EXHIBIT 10.1(f)
PORT AUTHORITY LEASE NO. ▇▇▇-170
SUPPLEMENT NO. 17 TO LEASE ▇▇▇-170
PORT AUTHORITY OF NEW YORK AND NEW JERSEY
AND
CONTINENTAL AIRLINES, INC.
(the "Lessee")
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
Newark International Airport
Supplement No. 17
Port Authority Lease No. ▇▇▇-170
SEVENTEENTH SUPPLEMENTAL AGREEMENT
THIS AGREEMENT, made as of September 1, 1999 (the
"Effective Date") (sometimes referred to as "Seventeenth
Supplemental Agreement" or as "Supplement No. 17" of the Lease) by
and between THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY
(hereinafter referred to as "the Port Authority") and CONTINENTAL
AIRLINES, INC., a corporation of the State of Delaware,
(hereinafter referred to as "the Lessee"),
WITNESSETH, That:
WHEREAS, the Port Authority and People Express Airlines, Inc.
as of January 11, 1985 entered into an agreement of lease covering
certain premises, rights and privileges at and in respect to Newark
International Airport (hereinafter called the "Airport") as therein
set forth (said agreement of lease as heretofore supplemented and
amended is hereinafter called the "Lease"); and
WHEREAS, the Lease was thereafter assigned by said People
Express Airlines, Inc. to the Lessee pursuant to an Assignment of
Lease with Assumption and Consent Agreement entered into among the
Port Authority, the Lessee and said People Express Airlines, Inc.
and dated August 15, 1987; and
WHEREAS, a certain Stipulation between the parties hereto was
heretofore submitted for approval of the United States Bankruptcy
Court for the District of Delaware ("the Bankruptcy Court")
covering the Lessee's assumption of the Lease as part of the
confirmation of its reorganization plan in its Chapter 11
bankruptcy proceedings and as debtor and debtor in possession
pursuant to the applicable provisions of the United States
Bankruptcy Code as set forth in and subject to the terms and
conditions of said Stipulation (said Stipulation being hereinafter
referred to as the "Stipulation"); and
WHEREAS, the Stipulation and the Lessee's assumption of the
Lease was approved by the Bankruptcy Court by an Order thereof
dated the 1st day of October, 1993; and
WHEREAS, the Port Authority and the Lessee desire to extend
the term of the letting of Area C-3 under the Lease and to amend
the Lease in certain other respects as hereinafter set forth;
NOW, THEREFORE, in consideration of the covenants and mutual
agreements herein contained, the Port Authority and the Lessee
hereby agree to amend the Lease, effective as of the Effective Date
(except as otherwise herein expressly provided), as follows:
1. (a) Premises added to Area C-3: In addition to the
premises heretofore let to the Lessee under the Lease as to which
the letting shall continue in full force and effect subject to all
the terms and conditions of the Lease, as herein amended, the Port
Authority hereby lets to the Lessee and the Lessee hereby hires and
takes from the Port Authority the following areas at Newark
International Airport (i) effective as of 12:01 A.M. on the
Effective Date the ground areas shown in diagonal hatch and in
broken diagonal hatch on the sketch attached hereto, hereby made a
part hereof and marked "Exhibit A-1", together with the fixtures,
improvements and other property of the Port Authority located or to
be located therein or thereon (collectively, the "Added Area 1)",
(ii) effective as of 12:01 A.M. on the Effective Date the ground
areas (including the area known as "▇▇▇▇▇ Ditch") shown in crosses
on Exhibit A-1, together with the fixtures, improvements and other
property of the Port Authority located or to be located therein or
thereon (collectively, the "Added Area 2" and also sometimes
referred to as the "▇▇▇▇▇ Ditch Area"), and (iii) effective as of
12:01 A.M. on the Added Area 3 Effective Date (as defined below)
the ground areas shown in cross-hatch on Exhibit A-1, together with
the fixtures, improvements and other property of the Port Authority
located or to be located therein or thereon (collectively, the
"Added Area 3") and, the said Added Area 1, Added Area 2 and Added
Area 3 to be and become a part of Area C-3 of the premises under
the Lease, as herein amended, let to the Lessee (said Added Area 1,
Added Area 2 and Added Area 3 sometimes collectively hereinafter
referred to as the "Area C-3 Addition") subject to and in
accordance with all of the terms, covenants, provisions and
conditions of the Lease, as herein amended, for and during all the
residue and remainder of the term of the letting of Area C-3 under
the Lease, as herein amended, and as said term is extended pursuant
to Paragraph 2 hereof.
It is expressly recognized that Exhibit A-1 is a preliminary
exhibit and is marked "Preliminary" and is subject to replacement
with a final exhibit upon the Port Authority's determination of
final metes and bounds of the aforesaid Added Area 1, Added Area 2
and Added Area 3 as more fully described in Paragraph 3A of this
Supplement No. 17.
For purposes hereof, the term "Added Area 3 Effective Date"
shall mean the later to occur of (i) the date set forth by the Port
Authority in a completion certificate delivered by the Port
Authority to the Lessee covering the portion of the Expansion
Construction Work which constitutes the Area C-3 concourse (as
defined in Paragraph (b) (1) (i) of ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇)
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ (▇) (▇), (▇) (3) or (n) (4) of Section 93 of
the Lease, and (ii) November 1, 2001.
Subsequent to the execution of this Supplement No. 17 to the
Lease and prior to the Added Area 3 Effective Date the Port
Authority and the Lessee shall each use their best efforts to enter
into space permit(s) or other appropriate agreement(s) which
provide the Lessee with temporary staged access to portions of the
area which would become the Added Area 3 for the purpose of
performing paving and such other specified construction activities
as may be permitted (as provided in said permit(s) or other
agreement(s), and consistent with the terms of this Supplement No.
17). The parties each understand that such access will be
coordinated and staged so as to permit the continuous use by the
Port Authority of Added Area 3 for vehicular parking except for
those portions thereof that are, from time to time, temporarily
made available to the Lessee as provided herein, and that it is the
Lessee's desire to have as much of said area as possible paved and
ready for use as aircraft ramp on the Added Area 3 Effective Date.
(b) Premises added to C-1 and C-2 portions of the
premises: In addition to the premises heretofore let to the Lessee
under the Lease as to which the letting shall continue in full
force and effect subject to all the terms and conditions of the
Lease, as herein amended, the Port Authority hereby lets to the
Lessee and the Lessee hereby hires and takes from the Port
Authority at Newark International Airport effective as of 12:01
A.M. on the Effective Date the ground areas shown in diagonal hatch
and in crosses on the sketch attached hereto, hereby made a part
hereof and marked "Exhibit B-1", together with the fixtures,
improvements and other property of the Port Authority located or to
be located therein or thereon (collectively, the "Added Area 4"),
to be and become a part of the "C-1 and C-2 portions" of the
premises under the Lease, as herein amended, let to the Lessee
(said Added Area 4 being sometimes hereinafter referred to as the
"C-1-C-2 Additional Area") subject to and in accordance with all of
the terms, covenants, provisions and conditions of the Lease, as
herein amended, for and during all the residue and remainder of the
term of the letting of the C-1 and C-2 portions of the premises
under the Lease, as herein amended; with an expiration date of
March 31, 2013 as set forth in Section 4 of the Lease.
It is expressly recognized that Exhibit B-1 is a preliminary
exhibit and is marked "Preliminary" and is subject to replacement
with a final exhibit upon the Port Authority's determination of
final metes and bounds of the aforesaid Added Area 4 as more fully
described in Paragraph 3A of this Supplement No. 17.
The term "C-1 and C-2 portions" of the premises shall
refer to all portions of the premises let to the Lessee under the
Lease excluding the Area C-3 portion of the premises.
(c) The parties acknowledge and agree that the aforesaid
areas added to the premises under subparagraphs (a) and (b) of this
Paragraph 1 constitute non-residential real property.
(d) (1) The Lessee accepts all of the aforesaid
additional areas added to the premises under subparagraphs (a) and
(b) of this Paragraph 1 in their "as is" condition and agrees that
the Port Authority shall not have any responsibility for any work
or installation to make said aforesaid additional areas usable by
the Lessee, to place it in any particular condition or to reimburse
the Lessee for any work or installation as may be made by or on
behalf of the Lessee, the Lessee having exclusive responsibility
therefor. However, the Lessee shall not effect, without the prior
written approval of the Port Authority, any modification, addition,
removal or other change with respect to said additional areas added
to the premises under subparagraphs (a) and (b) of this Paragraph
1. The Lessee hereby acknowledges that it has not relied upon any
representation or statement of the Port Authority or its
Commissioners, officers, employees or agents as to the condition of
the said additional areas added to the premises under subparagraphs
(a) and (b) of this Paragraph 1. The Lessee, prior to the
execution of this Agreement, has thoroughly examined the said
additional areas added to the premises under subparagraphs (a) and
(b) of this Paragraph 1 and determined them to be suitable for the
Lessee's operations hereunder and the Lessee hereby agrees to take
said additional areas added to the premises under subparagraphs (a)
and (b) of this Paragraph 1 in the condition they are in as of the
applicable effective date and, subject to Section 12(p)(2) of the
Lease as herein amended, to assume all responsibility for any and
all risks, costs and expenses of any kind whatsoever (including but
not limited to the risks, costs and expenses described in
subsubparagraph (2) of this subparagraph (d)) caused by, arising
out of or in connection with, the condition of the said areas
whether any aspect of such condition existed prior to, on or after
the applicable effective date of the letting of the said additional
areas added to the premises under subparagraphs (a) and (b) of this
Paragraph 1, including without limitation all Environmental
Requirements (as defined in Section 72 of the Lease as herein
amended) and Environmental Damages (as defined Section 72 of the
Lease as herein amended), and to indemnify and hold harmless the
Port Authority for all such risks, requirements, costs and expenses
imposed upon or required of the Port Authority. Without limiting
any obligation of the Lessee to commence operations hereunder at
the time and in the manner stated elsewhere in the Lease as herein
amended, the Lessee agrees that no portion of the premises will be
used initially or at any time during the letting which is in a
condition unsafe or improper for the conduct of the Lessee's
operations hereunder so that there is possibility of injury or
damage to life or property. All the obligations of the Lessee
under the Lease as hereby amended with respect to the aforesaid
responsibilities, risks, costs and expenses assumed by the Lessee
shall survive the expiration or termination of the Lease.
(2) In addition to and without limiting the
foregoing or any Section, term, provision, covenant or condition of
the Lease or any of the Lessee's obligations, duties or liabilities
thereunder, the Lessee expressly acknowledges that the Lessee shall
at its own cost and expense obtain, maintain and fully comply with
all governmental permits and approvals, including but not limited
to any and all approvals of the City of Newark, required or which
may at any time be required for or relating to Added Area 2 (▇▇▇▇▇
Ditch) or the Lessee's use and occupancy thereof or the Lessee's
construction activities relating, affecting or in connection with
said Added Area 2 or any relocation or rerouting of the water flow
or drainage provided thereby, and that the Lessee shall not
commence any operations, filling in or any other construction
activities whatsoever on, in or upon or affecting said ▇▇▇▇▇ Ditch
Area prior to the Lessee's obtaining all governmental permits and
approvals, including but not limited to the prior approval of the
City of Newark, including without limitation any approval which may
be required by the City of Newark under the Basic Lease; and
without limiting any term or provision of the Lease the Lessee
shall promptly submit to the Port Authority true and complete
executed copies of all such governmental permits and approvals
prior to the Lessee's performance of any such work, and such other
and further information as the Port Authority may require or
request. Without limiting Sections 10, 33, 93 or any other term,
covenant, condition or provision of the Lease, the Lessee hereby
expressly assumes all risks, costs and expenses in connection with
the letting hereunder of the said ▇▇▇▇▇ Ditch Area to the Lessee
including without limitation the risk that the City of Newark may
not grant approval to any construction or use or alteration by the
Lessee of the said ▇▇▇▇▇ Ditch Area or for any proposed
replacement, relocation or rerouting for said ▇▇▇▇▇ Ditch and the
risks that the City of Newark or any other governmental authority
may not grant to the Lessee any necessary permits or approvals for
the construction, filling in or use or alteration by the Lessee of
the said ▇▇▇▇▇ Ditch Area. Without limiting the foregoing, the
Lessee shall consult with the Port Authority in the application for
the required individual freshwater wetland permits and stream
encroachment permits.
(e) The additional areas added to the premises under
subparagraphs (a) and (b) of this Paragraph 1 shall be subject to
the height limitations set forth in paragraph (b) of Section 1 of
the Lease, and further subject to the restrictions on construction
and to the construction obligations of the Lessee under Section 93
of the Lease, as herein amended.
(f) Subject to the terms and provisions of the Lease and
the terms and conditions stated herein, the Port Authority hereby
grants to the Lessee the temporary right to access those portions
of Non-Exclusive Area D-2 (as defined in Section 3 (i) of the
Lease) which are located directly behind (airside) of Passenger
Terminal Building C solely for the purposes of performing those
certain parts of the Expansion Construction Work (as defined in
Section 93 of the Lease) which when completed would extend above
the said portions of Area D-2 subject to the approval of, and as
approved by, the Port Authority in accordance with Section 93 of
the Lease; provided that said temporary right of access shall not
continue beyond the period allowed to the Lessee for its
performance of the Expansion Construction work under Section 93 of
the Lease; that the Lessee shall not construct, install or place
any permanent improvements, equipment or facilities in any portion
of said Area D-2; that any temporary construction equipment or
devices may be placed by the Lessee on said portions of Area D-2
only in accordance with the prior approval of the Port Authority,
and that any and all of the same shall be immediately removed by
the Lessee upon the completion by the Lessee of the aforesaid parts
of the Expansion Construction Work and in any event not later than
the Expansion Construction Work Completion Date as defined in
paragraph (n) (2) of Section 93 of the Lease; that in its exercise
of said right of access the Lessee shall comply with the terms and
provisions of the Lease, including without limitation Sections 3,
8, 14 an 93 thereof, and all Port Authority requirements given in
connection with the applicable Construction Application(s) (as
defined in Section 93 of the Lease); that, without limiting
paragraph (j) of Section 93 of the Lease or any other term or
provision of the Lease, the Lessee shall not perform any
construction or other activity on said Area D-2 which shall impede,
restrict, prevent, or impair the flow of traffic therein or thereon
or the use of the said Area C-2 by the other Airline Lessees in the
Central Terminal Area Complex or by other persons, as such use is
described in Subdivision II of Section 8 of the Lease, or which
shall endanger any person or property therein or thereon; that the
Lessee expressly hereby assumes all risks in connection with its
exercise of said temporary right of access; and that nothing herein
nor any Port Authority approval or requirement given in connection
with said temporary right of access shall release or relieve the
Lessee from its obligations, liabilities and indemnities under the
Lease or otherwise.
(g) With respect to the portion of Added Area 1 shown in
diagonal hatch on Exhibit A-1 hereof and the portion of Added Area
4 shown in diagonal hatch on Exhibit B-1, it is expressly
understood and agreed that the same are let to the Lessee subject
to the right of the Port Authority, its officers, employees,
agents, representatives and contractors to enter upon the same at
any time and from time to time to construct thereon and therein,
and to maintain, all appropriate access stairways and other access
facilities (which shall not become part of the premises hereunder)
sufficient to provide ingress and egress to and from the parking
garage structure presently contemplated by the Port Authority to be
constructed in the area generally located in the front of, and
outside of, said portions of the premises; such right of entry for
said purposes shall be deemed included in and exercised pursuant to
and in accordance with Section 22 of the Lease. The reservation of
the said right of entry and the exercise thereof by the Port
Authority, its officers, employees, agents, representatives and
contractors 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.
2. (a) Effective as of the Effective Date, the term of the
letting of the Area C-3 portion of the premises under the Lease, as
said Area C-3 is defined in Paragraph 1 of Supplement No. 8 of the
Lease and including the additional areas added or to be added to
Area C-3 of the premises pursuant to subparagraph (a) of Paragraph
1 above, is hereby extended for the period ending on March 31,
2028, unless sooner terminated, at the Area C-3 rentals in
accordance with Paragraph 3 below and upon all the terms,
covenants, provisions and conditions of the Lease, as hereby
amended.
(b) It is expressly understood and agreed that the
extension of the term of Area C-3 covered by the foregoing
subparagraph (a) of this Paragraph 2 does not and shall not include
the C-1 and C-2 portions of the premises (as defined above) or any
other part of the premises or any other area. It is also
recognized that the expiration date of the letting of all portions
of the premises hereunder, other than Area C-3, is and shall remain
March 31, 2013 as set forth in Section 4 (b) of the Lease as
amended by paragraph 2 of Supplement No. 7 of the Lease and that
said expiration date is not being extended by this Seventeenth
Supplemental Agreement, and, further, that upon the said expiration
date of March 31, 2013 the term of the letting under the Lease of
all portions of the premises hereunder other than Area C-3 shall
expire.
3. Paragraph 12 of Supplement No. 15 of the Lease is hereby
amended to read as follows:
"I. It is hereby agreed that, from and after the Effective
Date of Supplement No. 17 of the Lease (as said Effective Date is
set forth on the first page thereof) and continuing up to and
including the expiration date of the term of the letting of the
Area C-3 portion of the premises (March 31, 2028), in addition to
the Base Annual Rental under Section 5 of the Lease and in addition
to all other rentals, fees and charges under the Lease, the Lessee
shall pay to the Port Authority rental for Area C-3 as follows:
Area C-3 rental: For the period commencing on the
Effective Date of Supplement No. 17 of the Lease (as said Effective
Date is set forth on the first page thereof) to and including
December 31, 2003, rental for Area C-3 at an annual rate consisting
of (i) a Facility Factor, as hereinafter defined, consisting of the
sum of (x) the amount of Seven Million Nine Hundred Ninety-eight
Thousand One Hundred Forty-five Dollars and No Cents
($7,998,145.00) plus (y) effective as of the Added Area 3 Effective
Date the Added Area 3 Amount as hereinafter defined, plus (ii) the
Airport Services Factor, as the same shall then have been adjusted
in accordance with Schedule A attached to the Lease, as herein
amended, based upon a 1998 final Airport Services Factor in the
amount of (x) One Million Eight Hundred Thirty-five Thousand One
Hundred Nineteen Dollars and No Cents ($1,835,119.00) plus (y)
effective as of the Added Area 3 Effective Date, Six Hundred Twenty
Thousand Two Hundred Forty-two Dollars and No Cents ($620,242.00),
which annual rate shall be increased from time to time as provided
in subdivision II below and Schedule A of the Lease, as herein
amended, ("Area C-3 rental"). The Lessee shall pay the Area C-3
rental, as the same shall then have been determined based upon the
aforesaid adjustments, monthly in advance on the Effective Date of
Supplement No. 17 of the Lease (as said Effective Date is set forth
on the first page thereof) and on the first day of each and every
succeeding month in equal installments until such time as the
aforesaid annual rate has been further increased in accordance with
subdivision II below and Schedule A of the Lease, as herein
amended, which adjusted annual rate shall remain in effect until
the next adjustment and the monthly installments payable after each
such adjustment shall be equal to one-twelfth (1/12th) of said
annual rate as so adjusted.
"Added Area 3 Amount" shall mean the component of the
Facility Factor of the Area C-3 rental which shall be included
therein effective as of the Added Area 3 Effective Date at the
initial annual rate of Four Hundred Thirty Four Thousand Dollars
and No Cents ($434,000.00), subject to the increases pursuant to
subdivision II below; provided, however, that in the event said
Added Area 3 Effective Date occurs subsequent to December 31, 2003
said Added Area 3 Amount shall commence at the annual rate equal to
the aforesaid initial rate increased in accordance with subdivision
II below and subject to the further increases called for therein.
The said initial rate of the Added Area 3 Amount is also subject to
adjustment based on the Port Authority's determination of the final
metes and bounds of Added Area 3 as more fully described in
Paragraph 3A of Supplement No. 17 of the Lease.
The Area C-3 rental amounts set forth above and in
subdivision II below are also subject to the adjustments based on
the Port Authority's determination of the final metes and bounds of
Added Area 1, Added Area 2 and Added Area 3 as more fully described
in Paragraph 3A of Supplement No. 17 of the Lease.
II. (a) For the aforesaid period from the Effective Date of
Supplement No. 17 of the Lease (as said Effective Date is set forth
on the first page thereof) to and including December 31, 2003, the
Area C-3 rental payable under subdivision I of this Paragraph 3 is
made up of two factors, one, a variable factor herein called the
"Facility Factor", presently represents sum of (x) the amount of
Seven Million Nine Hundred Ninety-eight Thousand One Hundred Forty-
five Dollars and No Cents ($7,998,145.00) plus (y) the Added Area
3 Amount, as above defined of the aforesaid annual rentals and the
other, a variable factor herein called the "Airport Services
Factor", represents the Airport Services Factor under the Lease, as
the same shall have then been adjusted in accordance with Schedule
A, as herein amended, based upon a total 1998 final Airport
Services Factor in the amount of (x) One Million Eight Hundred
Thirty-five Thousand One Hundred Nineteen Dollars and No Cents
($1,835,119.00) plus (y) effective as of the Added Area 3 Effective
Date, Six Hundred Twenty Thousand Two Hundred Forty-two Dollars and
No Cents ($620,242.00), of the total aforesaid annual rentals.
(b) On January 1, 2004 and on each succeeding fifth (5th)
anniversary of said date, the Facility Factor (each component) of
the Area C-3 rental payable by the Lessee under subdivision I above
shall be increased by multiplying the Facility Factor (each
component) in effect on December 31, 2003 and on each succeeding
fifth (5th) anniversary of said date, as the case may be, by a
percentage equal to 21.6653% plus 100%. Accordingly,
(i) for the period from January 1, 2004 to and
including December 31, 2008, the Facility Factor of the Area C-3
rental payable under subdivision I of this Paragraph 3, shall
represent the sum of (x) the amount of Nine Million Seven Hundred
Thirty Thousand Nine Hundred Sixty-seven Dollars and No Cents
($9,730,967.00), plus (y) the Added Area 3 Amount in effect on
December 31, 2003 increased by multiplying the same by a percentage
equal to 21.6653% plus 100%; and
(ii) for the period from January 1, 2009 to and
including December 31, 2013, the Facility Factor of the Area C-3
rental payable under subdivision I of this Paragraph 3 shall
represent the sum of (x) the amount of Eleven Million Eight Hundred
Thirty-nine Thousand Two Hundred Ten Dollars and No Cents
($11,839,210.00), plus (y) the Added Area 3 Amount in effect on
December 31, 2008 increased by multiplying the same by a percentage
equal to 21.6653% plus 100%; and
(iii) for the period from January 1, 2014 to and
including December 31, 2018, the Facility Factor of the Area C-3
rental payable under subdivision I of this Paragraph 3 shall
represent the sum of (x) the amount of Fourteen Million Four
Hundred Four Thousand Two Hundred Ten Dollars and No Cents
($14,404,210.00), plus (y) the Added Area 3 Amount in effect on
December 31, 2013 increased by multiplying the same by a percentage
equal to 21.6653% plus 100%; and
(iv) for the period from January 1, 2019 to and including
December 31, 2023, the Facility Factor of the Area C-3 rental
payable under subdivision I of this Paragraph 3 shall represent the
sum of (x) the amount of Seventeen Million Five Hundred Twenty-four
Thousand Nine Hundred Twenty-five Dollars and No Cents
($17,524,925.00), plus (y) the Added Area 3 Amount in effect on
December 31, 2018 increased by multiplying the same by a percentage
equal to 21.6653% plus 100%.
(v) for the period from January 1, 2024 to and including
March 31, 2028, the Facility Factor of the Area C-3 rental payable
under subdivision I of this Paragraph 3 shall represent the sum of
(x) the amount of Twenty-one Million Three Hundred Twenty-one
Thousand Seven Hundred Fifty-two Dollars and No Cents
($21,321,752.00), plus (y) the Added Area 3 Amount in effect on
December 31, 2023 increased by multiplying the same by a percentage
equal to 21.6653% plus 100%.
(c) After December 31, 1998 and after the close of each
calendar year, thereafter, the Port Authority will continue to
adjust the Airport Services Factor of the Area C-3 rental payable
by the Lessee under subdivision I of this Paragraph 3, such
adjustment to be made as provided in Schedule A, as herein amended.
(d) The Lessee shall pay the total Area C-3 rentals payable by
the Lessee under this Paragraph 3, as the same have been adjusted
in accordance with subparagraphs (b) and (c) of this subdivision II
of this Paragraph 3, monthly in advance on the Effective Date of
Supplement No. 17 of the Lease (as said Effective Date is set forth
on the first page thereof) and on the first day of each and every
succeeding month in equal installments until such time as the said
total Area C-3 rentals have been further adjusted in accordance
with this Paragraph 3 and Schedule A, as herein amended, which
adjusted total annual rentals shall remain in effect until the next
adjustment and the monthly installments payable after each such
adjustment shall be equal to one-twelfth (1/12th) of said total
annual rentals as so adjusted.
The Area C-3 rental amounts set forth above in subdivision
I above and in this subdivision II are also subject to the
adjustments based on the Port Authority's determination of the
final metes and bounds of Added Area 1, Added Area 2 and Added Area
3 as more fully described in Paragraph 3A of Supplement No. 17 of
the Lease.
(e) In the event the term of the letting of Area C-3 shall
expire on a day other than the last day of a month, the monthly
installment of rentals for Area C-3 for said month shall be the
monthly installment prorated on a daily basis using the actual
number of days in the said month.
(f) The Lessee understands and agrees that, while the term of
the letting of Area C-3 of the premises under the Lease as extended
under this Seventeenth Supplemental Agreement shall expire on March
31, 2028, the final Airport Services Factor for the year 2028 will
not be determined for some months after such expiration and that
the Lessee's obligation to pay any deficiency in the Area C-3
rental for the year 2028 or the Port Authority's obligation to pay
a refund in said rentals resulting from the determination of the
final Airport Services Factor for the year 2027 or the year 2028
shall survive such expiration of the Lease and shall remain in full
force and effect until such deficiency or refund, if any, is paid.
The Lessee hereby specifically acknowledges that neither the
survival of the obligation with respect to any such deficiency or
refund nor any other provision of this Supplemental Agreement shall
grant or shall be deemed to grant any rights whatsoever to the
Lessee to have the term of the letting of Area C-3 under the Lease,
or any portion of the premises thereunder, extended for any period
beyond March 31, 2028 or affect in any way the Port Authority's
right to terminate the Lease, or any portion of the premises
thereunder, as provided therein.
(g) If any installment of Area C-3 rental payable hereunder
shall be for less than a full calendar month, then the Area C-3
rental payment for the portion of the month for which said payment
is due shall be the monthly installment prorated on a daily basis
using the actual number of days in that said month.
(h) Upon any termination of the letting hereunder (even if
stated to have the same effect as expiration), the Lessee shall
within twenty (20) days after the effective date of such
termination, make a payment of the Area C-3 rental computed as
follows: if the letting hereunder is terminated effective on a date
other than the last day of a month the rental for the portion of
that month in which the letting remains effective shall be the
amount of the monthly installment of rental prorated on a daily
basis, and if the monthly installment due on the first day of that
month has not been paid the Lessee shall pay the prorated part of
the amount of that installment; if the monthly installment has been
paid, then the excess thereof shall be credited to the Lessee's
obligations.
(i) Nothing contained in the foregoing shall affect the
survival obligations of the Lessee as set forth in Section 27
hereof.
(j) For purposes of subparagraph (f) above with respect to any
deficiency or refund, any termination of the Lease, other than a
termination under Section 24 hereof, shall be deemed to have the
same effect as the expiration thereof.
3A. It is expressly recognized and agreed that Exhibits A-1
and B-1 attached to this Supplement No. 17 of the Lease are
preliminary exhibits, and are marked "Preliminary," and that said
Exhibits are based on a preliminary description of the areas (Added
Area 1, Added Area 2, Added Area 3 and Added Area 4, as defined in
Paragraph 1 of this Supplement No. 17) shown thereon and do not
contain precise and final metes and bounds descriptions of said
areas. The Port Authority and the Lessee hereby expressly agree
that upon the Port Authority's determination of the actual, final
metes and bounds of the said Added Area 1, Added Area 2, Added
Area 3 and Added Area 4, final versions of said Exhibits A-1 and
B-1 shall be prepared by the Port Authority and shall replace the
preliminary versions of the same attached hereto. The said final
versions of the said Exhibits A-1 and B-1 shall be attached to a
further supplemental agreement to the Lease, which supplemental
agreement shall also set forth adjustments of the Area C-3 rental
amounts under the Lease (stated in Paragraph 3 above) on the basis
of said determination of the final metes and bounds of said Added
Area 1, Added Area 2 and Added Area 3 and adjustments of the Base
annual Rental under the Lease (stated in Paragraph 7 below) on the
basis of said determination of the final metes and bounds of said
Added Area 4 and appropriate adjustments to Schedule A of the Lease
(as described in paragraph 4 (c) hereof); said supplemental
agreement and said adjustments to have retroactive effect to the
Effective Date of this Supplement No. 17, except as to Added Area 3
for which the adjustment shall be effective on the Added Area 3
Effective Date. The said supplemental agreement shall be prepared
by the Port Authority and submitted to the Lessee for its execution
and the Lessee shall, and hereby agrees to, provide that the
information set forth therein is accurate and the supplemental
agreement modifies the Lease for the aforesaid changes and
adjustments and no other modifications (but may also include such
other provisions which also relate to the finalization of the metes
and bounds of the aforesaid areas), execute the said supplemental
agreement and deliver the same to the Port Authority not later than
ten (10) business days after the Port Authority's sending of the
same to the Lessee; provided, however, that, in the event the
Lessee shall for any reason fail to so execute and deliver the said
supplemental agreement to the Port Authority, said supplemental
agreement and the said adjustments of the Area C-3 rental amounts
and said adjustments of the Base Annual Rental and of Schedule A
shall be deemed effective notwithstanding any such failure of the
Lessee to so execute and deliver the same.
4. Schedule A attached to the Lease, as the same has been
heretofore amended, shall be deemed further amended as follows:
(a) The second sentence of the first (1st) paragraph thereof
(as set forth in Paragraph 14 (a) of Supplement No. 15 of the
Lease) shall be deemed amended to read as follows:
"The Lessee shall pay the rentals for Area C-3 at the
rates and times stated in Paragraph 3 of Supplement No.
17 of the Lease until the said rates are adjusted as
hereinafter provided".
(b) The last six (6) lines of said first (1st) paragraph of
Schedule A as the same are set forth in Paragraph 14 (b) of
Supplement No. 15 of the Lease shall be deemed amended to read as
follows:
"further, after the close of calendar year 1998 and after
the close of each calendar year thereafter, the Port
Authority will adjust the Airport Services Factor of the
Area C-3 rental set forth in Paragraph 3 of Supplement
No. 17 of the Lease, upwards or downwards, as follows:"
(c) Paragraph III of Schedule A of the Lease as previously
amended shall be further amended by adding at the end thereof the
following:
"For the calendar year 1999 adjustment it is hereby agreed
that the denominator representing the actual percentage of
total developed land occupied by the Lessee's premises
excluding Area C-3 shall be 4.304%; and that the
denominator representing the actual percentage of total
developed land occupied by the Area C-3 portion of the
Lessee's premises shall be 2.498%. The said percentages
are subject to the adjustments based on the Port
Authority's determination of the final metes and bounds of
Added Area 1, Added Area 2, Added Area 3 and Added Area 4
as more fully described in Paragraph 3A of Supplement
No. 17 of the Lease. The aforesaid percentage to be used
for the Lessee's premises excluding Area C-3 shall be
increased to reflect the addition to the said Lessee's
premises of the Added Area 3 (as defined in Paragraph 1(a)
of Supplement No. 17 of the Lease) effective from and
after the Added Area 3 Effective Date (as defined in
Paragraph 1(a) of Supplement No. 17 of the Lease)."
5. Subparagraph (e) (1) of Paragraph 3 of Supplement No. 8 of
the Lease, as previously amended, shall be deemed further amended
to read as follows:
"(e) (1) Effective from and after the Effective Date of
Supplement No. 17 of the Lease (as said Effective Date is
set forth on the first page thereof), in the event the
Lessee shall at any time by the provisions of this
Agreement become entitled to an abatement of the Area C-3
rentals, the Facility Factor of the Area C-3 rental for
each square foot of floor space of the portion of the
Passenger Terminal Building which falls within Area C-3
shall be reduced for each calendar day or major fraction
thereof the abatement remains in effect, the use of which
is denied the Lessee, by the following amounts: (it being
understood that there shall be no abatement of Area C-3
rental under the Lease for any portion of Area C-3 or for
any portion of the term except as specifically provided
in this Agreement):
(i) for each square foot of floor
space in said portion of Area C-3 at
the following daily rate:
(aa) for the portion of the term of
the letting of Area C-3 from the
Effective Date of Supplement No. 17 of
the Lease (as said Effective Date is
set forth on the first page thereof)
to and including December 31, 2003 at
the daily rate of $0.1095890.
(bb) for the portion of the term of
the letting of Area C-3 from January
1, 2004 to and including December 31,
2008 at the daily rate of $0.1333318.
(cc) for the portion of the term of
the letting of Area C-3 from January
1, 2009 to December 31, 2013 at the
daily rate of $0.1622186.
(dd) for the portion of the term of
the letting of Area C-3 from January
1, 2014 to December 31, 2018 at the
daily rate of $0.1973637.
(ee) for the portion of the term of
the letting of Area C-3 from January
1, 2019 to December 31, 2023 at the
daily rate of $0.2401231.
(ff) for the portion of the term of
the letting of Area C-3 from January
1, 2024 to March 31, 2028 at the daily
rate of $0.2921464.
(ii) with respect to the Area D
portion of Area C-3 (as described in
Paragraph 1 (a) (vi) of Supplement No.
8 of the Lease): Any such abatement
shall be made on an equitable basis
giving effect to the amount and
character of the said Area D portion
of Area C-3 the use of which is denied
to the Lessee as compared with the
entire Area C-3.
For the purpose of this Agreement, the measurement of
interior building space in the aforesaid portion of Area
C-3 shall be computed (i) from the inside surface of
outer walls of the structure of which Area C-3 forms a
part; (ii) from the center of partitions separating Area
C-3 from areas occupied from or used by others."
6. The following new Section 93 shall be deemed inserted
after Section 92A of the Lease to read as follows:
"Section 93. The Expansion Construction Work by the
Lessee
(a) The Lessee shall, prior to its submission to the Port
Authority of the plans and specifications hereinafter provided
for, submit to the Port Authority for its consent, the
Lessee's comprehensive plan for the Expansion Construction
Work, as hereinbelow defined, including but not limited to
renderings, layouts, locations, models, estimated commencement
and completion dates, and preliminary functional plans
("Comprehensive Plan"). The Lessee shall keep the aforesaid
Comprehensive Plan covering all portions of the Expansion
Construction Work up to date and shall submit to the Port
Authority for its prior approval any amendments, revisions, or
modifications thereof, other than field changes (except field
changes relating to the relocation of ▇▇▇▇▇ Ditch and any work
affecting the peripheral drainage ditch known as Peddie
Ditch.)
(b) (1) Without limiting the above, the Lessee agrees
that said Comprehensive Plan shall include the design and
construction by the Lessee in, on and under the premises and
off the premises, where required, of the following:
(i) All construction and installation of, and other
appropriate, necessary or required work for, airline terminal
facility capital improvements to Passenger Terminal Building
C to complete and decorate a completed passenger concourse
facility in Area C-3 of the premises (said Area C-3 being
defined in Paragraph 1 of Supplement No. 8 of the Lease and
including the areas added to Area C-3 pursuant to Paragraph 1
of the Seventeenth Supplemental Agreement to the Lease)
appropriate, necessary or required for the expansion of all of
the areas thereof and sufficient to handle both domestic and
international airline passenger traffic, including but not
limited to the installation of lavatories, stairwells,
stairways, escalators, elevators (including freight elevators)
("Area C-3 Concourse") and any alterations of and additions to
Passenger Terminal Building C required or appropriate in
connection with Area C-3 Concourse, and including without
limitation an expansion of the portion of Area D located in
Area C-3 so as to add thereto a minimum of twelve (12) new
aircraft gate positions for wide bodied aircraft;
(ii) The construction and installation of additions
and modifications to the Fuel System (as defined in Section 54
hereof), including but not limited to Distribution Facilities
and Terminal Distribution Units (as such terms are defined in
Section 54 hereof) and underground pipelines, fuel mains, and
stubs necessary or required to tie into the Fuel System at the
Airport to accommodate and serve Area C-3 Concourse and all
aircraft gate positions located or to be located thereat
including without limitation all of the aforesaid new aircraft
gate positions to be located in the portion of Area D located
in Area C-3, and also including all necessary, required, or
appropriate work to make said additions and modifications
fully operational as part of the Fuel System;
(iii)The construction and installation of a new
baggage handling system, including all related necessary or
appropriate work, sufficient to handle the entire Passenger
Terminal Building C including Concourse C-1, Concourse C-2 and
Area C-3 Concourse;
(iv) The construction and installation in the Area
C-3 Concourse of, including all appropriate, necessary or
required work for, United States government inspection areas
(as described in Section 95 hereof) sufficient to handle
therein at least 1,500 international passengers per hour (the
"FIS facilities");
(v) INTENTIONALLY OMITTED
(vi) The construction and installation of all
appropriate lines, pipes, mains, cables, manholes, wires,
tubes, ducts, assemblies, conduits and other facilities
required in connection with or relating to the
mechanical, utility, electrical, storm sewer, sanitary
sewer, water, telephone, fire alarm, fire protection,
gas, heating, ventilation and air conditioning, steam,
drainage, refrigerating, communications, and other
systems needed for the Expansion Construction Work and
necessary or required to tie the foregoing into the
utility access stubs now existing at or within the
Passenger Terminal Building C, which include water,
electrical power, and 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;
(vii) All necessary or appropriate terminal
frontage improvements sufficient to align with the new
roadway configuration planned by the Port Authority for
the CTA; airside ground roadways; airside ramps; and also
sidewalks, vehicular service areas, and pedestrian
circulation areas, together with all related and
associated areas and facilities;
(viii) All grading and paving of ground areas,
including without limitation, all appropriate, necessary
and required work for the full-depth paving of all
unpaved portions of the aircraft maneuvering areas in the
Area C-3 portion of the premises, and for the design and
appropriate landscaping together with all related and
associated work;
(ix) All work necessary or required to construct
additional concession areas (as defined in Section 66 hereof)
in the Area C-3 Concourse to be made available for consumer
services as more fully set forth in Section 66 hereof
including the construction and installation of utility lines
which are to serve said concession areas;
(x) All work necessary or required to tie into Port
Authority supply lines for high temperature hot water for
heating and domestic use purposes only and chilled water for
air-conditioning purposes only, and in accordance with the
requirements and specifications as set forth in Section 49
hereof, including all work necessary or required to tie into
the contemplated expansion of the Port Authority's Central
Heating and Refrigeration Plant (the "Central Plant");
(xi) The grading and paving within Area C-3 of twelve
(12) aircraft gate positions and aircraft ramp and apron
areas, all taxilanes and all associated and related areas and
facilities (all of the foregoing to be and form part of the
Area D portion of Area C-3 under the Lease);
(xii) Construction and installation of all necessary
or required blast fences;
(xiii) All other appropriate or necessary work in
connection with or required by or for the foregoing including
without limitation all relamping in the premises, all
painting, all borings, surveys, route markers, signs,
obstruction lights and material inspections and all tie-ins to
utility lines and roadway access stubs;
(xiv) Subject to, and only if, and only to the
extent, expressly permitted by, all applicable
governmental permits and approvals, including but not
limited to the prior approval of the City of Newark, all
of which the Lessee shall, at its sole cost and expense,
obtain, maintain and comply with, without limiting any
other Section, term, provision, condition or covenant of
this Lease, all work necessary, required or appropriate
to reroute the flow of drainage and water of the ▇▇▇▇▇
Ditch Area, including without limitation the filling in
of the ▇▇▇▇▇ Ditch Area, all associated relocations, all
associated disposal, remediation and treatment services,
and the construction of new drainage and facilities and
systems on the premises and off the premises and the
construction of such other facilities, systems and
improvements as may be required by and in accordance with
all Environmental Requirements and as may be required by
the City of Newark (and/ or any other governmental
authority) for its or their initial or continuing
approval of all of the said work; provided that the
Lessee shall submit to the Port Authority true and
complete executed copies of all such governmental permits
and approvals (the Lessee agreeing to consult with the
Port Authority in the application for the required
individual freshwater wetland permits and stream
encroachment permits) prior to the Lessee's performance
of any such work, and such other and further information
as the Port Authority may require or request;
(xv) As to all of the foregoing and any and all
other portions of the Expansion Construction Work,
subject to Section 12(p)(2) of the Lease, all
appropriate, necessary or required demolition, treatment,
disposal, and removal work, and including without
limitation all removal, clean-up and remediation and
off-Airport disposal, and all appropriate, required or
necessary related work, in accordance with all
Environmental Requirements, of all soil, asbestos, lead
and other Hazardous Substances, and including the
handling, transporting and off-Airport disposal thereof
in accordance with all Environmental Requirements
(including, if required, disposal of asbestos in an
off-Airport long-term asbestos-only disposal facility).
