Attachment - Dock Agreement-Rowes Wharf w Amendment.pdf

LICENSE AGREEMENT

THIS LICENSE AGREEMENT ("License Agreement"), including all Exhibits annexed hereto, is made as of the Execution Date stated in Exhibit 1, by and between

Licensor and Licensee.

WITNESSETH:

WHEREAS, Licensor administers the common areas of the Project and has authority to enter into this License Agreement;

WHEREAS, pursuant to various permits, licenses and agreements, Licensor has built and maintains the Commercial Maritime Terminal and provisions for pedestrian access to the

Dock from Atlantic Avenue;

WHEREAS, Licensor and Licensee are parties to that certain License Agreement dated as of December 1, 2000, as amended (the "Prior License Agreement"), which Prior

License Agreement expired by its terms as of December 31, 2007; and

WHEREAS, Licensor and Licensee desire to enter into a new nonexclusive license agreement on the terms and conditions hereinafter set forth.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1. Defined Terms. Capitalized terms used but not defined in this License

Agreement (a) which are defined in the Determination (as defined in Exhibit 1) shall have the meanings ascribed therein unless the context otherwise requires, and (b) otherwise shall have the meanings ascribed to them in Exhibit I hereof.

2. Licensed Activities.

a. The Commercial Maritime Terminal is a twenty-four (24) hour facility. Subject to the terms and conditions of this License Agreement, Licensee shall, from and after the Term Commencement Date, have the right to use the Licensed Area, during

Operating Hours, for the Licensed Activity and for no other purpose whatsoever. Such use shall constitute a non-exclusive license for the right to perform the Licensed Activities in the

Licensed Area. In addition, Licensee may use the Licensed Area for the Licensed Activity during non-Operating Hours, subject to availability of dock space. With respect to any proposed use of the Licensed Area during non-Operating Hours, Licensee shall submit a written request at least two (2) weeks in advance, in the form provided in the Rules and

Regulations. Any such use of the Licensed Area during non-Operating Hours shall be subject to payment of additional License Fees in accordance with the Operations Plan. Crew members employed by Licensee or a sublicensee shall be on hand at the Licensed Area at the time of each landing and shall assist in each landing.

b. Vessel. For purposes of this License Agreement, the term "Vessel" shall collectively mean any boat(s) owned or operated by Licensee or any sub-license or

NGEDOCS: 1473785.7

assignee which uses the Licensed Area. Licensee acknowledges and agrees that at all times during the Term, (i) the Vessel shall be owned or operated by Licensee or sublicensee under a sublicense entered into in accordance with Section 24, and used by Licensee or any such sublicensee only in connection with the Licensed Activity; (ii) the Vessel shall be insured in accordance with Section I I hereof; (iii) a completed vessel description form, in the form annexed hereto as Exhibit 3 shall be filed with Manager at least forty-eight (48) hours prior to the use of each applicable Vessel in connection with the Licensed Activity; (iv) Licensee and the Vessel shall comply with all relevant requirements set forth herein, in the Operations

Plan (including, without limitation, Part I (E) - "Docking Privileges") and in the Rules and

Regulations; and (v) the Vessel and the crew shall have participated in and passed a "docking trial" under the supervision of the Manager or Dockmaster.

Notwithstanding anything to the contrary in the foregoing, in the event that Licensee desires to use the Licensed Area for a vessel in connection with a safety-related or operations -related emergency,

(1) the requirements of clauses (iii), (iv) and (v) of the preceding sentence need not be complied with prior to the first use of the Licensed Area by such vessel, provided that such requirements shall be met as soon as is reasonably possible after use of such vessel begins; and

(2) no docking trial shall be required for such vessel, provided that (w) such vessel is used in connection with the Licensed Activity for a period of less than fifteen (15) days, (x) the gross tonnage and overall dimensions of which do not exceed those of other Vessels approved by Manager hereunder, (y) the freeboard of which is at least four feet (4') and (z) for which Licensee or the sublicensee operating such vessel provides a loading platform and/or gangway, as appropriate.

C. Use of Licensed Area During Absence of Licensee's Vessel.

W During Operating Hours. Licensee shall allow Intermittent

Use Permittees and Regular Use Permittees to use the Licensed Area during Operating Hours as follows. Licensor may request Licensee to grant Licensor access to and control of the

Licensed Area during Operating Hours (other than Commuter Hours) during times not in conflict with Licensee's schedule (as submitted to Licensor pursuant to Section 20) so that

Licensor may make the Licensed Area available to Intermittent Use Permittees and Regular

Use Permittees. Licensee shall consider any such request and will approve or deny such request, in writing, within ten (10) days of receipt of such request. Licensee's approval shall not be unreasonably withheld.

(ii) During Non-Operating Hours. Licensor may, without obtaining Licensee's consent, license or permit the use of the Licensed Area during non-

Operating Hours. Licensor shall use its reasonable commercial efforts to give Licensee advance notice of any contemplated licensing or permitting of the use of the Licensed Area during said non-Operating Hours, and shall use its reasonable commercial efforts to give

-2-

Licensee at least thirty (30) days' advance notice of any use which would affect the Licensed

Area for at least a thirty (30) day period.

