) state that claims, disputes and coverage shall be litigated in United States courts having jurisdiction, and not be limited to arbitration, and (c) acknowledge the Lessee’s disclosure to the insurance carrier that the material may be considered a Hazardous Substance under Applicable Law including, but not limited to, RCRA, and/or CERCLA, and/or the Toxic Substances Control Act, 15 U.S.C. Section 2601 et. seq. It should be noted that the substances may be considered “hazardous” under CERCLA, but not necessarily “hazardous” under RCRA and that such materials if RCRA “hazardous” would require a manifest and disposal certificate under RCRA at a Subtitle C hazardous waste disposal facility.

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A copy of this Agreement, including all schedules and documents attached hereto, shall be provided to the insurance carrier.
The Lessee shall have the right to satisfy the insurance coverage amounts for the insurance required pursuant to this Section 18 through a combination of primary policies and umbrella and/or excess liability insurance policies, other than with respect to Workers’ Compensation Insurance and Employer’s Liability Insurance. Umbrella and/or excess liability insurance policies shall comply with all insurance requirements, terms and provisions set forth in this Agreement for the applicable type of coverage, and shall be “follow form” of the primary insurance.
(f)General Requirements. The following requirements apply to all insurance coverages required by this Section 18 (Insurance) except where otherwise specifically noted:
(1)Insured Status. In addition to the Builder’s Risk policy and Operational Property policy, any CIP Commercial General Liability and Excess Liability policies shall name the Port Authority and the City Insureds as “additional named insureds.” Other than as otherwise expressly provided in this Section 18, all insurance required by this Section 18 (other than Professional Liability, Workers’ Compensation, Employer’s Liability and Owners Protective Professional Indemnity policies) shall name the Port Authority and each of the City Insureds as “additional insureds.” In the event any insurance policy provided by the Lessee in accordance with this Section 18 provides greater limits than those required herein, the additional insureds shall be entitled to, or shall share in, the full limits of such policy, and this Section 18 shall be deemed to require such full limits. The insurance coverages and renewals thereof required by this Section 18 shall insure the Port Authority, the Lessee and the City Insureds, as their interests may appear.
(2)Terrorism Coverage. The peril of terrorism shall not be excluded, where commercially available (as determined at the time of binding in consultation and agreement with the Port Authority and as otherwise determined by the Port Authority from time to time).
(3)Waiver of Subrogation. Waiver of subrogation shall be given in favor of all additional named insureds and additional insureds.
(4)Primary and Non-Contributory. The Lessee’s and its Contractors’ policies shall be primary and non-contributory.
(5)Severability of Interests (Cross Liability). All insurance policies required by this Section 18 (other than Professional Liability, Owners Protective Professional indemnity, Contractor Pollution Liability, Pollution Legal Liability) shall not contain a cross-liability exclusion which restricts or bars coverage for a claim brought by an additional named insured against a named insured or by a named insured against an additional named insured. The cross-liability exclusion contained in the Contractor Pollution Liability and Pollution Legal Liability policies must allow for claims by the Port Authority.
(6)Insurance Procured through Contractors. Each insurance policy required hereunder shall be in addition to all policies of insurance otherwise required by this Agreement, or the Lessee may provide such insurance by requiring each Contractor engaged by it

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for the D&C Work to procure and maintain such insurance in accordance with the requirements set forth herein. Should the Lessee choose to procure insurance through its Contractors, the Lessee shall demonstrate to the Port Authority’s satisfaction the Lessee’s ability in and competence with managing such insurance requirements. The Lessee shall be responsible to maintain, enforce, and ensure that the type of coverages and all limits maintained by it and any/all Contractors and subcontractors are accurate, adequate, and in compliance with the Port Authority insurance requirements set forth herein. The Lessee shall cause each such Contractor to include the additional named insureds specified in the applicable insurance policies as required under this Section 18. If requested by the Port Authority, the Lessee shall promptly provide certificates of insurance evidencing coverage for each Contractor. If the Lessee does procure insurance through its Contractors as aforesaid, certificates of insurance and any other documentation required of the Lessee by this Section 18 shall similarly be required to be provided to the Port Authority by the Contractor or by the Lessee on behalf of the Contractor.
(7)Dedicated Insurance. All insurance coverage required to be provided by the Lessee, any Contractor and any concession manager, other than any business automobile liability or workers’ compensation insurance, shall extend throughout the Term to all aspects of the Work, whether by separate insurance policies or practice policies with coverage limits devoted solely to the Work and the Premises, except as expressly set forth in this Section 18; provided, that such practice policies otherwise meet all requirements described in this Section 18. The Lessee shall ensure that the insurance under this Agreement shall be seamless among and between the D&C Work Period, each phase of the D&C Work, the period during which the Operations and Maintenance Work is being performed with respect to the Existing Terminal Facilities and any portion thereof and with respect to the New Terminal Facilities and any portion thereof, and shall not contain lapses or gaps in coverage. Any insurance necessary to be obtained and maintained in order to avoid any lapses or gaps in coverage shall be paid for and be the sole responsibility of the Lessee.
(8)Notice of Cancellation, Modification or Termination. All policies required under this Section 18 shall include an endorsement providing that policies shall not be cancelled, terminated, changed or modified except upon ninety (90) days’ prior written notice to the Port Authority. Evidence of coverage satisfactory to the Port Authority for renewal policies, including carrier insurance binders and certificates of insurance, shall be delivered to the Port Authority at least fifteen (15) days prior to the expiration of the insurance which such policies are to renew.
(9)Certificates. The Lessee shall furnish confirmations of coverage including carrier insurance binders and certificates of insurance evidencing all coverages required of Sections 18(a) through 18(e) to the Port Authority by no later than five (5) days prior to the Effective Date. Any renewals shall be similarly documented and delivered to the Port Authority at least thirty (30) days prior to the expiration date of each expiring policy. An executed copy of any of the policies required by this Section 18 shall be delivered to the Port Authority upon the Port Authority’s written request; provided that confirmations of coverage, including carrier insurance binders and certificates of insurance, for corporate insurance policies used to satisfy the insurance coverages and policies required under this Section 18 shall be made available for review by the Port Authority from time to time at the Port Authority’s request and, to the extent such confirmations of

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coverage are located outside of the Port of New York District, the Lessee shall make such confirmations of coverage available in electronic form or pay the Port Authority all Travel Costs incurred in connection with such review in accordance with the procedures set forth in Section 96(e)(2) hereof.