(2) All of the foregoing work shall be constructed
by the Lessee in, on and under the premises and outside of the
premises where required, and where constructed in the premises
shall be and become a part of the premises under the Lease
(except for the items covered in item (ii) of subparagraph (1)
above which shall not become part of the premises).
(c) (1) The Lessee agrees at its sole cost and expense
to design and to construct all of the foregoing described in
paragraph (b) above, such design and construction being herein
collectively referred to as the "Expansion Construction Work".
(2) Prior to the commencement of the Expansion
Construction Work, the Lessee shall submit to the Port
Authority for the Port Authority's approval complete plans and
specifications therefor. The Port Authority may refuse to
grant approval with respect to the Expansion Construction Work
if, in its opinion, any of the proposed Expansion Construction
Work as set forth in said plans and specifications (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) would:
(i) Be unsafe, unsound, hazardous or improper
for the use and occupancy for which it is designed, or
(ii) Not comply with the Port Authority's
requirements for harmony of external architecture of similar
existing or planned future improvements at the Airport, or
(iii) Not comply with the Port Authority's
requirements with respect to external and interior
building materials and finishes of similar existing or
future improvements at the Airport, or
(iv) Not provide for sufficient clearances for
taxiways, runways and apron areas, or
(v) Be designed for use for purposes other than
those authorized under the Lease, or
(vi) Set forth ground elevations or heights
other than those prescribed by the Port Authority, or
(vii) Not provide adequate and proper roadways
and pedestrian circulation areas, or
(viii) Not be at locations or not be oriented
in accordance with the Lessee's approved Comprehensive Plan,
or
(ix) Not comply with the provisions of the
Basic Lease, including without limiting the generality
thereof, those provisions of the Basic Lease providing the
Port Authority will conform to the enactments, ordinances,
resolutions and regulations of the City of Newark 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, or
(x) Be in violation or contravention of any
other provisions and terms of this Lease, or
(xi) Not comply with all applicable
governmental laws, ordinances, enactments, resolutions, rules
and orders, or
(xii) Not comply with all applicable
requirements of the National Boardof Fire Underwriters and the
Fire Insurance Rating Organization of New Jersey, or
(xiii) Not comply with the Port Authority's
requirements with respect to landscaping, or
(xiv) Not comply with Port Authority's
requirements and standards with respect to noise, air
pollution, water pollution or other types of pollution, or
(xv) Not comply with the construction
limitations set forth in Exhibits A-1 and B-1 attached to
Supplement No. 17 of the Lease, if any; or
(xvi) Not comply with the Port Authority's plans
and policies with respect to ground transportation and traffic
control and frontage control and planned roadway improvements
within the Central Terminal Area of the Airport;
(xvii) Be in violation of the requirement
for the prior approvals and permits of governmental
authorities, including but not limited to the approval of
the City of Newark, or would not conform or comply with
any of the foregoing, with respect to the use,
construction, alteration, rerouting, filling in or other
work involving or in connection with Added Area 2 (▇▇▇▇▇
Ditch) or any proposed replacement or relocation thereof;
(xviii) Be in violation of any requirements
of, the Federal Aviation Administration (and/or any other
governmental authority(ies) with respect to the C-1 C-2
Addition (as defined in Paragraph 1 (b) of Supplement No.
17 of the Lease.
(3) With respect to the Lessee's submission of its
comprehensive plan, plans and specifications and any other
submission in connection with the Expansion Construction Work,
after the Port Authority has been satisfied that any such
submission is complete, including, but not limited to, the
submission of all information requested by the Port Authority
in connection therewith, the Port Authority shall conduct its
review of such submission in a manner which takes into account
the fact that the Port Authority has in the Lease imposed upon
the Lessee the obligation to complete the Expansion
Construction Work within a particular timeframe.
(d) All Expansion Construction Work shall be done in
accordance with the following terms and conditions:
(1) As between the Lessee and the Port Authority,
the Lessee hereby assumes the risk of loss or damage to all of
the Expansion Construction Work prior to the completion
thereof and the risk of loss or damage to all property of the
Port Authority or others arising out of or in connection with
the performance of the Expansion Construction Work including
without limitation, subject to Section 12(p)(2) of the Lease,
any and all Environmental Requirements and Environmental
Damages. In the event of such loss or damage, the Lessee
shall forthwith repair, replace and make good the Expansion
Construction Work and the property of the Port Authority or
others without cost or expense to the Port Authority or
others. The Lessee shall itself and shall also require its
contractors to indemnify and hold harmless the Port Authority,
its Commissioners, officers, agents and employees from and
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 Expansion Construction Work and for all expenses
incurred by it and by them in the defense, settlement or
satisfaction thereof, including without limitation thereto,
claims and demands for death, for personal injury or for
property damage, direct or consequential, whether they arise
from the acts or omissions of the Lessee, of any contractors
of the Lessee, of the Port Authority, or of third persons, or
from acts of God or of the public enemy, or otherwise,
(including claims of the City of Newark against the Port
Authority pursuant to the provisions of the Basic Lease
whereby the Port Authority has agreed to indemnify the City
against claims), excepting only claims and demands which
result solely from the willful misconduct, or the sole
negligence, of the Port Authority, its Commissioners,
officers, agents and employees with respect to the Expansion
Construction Work.
If so directed, the Lessee shall at its own expense
defend any suit based upon any 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.
(2) (i) Prior to engaging or retaining an architect
or architects for the Expansion Construction Work, the name or
names of said architect or architects shall be submitted to
the Port Authority for its approval. The Port Authority shall
have the right to disapprove any architect who may be
unacceptable to it. All Expansion Construction Work shall be
done in accordance with plans and specifications to be
submitted to and approved by the Port Authority prior to the
commencement of the Expansion Construction Work, and until
such approval has been obtained the Lessee shall continue to
resubmit plans and specifications as required. Upon approval
of such plans and specifications by the Port Authority, the
Lessee shall proceed diligently at its sole cost and expense
to perform the Expansion Construction Work. All Expansion
Construction 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 Expansion
Construction Work not done in accordance with the approved
plans and specifications, the provisions of this Section 93 or
any further requirements of the Port Authority.
(ii) The Lessee shall expend not less than Four
Hundred Million Dollars and No Cents ($400,000,000.00) with
respect to the Expansion Construction Work. If the Lessee
demonstrates to the satisfaction of the Port Authority that it
can perform and has performed the Expansion Construction Work
for an amount less than the above amount, doing so shall not
be a breach of this Agreement.
(iii) The Lessee shall complete all of the
Expansion Construction Work no later than June 30, 2002;
provided, however, that with respect to Added Area 3 (as
defined in Paragraph 1 of Supplement No. 17 to this Lease) the
Lessee shall complete the portion of the Expansion
Construction Work to be performed by the Lessee thereon by the
later of June 30, 2002 or the last day of the fourth (4th)
consecutive month following the Added Area 3 Effective Date.
(3) Prior to entering into a contract for any part
of the Expansion Construction Work, the Lessee shall submit to
the Port Authority for its approval the names of the
contractors to whom the Lessee proposes to award said
contracts. The Port Authority shall have the right to
disapprove any contractor who may be unacceptable to it. The
Lessee shall include in all such contracts such provisions and
conditions as may be reasonably required by the Port
Authority. Without limiting the generality of the foregoing
all of the Lessee's construction contracts shall provide as
follows: "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 ▇▇▇▇▇▇▇ 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 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, ▇▇▇▇▇▇▇ or other third persons which arises 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."
The Lessee shall file with the Port Authority a
copy of its contracts with its contractors prior to start of
the Expansion Construction Work.
(4) The Lessee shall furnish or require its
architect to furnish a full time resident engineer during the
construction 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 requested by the Port Authority from time to time.
(5) As between the Lessee and the Port Authority,
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 that the same
have been approved by the Port Authority and notwithstanding
the incorporation therein of Port Authority recommendations or
requirements. Notwithstanding the requirement for approval by
the Port Authority of the contracts to be entered into by the
Lessee or the incorporation therein of Port Authority
requirements or recommendations, 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 therewith and the
Lessee hereby releases and discharges the Port Authority, its
Commissioners, officers, representatives and employees of and
from any and all liability, claims for damages or losses of
any kind whether legal or equitable, or from any action or
cause of action arising or alleged to arise out of the
performance of any Expansion Construction Work pursuant to the
contracts between the Lessee and its contractors, except for
any of the foregoing which results solely from the willful
misconduct, or the sole negligence of, the Port Authority, its
Commissioners, officers, agents and employees. Any warranties
contained in any construction contract entered into by the
Lessee for the performance of the Expansion Construction Work
hereunder shall be for the benefit of the Port Authority as
well as the Lessee, and the contract shall so provide.
(6) The Port Authority shall have the right, through
its duly designated representatives, to inspect the Expansion
Construction Work and the plans and specifications thereof, at
any and all reasonable times during the progress thereof and
from time to time, in its discretion, to take samples and
perform testing on any part of the Expansion Construction
Work.
(7) The Lessee agrees that it shall deliver to the
Port Authority two (2) sets of "as built" drawings of the
Expansion Construction Work. One set of drawings shall be
printed on Mylar transparencies with the image of the New
Jersey seal of the Lessee's Architect or Engineer of Record on
each drawing. The associated Architect's or Engineer's
signature can also be imaged or signed in pencil on each
drawing. The second set of drawings shall consist of blue
line paper prints, each with the raised embossed New Jersey
seal of the Architect or Engineer of Record appropriately
signed in ink. The Lessee shall during the term of this Lease
keep said drawings current showing thereon any changes or
modifications which may be made. No changes or modifications
shall be made without prior Port Authority consent.
(8) The Lessee shall, if requested by the Port
Authority, take all reasonable measures to prevent erosion of
the soil and the blowing of sand during the performance of the
Expansion Construction Work, including but not limited to the
fencing of the premises or portions thereof or other areas and
the covering of open areas with asphaltic emulsion or similar
materials as the Port Authority may direct.
(9) Any soil, dirt, sand or other matter
(hereinafter in this item (9) collectively called "the
matter") excavated by the Lessee during the course of the
Expansion Construction Work and not used by the Lessee at the
premises in the Expansion Construction Work shall be delivered
and deposited by the Lessee in accordance with all
Environmental Requirements at its expense to any location on
the Airport as may be designated by the Port Authority prior
to the time of removal thereof from the Airport. The entire
proceeds, if any, of the sale or other disposition of the
matter shall belong to the Port Authority. Notwithstanding
the foregoing the Port Authority may elect by prior written
notice to the Lessee to waive any rights it may have hereunder
as to all or portions of the matter in which event the Lessee
at its sole expense shall, in accordance with all
Environmental Requirements, dispose of the same without
further instruction from the Port Authority.
(10) The Lessee shall pay or cause to be paid all
claims lawfully made against it by its contractors,
subcontractors, materialmen and workmen, 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 Expansion Construction Work, and shall
cause its contractors and subcontractors 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 to contest any claim of a contractor,
subcontractor, materialman, ▇▇▇▇▇▇▇ and/or other person
and no such claim shall be considered to be an obligation
of the Lessee within the meaning of this Section unless
and until the same shall have been finally adjudicated.
The Lessee shall use its best efforts 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.
(11) (i) The Lessee in its own name as insured and
including the Port Authority as an additional insured shall
procure and maintain Commercial General Liability insurance,
including but not limited to premises-operations, products
liability-completed operations, explosion, collapse and
underground property damages, bodily injury (including death),
personal injury and independent contractors, with a broad form
property damage endorsement and with a contractual liability
endorsement covering the obligations assumed by the Lessee
pursuant to subparagraphs (1) and (5) of this paragraph (d),
Comprehensive Automobile Liability insurance covering owned,
non-owned and hired vehicles, and automatically covering newly
acquired vehicles, and Environmental Liability Insurance. The
said Commercial General Liability insurance policy shall have
a limit of not less than $100,000,000 combined single limit
per occurrence for bodily injury (including death) and
property damage liability, said Comprehensive Automobile
Liability policy shall have a limit of not less than
$25,000,000 combined single limit per accident for bodily
injury (including death) and property damage liability, and
said Environmental Liability Insurance shall have a limit of
not less than $3,000,000.
Without limiting the provisions hereof, in the
event the Lessee maintains the foregoing insurance in limits
greater than aforesaid, the Port Authority shall be included
therein as an additional insured to the full extent of all
such insurance in accordance with all the terms and provisions
hereof.
The foregoing 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 for the Expansion Construction Work
to procure and maintain such insurance including such
contractual liability endorsement, said insurance, whether
procured by the Lessee or by a contractor engaged by it as
aforesaid, not to contain any exclusion for bodily injury to
or sickness, disease or death of any employee of the Lessee or
of any of its contractors which would conflict with or in any
way impair coverage under the contractual liability
endorsement. All of the aforesaid policy or policies of
insurance shall also provide or contain an endorsement
providing that the protections afforded the Lessee thereunder
with respect to any claim or action against the Lessee by a
third person shall pertain and apply with like effect with
respect to any claim or action against the Lessee by the Port
Authority, and shall also provide or contain an endorsement
providing that the protections afforded the Port Authority
thereunder with respect to any claim or action against the
Port Authority by the Lessee or its contractor(s) shall be the
same as the protections afforded the Lessee thereunder with
respect to any claim or action against the Lessee by a third
person as if the Port Authority were the named insured
thereunder; but such provision or endorsement shall not limit,
vary or affect the protections afforded the Port Authority
thereunder as an additional insured.
(ii) The Lessee shall also procure and maintain
in effect, or cause to be procured and maintained in effect
Workers' Compensation Insurance and Employer's Liability
Insurance in accordance with and as required by law.
(iii) The insurance required hereunder in this
subparagraph (11) shall be maintained in effect during the
performance of the Expansion Construction Work. As to the said
insurance a certified copy of the certificate or certificates
or binders, evidencing the existence thereof, shall be
delivered by the Lessee to the Port Authority upon execution
of the Seventeenth Supplemental Agreement to this Lease and
delivery thereof by the Lessee to the Port Authority. Each
policy, certificate or binder delivered as aforesaid shall
bear the endorsement of or be accompanied by evidence of
payment of the premium thereon. In the event a binder is
delivered, it shall be replaced within thirty (30) days by a
certified copy of the policy or a certificate. Each such copy
or certificate shall contain a valid provision or endorsement
that the policy may not be cancelled, terminated, changed or
modified without giving thirty (30) days' written advance
notice thereof to the Port Authority. Each such copy or
certificate shall contain an additional endorsement providing
that the insurance carrier 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, its Commissioners, officers, agents, or employees,
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. Any renewal policy or
certificate shall be delivered to the Port Authority prior to
the expiration of each expiring policy, except for any policy
expiring after the date of expiration of the term of this
Agreement. The aforesaid insurance shall be written by a
company or companies approved by the Port Authority, the Port
Authority agreeing not to withhold its approval unreasonably.
If at any time any of the insurance policies shall be or
become unsatisfactory to the Port Authority as to the form or
substance or if any of the carriers issuing such policies
shall be or become unsatisfactory to the Port Authority, the
Lessee shall promptly obtain a new and satisfactory policy in
replacement, the Port Authority covenanting and agreeing not
to act unreasonably hereunder; the Port Authority agreeing to
provide written notice to the Lessee, upon the written request
of the Lessee, of the reasons it finds such policies or
carriers unsatisfactory. If the Port Authority at any time so
requests, a certified copy of each of the policies shall be
delivered to the Port Authority, provided that the Port
Authority shall keep such policies and the contents thereof
confidential except to the extent (i) required to respond to
a loss, damage, claim or suit or otherwise required by law or
Port Authority policy approved by its Board of Commissioners
from time to time, or (ii) that the policies or the contents
thereof are otherwise available in the public domain.
(12) The Lessee shall be under no obligation to
reimburse the Port Authority for expenses incurred by the Port
Authority in connection with its normal review and approval of
the original plans and specifications submitted by the Lessee
pursuant to this Section, which review and approval process is
generally described in the booklet entitled "Tenant
Construction Review Manual", dated March 1997, a copy of which
the Lessee hereby acknowledges it has received from the Port
Authority. The Lessee however agrees to pay to the Port
Authority upon its demand the expenses incurred by the Port
Authority in connection with any additional review for
approval of any substantial changes in scope or design to the
approved, plans and specifications which may be proposed by
the Lessee for the Port Authority's approval. The expenses of
the Port Authority for any such additional review and approval
shall be computed on the basis of direct payroll time expended
in connection therewith plus 100%. Wherever in this Lease
reference is made to "direct payroll time", costs computed
thereunder shall include a prorata share of the cost to the
Port Authority of providing employee benefits, including, but
not limited to, pensions, hospitalization, medical and life
insurance, vacations and holidays. Such computations shall be
in accordance with the Port Authority's accounting principles
as consistently applied prior to the execution of this Lease.
(13) The Lessee shall prior to the commencement of
construction and at all times during construction submit to
the Port Authority all engineering studies with respect to
construction and samples of construction materials as may be
required at any time and from time to time by the Port
Authority.
(14) The Lessee shall procure and maintain Builder's
Risk (All Risk) Completed Value Insurance covering the
Expansion Construction Work during the performance thereof
including material delivered to the site but not attached to
the realty. Such insurance shall name the Port Authority, the
City of Newark, the Lessee and its contractors and
subcontractors as additional assureds and such policy shall
provide that the loss shall be adjusted with and that the
proceeds shall be payable to the Lessee. Such proceeds shall
be used by the Lessee for the repair, replacement or
rebuilding of the Expansion Construction Work and any excess
shall be paid over to the Port Authority. The policies or
certificates representing insurance covered by this paragraph
(14) shall be delivered by the Lessee to the Port Authority at
least thirty (30) days prior to the commencement of
construction of the Expansion Construction Work, and each
policy or certificate delivered shall bear the endorsement of
or be accompanied by evidence of payment of the premium
thereof and, also, a valid provision obligating the insurance
company to furnish the Port Authority and the City of Newark
thirty (30) days' advance notice of the cancellation,
termination, change or modification of the insurance evidenced
by said policy or certificate. Renewal policies or
certificates shall be delivered to the Port Authority at least
thirty (30) days before the expiration of the insurance which
such policies are to renew.
The insurance covered by this paragraph (14) shall be
written by companies approved by the Port Authority, the Port
Authority covenanting and agreeing not to withhold its
approval unreasonably. If at any time any of the insurance
policies shall be or become unsatisfactory to the Port
Authority as to the form or substance or if any of the
carriers issuing such policies shall be or become
unsatisfactory to the Port Authority, the Lessee shall
promptly obtain a new and satisfactory policy in replacement,
the Port Authority covenanting and agreeing not to act
unreasonably hereunder; the Port Authority agreeing to provide
written notice to the Lessee, upon the written request of the
Lessee, of the reasons it finds such policies or carriers
unsatisfactory. If at any time the Port Authority so
requests, a certified copy of each of the said policies shall
be delivered to the Port Authority, provided that the Port
Authority shall keep such policies and the contents thereof
confidential except to the extent (i) required to respond to
a loss, damage, claim or suit or otherwise required by law or
Port Authority policy approved by its Board of Commissioners
from time to time, or (ii) that the policies or the contents
thereof are otherwise available in the public domain.
(15) The Lessee shall at the time of submitting the
Comprehensive Plan to the Port Authority as provided in
paragraph (a) hereof submit to the Port Authority its
forecasts of the number of people who will be working at
various times during the term of the Lease at the premises or
other areas of the Expansion Construction Work, the expected
utility demands of the premises, noise profiles and such other
information as the Port Authority may require from time to
time and at any time. 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.
(16) The Lessee shall execute and submit for the Port
Authority's approval a Tenant Construction or Alteration
Application or Applications in the form prescribed by the Port
Authority covering the Expansion Construction Work or portions
thereof (hereinafter collectively called "Construction
Application" or "Construction Applications"). The Lessee
shall comply with all the terms and provisions of the approved
Construction Applications. In the event of any inconsistency
between the terms of any Construction Application and the
terms of the Lease, the terms of this Lease shall prevail and
control.
(17) Nothing contained in this Lease shall grant or
be deemed to grant to any contractor, architect, supplier,
subcontractor or any other person engaged by the Lessee or any
of its contractors in the performance of any part of the
Expansion Construction Work any right or 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 Expansion Construction Work.
Nothing contained herein shall create or be deemed to create
any relationship between the Port Authority and any such
contractor, architect, supplier, subcontractor or any other
person engaged by the Lessee or any of its contractors in the
performance of any part of the construction 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
Expansion Construction Work.
(18) (i) Without limiting any of the terms and
conditions of this Lease, the Lessee understands and agrees
that it shall put into effect prior to the commencement of any
Expansion Construction Work an affirmative action program and
Minority Business Enterprise (MBE) program and Women-owned
Business Enterprise (WBE) program in accordance with the
provisions of Schedule E (attached to the Seventeenth
Supplemental Agreement to this Lease) and hereby made a part
hereof. As used in Schedule E the term 'construction work'
shall be deemed to include the Expansion Construction Work.
The provisions of said Schedule E of this Lease shall be
applicable to the Lessee's contractor or contractors and
subcontractors at any tier of construction as well as to the
Lessee itself and the Lessee shall include the provisions of
said Schedule E within all of its construction contracts so as
to make said provisions and undertakings the direct obligation
of the construction contractor or contractors and
subcontractors at any tier of construction. The Lessee shall
and shall require its said contractor, contractors and
subcontractors 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,
Minority Business Enterprise (MBE) and Women-owned Business
Enterprise (WBE) programs called for hereunder as the Port
Authority may request at any time and from time to time
regarding the affirmative action, Minority Business
Enterprises (MBE) and Women-owned Business Enterprises (WBE)
programs of the Lessee and its contractor, contractors, and
subcontractors at any tier of construction, and the Lessee
shall and shall also require that its contractor, contractors
and subcontractors at any tier of construction 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 Schedule E to effectuate the goals of
affirmative action and Minority Business Enterprise (MBE) and
Women-owned Business Enterprise (WBE) programs.
(ii) In addition to and without limiting any terms
and conditions of this Lease, the Lessee shall provide in its
contracts and all subcontracts covering the Expansion
Construction Work or any portion thereof, that:
(aa) The contractor shall not discriminate against
employees and applicants for employment because of race,
creed, color, national origin, sex, age, disability or
marital status, 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;
(bb) 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,
creed, color, national origin, sex, age, disability or
marital status and that such union or representative will
cooperate in the implementation of the contractor's
obligations hereunder;
(cc) The contractor will state, in all solicitations
or advertisements foremployees 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, creed,
color, national origin, sex, age, disability or marital
status;
(dd) The contractor will include the provisions of
subparagraphs (aa) through (cc) of this paragraph in every
subcontract or purchase order in such a manner that such
provisions will be binding upon each subcontractor or
vendor as to its work in connection with the contract;
(ee) "Contractor" as used herein shall include each
contractor and subcontractor at any tier of construction.
(19) (i) The Lessee understands that there may be
communications and utility lines and conduits located on or
under the areas of the Expansion Construction Work 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 so to do:
(A) within a reasonable period of time following
notice to or from the Port Authority of the existence
thereof (with respect to those of which the Lessee
notifies the Port Authority or the Port Authority notifies
the Lessee), but in no event later than the issuance of
the certificate called for in paragraph (n) (1) hereof;
(B) prior to the issuance of the certificate called
for in paragraph (n) (1) hereof (with respect to those of
which the Lessee does not have knowledge prior to the
issuance of the certificate called for in paragraph (n)(1)
hereof); or
(C) within a reasonable period of time following the
Port Authority becoming aware of the existence thereof
(with respect to those of which the Lessee has knowledge
prior to the issuance of the certificate called for in
paragraph (n)(1) hereof but does not notify the Port
Authority;
to relocate and reinstall such communication and utility lines
and conduits 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"); provided that nothing in this subparagraph (i) shall
limit the provisions of the following subparagraph (ii). The
Lessee shall perform the relocation work subject to and in
accordance with all the terms and provisions of this Section
93 and the relocation work shall be and become a part of the
Expansion Construction Work, it being understood, however,
that the relocation work shall not be or become a part of the
premises hereunder.
(ii) Prior to the commencement of any of the
Expansion Construction Work, the Lessee shall coordinate
the Expansion Construction Work with the Location of
Subsurface Utilities toll free information service
(1-800-272-1000) and ascertain the location of
underground utilities, if any, at the premises or other
area of any Expansion Construction Work. The Lessee
shall provide the Port Authority with written evidence of
such coordination.
(e) [INTENTIONALLY OMITTED]
(f) The Lessee may wish to commence construction of
portions of the Expansion Construction Work prior to the
approval by the Port Authority of its plans and specifications
pursuant to paragraph (c) hereof, and if it does it shall
submit a written request to the Port Authority setting forth
the work it proposes then to do. The Port Authority shall
have full and complete discretion as to whether or not to
permit the Lessee to proceed with any portion of the Expansion
Construction Work. If the Port Authority has no objection to
the Lessee's proceeding with any of the aforementioned work,
it shall do so by writing a letter to the Lessee to such
effect. If the Lessee performs the work covered by said
letter it agrees all such work shall be performed subject to
and in accordance with all of the provisions of the approval
letter and subject to and in accordance with the following
terms and conditions:
(1) The performance by the Lessee of the work
covered by any request as aforesaid will be, as between the
Lessee and the Port Authority, at the Lessee's sole risk and
if for any reason the plans and specifications for the
Expansion Construction Work are not approved by the Port
Authority or if the approval thereof calls for modifications
or changes in the work undertaken by the Lessee under any
approval granted by the Port Authority pursuant to this
paragraph (f), the Lessee will, as directed by the Port
Authority, at its sole cost and expense, either restore the
area affected to the condition existing prior to the
commencement of any such work or make such modifications and
changes in any such work as may be required by the Port
Authority.
(2) Nothing contained in any approval hereunder
shall constitute a determination or indication by the Port
Authority that the Lessee has complied with the applicable
governmental laws, ordinances, enactments, resolutions, rules
and orders, including but not limited to those of the City of
Newark, which may pertain to the work to be performed.
(3) The approved work will be performed in
accordance with and subject to the terms, indemnities and
provisions of the Lease covering the Expansion Construction
Work and with the terms and conditions of any Construction
Application which the Port Authority may request the Lessee to
submit even though such Construction Application may not have,
at the time of the approval under this paragraph (f), been
approved by the Port Authority. In the event of any
inconsistency between the terms of any Construction
Application and the terms of this Lease, the terms of this
Lease shall prevail and control.
(4) No work under any such approval shall
affect or limit the obligations of the Lessee under all prior
approvals with respect to its construction of the Expansion
Construction Work.
(5) The Lessee shall comply with all
requirements, stipulations and provisions as may be set forth
in the letters of approval.
(6) In the event that the Lessee shall at any
time during the construction of any portion of the Expansion
Construction Work under the approval granted by the Port
Authority pursuant to this paragraph (f) fail, in the opinion
of the General Manager of the Airport, to comply with all of
the provisions of this Lease with respect to the Expansion
Construction Work, the Construction Application or the
approval letter covering the same or be, in the opinion of the
General Manager, in breach of any of the provisions of this
Lease, the Construction Application or the approval letter
covering the same, the Port Authority shall have the right,
acting through said General Manager to cause the Lessee to
cease all or such part of the Expansion Construction Work as
is being performed in violation of this Lease, the
Construction Application or the approval letter. Upon such
written direction from the General Manager specifying such
non-compliance or breach (and without limiting any other
rights or remedies of the Port Authority hereunder or
otherwise) the Lessee shall promptly cease construction of the
portion of the Expansion Construction 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 Expansion
Construction Work that has been or is to be performed so that
the same will comply with the provisions of this Lease, the
Construction Application and the approval letter covering the
Expansion Construction Work. The Lessee shall not commence
construction of the portion of the Expansion Construction Work
that has been halted until such written approval has been
received.
(7) It is hereby expressly understood and
agreed that neither the field engineer covered by paragraph
(g) hereof nor the Resident Engineer of the Port Authority at
the Airport has any authority to approve any plans and
specifications of the Lessee with respect to the Expansion
Construction Work, to approve the construction by the Lessee
of any portion of the Expansion Construction Work or to agree
to any variation by the Lessee from compliance with the terms
of this Lease, or the Construction Application or the approval
letter with respect to the Expansion Construction Work.
Notwithstanding the foregoing, should the field engineer or
the Resident Engineer give any directions or approvals with
respect to the Lessee's performance of any portion of the
Expansion Construction Work which are contrary to the
provisions of this Lease, the Construction Application or the
approval letter, 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 Expansion
Construction 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 Expansion Construction 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 Expansion Construction Work in accordance with
the terms of the Lease, the Construction Application or the
approval letter 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 the Lease, the
Construction Application and the approval letter with respect
to the Expansion Construction Work.
(8) 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 approvals
under this paragraph (f), 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
approval hereunder. The Lessee hereby acknowledges that if it
commences work pursuant to this paragraph (f), it shall do so
with full knowledge that there may not be continuity by it in
the performance of its Expansion Construction Work under the
procedures of this paragraph (f).
(9) No prior approval of any work in connection
with the Expansion Construction 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
Expansion Construction 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 Expansion
Construction Work and to obtain the Port Authority's approval
of the same as set forth in paragraph (c) hereof. It is
further understood that in the event the Lessee elects not to
continue to seek further approval letter(s) pursuant to this
paragraph (f), the obligations of the Lessee to restore the
area and to make modifications and changes as set forth in
subparagraph (1) above shall be suspended until the Lessee's
submission of its complete plans and specifications in
accordance with paragraph (c) hereof.
(g) The Lessee will give the Port Authority fifteen (15)
days' notice prior to the commencement of construction. The
Port Authority will assign to the Expansion Construction Work
a full time field engineer or engineers. The Lessee shall pay
to the Port Authority for the services of said engineer or
engineers the sum of Seven Hundred Dollars and No Cents
($700.00) for each day that the engineer or engineers are so
assigned during the 1999 calendar year, and for each and every
calendar year thereafter, the rate that the Port Authority
shall charge Aircraft Operators, or others, for the services
of such engineer or engineers during such calendar years for
each day or part thereof that the engineer or engineers are so
assigned. Nothing contained herein shall affect any of the
provisions of paragraph (n) hereof or the rights of the Port
Authority hereunder. This agreement for the services of said
field engineer may be revoked at any time by either party on
thirty (30) days' written notice to the other, but if revoked
by the Lessee it shall continue during the period construction
under any partial approvals pursuant to paragraph (f) hereof
is performed.
(h) The Expansion Construction Work shall be constructed
in such a manner as to minimize (considering the nature of the
Lessee's operations and the Expansion Construction Work) air
pollution, water pollution or any other type of pollution and
noise emanating from, arising out of or resulting from the
operation, use or maintenance thereof by the Lessee and from
the operations of the Lessee 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 Expansion
Construction Work hereunder such structures, fences,
equipment, devices and other facilities as may be reasonably
necessary or appropriate to accomplish the foregoing and each
of the foregoing shall be and become a part of Expansion
Construction Work it affects and all of the foregoing shall be
covered under the Comprehensive Plan of the Lessee submitted
under paragraph (a) hereof and shall be part of the Expansion
Construction Work hereunder. The obligations assumed by the
Lessee under this paragraph (h) are a special inducement and
consideration to the Port Authority in granting this Lease to
the Lessee.
(i) Title to the Expansion Construction Work which is
located within the territorial limits of the City of Newark
shall pass to the City of Newark as the same or any part
thereof is erected upon or under or affixed to the land or to
any existing structures and the Expansion Construction Work
shall be and become part of the premises under the Lease if
located within the premises hereunder (except for the items
covered in subparagraph (b) (1) (ii) of this Section 93 which
shall become part of the Fuel System, and except for any
personal property of the Lessee as described in Section 34
hereof); and title to such part, if any, of the Expansion
Construction Work which is located within the territorial
limits of the City of ▇▇▇▇▇▇▇▇▇ shall vest in the Port
Authority as the same or any part of thereof is erected upon
or under or affixed to the land or to any existing structures
and said Expansion Construction Work shall be and become part
of the premises under the Lease if located within the premises
hereunder (except for the items covered in subparagraph (b)
(1) (ii) of this Section 93 which shall become part of the
Fuel System, and except for any personal property of the
Lessee as described in Section 34 hereof); provided, however,
that title to the Schedule 1 Terminal Fixtures shall pass to
the Port Authority as provided in paragraph 53 of Supplement
No. 17 to the Lease.
(j) The parties acknowledge that the Lessee will be
continuing its operations at the existing premises under the
Lease during the period of time it is performing the Expansion
Construction Work hereunder. The Lessee further acknowledges
that this may involve among other things inconvenience, noise,
dust, interference and disturbance to the Lessee in its
operations at the premises as well as to its customers,
patrons, invitees and employees and possibly other risks as
well. As between the Lessee and the Port Authority, the
Lessee hereby expressly assumes all of the foregoing risks and
agrees that there will be no reduction or abatement of any of
the rentals, fees or charges payable by the Lessee under the
Lease or otherwise on account of its performance of the
Expansion Construction Work and that the performance of the
Expansion Construction Work shall not constitute an eviction
or constructive eviction of the Lessee nor be grounds for any
abatement of rentals, fees or charges payable by the Lessee
under the Lease or otherwise nor give rise to or be the basis
of any claim or demand by the Lessee against the Port
Authority, its Commissioners, officers, employees or agents
for damages, consequential or otherwise, under this Lease or
otherwise.
(k) (1) The Lessee acknowledges that the Port Authority
as well as other users, lessees, tenants, airport patrons and
invitees and others will be continuing their airport
operations in other portions of the Central Terminal Area of
the Airport ("CTA") during the period of time the Lessee is
performing the Expansion Construction Work hereunder and that
this will involve among other things inconvenience, noise,
dust, interference and disturbance to said airport operations
and possibly other risks as well. As between the Lessee and
the Port Authority, the Lessee hereby expressly assumes all of
the foregoing risks. Without limiting the foregoing, the
Lessee shall and expressly hereby agrees to perform, and to
require each of its contractors and subcontractors to perform,
the Expansion Construction Work and each portion thereof in
such a manner so as to minimize the impact and any disruption
resulting therefrom on said airport operations and on
passenger and traffic control and passenger and traffic flow
in the CTA. The Lessee shall, without limiting any other term
or provision hereof, communicate and cooperate (and require
each of its contractors to communicate and cooperate) with the
Port Authority and with each of the affected CTA users,
lessees, tenants, airport patrons, invitees and others in all
aspects of the Expansion Construction Work, and the Lessee
shall coordinate and work in harmony with all said persons and
Port Authority contractors. The Lessee shall include in each
of its contracts and subcontracts covering the Expansion
Construction Work or any portion thereof the foregoing
requirements for minimization of disruption and for contractor
cooperation, harmony and coordination.
(2) Without limiting the foregoing or any other term
or provision of this Agreement, with respect to those portions
of the Expansion Construction Work which will or may affect or
impact the Fuel System, the Lessee hereby expressly recognizes
the importance of the Fuel System to the operation of the
Airport and to all aircraft operations thereat and the
critical need to protect the same and the integrity of the
fuel in the Fuel System, and the Lessee shall use the highest
degree of safety and care in its design and performance of the
portions of the Expansion Construction Work which will or may
affect or impact the Fuel System, and the Lessee shall use its
best efforts and the highest degree of care and safety, and
shall require its contractors to use the highest degree of
care and safety and their best efforts, to coordinate and work
in harmony with the Port Authority and the Port Authority's
independent contractor who operates the Fuel System, as
described in Section 55 hereof, and to take all such actions,
precautionary measures and procedures, in addition to all
Environmental Requirements, so as to protect and safeguard the
structure, integrity, contents, safety, and operations of the
Fuel System. In addition to all other requirements, the
Lessee shall also include the foregoing requirements in each
of its applicable contracts and subcontracts covering the
Expansion Construction Work.
(l) [INTENTIONALLY OMITTED]
(m) In addition to any easements and rights as may
be elsewhere granted herein, the Port Authority hereby,
subject to the terms, conditions, covenants and
provisions of this Lease, grants to and agrees to make
available to the Lessee, as needed and as identified in
the Construction Application approval process by the
Lessee and approved by the Port Authority, temporary and
permanent (but not beyond the applicable expiration date
or earlier termination of this Lease) utility accesses to
those parts of the Airport (subject to the right of the
Port Authority to substitute such other reasonable
accesses as may be necessary because of future
construction and development of the Airport (which
substitution, together with the actual relocation of the
utilities thereto, shall as between the Lessee and the
Port Authority be at the Port Authority's sole cost and
expense if the Lessee shall have commenced to utilize the
accesses which it was permitted by the Port Authority to
utilize) and subject to the rights of others with respect
thereto) necessary to carry out the Lessee's Expansion
Construction Work as identified in the Construction
Application approval process and approved by the Port
Authority and, as to the permanent utility accesses,
those necessary to the Lessee to operate the premises.