(iii) If Licensor receives any fees in consideration for allowing

Intermittent Use Permittees, Regular Use Permittees or any other third parties to use the

Licensed Area pursuant to this Section 2(c), Licensor shall pay Licensee fifty percent (50%) of all fees and other consideration which Licensor receives. Licensor shall pay Licensee for

Licensee's share within 30 days after Licensor's receipt of such proceeds. Licensor shall provide a written accounting each month describing in reasonable detail the calculation of any such amounts payable to Licensee.

3. Prohibited Activities. Licensee shall not undertake any activity other than the Licensed Activity on, at or near the Dock, including, without limitation, (i) the performance of any non-emergency services or repairs to any vessel at the Dock, including, without limitation, fueling or refueling of any Vessel; (ii) the loading or unloading of any items except as may be permitted in accordance with the Rules and Regulations; (iii) the erecting or locating of any structures, temporary or otherwise, at the Dock unless approved in writing in advance by the Manager; (iv) the loud playing of music or other sounds through loudspeakers or other amplifying devices; (v) any activity prohibited by the Rules and

Regulations, or (vi) any other action which may interfere with the operation of the

Commercial Maritime Terminal or other portions of the Project.

4. Term.

a. The four (4) year initial term of the license granted herein shall commence on the Term Commencement Date stated in Exhibit I and shall continue for the entire Term stated in Exhibit I unless sooner terminated pursuant to the terms of Section 22 hereof.

b. Licensee shall have the option to extend the Term pursuant to the First

Extension Option and the Second Extension Option, in accordance with Article 1 of

Exhibit 4 (Additional Provisions).

C. If Licensee elects to discontinue the operation of the commuter service and the water shuttle service (i.e., the Licensed Activity hereunder) at the Commercial

Maritime Terminal, then Licensee may terminate the term of this License Agreement prior to the expiration of the Term stated in Exhibit I by giving written notice to Licensor, in accordance with Article 2 of Exhibit 4 (Additional Provisions).

d. "License Year" shall mean any twelve-(12)-month period during the

Term commencing on January 1.

5. License Fee.

a. In consideration of the right of Licensee to use the Licensed Area in accordance herewith, Licensee shall pay to Licensor, throughout the Term hereof, the

License Fee as set forth in Exhibit 1. Such fees shall be payable monthly, in advance, on the first day of the month without notice or demand, and shall be paid to Licensor at the address

-3-for notice provided in Section 26 hereof, or such other address as Licensor may designate from time to time. The Licensor may change the License Fee payable hereunder in accordance with Section 5(b) and 5 (d).

b. In the event the Capital Improvement Project (as hereinafter defined) has not "commenced" by the Capital Improvement Project Outside Commencement Date (as hereinafter defined), then starting with January 1 s' of the License Year immediately following the Capital Improvement Project Outside Commencement Date, and on each January 1" thereafter (each such date is sometimes referred to herein as the "License Fee Adjustment

Date"), the License Fee then in effect (or which would then have been in effect absent any abatement or reductions in License Fees) shall be increased (but not decreased) by a percentage equal to the percentage increase in the Index (as hereinafter defined) published for the month which is four (4) months prior to the applicable License Fee Adjustment Date compared to the Index published for the month which is sixteen (16) months prior to the applicable License Fee Adjustment Date. For purposes hereof, the "Index" shall mean the

United States Department of Labor, Bureau of Labor Statistics Consumer Price Index for All

Urban Consumers, U.S. City Average, Subgroup "All Items" (1982-84 = 100). If the foregoing Index is not available, then the successor or substitute index published by the

Bureau of Labor Statistics shall be used by Licensor as the Index. If the Bureau of Labor

Statistics does not publish such successor or substitute Index, a reliable governmental or other non-partisan publication evaluating substantially the same consumer information shall be used by Licensor for the Index. If Licensor uses any substitute or successor index or other publication the same shall be converted to a basis of 100 if the basis used for such other index or publication is less than 100. For purposes of this License Agreement, the Capital

Improvement Project shall be deemed to have "commenced" if: (i) Licensee has been approved to receive funding from the Executive Office of Transportation for the

Commonwealth of Massachusetts (the "EOT") in an amount not less than

(including for a design analysis), or such other amount as may be mutually agreed by the parties, to perform the Capital Improvement Project, and has agreed to deliver such amounts to Licensor for the performance of the Capital Improvement Project on a timetable as may be mutually agreed by the parties and the EOT; (ii) Licensee has approved the final

Plans (as herein defined) which have been mutually agreed to by both Licensor and Licensee;

(iii) Licensor has received and obtained all applicable governmental and quasi-govemmental permits, approvals and consents required in connection with the performance of the Capital

Improvement Project; and (iv) Licensor determines (in its reasonable discretion) that there are no other circumstances which would prohibit Licensor's ability to perform the Capital

Improvement Project.

C. Licensor shall use its reasonable commercial efforts to give Licensee notice of the increase (if any) in the License Fee pursuant to Section 5(b) by October 0 of every License Year after the first License Fee Adjustment Date, provided that failure to give such notice shall not constitute a waiver of the right to an increase in the License Fee from and after the commencement of such License Year. Licensee's obligation to pay any accrued and unpaid deficiency in License Fees hereunder shall survive the expiration or prior termination of the Term hereof.