(10)Nature of Insurers; Commercial Availability. Subject to the other applicable provisions of this Agreement, all insurance required by this Section 18 (Insurance) shall be issued by insurance carriers having an A.M. Best Rating of at least A- (VIII) or an equivalent rating by a comparable insurance rating agency or by an Insurance Subsidiary. All insurance coverages and policies required under this Section 18 may be reviewed by the Port Authority for adequacy of terms, conditions and limits of coverage at any time. The Port Authority may, at any time during the Term for any reason upon written notice to the Lessee, require an increase in minimum limits, changes in deductibles, or other additions, deletions, amendments or modifications to the required coverage with respect to any insurance or any related term thereof (either in form or substance), or other or additional or replacement insurance, in any amounts or against any insurable risks, perils or hazards, or the replacement of carriers issuing such policies (a “Port Authority Insurance Change”), and the Lessee shall promptly comply with the Port Authority Insurance Change; provided, that the Lessee may request in writing that the Port Authority reconsider a Port Authority Insurance Change, or the limit, coverage, or other terms of any insurance required by this Section 18, and make adjustments thereto, on grounds that such Port Authority Insurance Change, or such limit, coverage or other terms of such required insurance, is (i) commercially unavailable, (ii) only available at premiums that are disproportionate to the coverage provided, and/or (iii) not customarily required for comparable large urban commercial air passenger terminals within the United States of America. The Lessee shall provide supporting information and materials to justify its request, and the Port Authority shall review and render a decision within thirty (30) days following its receipt of a request from the Lessee supported by all information and data reasonably required for the Port Authority to render such decision, including receipt of all relevant input from the Port Authority’s insurance advisor or consultant and, if applicable, the Lessee’s insurance advisor or consultant. The Port Authority shall review any such request and covenants and agrees not to act unreasonably in rendering a decision with respect thereto. As part of its review, the Port Authority shall take into consideration the input of its insurance advisor or consultant and, if requested by the Lessee, the input of the Lessee and the Lessee’s insurance consultant or advisor. Any decision rendered by the Port Authority in accordance with the above requirements shall be final and binding on the Parties. Until the Port Authority has rendered its decision in accordance with the above requirements, the Lessee shall comply with its obligations under this Section 18 unless waived or modified by the Port Authority. If Lessee has requested that the Port Authority reconsider a Port Authority Insurance Change pursuant to this clause (10), the Lessee shall not be required to comply with such Port Authority Insurance Change until the Port Authority has rendered its decision in accordance with the above requirements. For purposes of this Section 18, the Port Authority shall be deemed to have acted reasonably in denying any Lessee’s request if or to the extent such decision was necessary or appropriate in order to implement a Lessee Change or a Value Engineering Lessee Change, or to address (in the opinion of the Port Authority) risks, features or conditions that are unique or specific to the New Terminal Facilities, the Airport, one or more other airports operated by the Port Authority or other comparable airports similar in size and passenger capacity in the general geographic area of the Airport, or any activities thereon.

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(11)The Lessee shall:
(i)    comply with the terms, conditions and requirements of all insurance policies required pursuant to this Section 18 (Insurance);
(ii)    not do or omit to do anything, or permit (insofar as it is within its power) any other person to do or omit to do anything, on or with respect to the Premises or the D&C Work, that results in or could reasonably be expected to result in the cancellation of any insurance policies or that would entitle any insurer to refuse to pay any claim under any insurance policy (in whole or in part) or that would otherwise prejudice the interests of the Port Authority or the City Insureds in an insurance policy or claim under any insurance policy;
(iii)    promptly upon request furnish to the Port Authority such information and data as may be necessary to enable the Port Authority to adjust any loss, in the event the Premises or any part thereof shall be damaged by any casualty against which insurance is carried pursuant to this Section 18 (Insurance) and the Port Authority is entitled to participate in the adjustment of such loss pursuant to the terms of this Agreement; and
(iv)    to the extent the Port Authority pays any premiums, costs, charges or fees with respect to any of the insurance policies required pursuant to this Section 18 (Insurance), promptly (but in any event no later than thirty (30) days following notice by the Port Authority of such payment) reimburse the Port Authority for any such premiums, costs, charges or fees, subject to the requirements of Section 67 (Late Charges) hereunder.
(12)No Prejudice to Port Authority or City Insureds. The Lessee shall use best efforts to ensure that the insurance it procures and maintains shall provide that the interest of the Port Authority and the City Insureds will not be prejudiced by the Lessee’s error, omission or misdescription of the risk insured under the policies, incorrect declaration of values, failure to advise insurers of any change of risk interest or property insured or failure to comply with a statutory requirement, nor by any other misrepresentation, act or omission by the Lessee that would otherwise result in forfeiture or reduction of coverage. The Lessee shall indemnify, hold harmless and make whole the Port Authority for any forfeiture of insurance coverage resulting from such error, omission, misdescription, incorrect declaration, failure to advise, misrepresentation, act or omission, and for any expense the Port Authority incurs as a result thereof (except arising solely out of the negligence or willful misconduct of the Port Authority).
(13)No Impairment. The Lessee shall provide coverage that is not impaired or the aggregate is not impaired by any other risk, past or present, except as permitted under this Agreement, and the limits required, shall be fully available to the Port Authority. The limit will be restored if depleted below the above-specified levels by other paid losses during the term of this Agreement and/or any extension(s) thereto.
(14)Governmental Immunity. All policies required under this Section 18 shall contain an endorsement containing the following language: “The insurer(s) shall not, without obtaining the express advance written permission from the General Counsel of the Port Authority, raise any defense involving in any way the jurisdiction of the tribunal over the person of the Port

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Authority, the immunity of the Port Authority, its Commissioners, officers, agents or employees, the governmental nature of the Port Authority, or the provisions of any statutes respecting suits against the Port Authority.” Evidence of such required endorsement shall appear on all certificates required to be provided by the Lessee under this Agreement.
(15)Notification of Potential Claims. Without limiting the generality of Section 18(f)(12), the Lessee shall notify the Port Authority as soon as reasonably practicable of any incident(s) that could give rise to a claim against the Port Authority.