(n) (1) When the Expansion Construction Work is
substantially completed and ready for use the Lessee shall
advise the Port Authority to such effect and shall deliver to
the Port Authority a certificate signed by an authorized
officer of the Lessee certifying that the Expansion
Construction Work has been constructed to substantial
completion strictly in accordance with the approved plans and
specifications and the provisions of this Lease and in
compliance with all applicable laws, ordinances and
governmental rules, regulations and orders, and in addition,
a certificate signed by either the Lessee's architect licensed
and registered in the State of New Jersey or by the Lessee's
engineer licensed and registered in the State of New Jersey
that the Expansion Construction Work has been constructed to
substantial completion in strictly in accordance with the
approved plans and specifications and in compliance with all
applicable laws, ordinances and governmental rules,
regulations and orders. Thereafter, the Expansion
Construction Work will be inspected by the Port Authority and
if the same has been constructed to substantial completion as
certified by the Lessee and the Lessee's licensed architect or
engineer, as aforesaid, a certificate to such effect shall be
delivered to the Lessee, subject to the condition that, as
between the Lessee and the Port Authority, all risks
thereafter with respect to the construction and installation
of the same and any liability therefor for negligence or other
reason shall be borne by the Lessee. The Lessee shall not use
or permit the use of the Expansion Construction Work or any
portion thereof for the purposes set forth in the Lease until
such certificate is received from the Port Authority and the
Lessee shall not use or permit the use of the Expansion
Construction Work or any portion thereof even if such
certificate is received if the Port Authority states in any
such certificate that the same cannot be used until other
specified portions are completed.
(2) The term "Expansion Construction Work
Completion Date" for the purposes of this Lease shall mean the
date appearing on the certificate issued by the Port Authority
pursuant to subparagraph (1) of this paragraph.
(3) In addition to and without affecting the
obligations of the Lessee under the preceding subparagraphs
(1) and (2), when an integral and material portion of the
Expansion Construction Work is substantially completed and is
properly usable the Lessee may advise the Port Authority to
such effect and may deliver to the Port Authority a
certificate signed by an authorized officer of the Lessee and
also signed by the Lessee's licensed architect or engineer
certifying that such portion of the Expansion Construction
Work has been constructed in accordance with the approved
plans and specifications and the provisions of this Lease and
in compliance with all applicable laws, ordinances and
governmental rules, regulations and orders, and specifying
that such portion of the Expansion Construction Work can be
properly used even though the Expansion Construction Work has
not been completed and that the Lessee desires such use. The
Port Authority may in its sole discretion deliver a
certificate to the Lessee with respect to each such portion of
the Expansion Construction Work permitting the Lessee to use
such portion thereof for the purposes set forth in the Lease.
In such event the Lessee may use such portion subject to the
condition that all risks thereafter with respect to the
construction and installation of the same and any liability
therefor for negligence or other reason shall be borne by the
Lessee, and subject to the risks as set forth in paragraph (f)
hereof in the event that the Port Authority shall not have
then approved the complete plans and specifications for the
Expansion Construction Work. Moreover, at any time prior to
the issuance of the certificate required in subparagraph (1)
above for the Expansion Construction Work, the Lessee shall
promptly upon receipt of a written notice from the Port
Authority setting forth the reasons therefor cease its use of
such portion of the Expansion Construction Work which it had
been using pursuant to permission granted in this subparagraph
(3).
(4) In addition to and without affecting the
obligations of the Lessee under the preceding
subparagraphs (1), (2) and (3), the Lessee may request that
the Port Authority issue a final certificate under
subparagraph (1) above with respect to any distinct and
separate component of the Expansion Construction Work which
has been substantially completed and which can be used
independently from any portion of the Expansion Construction
Work for which the Port Authority shall not have issued a
certificate under this paragraph (n). Such request shall be
accompanied by certificates from the Lessee, signed by an
authorized officer of the Lessee and also signed by the
Lessee's licensed architect or engineer, certifying, with
respect to said component, all of the matters as described in
the preceding subparagraph (3). In the event that the Port
Authority agrees with the Lessee's determination that such
distinct and separate component of the Expansion Construction
Work can be used independently from any portion of the
Expansion Construction Work for which the Port Authority shall
not have theretofore issued a certificate under this
subparagraph (n), said component of the Expansion Construction
Work will be inspected by the Port Authority and, if the same
has been constructed to substantial completion as certified by
the Lessee and the Lessee's licensed architect or engineer,
the Port Authority shall deliver to the Lessee a final
certificate under and subject to the provisions of paragraph
(n)(1) hereof with respect to such component of the Expansion
Construction Work permitting the use thereof for the purposes
set forth in the Lease. In such event the Lessee may use such
component subject to the condition that all risks thereafter
with respect to the construction and installation of the same
and any liability therefor for negligence or other reason
shall be borne by the Lessee, and subject to the risks as set
forth in paragraph (f) hereof in the event that the Port
Authority shall not have then approved the complete plans and
specifications for the Expansion Construction Work."
7. Section 5 of the Lease, as previously amended, is hereby
further amended as follows:
(a) The phrase "Base Annual Rental for the premises" as used
in Section 5 of the Lease and elsewhere in the Lease shall be
deemed amended to read "Base Annual Rental for the premises
(exclusive of Area C-3 and the Area C-3 rental)".
(b) Subparagraphs (3) and (4) of paragraph (b) of Section 5 of
the Lease, as previously amended and as set forth in Supplement No.
7 of the Lease shall be deemed amended to read as follows:
"(3) (i) For the portion of the term of
the Lease commencing on August 1, 1996 to the
day preceding the Effective Date of Supplement
No. 17 of the Lease (as said Effective Date is
set forth on the first page thereof), a Base
Annual Rental for the premises (exclusive of
Area C-3 and the Area C-3 rental) at an annual
rate consisting of two factors, one a constant
factor in the amount of Thirty-three Million
Five Hundred Eighty-Five Thousand Three Hundred
Forty-eight Dollars and No Cents
($33,585,348.00) subject to adjustment as
provided in paragraph (c) hereof, and the other
the Airport Services Factor which shall consist
of the Airport Services Factor in the amount set
forth in subparagraph (1) above as the same
shall have been adjusted in accordance with
paragraph (c) hereof for each calendar year
preceding the commencement date of the portion
of the term specified in this subparagraph (3),
and which shall be the Airport Services Factor
in effect on the date of the commencement of the
Base Annual Rental provided for in this
subparagraph (3) and which shall be subject to
further adjustment as provided in paragraph (c)
hereof.
(ii) For the portion of the term of the Lease
commencing on the Effective Date of Supplement No.
17 of the Lease (as said Effective Date is set forth
on the first page thereof) to November 30, 2004, a
Base Annual Rental for the premises (exclusive of
Area C-3 and the Area C-3 rental) at an annual rate
consisting or two factors, one a constant factor in
the amount of Thirty-three Million Nine Hundred
Sixty Thousand Four Hundred Forty-eight Dollars and
No Cents ($33,960,448.00) subject to adjustment as
provided in paragraph (c) hereof, and the other the
Airport Services Factor in the amount of Three
Million Sixty-four Thousand Eight Hundred Sixteen
Dollars and No Cents ($3,064,816.00), and which
shall be the Airport Services Factor in effect on
the date of the commencement of the Base Annual
Rental provided for in this subparagraph (3)(ii) and
which shall subject to further adjustment as
provided in paragraph (c) hereof.
The Base Annual Rental amounts (constant factor
and Airport Services Factor) set forth in this
subparagraph (b) (3) (ii) are also subject to the
adjustments based on the Port Authority's
determination of the final metes and bounds of Added
Area 4 as more fully described in Paragraph 3A of
Supplement No. 17 of the Lease.
"(4) For the portion of the term of the Lease
commencing on December 1, 2004 to March 31, 2013
(the expiration date of the term of the letting of
the premises exclusive of Area C-3) a Base Annual
Rental for the premises (exclusive of Area C-3 and
the Area C-3 rental) at an annual rate consisting of
two factors, one a constant factor in the amount of
Thirty-nine Million Six Hundred One Thousand Two
Hundred Seventy-nine Dollars and No Cents
($39,601,279.00) subject to adjustment as provided
in paragraph (c) hereof, and the other the Airport
Services Factor which shall consist of the Airport
Services Factor in the amount set forth in
subparagraph (3)(ii) above as the same shall have
been adjusted in accordance with paragraph (c)
hereof for each calendar year preceding the
commencement date of the portion of the term
specified in this subparagraph (4), and which shall
be the Airport Services Factor in effect on the date
of the commencement of the Base Annual Rental
provided for in this subparagraph (4) and which
shall subject to further adjustment as provided in
paragraph (c) hereof.
The Base Annual Rental amounts (constant factor
and Airport Services Factor) set forth in this
subparagraph (b)(4) above are also subject to the
adjustments based on the Port Authority's
determination of the final metes and bounds of Added
Area 4 as more fully described in Paragraph 3A of
Supplement No. 17 of the Lease."
(c) (i) The following sentence shall be deemed inserted after
the second sentence of subparagraph (1) of paragraph (c) of Section
5 of the Lease:
"For the calendar year 1999 and for each and
every calendar year thereafter the Airport
Services Factor set forth in
subparagraphs (b)(3)(ii) and (b)(4) above shall
be adjusted in accordance with said Schedule A."
(ii) The last five (5) lines of subparagraph (1) of
paragraph (c) of Section 5 of the Lease, as previously amended and
as set forth in Supplement No. 7 of the Lease shall be amended to
read as follows:
"of the term specified in subparagraph (b)(3)(i)
above the constant factor of $33,585,348 shall
remain unchanged; and for the portion of the
term specified in subparagraph (b)(3)(ii) above
the constant factor of $33,960,448.00, after the
adjustment of the same based on the Port
Authority's determination of final metes and
bounds for the Added Area 4 as more fully
described in Paragraph 3A of Supplement No. 17
of the Lease, shall remain unchanged; and for
the portion of the term specified in
subparagraph (b)(4) above the constant factor of
$39,601,279.00 after the adjustment of the same
based on the Port Authority's determination of
final metes and bounds for the Added Area 4 as
more fully described in Paragraph 3A of
Supplement No. 17 of the Lease, shall remain
unchanged."
(d) Subparagraph (2)(iii) of paragraph (c) of Section 5 shall
be deemed amended as follows: The amount set forth therein as
"Three Million Five Hundred Ninety-four Thousand Dollars and No
Cents ($3,594,000.00)" shall be deemed amended to read "Three
Million Nine Hundred Sixty-nine Thousand One Hundred Dollars and No
Cents ($3,969,100.00)".
(e) Subparagraph (2)(iv) of paragraph (c) of Section 5 shall
be deemed amended as follows: The amount set forth therein as
"Three Million Five Hundred Ninety-four Thousand Dollars and No
Cents ($3,594,000.00)" shall be deemed amended to read "Four
Million Fifty Thousand Three Hundred Sixty-seven Dollars and No
Cents ($4,050,367.00)".
8. Paragraph (a) of Subdivision I of Section 8 of the Lease
is hereby amended as follows:
(a) Subparagraph (vii) thereof is hereby amended to read
as follows:
"(vii) For the storage of repair parts,
supplies and other personal property of the
Lessee used by the Lessee in connection with its
operations permitted hereunder and for the
performance of reasonable minor repairs to said
personal property of the Lessee."
(b) Subparagraph (ix) thereof is hereby amended by
adding at the end thereof the following:
"and the occasional and temporary storage of said air
cargo transported or to be transported on aircraft
operated by the Lessee, provided said air cargo is
properly secured."
(c) New subparagraph (xiv) shall be deemed added at the end of
said paragraph (a) reading as follows;
"(xiv) With respect to the FIS facilities (as
defined in Section 93 hereof), for federal
inspection services by federal agencies (if the
United States Government makes the same
available to the Lessee) or others permitted by
law to perform such functions.
9. Paragraph (g) of subdivision I of Section 8 of the Lease
shall be deemed amended to read as follows:
"(g) It is understood and agreed that in
order to use Flight Station B-3 located at
Passenger Terminal B, it will be necessary from
time to time for the various Aircraft Operators
in Flight Station B-3 to pass over those
portions of Area D which lie between Concourse
C-1 and said Flight Station B-3, and the same
are hereby made expressly subject to such right
of access of such users. Similarly, it is
understood and agreed that in order to use
portions of Area D, it will be necessary for the
Lessee to pass over the aircraft maneuvering
areas associated with Flight Station B-3 which
lie between Concourse C-1 and said Flight
Station B-3 and the said areas shall be subject
to such right of access of the Lessee. In the
exercise of the use and rights of access
hereunder, the Lessee and the Airline Lessees in
Flight Station B-3 shall operate with due regard
to the rights and needs of all users of such
areas."
10. Section 10 of the Lease is hereby amended as follows:
(a) Paragraph (a) thereof is hereby amended to read
as follows:
"(a) The Lessee shall promptly comply with, observe
and execute all laws and ordinances and governmental
rules, regulations and orders now or at any time during
the term of this Agreement which as a matter of law are
applicable to or which affect (i) the premises, (ii) the
operations of the Lessee at the premises hereunder or the
Airport, (iii) the occupancy or use of the premises or
(iv) subject to Section 12(p)(2) of the Lease, with
regard to Environmental Requirements only, property
outside the premises as a result of the Lessee's use and
occupancy of the premises or a migration of Hazardous
Substances from the premises. The Lessee shall, in
accordance with and subject to the provisions of Section
23 hereof, make any and all structural and non-structural
improvements, alterations or repairs of the premises and,
subject to Section 12(p)(2) of the Lease, perform all
remediation work and clean up of Hazardous Substances
required in order to fully satisfy the compliance
obligations set forth herein, including without
limitation, the removal, containment, control or other
action with respect to asbestos-containing material. The
Lessee shall have the right to perform such structural
and non-structural improvements, alterations or repairs
that are required by any such law, rule, regulation,
order or direction; provided, however, that the same
shall be performed in compliance with and subject to the
terms, provisions, and conditions of this Agreement
including without limitation the procedures set forth in
Section 23 hereof."
(b) Paragraph (b) thereof shall be deemed amended by
adding at the end thereof the following:
"The Port Authority agrees to cooperate, if it may
lawfully do so, with the Lessee in the Lessee's
procurement of such consents, licenses, certificates,
permits or other authorization; such cooperation by the
Port Authority shall be limited to furnishing the Lessee
and the governmental authority with appropriate
information."
(c) Paragraph (d) thereof shall be deemed amended by adding at
the end of the first (1st) paragraph after the word "regulation"
the following:
", and the Lessee shall have no indemnity obligation with
respect to the aforementioned claims, actions, damages,
liabilities, fines, penalties, costs and expenses."
11. Section 11 of the Lease is hereby amended by adding at the
end thereof the following new paragraph:
"(e) Failure of the Lessee to observe and obey (and to
require its officers, employees, guests, invitees, and
those doing business with it to observe and obey) the
Port Authority Rules and Regulations shall not be a
breach of this Agreement as and to the extent compliance
therewith would constitute a violation of any
governmental law, rule, regulation, requirement, order or
direction."
12. (a) The first two (2) lines of paragraph (d) of Section
12 of the Lease shall be deemed amended to read as follows:
"The Lessee shall have the right and the obligation to
exercise reasonable control over the vehicular traffic
(including, but not limited to, vehicles operated by Port
Authority contractors and permittees) on the roadways or
other areas within the".
(b) The twenty-fourth (24th) through thirtieth (30th)
lines of paragraph (k) of Section 12 of the Lease shall be deemed
amended to read as follows:
" as set forth in the first sentence of this paragraph.
All locations, the manner, type and method of
construction and the size of any of the foregoing shall
be determined by the Port Authority with the Lessee to
have an opportunity to consult with the Port Authority
with respect to the foregoing. In making a judgment as
to whether any particular structures, fences, equipment,
devices or other facilities may be so necessary or
appropriate, the Port Authority shall take into account
the cost, among other factors, of such facility in
comparison to the expected benefits to be derived from
the construction thereof. The Lessee shall submit for
Port Authority approval its plans and specifications
covering the required work and upon receiving such
approval shall proceed diligently to construct the same."
(c) Section 12 of the Lease is hereby further amended by
adding at the end thereof the following new paragraphs "(o)" and
"(p)":
"(o) Without limiting any other of the Lessee's
obligations under the Lease, the Lessee shall provide the
General Manager of the Airport at the cost and expense of the
Lessee with such information, documentation, records,
correspondence, notices, reports, tests, results, and
certifications and any other information as the Port Authority
may request in connection with any Environmental Requirements
or Environmental Damages, and the Lessee shall promptly
acknowledge, swear to, sign or otherwise fully execute the
same. The Lessee agrees that any of the foregoing may be
filed by the Port Authority with the appropriate governmental
authority on behalf of the Lessee at the Lessee's cost and
expense. Further, the Lessee agrees unless directed otherwise
by the Port Authority, to provide the General Manager of the
Airport with copies of all information, documentation,
records, correspondence, notice, certifications, reports, test
results and all other submissions provided by the Lessee to a
governmental authority and by a governmental authority to the
Lessee within two (2) business days that the same are made
available to or received by the Lessee with respect to any
Environmental Requirements. Without limiting the foregoing or
any other term or provision of this Agreement, the Lessee
expressly understand and agrees that the foregoing shall
include without limitation the requirement that, with respect
to the ▇▇▇▇▇ Ditch Area the Lessee shall submit to the Port
Authority true and complete executed copies of all
governmental permits and approvals (the Lessee agreeing to
consult with the Port Authority in the application for the
required individual freshwater wetlands permits and stream
encroachment permits), including but not limited to the
approval of the City of Newark, prior to the Lessee's
performance of any operations, filling in or any other
construction activities or work involving or related to said
▇▇▇▇▇ Ditch Area, and such other and further information as
the Port Authority may require or request.
(p) (1) In addition to and without limiting the
generality of the obligations of the Lessee set forth above
and elsewhere in the Lease, the Lessee shall at its sole cost
and expense and in accordance with and subject to the
provisions of Section 23 hereof, upon notice from the Port
Authority, promptly take all actions to completely remove,
clean-up and remediate all Hazardous Substances on the
premises or the Airport which result from the Lessee's use and
occupancy of the premises or, subject to Section 12(p)(2) of
the Lease, from the Lessee's performance of any construction
work or which have been disposed of, released, discharged or
otherwise placed on, under or about the premises during the
term of the letting hereunder, and, subject to
Section 12(p)(2) of the Lease, to cleanup and remediate all
other Hazardous Substances on, about or under the premises or
which have migrated from the premises to any adjoining
property, which any federal, state or local governmental
agency or political subdivision or any Environmental
Requirement or any violation thereof require to be remediated,
and to cleanup and remediate all Hazardous Substances
necessary to mitigate Environmental Damages. The foregoing
obligations of the Lessee shall include without limitation the
investigation of the environmental condition of the area to be
remediated, the presentation of feasibility studies, reports
and remedial plans, and the performance of any cleanup,
remediation, containment, operation, maintenance, monitoring
or restoration work; the standard for any of the foregoing to
be the applicable standard as required under Environmental
Requirements and, in the event that any Environmental
Requirement sets forth more than one standard, the standard to
be applied shall be that which requires the lowest level of a
Hazardous Substance unless the Port Authority consents to a
different standard being applied. Any actions of the Lessee
under the foregoing shall be performed in a good, safe and
workmanlike manner and shall minimize any impact on activities
off the premises. The Lessee shall promptly provide to the
Port Authority all copies of test results and reports
generated in connection with such actions. Promptly upon
completion of such investigation and remediation, the Lessee
shall seal or cap all monitoring ▇▇▇▇▇ and test holes, remove
all associated equipment and restore the remediated property.
(2) Notwithstanding anything to the contrary in the Lease
as herein amended, it is hereby agreed that, during the
performance of the Expansion Construction Work under Section
93 hereof and during the remainder of the letting hereunder,
the following specific limitations to the Lessee's
environmental obligations shall apply:
(i) the Lessee shall not be responsible
for contamination of soil and groundwater on,
about or under the premises caused by the acts
or omissions of the Port Authority;
(ii) the Lessee shall not be responsible for
contamination of soil or groundwater to the extent
that the same is caused by the flow of groundwater
or the leaching of soil from outside the premises if
the Lessee proves to the satisfaction of the Port
Authority that any such contamination was not caused
by the Lessee or by its, employees, agents,
contractors, sublessees, subtenants, invitees or by
others using or occupying the premises under this
Agreement, it being understood that the Lessee shall
have the burden of proof to establish that any
migration of a Hazardous Substance or said
contamination to the premises was not the result of
the Lessee's (or any of aforesaid other persons')
use and occupancy of the premises or any other areas
at the Airport; and
(iii) the Lessee shall not be responsible for
remediation and the cost of remediation of
Non-Hydrocarbon Contamination (as hereinafter
defined) in excess of the Non-Hydrocarbon Obligation
Amount (as hereinafter defined) provided that the
Lessee proves to the satisfaction of the Port
Authority that such Non-Hydrocarbon Contamination
was not caused by the Lessee or its employees,
agents, contractors, sublessees, subtenants,
invitees or others using or occupying the premises
under this Agreement, it being understood that the
Lessee shall have the burden of proof to establish
the same; and provided, further, however, that all
costs and expenses of or associated with the
removal, cleanup and any remediation of (aa) any and
all Hazardous Substances or any contamination (other
than Non-Hydrocarbon Contamination) other than any
caused by the acts or omissions of the Port
Authority; (bb) storage tanks for which the Lessee
is responsible, except as expressly provided in
paragraph (j) of Section 95 of the Lease; (cc) lead
and asbestos during any demolition, alteration or
construction on the premises; or (dd) any and all
contamination of any type whatsoever or any and all
Hazardous Substances in, on or under or from the
▇▇▇▇▇ Ditch area shall not apply against the
Non-Hydrocarbon Obligation Amount and the Lessee
shall be fully and solely responsible for the same
without such limitation. For purposes of this
clause (iii), the term "Non-Hydrocarbon
Contamination" shall mean contamination of soil or
groundwater the remediation of which is performed
due to the presence of Hazardous Substances other
than, or the methods for remediation of which exceed
those which would be required for the remediation
of, petroleum hydrocarbons; and the term
"Non-Hydrocarbon Obligation Amount" shall mean the
amount of Eight Million Dollars and No Cents
($8,000,000.00). The Port Authority shall be
responsible for the remediation of Non-Hydrocarbon
Contamination in excess of the Non-Hydrocarbon
Obligation Amount, which obligation shall survive
the expiration or termination of this Agreement.
Anything to the contrary in the foregoing
notwithstanding, it is expressly understood that with
respect to the said ▇▇▇▇▇ Ditch area the Lessee shall be
fully responsible for all remediation, whether of
hydrocarbon contamination, Non-Hydrocarbon Contamination
or otherwise, and the cost of all remediation and all
Environmental Requirements and Environmental Damages.
(3) Nothing herein shall limit, modify, waive or
otherwise alter the rights, claims and remedies which the Port
Authority or the Lessee may have against third parties or
persons, whether at law, equity or otherwise."
13. Section 13 of the Lease shall be deemed amended as
follows:
(a) There shall be deemed added at the end of paragraph
(h) thereof the following:
"unless expressly approved by the Port Authority in
writing pursuant to Section 23 hereof and a tenant
Alteration Application signed and submitted by the Lessee
which has been fully approved by the Port Authority."
(b) There shall be deemed added at the end of paragraph
(l) thereof the following:
"except in accordance with Port Authority Rules and
Regulations."
(c) Paragraph (n) thereof shall be deemed amended by
inserting at the end of the sixth (6th) line thereof after the
words "ramp equipment" the following:
"(except as otherwise expressly allowed in Section 8
hereof)".
(d) Paragraph (n) thereof shall be deemed further amended
by inserting at the end of the seventh (7th) line thereof after the
word "than" the following:
"emergency or".
(e) There shall be deemed added at the end of said
Section 13 a new paragraph (r) reading as follows:
"(r) The Lessee shall not dispose of, release or
discharge nor permit anyone to dispose of,
release or discharge any Hazardous Substance on
or from the premises or at the Airport. In
addition to and without limiting any other term,
provision covenant or condition hereof, any
Hazardous Substance disposed of, released or
discharged by the Lessee (or permitted by the
Lessee to be disposed of, released or
discharged) on or from the premises or at the
Airport, shall upon notice by the Port Authority
to the Lessee and subject to the provisions of
this Agreement, be removed, cleaned-up and/or
remediated by the Lessee at the Lessee's sole
cost and expense. The obligations of the Lessee
pursuant to this paragraph shall survive the
expiration or termination of this Agreement."
14. Section 15 of the Lease, as previously amended, shall be
deemed further amended as follows:
(a) There shall be deemed added at the end of paragraph (a)
thereof the following:
"The foregoing shall not be deemed to waive any
rights or claims that the Lessee or the Port
Authority may have against third parties."
(b) Subparagraph (3) of paragraph (b) thereof shall be
amended by replacing the first four (4) lines thereof with the
following:
"(3) Take good care of the premises and maintain the
same at all times in good condition, except for reasonable
wear and tear resulting from the use of the premises to
the extent permitted elsewhere in this Agreement or
conditions solely due to the aging of the premises, which
reasonable wear and tear or aging do not adversely affect
in any material manner the efficient utilization thereof
and do not adversely affect the proper utilization
thereof;"
(c) Subparagraph (5) of paragraph (b) thereof shall be deemed
amended by inserting the word "reasonably" before the word
"require" on the last line thereof.
(d) There shall be deemed added at the end of subparagraph
(7) of paragraph (b) thereof the following:
"the foregoing not to be deemed to prohibit the
Lessee from recovering the cost of any such
repairs against any third party who has
responsibility therefor;"
(e) The last two (2) lines of paragraph (e) thereof shall be
deemed amended to read as follows:
"at such locations, or take other appropriate
measures as may be directed by the General
Manager of the Airport, to insure the safety of
the work performed thereat."
(f) The word and number "twenty (20)" appearing on the fourth
(4th) line of paragraph (f) thereof shall be deemed changed to
"thirty (30)".
15. Section 17 of the Lease, as previously amended and set
forth in Supplement No. 8 of the Lease, shall be deemed further
amended to read as follows:
(a) The words "nuclear property losses and" shall be deemed
deleted from the eighteenth (18th) line of paragraph (a) thereof.
(b) The following shall be deemed added at the end of
paragraph (a) thereof:
", provided that such insurance for this peril
is available within the commercial insurance
marketplace at the time of the Port Authority's
request."
(c) The fourth (4th) line of the second (2nd) subparagraph of
paragraph (c) shall be deemed amended to read as follows:
"16; and the word "insurance" and all other references to
insurance in".
(d) The second (2nd) sentence of the third (3rd) subparagraph
of paragraph (c) shall be deemed amended to read as follows:
"If at any time any of the said companies
issuing the policies shall be or become
unsatisfactory to the Port Authority or if at
any time any of the insurance policies shall be
or become unsatisfactory to the Port Authority
as to form or substance, the Lessee shall
promptly obtain a new and satisfactory in
replacement, the Port Authority agreeing to
provide written notice to the Lessee, upon the
written request of the Lessee, of the reasons it
finds such policies or companies unsatisfactory
and further covenanting and agreeing not to act
unreasonably hereunder."
(e) The following new paragraph (d) shall be added at the end
thereof:
"(d) With respect to the insurance required to be carried
pursuant to subparagraph (14) of paragraph (d) of Section
93 of the Lease and this Section 17, the Lessee recognizes
that the Port Authority is obligated under the Basic
Lease, to use the proceeds of such insurance in the manner
set forth in Section 16 of the Lease. In the event that
there shall be a casualty and (i) it shall become legally
impossible to rebuild all or any portion of the Expansion
Construction Work, or (ii) the Port Authority or the
Lessee shall be enjoined from or restricted under the
terms of any contract, law, judgment, ruling, rule,
regulation, or order of any Governmental Authority or
court of competent jurisdiction from rebuilding all or any
portion of the Expansion Construction Work, or (iii) the
Port Authority and the Lessee shall determine that all or
any portion of the Expansion Construction Work cannot be
rebuilt, the Port Authority shall deliver to and only to
the Trustee (as defined in Section 96), to the extent of
available insurance proceeds which the Port Authority is
entitled to retain as its own, if any, under the Basic
Lease, or which the City of Newark consents to the Port
Authority retaining or utilizing for such purpose, an
amount which, together with any reserves or similar
amounts available for such purpose, would be sufficient to
redeem at that time the then-outstanding Bonds and
Additional Bonds (as such terms are defined in Section 96)
issued in connection with the Expansion Construction Work,
in proportion to the portion of the Expansion Construction
Work that cannot be so rebuilt, were such Bonds and
Additional Bonds to be redeemed at that time, which amount
shall be applied against such Bonds and Additional Bonds
in accordance with their payment terms; provided, however,
that the provisions of the Indenture (as defined in
Section 96) shall govern as to whether the Bonds and
Additional Bonds or any portion thereof are required
actually to be redeemed at that time."
16. (a) Paragraph (a) of Section 18 of the Lease, as
previously amended by Supplement No. 6 of the Lease, shall be
deemed further amended by inserting after the word "Airport" which
appears on the fifteenth (15th) line thereof the following:
"(excepting only claims and demands which result
solely from the willful misconduct, or the sole
negligence, of the Port Authority);".
(b) The sentence preceding the last sentence of paragraph
(c) of Section 18 of the Lease shall be deemed amended to read as
follows:
"If at any time any of the said companies
issuing the policies shall be or become
unsatisfactory to the Port Authority or if at
any time any of the insurance policies shall be
or become unsatisfactory to the Port Authority
as to form or substance, the Lessee shall
promptly obtain a new and satisfactory in
replacement, the Port Authority agreeing to
provide written notice to the Lessee, upon the
written request of the Lessee, of the reasons it
finds such policies or companies unsatisfactory
and further covenanting and agreeing not to act
unreasonably hereunder."
17. Paragraph (b) of Section 19 of the Lease shall be deemed
amended by inserting after the word "Airport" on the fourth (4th)
line thereof the following:
"pertaining to the premises hereunder".
18. Paragraph (a) of Section 22 of the Lease shall be deemed
amended by inserting at the end thereof the following:
"The Port Authority shall, except in emergencies, spot
inspections or other cases of immediate need of the Port
Authority, give prior notice to the Lessee of such entry by
the Port Authority into areas of the premises not open to the
general public or to air passengers."
19. Paragraph (b) of Section 22 of the Lease shall be deemed
amended by inserting at the end of the next-to-last sentence
thereof the following:
"; and provided further, however, that the Lessee shall
not be responsible (notwithstanding any other provision
of the Lease as herein amended) for remediation of
contamination associated with or encountered in
connection with any such activities, unless the same was
caused by the Lessee"
20. Paragraph (a) of Section 23 of the Lease shall be deemed
amended by inserting after the word "Authority" on the tenth (10th)
line thereof the following:
", which may consist of, inter alia, the
submission by the Lessee to the Port Authority
for its approval of a tenant Alteration
Application in the form prescribed by the Port
Authority".
21. (a) Subparagraph (3) of paragraph (a) of Section 24 of
the Lease shall be deemed amended by changing the word and number
"thirty (30)" appearing in the ninth (9th) line thereof to "sixty
(60).
(b) Subparagraph (4) of paragraph (a) of Section 24 of the
Lease shall be deemed amended by inserting after the word
"operations" on the third (3rd) line thereof the following:
"(the term "operations" meaning any activities which are
permitted or required under this Agreement)"
(c) Subparagraph (4) of paragraph (a) of Section 24 of the
Lease shall be deemed amended by changing the word and number
"thirty (30)" appearing in the fifth (5th) line thereof to sixty
(60).
(d) Subparagraph (4) of paragraph (a) of Section 24 of the
Lease shall be deemed amended by inserting after the word "Lessee"
on the last line thereof the following:
", unless the same shall be or would become, with
the passage of time, an event on the basis of which
the Lessee may terminate this Agreement pursuant to
Section 61(a)(1) hereof".
(e) Subparagraph (5) of paragraph (a) of Section 24 of the
Lease shall be deemed amended by changing the word and number
"thirty (30)" appearing in the fourth (4th) line thereof to "sixty
(60).
(f) Subparagraph (7) of paragraph (a) of Section 24 of the
Lease shall be deemed amended by changing the word and number
"thirty (30)" appearing in the fifth (5th) line thereof to sixty
(60)".
(g) The word and number "twenty (20)" appearing at the end of
the second (2nd) line and the beginning of the third (3rd) line of
the last subparagraph of paragraph (a) of Section 24 shall be
deemed changed to "thirty (30)".
(h) Subparagraph (8) of paragraph (a) of Section 24 of the
Lease shall be deemed amended to read as follows:
"(8) If either (i) the Lessee shall, without the
prior written approval of the Port Authority, become
a merged (non-surviving) corporation in a merger, a
constituent corporation in a consolidation, or a
corporation in dissolution, except as otherwise
expressly permitted in paragraph (a) of Section 77
hereof, or (ii) the Lessee shall, without the prior
written approval of the Port Authority, become a
possessor (surviving) corporation in a merger
without complying with the provisions of
subparagraph (2) of paragraph (a) of Section 77
hereof;".
(i) Paragraphs (c) and (d) of Section 24 of the Lease shall
be deemed deleted therefrom and the following new paragraph (c)
shall be deemed inserted in lieu thereof:
"(c) No failure by the Port Authority to insist
upon the strict performance of any agreement, term,
covenant or condition of the Lease or to exercise
any right or remedy consequent upon a breach or
default thereof, and no extension, supplement or
amendment of the Lease during or after a breach
thereof, unless expressly stated to be a waiver, and
no acceptance by the Port Authority of rentals,
fees, charges or other payments in whole or in part
after or during the continuance of any such breach
or default, shall constitute a waiver of any such
breach or default of such agreement, term, covenant
or condition. No agreement, term, covenant or
condition of the Lease to be performed or complied
with by the Lessee, and no breach or default
thereof, shall be waived, altered or modified except
by a written instrument executed by the Port
Authority. No waiver by the Port Authority of any
default or breach on the part of the Lessee in
performance of any agreement, term, covenant or
condition of this Lease shall affect or alter the
Lease, but each and every agreement, term, covenant
and condition thereof shall continue in full force
and effect with respect to any other then existing
or subsequent breach or default thereof."
(j) Paragraph (e) of Section 24 shall be deemed redesignated
as paragraph "(d)".
22. Section 27 of the Lease, as previously amended, shall be
deemed further amended as follows:
(a) Subparagraph (1) of paragraph (b) thereof is hereby
amended by inserting after the word "and" at the end thereof the
following
"on account of the constant factor or the
Facility Factor, as the case may be, of the Area
C-3 annual rental obligations of the Lessee, the
amount of the total of the constant factor or
the Facility Factor, as the case may be, of all
annual Area C-3 rentals, less the amount
attributable to the constant factor or the
Facility Factor, as the case may be, in the
installments of said Area C-3 rental payable
prior to the effective date of the termination
except that the credit to be allowed for the
amount attributable to the constant factor or
the Facility Factor, as the case may be, in the
installment payable on the first day of the
month in which the termination is effective
shall be prorated for the part of the month the
letting remains in effect; on the basis of the
actual number of days in the month; and".
(b) Subparagraph (2) of paragraph (b) thereof is hereby
amended by inserting after the word "and" at the end thereof the
following:
"on account of the Airport Services Factor
of the Lessee's Area C-3 annual rental
obligation, an amount equal to the product
resulting from multiplying the tentative Airport
Services Factor in effect at the time such
termination or cancellation (or re-entry,
regaining or resumption of possession) occurs by
the number of full years remaining in the
balance of the term, provided, however, that if
only a portion of a year in addition to a number
of full years remains in the balance of the
term, an amount shall be added to the product
determined hereinabove which amount shall be
equal to the product resulting from multiplying
the aforementioned tentative Airport Services
Factor by a fraction the numerator of which is
the number of days in such portion of a year and
the denominator of which is the actual number of
days in the year, and".
(c) Subparagraph (3) of paragraph (b) of Section 27 of the
Lease shall be deemed amended by inserting after the word
"expenses" on the fifth (5th) line thereof the following:
"(including but not limited to the cost to the Port
Authority of in-house legal services)".
(d) A new subparagraph (4) of paragraph (b) of said Section 27
shall be deemed inserted immediately following subparagraph (3)
thereof (as renumbered in Supplement No. 6 of the Lease) to read as
follows:
"(4) On account of the Lessee's obligations to pay the
Cost of Assumable Maintenance and Repair set forth in Section
85 hereof, an amount equal to the total sum of the Capital
Cost under Section 85 hereof less the amount thereof payable
prior to the effective date of termination, except that the
credit to be allowed for the amount attributable to the
installment payable on the first day of the month in which the
termination is effective shall be prorated for the part of the
month the letting remains in effect or the actual number of
days in such month."
(e) Section 27 of the Lease is hereby further amended by
adding at the end thereof the following new paragraphs "(c)" "(d)"
and "(e)" reading as follows:
"(c) In addition to and without limiting the
foregoing or any other right, claim or remedy of the
Port Authority, legal or equitable, under this Lease
or otherwise, in the event this Lease shall be
terminated pursuant to Section 24 hereof and the
Lessee shall not have completed the Expansion
Construction Work, as defined in Section 93 hereof,
or any portion thereof, within the time period(s)
specified in paragraph (d) (2) of Section 93 hereof,
the Lessee shall and hereby agrees to pay to the
Port Authority any and all amounts, costs and
expenses, of any type whatsoever, paid or incurred
by the Port Authority by reason of the failure of
the Lessee so to complete the Expansion Construction
Work, or any portion thereof, including without
limitation all interest, completion and other costs,
damages, direct, indirect and consequential, losses
and penalties, and all of the same shall survive the
expiration or termination of this Agreement and
shall be deemed treated as survived damages
hereunder in addition to the foregoing.
(d) Notwithstanding anything to the contrary herein contained,
all of the obligations of the Lessee under this Lease with
respect to Environmental Damages and Environmental
Requirements shall survive the expiration or termination
of this Agreement.
(e) Without limiting any of the foregoing, the Port Authority
may at any time bring an action to recover all the damages
as set forth above not previously recovered in separate
actions, or it may bring separate actions to recover the
items of damages set forth in subparagraphs (1), (2), (3)
and (4) of paragraph (b) above and separate actions
periodically to recover from time to time only such
portion of the damages set forth in subparagraphs (1) and
(2) of paragraph (b) above as would have accrued as Base
Annual Rental and Area C-3 rental up to the time of the
action if there had been no termination or cancellation.