-4-

d. Notwithstanding anything in this Section of the License Agreement to the contrary, so long as Licensee is not in Default (as defined in Section 22) under this

License Agreement, Licensee shall be entitled to an abatement of License Fees in the amount of per month during the entire Term (subject to the provisions of this

Section 5(d)below), beginning with the first full calendar month of the Term (the "License

Fees Abatement Period"). The total amount of License Fees abated during the License

Fees Abatement Period shall be hereinafter referred to as the "Abated License Fees".

During the License Fees Abatement Period, only License Fees shall be abated (to the extent specified herein), and all other costs and charges specified in this License Agreement shall remain as due and payable pursuant to the provisions of this License Agreement.

Notwithstanding anything in the foregoing to the contrary, in the event the

Capital Improvement Project has not commenced by June 30, 2010 (or such later date as is mutually agreed upon by Licensor and Licensee) (the "Capital Improvement Project

Outside Commencement Date"), then (i) the License Fees Abatement Period may be terminated by either party effective as of the Capital Improvement Project Outside

Commencement Date by written notice delivered not later than sixty (60) days following the

Capital Improvement Project Outside Commencement Date, or such later date as otherwise may be mutually agreed by the parties in writing, and (ii) following delivery of such notice, for the period commencing with the first day of the month following the Capital

Improvement Project Outside Commencement Date, the License Fees payable under this

License Agreement shall increase by i.e., the total monthly License Fee shall be until such time as Licensee has reimbursed Licensor for all

Abated License Fees which had previously been abated pursuant to this Section 5(d).

Notwithstanding anything to the contrary in the foregoing, Licensor and Licensee acknowledge and agree that Licensee has incurred or will incur certain costs toward the design review phase of the Capital Improvement Project in an amount approximating

. Accordingly, in the event the Capital Improvement Project has not commenced by the Capital Improvement Project Outside Commencement Date, so long as Licensee is not in Default under this License Agreement, commencing as of the first day of the month following the Capital Improvement Project Outside Commencement Date, Licensee shall be entitled to a monthly abatement during the Initial Tenn equal to divided by the number of months remaining in the Initial Term (the "Licensee Design Review

Reimbursement"). Licensor and Licensee agree that the Licensee Design Review

Reimbursement is intended to be a fixed amount and will not be adjusted to reflect the actual costs incurred by Licensee for the design review phase of the Capital Improvement Project.

For such time as Licensee is also reimbursing Licensor for the Abated License Fees, the

Licensee Design Review Reimbursement and the Abated License Fees shall be offset against each other and the Licensee shall be credited only to the extent of the greater of the Licensee

Design Review Reimbursement and the Abated License Fees. During the period during which a portion of the License Fee or the Licensee Design Review Reimbursement is offset by the other, all other amounts of License Fees and all other costs and charges specified in this License Agreement shall remain as due and payable pursuant to the provisions of this

License Agreement.

6. Late Charges. hi the event Licensee fails to pay the License Fee or any bill rendered by Licensor within forty-five (45) days of when due, Licensee shall, at Licensor's

-5-option, pay interest thereon at the rate of one and one-half percent (1.5%) per month during such time as such License Fee or bill remains overdue; provided, however, that if Licensee gives Licensor written notice within thirty (30) days after the date of any bill or invoice rendered by Licensor, a bona fide reason for not paying all or a portion of the amount billed, then no interest shall accrue on the disputed amount. Licensee shall further pay any charges, costs and fees, including reasonable attorneys' fees, incurred by Licensor in collection of overdue fees or bills.

7. Utilities and Services.

a. Licensor shall furnish Licensee with the following services at no cost to Licensee: (a) trash removal; (b) removal of snow and ice; (c) electricity; (d) lighting;

(e) water for use at the Dock; (f) routine maintenance; (g) repair and maintenance of the

Dock; and (h) such other services as Licensor reasonably determines are necessary or appropriate in connection with the Capital Improvement Project or otherwise under this

License Agreement.

b. Licensor's failure to furnish, or any interruption, diminishment or termination of services for any reason, including but not limited to the application of Laws, the failure of any equipment, the performance of repairs, improvements or alterations, utility interruptions or the occurrence of an event of Force Majeure, shall not render Licensor liable to Licensee, constitute a constructive eviction of Licensee, give rise to an abatement of

License Fees or other amounts due hereunder, nor relieve Licensee from the obligation to fulfill any covenant or agreement; provided, however, that Licensor shall use its reasonable commercial efforts to mitigate and minimize the effect of any such event to the provision of the services to Licensee and shall resume its full performance of the services promptly following the termination or resolution of such event; and further provided, that the performance of the services shall not be excused as hereinabove provided if such failure was caused in whole or in part by the negligence or willful misconduct by Licensor or Manager or any of their respective agents.