(16)Defense Costs. Unless otherwise agreed to in writing by the Port Authority, no defense costs shall be included within or erode the limits of coverage of any of the primary insurance policies; except that litigation and mediation defense costs may be included within the limits of coverage of professional liability, contractor’s pollution and environmental impairment liability policies, to the extent such insurance coverage is required hereunder.
(17)Contractual Liability Coverage. Each policy of liability insurance (except for professional liability insurance) required hereunder shall contain contractual liability coverage covering the insurable obligations assumed by the Lessee under this Agreement.
(18)Duplicate Certificates.     With respect to each insurance policy, duplicate original certificates of insurance, specifically referencing the Port Authority number of this Agreement, shall be delivered to The Port Authority of New York and New Jersey, General Manager, Risk Financing, 4 World Trade Center, 150 Greenwich Street, 19th Floor, New York, New York 10007, Attention: Treasury Dept., Risk Finance Division (or to such other address as the Port Authority may direct by notice hereunder), not later than ten (10) days after the date on which such insurance policy is required to be in effect under this Agreement, other than any corporate insurance policies used to satisfy the insurance coverages and policies required under this Section 18, which shall be made available for review by the Port Authority not later than ten (10) days after the date on which such insurance policy is required to be in effect under this Agreement. Duplicate certificates of insurance with respect to a renewal policy shall be delivered to the Port Authority at least ten (10) days prior to the expiration date of each expiring policy, except for any policy expiring after the date of expiration of the letting under this Agreement or corporate insurance policies used to satisfy the insurance coverages and policies required under this Section 18. If at any time any of the certificates or policies shall become unsatisfactory to the Port Authority and notified to the Lessee in a Port Authority Insurance Change, the Lessee shall promptly obtain a new and satisfactory certificate and policy, subject to clause (f)(10), above.
(19)Adequacy. The requirements for insurance procured by the Lessee shall not in any way be construed as a limitation on the nature or extent of the contractual obligations assumed by the Lessee under this Agreement or by law or equity (other than the obligation of the Lessee to procure such required insurance). The insurance requirements, or the receipt of any certificates or insurance, are not a representation by the Port Authority as to the adequacy of the insurance to protect the Lessee against the obligations imposed on them by law, by this Agreement or by any other agreement.
(20)Other Endorsements.

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(i)    Each policy required hereunder shall contain an endorsement to the effect that the insurance as to the interests of a Recognized Mortgagee, if any, and the Port Authority, and the City Insureds shall not be invalidated by any act or omission, including negligence, of the Lessee or any other insured. The provision or endorsement must specify that the policy may not be cancelled for non-payment of premium unless and until such Recognized Mortgagee and the Port Authority have had thirty (30) days’ actual notice and an opportunity to cure such nonpayment of premium. Should a Recognized Mortgagee or the Port Authority pay the premium in order to preserve coverage, the Lessee shall be unconditionally liable to reimburse such Recognized Mortgagee or the Port Authority, as appropriate, for the full cost of doing so, including any legal fees or other collateral expenses.
(ii)    Each policy required hereunder shall contain an endorsement providing that the protection afforded the Lessee thereunder with respect to any claim or action against the Lessee by a third party shall obtain and apply with like effect with respect to any claim or action against the Lessee by the Port Authority or any City Insured, and against the Port Authority and each City Insured by the Lessee, but such endorsement shall not limit, vary, change or affect the protections afforded the Port Authority, or any of the City Insureds as additional named insureds.
(iii)    Endorsements adding additional named insureds to required policies shall contain no limitations, conditions, restrictions or exceptions to coverage beyond those that apply under the policy generally, and shall state that the interests and protections of each additional named insured shall not be affected by any misrepresentation, act or omission of a named insured or any breach by a named insured of any provision in the policy which would otherwise result in forfeiture or reduction of coverage.
(21)Losses Absorbed by the Lessee. Except if and as expressly provided otherwise herein, all losses within the scope of this Section 18 which are not recoverable by insurance or deductible shall be absorbed by the Lessee. Other losses and expenses not covered by insurance shall also be the responsibility of and paid by the Lessee. The Lessee’s insurance shall be primary insurance with respect to the Port Authority and the City Insureds. Any insurance or self-insurance maintained by the Port Authority or the City Insureds shall not contribute to any loss or claim.
(22)Deductible. Lessee will not (x) increase the aggregate sum of all deductibles for the insurance coverages described in Sections 18(c), (d) and (e) by more than $25,000,000 over the aggregate sum of all such deductibles in place as of the Effective Date, or (y) increase any of the deductibles for the insurance described in Sections 18(a) and (b), in each case unless Lessee obtains the prior written consent of the Port Authority’s Treasurer. As between the Port Authority and the Lessee, the Lessee shall be solely responsible to ensure that all deductibles under each insurance policy or coverage required to be procured hereunder in accordance with this Section 18 are paid. The Port Authority shall not be responsible for payment of such deductibles, or for any payment of premium or other financial obligation with respect to insurance, under any circumstances. Any deductible (including retention under professional liability insurance and pollution liability insurance) shall not impair or otherwise reduce the limits required for each insurance policy required to be procured and maintained in accordance with this Section 18.

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(23)Restrictions on Insurance. Self-insurance, self-insured retention, policy fronting or other non-risk transfer insurance mechanisms by the Lessee’s Contractors for the D&C Work or the Lessee are not permitted for insurance coverages and policies required by Sections 18(a), (b), (c), (d) and (e) except (x) as approved in writing by the Port Authority’s Treasurer, or (y) in amounts not greater than:
(i)    Self-insured retention with respect to the Contractor Pollution Liability CIP required pursuant to Section 18(a)(1), currently in the amount of $250,000;
(ii)    Self-insured retention with respect to the Commercial Automobile Liability Insurance required pursuant to Section 18(a)(3), currently in the amount of $1,000,000;
(iii)    Self-insured retention with respect to the Owners Protective Professional Indemnity (OPPI) policy required pursuant to Section 18(a)(6), currently in the amount of $1,000,000;
(iv)    Self-insured retention with respect to the Commercial Automobile Liability Insurance required pursuant to Section 18(e)(2), currently in the amount of $1,000,000;
(v)    Self-insured retention with respect to the Environmental Impairment Liability Insurance required pursuant to Section 18(e)(4), currently in the amount of $250,000; and
(vi)    Insurance provided through an Insurance Subsidiary in accordance with the regulations of insurance regulatory authorities applicable to such coverage.