In any such action the Lessee shall be allowed a credit
against its survived damages obligations equal to the
amounts which the Port Authority shall have actually
received from any tenant, licensee, permittee or other
occupier of the premises or a part thereof during the
period for which damages are sought, and if recovery is
sought for a period subsequent to the date of suit a
credit equal to the market rental value of the premises
during such period (discounted to reflect the then present
value thereof). If at the time of such action the Port
Authority has used and occupied or relet the premises, the
rental for the premises obtained through such use and
occupancy or reletting shall be deemed to be the market
rental value of the premises or be deemed to be the basis
for computing such market rental value if less than the
entire premises were used or occupied or relet. In no
event shall any credit allowed to the Lessee against its
damages for any period exceed the then present value of
the annual rental which would have been payable under this
Agreement during such period if a termination or
cancellation had not taken place."
23. The last three (3) lines of Section 30 of the Lease shall
be deemed amended to read as follows:
"promptly and in as good condition as of the
commencement of the letting thereof (such
commencement in the case of new construction
being as of the completion thereof), except for
(1) reasonable wear and tear resulting from the
use of the premises to the extent permitted
elsewhere in this Agreement or (2) conditions
solely due to the aging of the premises, which
reasonable wear and tear or aging do not
adversely affect in any material manner the
efficient utilization of the premises or
adversely affect the proper utilization of the
premises for the purposes permitted hereunder or
the water-tightness or structural integrity of
the premises), but not resulting from any delay
or failure to maintain and repair hereunder. In
addition, all of the premises shall be free and
clear of all liens, encumbrances, and security
interests created by the Lessee, its sublessees,
contractors, subcontractors, or other persons
acting through, under or on behalf of the
Lessee.
In addition to and without limiting the
foregoing, it is recognized the expiration date of
the Area C-3 portion of the premises (as set forth
in Supplement No. 17 of the Lease) is March 31, 2028
and that the expiration date of the C-1 and C-2
portions of the premises is March 31, 2013, and it
is hereby understood and agreed, with respect to any
systems serving or common to both Area C-3 and the
C-1 and C-2 portions of the premises, that it shall
be the obligation of the Lessee, at its sole cost
and expense, to perform and complete, prior to said
March 31, 2013 expiration date, all alteration and
other work necessary or appropriate (subject to
Section 23 hereof) to separate each such system so
as to enable each such system to operate
independently in Area C-3, and that the Port
Authority will require any new tenant or lessee in
the C-1 and C-2 portions of the premises to perform
such work in its leasehold in the C-1 and C-2
portions of the premises. "
24. Section 33 of the Lease shall be deemed amended by adding
at the end thereof the following two (2) new subparagraphs reading
as follows:
"The Port Authority agrees that during the term
of the letting hereunder the Port Authority will
not take any action the taking of which, or omit
to take any action the failure of which to take,
would amount to or have the effect of canceling,
surrendering, terminating, modifying or amending
the Basic Lease prior to the date specified in
the Basic Lease for its expiration insofar as
such cancellation, surrender, termination,
modification, or amendment would in any manner
deprive the Lessee of any of its rights,
licenses or privileges under this Agreement.
Nothing herein shall prevent the Port Authority
from entering into an agreement with the City of
Newark pursuant to which the Basic Lease is
surrendered, cancelled or terminated provided
that the City of Newark, at the time of such
agreement, assumes the obligations of the Port
Authority under this Agreement."
25. Paragraph (d) of Section 36 of the Lease shall be deemed
amended by inserting at the end thereof the following:
"Subject to Section 12(p)(2) of the Lease, the
Lessee hereby further agrees to relieve the Port
Authority from 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 premises and
all parts thereof whether any aspect of such
condition existed prior to, on or after the
applicable effective date of the letting of each
part of the premises hereunder, including without
limitation all Environmental Requirements and
Environmental Damages, and to indemnify and hold
harmless the Port Authority for all such risks,
responsibilities, costs and expenses. If so
directed, the Lessee shall at its own expense defend
any suit based upon any 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. It is hereby understood
and agreed that whenever reference is made in this
Lease to the condition of the premises as of the
commencement of the term thereof, the same shall be
deemed to mean the condition of the premises as of
the applicable commencement date of the letting of
each part of the premises under this Lease, and as
to the improvements made and the alteration work
performed during the term of the Lease in the
condition existing after the completion of the same.
All the obligations of the Lessee under this Section
with respect to responsibilities, risks, costs and
expenses assumed by the Lessee shall survive the
expiration or termination of this Lease."
26. The last three (3) sentences of Section 37 of the Lease,
as previously amended, are hereby further amended to read as
follows:
"Until further notice, the Port Authority hereby
designates its Executive Director, and the Lessee
designates its Vice President of Corporate Real
Estate (or such other authorized officer as may be
designated by the Lessee by written notice to the
Port Authority) as their officers upon whom notices
and requests may be served, and the Port Authority
designates its office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and the Lessee designates its
office at Continental Airlines, Inc., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, as their respective
offices where notices and requests may be served.
The Port Authority shall for informational purposes
only send a copy by regular first class mail of all
such notices and requests to the Lessee's General
Counsel at Continental Airlines, Inc., ▇.▇.
▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
Failure on the part of the Port Authority to send
the informational copy shall not however be or be
deemed to be a breach of this Agreement, or impair
or affect the validity of the notice or request
actually given."
27. Paragraph (c) of Section 38 of the Lease shall be deemed
amended by inserting after the word "Authority" on the eighth (8th)
line thereof the following:
"(except where fulfillment of the Lessee's
compliance obligations hereunder requires
activity over a period of time, and the Lessee
shall have commenced to perform whatever may be
required for fulfillment within twenty (20) days
after receipt of notice and continues such
performance without interruption)".
28. Section 41 of the Lease is hereby amended by adding at the
end thereof the following new paragraph (c) reading as follows:
"(c) If any clause, provision or section of this
Agreement shall be ruled invalid by any court of competent
jurisdiction, the invalidity of such clause, provision or
section or sections shall not affect any of the remaining
clauses, provisions or sections hereof."
29. Paragraph (d) of Section 49 of the Lease, as previously
amended, shall be deemed further amended by changing the "1998" in
the seventh (7th) and ninth (9th) lines thereof to "2018" and by
changing the "1999" in the last line thereof to "2019".
30. Section 53 of the Lease, as previously amended, shall be
deemed further amended as follows:
(a) The date appearing on the third (3rd) line of paragraph
(a) (1) thereof (as set forth in Supplement 15 of the Lease) as
"March 31, 2013" shall be deemed amended to read "December 31,
2018".
(b) Subparagraph (2) of paragraph (a) of Section 53 of the
Lease, as previously amended, shall be deemed further amended to
read as follows:
"(2) It is recognized that pursuant to Paragraph 2 of
Supplement No. 17 to the Lease the term of the letting of
only the Area C-3 portion of the premises is extended to
March 31, 2028, and that flight fee provisions contained
in Schedule C are effective through December 31, 2018.
It is hereby agreed that for the portion of the term of
the letting of said Area C-3 hereunder subsequent to
December 31, 2018, the Port Authority and the Lessee
shall negotiate in good faith toward the establishment of
provisions covering the determination of the flight fees
payable by the Lessee for the portion of the term of said
Area C-3 commencing January 1, 2019 through the
expiration date of the term of the letting of said Area
C-3 hereunder (March 31, 2028), and upon the
establishment of the same the Lessee shall pay flight
fees in accordance with said provisions for said portion
of the term. If the parties do not reach such agreement,
the Lessee shall pay flight fees in accordance with the
Port Authority's Schedule of Charges for said portion of
the term of said Area C-3 commencing January 1, 2019."
31. The last line of the seventh (7th) subparagraph of
paragraph (a) of Section 54 of the Lease is hereby amended to read
as follows:
"additions, and also including the modifications and
additions to the Fuel System which the Lessee shall
perform as part of the Expansion Construction Work
under Section 93 hereof, shall be and become part of
the Fuel System."
32. Section 56 of the Lease, as previously amended, shall be
deemed further amended to as follows:
(a) The date appearing on the second (2nd) line of paragraph
(a) thereof (as set forth in Supplement 15 of the Lease) as "March
31, 2013" shall be deemed amended to read "December 31, 2018".
(b) The second (2nd) subparagraph of paragraph (a) of Section
56 of the Lease, as previously amended, shall be deemed further
amended to read as follows:
"It is recognized that pursuant to Paragraph 2
of Supplement No. 17 to the Lease the term of
the letting of only the Area C-3 portion of the
premises is extended to March 31, 2028, and that
the fuel gallonage fee provisions contained in
Schedule D are effective through December 31,
2018. It is hereby agreed that for the portion
of the term of the letting of said Area C-3
hereunder subsequent to December 31, 2018, the
Port Authority and the Lessee shall negotiate in
good faith toward the establishment of
provisions covering the determination of the
fuel gallonage fees payable by the Lessee for
the portion of the term of said Area C-3
commencing January 1, 2019 through the
expiration date of the term of the letting of
said Area C-3 hereunder (March 31, 2028), and
upon the establishment of the same the Lessee
shall pay fuel gallonage fees in accordance with
said provisions for said portion of the term.
If the parties do not reach such agreement, the
Lessee shall pay fuel gallonage fees in
accordance with the Port Authority's Schedule of
Charges for said portion of the term of said
Area C-3 commencing January 1, 2019."
33. Paragraph (a) of Section 59 of the Lease shall be deemed
amended to add the following at the end thereof:
"Notwithstanding the foregoing, the Lessee, utilizing a
vendor holding a permit from the Port Authority to perform
such services at the Airport (which permit shall, among
its other terms, contain the obligation of such vendor to
pay to the Port Authority the Port Authority's then-
prevailing fee for such activities), may install, maintain
or operate, or permit the installation, maintenance or
operation, in the non-public areas of the premises of
vending-machines or devices designed to dispense or sell
food, beverages, tobacco, and tobacco products, solely for
its employees and the employees of others doing business
with the Lessee."
34. Paragraph (c) of Section 61 of the Lease shall be deemed
amended by adding at the end thereof before the final period the
following:
"provided that the Lessee shall not have the
right to terminate the Lease as to the Mortgaged
Premises (as defined in Section 96 hereof)
without the consent of the Leasehold Mortgagee
(as defined in Section 96 hereof) so long as the
Leasehold Mortgage or the Reletting Rights (as
defined in said Section 96) of the Leasehold
Mortgagee remain in effect".
35. The Lease is hereby amended to add the following Section
61A immediately following Section 61 of the Lease as herein
amended:
"Section 61A. Effect of Termination by Lessee
(a) If the Lessee terminates the letting pursuant to the
provisions of Section 61(a)(1), subject to the proviso at the
end of Section 61(c) hereof, then the Port Authority may, at
its option, pay to the Lessee the amount of the Lessee's
investment in the premises (excluding any investment by the
Port Authority and further excluding any personal property)
arising out of the performance of the Expansion Construction
Work pursuant to and as set forth in Section 93 of the Lease,
after deducting therefrom an amount equivalent to an allowance
for depreciation and amortization to be computed on a
straight-line basis over a period equal to the applicable
lease term hereunder, not taking into consideration the effect
of any accelerated amortization granted to or taken by the
Lessee on its books or otherwise under any applicable law (for
purposes of this Section 61A, the "Unamortized Capital
Investment"). For purposes of this Section 61A, the Lessee's
investment in the premises arising out of the performance of
the Expansion Construction Work shall be limited to that
portion of the amount of the Bonds (as defined in
Section 96(a)(8) of the Lease) allocated to the Expansion
Construction Work and the Lessee's out-of-pocket payments to
third parties and other direct costs relating to the Expansion
Construction Work. Such option shall be evidenced by notice
in writing to the Lessee by the Port Authority within sixty
(60) days after the Lessee has given notice of termination.
The failure of the Port Authority to exercise the said option
will impose no obligation upon it to relet the premises.
(b) If the Lessee terminates the letting pursuant to the
provisions of Section 61(a)(2), subject to the proviso at the
end of Section 61(c), then the Port Authority may, at its
option, pay to the Lessee the Unamortized Capital Investment,
if any. Such option shall be evidenced by notice in writing
to the Lessee by the Port Authority within sixty (60) days
after the Lessee has given notice of termination. If the Port
Authority fails to exercise such option, then the Port
Authority shall use commercially reasonable efforts to relet
the premises.
(c) Subject to Section 96 hereof, if the Port Authority
relets the premises prior to the date upon which this
Agreement would have expired but for such termination, then
the net rent paid by the new tenant(s) to the Port Authority
(after deducting any costs or expenses incurred by the Port
Authority in securing said new tenant(s) and in complying with
the terms of this Agreement to such tenant(s), including but
not limited to the costs of alteration and decoration of such
premises, in the event of termination pursuant to the
provisions of Section 61(a)(1), and after deducting any costs
or expenses incurred by the Port Authority for any new
improvements to said premises made by the Port Authority prior
to the date of such termination, the maintenance of said
premises, or services furnished to the new tenant, and after
deducting the amounts which would have been payable as rent by
the Lessee but for such termination) shall be paid over by the
Port Authority to the Lessee until said amounts paid over
equal the Unamortized Capital Investment of the Lessee in the
premises as of the date of termination. The obligation of the
Port Authority to pay over to the Lessee any net rent received
from such new tenant(s) shall endure only while such new
tenant(s) continues to pay rent and occupy such premises, and
only while the Unamortized Capital Investment of the Lessee in
such premises is unamortized, and in no event is such
obligation to pay over to endure beyond the date upon which
this Agreement would have expired but for such termination.
(d) The Lessee shall, with respect to its investment in
the premises arising out of the performance of the Expansion
Construction Work, maintain at all times during the term of
this Agreement and for two (2) years after the termination
thereof, in accordance with accepted accounting practice,
records and books of account, such records and books to be
available for audit and inspection by the Port Authority, its
representatives and employees upon request at all reasonable
times and to be kept at all times in the Port of New York
District; provided, however, that the Lessee may produce all
such records and books to the satisfaction of the Port
Authority in the Port of New York District, or, on the
condition that the Lessee shall pay to the Port Authority all
travel costs and expenses as determined by the Port Authority
for Port Authority auditors and other representatives in
connection with an audit at locations outside the Port of New
York District, the Lessee may maintain said records and books
and make them available to the Port Authority at the Lessee's
principal office, which currently is located at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇."
36. Section 62 of the Lease shall be deemed amended as
follows:
(a) The words "at its option" shall be added following
the word "Lessee" in the eighth (8th) line thereof.
(b) The word "The" at the beginning of the last sentence
thereof shall be replaced by the words "In the event that the
Lessee shall exercise such option, the".
37. The second (2nd), third (3rd) and fourth (4th) sentences
of Section 63 of the Lease shall be deemed amended to read as
follows:
"The Lessee agrees that any food, alcoholic or
non-alcoholic beverages and similar items sold or
furnished to the passengers, guests or invitees of the
Lessee in any such rooms or space shall, where a
charge or other money payment for such item or items
is imposed on or collected from such passengers,
guests or invitees, be obtained by the Lessee from an
Operator who has been authorized by the Port Authority
to operate establishments for the sale of food,
alcoholic and non-alcoholic beverages and similar
items for consumption in passenger terminal facilities
at the Airport; provided that as to any such item
which is supplied to said passengers, guests or
invitees in such club rooms and at no charge by the
Lessee (or any sublessee) or the operator, no fee
shall apply to such item. All monies paid or payable
to the Operator for such sales shall be included in
the gross receipts of the Operator. In the event the
Lessee wishes to use its own personnel for serving
food, alcoholic or non-alcoholic beverages and similar
items it may do so; provided that where a charge or
other money payment for such item or items is imposed
on or collected from such passengers, guests or
invitees the food, alcoholic and non-alcoholic
beverages are obtained by the Lessee from an Operator
authorized by the Port Authority and provided that
monies paid therefor, in that event, shall be included
in the gross receipts of the Operator. If the Lessee
uses its own personnel for serving food, alcoholic or
non-alcoholic beverages and similar items where a
charge or other money payment for such item or items
is imposed on or collected from its passengers, guests
or invitees, the Lessee will pay a fee to the Port
Authority as shall be specified by the Port Authority
which will not be greater than the fee that would be
retained by the Port Authority if the food, alcoholic
or non-alcoholic beverages and similar items were
served by the Operator."
38. Paragraph (a) of Section 64 of the Lease shall be deemed
amended by inserting at the end thereof the following:
"or under Section 62 hereof".
39. Subparagraph (i) of paragraph (g) of Section 66 of the
Lease, as previously amended, shall be deemed further amended by
deleting the words "at present" in the fourth (4th) line thereof.
40. Section 69 of the Lease shall, as previously amended, be
deemed further amended to read as follows:
(a) (1) The title of said Section 69 shall be deemed amended
to read "Section 69. Rights of Accommodation by the Port
Authority".
(2) Paragraph (a) thereof, as previously amended, shall
be deemed further amended as follows:
(i) The number appearing (as set forth in
Supplement No. 6 of the Lease) as "57,200" shall be deemed
amended to read "36,000, increased to 46,800 effective on the
Expansion Construction Work Completion Date, (each of the said
numbers during the said respective periods of time being
hereinafter called "the Lessee's Commencement Basic Schedules"
and the number 10,800 being hereinafter called "the Lessee's
Concourse C-3 Commencement Basic Schedule")".
(ii) The following shall be deemed added at the end
thereof:
"The Lessee's FIS Basic Schedule shall be calculated as
thirty percent (30%) of the Lessee's Concourse C-3
Commencement Basic Schedule."
(b) Paragraphs (c) and (d) of said Section 69 are hereby
amended to read as follows:
"(c) (1) (i) As of January 1, 1999 and as of January 1
of each succeeding calendar year in the event that for
reasons within the Lessee's control the Lessee's Basic
Schedules for the immediately preceding calendar year for
the Airport are less than sixty percent (60%) of the
Lessee's Commencement Basic Schedules or (ii) as of
January 1, 1999 and as of January 1 of each succeeding
calendar year in the event that because of reasons beyond
the control of the Lessee the Lessee's Basic Schedules
for the immediately preceding two calendar years are less
than sixty percent (60%) of the Lessee's Commencement
Basic Schedules, or (iii) as of January 1, 1999 in the
event that for any reason whatsoever, other than an event
of force majeure as covered by Section 64 hereof, the
Lessee fails to operate a minimum of three (3) aircraft
flight turnaround operations per aircraft gate position
at the premises each and every calendar day for the
immediately preceding three (3) calendar months (with
aircraft no smaller than jet aircraft capable of
utilizing the loading bridges thereat with a minimum
seating capacity of 43 seats), then in any of such events
and without limiting each and every other right of the
Port Authority under this Agreement or otherwise, the
Port Authority shall have the right, upon six (6) months'
prior written notice to the Lessee, to require the
Lessee, and the Lessee hereby agrees, to make available
Gate Accommodations (as hereinafter defined) at the
premises as directed by the Port Authority, to Scheduled
Aircraft Operators (as said term is defined in Section 72
hereof) and also including Scheduled Commuter Aircraft
Operators (hereinafter in this Section 69 collectively
called the "Scheduled Aircraft Operators"). For purposes
of this Section 69, upon the expiration or termination of
the term of the letting of the C-1 and C-2 portions of
the premises under the Lease, the term "Lessee's
Commencement Basic Schedules" shall be replaced by the
term "Lessee's Concourse C-3 Commencement Basic
Schedule."
(2) The Lessee shall make such Gate Accommodations
available from time to time during the entire period
commencing on the effective date set forth in the aforesaid
notice and ending when the Lessee's Basic Schedules for a
calendar year, determined in accordance with the foregoing
shall have been sixty percent (60%) or more of the Lessee's
Commencement Basic Schedules (hereinafter called "a period of
underutilization"). The term "Gate Accommodations" as used in
this Section 69 shall mean aircraft ramp and gate position
capacity and related passenger terminal facilities including,
but not limited to passenger ticketing, passenger check-in,
baggage handling systems and flight information systems,
passenger lounge and waiting areas and appropriate signage and
public identification. Such Gate Accommodations may be
accomplished by the Lessee by making available and providing
non-exclusive use of gate positions and other related
facilities to Scheduled Aircraft Operators pursuant to
handling agreements (as described in Section 72 (o) hereof)
between the Lessee and any such Scheduled Aircraft Operator
(hereinafter called 'the Handled Airline').
(3) As of the first (1st) day of the seventh (7th)
calendar month following the issuance of the certificate
called for in paragraph (n)(1) of Section 93 of the Lease, in
the event that the daily average number of passengers
processed through the FIS facilities for the immediately
preceding six (6) calendar months is less than sixty percent
(60%) of the Lessee's FIS Basic Schedule, then the Port
Authority shall have the right, upon six (6) months' prior
written notice to the Lessee, to require the Lessee, and the
Lessee hereby agrees, to make available FIS Accommodations (as
hereinafter defined; Gate Accommodations and FIS
Accommodations being sometimes collectively referred to herein
as "Accommodations") at the premises as directed by the Port
Authority, to Scheduled Aircraft Operators (as said term is
defined in Section 72 hereof) and also including Scheduled
Commuter Aircraft Operators (hereinafter in this Section 69
collectively called the 'Scheduled Aircraft Operators').
(4) The Lessee shall make such FIS Accommodations
available from time to time during the entire period
commencing on the effective date set forth in the aforesaid
notice and ending when the Lessee's daily average number of
passengers processed through the FIS facilities for the
immediately preceding six (6) calendar months shall have been
sixty percent (60%) or more of the Lessee's FIS Basic
Schedules (hereinafter called "a period of underutilization").
The term "FIS Accommodations" as used in this Section 69 shall
mean aircraft ramp and gate position capacity and related
passenger terminal facilities including, but not limited to
use of the FIS facilities, passenger ticketing, passenger
check-in, baggage handling systems and flight information
systems, passenger lounge and waiting areas and appropriate
signage and public identification. Such FIS Accommodations
may be accomplished by the Lessee by making available and
providing non-exclusive use of gate positions and other
related facilities to Scheduled Aircraft Operators.
(5) The Lessee shall negotiate in good faith the terms of
any such Accommodations with the Handled Airline; provided,
however, in no event shall the Lessee be required to provide
Accommodations for a rental that is less than the total costs
(including a pro rata share of construction, financing and
operations and maintenance costs) of providing such
Accommodations. Without limiting any other term or provision
of this Lease, each such handling agreement shall be subject
to the prior and continuing approval of the Port Authority and
the execution among the Port Authority, the Lessee, and the
Handled Airline of a form of consent agreement prepared by the
Port Authority. Moreover, and without limiting the foregoing,
the Lessee will at all times keep the Port Authority informed
and advised and will consult with the Port Authority from time
to time as to all aspects of its Accommodations of Scheduled
Aircraft Operators hereunder.
(6) It is understood furthermore that the
Accommodations contemplated hereunder may involve the use
of subleases of exclusive areas of the premises in
addition to or in lieu of handling agreements. Without
limiting any other term or provision of this Lease, any
sublease with a Scheduled Aircraft Operator (hereinafter
called a "Section 69 Sublessee Airline") will similarly
be subject to the prior and continuing approval of the
Port Authority and the execution of a consent agreement
prepared by the Port Authority, and executed by the Port
Authority, the Lessee and the Section 69 Sublessee
Airline. Nothing contained herein shall in any way
affect the discretion of the Port Authority in granting
or withholding its consent to a handling agreement or a
sublease with a Section 69 Sublessee Airline, proposed by
the Lessee or directed by the Port Authority whether or
not during a period of underutilization, and, without
limiting Section 77 or any other term hereof, such
consent may contain such terms and conditions including
but not limited to such financial or other conditions
which may include a fixed charge or a charge based upon
a percentage of the Lessee's gross receipts arising
therefrom, as the Port Authority may, at that time,
elect, and all provisions of the Lease requiring the
prior written consent or approval of the Port Authority
and requiring the payment by the Lessee of the handling
percentage fees and the subletting percentage fees shall
in no way be waived, impaired, limited or affected.
(7) Notwithstanding anything to the contrary
contained herein the Lessee understands and agrees that
the Lessee shall not perform any services and functions
pursuant to any handling agreement or sublease with a
Handled Airline or a Section 69 Sublessee Airline with
respect to which the Port Authority has specifically
withheld consent and approval in the consent agreement to
such handling agreement or sublease. The Handled Airline
and the Section 69 Sublessee Airline may either perform
said services and functions themselves or use the
services of the authorized service organization,
including but not limited to in-flight caterers, aircraft
fuelers, and ramp handlers performing such services or
functions at the Airport. The Lessee however may make
the necessary arrangements with the authorized service
organization performing such services and functions at
the Airport to have such services and functions performed
for the Handled Airline or the Section 69 Sublessee
Airline.
(8) Without limiting any Section, term or provision
of the Lease, the Lessee shall, with respect to each and
every handling agreement, sublease or other agreement
covering any Accommodations, maintain in accordance with
accepted accounting practice during the term of this
Agreement and for one year thereafter and for such period
until the Lessee shall receive written permission from
the Port Authority to do otherwise, records and books of
account recording all transactions, at through or in
anywise connected with said handling agreements,
subleases and other agreements and shall use and maintain
such systems for recording transactions under or in
connection with the handling agreements and subleases all
to the end that accurate and complete records of gross
receipts be maintained including identification of the
gross receipts of the Lessee pertaining to any particular
handling agreement, sublease or other agreement, all of
the foregoing to be kept at all times in the Port of New
York District; provided, however, that the Lessee may
produce all such records to the satisfaction of the Port
Authority in the Port of New York District, or, on the
condition that the Lessee shall pay to the Port Authority
all travel costs and expenses as determined by the Port
Authority for Port Authority auditors and other
representatives in connection with any audit at locations
outside the Port of New York District, the Lessee may
maintain said records and books and make them available
to the Port Authority at the Lessee's principal office,
which currently is located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇.
(9) Without limiting any Section, term, or provision
of the Lease, the Lessee shall permit in ordinary
business hours during the term of this Agreement and for
one year thereafter and during such further period as is
mentioned in the preceding subparagraph, the examination,
inspection and audit by the officers, employees and
representatives of the Port Authority of such books of
account and systems mentioned above and also any records
and books of account, and systems of any company which is
owned or controlled by the Lessee or by any partner of
the Lessee, if said company performs services, similar to
those performed by the Lessee anywhere in the Port of New
York District. The Lessee shall furnish to the Port
Authority from time to time (but not more often than once
a month) statements of the Lessee setting forth its gross
receipts as required hereunder, and such further
itemization, details and information pertaining to the
handling agreements and subleases as the Port Authority
may from time to time request.
(10) The Lessee agrees that all handling agreements
and subleases shall be at reasonable and at not
discriminatory rates, fees and charges which shall be
based upon the recovery by the Lessee of a pro rata share
of the Lessee's costs of (i) operation and maintenance of
the premises, (ii) the services provided to the Handled
Airline or the Section 69 Sublessee Airline and (iii) the
Lessee's investment in the premises not otherwise
included in the above, provided, however, that it is
understood and agreed that the following shall not be a
reason for the Lessee to refuse a sublease or handling
agreement or to impose any conditions or limitations on
operations in connection therewith under this Section 69:
(aa) possible or potential labor disharmony with a
Handled Airline or sublessee, (bb) compatibility of
schedules and operations between the Lessee or another
user or occupant of the premises and a Handled Airline or
sublessee, or (cc) competitive nature of the routes,
schedules or type of air transportation service to be
provided by a Handled Airline or sublessee, provided,
further, however, that with respect to item (aa) above
if, after notice from the Port Authority to provide
Accommodations to a specific Scheduled Aircraft Operator,
the Lessee shall, in good faith, believe that the
operations of such specific Scheduled Aircraft Operator
on the premises would cause significant, immediate and
unremediable labor disharmony which would seriously
affect the operations of the Lessee on the premises then,
upon request by the Lessee to the Port Authority setting
forth in specific detail satisfactory to the Port
Authority the nature of the anticipated labor disharmony
and requesting that the Lessee not be obligated under
this Section to provide Accommodations for such specific
Scheduled Aircraft Operator, the Port Authority shall, in
good faith, consider the Lessee's request and if the Port
Authority finds that the labor disharmony described by
the Lessee is reasonably likely to result if the Lessee
were to provide Accommodations to such Scheduled Aircraft
Operator on the premises then the Port Authority shall
notify the Lessee that the Port Authority's direction to
provide Accommodations to such Scheduled Aircraft
Operator is rescinded and, provided further, however,
with respect to (bb) above the Lessee will not have to
provide or continue to provide FIS Accommodations if
doing so would result in a number of passengers being
processed through the FIS facilities in excess of the
design capacity of said facilities or if such FIS
Accommodations would require Lessee to cancel or retime
a scheduled international arriving flight. The Lessee's
obligation to provide Accommodations to Scheduled
Aircraft Operators shall be effective on the date set
forth in a notice from the Port Authority to such effect,
as aforesaid. Upon such notice the Lessee shall use its
best efforts to secure an arrangement with a Scheduled
Aircraft Operator as directed by the Port Authority for
Accommodations in the terminal and shall in good faith
negotiate with any such Scheduled Aircraft Operator as
the Port Authority shall direct for Accommodations in the
premises, all in accordance herewith.
(11) The Port Authority shall give thirty (30) days' prior
notice of its intention to give the notice set forth above and
it is expressly agreed that the Port Authority shall not
exercise the aforesaid right with respect to any portion or
portions of the premises if and for which the Lessee has
submitted to the Port Authority definite plans for the
utilization of said portion or portions of the premises by the
Lessee provided the Lessee in fact commences such use of said
portion or portions of the premises within thirty (30) days
after the submission of the said plans.
(12) The failure of the Port Authority to exercise its
rights under this Section 69 during any year in which it may
have such a right, shall not affect, waive or limit its right
to exercise said rights in any subsequent year."
(c) The third (3rd) and fourth (4th ) lines of paragraph (e)
thereof are hereby amended to read as follows:
"do so as follows: based upon the Official Airline Guide
or such other appropriate report of airline schedules as the
Port Authority may substitute therefor (any such report being
herein called "the Guide") the Port Authority shall ascertain
the total"
(d) The seventeenth (17th) line of paragraph (e) thereof is
hereby amended by adding after the word "Airlines" the words ", or
are otherwise accommodated in the premises with the consent of the
Port Authority,".
(e) Subparagraph (g) of Section 69 of the Lease (as set forth
in Supplement No. 6 of the Lease) shall be deemed deleted from the
Lease.
41. The last sentence of paragraph (a) of Section 71 of the
Lease, as previously amended, shall be deemed further amended to
read as follows:
"The Port Authority shall have the right upon
prior notice to inspect and audit such books and
records during regular business hours."
42. (a) The first (1st) line of paragraph (n) of Section 72 of
the Lease is hereby amended to read as follows:
"(n) "Gross Receipts", for purposes of Sections
63 and 66 hereof, shall mean and include such".
(b) Section 72 of the Lease, as previously amended, is
hereby further amended by adding at the end thereof the following
new paragraphs:
"(AA) "Environmental Damages" shall mean any one or more
of the following: (i) the presence on, about or under the
premises of any Hazardous Substance and/or (ii) the disposal,
release or threatened release of any Hazardous Substance from
the premises, and/or (iii) the presence of any Hazardous
Substance on, about or under other property at the Airport as
a result of the Lessee's use and occupancy of the premises or
a migration of a Hazardous Substance from the premises, and/or
(iv) any personal injury (including wrongful death) or
property damage arising out of or related to any such
Hazardous Substance, and/or (v) the violation of any
Environmental Requirements pertaining to any such Hazardous
Substance, the premises and/or the activities thereon.
(BB) "Environmental Requirements" and "Environmental
Requirement" shall mean all applicable present and future
laws, statutes, enactments, resolutions, regulations, rules,
ordinances, codes, licenses, permits, orders, approvals,
plans, authorizations, concessions, franchises, requirements
and similar items, of all governmental agencies, departments,
commissions, boards, bureaus, or instrumentalities of the
United States, states and political subdivisions thereof
(other than the Port Authority) and all applicable judicial,
administrative, and regulatory decrees, judgments, and orders
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
unless the Port Authority consents to a different standard
being applied, the foregoing to include without limitation:
(i) 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; and
(ii) All requirements, pertaining to the
protection of the health and safety of employees
or the public arising out of or in connection
with environmental conditions.
(CC) "Hazardous Substances" and "Hazardous Substance"
shall mean and include without limitation 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 declared to be hazardous or toxic, or the
removal of which is required, 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."
43. (a) The ninth (9th) through thirteenth (13th) lines of
paragraph (b) of Section 73 of the Lease shall be deemed amended to
read as follows:
"to and use good faith efforts to implement an extensive
program of affirmative action, including specific affirmative
action steps to be taken by the Lessee, to ensure maximum
opportunities for employment and contracting by minorities and
women, and by Minority Business Enterprises and Women-owned
Business Enterprises. In meeting said commitment the Lessee
agrees".
(b) Paragraph (c) of Section 73 of the Lease shall be deemed
amended to read as follows:
"(c) (1) "Minority" as used herein includes:
(i) Black (all persons having origins in any of
the Black African racial groups not of Hispanic
origin);
(ii) Hispanic (all persons of Mexican, Puerto
Rican, Dominican, Cuban, Central or South
American culture or origin, regardless of race);
(iii) Asian and Pacific Islander (all persons
having origins in any of the original peoples of
the Far East, Southeast Asia, the Indian
Subcontinent, or the Pacific Islands); and
(iv) American Indian or Alaskan Native (all
persons having origins in any of the original
peoples of North America and maintaining
identifiable tribal affiliations through
membership and participation or community
identification).
(2) "Minority Business Enterprise" (MBE) as used
herein shall mean any business enterprise which is at
least fifty-one percentum owned by, or in the case of a
publicly owned business, at least fifty-one percentum of
the stock of which is owned by citizens or permanent
resident aliens who are minorities and such ownership is
real, substantial and continuing.
(3) "Women-owned Business Enterprise" (WBE) as used
herein shall mean any business enterprise which is at
least fifty-one percentum owned by, or in the case of a
publicly owned business, at least fifty-one percentum of
the stock of which is owned by women and such ownership is
real, substantial and continuing.
(4) Good faith efforts to include meaningful
participation by MBEs and WBEs shall include at least the
following:
(i) Dividing the work to be subcontracted into
smaller portions where feasible.
(ii) Actively and affirmatively soliciting bids for
subcontracts from MBEs and WBEs, including
circulation of solicitations to minority and female
contractor associations. The Lessee shall maintain
records detailing the efforts made to provide for
meaningful MBE and WBE participation as called for
in paragraph (b) above, including the names and
addresses of all MBEs and WBEs contacted and, if any
such MBE or WBE is not selected as a joint venturer
or subcontractor, the reason for such decision.
(iii) Making plans and specifications for
prospective work available to MBEs and WBEs in
sufficient time for review.
(iv) Utilizing the list of eligible MBEs and WBEs
maintained by the Port Authority or seeking
minorities and women from other sources for the
purpose of soliciting bids for subcontractors.
(v) Encouraging the formation of joint ventures,
partnerships or other similar arrangements among
subcontractors, where appropriate, to insure that
the Lessee will meet its obligations hereunder.
(vi) Insuring that provision is made to provide
progress payments to MBEs and WBEs on a timely
basis.
(vii) Submitting quarterly reports to the Port
Authority (Office of Business and Job Opportunity)
detailing its compliance with the provisions
hereof."
(d) Paragraph (d) of Section 73 of the Lease shall be deemed
amended by inserting after the word "Authority" on the seventh
(7th) line thereof the following:
"(except where fulfillment of the Lessee's
compliance obligations hereunder requires
activity over a period of time, and the Lessee
shall have commenced to perform whatever may be
required for fulfillment within twenty (20) days
after receipt of notice and continues such
performance without interruption)".
(e) Paragraph (d) of Section 73 of the Lease shall be deemed
amended by inserting at the end thereof the following:
"The Lessee shall not be required to take any action, or
omit to take any action, under this Section, Section 2 (c)
(18), 38 or 39 or Schedule E hereof, to the extent that
such action or omission would be in violation of any
applicable law."
44. (a) The fourth (4th) and fifth (5th) lines of
Section 76 of the Lease, as previously amended, shall be deemed
further amended to read as follows:
"payment of Base Annual Rental, Area C-3 rental or other
rental, fee".
(b) Section 76 of the Lease, as previously amended, shall
be deemed further amended by inserting at the end thereof the
following:
"No late charges shall be due under this Section
76 in the event the Lessee timely pays to the
Port Authority amounts due to the Port Authority
as stated in invoices from the Port Authority
which amounts are thereafter adjusted by the
Port Authority in accordance with the Lease.
The foregoing, however, shall not be construed
to prevent late charges on unpaid amounts owing
to the Port Authority as a result of the
adjustment in the event the Lessee then fails to
timely pay the same or on amounts found to be
due to the Port Authority as a result of an
audit of the Lessee, as provided above."
45. Section 77 of the Lease, as previously amended, shall be
deemed further amended to read as follows:
(a) Paragraph (a) thereof is hereby amended to read as
follows:
"(a) (1) The Lessee covenants and agrees that it
will not sell, convey, transfer, mortgage, pledge or
assign this Agreement or any part thereof, or any rights
created thereby or the letting thereunder or any part
thereof without the prior written consent of the Port
Authority; provided, however, that this Agreement may be
assigned in its entirety (by operation of law or
otherwise) without such consent to any successor in
interest of the Lessee which is or is to be a Scheduled
Aircraft Operator hereof, and into which the Lessee may
merge or with which the Lessee may consolidate, or which
may succeed to the assets of the Lessee or the major
portion of its assets related to its air transportation
system, if immediately following the merger,
consolidation or assignment the entity which then is the
Lessee has a financial standing at least as good as that
of the Lessee immediately preceding the merger,
consolidation or assignment (by which is meant that its
current assets, its ratio of current assets to current
liabilities, its ratio of fixed assets to fixed
liabilities and its net worth shall each be at least as
favorable as that of the Lessee immediately preceding the
merger, consolidation or assignment) (the "Financial
Tests"), or, in the event the Financial Tests are not
satisfied, if the Lessee prior to the effectuation of
such assignment submits to the Port Authority the Consent
Security Deposit (as hereinafter defined); but in any of
said events, such assignment shall not take effect before
the assignee is actually engaged in the business of
scheduled transportation by Aircraft; and provided,
further that such succeeding entity or purchaser executes
and delivers to the Port Authority an instrument in form
satisfactory to the Port Authority assuming the
obligations of the Lessee as if it were the original
tenant hereunder, including without limitation the
submission of the Consent Security Deposit.