8. Change in Location of the Licensed Area.

a. In order to facilitate overall operations of the Commercial Maritime

Terminal, Licensor reserves the right to delay any embarkation or disembarkation of the

Vessel and to change, from time to time, the location of the Licensed Area to another berth of similar size and configuration necessary to accommodate Licensee's Vessel(s) at the

Commercial Maritime Terminal (i) in the event that the Licensed Area, the Dock or any other portion of the Commercial Maritime Terminal necessary for access to the Licensed Area is, in Licensor's sole judgment, in need of repair or is under repair; (ii) in the event that, pursuant to Section 2(c) hereof, the Licensed Area is occupied by a vessel other than the

Vessel and the Vessel returns to the Commercial Maritime Terminal other than as scheduled;

or (iii) in case of emergency. Licensor shall give notice of any material change in the location of the Licensed Area to Licensee, in person or by radio, as may be appropriate under the circumstances. Except in case of emergency, Licensor shall give such notice no less than five (5) Business Days before the implementation of any material change in the location of the Licensed Area.

-6-

b. Notwithstanding anything to the contrary herein contained, the Vessel shall, at all times, maintain radio contact with the Dockmaster, or Dockmaster's designee, and shall change docking location(s) in accordance with the radio instructions of the

Manager or the Dockmaster. The "Dockmaster" shall be an employee of Rowes Wharf

Associates, L.L.C. and shall be Manager's on-site agent at the Commercial Maritime

Terminal and the Dock.

9. Indemnification of Licensor. Licensee shall indemnify and hold Licensor, Manager and Rowes Wharf Associates, L.L.C. and their agents, servants, employees, trustees, members, managers, beneficiaries, partners, officers, directors, mortgagees, contractors and subcontractors harmless from and against all suits, actions, claims, liabilities, obligations, penalties, demands, damages or losses, expenses, and costs (including attorneys' fees) of every kind and description which may be imposed upon, incurred by or asserted against Licensor, Manager and Rowes Wharf Associates, L.L.C. or any of their agents, servants, employees, trustees, members, managers, beneficiaries, partners, officers, directors, mortgagees, contractors and subcontractors by reason of injury (including death) to persons or property arising out of or in connection with the Vessel, or equipment used by Licensee for the embarkation and disembarkation of passengers to and from the Vessel operated by

Licensee at the Dock, or any act or omission of Licensee, any sublicensee, or any agents, servants, employees, visitors, guests, contractors, subcontractors, or any and all other persons or corporations dealing with Licensee in any way in the occupancy and use of any portion of the Project and the Dock except to the extent such conditions are caused by the negligent acts or omissions of Licensor.

10. Operations Board Rules and Regulations. Licensee hereby acknowledges and agrees that the use of the Commercial Maritime Terminal or any portion of the Project pursuant to this License Agreement shall be always subject to rules and regulations ("Rules and Regulations") promulgated from time to time by Licensor with the approval of the

Operations Board, which Rules and Regulations shall govern all issues concerning the use of the Dock not expressly provided for herein, including, without limitation, the following:

a. ticketing operations and passenger management, security and crowd control;

b. hours of operation;

C. docking fees;

d. access to the Dock by Licensee and other licensees and permittees, and assignment of space at the Dock among them;

e. docking locations and times and schedule for use;

f. emergency procedures;

9. insurance limits; and

h. recordkeeping.

-7-

Licensee covenants and agrees to comply with Rules and Regulations, in force and effect as of the date hereof, and all Rules and Regulations hereafter promulgated from time to time by said Licensor and approved by the Operations Board, all of which Rules and Regulations shall be deemed to be incorporated in this License Agreement with the same force and effect as if set forth herein. In the case of any conflict between the Rules and Regulations and the express terms of this License Agreement, the terms of this License Agreement shall govern.

11. Insurance. Licensee covenants, represents and warrants to Licensor that

Licensee is currently self-insured through the Commonwealth of Massachusetts self insurance program, and that at all times during the Term of this License Agreement

(including any extensions thereof) Licensee shall remain self-insured for all coverages required to be maintained pursuant to this License Agreement in an aggregate amount of up to to the same extent as if Licensee had maintained the insurance coverages set forth below with third party insurance companies.

So long as Licensee remains self-insured as aforesaid, Licensee shall not be required to obtain the insurance required pursuant to this Section from third party insurance companies.

In the event Licensee does not self insure as aforesaid, Licensee shall maintain, and in any and all events, Licensee shall cause to be maintained by any sublicensee, throughout the

Term hereof, insurance policies having coverages and limits as described below:

a. Protection and Indemnity insurance, including a docks, floats and piers extension insurance, and contractual liability insurance and removal of wreckage. The minimum limits of such insurance shall be Five Million Dollars ($5,000,000.00).

b. Commercial General Liability Insurance applicable to the Vessel, the

Licensed Area and their appurtenances providing, on an occurrence basis, a minimum combined single limit of One Million Dollars ($1,000,000.00).

C. Hull insurance.

d. Liquor liability insurance or dram shop insurance (as applicable) with a combined single limit of not less than One Million Dollars ($1,000,000.00) per occurrence covering any claims relating to the manufacture, storage, sale, use or giving away of any alcoholic or other intoxicating liquor or beverage, which claims could be asserted against

Licensor, Licensee, the Vessel or the Licensed Area, in the event that alcoholic beverages are made available for consumption by passengers on the Vessel.

e. Workers' Compensation Insurance or longshore or harbor worker's compensation insurance required by the Jones Act or any other applicable maritime Laws in amounts required by Law.