For the avoidance of doubt, insurance provided through an Insurance Subsidiary is not subject to the limitations in Section 18(f)(23).
(g)Contesting Denial of Coverage. If any insurer under an insurance policy required by this Section 18 denies coverage with respect to any claims reported to such insurer, the Lessee shall bear all the costs of contesting the denial of coverage. The Port Authority may, in its discretion, cooperate in the Lessee’s efforts to contest the denial of coverage. If the Port Authority contests a denial of coverage and the Lessee elects not to contest such denial, or if the Port Authority continues to contest a denial and the Lessee elects to cease contesting such denial, the Port Authority shall be responsible for the costs of contesting such denial or continuing to contest such denial; provided that if there is an insurance claim denial and the Lessee elects not to contest the denial or continue contesting the denial, the Lessee shall nevertheless be fully responsible and liable to make the Port Authority and other Port Authority Indemnified Parties whole for any loss or damage incurred by any of them, respectively, for all matters as to which it is required under this Agreement to have insurance coverage (net of any insurance proceeds received by the Port Authority pursuant to the immediately following sentence). If the Port Authority successfully contests a denial and the Lessee has elected not to contest or ceases to contest the denial, all insurance proceeds realized by such successful contest shall be paid over to the Port Authority for its account.

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(h)Separate Insurance. The Lessee shall not carry separate insurance concurrent in form or contributing in the event of loss with that required under this Agreement (other than any retained corporate policies), without the prior written approval of the Port Authority. If such separate insurance is approved by the Port Authority, the Lessee shall deliver to the Port Authority the policies therefor or duplicate originals thereof. All such separate insurance policies must comply with the requirements of this Section 18 (except with respect to minimum limits). The Lessee shall be solely responsible for the acquisition and costs of any separate or additional coverages permitted hereunder.
(i)Upon formal tender of defense by the Port Authority to the Lessee in accordance with Section 59 (Notices) of this Agreement, Lessee and/or its affiliates will communicate their acceptance or denial to the Port Authority within fifteen (15) business days of receipt of factual information sufficient to make a determination as to the bases for such tender, without regard to any indemnity obligations owed to the Lessee by any other parties.
Section 19.    Indemnity.
(a)Without limiting the effect of Sections 56(b)(4), 75(e) and 76(i) hereof, or any rights and remedies available to the Port Authority at law or in equity, the Lessee shall be obligated to indemnify and hold harmless the Port Authority Indemnified Parties (excluding, solely for the purposes of this Section 19, New York City, the EDC and each of their respective officers, directors, employees, agents and authorized representatives) from and against, and shall reimburse such Port Authority Indemnified Parties for such Port Authority Indemnified Parties’ costs and expenses, including legal expenses (including fees of in-house and outside counsel to the Port Authority), incurred in connection with the defense of, all claims and demands of third persons (including claims and demands of other Lessee-Related Entities; and claims and demands of New York City for indemnification by the Port Authority arising by operation of law or through agreement of the Port Authority with the City), including, but not limited to, claims and demands for death or personal injuries, or for property damages, arising out of: (i) any breach or default of any term or provision of this Agreement or any other Project Document by any Lessee-Related Entity; (ii) the use or occupancy of (A) the Premises by any Lessee-Related Entity, or others with the consent of a Lessee-Related Entity, or (B) any portion of any Right of Access or O&M Access Area by any such Person to the extent such Person is on such Right of Access or O&M Access Area to perform or observe any term or provision relating to Lessee’s rights or obligations under this Agreement or any other Project Document; (iii) any other acts or omissions of any Lessee-Related Entity or their respective guests, invitees or other persons who are doing business with such Lessee-Related Entity, in each case, on the Premises; and (iv) any other acts or omissions of any Lessee-Related Entity on any other portion of the Airport; provided, that with respect to any act or omission of a Lessee-Related Entity other than the Lessee, its officers, employees or agents, only to the extent such Lessee-Related Entity is on such other portion of the Airport to perform or observe any term or provision relating to Lessee’s rights or obligations under this Agreement or any other Project Document (any such claim or demand, an “Indemnified Claim” and, collectively, “Indemnified Claims”); provided that in each case the foregoing indemnity shall not apply to claims and demands (x) arising solely from the negligence or willful misconduct of any such Port Authority Indemnified Party, or (y) in connection with the D&C Work to the extent that indemnity would be precluded pursuant to the provisions of Section 5-322.1 of the General Obligations Law of the State of New York, and provided further that, Lessee shall be deemed to not have consented to, and shall have no liability for, the use of Taxilane M by any Aircraft Operator (other than Lessee or its Affiliated Scheduled Aircraft Operators) that is using Taxilane M pursuant to authorization by the FAA or the Port Authority, provided any liability arising out of such use of Taxilane M did not arise out of a breach or default of this Agreement or any other Project Document, or negligence or willful misconduct, by any Lessee-Related Entity (which, solely for purposes of this Section 19 (Indemnity), shall not include Aircraft Operators other than the Lessee).
(b)For the avoidance of doubt, Indemnified Claims include claims and demands by (i) any contractor for costs and losses (excluding any claim by LGP or its contractors in respect of the Terminal B Project for costs and losses other than as set out in clause (ii), below) caused by any Lessee-Related Entity’s interference with or hindering the progress or completion of work being performed by such contractor, or resulting from a failure of any Lessee-Related Entity to cooperate reasonably with other contractors in accordance with the terms of this Agreement, or (ii) LGP or its contractors for costs and losses in respect of the Terminal B Project arising out of any Lessee-Related Entity’s interference with or hindering the progress or completion of Terminal B Project work being performed by LGP or its contractors, arising out of a failure by any Lessee-Related Entity to carry out the D&C Work in accordance with the terms of this Agreement, or resulting from failure of any Lessee-Related Entity to cooperate reasonably with LGP or its contractors performing the Terminal B Project work (including, for the avoidance of doubt, costs and losses resulting from any injury to or death of a person); provided, that, with respect to the indemnity under this clause (ii), such indemnity shall not include any indirect, incidental or consequential damages (other than for costs and losses resulting from any injury to or death of a person).