(2) In the event that the Lessee becomes the possessor
(surviving) corporation in a merger without the prior written
approval of the Port Authority and the Financial Tests are not
satisfied, the Lessee shall submit to the Port Authority
within five (5) days following such merger all appropriate
information and documentation sufficient to allow the Port
Authority to determine whether the Financial Tests are
satisfied. Thereafter if the Port Authority determines that
the Financial Tests are not satisfied the Port Authority shall
by written notice advise the Lessee of the same and the Lessee
shall submit the Consent Security Deposit to the Port
Authority not later than five (5) business days following said
notice from the Port Authority (the 'Consent Security Deposit
Deliver Date'). The Consent Security Deposit required under
this subparagraph (2) shall be subject to the following
subsubparagraphs (i) and (ii) as well as to subparagraph (4)
below:
(i) Upon the Consent Security Deposit Delivery Date, the
Lessee shall deposit with the Port Authority and shall keep
deposited throughout the term of this Agreement, the Consent
Security Deposit (as defined in subparagraph (3) hereof) in
cash, or bonds of the United States of America, or of the Port
Authority of New York and New Jersey, having a market value of
that amount, as security for the full, faithful and prompt
performance of and compliance with, on the part of the Lessee,
all of the provisions, terms, covenants and conditions of this
Agreement on its part to be fulfilled, kept, performed or
observed and as security for the payment of all other rentals,
fees, charges and obligations owed or which may become due and
owing to the Port Authority arising from the Lessee's
operations at the Airport, whether covered by a written
agreement or otherwise. Bonds qualifying for deposit
hereunder shall be in bearer form but if bonds of that issue
were offered only in registered form, then the Lessee may
deposit such bond or bonds in registered form, provided,
however, that the Port Authority shall be under no obligation
to accept such deposit of a bond in registered form unless
such bond has been reregistered in the name of the Port
Authority (the expense of such re-registration to be borne by
the Lessee) in manner satisfactory to the Port Authority. The
Lessee may request the Port Authority to accept a registered
bond in the Lessee's name and if acceptable to the Port
Authority the Lessee shall deposit such bond together with a
bond power (and such other instruments or other documents as
the Port Authority may require) in form and substance
satisfactory to the Port Authority. In the event the Consent
Security Deposit is returned to the Lessee, any expenses
incurred by the Port Authority in re-registering a bond to the
name of the Lessee shall be borne by the Lessee. In addition
to any and all other remedies available to it, the Port
Authority shall have the right, at its option, at any time and
from time to time, with or without notice to use the said
Consent Security Deposit or any part thereof in whole or
partial satisfaction of any of its claims or demands against
the Lessee. There shall be no obligation on the Port
Authority to exercise such right and neither the existence of
such right nor the holding of the Consent Security Deposit
itself shall cure any default or breach of the Agreement on
the part of the Lessee. In the event that the Port Authority
shall at any time or times so use the Consent Security
Deposit, or any part thereof, or if bonds shall have been
deposited and the market value thereof shall have declined
below the above-mentioned amount, the Lessee shall, on demand
of the Port Authority and within two (2) days thereafter,
deposit with the Port Authority additional cash or bonds so as
to maintain the Consent Security Deposit at all times to the
full amount above stated, and such additional deposits shall
be subject to all the conditions of paragraph (a)(2) of this
Section. After the later to occur of (x) expiration or
earlier termination of the Agreement or any extension thereof
and (y) the cessation of activity of the Lessee at the Airport
and upon condition that the Lessee shall then be in no wise in
default under any part of the Agreement, as this Agreement may
have been amended or extended, or other obligations to the
Port Authority, and upon written request therefor by the
Lessee, the Port Authority will return the said Consent
Security Deposit to the Lessee less the amount of any and all
unpaid claims and demands (including estimated damages) of the
Port Authority by reason of any default or breach by the
Lessee of this Agreement or any part thereof, or any of them,
or any other obligation of the Lessee to Port Authority and
less any other fees, charges and obligations owed to the Port
Authority arising from the Lessee's operations at the Airport.
The Lessee agrees that it will not assign or encumber the said
Consent Security Deposit and any such assignment or
encumbrances shall be void as to the Port Authority. The
Lessee may collect or receive annually any interest or income
earned on bonds and interest paid on cash deposited in
interest bearing bank accounts less any part thereof or amount
which the Port Authority is or may hereafter be entitled or
authorized by law to retain or to charge in connection
therewith, whether as or in lieu of administrative expense or
custodial charge, or otherwise, provided, however, that the
Port Authority shall not be obligated by this provision to
place or to keep cash deposited hereunder in interest bearing
bank accounts. Without limiting the foregoing provisions of
this Section, with respect to any bonds deposited by the
Lessee, the Port Authority shall have the right, in order to
satisfy any of its claims or demands against the Lessee, to
sell the same in whole or in part, at any time and from time
to time, with or without prior notice, at public or private
sale, all as determined by the Port Authority together with
the right to purchase the same at such sale free of any
claims, equities or rights of redemption of the Lessee. The
Lessee hereby waives all right to participate therein and all
right to prior notice or demand of the amount or amounts of
the Port Authority's claims or demands against the Lessee.
The proceeds of any such sale shall be applied by the Port
Authority first to the costs and expenses of the sale
(including but not limited to any advertising or commission
expenses) and then to the amounts due the Port Authority from
the Lessee. Any balance remaining shall be retained in cash
toward bringing the Consent Security Deposit to the sum
specified in subparagraph (3) hereof provided that this shall
not relieve the Lessee from maintaining the Consent Security
Deposit in the full amount stated in subparagraph (3) hereof.
(ii) in lieu of the cash or bonds Consent Security Deposit
described in subsubparagraph (i) hereof, the Lessee may, at
its option cause to be delivered to the Port Authority on the
Consent Security Deposit Delivery Date as security for the
full, faithful and prompt performance of and compliance with,
on the part of the Lessee, all of the provisions, terms,
covenants and conditions of this Agreement on its part to be
fulfilled, kept, performed or observed, and as security for
the payment of all rentals, fees, charges and obligations owed
or which may become due and owing to the Port Authority
arising from the Lessee's operations at the Airport, whether
covered by a written agreement or otherwise, a clean
irrevocable letter of credit issued to and in favor of the
Port Authority, by a banking institution having its main
office within the Port of New York District and acceptable to
the Port Authority, payable in the Port of New York District,
the amount of the Consent Security Deposit. The form and
terms of such letter of credit, as well as the institution
issuing it, shall be subject to the prior and continuing
approval of the Port Authority. Such letter of credit shall
provide that it shall continue during the term of this
Agreement and for a period of not less than six (6) months
thereafter; such continuance may be by provision for automatic
renewal or by substitution of a subsequent satisfactory clean
irrevocable letter of credit. If requested by the Port
Authority, said letter of credit shall be accompanied by a
letter expressing the opinion of counsel for the banking
institution that the issuance of said clean, irrevocable
letter of credit is an appropriate and valid exercise the
banking institution of the corporate power conferred upon it
by law. Upon notice of cancellation of a letter of credit the
Lessee agrees that unless, by a date twenty (20) days prior to
the effective date of cancellation, the letter of credit is
replaced by security in accordance with subsubparagraph (i)
above or another letter of credit satisfactory to the Port
Authority, the Port Authority may draw down the full amount
thereof without statement of default and thereafter the Port
Authority will hold the same as Consent Security Deposit under
subsubparagraph (i) of this paragraph (a)(2) of this Section.
Failure to provide such a letter of credit at any time during
the term of this Agreement, valid and available to the Port
Authority, including any failure of any banking institution
issuing any such letter of credit previously accepted by the
Port Authority to make one or more payments as may be provided
in such letter of credit shall be deemed to be a breach of
this Agreement on the part of the Lessee. Upon acceptance of
such letter of credit by the Port Authority, and upon request
by the Lessee made thereafter, the Port Authority will return
the Consent Security Deposit, if any, theretofore made under
and in accordance with the provisions of subsubparagraph (i)
of this paragraph (a)(2) of this Section. The Lessee shall
have the same rights to receive such Consent Security Deposit
during the existence of a valid letter of credit as it would
have to receive such sum upon expiration of the letting under
this Agreement and fulfillment of the obligations of the
Lessee hereunder and thereunder. If the Port Authority shall
make any drawing under a letter of credit held by the Port
Authority hereunder, the Lessee on demand of the Port
Authority and within two (2) days thereafter, shall bring the
letter of credit back up to its full amount. No action by the
Port Authority pursuant to the terms of any letter of credit,
or receipt by the Port Authority of funds from any bank
issuing any such letter of credit, shall be or be deemed to be
a waiver of any default by the Lessee under the terms of this
Agreement and all remedies of this Agreement and of the Port
Authority consequent upon such default shall not be affected
by the existence of a recourse to any such letter of credit.
(iii) For purposes of the foregoing, the Lessee hereby
certifies that its I.R.S. Employee Identification No. is
▇▇-▇▇▇▇▇▇▇; and in the event of a change in said I.R.S.
Employee Identification No. resulting from a merger the Lessee
shall immediately certify its new I.R.S. Employee
Identification No. in writing to the Port Authority.
(3) For purposes of this paragraph (a) the term
'Consent Security Deposit' shall mean an aggregate amount
equal to (x) the sum of all of the monetary obligations
(including without limitation rent, fees, and charges of
any type whatsoever) payable to the Port Authority by the
Lessee arising out of or in connection with or due from
its activities, operations, leases, permits or other
agreements at each and every Port Authority facility,
during the twelve (12) month period immediately preceding
the anticipated date of the merger, consolidation or
assignment, such sum under this clause (x) being limited
however to the aggregate of the three (3) highest monthly
totals of said monetary obligations for any three (3)
months during said twelve (12) month period with said sum
to be determined by the Port Authority; plus (y) the sum
of all of the monetary obligations (including without
limitation rent, fees, and charges of any type
whatsoever), if any, payable to the Port Authority by the
entity with which the Lessee merges or consolidates or to
which the Lease is assigned arising out of or in
connection with or due to its activities, operations,
leases, permits or other agreements, if any, at each and
every Port Authority facility, during the twelve (12)
month period immediately preceding the anticipated date
of the merger, consolidation or assignment, such sum
under this clause (y) being limited however to the
aggregate of the three (3) highest monthly totals of said
monetary obligations for any three (3) months during said
twelve (12) month period, with said sum to be determined
by the Port Authority. In the event the Consent Security
Deposit is delivered pursuant to subparagraph (1) above,
the terms, provisions and conditions governing the use of
said Consent Security Deposit shall be set forth in the
assumption instrument referred to therein.
(4) In the event that a Consent Security Deposit is
required to be posted under this Lease and at any time
thereafter the Lessee does satisfy the Financial Tests and
provides to the Port Authority satisfactory evidence thereof,
the Port Authority promptly shall refund the Consent Security
Deposit to the Lessee, less any amounts that then may remain
unpaid under the Lease beyond the due date thereof."
(b) Subparagraph (1) of paragraph (b) thereof, as previously
amended in Supplement No. 6 of the Lease, is hereby further amended
by inserting before the period at the end thereof the following:
"including the payment to the Port Authority of the then
appropriate Port Authority fee(s) at the rates determined
by the Port Authority."
(c) The first (1st) sentence of subparagraph (2) of paragraph
(b) thereof (as previously amended and set forth in Supplement No.
6 of the Lease) is hereby further amended to read as follows:
"The Lessee hereby represents to the Port Authority that
Continental Express, Inc. (a corporation of the State of
Delaware, 'Continental Express') is the Lessee Affiliated
Company as defined in Section 84 hereof. Notwithstanding
any provision of this Lease and in addition thereto, and
without the requirement for any permit, consent to
sublease or other use agreement from the Port Authority,
the Port Authority hereby grants its consent to the use
of the premises by Continental Express in accordance with
the terms and conditions of the Lease, such use being
without payment of the Port Authority fee therefor for so
long as Continental Express shall remain the Lessee's
wholly owned subsidiary. In the event Continental
Express shall cease to be the Lessee's wholly owned
subsidiary, the Lessee shall immediately so inform the
Port Authority and thereafter a document shall be
prepared by the Port Authority and sent to Continental
Express for its execution which document shall include,
among other things, provisions which may be requested by
the Lessee or Continental Express and agreed to by the
Port Authority, the right of Continental Express to
continue to use the premises on the terms and conditions
of the Lease, and the joint and several obligation of the
Lessee and Continental Express to pay to the Port
Authority the then appropriate Port Authority fee
therefor."
I. Section 84 of the Lease (as set forth in Supplement No. 6
of the Lease) is hereby amended to read as follows:
(a) The words "The Lessee Affiliated Companies" in the
heading thereof shall be deemed changed to read "The Lessee
Affiliated Company".
(b) Paragraph (a) thereof is hereby amended to read as
follows:
"(a) The Lessee hereby represents to the Port
Authority that the Lessee is the absolute and
unconditional owner of all of the issued and outstanding
capital stock of Continental Express, Inc., a corporation
of the State of Delaware (herein called 'Continental
Express'). It is hereby agreed that for purposes of this
Lease the term 'the Lessee Affiliated Company' shall mean
solely Continental Express."
II. (a) Subdivision II of Section 85 of the Lease is hereby
amended as follows:
(1) Paragraphs (a) and (b) thereof shall be deemed
deleted therefrom and the following paragraph shall be
deemed inserted in lieu thereof:
"The 'Assumable Maintenance and Repair Effective
Date' shall be the date, from time to time,
determined as follows:".
(2) The last sentence of subparagraph (ii) shall be deemed
amended to read as follows:
"Such date as the same may be established from time to
time shall be the 'Assumable Maintenance and Repair
Effective Date'."
(3) Paragraph (c) thereof shall be deemed deleted therefrom.
(b) The word "on" appearing at the end of the third (3rd)
line of paragraph (c) of Subdivision V of said Section 85 of the
Lease shall be deemed amended to read "or".
(c) There shall be deemed inserted after Subdivision V of
said Section 85 of the Lease a new subdivision VI reading as
follows:
"Subdivision VI.
Return of the Assumable Maintenance and Repair
to the Lessee
At any time and from time to time after the Port
Authority may have exercised its rights under Subdivision
II to perform the Assumable Maintenance and Repair the
Port Authority shall have the right, upon notice to the
Lessee to return the obligation to perform the Assumable
Maintenance and Repair to the Lessee commencing on a date
to be specified in such notice which date shall be not
less than thirty (30) nor more than ninety (90) days from
the giving of such notice. Such date shall be 'the
Return Date of the Assumable Maintenance and Repair'.
From and after the Return Date of the Assumable
Maintenance and Repair the Lessee shall perform the
Assumable Maintenance pursuant to and in accordance with
all the terms and provisions of the Lease including, but
not limited to, this Section 85.
From and after the Return Date of the Assumable
Maintenance and Repair the Lessee shall continue to pay
the Cost of Assumable Maintenance and Repair, it being
understood, that nothing herein shall release or be
deemed to release the Lessee from the payment to the Port
Authority of the Cost of Assumable Maintenance and Repair
including that portion thereof consisting of the Annual
Capital Cost in accordance with Subdivision IV hereof
arising prior to the Return Date of the Assumable
Maintenance and Repair; nor shall anything herein require
the Port Authority to make any calculation or
determination with respect to the Cost of Assumable
Maintenance and Repair prior to the time specified
therefor in Subdivision IV hereof."
48. The provisions of Section 88 and Section 91 of, and
Exhibit X-1 to, the Lease as herein amended shall apply solely with
respect to the C-1 and C-2 portions of the premises hereunder, and
shall not apply in any manner to the Mortgaged Premises (as defined
in Section 96 of the Lease).
49. The Section of the Leased entitled "Entire Agreement"
shall be deemed renumbered as Section 98 and the reference in the
first sentence thereof to Section 93 shall be deemed amended to
read "Section 98", and in addition to the Section added as new
Section 93 in Paragraph 6 of this Seventeenth Supplemental
Agreement, new Sections 94, 95, 96 and 97 are hereby added to the
Lease reading as follows:
"Section 94. Federal Inspection
(a) The Lessee has advised the Port Authority that it
intends to make available to the United States a portion or
portions of the premises for the inspection of the passengers
of the Lessee and their baggage by the United States for
United States customs, immigration, public health and other
governmental purposes, if the United States will accept and
use the same. The Port Authority shall have no obligation or
responsibility of any kind with respect to the foregoing or
the arrangements that must be made by the Lessee with the
United States and any agencies thereof having jurisdiction.
(b) From and after the Effective Date of Supplement No.
17 of the Lease, the Lessee shall be entitled to utilize the
number of slots at the international arrivals facilities of
Terminal B at the Airport held by, assigned to or utilized by
the Lessee as of the Effective Date of Supplement No. 17 of
the Lease. Further, the Lessee hereby expressly covenants and
agrees that, following the issuance of the certificate called
for in paragraph (n)(1) of Section 93 of the Lease, any
requirement for slots above the number of slots held by,
assigned to or utilized by the Lessee for its international
air passenger operations at Terminal B at the Airport on the
Effective Date of Supplement No. 17 of the Lease shall be
handled by the Lessee at the FIS facilities at the premises
hereunder at all times and only such operations that exceed
the design capacity of the said FIS facilities at the premises
may then be handled by additional slots of the Lessee at the
international arrivals facilities of Terminal B at the
Airport, if otherwise permitted.
Section 95. Storage Tanks
(a) All aboveground storage tanks and underground storage
tanks, if any, installed in the premises as of the effective
date of Supplement No. 17 to this Lease and its or their
appurtenances, pipes, lines, fixtures and other related
equipment, together with all aboveground storage tanks and
underground storage tanks installed in the premises during the
term of the letting subsequent to the said date and its or
their appurtenances, pipes, lines, fixtures and other related
equipment are hereinafter collectively called the 'Tanks' and
singularly called a 'Tank'. The Lessee hereby agrees that
title and ownership of the Tanks shall be and remain in the
Lessee, notwithstanding anything to the contrary in any
construction or alteration application. The Port Authority
has made no representations or warranties with respect to the
Tanks or their location and shall assume no responsibility for
the Tanks. All Tanks installed subsequent to said date shall
be installed pursuant to the terms and conditions of the Lease
including without limitation Section 23 hereof and nothing in
this Section 95 shall or shall be deemed to be permission or
authorization to install any Tanks.
(b) Without limiting the generality of any of the
provisions of the Lease, the Lessee agrees that it shall be
solely responsible for maintaining, testing and repairing the
Tanks. The Lessee shall not perform any servicing, repairs or
non-routine maintenance to the Tanks without the prior written
approval of the Port Authority.
(c) It is hereby agreed that title to and ownership of
the Tanks shall remain in the Lessee until the earlier to
occur of (1) receipt by the Lessee of notice from the Port
Authority that title to the Tanks shall vest in the Port
Authority or in the City of Newark or (2) receipt by the
Lessee of notice from the Port Authority that the Port
Authority waives its right to require the Lessee to remove the
Tanks from the premises as set forth in paragraph (i) below.
The vesting of title to the Tanks in the Port Authority or in
the City of Newark, if at all, in accordance with the
foregoing item (1) shall in no event relieve the Lessee from
the obligation to remove the Tanks from and restore the
premises in accordance with paragraph (i) below.
(d) Without limiting the generality of any other term or
provision of the Lease, the Lessee shall at its cost and
expense comply with all Environmental Requirements pertaining
to the Tanks and any presence, pumping, pouring, venting,
emitting, emptying, leakage, deposit, spill, discharge or
other release of Hazardous Substances from the Tanks or in
connection with their use, operation, maintenance, testing or
repair (any such presence, pumping, pouring, venting,
emitting, emptying, leakage, deposit, spill, discharge or
other release during the period the Lessee shall use or occupy
the premises or use the Tanks being hereinafter called a
'Discharge') including without limitation registering and
testing the Tanks, submitting all required clean-up plans,
bonds and other financial assurances, performing all required
clean-up and remediation of a Discharge and filing all
reports, making all submissions to, providing all information
required by, and complying with all requirements of, all
governmental authorities pursuant to the Environmental
Requirements.
Nothing in the foregoing shall be construed as a
submission by the Port Authority to the application to itself
of the Environmental Requirements, provided, however, no
immunity or exemption of the Port Authority from the
Environmental Requirements shall excuse the compliance
therewith by the Lessee or shall be grounds for non-compliance
therewith by the Lessee.
(e) Without limiting the terms and provisions of Section
18 of the Lease, the Lessee hereby assumes all risks arising
out of or in connection with the Tanks and all Discharges
whether or not foreseen or unforeseen and shall indemnify and
hold harmless the Port Authority, its Commissioners, officers,
agents and employees from and against (and shall reimburse the
Port Authority for their costs and expenses including without
limitation penalties, fines, liabilities, settlements,
damages, attorney and consultant fees, investigation and
laboratory fees, clean-up and remediation costs, court costs
and litigation expenses), all claims and demands, just or
unjust, of third persons (such claims and demands being
hereinafter in this Section 95 referred to as 'Claims' and
singularly referred to as a 'Claim') including but not limited
to those for personal injuries (including death), property
damages, or environmental impairment, arising or alleged to
arise out of or in any way related to, the failure of the
Lessee to comply with each and every term and provision of the
Lease, or the Tanks, or any Discharge, or any lawsuit brought
or threatened, settlement reached or any governmental order
relating to the Tanks or a Discharge, or any violation of any
Environmental Requirements or demands of any governmental
authority based upon or in any way related to the Tanks or a
Discharge, and whether such arise out of the acts or omissions
of the Lessee or of customers or contractors of the Lessee or
of third persons or out of the acts of God or the public enemy
or otherwise including claims by the City of Newark against
the Port Authority pursuant to the provisions of the Basic
Lease (as defined in the Lease) whereby the Port Authority has
agreed to indemnify the City against claims. It is understood
the foregoing indemnity shall cover all claims, demands,
penalties, settlements, damages, fines, costs and expenses of
or imposed by any governmental authority under the
Environmental Requirements.
If so directed the Lessee shall at its expense defend any
suit based upon any such Claim (even if such Claim is
groundless, false or fraudulent) and in handling such it shall
not without first having 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.
(f) The Lessee's obligations under this Section 95 shall
survive the expiration or earlier termination of the Lease.
(g) In addition to the requirements of Section 10 of the
Lease and paragraph (d) hereof, the Port Authority shall have
the right upon notice to the Lessee to direct the Lessee, at
the Lessee's sole cost and expense, (i) to perform such
reasonable testing of the Tanks as the Port Authority shall
direct and to perform such testing of the soil, subsoil and
ground water of the premises and of such surrounding area as
the Port Authority shall direct, and (ii) to clean-up and
remediate any Discharge, regardless of whether any
Environmental Requirement or governmental authority shall
require such testing, clean-up or remediation, which testing,
clean-up and remediation shall be performed pursuant to an
alteration application prepared by the Lessee and submitted to
the Port Authority for the Port Authority's approval.
(h) In the Lessee's use and operation of the Tanks, the
Lessee shall not permit any Hazardous Substance from entering
the ground including without limitation (subject to Section 23
hereof) installing appropriate spill and overfill devices and
placing an impervious material, such as asphalt or concrete,
over the ground area above and in the vicinity of the Tanks.
(i) (1) The Lessee shall remove the Tanks from the
premises on or before the applicable expiration date of the
Lease and dispose of the Tanks off the Airport in accordance
with all Environmental Requirements.
(2) Without limiting the foregoing or any other term or
provision of this Agreement, any removal of the Tanks shall be
performed pursuant to an alteration application prepared by
the Lessee and submitted to the Port Authority for the Port
Authority's approval and, in connection with such removal, the
Lessee shall restore the premises to the same condition
existing prior to the installation of the Tanks, shall perform
such testing of the Tanks and of the soil, sub-soil and ground
water in the vicinity of the Tanks as may be required by the
Port Authority and shall clean-up and remediate contamination
disclosed by said testing. In the event the Lessee does not
remove the Tanks as required by subparagraph (1) above, the
Port Authority may enter upon the premises and effect the
removal and disposal of the Tanks, restoration of the premises
and such remediation and the Lessee hereby agrees to pay all
costs and expenses of the Port Authority arising out of such
removal, disposal, restoration and remediation.
(j) Notwithstanding the foregoing or any other provision of
the Lease to the contrary, (i) the costs of remediation of any Non-
Hydrocarbon Contamination (as defined in Section 12(p) hereof)
resulting from a Discharge from any Tank which was not installed by
the Lessee shall count towards the Non-Hydrocarbon Obligation
Amount (as defined in Section 12(p) hereof) except to the extent
the substance(s) causing such costs was placed on or introduced to
the premises by the Lessee, and the standard for remediation
thereof shall be the applicable standard as required under
Environmental Requirements and, in the event that any Environmental
Requirement sets forth more than one standard, the standard to be
applied shall be that which requires the lowest level of a
Hazardous Substance unless the Port Authority consents to a
different standard being applied; and (ii) the Lessee shall have no
obligation or liability with respect to the cost of remediation of
any Discharge caused by the acts or omissions of the Port
Authority, and the Port Authority shall be responsible therefor;
provided, however, that the Port Authority does not hereby waive
any claims or rights which it may have against any third parties
with respect to such costs of remediation.
Section 96. Reletting Rights-Leasehold Mortgagee
(a) As used in this Section 96 the following terms shall have
the following meanings:
(1) "Act" shall mean Chapter 80 of the Pamphlet Laws of
1974 of the State of New Jersey, as amended and supplemented.
(2) "Activity Based Fees and Charges" shall mean and
include flight fees, fuel gallonage fees, Monorail Fees, charges
under Schedule B of this Agreement, in-flight meal fees pursuant to
Section 60 hereof, all fees and charges payable by the Lessee under
Sections 63, 76, and any other fees and charges under this
Agreement which are based or calculated on the activities of the
Lessee at the premises or the Airport.
(3) "Allocated Activity Based Fees and Charges" shall
mean Activity Based Fees and Charges allocated to the Mortgaged
Premises in accordance with paragraph (n)(2)(iii) of this Section.
(4) "Approved Successor Lessee" shall mean a major
domestic or international Scheduled Aircraft Operator, or a
consortium of such major domestic or international Scheduled
Aircraft Operators each of which would be jointly and severally
obligated to the Port Authority with respect to all of the
consortium's obligations under this Lease, who shall each meet all
of the requirements set forth in paragraphs (t) and (u) of this
Section including but not limited to the entering into with the
Port Authority of the Lease Assignment/Assumption and Consent
Agreement (as defined in paragraph (t) of this Section), and
thereby become the assignee/purchaser of this Lease with respect to
the Mortgaged Premises resulting from the exercise by the Leasehold
Mortgagee of its Reletting Rights whether by foreclosure and sale
or by assignment in lieu of foreclosure.
(5) "Additional Bonds" shall mean bonds issued by the
NJEDA pursuant to the Indenture subsequent and additional to the
issuance of the Bonds, the proceeds of which are to be used for the
payment of additional costs of the Expansion Construction Work (and
associated personal property) with respect to the Mortgaged
Premises under Section 93 hereof paid or incurred by the Lessee
prior to the Expansion Construction Work Completion Date as defined
in paragraph (n) of Section 93 hereof and for the payment of
issuance costs; provided that, for purposes of this Section, the
amount of the Additional Bonds shall be limited to a maximum amount
of $150,000,000; "Additional Bond" shall mean any one of the
Additional Bonds.
(6) "Bankruptcy Code" shall mean the United States
Bankruptcy Reform Act of 1978, as amended, including without
limitation amendments made by the Bankruptcy Reform Act of 1994,
and as the same may be further amended or supplemented, or any
federal bankruptcy law or laws replacing the foregoing.
(7) "Bankruptcy Rejection Date" shall have the meaning as
defined in paragraph (r)(1)(i)(C) of this Section.
(8) "Bonds" shall mean the bonds issued by the NJEDA
pursuant to the Indenture for the payment of the costs of the
Expansion Construction Work (and associated personal property)
under Section 93 hereof and issuance costs; "Bond" shall mean any
one of the Bonds; after the issuance of Additional Bonds, the term
"Bonds" shall include the Additional Bonds.
(9) "Bondholder" and "Bondholders" shall mean,
respectively, each holder of the Bonds and the holders of all the
Bonds.
(10) "Bonds Default" and "Bonds Default Date" shall have
the meaning as defined in paragraph (m) of this Section.
(11) "Bond Resolution" shall mean the resolutions adopted
by the NJEDA on December 8, 1998 and July 13, 1999 as the same may
be modified or amended, authorizing the issuance and sale of the
initial series of Bonds.
(12) "Deferred Reletting Fee" shall mean the fee payable
by the Trustee or the Approved Successor Lessee to the Port
Authority at the times and in the amounts as set forth in and
pursuant to paragraph (u) of this Section.
(13) "Deferred Reletting Fee Rental" shall mean the
additional rental payable by the Approved Successor Lessee to the
Port Authority as set forth in and pursuant to paragraph (u)(4) of
this Section; "Deferred Reletting Fee Rental Commencement Date",
"Deferred Reletting Fee Rental Period" and "Monthly Factor" shall
each have the respective meaning as set forth in paragraph (u)(4)
of this Section.
(14) "Financing Documents" shall mean all the agreements
and documents which relate to or are a part of the Financing
Transaction including but not limited to the NJEDA Sublease
Agreement, the Indenture, the Bonds, the Bond Resolution, the
Lessee Guaranty, the Leasehold Mortgage, and the other documents as
described in paragraph 1 (j) of the Port Authority Consent to NJEDA
Subleases (but such term shall not include the Basic Lease, this
Agreement, the Port Authority Consent to NJEDA Subleases or the
Other Lease).
(15) "Financing Transaction" shall mean the financing
transaction undertaken by the NJEDA, the Lessee and the Trustee
with respect to the Bonds, the NJEDA Sublease Agreement and the
NJEDA Subleases which are a part thereof.
(16) "Foreclosure Period " shall mean an initial period of
270 days subject to the conditions applicable to said initial
period as set forth in paragraph (n) of this Section, and
extendable to an aggregate total maximum period, including all such
extensions, of seven hundred and twenty (720) days, subject to the
conditions set forth in paragraph (n) of this Section, and which
shall commence on the Reletting Election Notice Service Date after
the first to occur of any of the following (i) the Notice of
Termination Service Date (defined in paragraph (1)(2) of this
Section); (ii) the Bankruptcy Rejection Date (defined in paragraph
(r)(1)(i)(C) of this Section); and (iii) the Bonds Default Date
(defined in paragraph (m) of this Section); and said Foreclosure
Period shall expire, unless sooner terminated, on the earlier to
occur of (x) the ninetieth consecutive day following such
commencement if the conditions for the extension of the same under
paragraph (n)(4) of this Section are not satisfied or, if there are
one or more extensions thereof as provided in and subject and
pursuant to subparagraphs (4), (5) and (6) of paragraph (n) of this
Section, the last day of the final extension, or (y) the Lease
Assignment/Assumption Commencement Date; the foregoing to be
subject, however to the provisions set forth in paragraphs (r)(1)
and (q) of this Section; provided, however, that the Foreclosure
Period shall not in any event continue after the transfer of title
to the Lessee's interest in the Mortgaged Premises under the Lease
pursuant to the issuance of a final judgment of foreclosure by a
court of competent jurisdiction or after any termination or
expiration of the Leasehold Mortgage as provided in this Section;
and provided that the Foreclosure Period shall be subject to
earlier termination as provided in paragraph (o) of this Section.
Notwithstanding anything herein to the contrary, if, during the
pendancy of any Foreclosure Period, the Bonds Default and/or Lease
Default giving rise to such Foreclosure Period, or any subsequent
Bonds Defaults or Lease Defaults thereafter occurring, are cured,
or waived by the Port Authority, as applicable, in accordance with
the applicable agreement(s) prior to the Lease Assignment/
Assumption Commencement Date and any pleading/proceedings based
upon such Bonds Defaults or Lease Defaults are dismissed with
prejudice, then such Foreclosure Period shall be deemed not to have
occurred (provided that any fees or other amounts paid or owing to
the Port Authority as of the date thereof shall be retained by, or
continue to be owing to, the Port Authority, as applicable). In
addition, as of the date and during the pendency of any Lessee
Bankruptcy, notwithstanding anything herein to the contrary, the
counting of days and the Leasehold Mortgagee's Foreclosure Period
Obligations in connection with any then-pending Foreclosure Period
shall be deemed suspended and held in abeyance until the earlier of
(i) the conclusion of the Lessee Bankruptcy or (ii) the Bankruptcy
Rejection Date.
(17) "Foreclosure Period Extension Fee" shall mean the fee
payable to the Port Authority by the Trustee as Leasehold Mortgagee
for each applicable extension, and collectively for any and all
applicable extensions, of the Foreclosure Period at the times and
in the amounts as set forth in and pursuant to paragraph (n) of
this Section.
(18) "Indenture" shall mean that certain Indenture of
Trust dated as of September 1, 1999 and entered into between NJEDA
and the Trustee with respect to the Bonds.
(19) "Lease Assignment/Assumption and Consent Agreement"
shall have the meaning as defined in paragraph (t)(2) of this
Section.
(20) "Lease Assignment/Assumption Commencement Date" shall
have the meaning as defined in paragraph (t)(2) of this Section.
(21) "Lease ANB-056" shall mean that certain agreement of
lease dated August 1, 1999 and bearing Port Authority
identification number ANB-056 (as the same has been or may be
amended or supplemented) whereby the Port Authority leased to
Continental Airlines, Inc. certain premises in Concourse A-2 at the
Airport (as more specifically described therein) for a term
commencing on August 1, 1999 and expiring on December 31, 2018.
(22) "Lease Termination" shall mean a breach of or default
under the Lease for which the Port Authority has delivered a Notice
of Termination in accordance with paragraph (l) of this Section 96.
(23) "Lessee Bankruptcy" shall mean the filing by the
Lessee of a voluntary petition under the Bankruptcy Code or the
filing of an involuntary petition against the Lessee under the
Bankruptcy Code, and the pendency of proceedings pursuant thereto.
(24) "Lessee Guaranty" shall mean that certain agreement
of guaranty dated as of September 1, 1999 entered into between the
Lessee and the Trustee pursuant to which the Lessee guarantees the
payment of the principal of, redemption premium, if any, and
interest on the Bonds.
(25) "Leasehold Mortgage" shall mean a mortgage granted by
the Lessee to the Trustee of (i) the Lessee's leasehold interest in
the Mortgaged Premises under this Lease and (ii) the Lessee's
subleasehold interests with respect to the Mortgaged Premises under
the NJEDA Sublease Agreement, for an amount not to exceed the
Mortgage Amount and for a term commencing on the date of the
issuance of the initial Bonds and not to extend beyond the first to
occur of (x) the date of the redemption, cancellation, defeasance,
discharge or payment of all of the Bonds in accordance with the
Indenture and (y) the expiration date of the of the term of the
letting of the Mortgaged Premises as set forth in Paragraph 3 of
Supplement No. 17 of this Lease, subject in any event to the
termination provisions of paragraph (d) of this Section, and given
by the Lessee as security for the Lessee's obligations under the
Lessee Guaranty with respect to the payments by the Lessee of the
principal of, redemption premium, if any, and interest on the
Bonds. There shall only be one Leasehold Mortgage with respect to
the Mortgaged Premises.
(26) "Leasehold Mortgagee" shall mean Chase Bank of Texas,
National Association, appointed as the Trustee, and any Successor
Trustee as defined in paragraph (f) of this Section, under the
Indenture during such times as the Trustee, or such Successor
Trustee, shall be the holder of the Leasehold Mortgage in
accordance with the terms hereof.
(27) "Leasehold Mortgagee's Foreclosure Period
Obligations" shall have the meaning as defined in paragraph (n) of
this Section including but not limited to the Leasehold Mortgagee
Foreclosure Period Payments.
(28) "Leasehold Mortgagee's Foreclosure Period Payments"
shall mean the payments required to be made by the Leasehold
Mortgagee to the Port Authority as set forth in paragraph (n) of
this Section including the Leasehold Mortgagee's Foreclosure Period
Commencement Payments, the Leasehold Mortgagee's Foreclosure Period
Current Basis Payments and the Foreclosure Period Extension Fees as
defined and set forth in said paragraph (n).
(29) "Mortgage Amount" shall mean (i) the amount of Five
Hundred Fifty Million Dollars and No Cents ($550,000,000.00) which
constitutes a portion of the proceeds of the initial Bonds issued
for the payment of the costs of the Expansion Construction Work
under Section 93 hereof to the extent located on the Mortgaged
Premises, together with the costs of the baggage system (whether or
not located on the Mortgaged Premises) plus (ii) subject to the
prior written consent of the Port Authority, the additional amount
of all or a portion of the proceeds of the Additional Bonds issued
for the payment of costs of the Expansion Construction Work under
Section 93 hereof to the extent located on the Mortgaged Premises
provided that said additional amount shall not exceed $150,000,000
and provided further that said additional amount is to be used for
the payment of costs of the said Expansion Construction Work
incurred or paid by the Lessee prior to the Expansion Construction
Work Completion Date (as defined in paragraph (n) of Section 93
hereof); provided, however, that the Mortgage Amount shall not
include (i) any of the costs associated with the construction work
under the Other Lease or any costs associated with the C-1 and C-2
portions of the premises or any other areas at the Airport not
specifically included as above provided, (ii) any bonds issued to
refund the Bonds, or (iii) the costs of any personal property
(other than the Schedule 1 Terminal Fixtures, as defined in
paragraph 53 of Supplement No. 17 of the Lease, to the extent
located on the Mortgaged Premises and the baggage system portion
thereof whether or not located on the Mortgaged Premises).
(30) "Mortgaged Premises" shall mean solely that portion
of the premises which constitutes Area C-3, including the areas
added or to be added to said Area C-3 pursuant to Paragraph 3 of
this Supplement No. 17, leased to the Lessee under this Lease and
which Area C-3 shall constitute the subject premises of the
Leasehold Mortgage.
(31) "NJEDA" shall mean the New Jersey Economic
Development Authority, a public body corporate and politic created
and existing under and by virtue of the Constitution and laws of
the State of New Jersey.
(32) "NJEDA Sublease Agreement" shall mean that certain
agreement dated September 1, 1999 and entered into between the
Lessee and the NJEDA whereby (i) the Lessee subleases the Mortgaged
Premises to the NJEDA and (ii) the NJEDA sub-sub-subleases the
Mortgaged Premises back to the Lessee subject to the Port Authority
Consent to NJEDA Sublease Agreement ( (i) and (ii) collectively,
"NJEDA Subleases").
(33) [INTENTIONALLY OMITTED]
(34) "Other Lease" shall mean Lease ANB-056.
(35) "Port Authority Consent to NJEDA Subleases" shall
mean that certain agreement dated September 1, 1999 entered into
among the Port Authority, the Trustee, the NJEDA and the Lessee
whereby the Port Authority grants its consent to the NJEDA Sublease
Agreement and the Leasehold Mortgage and whereby the Trustee
expressly states its acknowledgment and agreement to the terms and
provisions of this Section 96 with respect to its Reletting Rights
as Leasehold Mortgagee and its rights and obligations with respect
thereto, including without limitation its rights and obligations to
perform the Leasehold Mortgagee's Foreclosure Period Obligations
and to pay to the Port Authority the Leasehold Mortgagee's
Foreclosure Period Payments, the Foreclosure Period Extension Fees
and the Deferred Reletting Fee as set forth in this Section 96.