E Employers Liability Coverage covering all work and services performed under the License Agreement as provided by Massachusetts General Laws, Chapter 152, as amended, or similar coverage protecting employees for job related injuries and illness occurring in the marine environment.

-8-

9- Pollution Liability Insurance relating to any contaminants and clean up expenses with a minimum of One Million Dollars $1,000,000.00 per occurrence.

h. Automobile Liability Insurance, including owned, if any, non-owned and hired vehicle, subject to a minimum limit of One Million Dollars $1,000,000.00 per occurrence.

Any company writing any such insurance shall have an A.M. Best rating of not less than B+. All Protection and Indemnity Insurance, Commercial General Liability Insurance, Liquor Liability or Dram Shop Insurance, and Pollution Liability Insurance policies shall name as additional insureds Licensor (or its successors and assignees), Manager (or any successor), Rowes Wharf Associates, L.L.C., Equity Office Management, L.L.C., EOP

Operating Limited Partnership, Equity Office Properties Trust, Blackhawk Parent LLC, all members of the Operations Board and their respective members, managers, principals, beneficiaries, partners, officers, directors, employees, and agents, and other designees of

Licensor and its successors as the interest of such designees shall appear. All policies of any such insurance shall provide that the insurer(s) shall give Licensor and its designees at least thirty (30) days' advance written notice of any cancellation, termination, material change or lapse of insurance. Notwithstanding anything to the contrary in the immediately preceding sentence, such policies may be amended or cancelled on shorter notice, provided that substitute coverage is in effect, so that the insurance policies, coverages and limits required hereby are maintained at all times during the Term. Licensee shall provide Licensor (if

Licensee no longer self-insures in accordance with the provisions above) and Licensee shall cause each sublicensee to provide Licensor with a certificate of insurance evidencing such sublicensee's insurance prior to the earlier to occur of the Term Commencement Date or the date Licensee is provided with possession of the Licensed Area, and thereafter as necessary to assure that Licensor always has current certificates evidencing such sublicensee's insurance.

Licensor and Licensee hereby waive and shall cause their respective insurance carriers to waive any and all rights of recovery, claims, actions or causes of action against the other for any loss or damage with respect to Licensee's property, Licensee's business, the

Vessel, the Project, the Licensed Area, the Dock or any contents thereof, including rights, claims, actions and causes of action based on negligence, which loss or damage is (or would have been, had the insurance required by this License Agreement been carried) covered by insurance. For the purposes of this waiver, any deductible with respect to a party's insurance shall be deemed covered by and recoverable by such party under valid and collectible policies of insurance. If Licensee self-insures any risk which would have been covered by the insurance required to be carried by Licensee pursuant to Section, or if Licensee fails to carry any insurance required to be carried by Licensee pursuant to this Section, then, for purposes of this Section, all loss or damage with respect to Licensee's property, Licensee's business, the Vessel, the Project, the Licensed Area, the Dock or any contents thereof, including rights, claims, actions and causes of action based on negligence, which loss or damage is (or would have been, covered by any such insurance) shall be deemed covered by and recoverable by Licensee under valid and collectible policies of insurance.

-9-

12. Licensee's Property at Licensee's Sole Risk. The Vessel(s) and all personal property of Licensee kept at the Dock and the Licensed Area shall be at the sole risk of the

Licensee. Licensor shall not be liable for damage to or loss of the Vessel(s) or Licensee's other personal property by any cause whatsoever, including without limitation, any fire, explosion, flood, water, theft or vandalism. Licensor shall also not be liable for damage or loss to the Vessel(s) or Licensee's other personal property resulting from Licensor having taken any action with respect thereto which Licensor has the right to take under this License

Agreement, unless attributable to any negligent acts or omissions of Licensor or Manager.

BECAUSE OF ITS LOCATION IN BOSTON INNER HARBOR, THE DOCK AND

THE LICENSED AREA ARE SUSCEPTIBLE TO DAMAGE FROM MAJOR STORMS

WITH WINDS. LICENSOR RECOMMENDS THAT LICENSEE RELOCATE THE

VESSEL FROM THE DOCK AND THE LICENSED AREA TO MORE SECURE AREAS

IN ADVANCE OF SEVERE WEATHER.

13. Improvements. No fixtures and no equipment, supplies, furnishings or other personal property (collectively, "improvements") shall be installed or placed on the Dock or any other portion of the Project by Licensee without written permission of the Manager. Any improvements made by Licensee hereunder (with the exception of loading platforms and/or loading gangways) shall become the property of Licensor and shall not be removed by

Licensee. Notwithstanding the foregoing to the contrary, Licensor, by written notice to

Licensee of at least 30 days prior to the termination date of this License Agreement may require Licensee to remove, at Licensee's expense, any such improvements made by

Licensee.

14. Use of Dock. Licensee shall use the Dock and all other portions of the Project in a clean, safe and orderly manner and shall request its passengers to do the same. No accumulation of litter, trash, debris or other disposable material shall be permitted on the

Dock. Licensee shall not be responsible for damage to the so-called "Shugart" floats or any other floats now existing or used in the future which reasonably is attributable to reasonable wear and tear, nor with which reasonably is attributable to the construction, design or layout of all or a portion of such floats.