(c)    Notwithstanding the foregoing, nothing in this Section 19 is intended to expand or limit the Lessee’s obligations relating to Hazardous Substances in Section 73(b), Section 76(d), Lessee’s Remediation obligations for the Additional Premises and Rights of Access in Section 76(f)(3) and Section 76(f)(4) or Lessee’s obligations in Sections 75(e) and 76(i).
(d)    If so directed by the Port Authority, the Lessee shall defend, at its own expense, any suit based upon any Indemnified Claim (even if such claim or demand is groundless, false or fraudulent), and in handling such it shall not, without obtaining express advance permission from the General Counsel of the Port Authority, raise any defense involving in any way the jurisdiction of the tribunal over the person of the Port Authority, the immunity of the Port Authority, its Commissioners, officers, agents or employees, the governmental nature of the Port Authority, or the provisions of any statutes respecting suits against the Port Authority. The Port Authority and the Lessee shall reasonably cooperate, and the Port Authority shall endeavor to cause the applicable Port Authority Indemnified Party to reasonably cooperate, in the defense of any action or proceeding based upon any Indemnified Claim. Other than with respect to the Port Authority in accordance with the conditions set forth in the immediately following sentence, the Lessee shall not have the right to settle any such claim or demand without the prior written consent of the applicable Port Authority Indemnified Party. The Lessee shall not have the right to settle any such claim or demand against the Port Authority without the prior written consent of the Port Authority unless such settlement (i) does not require a payment from the Port Authority, (ii) will result in a full release of the Port Authority from any further liability with respect to such Indemnified Claim and (iii) does not require the Port Authority to admit any fault or liability on the part of the Port Authority.
Section 20.    Signs.
(a)Exterior Signs. Except with the prior written approval of the Port Authority, the Lessee shall not erect, maintain or display any signs or any advertising at or on the exterior parts of the Premises or in the Premises so as to be visible from outside the Premises or at or on any other portion of the Airport outside the Premises. Without in any way limiting the foregoing, the Lessee will be permitted to erect exterior signs (including branding signs) on the Premises after the Lessee has received the prior written approval of the Port Authority to do so; provided that all such signs must also be compliant with the Port Authority Sign Standards. Interior signs affecting public safety and security shall be in accordance with established Port Authority Sign Standards. The Port Authority acknowledges and agrees that its approval of exterior signs shall be deemed to have been granted if the Port Authority has approved Construction Applications or other Tenant Alteration Applications that identify and incorporate such exterior signs in such Construction Application or other Tenant Alteration Application with reasonable specificity and placement.
(b)Removal of Signs. Upon the expiration or termination of the letting, the Lessee shall remove, obliterate or paint out, as the Port Authority may direct, any and all signs and advertising on the Premises or elsewhere on the Airport and in connection therewith shall restore the portion of the Premises and the Airport affected by such signs or advertising to the same condition as existing prior to the installation of such signs and advertising. In the event of a failure on the part of the Lessee so to remove, obliterate or paint out each and every such sign or advertising and so to restore the Premises and the Airport, the Port Authority may perform the necessary work and the Lessee shall pay the cost thereof to the Port Authority on demand.
(c)Interior Signs. The Lessee shall be permitted to install interior branding and signage customary for commercial airline passenger terminals, and Sublessees shall be permitted to install interior branding and signage commensurate with the size and scale of such Sublessee’s use, occupancy and operations at the Premises. The Lessee shall also install interior signs relating to public safety and security in accordance with established Port Authority standards; provided that the Lessee comply with the requirements set forth in the TCAP Manual; provided, further, that all such signs must also be compliant with the Port Authority Sign Standards.
Section 21.    Obstruction Lights. The Lessee shall install, maintain and operate at its own expense such obstruction lights on the Premises as the FAA may direct or as the General Manager of the Airport may direct, and shall energize such lights daily for a period commencing thirty (30) minutes before sunset and ending thirty (30) minutes after sunrise (as sunset and sunrise may vary from day to day throughout the year) and for such other period as may be directed or requested by the ground control tower of the Airport.
Section 22.    Consolidated Ramp Control Operations.
(a)Without limiting any other term or provision of this Agreement, the Lessee in its construction, use and operation of the ground control tower on the Premises and the conduct of aircraft and other operations on the aircraft ramp and common taxiway areas, shall at all times comply with the requirements, directives and requests of the FAA, and any and all other government agencies pertaining thereto.
(b)Without limiting the provisions of paragraph (a) above, the Lessee shall consult, cooperate and coordinate with the aircraft operators at the Premises, in establishing procedures for the operation, maintenance and staffing of a consolidated facility to coordinate and control, in a safe and efficient manner, all arriving, departing, and relocating aircraft and ground vehicle movements on the ramp and apron areas serving the Premises and access to the public taxiways adjacent thereto. Such consultation, cooperation and coordination shall include staffing, the allocation of costs, and the establishment of ramp coordination and communication procedures. All operations and procedures hereunder shall at all times be consistent with the rules, regulations, requests, requirements and directions of the FAA and the Port Authority; and the provisions of this Agreement.
(c)All communications among the ground control facility, vehicles, aircraft and others will be recorded to monitor compliance with the procedures established.
(d)The procedures and recordings called for herein shall be made available by the Lessee to the Port Authority upon request of the Port Authority given at any time and from time to time.
Section 23.    Other Redevelopments. The Lessee will not claim against the Port Authority, LGP or any of their contractors any indirect, incidental or consequential damages of any nature, whether arising in contract, tort (including negligence) or other legal theory for any damage or disruption in connection with any interference or alleged interference of the Terminal B Project with the D&C Work.
Section 24.    Aviation Fueling. The Lessee or any Airline Sublessee may arrange for the dispensing of aviation fuel (hereinafter called “Fueling Service”) into aircraft operated by the Lessee or such Airline Sublessee either directly or by contract with an independent contractor of its choice. If the Lessee or any Airline Sublessee desires to have Fueling Service performed by contract with an independent contractor, it shall employ a regular fueling contractor (by which is meant a person having a permit from the Port Authority to perform Fueling Service).
Section 25.    Third-Party Contractors and Services.
(a)The Lessee or any Airline Sublessee may arrange for the transportation to and from the Airport of such Airline Sublessee’s passengers and employees (but with respect to transportation for passengers and employees, through pre-arranged services with such Airline Sublessee only) and baggage (and such passengers, employees and baggage only) either directly or by contract with a surface carrier or carriers (each, a “Surface Carrier”) of its choice; provided, that such Surface Carrier is a permittee or agrees to become a permittee and obtain permits from the Port Authority for providing such services.