(36) "Reletting Election Notice" shall mean the written
notice required to be given by the Leasehold Mortgagee to the Port
Authority pursuant to paragraph (1)(2), (m)(1) or (r)(l)(i)(C) of
this Section affirmatively stating the Leasehold Mortgagee's
election to (i) exercise its Reletting Rights hereunder and (ii) to
exercise its rights under the Leasehold Mortgage to foreclose upon
the Leasehold Mortgage or to have the Lease with respect to the
Mortgaged Premises assigned to an Approved Successor Lessee in
accordance with the provisions of this Section.
(37) "Reletting Election Notice Service Date" shall mean
the actual date of the service on the Port Authority by the
Leasehold Mortgagee of its Reletting Election Notice provided that
such service is duly and timely made in accordance with the terms
and provisions of this Lease.
(38) "Reletting Election Period" shall mean the thirty
(30) day period during which the Leasehold Mortgagee must decide
whether it shall exercise its Reletting Rights hereunder and serve
its Reletting Election Notice on the Port Authority prior to the
expiration thereof, and which shall commence on the earliest to
occur of (i) the Notice of Termination Service Date, (ii) the
Bankruptcy Rejection Date, and (iii) the Bonds Default Date and
which shall expire on the thirtieth (30th) consecutive day
following said commencement.
(39) "Reletting Rights" shall mean the rights of the
Trustee as Leasehold Mortgagee with respect to the Mortgaged
Premises and the Leasehold Mortgage to obtain an Approved Successor
Lessee as provided in this Section.
(40) "Subsequent Notice of Termination" and "Subsequent
Notice of Termination Date" shall have the meaning as set forth in
paragraph (1) (3) of this Section.
(b) (1) The Lessee hereby represents to the Port Authority
that the Lessee intends to finance (i) the costs of the Expansion
Construction Work under this Lease (as defined in and required
under Section 93 hereof) (together with associated personal
property) and (ii) the costs of the construction work under the
Other Lease as required under Section 4 thereof (together with
associated personal property), with the proceeds of the Bonds
issued by the NJEDA pursuant to the Financing Transaction, and that
contemporaneously with the execution of Supplement No. 17 to the
Lease and the Other Lease the Lessee will be executing the
Financing Documents subject to the consent of the Port Authority
and the execution by the Port Authority, the Trustee and the NJEDA
of the Port Authority Consent to NJEDA Subleases.
(2) It is expressly acknowledged that the intent of the
parties hereto is that the Leasehold Mortgage is to be granted by
the Lessee to the Trustee pursuant to the provisions hereof solely
for the purposes of allowing the Trustee in its capacity as
Leasehold Mortgagee to exercise its Reletting Rights solely with
respect to the Mortgaged Premises, as the implementation of the
security afforded to the bondholders solely with respect to the
Mortgaged Premises by virtue of the Leasehold Mortgage, and to
obtain an Approved Successor Lessee during the Foreclosure Period
if it elects to do so pursuant to this Section.
(c) Notwithstanding the provisions of Section 77 of this
Agreement, and without otherwise limiting the generality thereof,
the Lessee, as part of the Financing Transaction only and
contemporaneously with its execution of Supplement No. 17 to this
Lease, shall have the right (exercisable one time only) to make a
single mortgage of the Lessee's leasehold interest in the Mortgaged
Premises under this Agreement (including the Lessee's subleasehold
interests with respect to the Mortgaged Premises under the NJEDA
Sublease Agreement) in an amount not in excess of the Mortgage
Amount under a Leasehold Mortgage to the Trustee approved by the
Port Authority in advance. In determining whether to approve or
disapprove a proposed Trustee, the Port Authority shall consider
all relevant factors, including but not limited to, the following
(but it is agreed that the Port Authority shall analyze all such
factors in a reasonable manner):
(i) whether the proposed Trustee and each officer,
director or partner thereof and each person, firm or
corporation having an outright or beneficial interest in
twenty percent (20%) or more of the monies invested in the
proposed Trustee, if said Trustee is a corporation,
association or partnership, by loans thereto, stock ownership
therein or any other form of financial interest, has, as, of
the date of the proposed financing, a good reputation for
integrity and financial responsibility and has not been
convicted of or under current indictment for any crime within
five (5) years preceding the date of the Financing Transaction
and is not currently involved in civil anti-trust or fraud
litigation (other than as a plaintiff);
(ii) whether the Port Authority has had any "unfavorable
experience" with the proposed Trustee, or any of its officers,
directors, or partners, or any person, firm or corporation
(such officers, directors, partners, person, firm and
corporation, being herein in this item (ii) individually and
collectively referred to as a "Person") having an outright or
beneficial interest in twenty percent (20%) or more of the
monies invested in the proposed Trustee if said Trustee is a
corporation, association or partnership, by loans thereto,
stock ownership therein or any other form of financial
interest; "unfavorable experience" as used herein shall mean
any one or more of the following: (A) a material default by
said proposed Trustee or any such Person of any obligation
(monetary or non-monetary) to the Port Authority; (B) any
assertion made by said proposed Trustee or any such Person
against the Port Authority of any frivolous, false, malicious,
or unsupportable claim, demand or allegation or suit or
proceeding; (C) any act or omission of said proposed Trustee
or any such Person causing or resulting in any loss, damage or
injury to the Port Authority or the imposition or threatened
imposition of any fine or penalty on the Port Authority or the
commencement or threatened commencement of any action, suit or
proceeding against the Port Authority; (D) any failure or
refusal of said proposed Trustee or any such Person to comply
with any law, governmental order, directive, ordinance or
requirement, including without limitation, Environmental
Requirements, at any Port Authority facility; (E) any failure
to comply with, or breach of, the Port Authority's Code of
Ethics and Financial Disclosure by said proposed Trustee or
any such Person; or (F) any breach by said proposed Trustee or
any such Person of any fiduciary obligation, trust, confidence
or other duty to the Port Authority or of any confidentiality
agreement with the Port Authority;
(iii) whether the proposed Trustee or any officer,
director or partner thereof or any person, firm or corporation
having an outright or beneficial interest in twenty percent
(20%) or more of the monies invested in the proposed Trustee,
if said Trustee is a corporation, association or partnership,
by loans thereto, stock ownership therein or any other form of
financial interest is in conflict of interest, as defined
under the laws of the States of New York and New Jersey or
Port Authority policy, with any Commissioner of the Port
Authority as of the date of the proposed financing;
(iv) whether there are liens of any kind on the Mortgaged
Premises; and
(v) whether the Lessee shall be in default for non-
payment of rent, fees or charges or other required payments
under this Agreement or in default under any of the terms,
covenants or provisions of this Agreement on its part to be
performed, in either case remaining uncured after the
expiration of any applicable notice and cure period(s), and
whether this Agreement shall be in full force and effect and
the Port Authority shall have served a notice of termination
pursuant to Section 24 of this Agreement.
In addition, the Port Authority shall have delivered to the
Lessee and the Trustee the fully executed Port Authority Consent to
NJEDA Subleases and there shall not have been a previous assignment
of this Agreement and the letting hereunder pursuant to Section 77
of this Agreement.
(d) Notwithstanding anything herein or in the Financing
Documents, the Leasehold Mortgage or any consent or approval of the
Port Authority thereto to the contrary, the Leasehold Mortgage and
the Reletting Rights shall become effective only upon the issuance
of the initial Bonds in an amount not less than the initial
Mortgage Amount, and the Leasehold Mortgage and the Reletting
Rights shall automatically terminate and end in any event upon the
earliest to occur of (1) the expiration, surrender or termination
of the Lease as to the Mortgaged Premises; it being understood
that, as set forth in Section 61 hereof (as amended in this
Supplement No. 17 to this Lease), the Lessee shall not have the
right to terminate the Lease without the consent of the Leasehold
Mortgagee so long as the Leasehold Mortgage is outstanding; (2) the
expiration, revocation or termination of the Port Authority Consent
to NJEDA Subleases as to the Mortgaged Premises pursuant to the
terms of such Consent, except (but only so long as the Lease and
the Lessee Guaranty remain in full force and effect) in the case of
revocation or termination by reason of the Lessee's rejection of
the said NJEDA Subleases, or any of them, in a Lessee Bankruptcy;
(3) the expiration or earlier termination or surrender of the NJEDA
Subleases as to the Mortgaged Premises, except (but only so long as
the Lease and the Lessee Guaranty remain in full force and effect)
in the case of termination by reason of the Lessee's rejection of
the said NJEDA Subleases in a Lessee Bankruptcy; (4) the expiration
or earlier termination or surrender of the NJEDA Financing Sublease
as to the Mortgaged Premises, except (but only so long as the Lease
and the Lessee Guaranty remain in full force and effect) in the
case of termination by reason of the Lessee's rejection of the said
NJEDA Financing Sublease in a Lessee Bankruptcy; (5) the expiration
or earlier termination or surrender of the NJEDA Sublease Agreement
as to the Mortgaged Premises, except (but only so long as the Lease
and the Lessee Guaranty remain in full force and effect) in the
case of termination by reason of the Lessee's rejection of the said
NJEDA Sublease Agreement in a Lessee Bankruptcy; (6) the date on
which a redemption, cancellation, defeasance, discharge or payment
of all the Bonds shall occur or on any other event which shall
result in none of the Bonds being Outstanding (within the meaning
of the Indenture); (7) the termination, surrender or expiration of
the Basic Lease; (8) the expiration of the Reletting Election
Period without the timely exercise by the Trustee in its capacity
as Leasehold Mortgagee of its election to exercise its Reletting
Rights by service of its Reletting Election Notice on the Port
Authority in accordance with the terms hereof; (9) the date of any
notice given by the Trustee in its capacity as Leasehold Mortgagee
stating its election not to exercise its Reletting Rights
hereunder; (10) the effective date of the letting of the Mortgaged
Premises hereunder, or any portion thereof, to an Approved
Successor Lessee, whether resulting from a foreclosure of the
Leasehold Mortgage, the exercise by the Leasehold Mortgagee of its
Reletting Rights, an assignment in lieu of foreclosure or
otherwise; (11) the Lease Assignment/Assumption Commencement Date;
and (12) the expiration or earlier termination or cancellation of
the Foreclosure Period.
(e) Without limiting Section 77 or any other term or provision
of this Agreement or any term or provision of the Port Authority
Consent to NJEDA Subleases, not less than five (5) business days
prior to the effective date of the proposed Leasehold Mortgage, the
Lessee shall submit to the Port Authority for its approval a copy
of the form of the proposed Leasehold Mortgage and of the Indenture
and the Lessee Guaranty with respect to the Bonds which the
Leasehold Mortgage is being given to secure. The Port Authority
will promptly advise the Lessee in writing whether or not the Port
Authority will consent to such proposed Leasehold Mortgage. On the
date of its execution of the Port Authority Consent to NJEDA
Subleases the Lessee shall deliver to the Port Authority a
conformed copy of the executed Leasehold Mortgage and of the
executed Lessee Guaranty and the executed Indenture.
(f) The Leasehold Mortgagee shall not assign or transfer the
Leasehold Mortgage to any entity or person whatsoever other than to
a trustee appointed pursuant to and in accordance with and subject
to the Indenture to replace the Trustee ("Successor Trustee");
provided that the Successor Trustee shall hold the Leasehold
Mortgage as Leasehold Mortgagee subject to all the terms and
provisions of this Section as if it were the original Trustee.
(g) Notwithstanding anything contained in the Leasehold
Mortgage or any consent or approval of the Port Authority thereto,
it is understood and agreed that the rights of the Leasehold
Mortgagee shall in all respects be as specified, and shall be
subject and subordinate to the terms, covenants, conditions and
provisions set forth, in this Agreement and to the terms, covenants
and conditions of the Port Authority Consent to NJEDA Subleases.
The terms, covenants, conditions and provisions of this Agreement
shall govern as between the Port Authority and the Lessee. As
between the Port Authority and the Leasehold Mortgagee, in the
event of any inconsistency between the terms, covenants, conditions
and provisions of this Agreement and the terms, covenants,
conditions and provisions of the Leasehold Mortgage or the
Indenture or any of the Financing Documents, the terms, covenants,
conditions and provisions of this Agreement shall control.
Notwithstanding any provisions of the Leasehold Mortgage to the
contrary, the Lessee for all purposes shall be deemed to be the
Lessee hereunder (subject to the Leasehold Mortgagee's Reletting
Rights herein granted) unless and until the Leasehold Mortgagee
shall have obtained an Approved Successor Lessee. The Leasehold
Mortgage shall make reference to the provisions of this Agreement
and shall provide that the Leasehold Mortgage and the Indenture and
the rights of the Leasehold Mortgagee thereunder with respect to
the Port Authority are and shall be in all respects subject and
subordinate to this Agreement.
(h) (1) Any approval or consent by the Port Authority
hereunder whether to the Leasehold Mortgage or to any assignment
thereof shall apply only to the specific transaction thereby
authorized and shall not relieve the Lessee or the Leasehold
Mortgagee from the requirement of obtaining the prior approval or
consent of the Port Authority to each and every further assignment
of the Leasehold Mortgage (except if otherwise expressly permitted
hereunder without such approval).
(2) Neither this Section nor the Leasehold Mortgage shall
prevent the Lessee hereunder from amending this Agreement without
the approval of the Leasehold Mortgagee; provided no amendment
shall impair the rights granted to Continental Airlines, Inc. as
the named Lessee hereunder to grant the Leasehold Mortgage to the
Leasehold Mortgagee or any of the Leasehold Mortgagee's Reletting
Rights hereunder or any of the Leasehold Mortgagee's rights and
obligations with respect thereto.
(i) (1) Except as expressly authorized in above paragraph (c)
of this Section 96 the
Lessee shall not mortgage the Lessee's interest in this Agreement
or the letting hereunder in whole or in part, or any portion of the
premises other than the portion which would constitute the
Mortgaged Premises, or the Lessee's subleasehold interests under
the NJEDA Subleases or the NJEDA Sublease Agreement in whole or in
part.
(2) Neither the Approved Successor Lessee nor any other
entity or person purchasing or succeeding to the leasehold
hereunder shall have any right to pledge or mortgage the leasehold
hereunder.
(j) If the Leasehold Mortgagee shall have given to the Port
Authority a written notice specifying its name and address together
with a conformed copy of the Leasehold Mortgage, the Port Authority
shall send to the Leasehold Mortgagee a copy of each notice of
default given under the Section of this Agreement entitled
"Termination by the Port Authority" or otherwise at the same time
as and whenever any such notice of default shall have been sent to
the Lessee, such copy to be addressed to the Leasehold Mortgagee at
the address last furnished by it to the Port Authority, and no
notice of default shall be deemed to have been given by the Port
Authority unless and until a copy thereof shall have been so given
to the Leasehold Mortgagee. The Lessee irrevocably directs that
the Port Authority accept, and the Port Authority agrees to accept,
the curing of such default with respect to the Mortgaged Premises
by the Leasehold Mortgagee as if and with the same force and effect
as though cured by the Lessee.
(k) Unless and until such time as it becomes the Lessee
hereunder or the "deemed Lessee" as described in paragraph (r) (2)
of this Section, the Leasehold Mortgagee, except to the extent
provided in paragraphs (j), (n)(2)(C) and (n)(3)(i) of this
Section, shall not have any right in or to the occupancy or use of
the Mortgaged Premises for the purposes set forth in this Agreement
or for any other purpose whatsoever, except to the extent necessary
to cure Lessee defaults in accordance with paragraphs (j),
(n)(2)(i)(C) and (n)(3)(i) of this Section. The Leasehold
Mortgagee shall not enter into or be entitled to enter into
possession of the Mortgaged Premises under this Agreement except to
the extent afforded to it under this Agreement.
(1) Lease Termination-Service of Notice of Termination:
(1) If the Port Authority shall elect to terminate the
letting of the premises under this Agreement pursuant to Section 24
of this Agreement entitled "Termination by the Port Authority" or
otherwise, then the Port Authority shall at the same time send a
copy of the written notice of such termination ("Notice of
Termination") to the Leasehold Mortgagee if it shall have become
entitled to notice as provided in paragraph (j) of this Section
(the date of the sending of such copy of said notice by the
Leasehold Mortgagee being herein called the "Notice of Termination
Service Date"). The Notice of Termination shall specify the
effective date of such termination (the "Notice of Termination
Effective Date"), which date must not be before the 31st day after
the Notice of Termination Service Date.
(2) The serving of the Notice of Termination by the Port
Authority on the Leasehold Mortgagee in accordance with the
foregoing shall trigger the Leasehold Mortgagee's Reletting Rights
solely with respect to the Mortgaged Premises and the commencement
of the Reletting Election Period (unless the Leasehold Mortgagee
has previously exercised its Reletting Rights and the Reletting
Election Period has previously commenced based on a Bonds Default
pursuant to paragraph (m) of this Section or a Bankruptcy Rejection
Date pursuant to paragraph (r) of this Section). The Leasehold
Mortgagee shall have the right to extend the Notice of Termination
Effective Date for a period constituting the initial ninety (90)
days of the Foreclosure Period (subject to the extensions thereof
as provided in paragraph (n) of this Section) provided that the
Leasehold Mortgagee shall serve its Reletting Election Notice on
the Port Authority on or prior to the end of the Reletting Election
Period stating the Leasehold Mortgagee's affirmative election to
exercise its Reletting Rights with respect to the Mortgaged
Premises, and provided, further, that the Leasehold Mortgagee
simultaneously with the giving of its Reletting Election Notice to
the Port Authority shall pay to the Port Authority the Leasehold
Mortgagee's Foreclosure Period Commencement Payments as defined and
set forth in paragraph (n) of this Section.
(3) In the event that prior to the Notice of Termination
Service Date there has previously occurred a Bonds Default pursuant
to paragraph (m) of this Section or a Bankruptcy Rejection Date
pursuant to paragraph (r) of this Section such subsequent
occurrence of the Notice of Termination Service Date ("Subsequent
Notice of Termination Service Date") shall not commence a new
Reletting Election Period or, if applicable, a new Foreclosure
Period and the subsequent Notice of Termination shall be deemed
stayed during the balance of the previously commenced Foreclosure
Period and such Foreclosure Period may continue (as the same may be
extended under paragraph (n) of this Section) if and only if the
Leasehold Mortgagee shall, in addition to its continued compliance
with all of the Leasehold Mortgagee's Foreclosure Period
Obligations including its continued payments of the Leasehold
Mortgagee's Foreclosure Period Payments, pay to the Port Authority
the Foreclosure Period Extension Fees as set forth in paragraph (n)
of this Section.
(m) Bonds Default:
(1) In the event the Lessee shall fail to make payment of
any and all amounts required when due under the Lessee Guaranty to
be paid by the Lessee as and for the payment of the principal,
premium and interest on the Bonds and said failure results in a
default under the Bonds ("Bonds Default"), the Leasehold
Mortgagee's Reletting Election Period shall be deemed to commence
upon the date of said Bonds Default ("Bonds Default Date"), but
only if such Bonds Default also constitutes an event of default
under the Leasehold Mortgage giving the Leasehold Mortgagee the
right to foreclose the Leasehold Mortgage and the Leasehold
Mortgagee serves its Reletting Election Notice on the Port
Authority prior to the expiration of said Reletting Election
Period; provided, further, however, that in the event either a
Notice of Termination Service Date or a Bankruptcy Rejection Date
occurs prior to a Bonds Default, such Bonds Default shall not
trigger a new Reletting Election Period or Foreclosure Period.
(2) After the written request of the Leasehold Mortgagee
to the Port Authority which may be made from time to time (but not
more frequently than once per calendar month) during the term of
the letting to the Lessee of the Mortgaged Premises up to the
occurrence of the earlier of (i) a Notice of Termination Service
Date and (ii) a Bankruptcy Rejection Date or Bonds Default Date,
the Port Authority shall promptly provide to the Leasehold
Mortgagee a statement of amounts invoiced by the Port Authority to
the Lessee during the sixty (60) day period preceding the date of
each request and setting forth the unpaid amounts, if any, owing or
estimated to be owing to the Port Authority by the Lessee under the
Lease at the date of the request; provided that the Port Authority
in supplying any such statement or statements to the Leasehold
Mortgagee shall do so without any warranty or representation to the
Leasehold Mortgagee and the Port Authority shall not be liable to
the Leasehold Mortgagee, the Lessee, Bondholders or any other party
or person with respect to any information contained or not
contained therein or the accuracy of the same provided it has
submitted such information in good faith (each such statement of
amounts invoiced, an "Information Statement"). In the event the
Indenture and the other Financing Documents expressly authorize the
Leasehold Mortgagee to declare a default under the Leasehold
Mortgage on the basis of (x) the failure of the Lessee to duly pay
to the Port Authority rentals, fees, charges and other amounts due
and owing under the Lease (y) the receipt by the Leasehold
Mortgagee of one or more Information Statements showing that the
said total unpaid amount exceeds Seven Million One Hundred Thousand
Dollars and No Cents ($7,100,000.00), and (z) the continued failure
of the Lessee to pay the said unpaid amount to the Port Authority
within twenty (20) days after the Lessee has received from the
Leasehold Mortgagee a written warning notice of Leasehold
Mortgagee's intention to declare a default under the Leasehold
Mortgage based on said failure of the Lessee, the declaration of
such default under the Leasehold Mortgage by the Leasehold
Mortgagee shall, for purposes hereof, constitute a Bonds Default
which shall trigger the Leasehold Mortgagee's Reletting Rights and
its Reletting Election Period as defined in and subject to the
foregoing subparagraph (1) of this paragraph (m). Neither the
provisions of this paragraph (m) nor any Information Statement
shall be deemed to impair, restrict, limit, alter or affect any
claim, right or remedy of the Port Authority under the Lease or
otherwise, including without limitation the right to serve a Notice
of Termination under the Lease, or to limit the amounts forming the
basis for any termination of the Lease by the Port Authority or for
which the Lessee may be liable under Section 27 of the Lease
entitled "Survival of the Obligations of the Lessee", nor shall the
same impose or create any liability on the Port Authority to, or be
the basis of any claim against the Port Authority by, the Lessee,
the Leasehold Mortgagee, the Bondholders or any of them, or any
other party or person with respect to the Information Statement
provided the Port Authority has provided the same in good faith,
nor shall any such Information Statement be binding on the Port
Authority or constitute or be deemed to constitute any waiver or
estoppel of any claim, right or remedy of the Port Authority.
(n) Leasehold Mortgagee's Foreclosure Period
Obligations/Foreclosure Period Extensions. The Trustee as
Leasehold Mortgagee shall have the following obligations upon the
commencement of and during the Foreclosure Period including all
extensions thereof (collectively," Leasehold Mortgagee's
Foreclosure Period Obligations"):
(1) Leasehold Mortgagee's Foreclosure Period Commencement
Payments/ delivery of Reletting Election Notice:
Any commencement of the Foreclosure Period whether
triggered by the delivery of a Reletting Election Notice following
a Notice of Termination Service Date or a Bankruptcy Rejection Date
or a Bonds Default shall be further conditioned on the payment of
the following by the Leasehold Mortgagee, and the Leasehold
Mortgagee shall pay, to the Port Authority simultaneously with the
Leasehold Mortgagee's service of the Reletting Election Notice the
following amounts ("Leasehold Mortgagee's Foreclosure Period
Commencement Payments") (provided that the Port Authority shall be
obligated to give the Leasehold Mortgagee at least ten (10) days'
prior written notice of the amounts due under this subparagraph
(n)(1) and all other subparagraphs under this Paragraph (n) except
as otherwise expressly provided herein):
(i) All amounts due and owing to the Port Authority
which have accrued for any and all periods up to the Reletting
Election Notice Service Date for Area C-3 rentals (Facility
Factor and Airport Services Factor) and Phase 1A Charges and
other similar charges for further roadway development under
this Agreement and any and all other amounts due and owing to
the Port Authority by the Lessee for services provided under
this Agreement by the Port Authority, including without
limitation utility, extermination and incineration services
and maintenance and repair services, if any, under Section 85
hereof or as additional rent and charges under Section 21
hereof; to the extent such amounts have not been paid to the
Port Authority by the Lessee prior to the commencement of the
Foreclosure Period.
(ii) All Allocated Activity Based Fees and Charges
due and owing to the Port Authority under this Agreement and
which have accrued for a period not in excess of sixty (60)
days up to the Reletting Election Notice Service Date;
provided that the Allocated Activity Based Fees and Charges
Triggering Date (as defined in subparagraph (2)(ii) of this
paragraph (n)) shall have occurred, to the extent all such
Allocated Activity Based Fees and Charges have not been paid
to the Port Authority by the Lessee prior to the commencement
of the Foreclosure Period.
(2) Leasehold Mortgagee's Foreclosure Period Current
Basis Payments/from and after the first (1st) day of the
Foreclosure Period:
(i) After the initial commencement of the
Foreclosure Period and at all times during the continuation of
the Foreclosure Period including any and all extensions
thereof (and in addition to the Foreclosure Period
Commencement Payments set forth in subparagraph (1) of this
paragraph (n) and in addition to the Foreclosure Period
Extension Fees set forth in subparagraphs (4), (5) and (6) of
this paragraph (n)) the Leasehold Mortgagee shall pay to the
Port Authority the following amounts on a current basis, as
and when due under this Agreement ("Leasehold Mortgagee's
Foreclosure Period Current Basis Payments"), to the extent
such amounts are not paid by Lessee:
(A)All Area C-3 rentals (Facility Factor and
Airport Services Factor) and Phase 1A Charges and other
similar charges for further roadway development under this
Agreement on a current basis as the same become due and
payable to the Port Authority under this Agreement
commencing as of the first day of the Foreclosure Period
with respect to the Mortgaged Premises and any and all
other amounts due and payable to the Port Authority under
this Agreement with respect to the Mortgaged Premises for
services provided by the Port Authority, including without
limitation utility, extermination and incineration
services and maintenance and repair services, if any under
Section 85 hereof or as additional rent and charges under
Section 21 hereof;
(B)All Allocated Activity Based Fees and Charges
on a current basis as the same become due and payable to
the Port Authority under this Agreement commencing as of
the first day of the Foreclosure Period but only if the
Allocated Activity Based Fees and Charges Triggering Date
as defined in subparagraph (2) (ii) of this paragraph (n)
occurred upon or after the commencement of the Foreclosure
Period and any and all Allocated Activity Based Fees and
Charges which accrued and remained unpaid during the
sixty (60) day period prior to the Allocated Activity
Based Fees and Charges Triggering Date, and the conditions
specified in subparagraph (2)(ii) of this paragraph (n)
continue to be satisfied;
(C)Any and all costs of fulfilling the Lessee's
obligations under the Lease as provided in Section 21
hereof during the Foreclosure Period with respect to
security, utilities, insurance and maintenance of the
Mortgaged Premises; and the amounts of said costs shall be
due and payable to the Port Authority by the Leasehold
Mortgagee within thirty (30) days after the Port Authority
sends to the Leasehold Mortgagee a notice or invoice
therefor, which notices or invoices the Port Authority may
send to the Leasehold Mortgagee from time to time.
(ii) The Leasehold Mortgagee's obligation to pay
Allocated Activity Based Fees and Charges shall commence upon
the "Allocated Activity Based Fees and Charges Triggering
Date" which shall be deemed to be the later to occur of both
(aa) the Reletting Election Notice Service Date and (bb)
either (x) the date the Port Authority commences a suit,
action or proceeding, summary or otherwise, to evict or
dispossess the Lessee from or to retake possession of the "C-1
and C-2 portions of the premises" (as defined in Paragraph 3
of this Supplement No. 17 to the Lease) or (y) the date on
which the Port Authority takes such other action or actions in
accordance with applicable law which have the effect of
preventing the use by the Lessee of the C-1 and C-2 portions
of the premises. The obligation of the Leasehold Mortgagee to
pay Allocated Activity Based Fees and Charges shall continue
throughout the Foreclosure Period and any all extensions
thereof as long as the Port Authority continues to diligently
pursue the suit, action or proceeding mentioned in the
foregoing clause (x) or has otherwise prevented Lessee's use
of the C-1 and C-2 portions of the Premises.
(iii)It is recognized that all or portions of amounts
comprising the Activity Based Fees and Charges may include or
may be calculated on activities of the Lessee outside of the
Mortgaged Premises, and accordingly it is agreed that the
following allocation provisions shall apply to determine
Allocated Activity Based Fees and Charges. (i) where such
amounts are capable of being determined with respect to the
Mortgaged Premises solely without the need of allocation or
apportionment, 100% of such amounts shall be paid by the
Leasehold Mortgagee; and (ii) where such amounts require
allocation or apportionment the same shall be allocated or
apportioned as follows: such fees and charges shall be
divided by the total number of aircraft gates then leased by
the Port Authority to the Lessee at the Airport and the
resulting quotient shall be multiplied by the total number of
aircraft gates constructed or to be constructed pursuant to
Section 93 hereof in the Mortgaged Premises (which for
purposes of this calculation shall not be less than the number
12, minus any gates that are permanently removed from
service).
(3) other Leasehold Mortgagee's Foreclosure Period
Obligations/ from and after the first (1st) day of the Foreclosure
Period:
(i) At all times during the Foreclosure Period the
Leasehold Mortgagee shall use all reasonable efforts to
preserve the value of the Mortgaged Premises hereunder until
it has possession of the Mortgaged Premises under the Lease,
and thereafter shall fulfill all obligations under the Lease
with respect to the preservation of the Mortgaged Premises;
(ii) Immediately upon the commencement of the
Foreclosure Period the Leasehold Mortgagee shall use
commercially reasonable efforts to obtain an Approved
Successor Lessee for the Mortgaged Premises for the balance of
the term hereunder or such lesser term as it proposes to
lease, subject to the consent of the Port Authority in
accordance with and subject to paragraphs (t) and (u) of this
Section; provided further, that if, within the Foreclosure
Period, the Leasehold Mortgagee identifies a Proposed
Successor Lessee for the Mortgaged Premises it shall give
prompt written notice thereof to the Port Authority including
all information described in paragraph (t) of this Section; it
being understood and agreed that any such Approved Successor
Lessee shall be obligated to pay to the Port Authority all the
rentals, fees and charges for the Mortgaged Premises under the
Lease including without limitation the Area C-3 rentals which
shall include all airport services factors at the rates
provided under this Agreement at the effective date of the
reletting; flight fees (Schedule C) as set forth in Section 53
hereof; Schedule B charges as set forth in Schedule B attached
to this Agreement; fuel gallonage fees (Schedule D) as set
forth in Section 56 hereof; the Monorail Fees as set forth in
Supplement No. 15 of the Lease and Schedule M thereof; the
Phase 1A Charges as set forth in Supplement No. 15 of the
Lease; and any other fees and charges then in effect under the
Lease relating to the use of the Mortgaged Premises; all of
which shall be applicable to and paid by the Approved
Successor Lessee during the reletting of the Mortgaged
Premises to the Approved Successor Lessee, and shall be in
addition to the Deferred Reletting Fee or the Deferred
Reletting Fee Rental, as the case may be, required to be paid
to the Port Authority as described in paragraph (u) of this
Section
(4) Initial Foreclosure Period / 91st to 180th days:
Upon any commencement of the Foreclosure Period whether
triggered by a Lease default (Notice of Termination or Bankruptcy
Rejection) or a Bonds Default the Leasehold Mortgagee shall (to the
extent permitted by law) promptly and diligently and in good faith
commence and continue and seek to complete proceedings to foreclose
upon the Leasehold Mortgage and, in the event the Lessee fails to
vacate the Mortgaged Premises, including eviction of the Lessee
therefrom; provided that in the event the Leasehold Mortgagee
continues diligently to continue and complete the foreclosure
proceedings including eviction of the Lessee and, through no fault
of its own, is unable to complete said foreclosure proceedings
including eviction of the Lessee at the end of the ninetieth (90th)
day from the initial commencement of the Foreclosure Period, then,
provided that not less than five (5) days prior to the expiration
of said initial 90th-day period the Leasehold Mortgagee shall give
written notice to the Port Authority, which notice shall contain
the Leasehold Mortgagee's certification of the foregoing to the
Port Authority including the status of the aforesaid foreclosure
proceedings, the initial Foreclosure Period shall be deemed
extended for an additional 90 days which shall expire on the
earlier of (aa) the Lease Assignment/Assumption Commencement Date
or (bb) the date which constitutes the one hundred and eightieth
(180th) day from the initial commencement of the Foreclosure Period
subject to the extension under subparagraph (5) of this paragraph
(n); subject, however, to the further condition that during the
said 91st to 180th days of the Foreclosure Period the Leasehold
Mortgagee shall perform all the Leasehold Mortgagee's Foreclosure
Period Obligations including without limitation paying to the Port
Authority all of the Leasehold Mortgagee's Foreclosure Period
Current Basis Payments.
(5) Initial Foreclosure Period / 181st to 270th days/
Foreclosure Period Extension Fee:
In the event the Leasehold Mortgagee, during the initial
90 days of the Foreclosure Period, as aforesaid, commenced in good
faith and thereafter at all times diligently continued proceedings
to foreclose upon the Leasehold Mortgage including eviction of the
Lessee, and the Leasehold Mortgagee, through no fault of its own,
is unable to complete said foreclosure proceedings including
eviction of the Lessee at the end of the 180th day from the
commencement of the Foreclosure Period, then, provided that not
less than five (5) days prior to the expiration of said 180th day
period the Leasehold Mortgagee shall give written notice to the
Port Authority, which notice shall contain the Leasehold
Mortgagee's certification of the foregoing to the Port Authority
including the status of the aforesaid foreclosure proceedings and
subject to the further conditions set forth below, the Foreclosure
Period shall be deemed extended for an additional 90 days which
shall expire on the earlier of (aa) the Lease Assignment/Assumption
Commencement Date or (bb) the date which constitutes the 270th day
from the initial commencement of the Foreclosure Period.
The foregoing, however, shall be subject to the following further
conditions:
(i) that during the said 181st to 270th days of the
Foreclosure Period the Leasehold Mortgagee shall perform all
the Leasehold Mortgagee's Foreclosure Period Obligations
including without limitation paying to the Port Authority all
of the Leasehold Mortgagee's Foreclosure Period Current Basis
Payments; and
(ii) that the Leasehold Mortgagee shall pay to the
Port Authority for the said 181st to 270th day period a
Foreclosure Period extension Fee in the amount of Two Million
Four Hundred Seventy-two Thousand Dollars and No Cents
($2,472,000.00); which amount is based on a preliminary
determination by the Lessee of the percentage (82.4%) that its
estimated Mortgage Amount (estimated at Five Hundred Forty-
seven Million Four Hundred Thirty-six Thousand Four Hundred
Twenty-four Dollars and No Cents ($547,436,424.00)) bears to
its estimated total bond financing amounts of Six Hundred
Sixty-four Million Four Hundred Fifty-nine Thousand Three
Hundred Ninety Dollars and No Cents ($664,459,390.00) which
estimated total consists of the said estimated Mortgage Amount
plus estimated bond financing amounts of the Lessee's proposed
development projects at the Airport under lease ▇▇▇-040
(hangar 55) and lease ANB-028 (cargo building). The said
amount of the Foreclosure Period Extension Fee shall be
subject to adjustment as follows: after all of said actual
bond financing amounts are final based on the final pricing of
the Bonds and the final pricing of the bonds for the said
other development projects under leases ▇▇▇-040 and ANB-028,
the said amount of the Foreclosure Period Extension Fee shall
be equal to the product resulting from multiplying (x) the sum
of Three Million Dollars and No Cents ($3,000,000.00) times
(y) a fraction the numerator of which shall be the Mortgage
Amount set forth in paragraph (a)(29) of this Section 96 and
denominator of which shall be the sum of the said Mortgage
Amount plus the mortgage amounts defined and set forth in the
said leases ▇▇▇-040 and ANB-028. The said Foreclosure Period
Extension Fee, shall be payable to the Port Authority in three
equal 30-day installments; the first such installment shall be
due and payable by the Leasehold Mortgagee at the same time
the leasehold Mortgagee delivers its aforesaid 5-day
certification notice to the Port Authority; and the next two
installments shall be due and payable by the Leasehold
Mortgagee on the 210th day and on the 240th day of the
Foreclosure Period; provided, however, that subject to the
provisions of subparagraph (2) of paragraph (t) of this
Section, after the occurrence of the lease
Assignment/Assumption Commencement Date (as defined in
subparagraph (2) of paragraph (t) of this Section) no
installment(s) for any subsequent 30-day period of this
extension shall be payable.
The foregoing Foreclosure Period Extension Fee payments
shall apply as stated above where the Foreclosure Period initially
commenced on any basis other that the sole occurrence of a Bonds
Default; however, the same shall be subject the provisions of
subparagraph (7) of this paragraph (n) in the event the Foreclosure
Period initially commenced solely on the basis of a Bonds Default
and thereafter a "Subsequent Non-Bonds Default" as defined in
subparagraph (7) of this paragraph (n) occurred during the
Foreclosure Period.
(6) Foreclosure Period Additional Extensions -- to
maximum aggregate total of 720 days/ Foreclosure Period Extension
Fees:
Pre-conditions to additional extensions. It is expressly
understood and agreed that unless each of the following conditions
are satisfied prior to the expiration of the 270th day of the
Foreclosure Period (as extended under the foregoing subparagraph
(5)) there shall be no further extension of the Foreclosure Period
beyond the 270th day: (aa) the Leasehold Mortgagee has previously
identified and proposed to the Port Authority a Proposed Successor
Lessee pursuant to and in accordance with the terms and provisions
of paragraph (t) of this Section and in full compliance with all of
the requirements and conditions of said paragraph (t), (bb) such
Proposed Successor Lessee meets all of the requirements for
becoming an Approved Successor Lessee, as determined by, and to the
satisfaction of, the Port Authority, (cc) such Proposed Successor
Lessee, the Leasehold Mortgagee, the Lessee (if required pursuant
to paragraph (t) hereof) and the Port Authority have executed the
Lease Assignment/ Assumption and Consent Agreement subject to, and
under which the Proposed Successor Lessee will become the Approved
Successor Lessee commencing only upon, the successful completion by
the Leasehold Mortgagee of the foreclosure and eviction proceedings
prior to the expiration of the Foreclosure Period (if and as
extended not to exceed an aggregate maximum total of 720 days).
The foregoing pre-conditions shall be in addition to the conditions
set forth below which the Leasehold Mortgagee must satisfy with
respect to each of the following additional extensions of the
Foreclosure Period.