15. Condition of Vessel. Licensee shall at all times maintain the Vessel in a safe and seaworthy condition. Licensee shall not at any time permit the Vessel to constitute a navigational, fire, explosion or other safety hazard. If, in Licensor's sole reasonable judgment, the condition of the Vessel at any time creates such a hazard, Licensee shall abate such hazard in a manner reasonably calculated to minimize the risk to the Commercial

Maritime Terminal, the Dock, other vessels and persons. If none of Licensee's personnel shall be on or about the Vessel or the Commercial Maritime Terminal at the time Licensor learns of any such hazard, Licensor shall use reasonable commercial efforts to contact

Licensee's contact person(s) for the Vessel in question so designated on Licensee's "Recall

List," as hereinafter defined. If Licensee's personnel on the Recall List shall not respond within thirty (30) minutes of Licensor's first attempt to contact such contact person, then

Licensor may, but shall have no duty or obligation to, take any actions necessary to abate the hazard, including without limitation, moving the Vessel to another berth at the Dock or removing the Vessel from the Commercial Maritime Terminal. Licensor may, but shall have

_10-no duty or obligation to, pump out any Vessel if such Vessel is in a sinking or swamped condition or raise any Vessel that has sunk. Should Licensor take any actions, Licensee shall upon receipt of invoices therefor pay to Licensor for the reasonable costs of services provided and shall reimburse Licensor for any such costs and expenses incurred. In the event that any damage or injury to the Dock, the Licensed Area or the Project is caused by

Licensee, Licensor may elect, at the sole cost and expense of Licensee, to undertake to repair any damage or injury to the Dock, the Licensed Area or the Project caused by Licensee.

16. Recall List. On or before the Term Commencement Date, Licensee shall provide Licensor with a Recall List, consisting of the name and telephone number of a contact person. Licensee shall give Licensor two (2) weeks' advance written notice of any change to the Recall List.

17. Operation of Vessel. Licensee shall operate the Vessel with due care so as to avoid injury to any person and so as to avoid damage to other vessels, property, the Licensed

Area, the Dock and the Commercial Maritime Terminal. Licensee shall coordinate its activities with those of Licensor's licensees and pennittees using any berths in the

Commercial Maritime Terminal other than the Licensed Area and/or any marina berths at the easternmost end of the Central Wharf. Licensee shall further operate the Vessel in compliance with the "Rules of the Nautical Road" as set forth in the International Regulation for the Prevention of Collisions at Sea (ColRegs) and the New Unified Inland Rules.

18. Right of Entry; Right to Move Vessel. Licensor may enter upon the

Licensed Area to inspect the Licensed Area, to make repairs to the Licensed Area and to take any actions necessary for the operation of the Commercial Maritime Terminal. Licensor may, in case of emergency and for safety reasons, enter the Vessel to inspect the Vessel and to take any action necessary in connection with any such emergency or safety-related condition. Licensor may move the Vessel, or cause the Vessel to be moved, after five (5) days' advance written notice to the Licensee (except that no advance notice shall be required in case of emergency), to make any repairs to the Licensed Area, the Dock or the

Commercial Maritime Terminal. Licensor may move the Vessel, or cause the Vessel to be moved, without notice to the Licensee, if otherwise permitted pursuant to this License

Agreement or in the event of any emergency.

19. Removal of Vessel on Termination. Upon the termination of this License

Agreement, Licensee shall remove the Vessel and all of its other personal property from the

Licensed Area, Dock and Commercial Maritime Terminal and shall vacate the Licensed

Area, Dock and Commercial Maritime Terminal. In addition to the rights provided under law and as may be set forth herein, in the event Licensee fails to remove the Vessel and any of Licensee's personal property from the Licensed Area, Dock and Commercial Maritime

Terminal following written notice from Licensor, Licensor may remove the Vessel and any of such Licensee's personal property and store the same elsewhere, all at Licensee's expense.

20. Schedules.

a. Licensee shall file an up-to-date schedule with Licensor promptly upon execution hereof and shall give Licensor at least one (1) week's advance written notice

(and shall use its reasonable commercial efforts to give Licensor two (2) weeks' advance written notice) of any change in such schedule in respect of Licensed Activities. Licensee shall conduct the Licensed Activity in accordance with the current schedule therefor, except in case of emergency. Licensee shall notify Licensor immediately of any emergency situation affecting or threatening to affect the conduct of the Licensed Activity in accordance with the current schedule.

b. Licensee may designate additional Operating Hours as Commuter

Hours. In addition, subject to availability of dock space and subject to payment of additional

License Fees in accordance with the Operations Plan, Licensee may designate non-Operating

Hours as Commuter Hours by giving Licensor two (2) weeks' advance written notice thereof.

During such additional Commuter Hours, this License of the Licensed Area shall be deemed to be exclusive, subject only to landings and/or layovers previously scheduled by Licensor under permits previously granted by Licensor. Licensor shall use reasonable commercial efforts to reschedule or relocate any such landings scheduled more than six (6) months in advance.

C. Licensee shall post and maintain in the Commercial Maritime

Terminal waiting room an up-to-date sign bearing Licensee's schedule. The design, layout and materials of such sign shall be subject to Licensor's prior written approval, which approval shall not be unreasonably withheld.