(b)The Lessee or any Airline Sublessee may arrange for the transportation to and from the Airport of freight and other cargo of such Airline Sublessee either directly or by contract with the surface carrier or carriers of its choice. No permit or fee shall be required to be paid to the Port Authority by the Lessee, any Airline Sublessee or their respective contractor(s) for the picking up or the delivery of freight or other cargo from or to such Airline Sublessee. No fee shall be paid to the Port Authority by the Lessee, any Airline Sublessee or their respective contractor(s) for the privilege of transporting freight or cargo of such Airline Sublessee on the surface as aforesaid.
(c)The right of the Lessee or any Airline Sublessee to arrange transportation to and from the Airport of such Airline Sublessee’s passengers, employees and baggage as provided herein shall not be construed as being applicable to any establishment or operation by the Lessee or any Airline Sublessee of facilities outside the Airport for the handling of passengers, employees and baggage of any Airline Sublessee arriving at or departing from the Airport.
(d)As used in this Section 25 (Third-Party Contractors and Services), reference to passengers, employees, baggage, freight or other cargo of any Airline Sublessee shall be construed to mean persons, baggage, freight or cargo transported or to be transported on Aircraft of such Airline Sublessee or any Scheduled Aircraft Operator who has arrangements with an Airline Sublessee.
(e)The Surface Carrier of the Lessee or any Airline Sublessee’s choice of any other contractor used by it in connection with the provision of ground transportation hereunder shall not solicit business on the public areas of the Airport and the Lessee and such Airline Sublessee shall prohibit any such activity on any area at the Airport occupied by the Lessee or its Sublessees. The use, at any time, on any area occupied by the Lessee or its Sublessees or elsewhere at the Airport, of hand or standard megaphones, loudspeaker or any electric, electronic or other amplifying devices is hereby expressly prohibited and any advertising or signs shall be subject to continuing Port Authority approval.
(f)Notwithstanding any other term or provision of this Agreement and without limitation thereto, as between the Lessee and the Port Authority only, all acts and omissions of any independent contractor on the Premises and the areas subject to the Rights of Access under this Agreement and the other Project Documents or elsewhere at the Airport in connection with the provision of ground transportation pursuant to this Section 25 (Third-Party Contractors and Services) shall be deemed to be acts and omissions of the Lessee under this Agreement and the other Project Documents and the Lessee shall also be jointly and severally responsible with the contractor therefor, as between the Lessee and the Port Authority, including the obligations of indemnification, repair and replacement.
Section 26.    Handling Services.
(a)The Lessee or any Airline Sublessee may arrange for the performance of Handling Services on the Premises either directly or by contract with the contractor of its choice, which contractor shall not be another Aircraft Operator or Operators without the consent of the Port Authority; provided, that such contractor is a permittee or agrees to become a permittee and obtain permit(s) from the Port Authority for providing such services.
(b)Notwithstanding any other term or provision of this Agreement and without limitation thereto, subject to the proviso in Section 32(e)(iii) (which shall extend to the Lessee’s independent contractors providing Handling Services for purposes of this paragraph (b)), as between the Lessee and the Port Authority only, all acts and omissions of any independent contractor on the Premises and the areas subject to the Rights of Access under this Agreement and the other Project Documents or elsewhere at the Airport in connection with the provision of Handling Services pursuant to this Section 26 (Handling Services) shall be deemed to be acts and omissions of the Lessee under this Agreement and the other Project Documents and the Lessee shall also be jointly and severally responsible with the contractor therefor, as between the Lessee and the Port Authority, including the obligations of indemnification, repair and replacement.
Section 27.    Other Third-Party Service Contractors.
(a)The Lessee or any Airline Sublessee may arrange for the performance of any services on the Premises not otherwise covered in Sections 24 (Aviation Fueling), 25(a), 26 (Handling Services) and 40 (In-Flight Meals), either directly or by contract with the contractor of its choice; provided, that such contractor is a permittee or agrees to become a permittee and obtain permit(s) from the Port Authority for providing such services.
(b)If and when the Port Authority elects to provide all other unit terminal operators of other passenger terminals for which the Port Authority is the airport operator a portion of the permitting fees payable by any contractor or contractors performing services pursuant to Section 27(a), the Port Authority will provide to the Lessee, or the Port Authority shall grant the Lessee the right to collect, any permitting fees payable by a contractor or contractors performing substantially similar services on the Premises pursuant to Section 27(a), which fees shall, in either case, be in amounts reasonably determined by the Port Authority.
Section 28.    Permits and Payment Fees.
(a)Notwithstanding the foregoing provisions of this Agreement, the Lessee, any Airline Sublessee, each Contractor and any other Person operating, occupying or otherwise doing business on the Premises shall be prohibited from performing any activity or services at the Airport for which the Port Authority requires the issuance of a Port Authority permit providing for payment of fees to the Port Authority unless the Lessee, such Airline Sublessee, such Contractor or any other such Person obtains such a Port Authority-issued permit if so required by and consistent with Applicable Laws and/or Port Authority policy and pays such fees thereunder; provided, however, that if the Lessee, any Airline Sublessee, any Contractor or any other such Person performs any such activity or services at the Airport without, or prior to, obtaining a Port Authority-issued permit in contravention of this Section 28 (Permits and Payment Fees), the Lessee, such Airline Sublessee, such Contractor or any other such Person shall pay any such fees due and payable to the Port Authority for any activity or services at the Airport performed without, or prior to, obtaining such permit.
(b)In connection with any issuance, revocation, amendment or other modification by the Port Authority of any permit for which the Port Authority requires issuance providing for payment of fees to the Port Authority, the Port Authority shall in good faith take into account the operational impacts on the Existing Terminal Facilities or New Terminal Facilities, as applicable, and shall have the right (but not the obligation) to request an advance analysis from the Lessee with respect to any permitting action that the Port Authority expects may significantly and adversely impact the operations at the Existing Terminal Facilities or New Terminal Facilities, as applicable.
Section 29.    Additional Rent and Charges.