(A) Foreclosure Period extension 271st to 360th days/
Foreclosure Period Extension Fee:
In the event the Leasehold Mortgagee, during the
initial 90 days of the Foreclosure Period, as aforesaid, commenced
in good faith and thereafter at all times diligently continued
proceedings to foreclose the Leasehold Mortgage and to evict the
Lessee from the Mortgaged Premises and the Leasehold Mortgagee,
through no fault of its own, is unable to complete said foreclosure
proceedings including eviction of the Lessee from the Mortgaged
Premises at the end of the 270th day from the commencement of the
Foreclosure Period and the pendency of the foreclosure proceedings
in the State of New Jersey is the sole impediment to such
completion, then, provided that not less than five (5) days prior
to the expiration of said 270th-day period the Leasehold Mortgagee
shall give written notice to the Port Authority, which notice shall
contain the Leasehold Mortgagee's certification of the foregoing to
the Port Authority including the status of the aforesaid
foreclosure proceedings, the Foreclosure Period shall be deemed
extended for an additional 90 days which shall expire on the
earlier of (aa) the Lease Assignment/Assumption Commencement Date
or (bb) the date which constitutes 360th day from the commencement
of the Foreclosure Period; subject, however, to the following
further conditions:
(i) that during the said 271st to 360th day
extension of the Foreclosure Period the Leasehold Mortgagee
shall perform all of the Leasehold Mortgagee's Foreclosure
Period Obligations including without limitation paying to the
Port Authority all of the Leasehold Mortgagee's Foreclosure
Period Current Basis Payments; and
(ii) that the Leasehold Mortgagee shall pay to the
Port Authority for the said 271st to 360th day extension a
Foreclosure Period Extension Fee in the amount of Two Million
Four Hundred Seventy-two Thousand Dollars and No Cents
($2,472,000.00); which amount is based on a preliminary
determination by the Lessee of the percentage (82.4%) that its
estimated Mortgage Amount (estimated at Five Hundred Forty-
seven Million Four Hundred Thirty-six Thousand Four Hundred
Twenty-four Dollars and No Cents ($547,436,424.00) bears to
its estimated total bond financings amounts of Six Hundred
Sixty-four Million Four Hundred Fifty-nine Thousand Three
Hundred Ninety Dollars and No Cents ($664,459,390.00) which
estimated total consists of the said estimated Mortgage Amount
plus estimated bond financing amounts of the Lessee's proposed
development projects at the Airport under lease ▇▇▇-040
(hangar 55) and lease ANB-028 (cargo building). The said
amount of the Foreclosure Period Extension Fee shall be
subject to adjustment as follows: after all of said actual
bond financing amounts are final based on the final pricing of
the Bonds and the final pricing of the bonds for the said
other development projects under leases ▇▇▇-040 and ANB-028,
the said amount of the Foreclosure Period Extension Fee shall
be equal to the product resulting from multiplying (x) the sun
of Three Million Dollars and No Cents ($3,000,000.00) times
(y) a fraction the numerator of which shall be the Mortgage
Amount set forth in paragraph (a) (29) of this Section 96 and
denominator of which shall be the sum of the said Mortgage
Amount plus the mortgage amounts defined and set forth in the
said leases ▇▇▇-040 and ANB-028. The said Foreclosure Period
Extension Fee shall be payable to the Port Authority in three
equal 30-day installments; the first such installment shall be
due and payable by the Leasehold Mortgagee at the same time
the Leasehold Mortgagee delivers its aforesaid 5-day
certification notice to the Port Authority; and the next two
installments shall be due and payable by the Leasehold
Mortgagee on the 301st day and on the 331st day of the
Foreclosure Period; provided, however, that, subject to the
provisions of subparagraph (2) of paragraph (t) of this
Section, after the occurrence of the Lease
Assignment/Assumption Commencement Date (as defined in
subparagraph (2) of paragraph (t) of this Section) no
installment(s) for any subsequent 30-day period of this
extension shall be payable.
The foregoing Foreclosure Period Extension Fee payments
shall apply as stated above where the Foreclosure Period initially
commenced on any basis other that the sole occurrence of a Bonds
Default; and the same shall be subject to the provisions of
subparagraph (7) of this paragraph (n) in the event the Foreclosure
Period initially commenced solely on the basis of a Bonds Default
and thereafter a "Subsequent Non-Bonds Default" as defined in
subparagraph (7) of this paragraph (n) occurred during the
Foreclosure Period.
(B) Foreclosure Period additional extension 361st to
540th days / Foreclosure Period Extension Fee:
In the event the Leasehold Mortgagee, during the
initial 90 days of the Foreclosure Period, as aforesaid, commenced
in good faith and thereafter at all times diligently continued
proceedings to foreclose the Leasehold Mortgage including eviction
of the Lessee from the Mortgaged Premises and the Leasehold
Mortgagee, through no fault of its own, is unable to complete said
foreclosure proceedings including eviction of the Lessee from the
Mortgaged Premises at the end of the 360th day from the
commencement of the Foreclosure Period and the pendency of the
foreclosure proceedings in the State of New Jersey is the sole
impediment to such completion, then, provided that not less than
five (5) days prior to the expiration of said 360th day period the
Leasehold Mortgagee shall give written notice to the Port
Authority, which notice shall contain the Leasehold Mortgagee's
certification of the foregoing to the Port Authority including the
status of the aforesaid foreclosure proceedings and subject to the
further conditions set forth below, the Foreclosure Period shall be
deemed extended for an additional period which shall expire on the
earlier of (aa) the Lease Assignment/Assumption Commencement Date
or (bb) the date which constitutes the 540th day from the initial
commencement of the Foreclosure Period; subject, however, to the
following further conditions:
(i) that during the said 361st to 540th day
extension of the Foreclosure Period the Leasehold Mortgagee
shall perform all of the Leasehold Mortgagee's Foreclosure
Period Obligations including without limitation paying to the
Port Authority all of the Leasehold Mortgagee's Foreclosure
Period Current Basis Payments; and
(ii) that the Leasehold Mortgagee shall pay to the
Port Authority for the said 361st to 540th day extension a
Foreclosure Period Extension Fee in the amount of Nine Million
Eight Hundred Eighty-eight Thousand Dollars and No Cents
($9,888,000.00); which amount is based on a preliminary
determination by the Lessee of the percentage (82.4%) that its
estimated Mortgage amount (estimated at Five Hundred Forty-
seven Million Four Hundred Thirty-six Thousand Four Hundred
Twenty-four Dollars and No Cents ($547,436,424.00)) bears to
its estimated total bond financings amounts of Six Hundred
Sixty-four Million Four Hundred Fifty-nine Thousand Three
Hundred Ninety Dollars and No Cents ($664,459,390.00) which
estimated total consists of the said estimated Mortgage Amount
plus estimated bond financing amounts of the Lessee's proposed
development projects at the Airport under lease ▇▇▇-040
(hangar 55) and lease ANB-028 (cargo building). The said
amount of the Foreclosure Period Extension Fee shall be
subject to adjustment as follows: after all of said actual
bond financing amounts are final based on the final pricing of
the Bonds and the final pricing of the bonds for the said
other development projects under leases ▇▇▇-040 and ANB-028,
the said amount of the Foreclosure Period Extension Fee shall
be equal to the product resulting from multiplying (x) the sum
of Twelve Million Dollars and No Cents ($12,000,000.00) times
(y) a traction the numerator of which shall be the Mortgage
Amount set forth in paragraph (a) (29) of this Section 96 and
denominator of which shall be the sum of the said Mortgage
Amount plus the mortgage amounts defined and set forth in the
said leases ▇▇▇-040 and ANB-028. The said Foreclosure Period
Extension Fee shall be payable to the Port Authority in six
equal 30-day installments; the first such installment shall be
due and payable by the Leasehold Mortgagee at the same time
the Leasehold Mortgagee delivers its aforesaid 5-day
certification notice to the Port Authority; and the next five
installments shall be due and payable by the Leasehold
Mortgagee on the 391st day, on the 421st day, on the 451st
day, on the 481st day, and on the 511th day of the Foreclosure
Period; provided, however, that, subject to the provisions of
subparagraph (2) of paragraph (t) of this Section, after the
occurrence of the Lease Assignment/Assumption Commencement
Date (as defined in subparagraph (2) of paragraph (t) of this
Section) no installment(s) for any subsequent 30-day period of
this extension shall be payable.
The foregoing Foreclosure Period Extension Fee payments
shall apply as stated above where the Foreclosure Period initially
commenced on any basis other that the sole occurrence of a Bonds
Default; and the same shall be subject to the provisions of
subparagraph (7) of this paragraph (n) in the event the Foreclosure
Period initially commenced solely on the basis of a Bonds Default
and thereafter a "Subsequent Non-Bonds Default" as defined in
subparagraph (7) of this paragraph (n) occurred during the
Foreclosure Period.
(C) Foreclosure Period final extension 541st to 720th
days / Foreclosure Period Extension Fee:
In the event the Leasehold Mortgagee, during the
initial 90 days of the Foreclosure Period, as aforesaid, commenced
in good faith and thereafter at all times diligently continued
proceedings to foreclose the Leasehold Mortgage including eviction
of the Lessee from the Mortgaged Premises and the Leasehold
Mortgagee, through no fault of its own, is unable to complete said
foreclosure proceedings including eviction of the Lessee from the
Mortgaged Premises at the end of the 540th day from the
commencement of the Foreclosure Period and the pendency of the
foreclosure proceedings in the State of New Jersey is the sole
impediment to such completion, then, provided that not less than
five (5) days prior to the expiration of said 540th day period the
Leasehold Mortgagee shall give written notice to the Port
Authority, which notice shall contain the Leasehold Mortgagee's
certification of the foregoing to the Port Authority including the
status of the aforesaid foreclosure proceedings, the Foreclosure
Period shall be deemed extended for a final additional period which
shall expire on the earlier of (aa) the Lease Assignment/Assumption
Commencement Date or (bb) the date which constitutes the 720th day
from the initial commencement of the Foreclosure Period; subject,
however, to the following further conditions:
(i) that during the said 541st to 720th day
extension of the Foreclosure Period the Leasehold Mortgagee
shall perform all of the Leasehold Mortgagee's Foreclosure
Period Obligations including without limitation paying to the
Port Authority all of the Leasehold Mortgagee's Foreclosure
Period Current Basis Payments; and
(ii) that the Leasehold Mortgagee shall pay to the
Port Authority for the said 541st to 720th day extension a
Foreclosure Period Extension Fee in the amount of Fourteen
Million Eight Hundred Thirty-two Thousand Dollars and No Cents
($14,832,000.00); which amount is based on a preliminary
determination by the Lessee of the percentage (82.4%) that its
estimated Mortgage Amount (estimated at Five Hundred Forty-
seven Million Four Hundred Thirty-six Thousand Four Hundred
Twenty-four Dollars and No Cents ($547,436,424.00)) bears to
its estimated total bond financings amounts of Six Hundred
Sixty-four Million Four Hundred Fifty-nine Thousand Three
Hundred Ninety Dollars and No Cents ($664,459,390.00) which
estimated total consists of the said estimated Mortgage Amount
plus estimated bond financing amounts of the Lessee's proposed
development projects at the Airport under lease ▇▇▇-040
(hangar 55) and lease ANB-028 (cargo building). The said
amount of the Foreclosure Period Extension Fee shall be
subject to adjustment as follows: after all of said actual
bond financing amounts are final based on the final pricing of
the Bonds and the final pricing of the bonds for the said
other development projects under leases ▇▇▇-040 and ANB-028,
the said amount of the Foreclosure Period Extension Fee shall
be equal to the product resulting from multiplying (x) the sum
of Eighteen Million Dollars and No Cents ($18,000,000.00)
times (y) a fraction the numerator of which shall be the
Mortgage Amount set forth in paragraph (a) (29) of this
Section 96 and denominator of which shall be the sum of the
said Mortgage Amount plus the mortgage amounts defined and set
forth in the said leases ▇▇▇-040 and ANB-028. The said
Foreclosure Period Extension Fee shall be payable to the Port
Authority in six equal 30-day installments; the first such
installment shall be due and payable by the Leasehold
Mortgagee at the same time the Leasehold Mortgagee delivers
its aforesaid 5-day certification notice to the Port
Authority; and the next five installments shall be due and
payable by the Leasehold Mortgagee on the 571st day, on the
601st day, on the 631st day, on the 661st day, and on the
691st day of the Foreclosure Period; provided, however, that,
subject to the provisions of subparagraph (2) of paragraph (t)
of this Section, after the occurrence of the Lease
Assignment/Assumption Commencement Date (as defined in
subparagraph (2) of paragraph (t) of this Section) no
installment(s) for any subsequent 30-day period of this
extension shall be payable.
The foregoing Foreclosure Period Extension Fee payments
shall apply as stated above where the Foreclosure Period initially
commenced on any basis other that the sole occurrence of a Bonds
Default; and the same shall be subject to the provisions of
subparagraph (7) of this paragraph (n) in the event the Foreclosure
Period initially commenced solely on the basis of a Bonds Default
and thereafter a "Subsequent Non-Bonds Default" as defined in
subparagraph (7) of this paragraph (n) occurred during the
Foreclosure Period.
(7) Foreclosure Period Extension Fees / initial Bonds
Default followed by a Lease Termination or Bankruptcy Rejection
Date.
(i) For purposes of this subparagraph (7) the term
"Subsequent Non-Bonds Default" shall mean the occurrence of either
a Notice of Termination Service Date or a Bankruptcy Rejection Date
(whichever is first to occur) subsequent to the initial
commencement of the Foreclosure Period which commencement was based
solely on the occurrence of a Bonds Default. In the event that the
Foreclosure Period initially commences as a result solely of a
Bonds Default, the Foreclosure Period Extension Fees shall not be
payable unless and until there occurs a Subsequent Non-Bonds
Default; provided that such Subsequent Non-Bonds Default shall
neither commence a new Foreclosure Period nor extend the total
aggregate Foreclosure Period (including all available extensions)
beyond the allowable maximum aggregate total of 720 days. In the
event of such Subsequent Non-Bonds Default the obligation of the
Leasehold Mortgagee to pay to the Port Authority the Foreclosure
Period Extension Fees set forth in subparagraphs (5) and (6) (A),
(B) and (C) of this paragraph (n) shall be deemed to commence and
at the installment rate determined in accordance with the
following: if the Subsequent Non-Bonds Default occurs during the
initial 90 days after the commencement the Foreclosure Period the
actual date of said Subsequent Non-Bonds Default shall be treated
as day 1 of the Foreclosure Period and the Foreclosure Period
Extension Fees set forth above shall commence on the 181st day
following the date of said Subsequent Non-Bonds Default at the
applicable 30-day installment rate in accordance with the
subparagraph (5) of this paragraph (n); if such Subsequent Non-
Bonds Default occurs after the 90th day of the Foreclosure Period
the 90th day of the Foreclosure Period shall be treated as day 1 of
the Foreclosure Period and the Foreclosure Period Extension Fees
shall, where the Subsequent Non-Bonds Default occurs between the
91st and the 270th days of the Foreclosure Period, commence on the
271st day of the Foreclosure Period at the 30-day installment rate
applicable on the 181st day thereof (271 minus 90); and where the
Subsequent Non-Bonds Default occurs between the 271st and the 720th
days of the Foreclosure Period the Foreclosure Period Extension
Fees shall commence on the actual date of the Subsequent Non-Bonds
Default at the 30-day installment rate applicable on the 90th day
preceding such actual date.
[For illustrative purposes only the following two
illustrations of the foregoing are provided:
Illustration 1. if the Foreclosure Period commenced
based on a Bonds Default only and the Subsequent Non-Bonds
Default occurred on the 20th day after such commencement of
the Foreclosure Period, the 20th day of the Foreclosure Period
would be treated as day 1 for purposes of the determination of
the applicable Foreclosure Period Extension Fee and the
obligation of the Leasehold Mortgagee to pay to the Port
Authority the Foreclosure Period Extension Fees would commence
on the 200th day of the Foreclosure Period at the 30-day
installment rate set forth in subparagraph (5) of this
paragraph (n) (the 181st-270th day installment rate);
alternatively, if the Subsequent Non-Bonds Default occurred on
the 150th day after such commencement of the Foreclosure
Period, the 90th day of the Foreclosure Period shall be
treated as day 1 and said 150th day would be treated as day 60
for purposes of the determination of the applicable
Foreclosure Period Extension Fee and the obligation of the
Leasehold Mortgagee to pay to the Port Authority the
Foreclosure Period Extension Fees would commence 121 days
thereafter (i.e. on the 271st day of the Foreclosure Period)
at the 30-day installment rate applicable on the 181st day as
set forth in subparagraph (5) of this paragraph (n) (the
181st-270th days rate) and continue thereafter during the
Foreclosure Period and payable on the first day of each 30-day
period thereafter occurring during the Foreclosure Period at
the 30-day installment rates set forth in subparagraphs (6)
(A), (B) and (C) of this paragraph (n).
Illustration 2. if the Foreclosure Period commenced
based on a Bonds Default only and the Subsequent Non-Bonds
Default occurred on the 70th day after such commencement of
the Foreclosure Period, the 70th day of the Foreclosure Period
would be treated as day 1 for purposes of the determination of
the applicable Foreclosure Period Extension Fee and the
obligation of the Leasehold Mortgagee to pay to the Port
Authority the Foreclosure Period Extension Fees would commence
on the 251st, day of the Foreclosure Period at the 30-day
installment rate set forth in subparagraph (5) of this
paragraph (n) (the 181st-270th installment rate) and continue
thereafter during the Foreclosure Period and payable on the
first day of each 30-day period thereafter occurring during
the Foreclosure Period at the 30-day installment rates set
forth in subparagraphs (6) (A), (B) and (C) of this paragraph
(n); alternatively, if the Foreclosure Period commenced based
on a Bonds Default only and the Subsequent Non-Bonds Default
occurred on the 600th day after such commencement of the
Foreclosure Period, the 90th day of the Foreclosure Period
shall be treated as day 1 and the said 600th, day would be
treated as day 510 for purposes of the determination of the
applicable Foreclosure Period Extension Fee and the obligation
of the Leasehold Mortgagee to pay to the Port Authority the
Foreclosure Period Extension Fees would commence on the 600th
day of the Foreclosure Period at the 30-day installment rate
which would be in effect on the 510th day as set forth in
subparagraph (6) of this paragraph (n) (the 361st - 540th days
rate) and continue thereafter during the Foreclosure Period
and payable on the first day of each 30-day period thereafter
occurring during the Foreclosure Period at the 30-day
installment rates set forth in subparagraphs (6) (B) and (C)
of this paragraph (n).]
(ii) The Leasehold Mortgagee shall pay to the Port
Authority the Foreclosure Period Extension Fees in the monthly
installments determined in accordance with the foregoing
immediately upon the commencement date established in accordance
with the foregoing and on the first day of each 30-day period
thereafter occurring during the Foreclosure Period.
(iii) The foregoing provisions of this subparagraph
(7), however, shall not in any event extend, or be construed to
extend, the Foreclosure Period beyond the maximum permissible
aggregate total of 720 days (including all extensions) from the
initial commencement date of the Foreclosure Period.
(o) (1) The failure of the Leasehold Mortgagee to pay the
Foreclosure Period Commencement Payments when due shall result in
the automatic cancellation of the Leasehold Mortgagee's Reletting
Rights (and of any Foreclosure Period) and of the Leasehold
Mortgage, such cancellation to be deemed effective as of the
Reletting Election Notice Service Date and there shall be no
further Reletting Rights or Leasehold Mortgage with respect to the
Mortgaged Premises hereunder and any Notice of Termination
previously stayed shall become fully effective as described below.
The failure of the Leasehold Mortgagee to timely pay any of the
Leasehold Mortgagee's Foreclosure Period Payments or to fully and
duly perform any of the Leasehold Mortgagee's Foreclosure Period
Obligations shall result in the termination of the Foreclosure
Period and the Reletting Rights and the Leasehold Mortgage
automatically without any further act on the part of the Port
Authority and any Notice of Termination previously stayed shall
become fully effective as described below. The failure of the
Leasehold Mortgagee to pay any Foreclosure Period Extension Fee
when due shall result in the automatic termination and non-
extension of the Foreclosure Period and the automatic termination
of the Leasehold Mortgage and the Reletting Rights without any
further act on the part of the Port Authority and any Notice of
Termination previously stayed shall become fully effective as
described below. Notwithstanding anything herein to the contrary
but without limiting subparagraph (2) below or paragraph (s) of
this Section, the sole right or remedy of the Port Authority for
the failure of the Leasehold Mortgagee to pay the Leasehold
Mortgagee's Foreclosure Period Payments shall be the cancellation
or termination (including non-extension) of the Leasehold
Mortgagee's Reletting Rights (and of any Foreclosure Period) and of
the Leasehold Mortgage.
(2) Upon any such termination or cancellation of the
Foreclosure Period or any non-extension of the Foreclosure Period,
the Port Authority's termination under the Notice of Termination
shall be deemed effective with respect to the Mortgaged Premises
and the Lease with respect to the Mortgaged Premises shall be
deemed terminated effective immediately on said expiration,
termination or cancellation of the Foreclosure Period in accordance
with the Section of the Lease entitled "Termination by the Port
Authority" and the Port Authority, in addition to pursuing any or
all of its rights and remedies under the Lease, or otherwise, shall
be entitled to elect to use, alter or demolish any of the
improvements on the Mortgaged Premises free of any claim, right or
interest of the Lessee, the Trustee or the Bondholders.
(p) During the Foreclosure Period, as to any and all portions
of the Mortgaged Premises which the Lessee has vacated or from
which the Lessee has been evicted, the Port Authority, until such
time as the Trustee obtains an Approved Successor Lessee, may use
or grant to other Aircraft Operators the use of portion or portions
of the Mortgaged Premises on a temporary basis, which use shall be
deemed a subuse under this Agreement and shall not impair or limit
any of obligations or liabilities of the Lessee or the Leasehold
Mortgagee; any net amount received by the Port Authority (after
deducting all expenses, costs and disbursements incurred or paid by
the Port Authority in connection therewith) shall be credited to
the obligations of the Lessee. No such subuse shall be or be
construed to be an acceptance of a surrender or a waiver of any
claims, rights or remedies of the Port Authority or to be a
reletting by the Leasehold Mortgagee or to limit the Reletting
Rights of the Leasehold Mortgagee under this Section.
(q) In the event that at the expiration of the Foreclosure
Period the Trustee has failed to obtain an Approved Successor
Lessee for the Mortgaged Premises in accordance with and subject to
paragraphs (t) and (u) of this Section, the Reletting Rights and
the Leasehold Mortgage shall terminate automatically and the
Trustee shall have no further rights or obligations with respect to
reletting, the Port Authority's termination under the Notice of
Termination shall be deemed effective with respect to the Mortgaged
Premises and the Lease with respect to the Mortgaged Premises shall
be deemed terminated effective immediately on said expiration of
the Foreclosure Period in accordance with the Section of the Lease
entitled "Termination by the Port Authority" and the Port
Authority, in addition to pursuing any or all of its rights and
remedies under the Lease, or otherwise, shall be entitled to elect
to use, alter or demolish any of the improvements on the Mortgaged
Premises free of any claim, right or interest of the Lessee, the
Trustee or the Bondholders.
(r) Lease Default-Lessee Bankruptcy
(1) (i)In the event of the occurrence of a Lessee
Bankruptcy and the Foreclosure Period has not previously
commenced,
(A)if the Lessee as debtor in possession or the
bankruptcy trustee assumes and assigns the Lease to an
assignee which assignee also assumes the Lease subject to
the encumbrance created by the Leasehold Mortgage (by
operation of law or otherwise) (whether or not such
assignee also assumes the NJEDA Subleases and the Lessee's
obligations to pay the principal, redemption premium and
interest on any of the Bonds) and there are then Bonds
outstanding then the Reletting Rights of the Leasehold
Mortgagee and the Leasehold Mortgage shall continue to
obtain and apply to the tenancy of said assignee of the
assigned Lease of the Mortgaged Premises with Reletting
Rights to a new Foreclosure Period as to such assignee in
accordance with and subject to this Section;
(B) [INTENTIONALLY OMITTED]
(C) if the Lessee as debtor in possession or
the bankruptcy trustee rejects the Lease, then the
Reletting Election Period shall commence upon the
Bankruptcy Rejection Date and the provisions of paragraph
(n) hereof shall apply. For purposes hereof the term
"Bankruptcy Rejection Date" shall mean the later of (x)
the date set forth in the order of the bankruptcy court
as the effective date thereof for the rejection (or
deemed rejection) of the Lease by the Lessee and (y) the
actual date of such order of the bankruptcy court, and
said Bankruptcy Rejection Date shall trigger the
Reletting Election Period, provided that the Leasehold
Mortgagee shall submit to the Port Authority its
Reletting Election Notice stating its election to
exercise its Reletting Rights under this Agreement, as
above described, within thirty (30) days of the
Bankruptcy Rejection Date; and provided, further,
however, that the foregoing shall not constitute any
waiver, impairment or limitation of any claims, rights or
remedies of the Port Authority with respect to such
rejection of the Lease or the Lessee Bankruptcy. The
foregoing shall not limit the rights granted hereunder to
the Leasehold Mortgagee.
(ii) In the event of the occurrence of a Lessee
Bankruptcy and the Foreclosure Period has previously
commenced,
(A) if the Lessee as debtor in possession or
the bankruptcy trustee assumes and assigns the Lease to
an assignee which assignee also assumes the Lease subject
to the encumbrance created by the Leasehold Mortgage (by
operation of law or otherwise) (whether or not such
assignee also assumes the NJEDA Subleases and the
Lessee's obligations to pay the principal, redemption
premium and interest on the Bonds) and there are then
Bonds outstanding then the Reletting Rights of the
Leasehold Mortgagee and the Leasehold Mortgage shall
continue to obtain and apply to the tenancy of said
assignee of the assigned Lease of the Mortgaged Premises
with Reletting Rights to a new Foreclosure Period as to
such assignee in accordance with and subject to this
Section;
(B) [INTENTIONALLY OMITTED]
(C) if the Lessee as debtor in possession or
the bankruptcy trustee rejects the Lease, then the
running of the previously commenced Foreclosure Period
shall be deemed suspended as of the date of the Lessee
Bankruptcy and shall resume as of the occurrence of a
Bankruptcy Rejection Date; provided, however, that the
foregoing shall not constitute any waiver, impairment or
limitation of any claims, rights or remedies of the Port
Authority with respect to such rejection of the Lease or
with respect to a Lessee Bankruptcy. The foregoing shall
not limit the rights granted hereunder to the Leasehold
Mortgagee, provided that the Leasehold Mortgagee fulfills
all Leasehold Mortgagee's Foreclosure Period Obligations
and pays all Leasehold Mortgagee's Foreclosure Period
Payments.
(2) Upon the Bankruptcy Rejection Date the Leasehold
Mortgagee shall, for purposes of this Section, be the "deemed
Lessee" under this Agreement and shall simultaneously with the
service of its Reletting Election Notice pay the Leasehold
Mortgagee's Foreclosure Period Commencement Payments, if not
already paid, and shall thereafter satisfy all of the Leasehold
Mortgagee's Foreclosure Period Obligations.
(s) (1) In the event of the failure of the Leasehold
Mortgagee to exercise its Reletting Rights by the timely service of
its Reletting Election Notice and the payment to the Port Authority
of the Leasehold Mortgagee's Foreclosure Period Commencement
Payments in accordance with this Section 96, the Lease and the
letting of the Mortgaged Premises shall be deemed terminated
effective immediately on the Notice of Termination Effective Date,
or on the effective date of any other notice of termination served
by the Port Authority in accordance with the Section of the Lease
entitled "Termination by the Port Authority", and the Port
Authority, in addition to pursuing any or all of its rights and
remedies under the Lease, or otherwise, shall be entitled to elect
to use, alter or demolish any of the improvements on the Mortgaged
Premises free of any claim, right or interest of the Lessee, the
Trustee or the Bondholders.
(2) In the event the Mortgaged Premises do not
constitute all of the premises under this Agreement, the above
provisions with respect to the rights of the Leasehold Mortgagee to
extend the Notice of Termination or to exercise Reletting Rights
based on a Bonds Default Date or a Bankruptcy Rejection Date shall
apply only to the Mortgaged Premises and shall not apply to the
other areas or portions of the premises, and this Agreement as to
all such other areas or portions of the premises shall terminate on
the Notice of Termination Effective Date, or on the effective date
of any other notice of termination served by the Port Authority in
accordance with the Section of the Lease entitled "Termination by
the Port Authority", and the Port Authority may pursue any or all
of its rights and remedies under the Lease or otherwise with
respect thereto. The provisions hereof for the reletting of the
Mortgaged Premises based on a Bonds Default Date or a Bankruptcy
Rejection Date shall not and shall not be construed as a waiver or
limitation of the rights of the Port Authority to terminate other
portions of the premises or any Port Authority remedies with
respect thereto. If in the event of a reletting to an Approved
Successor Lessee of the Mortgaged Premises pursuant to the
provisions of this Section and the Lease as to the other portions
of the premises (excluding the Mortgaged Premises) has not expired
or been terminated and remains in effect on the effective date of
such reletting of the Mortgaged Premises, then the Port Authority
shall include with the Lease Assignment/Assumption and Consent
Agreement a restated lease document separately covering the
Mortgaged Premises.
(t) (1) Except as provided in paragraph (u) of this Section
with respect to the Port Authority, no entity, party or person
other than an Approved Successor Lessee shall be entitled to become
the owner of or acquire any interest in this Agreement pursuant to
a judgment of foreclosure and sale or as a result of an assignment
in lieu of foreclosure or as a result of the exercise by the
Leasehold Mortgagee of its Reletting Rights or otherwise; and any
entity, person or party proposed to become an Approved Successor
Lessee ("Proposed Successor Lessee") shall become an Approved
Successor Lessee only if the Leasehold Mortgagee duly exercises its
Reletting Rights by submitting to the Port Authority its Reletting
Election Notice stating its election to exercise its Reletting
Rights under this Agreement and including therewith the payment to
the Port Authority of the Leasehold Mortgagee's Foreclosure Period
Commencement Payments and fulfills all Leasehold Mortgagee's
Foreclosure Period Obligations and pays all Leasehold Mortgagee's
Foreclosure Period Payments, and said Proposed Successor Lessee
receives the approval of the Port Authority in advance. In
determining whether to approve or disapprove a Proposed Successor
Lessee, the Port Authority shall consider all relevant factors,
including but not limited to, the following factors, but it is
agreed that the Port Authority shall analyze all such factors in a
reasonable manner:
(i) whether the Proposed Successor Lessee will be
able to fulfill all of the Lessee's obligations under this
Agreement with respect to the Mortgaged Premises throughout
the balance of the term of the letting hereunder or such
lesser term as it proposes to lease;
(ii) whether the financial standing of the Proposed
Successor Lessee as of the effective date of its acquisition
of the leasehold hereunder is sufficient, in the opinion of
the Port Authority, to assure to the Port Authority that the
Proposed Successor Lessee is able to fulfill all of the
Lessee's obligations with respect to the Mortgaged Premises
under this Agreement throughout the balance of the term of the
letting of the Mortgaged Premises hereunder or such lesser
term as it proposes to lease which shall constitute the term
of the proposed reletting; including without limitation the
submission to the Port Authority of such security or guaranty
in such form and amount as the Port Authority may find
satisfactory and shall also submit such financial statements
and other financial information as the Port Authority may
require;
(iii) whether the Proposed Successor Lessee and
any officer, director or partner thereof and any person, firm
or corporation having an outright or beneficial interest in
twenty percent (20%) or more of the monies invested in the
Proposed Successor Lessee, if said Proposed Successor Lessee
is a corporation or partnership, by loans thereto, stock
ownership therein or any other form of financial interest has
as of the date of the proposed assignment/assumption a good
reputation for integrity and financial responsibility and has
not been convicted of or under current indictment for any
crime and is not currently involved in material civil anti-
trust or fraud litigation (other than as a plaintiff); and
(iv) whether the Port Authority has had any
"unfavorable experience" with the Proposed Successor Lessee,
or any of its officers, directors, or partners, or any person,
firm or corporation (such officers, directors, partners,
person, firm and corporation, being herein in this item (iv)
individually and collectively referred to as a "Person")
having an outright or beneficial interest in twenty percent
(20%) or more of the monies invested in the Proposed Successor
Lessee, if said Proposed Successor Lessee is a corporation or
partnership, by loans thereto, stock ownership therein or any
other form of financial interest; "unfavorable experience" as
used herein shall mean any one or more of the following. (A)
a material default by said Proposed Successor Lessee or any
such Person of any obligation, (monetary or non-monetary) to
the Port Authority; (B) any assertion made by said Proposed
Successor Lessee or any such Person against the Port Authority
in any frivolous, false, malicious, or unsupportable claim,
demand or allegation or suit or proceeding; (C) any act or
omission of said Proposed Successor Lessee or any such Person
causing or resulting in any loss, damage or injury to the Port
Authority or the imposition or threatened imposition of any
fine or penalty on the Port Authority or the commencement or
threatened commencement of any action, suit or proceeding
against the Port Authority; (D) any failure or refusal of said
Proposed Successor Lessee or any such Person to comply with
any law, governmental order, directive, ordinance or
requirement, including without limitation, Environmental
Requirements, at any Port Authority facility; (E) any failure
to comply with, or breach of, the Port Authority's Code of
Ethics and Financial Disclosure by said Proposed Successor
Lessee or any such Person; or (F) any breach by said Proposed
Successor Lessee or any such Person of any fiduciary
obligation, trust, confidence or other duty to the Port
Authority or of any confidentiality agreement with the Port
Authority;
(v) whether the Proposed Successor Lessee or any
officer, director or partner thereof or any person, firm or
corporation having an outright or beneficial interest in
twenty percent (20%) or more of the monies invested in the
proposed assignee, if said Proposed Successor Lessee is a
corporation or partnership, by loans thereto, stock ownership
therein or any other form of financial interest is in conflict
of interest, as defined under the laws of the States of New
York and New Jersey or Port Authority policy, with any
Commissioner of the Port Authority as of the date of the
proposed acquisition; and
(vi) whether the Proposed Successor Lessee or any
officer, director or partner thereof or any person, firm or
corporation having an outright or beneficial interest in
twenty percent (20%) or more of the monies invested in the
proposed assignee, if said Proposed Successor Lessee is a
corporation or partnership, by loans thereto, stock ownership
therein or any other form of financial interest has filed a
voluntary petition in bankruptcy or has been adjudicated a
bankrupt within five (5) years prior to the date of the
proposed acquisition.
Without limiting any other term or provision hereof, the
Proposed Successor Lessee must also agree in the Lease
Assignment/Assumption and Consent Agreement, to pay all of the
rentals, fees and charges in accordance with the Lease, including
without limitation the amounts described in paragraphs (n) (3) (ii)
and (u) of this Section. The Proposed Successor Lessee shall use
and occupy the Mortgaged Premises for the purposes set forth in
Section 8 hereof and shall be a major domestic or international
Scheduled Aircraft Operator or consortium thereof and shall agree
(or, if a consortium, shall agree jointly and severally) in the
Lease Assignment/Assumption and Consent Agreement to use and occupy
the Mortgaged Premises in accordance with all the terms and
conditions of this Agreement.
(2) Notwithstanding the foregoing, no acquisition,
assignment, sale or transfer pursuant to this paragraph (t) shall
be effective, and no Proposed Successor Lessee shall become an
Approved Successor Lessee, or have any right to possess, use or
occupy the Mortgaged Premises unless and until an assignment and
assumption agreement, in the event of an assignment in lieu of
foreclosure, or an assumption agreement, in the event of a
foreclosure, and in either event in form satisfactory to the Port
Authority whereby the Proposed Successor Lessee, effective on a
date prior to or simultaneously with the expiration of the
Foreclosure Period, assumes the obligations of the Lessee as if it
were the original tenant hereunder, has been executed by the Port
Authority, the Lessee, the Proposed Successor Lessee and the
Leasehold Mortgagee (said fully executed agreement in either case,
the "Lease Assignment/Assumption and Consent Agreement"); provided
that the foregoing may be effected without the Lessee's execution
thereof where there has been a preceding judgment of foreclosure
and sale of the Leasehold Mortgage or a preceding judgment of
eviction against the Lessee; subject to the payment of the Deferred
Reletting Fee as set forth in paragraph (u) of this Section. The
said effective date of the Lease Assignment/Assumption and Consent
Agreement is herein referred to as the "Lease Assignment/Assumption
Commencement Date", provided that where the Leasehold Mortgagee has
commenced proceedings to foreclose the Leasehold Mortgage, and for
purposes of the continuation of the Foreclosure Period Extension
Fees (as provided in paragraph (n) of this Section), such date
shall be deemed to have occurred only upon the successful
completion by the Leasehold Mortgagee prior to the expiration of
the Foreclosure Period (subject to the aggregate total maximum of
720 days) of the foreclosure and eviction proceedings described in
paragraph (n) (4) of this Section; provided, further, however, that
in the event the Leasehold Mortgagee does not in fact successfully
complete the foreclosure of the Leasehold Mortgage and eviction
proceedings as described in paragraph (n) (4) of this Section prior
to the expiration of the Foreclosure Period (subject to the
aggregate total maximum of 720 days) the Lease
Assignment/Assumption and Consent Agreement shall be null and void
and of no force or effect.
(3) It is understood and agreed that after the Leasehold
Mortgagee has obtained a Proposed Successor Lessee and has promptly
submitted to the Port Authority all required and necessary
information and materials, in accordance with subparagraph (1) of
this paragraph (t), to enable the Port Authority to determine
whether it will approve such Proposed Successor Lessee as an
Approved Successor Lessee, the running of the Foreclosure Period
shall be deemed tolled pending said determination by the Port
Authority, such determination to be considered promptly and
reasonably by the Port Authority; provided, however, that no such
tolling shall be effective unless the Leasehold Mortgagee promptly
continues to submit such additional information and material as may
be reasonably required by the Port Authority for its making of such
determination. Such tolling shall also toll the Leasehold
Mortgagee's obligation to pay the Foreclosure Period Extension
Fees, but not any other of Leasehold Mortgagee's Foreclosure Period
Obligations.
(u) Deferred Reletting Fee:
(1) Anything to the contrary herein notwithstanding, (i)
no Port Authority consent shall be granted to any Approved
Successor Lessee and no Proposed Successor Lessee or any other
entity, person or party shall become an Approved Successor Lessee
unless and until either (A) the Leasehold Mortgagee or the Proposed
Successor Lessee shall pay to the Port Authority prior to the
effective date of any right of the Approved Successor Lessee to
possess or commence any use or occupancy of the Mortgaged Premises
and prior to any such actual possession or commencement by any such
Approved Successor Lessee in a single lump sum payment the full
amount of the Deferred Reletting Fee, as defined below, or (B) at
the election of the Approved Successor Lessee, in lieu of said
single lump sum payment, the Approved Successor Lessee shall agree
to pay the Deferred Reletting Fee over time in Deferred Reletting
Fee Rental, as defined below, commencing as of the Lease
Assignment/Assumption Commencement Date which election shall be
stated in the Lease Assignment/Assumption and Consent Agreement
subject to subparagraph (4) of this paragraph (u); and (ii) in the
case of the foregoing (i) (B), any such Port Authority consent to
any Approved Successor Lessee is and shall be expressly conditioned
on the agreement of the Proposed Successor Lessee to make
continuing payments to the Port Authority of the Deferred Reletting
Fee Rental under subparagraph (4) of this paragraph (u); provided
however that the Approved Successor Lessee shall also submit to the
Port Authority such additional security as the Port Authority may
reasonably require and in such amount and form as the Port
Authority may determine to be appropriate to secure the obligation
of the Approved Successor Lessee to pay said Deferred Reletting Fee
Rental.