21. Compliance with Law. Licensee hereby covenants and agrees that it will operate and maintain the Vessel, and occupy and use the Licensed Area and the Dock in compliance with all applicable laws, codes, rules, regulations, ordinances, and by-laws

("Laws"), including but not limited to all applicable environmental and hazardous materials

Laws. Licensee shall upon receipt of invoices therefor, reimburse Licensor for any costs incurred by Licensor because of Licensee's failure to comply with any such Laws. Licensee, at its sole cost and expense, shall obtain, maintain and conspicuously display any and all permits, licenses and approvals required by any governmental authority for the operation of its business.

22. Events of Default. In addition to any other default specifically described in this License Agreement, each of the following occurrences shall be a "Default":

(a) Licensee's failure to pay any portion of the License Fee or other amounts payable hereunder when due, if the failure continues for ten (10) days after written notice to Licensee

("Monetary Default"); (b) either party's failure (other than a Monetary Default) to comply with any material term, provision, condition or covenant of this License Agreement, if the failure is not cured within thirty (30) days after written notice to the defaulting party, provided, however, if the defaulting party's failure to comply cannot reasonably be cured within thirty (30) days, the defaulting party shall be allowed additional time as is reasonably necessary to cure the failure so long as the defaulting party begins the cure within thirty (30) days and diligently pursues the cure to completion; (c) Licensee permits an assignment of this License Agreement, or a sub-license of the Licensed Area in violation of Section 24 of this License Agreement; or (d) Licensee's rights under this License Agreement are taken by process or operation of Law, other than as provided in Section 24 of this License Agreement.

-12-

All notices sent under this Section shall be in satisfaction of, and not in addition to, notice required by Law.

23. Remedies. Upon any Default by either party in the performance of the terms and conditions of this License Agreement, the other party shall have the right to terminate this License Agreement if the defaulting party fails to remedy or cause to be remedied such

Default within the time periods set forth in Section 22 above. The terms of this License

Agreement shall not be deemed to impair the right of any party to exercise any right or remedy, whether for damages, injunctions, specific performance or otherwise, upon any material breach or termination hereof.

24. Assignment.

a. Licensee shall not assign, sublicense, transfer or encumber any interest in this License Agreement or allow any third party to use any portion of the Licensed Area

(collectively or individually, a "Transfer") without the prior written consent of Licensor, which consent shall not be unreasonably withheld, conditioned or delayed, except as hereinafter described. Notwithstanding anything to the contrary in the foregoing, Licensee may (a) assign its interest hereunder to a successor to Licensee's function, or (b) enter into sublicense agreements, provided that (i) each such sublicense agreement obligates the sublicensee to perform all of Licensee's obligations hereunder insofar as they relate to the activities under such sublicense; (ii) Licensee files each such sublicense agreement with

Licensor prior to the commencement date of such sublicense, or in the event of new operating contract awards, as soon as reasonably possible; provided, however, that sublicenses granted to Licensee's current contractors may be filed with Licensor after the commencement date(s) thereof, but as soon as possible after the date hereof. Licensor acknowledges its prior receipt of all materials required for compliance with the terms of this

Section 24 with respect to Licensee's current sublicensee.

b. Any assignee or sublicensee shall, as a condition to its right to use the

Licensed Area, participate in and pass a "docking trial" under the supervision of the Manager or Dockmaster prior to commencing such use.

25. No Interest In Property. Licensee hereby acknowledges that the rights granted to it hereunder are those of a licensee only, and that no interest in real property is created hereby.

26. Notice. Any notices or other writings required or provided for hereunder shall be in writing and shall be given by hand delivery or mailed by United States registered or certified mail, postage prepaid, return receipt requested, or sent by overnight or same day courier service, addressed to the parties' addresses as set forth in Exhibit I or to such other addresses as either party may designate by written notice to the other party. No notice shall be effective unless received or tendered for delivery. Any notice to Licensee hereunder shall include a copy similarly addressed to: Manager of Private Carrier Services, Massachusetts

Bay Transportation Authority, 45 High Street, 5 th Floor, Boston, Massachusetts 021 10.

-13-

27. Limitation of Liability. No member of the Operations Board, the board of managers or the board of trustees of Licensor, nor Manager, shall have any personal or corporate liability for the obligations of Licensor hereunder. Licensee shall neither assert nor seek to enforce any claim for breach of this License Agreement against any of Licensor's assets other than Licensor's interest in the Project, the Commercial Maritime Terminal and the Dock and in the uncollected rents, issues and profits thereof, and Licensee agrees to look solely to such interest for the satisfaction of any liability of Licensor under this License

Agreement, it being specifically agreed that in no event shall Licensor (or any of the officers, trustees, directors, partners, beneficiaries, joint venturers, members, managers, stockholders, affiliates or other principals, agents, contractors or representatives, and the like, disclosed or undisclosed, thereof) or Manager ever be personally liable for any such liability. This paragraph shall not limit any right that Licensee might otherwise have to obtain injunctive relief against Licensor or to take any other action which shall not involve the personal liability of Licensor to respond in monetary damages from Licensor's assets other than the

Licensor's interest in said real estate, as aforesaid. In no event shall Licensor (or any of the officers, trustees, directors, partners, beneficiaries, joint venturers, members, managers, stockholders, affiliates or other principals, agents, contractors or representatives and the like, disclosed or undisclosed, thereof) or Manager ever be liable for lost business or lost profits, or for any form of special, indirect, or consequential damages.