(a)If the Port Authority is required or elects to pay any sum or sums or incurs any obligation or expense by reason of the failure, neglect or refusal of the Lessee to perform or fulfill any one or more of the conditions, covenants or agreements contained in this Agreement or as a result of an act or omission of the Lessee contrary to the said conditions, covenants and agreements, the Port Authority shall notify Lessee in writing of its intention to pay any such sums or incur any such expense and Lessee shall have a reasonable period of time specified in such notice to pay such sums or cure such failure directly, except if the payment is necessary to satisfy a requirement of a Governmental Authority, or in the case of an emergency that threatens bodily injury or material damage to property or a life, health, security, safety or environmental hazard. The Lessee agrees to pay the sum or sums so paid or the expense so incurred by the Port Authority, including all interest, costs, damages and penalties, and the same may be added to any installment of rent thereafter due hereunder, and each and every part of the same shall be and become additional rent, recoverable by the Port Authority in the same manner and with like remedies as if it were originally a part of the rent as set forth in Section 7 (Rental).
(b)For all purposes under this Section 29 (Additional Rent and Charges) and in any suit, action or proceeding of any kind between the parties hereto, any receipt showing any payment of a sum or sums by the Port Authority, together with an administrative fee equal to ten percent (10%) of such sum, for any work done or material furnished shall be prima facie evidence against the Lessee that the amount of such payment was necessary and reasonable. Should the Port Authority elect to use its operating and maintenance staff in performing any work and to charge the Lessee with the cost of same, any time report of any employee of the Port Authority showing hours of labor or work allocated to such work, or any stock requisition of the Port Authority showing the issuance of materials actually used in the performance thereof, shall likewise be prima facie evidence against the Lessee that the amount of such charge was necessary and reasonable.
Section 30.    Rights of Entry Reserved.
(a)General. The Port Authority, by its officers, employees, agents, representatives and contractors shall have the right at all reasonable times to enter upon the Premises, upon reasonable prior notice to the Lessee (except during an emergency that threatens bodily injury or material damage to property or a life, health, security, safety or environmental hazard), for the purpose of inspecting the same, for observing the performance by the Lessee of its obligations under this Agreement, and for the doing of any act or thing which the Port Authority may be obligated or have the right to do under this Agreement or pursuant to law.
(b)Utility Rights Reserved to the Port Authority.
(1)    Without limiting the generality of the foregoing, the Port Authority, by its officers, employees, agents, authorized representatives and contractors, and furnishers of Utilities and other services, shall have the right, for its own benefit, for the benefit of the Lessee, or for the benefit of persons other than the Lessee at the Airport, to maintain existing and future Utilities, and to enter upon the Premises at all reasonable times to make such repairs, replacements or alterations as may, in the opinion of the Port Authority, be deemed necessary or advisable and, from time to time, to construct or install over, in or under the Premises new Utilities or parts thereof, and to use the Premises for access to other parts of the Airport otherwise not conveniently accessible (any such repairs, replacements, installation, construction, alterations or use for access, a “Utility Servicing”); provided, however, that in the conduct of such Utility Servicing, the Port Authority shall (i) not unreasonably interfere with the Work or the use and occupancy of the Premises by the Lessee, its Contractors, its Sublessees or their respective invitees, (ii) provide reasonable notice of any Utility Servicing (except in cases of an emergency that threatens bodily injury or material damage to property or a life, health, security, safety or environmental hazard), (iii) restore or cause the restoration of any excavation, demolition or other disruption of the Premises conducted as part of the Utility Servicing to its original state (the “Utility Restoration”) within a commercially reasonable period and (iv) not hold the Lessee responsible for the cost of any Utility Servicing or Utility Restoration; provided, further, for the avoidance of doubt, the foregoing clause (iv) shall not apply to any Utility Servicing or Utility Restoration performed pursuant to Section 83 (Right to Perform the Lessee’s Obligations); and provided further, for the avoidance of doubt, the Port Authority’s rights in this clause (b) shall not apply to Utilities which the Lessee is required to repair and maintain under this Agreement and the provisions of Section 83 (Right to Perform the Lessee’s Obligations) shall apply.
(2)    In the event that any personal property or trade fixtures of the Lessee shall obstruct the access of the Port Authority, officers, employees, agents, authorized representatives and contractors, and furnishers of Utilities and other services to any of the existing or future Utilities and thus shall interfere with the inspection, maintenance or repair of any such Utilities, the Lessee shall move such personal property or trade fixtures, as directed by the Port Authority, in order that access may be had to the system or part thereof for its inspection, maintenance or repair, and, if the Lessee shall fail to so move such personal property or trade fixtures (i) as promptly as possible in the event of an emergency that threatens bodily injury or material damage to property or a life, health, security, safety or environmental hazard or (ii) within a reasonable period of time after direction from the Port Authority to do so, the Port Authority may move it and the Lessee hereby agrees to pay the cost of such moving upon demand.
(c)No Port Authority Obligation. Nothing in this Section 30 (Rights of Entry Reserved) shall or shall be construed to impose upon the Port Authority any obligations so to construct or maintain or to make repairs, replacements, alterations or additions, or shall create any liability for any failure so to do. The Lessee is and shall be in exclusive control and possession of the Premises during the letting (subject to the licenses and easements described in Section 2 (Letting)) and the Port Authority shall not in any event be liable for any injury or damage to any property or to any person happening on or about the Premises nor for any injury or damage to the Premises nor to any property of the Lessee or of any other person located in or thereon (other than those occasioned solely by the negligence or willful misconduct of the Port Authority or any of its officers, employees and agents).
(d)Entry Prior to Expiration. At any time and from time to time during ordinary business hours within the six (6) months next preceding the expiration of the letting, the Port Authority, for and by its agents and employees, whether or not accompanied by prospective lessees, occupiers or users of the Premises, shall have the right to enter thereon for the purpose of exhibiting and viewing all parts of the same. If, during the last month of the letting, the Lessee shall have removed all or substantially all of its property from the Premises, the Port Authority may immediately enter and alter, renovate and redecorate the Premises.
(e)No Constructive Eviction. The exercise of any or all of the foregoing rights by the Port Authority or others shall not be or be construed to be an eviction of the Lessee nor be made the grounds for any abatement of rental nor any claim or demand for damages, consequential or otherwise.