(2) "Deferred Reletting Fee" shall mean the fee payable
to the Port Authority in a single lump sum payment by the Leasehold
Mortgagee or the Approved Successor Lessee, as aforesaid, and which
shall be determined by applying the following formula:
DRF = MA x Y x C
Where DRF equals the Deferred Reletting Fee.
MA equals the Mortgage Amount hereunder (as defined in
subparagraph (29) of paragraph (a) of this Section.
Y equals a fraction the numerator of which shall be
the greater of (i) the actual number of full years
then remaining in the term of the letting of the
Mortgaged Premises hereunder at the Reletting
Election Notice Service Date and (ii) the number
five (5), and the denominator of which shall be
twenty-nine (29) representing the total number of
years of the term of the letting of the Mortgaged
Premises as of the effective date of Supplement No.
17 of the Lease.
C equals (i) 2% in the event the Foreclosure Period
commenced on the basis of a Bonds Default, and a
Subsequent Non-Bonds Default did not occur
thereafter during the Foreclosure Period; (ii) 3%
in the event the Foreclosure Period commenced on
the basis of the occurrence of a Lease Termination
or Bankruptcy Rejection Date, and a Bonds Default
did not subsequently occur; or (iii) 4% in the
event the Foreclosure Period commenced on the basis
of a Bonds Default and thereafter a Subsequent Non-
Bonds Default occurred, or the Foreclosure Period
commenced on the basis of a Lease Termination or
Bankruptcy Rejection Date, and thereafter a Bonds
Default occurred.
(3) Subject to (4) below, the Deferred Reletting Fee
shall be due and payable in full to the Port Authority by the
Leasehold Mortgagee or the Approved Successor Lessee in a single
lump sum payment on the Lease Assignment/Assumption Commencement
Date (and in any event prior to any use, occupancy or possession of
the premises by the Approved Successor Lessee).
(4) In the event the Approved Successor Lessee elects to
pay to the Port Authority the Deferred Reletting Fee in accordance
with clause (i) (B) of subparagraph (1) of this paragraph (u) then
the following provisions shall be and become immediately effective
as part of the rental obligations of the Approved Successor Lessee
as the lessee under the Lease and as part of the rental obligations
assumed by the Approved Successor Lessee under the Lease
Assignment/Assumption and Consent Agreement:
"(A) 1. "Deferred Reletting Fee" shall have the meaning
as defined in paragraph (u)(2) of Section 96 of the Lease.
2. 'Deferred Reletting Fee Rental Commencement
Date' shall mean, with respect to the Deferred Reletting Fee
Rental established on the basis of the Deferred Reletting Fee,
the Lease Assignment/Assumption Commencement Date; provided,
however, that if the Deferred Reletting Fee Rental
Commencement Date shall occur on other than the first day of
a calendar month, the Deferred Reletting Fee Rental
Commencement Date shall mean the first day of the calendar
month immediately following the month in which the aforesaid
Lease Assignment/Assumption Commencement Date occurs.
3. 'Deferred Reletting Fee Rental Period' shall
mean the period commencing on the Deferred Reletting Fee
Rental Commencement Date and ending on the earlier of (i) the
day preceding the tenth (10th) year anniversary of the
Deferred Reletting Fee Rental Commencement Date and (ii) the
expiration date of the then remaining term of the letting of
the Mortgaged Premises after the Deferred Reletting Fee Rental
Commencement Date.
4. 'Monthly Factor' shall mean the factor derived
in accordance herewith by the application of the following
formula:
1
= Monthly Factor
1 1
-
i i (1 + i)t
Where i is an annual percentage rate expressed in decimal form
equal to the sum of (x) the Fixed RBI Rate (as herein defined
in item 5 below) plus (y) 1.5% (150 basis points), divided by
twelve (12); and where t (a power) equals the number of
calendar months (expressed in whole numbers) from the Deferred
Reletting Fee Rental Commencement Date to the earlier of (i)
the day preceding the tenth (10th) year anniversary of the
Deferred Reletting Fee Rental Commencement Date and (ii) the
expiration date of the then remaining term of the letting of
the Mortgaged Premises after the Deferred Reletting Fee Rental
Commencement Date.
5. 'Fixed RBI Rate' as applicable to and
determined for the Deferred Reletting Fee Rental hereunder
shall mean the percentage reported as the weekly index of the
Bond Buyer Revenue Bond Index as reported in the publication
'The Bond Buyer' during the calendar week immediately
preceding the Deferred Reletting Fee Rental Commencement Date.
In the event that the Bond Buyer or its weekly Bond Buyer
Revenue Bond Index shall be discontinued during the term of
this Agreement, a comparable substitute for such Index shall
be mutually agreed upon in writing by the Lessee and the Port
Authority within thirty (30) days after such discontinuance.
In the event that the Lessee and the Port Authority shall fail
to agree upon such a substitute within the time hereinabove
specified then upon notice of either party such dispute shall
be disposed of by arbitration in accordance with then existing
rules of the American Arbitration Association or any successor
association. One half of the cost of said arbitration shall
be borne by the Port Authority and the other half of said cost
shall be borne by the Lessee.
(B) Computation and Payment
Commencing on the Deferred Reletting Fee Rental
Commencement Date the Lessee shall pay to the Port Authority
a rental (herein called the 'Deferred Reletting Fee Rental')
which Deferred Reletting Fee Rental shall be an amount payable
on the first day of each and every calendar month during the
Deferred Reletting Fee Rental Period which shall be equal to
the product obtained by multiplying the Monthly Factor by the
Deferred Reletting Fee (as defined in paragraph (u)(2) of
Section 96 of the Lease) as determined on the day immediately
preceding the Deferred Reletting Fee Rental Commencement Date.
(C) The Deferred Reletting Fee Rental shall be payable
in the same manner and collectible with like remedies as if
the same were part of the Area C-3 rentals except that such
payment shall not be subject to abatement or suspension for
any reason whatsoever.
(D) Notwithstanding any obligation of the Lessee to pay
the Deferred Reletting Fee Rental as part of the rental
obligations of the Lessee hereunder, the Lessee hereby, as a
separate and independent covenant, agrees and promises to pay
to the Port Authority the 'Deferred Reletting Fee Payment
Amount' which for purposes hereof shall mean the total amount
of installments and payments to be paid by the Lessee as
Deferred Reletting Fee Rental to the extent not actually paid
by the Lessee as Deferred Reletting Fee Rental as set forth
above. The Deferred Reletting Fee Payment Amount shall be due
and payable by the Lessee to the Port Authority immediately
upon any termination, expiration, non-extension or
cancellation of the Lease. Said obligation and agreement of
the Lessee to pay the Deferred Reletting Fee Payment Amount to
the Port Authority shall survive any termination, expiration,
non-extension or cancellation of the Lease."
(v) The Leasehold Mortgagee shall not be entitled to
foreclose its Leasehold Mortgage or to have the Lessee's interest
assigned in lieu of such foreclosure unless at least thirty (30)
days prior to commencing such foreclosure or requesting such
assignment in lieu of foreclosure, the Leasehold Mortgagee shall
have given the Port Authority written notice of its intention to
foreclose or to have this Agreement assigned with respect to the
Mortgaged Premises which notice shall state the then principal
balance of the Mortgage Amount, the amount of accrued and unpaid
interest thereon, and the per diem interest which will accrue on
the Mortgage Amount from, and after the giving of such notice. The
Port Authority shall have the right following the giving of such
notice by the Leasehold Mortgagee, to purchase the Leasehold
Mortgage for an amount equal to the total amount specified in such
notice from the Leasehold Mortgagee, including per diem interest to
the date of purchase. If the Port Authority shall fail to notify
the Leasehold Mortgagee within the thirty (30) day period specified
in the notice of its intention to purchase the Leasehold Mortgage
the Leasehold Mortgagee shall be entitled with respect to the
Mortgaged Premises to proceed to foreclose the Leasehold Mortgage
or to accept an assignment in lieu of foreclosure in accordance
with the provisions of this Agreement.
(w) No sale, transfer or assignment by the Lessee of its
interest in this Agreement to the Port Authority shall create a
merger between the estates of the Port Authority and the Lessee
unless the Port Authority, the Lessee and the Leasehold Mortgagee
shall specifically consent to such merger in writing, nor shall any
such sale, transfer or assignment be deemed to affect or diminish
the liabilities of the Lessee named in this Agreement, whether for
survived damages or otherwise.
(x) Each and every provision stated herein to be or become a
right or an obligation of the Trustee or of the Trustee in its
capacity as Leasehold Mortgagee shall be included in the Indenture
(by reference to this Agreement or otherwise) as among the rights
and obligations of the Trustee under the Indenture and in the Port
Authority Consent to NJEDA Subleases (by reference to this
Agreement or otherwise) as among the rights and obligations of the
Trustee, and in the Leasehold Mortgage as among the rights and
obligations of the Trustee as Leasehold Mortgagee under the
Leasehold Mortgage, and each and every provision stated herein to
be or become an obligation of the Approved Successor Lessee shall
be deemed included in the obligations assumed by the Approved
Successor Lessee by its acquisition of the Mortgaged Premises, the
Lease with respect thereto and by its execution of the Lease
Assignment/Assumption and Consent Agreement.
(y) (1) If the Leasehold Mortgagee shall obtain an Approved
Successor Lessee such Approved Successor Lessee shall acquire the
Lease with respect to the Mortgaged Premises with no further right
to mortgage or pledge the leasehold, and shall have no right to
assign the Lease with respect to the Mortgaged Premises other than
the limited right of assignment provided under Section 77 hereof.
(2) Nothing herein shall or shall be deemed to release
or relieve the Lessee from any terms, provisions, covenants or
conditions to be kept, performed or observed by the Lessee under
this Agreement or under the Port Authority Consent to NJEDA
Subleases.
(3) Nothing herein shall constitute or be deemed to
constitute any waiver by the Port Authority of any of its rights or
remedies to evict the Lessee in the event the Port Authority
terminates the Lease pursuant to the Section of this Agreement
entitled "Termination by the Port Authority" and the Leasehold
Mortgagee fails to properly exercise its Reletting Rights or to
obtain an Approved Successor Lessee in accordance with the
provisions hereof.
(4) Except for the rights granted herein to the
Leasehold Mortgagee, nothing herein shall constitute any waiver,
impairment or limitation of any of claims, rights or remedies of
the Port Authority based upon any event of default or based on any
rejection of the Lease resulting from a Lessee Bankruptcy or based
on any Lessee Bankruptcy.
(5) This Section and the right of the Lessee to grant
the Leasehold Mortgage and the right of the Trustee to enter the
Leasehold Mortgage are and shall be rights granted and effective
only as to Continental Airlines, Inc., the named Lessee hereunder,
and are exercisable one time only as above provided, and shall not
extend, obtain or apply to any Approved Successor Lessee or other
entity or person who may become a tenant or lessee of the premises
or any portion thereof.
(6) Neither this Section nor anything contained herein
nor any action taken or not taken hereunder shall impair, restrict
or limit the rights of the Port Authority under Section 69 hereof.
(z) Notices, statements and requests by or to the Trustee
(Leasehold Mortgagee) under the provisions of this Section 96 shall
be governed by Section 37 of the Lease entitled "Notices" and shall
be given to the Trustee at its address specified in Paragraph 14 of
the Port Authority Consent to NJEDA Subleases.
Section 97. No Third Party Beneficiary.
There shall be no third-party beneficiaries of this
Agreement. This Agreement shall be effective only as between the
parties hereto (and their successors and assigns, if, as and to the
extent permitted under this Agreement), and shall not be construed
as creating or conferring upon any person or entity any right,
remedy or claim under or by reason of this Agreement.
Notwithstanding the foregoing, nothing in this Section 97 shall
deprive the Leasehold Mortgagee of any of its Reletting Rights (as
defined in Section 96 of the Lease) under Section 96 of the Lease."
50. (a) Subparagraph (b) of paragraph 4 of Supplement No. 8
of the Lease shall be deemed deleted, and Sections 16 and 17 of the
Lease as amended by and as set forth in subparagraph (a) of said
paragraph 4 of Supplement No. 8 of the Lease, and as said Section
17 is also further herein amended, shall continue in full force and
effect for the term of the letting under the Lease including the
extension thereof provided for in this Seventeenth Supplemental
Agreement.
(b) Paragraph 5 of Supplement No. 8 of the Lease, as
amended by paragraph 3 of Supplement No. 11 and by paragraph 5 of
Supplement No. 13 and as referenced in paragraph 18 of Supplement
No. 15, and the right of termination thereunder as to all or
portions of Area C-3, shall be deemed deleted from the Lease and of
no further force and effect.
(c) The final sentence of Paragraph III of Schedule B of
the Lease, as previously amended in subparagraph (a) (11) of
paragraph 6 of Supplement No. 8 of the Lease, is hereby further
amended by inserting before the final period at the end thereof the
following:
"and, upon the Port Authority notice to the
Lessee of the completion by the Port Authority
of an appropriate expansion to the Central
Plant, the additional aircraft gate positions
and Area C-3 Concourse of the Expansion
Construction Work as defined and described in
and performed by the Lessee under Section 93
of the Lease as set forth in the Supplement
No. 17 to the Lease".
(d) Subparagraph (b) of paragraph 6 of Supplement No. 8
of the Lease shall be deemed deleted therefrom.
(e) (1) Paragraph 11 of Supplement No. 8 of the Lease
shall be deemed deleted therefrom.
(2) Paragraph 6 of Supplement No. 10 of the Lease
shall be deemed deleted therefrom.
(f) It is recognized that Paragraph 3 of Supplement No.
12 and the right of the Port Authority to require the removal of
the "Area C-3 Work" as defined in said Supplement No. 12 does not
extend or apply to the "Expansion Construction Work" as defined in
Section 93 of the Lease set forth in Paragraph 6 of this
Seventeenth Supplemental Agreement.
51. In addition to and without limiting any term or provision
of Section 66 or any other section of the Lease, the Lessee shall
and hereby agrees to submit, no later than the earlier of (i)
December 31, 2000 or (ii) the day which constitutes the three
hundred sixty-fifth (365th) day prior to either the expected
completion date of the Expansion Construction Work under Section 93
or date of the permitted occupancy of any portion of said Expansion
Construction Work, to the Port Authority for its review and
approval in accordance with Sections 66 and 73 of the Lease, a
revised updated comprehensive consumer services plan and covering
the consumer services to be provided in Area C-3 and other portions
of the premises after the completion of the Expansion Construction
Work, as defined in and pursuant to Section 93 of the Lease set
forth in this Seventeenth Supplemental Agreement.
52. The Lessee hereby expressly acknowledges and agrees that
the letting of Area C-3 under the Lease, and the extension of such
letting under this Supplemental Agreement, is expressly subject to
the condition that the Lessee shall allow to remain, in a location
in the premises approved in advance by the Port Authority, the room
now designated as the "Meditation Room-Freedom Shrine".
Accordingly, the Lessee hereby expressly agrees either to allow the
said room to remain in its present location in Area C-3 during the
term of the letting hereunder of Area C-3 or to move the same, at
the sole cost and expense of the Lessee, subject to Section 23
hereof, to such other suitable location on the premises approved in
advance by the Port Authority; it being expressly understood and
agreed that the foregoing shall not result in or constitute any
basis or claim by the Lessee for an abatement or reduction of
rental, or constitute any basis or claim for any payment of any
type from the Port Authority or to alter or impair any of the
responsibilities, duties or obligations of the Lessee under the
Lease or otherwise.
53. (a) The items of the Expansion Construction Work listed
in Schedule 1 attached to this Supplement No. 17 ("Schedule 1") are
personal property the title to which shall pass to the Port
Authority as the same, or any part thereof, are affixed to or
installed in the premises hereunder as part of the Expansion
Construction Work ("Schedule 1 Terminal Fixtures") and the same
shall become part of the premises under the Lease as herein
amended. It is understood and agreed that none of said Schedule 1
Terminal Fixtures shall include "rolling stock" or "vehicles". The
Lessee shall promptly provide the Port Authority with a detailed
and complete written inventory of each of said Schedule 1 Terminal
Fixtures not later than the applicable date each item is affixed to
or installed in the premises.
(b) Section 34 of the Lease, as previously amended, is hereby
further amended as follows:
(1) The first (1st) line of paragraph (a) thereof shall be
deemed amended to read as follows:
"All personal property (including trade fixtures but
specifically excluding the Schedule 1 Terminal Fixtures)
removable".
(2) The eleventh (11th) line of paragraph (a) thereof shall
be deemed amended by inserting the following after the word
"Lessee" and before the parenthesis appearing therein:
"and the Schedule 1 Terminal Fixtures shall not be the
property of the Lessee".
(3) The following new sentence shall be deemed inserted at
the end of paragraph (a) thereof:
"Anything in this Section 34 of the Lease to the contrary
notwithstanding, it is further expressly understood and
agreed that the Lessee shall have no right to, and shall
not, remove the Schedule 1 Terminal Fixtures, or any of
them, from the premises, title to which Schedule 1
Terminal Fixtures shall pass to the Port Authority as the
same or any part thereof are affixed to or installed in
the premises hereunder in accordance with paragraph 53 of
Supplement No. 17 of the Lease."
(c) The first sentence of Section 74 of the Lease, as
previously amended, is hereby further amended to add the following
words and symbol before the period at the end thereof:
"; provided, however, that the provisions of this Section
74 for the Port Authority's purchase of personal property
shall not apply to the Schedule 1 Terminal Fixtures (as
defined in paragraph 53 of Supplement No. 17 of the
Lease), titled to which shall pass to the Port Authority
as the same or any part thereof are affixed to or
installed in the premises hereunder in accordance with
paragraph 53 of Supplement No. 17 of the Lease".
54. Each party represents and warrants to the other that no
broker has been concerned in the negotiation of this Seventeenth
Supplemental Agreement and that there is no broker who is or may be
entitled to be paid a commission in connection therewith. Each
party shall indemnify and save harmless the other party of and from
any and all claims for commissions or brokerage made by any and all
persons, firms or corporations whatsoever for services provided to
or on behalf of the indemnifying party in connection with the
negotiation and execution of this Seventeenth Supplemental
Agreement.
55. No Commissioner, director, officer, agent or employee of
any party to this Seventeenth Supplemental Agreement shall be
charged personally or held contractually liable by or to any other
party under any term or provision of this Seventeenth Supplemental
Agreement or of any supplement, modification or amendment to the
Lease or because of its or their execution or attempted execution
or because of any breach or alleged or attempted breach thereof.
56. As hereby amended, all of the terms, covenants,
provisions, conditions and agreements of the Lease shall be and
remain in full force and effect.
57. This Seventeenth Supplemental Agreement and the Lease
which it amends constitute the entire agreement between the Port
Authority and the Lessee on the subject matter, and may not be
changed, modified, discharged or extended except by instrument in
writing duly executed on behalf of both the Port Authority and the
Lessee. The Lessee and the Port Authority agree that no
representations or warranties shall be binding upon the other
unless expressed in writing in the Lease or in this Seventeenth
Supplemental Agreement.
IN WITNESS WHEREOF, the Port Authority and the Lessee
have executed these presents as of the date first above written.
ATTEST: THE PORT AUTHORITY OF NEW YORK
AND NEW JERSEY
By
Secretary
(Title)
Seal
ATTEST: CONTINENTAL AIRLINES, INC.
By
Secretary
(Title) President
(Corporate Seal)
Ack. N.J.; Corp. & Corp.
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the _____ day of __________, 1999, before me, the subscriber,
a notary public of New York, personally appeared
_________________________ the _________________________ of THE PORT
AUTHORITY OF NEW YORK AND NEW JERSEY, who I am satisfied is the
person who has signed the within instrument; and, I having first made
known to him the contents thereof, he did acknowledge that he signed,
sealed with the corporate seal and delivered the same as such officer
aforesaid and the within instrument is the voluntary act and deed of
such corporation made by virtue of the authority of its Board of
Commissioners.
_________________________
(notarial seal and stamp)
STATE OF )
) ss.
COUNTY OF )
On the _____ day of __________, 1999, before me, the subscriber,
a _________________________, personally appeared
_________________________ the _________________________ of
CONTINENTAL AIRLINES, INC., who I am satisfied is the person who has
signed the within instrument; and, I having first made known to him
the contents thereof, he did acknowledge that he signed, sealed with
the corporate seal and delivered the same as such officer aforesaid
and the within instrument is the voluntary act and deed of such
corporation made by virtue of the authority of its Board of
Directors.
_________________________
(notarial seal and stamp)
SCHEDULE 1
(to Supplement No. 17 of Lease ▇▇▇-170)
Without limiting paragraph (i) of Section 93 of the Lease, the items
listed below are personal property, which constitute a portion of the
Expansion Construction Work under Section 93 of the Lease, the title
to which shall pass to the Port Authority as the same or any part
thereof are affixed to or installed in the premises under the Lease
and become part of the premises under the Lease as provided in and
subject to the provisions of paragraph 53 of Supplement No. 17 of the
Lease.
1. Passenger loading bridges and foundations
2. Baggage handling systems
3. Fixed aircraft ground power/heating units
4. Passenger ticketing counters, stands and podium which are
affixed to the flooring of the Terminal.
5. Flight/baggage information display systems
6. Terminal holdroom seating which are affixed to the flooring of
the Terminal
7. Customs and immigration counters which are affixed to the
flooring of the Terminal
8. Fixed PC air units (AC for jet bridges and gated aircraft)
9. Exterior light stanchions
10. Signage
11. Building security system (including closed circuit television)
to the extent affixed to the Terminal.
______________________________
For the Port Authority
Initialled:
______________________________
For the Lessee
SCHEDULE E
AFFIRMATIVE ACTION-EQUAL OPPORTUNITY---MINORITY BUSINESS
ENTERPRISES ---WOMEN-OWNED BUSINESS ENTERPRISES REQUIREMENTS
Part I. Affirmative Action Guidelines - Equal Employment
Opportunity
I. As a matter of policy the Port Authority hereby
requires the Lessee and the Lessee shall require the Contractor, as
hereinafter defined, to comply with the provisions set forth
hereinafter in this Schedule E and in Section 93 of Port Authority
Agreement No. ▇▇▇-170 (herein called the "Lease") with CONTINENTAL
AIRLINES, INC. (herein and in the Lease called the "Lessee"). The
provisions set forth in this Part I are similar to the conditions for
bidding on federal government contract adopted by the Office of
Federal Contract Compliance and effective May 8, 1978.
The Lessee as well as each bidder, contractor and
subcontractor of the Lessee and each subcontractor of a contractor at
any tier of construction (herein collectively referred to as "the
Contractor") must fully comply with the following conditions set
forth herein as to each construction trade to be used on the
construction work or any portion thereof (said conditions being
herein called "Bid Conditions"). The Lessee hereby commits itself to
the goals for minority and female utilization set forth below and all
other requirements, terms and conditions of the Bid Conditions. The
Lessee shall likewise require the Contractor to commit itself to the
said goals for minority and female utilization set forth below and
all other requirements, terms and conditions of the Bid Conditions by
submitting a properly signed bid.
II. The Lessee and the Contractor shall each appoint an
executive of its company to assume the responsibility for the
implementation of the requirements, terms and conditions of the
following Bid Conditions:
(a) The goals for minority and female participation
expressed in percentage terms for the Contractor's aggregate
workforce in each trade on all construction work are as follows:
(1) Minority participation
Minority, except laborers 30%
Minority, laborers 40%
(2) Female participation
Female, except laborers 6.9%
Female, laborers 6.9%
These goals are applicable to all the Contractor's
construction work performed in and for the premises.
The Contractor's specific affirmative action
obligations required herein of minority and female employment and
training must be substantially uniform throughout the length of the
contract, and in each trade, and the Contractor shall make good faith
efforts to employ minorities and women evenly on each of its
projects. The transfer of minority or female employees or trainees
from contractor to contractor or from project to project for the sole
purpose of meeting the Contractor's goals shall be a violation of the
contract. Compliance with the goals will be measured against the
total work hours performed.
(b) The Contractor shall provide written notification
to the Lessee and the Lessee shall provide written notification to
the Manager of the Office of Business and Job Opportunity of the Port
Authority within 10 working days of award of any construction
subcontract in excess of $10,000 at any tier for construction work.
The notification shall list the name, address and telephone number of
the subcontractor; employer identification number; estimated starting
and completion dates of the subcontract; and the geographical area in
which the subcontract is to be performed.
(c) As used in these specifications:
(1) "Employer identification number" means the
Federal Social Security number used on the Employer's Quarterly
Federal Tax Return, U.S. Treasury Department Form 941:
(2) "Minority" includes:
(i) Black (all persons having origins in any of
the Black African racial groups not of Hispanic origin);
(ii) Hispanic (all persons of Mexican, Puerto
Rican, Dominican, Cuban, Central or South American culture or origin,
regardless of race);
(iii) Asian and Pacific Islander (all persons
having origins in any of the original peoples of the Far East,
Southeast Asia, the Indian Subcontinent, or the Pacific Islands); and
(iv) American Indian or Alaskan Native (all
persons having origins in any of the original peoples of North
America and maintaining identifiable tribal affiliations through
membership and participation or community identification).
(d) Whenever the Contractor, or any subcontractor at
any tier, subcontracts a portion of the construction work involving
any construction trade, it shall physically include in each
subcontract in excess of $10,000 those provisions which include the
applicable goals for minority and female participation.
(e) The Contractor shall implement the specific
affirmative action standards provided in subparagraphs (1) through
(16) of Paragraph (h) hereof. The goals set forth above are
expressed as percentages of the total hours of employment and
training of minority and female utilization the Contractor should
reasonably be able to achieve in each construction trade in which it
has employees in the premises. The Contractor is expected to make
substantially uniform progress toward its goals in each craft during
the period specified.
(f) Neither the provisions of any collective
bargaining agreement, nor the failure by a union with whom the
Contractor has a collective bargaining agreement, to refer either
minorities or women shall excuse the Contractor's obligations
hereunder.
(g) In order for the nonworking training hours of
apprentices and trainees to be counted in meeting the goals, such
apprentices and trainees must be employed by the Contractor during
the training period, and the Contractor must have made a commitment
to employ the apprentices and trainees at the completion of their
training subject to the availability of employment opportunities.
Trainees must be trained pursuant to training programs approved by
the U.S. Department of Labor.
(h) The Contractor shall take specific affirmative
actions to ensure equal employment opportunity ("EEO").
The evaluation of the Contractor's compliance with
these provisions shall be based upon its good faith efforts to
achieve maximum results from its actions. The Contractor shall
document these efforts fully, and shall implement affirmative action
steps at least as extensive as the following:
(1) Ensure and maintain a working environment free of
harassment, intimidation, and coercion at all sites, and in all
facilities at which the Contractor's employees are assigned to
work. The Contractor, where possible, will assign two or more
women to each Phase of the construction project. The
Contractor, shall specifically ensure that all foremen,
superintendents, and other supervisory personnel at the premises
are aware of and carry out the Contractor's obligation to
maintain such a working environment, with specific attention to
minority or female individuals working at the premises.
(2) Establish and maintain a current list of minority
and female recruitment sources, provide written notification to
minority and female recruitment sources and to community
organizations when the Contractor or its unions have employment
opportunities available, and maintain a record of the
organizations' responses.
(3) Maintain a current file of the names, addresses
and telephone number of each minority and female off-the-street
applicant and minority or female referral from a union, a
recruitment source or community organization and of what action
was taken with respect to each such individual. If such
individual was sent to the union hiring hall for referral and
was not referred back to the Contractor by union or, if
referred, not employed by the Contractor, this shall be
documented in the file with the reason therefor, along with
whatever additional actions the Contractor may have taken.
(4) Provide immediate written notification to the
Lessee when the union or unions with which the Contractor has a
collective bargaining agreement has not referred to the
Contractor a minority person or woman sent by the Contractor, or
when the Contractor has other information that the union
referral process has impeded the Contractor's efforts to meet
its obligations.
(5) Develop on-the-job training opportunities and/or
participate in training programs for the area which expressly
include minorities and women, including upgrading programs and
apprenticeship and training programs relevant to the
Contractor's employment needs, especially those programs funded
or approved by the Department of Labor. The Contractor shall
provide notice of these programs to the sources compiled under
subparagraph (2) above.
(6) Disseminate the Contractor's EEO Policy by
providing notice of the policy to unions and training programs
and requesting their cooperation in assisting the Contractor in
meeting its EEO obligations; by including it in any policy
manual and collective bargaining agreement; by publicizing it in
the Contractor's newspaper, annual report, etc.; by specific
review of the policy with all management personnel and with all
minority and female employees at least once a year; and by
posting the Contractor's EEO policy on bulletin boards
accessible to all employees at each location where Construction
work is performed.
(7) Review, at least every six months the
Contractor's EEO policy and affirmative action obligations
hereunder with all employees having any responsibility for
hiring, assignment, layoff, termination or other employment
decision including specific review of these items with
on-premises supervisory personnel such as Superintendents,
General Foremen, etc., prior to the initiation of construction
work at the premises. A written record shall be made and
maintained identifying the time and place of these meetings,
persons attending, subject matter discussed, and disposition of
the subject matter.
(8) Disseminate the Contractor's EEO policy
externally by including it in any advertising in the news media,
specifically including minority and female news media, and
providing written notification to and discussing the
Contractor's EEO policy with other Contractors and
Subcontractors with whom the Contractor does or anticipates
doing business.
(9) Direct its recruitment efforts, both oral and
written, to minority, female and community organizations, to
schools with minority and female students and to minority and
female recruitment and training organizations and to
State-certified minority referral agencies serving the
Contractor's recruitment area and employment needs. Not later
than one month prior to the date for the acceptance of
applications for apprenticeship or other training by any
recruitment source, the Contractor shall send written
notification to organizations such as the above, describing the
openings, screening procedures, and tests to be used in the
selection process.
(10) Encourage present minority and female employees
to recruit other minority persons and women and, where
reasonable, provide after school, summer and vacation employment
to minority and female youth both on the premises and in areas
of a Contractor's workforce.
(11) Tests and other selecting requirements shall
comply with 41 CFR Part 60-3.
(12) Conduct, at least every six months, an inventory
and evaluation at least of all minority and female personnel for
promotional opportunities and encourage these employees to seek
or to prepare for, through appropriate training, etc., such
opportunities.
(13) Ensure that seniority practices, job
classifications, work assignments and other personnel practices,
do not have a discriminatory effect by continually monitoring
all personnel and employment related activities to ensure that
the EEO policy and the Contractor's obligations hereunder are
being carried out.
(14) Ensure that all facilities and company activities
are nonsegregated except that separate or single-user toilet and
necessary changing facilities shall be provided to assure
privacy between the sexes.
(15) Document and maintain a record of all
solicitations of offers for subcontracts from minority and
female construction contractors and suppliers, including
circulation of solicitations to minority and female contractor
associations and other business associations.
(16) Conduct a review, at least every six months, of
all supervisors' adherence to and performance under the
Contractors' EEO policies and affirmative action obligations.
(i) Contractors are encouraged to participate in voluntary
associations which assist in fulfilling one or more of their
affirmative action obligations (subparagraphs (1)-(16) of Paragraph
(h) above). The efforts of a contractor association, joint
contractor-union, contractor-community, or other similar group of
which the Contractor is a member and participant, may be asserted as
fulfilling any one or more of its obligations under Paragraph (h)
hereof provided that: the Contractor actively participates in the
group, makes good faith efforts to assure that the group has a
positive impact on the employment of minorities and women in the
industry, ensures that the concrete benefits of the program are
reflected in the Contractor's minority and female workforce
participation, makes good faith efforts to meet its individual goals
and timetables, and can provide access to documentation which
demonstrates the effectiveness of actions taken on behalf of the
Contractor. The obligation to comply, however, is the Contractor's
and failure of such a group to fulfill an obligation shall not be a
defense for the Contractor's non-compliance.
(j) A single goal for minorities and a separate single
goal for women have been established. The Contractor, however, is
required to provide equal opportunity and to take affirmative action
for all minority groups, both male and female, and all women, both
minority and non-minority. Consequently, the Contractor may be in
violation hereof if a particular group is employed in a substantially
disparate manner (for example, even though the Contractor has
achieved its goals for women generally, the Contractor may be in
violation hereof if a specific minority group of women is
underutilized).
(k) The Contractor shall not use the goals and timetables
or affirmative action standards to discriminate against any person
because of race, color, religion, sex or national origin.
(l) The Contractor shall not enter into any subcontract
with any person or firm debarred from Government contracts pursuant
to Executive Order 11246.
(m) The Contractor shall carry out such sanctions and
penalties for violation of this clause including suspension,
termination and cancellation of existing subcontracts as may be
imposed or ordered by the Lessee. Any Contractor who fails to carry
out such sanctions and penalties shall be in violation hereof.
(n) The Contractor, in fulfilling its obligations
hereunder shall implement specific affirmative actions steps, at
least as extensive as those standards prescribed in paragraph (h)
hereof so as to achieve maximum results from its efforts to ensure
equal employment opportunity. If the Contractor fails to comply with
the requirements of these provisions, the Lessee shall proceed
accordingly.
(o) The Contractor shall designate a responsible official
to monitor all employment related activity to ensure that the company
EEO policy is being carried out, to submit reports relating to the
provisions hereof as may be required and to keep records. Records
shall at least include for each employee the name, address, telephone
numbers, construction trade, union affiliation if any, employee
identification number when assigned, social security number, race,
sex, status (e.g. mechanical apprentice, trainee, helper, or
laborer), dates of changes in status, hours worked per week in the
indicated trade, rate of pay, and location at which the work is
performed. Records shall be maintained in an easily understandable
and retrievable form; however, to the degree that existing records
satisfy this requirement, contractors shall not be required to
maintain separate records.
(p) Nothing herein provided shall be construed as a
limitation upon the application of any laws which establish different
standards of compliance or upon the application of requirements for
the hiring of local or other area residents (e.g., those under the
Public Works Employment Act of 1977 and the Community Development
Block Grant Program).
(q) Without limiting any other obligation, term or
provision under the Lease, the Contractor shall cooperate with all
federal, state or local agencies established for the purpose of
implementing affirmative action compliance programs and shall comply
with all procedures and guidelines established or which may be
established by the Port Authority.
PART II. MINORITY BUSINESS ENTERPRISES/WOMEN-OWNED
BUSINESS ENTERPRISES
As a matter of policy the Port Authority requires the
Lessee and the Lessee shall itself and shall require the general
contractor or other construction supervisor and each of the Lessee's
contractors to use every good faith effort to provide for meaningful
participation by Minority Business Enterprises (MBEs) and Women-owned
Business Enterprises (WBEs) in the construction work pursuant to the
provisions of this Schedule E. For purposes hereof, "Minority
Business Enterprise" "(MBE)" shall mean any business enterprise which
is at least fifty-one percentum owned by, or in the case of a
publicly owned business, at least fifty-one percentum of the stock of
which is owned by citizens or permanent resident aliens who are
minorities and such ownership is real, substantial and continuing.
For the purposes hereof, "Women-owned Business Enterprise" "(WBE)"
shall mean any business enterprise which is at least fifty-one
percentum owned by, or in the case of a publicly owned business, at
least fifty-one percentum of the stock of which is owned by women and
such ownership is real, substantial and continuing. A minority shall
be as defined in paragraph II(c) of Part I of this Schedule E.
"Meaningful participation" shall mean that at least seventeen percent
(17%) of the total dollar value of the construction contracts
(including subcontracts) covering the construction work are for the
participation of Minority Business Enterprises and Women-owned
Business Enterprises, of which at least twelve percent (12%) are for
the participation of Minority Business Enterprises. Good faith
efforts to include meaningful participation by MBEs and WBEs shall
include at least the following:
(a) Dividing the work to be subcontracted into
smaller portions where feasible.
(b) Actively and affirmatively soliciting bids for
subcontracts from MBEs and WBEs, including circulation of
solicitations to minority and female contractor associations. The
Contractor shall maintain records detailing the efforts made to
provide for meaningful MBE and WBE participation in the work,
including the names and addresses of all MBEs and WBEs contacted and,
if any such MBE or WBE is not selected as a joint venturer or
subcontractor, the reason for such decision.
(c) Making plans and specifications for prospective
construction work available to MBEs and WBEs in sufficient time for
review.
(d) Utilizing the list of eligible MBEs and WBEs
maintained by the Port Authority or seeking minorities and women from
other sources for the purpose of soliciting bids for subcontractors.
(e) Encouraging the formation of joint ventures,
partnerships or other similar arrangements among subcontractors,
where appropriate, to insure that the Lessee and Contractor will meet
their obligations hereunder.
(f) Insuring that provision is made to provide
progress payments to MBEs and WBEs on a timely basis.
(g) Not requiring bonds from and/or providing bonds
and insurance for MBEs and WBEs, where appropriate.
Certification of MBEs and WBEs hereunder shall be made by
the Office of Business and Job Opportunity of the Port Authority. If
the Contractor wishes to utilize a firm not already certified by the
Port Authority, it shall submit to the Port Authority a written
request for a determination that the proposed firm is eligible for
certification. This shall be done by completing and forwarding such
form as may be then required by the Port Authority. All such
requests shall be in writing addressed to the Office of Business and
Job Opportunity, the Port Authority of New York and New Jersey, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or such other
address as the Port Authority may specify by notice to the Lessee.
Certification shall be effective only if made in writing by the
Director in charge of the Office of Business and Job Opportunity of
the Port Authority. The determination of the Port Authority shall be
final and binding.
The Port Authority has compiled a list of the firms that
the Port Authority has determined satisfy the criteria for MBE and
WBE certification. This list may be supplemented and revised from
time to time by the Port Authority. Such list shall be made
available to the Contractor upon request. The Port Authority makes
no representation as to the financial responsibility of such, firms,
their technical competence to perform, or any other
performance-related qualifications.
Only MBE's and WBE's certified by the Port Authority will
count toward the MBE and WBE goals.
Please note that only sixty percent (60%) of expenditures
to MBE or WBE suppliers will count towards meeting the MBE and WBE
goals. However, expenditures to MBE or WBE manufacturer's (i.e.
suppliers that produce goods from raw materials or substantially
alter them before resale) are counted dollar for dollar.
For the Port Authority
Initialled:
For the Lessee