28. Subordination to Mortgages; Estoppel Certificate. Licensee accepts this

License Agreement subject and subordinate to any mortgage(s), deed(s) of trust, ground lease(s) or other lien(s) now or subsequently arising upon the Licensed Area, the Dock or the

Project, and to renewals, modifications, refinancings and extensions thereof (collectively referred to as a "Mortgage"). The party having the benefit of a Mortgage shall be referred to as a "Mortgagee". This clause shall be self-operative, but upon request from a Mortgagee, Licensee shall execute a commercially reasonable subordination agreement in favor of the

Mortgagee. As an alternative, a Mortgagee shall have the right at any time to subordinate its

Mortgage to this License Agreement. Upon request, Licensee, without charge, shall attorn to any successor to Licensor's interest in this License Agreement. Licensor and Licensee shall each, within thirty (30) days after receipt of a written request from the other, execute and deliver a commercially reasonable estoppel certificate to those parties as are reasonably requested by the other (including a Mortgagee or prospective purchaser). Without limitation, such estoppel certificate may include a certification as to the status of this License

Agreement, the existence of any defaults and the amount of License Fee that is due and payable.

29. Obligations of Licensee. The parties hereto acknowledge that sublicensees are presently operating in the Licensed Area and that Licensee will enter into sublicense agreements at various times during the Term hereof. The sublicensee under such sublicense agreement will be conducting the Licensed Activities. Accordingly, the parties hereto acknowledge and agree that, in the first instance, such sublicensee shall be responsible for complying with all of the operational obligations of Licensee hereunder and Licensee shall cause such sublicensee to so comply. Notwithstanding anything to the contrary herein contained, Licensee shall remain primarily liable hereunder.

-14-

30. Waiver. The waiver of one breach of any term, condition, obligation or agreement under this License Agreement shall not be considered to be a waiver of that or any other term, condition, obligation or agreement or of any subsequent breach thereof.

31. Severability. If any provision of this License Agreement, or its application to any circumstance, shall be found to be invalid or unenforceable, the remaining provisions hereof, or the application of such provision to all other circumstances, shall not be affected thereby, and shall be fully valid and enforceable.

32. Entire Agreement. The License Agreement and the Exhibits made a part hereof contain the entire and only agreement between the parties hereto with respect to the subject matter hereof and any and all statements and representations, written and oral, including previous correspondence and agreements between the parties hereto, are merged herein.

33. Time of the Essence. Time is of the essence with respect to Licensee's exercise of any expansion, renewal or extension rights granted to Licensee. The expiration of the Term, whether by lapse of time, termination or otherwise, shall not relieve either party of any obligations which accrued prior to or which may continue to accrue after the expiration or termination of this License Agreement.

34. Transfer by Licensor. Licensor shall have the right to transfer and assign, in whole or in part, all of its rights and obligations under this License Agreement and in the

Dock or the Project upon written notice to Licensee. Upon transfer, Licensor shall be released from any further obligations hereunder and Licensee agrees to look solely to the successor in interest of Licensor for the performance of such obligations, provided that any successor shall have assumed Licensor's obligations under this License Agreement and shall have agreed to be bound by each of the terms hereunder.

35. Prevailing Party. If Licensor retains an attorney or institutes legal proceedings due to Licensee's failure to pay License Fees or other amounts occurring hereunder when due which continues uncured after any applicable notice and cure period, then Licensee shall be required to pay additional License Fees in an amount equal to the reasonable attorneys' fees and costs actually incurred by Licensor in connection therewith.

Notwithstanding the foregoing, in any action or proceeding between Licensor and Licensee, including any appellate or alternative dispute resolution proceeding, the prevailing party shall be entitled to recover from the non-prevailing party all of its costs and expenses in connection therewith, including, but not limited to, reasonable attorneys' fees actually incurred. Licensor and Licensee hereby waive any right to trial by jury in any proceeding based upon a breach of this License Agreement. No failure by either party to declare a default immediately upon its occurrence, nor any delay by either party in taking action for a default, nor Licensor's acceptance of License Fees with knowledge of a default by Licensee, shall constitute a waiver of the default, nor shall it constitute an estoppel.

36. Time for Performance. Whenever a period of time is prescribed for the taking of an action by Licensor or Licensee (other than the payment of the License Fees), the period of time for the performance of such action shall be extended by the number of days

-15-that the performance is actually delayed due to strikes, acts of God, shortages of labor or materials, war, terrorist acts, pandemics, civil disturbances and other similar causes beyond the reasonable control of the performing party ("Force Majeure").

37. License Not an Offer. Submission of this License Agreement by Licensor is not an offer to enter into this License Agreement but rather is a solicitation for such an offer by Licensee. Licensor shall not be bound by this License Agreement until Licensor has executed and delivered the same to Licensee.

38. Counterparts. This License Agreement may be executed in counterparts and shall constitute an agreement binding on all parties notwithstanding that all parties are not signatories to the original or the same counterpart provided that all parties are furnished a copy or copies thereof reflecting the signature of all parties.