Section 31.    Other Construction by the Lessee. Except as expressly provided in Section 5 (Design and Construction by the Lessee), the Lessee shall not erect any structures, make any improvements or do any construction on the Premises or alter, modify, or make additions or improvements or repairs to or replacements of any structure now existing or built at any time during the letting, or install any fixture (other than trade fixtures, removable without damage to the freehold, any such damage to be immediately repaired by the Lessee) without the prior written approval of the Port Authority and in the event any construction, improvement, alteration, modification, repair, replacement or addition is made without such approval then, upon notice so to do, the Lessee will remove the same or, at the option of the Port Authority, cause the same to be changed to the satisfaction of the Port Authority. In case of any failure on the part of the Lessee to comply with such notice, the Port Authority may effect the removal or change and the Lessee shall pay the cost thereof to the Port Authority. No provision hereof or elsewhere in this Agreement shall be deemed to grant any right whatsoever to any party other than the Lessee to erect any structures, make any improvements or do any construction on the Premises or alter, modify, or make additions, improvements, repairs to or replacements of any structure now existing or built at any time during the letting, or install any fixture (other than trade fixtures removable without material damage to the Premises, any damage to the Premises caused by such removal to be immediately repaired by the Lessee at the Lessee’s cost) without the prior written approval by the Port Authority, provided in accordance with the TCAP Manual, of a Construction Application to be submitted by the Lessee to the Port Authority.
Section 32.    Subleases Generally.
(a)    (1)    The Lessee shall not sublet or license the Premises or any portion thereof, or enter into any Sublease or any amendment or modification to or any extension of an existing Sublease, in each case, without the prior written consent of the Port Authority.
(2)    Notwithstanding the provisions of the foregoing Section 32(a)(1), the consent of the Port Authority shall be deemed to be given for any Sublease that: (A) has a term (including all automatic or optional extensions) of less than one (1) year; (B) is a Sublease in existence as of the Effective Date, or is a replacement or assignment of a Sublease in existence as of the Effective Date and is on the same terms as such Sublease; or (C) is entered into by an Affiliate of the Lessee to provide services to the Lessee (any such Sublease, an “Exempt Sublease”), provided that (i) the Lessee has given to the Port Authority at least ten (10) days’ prior written notice of the proposed Exempt Sublease, together with the certification that the condition set forth above in clause (A), (B) or (C), as applicable, has been satisfied with respect to the proposed Exempt Sublease, and provided, further, that in the case of any proposed Exempt Sublease that is a Concession Sublease (other than any such Sublease which qualifies as an Exempt Sublease pursuant to clause (B) above), the Lessee has given to the Port Authority at least thirty (30) days’ prior written notice of such proposed Concession Sublease, together with a term sheet detailing all of the commercial terms of the proposed Concession Sublease (provided that the Port Authority shall have the right, within such thirty (30) day period, to provide comments or object to the proposed commercial terms of such proposed Concession Sublease, and, to the extent that the Lessee enters into the proposed Concession Sublease, the Lessee shall reflect the Port Authority’s comments in such Sublease).
(3)    Notwithstanding the provisions of the foregoing Section 32(a)(2), the Lessee shall be required to satisfy (x) all requirements set forth in Section 32(b)(ii) with respect to each new Concession Sublease and (y) the requirements set forth in Section 32(b)(ii)(C) with respect to each amendment to any currently existing Concession Sublease as of the Effective Date that expands the subleased space, modifies the rental arrangements thereunder to the Sublessee’s benefit or extends the term thereof, in each case, proposed to be entered into by the Lessee.
(4)    It is expressly understood and agreed that, except for the deemed Port Authority consent to Exempt Subleases, as specifically provided in Section 32(a)(2) above, this Section 32(a) shall not limit or be deemed to limit the applicability to all Subleases of the other provisions of Section 28, this Section 32, Section 32(j), Section 34(b), Section 34(f), Section 34(i)(5) and Section 34(n) and all other terms of this Agreement pertaining to Subleases.
(b)    (i)    The Lessee shall submit to the Port Authority all of the following with respect to any proposed Sublease or any amendment or modification to or extension of an existing Sublease in order to request the Port Authority’s approval thereof:
(A)    a true and complete copy of the proposed Sublease, or the amendment or modification to, or extension of, an existing Sublease;
(B)    a term sheet describing the business and financial terms and any obligations or liabilities (whether or not contingent) proposed to be assumed by the Port Authority;
(C)    all information and certifications required in Section 32(b);
(D)    with respect to a new, proposed Sublessee, information, evidence and supporting documentation concerning the identity, financial resources and qualifications of the proposed Sublessee, including financial statements and evidence of the proposed Sublessee’s qualification to do business in the State of New York or, if pertaining to an existing Sublessee, either (A) updated information, evidence and supporting documentation or (B) a certification from the Sublessee that no such information, evidence and supporting documentation has changed materially since the previous submission to the Port Authority of the same;
(E)    with respect to a new, proposed Sublessee, the organizational documents of such entity;
(F)    insurance certificates;
(G)    a certificate of the Lessee, signed by an authorized officer thereof, stating that such proposed Sublease or amendment or modification to or extension of an existing Sublease contains the provisions set forth in Exhibit 4 (Mandatory Sublease Provisions), as applicable; and
(H)    such other information and data as the Port Authority has requested, prior to the submission of materials required under this Section 32(b), in connection with such proposed Sublease.
(ii)    Without limiting any other provision in the foregoing, (x) all provisions of this Section 32(b)(ii) shall apply to any new Concession Sublease proposed to be entered into by the Lessee (whether with new Sublessees or Sublessees already operating at the Existing Terminal Facilities), and (y) the provisions of Section 32(b)(ii)(C) (but not any other provisions of this Section 32(b)(ii)) shall apply to any amendment to any currently existing Concession Sublease as of the Effective Date that expands the subleased space, modifies the rental arrangements thereunder to the Sublessee’s benefit or extends the term thereof (an “Existing Sublease Amendment”):
(A)    In order to promote transparency and integrity of the selection of proposed Concession Sublessees, the Lessee shall generally seek to award Concession Subleases pursuant to competitive, multi-bid solicitation processes that include safeguards deemed appropriate by the Lessee to protect against bidder collusion, undue influence, conflicts of interest, and similar improprieties. Such processes will generally require the evaluation of prospective Concession Sublessees on the basis of objective and specified criteria determined by the Lessee, which may include consideration of such factors as minimum qualifications, relevant and/or proven experience and other defined financial and business criteria, and seek to awa