MassDOT Service Plazas RFP - Form of Lease Appendix A Addendum 5 disclaimed.docx

GT Version Draft April 1, 2025

This Microsoft Word version of the Appendix A Definitions is provided only for the convenience of the Proposers and may include aberrations from the official Addendum Number 5 to the final Request for Proposals issued on September 30, 2024 in .pdf format. Proposers’ use of these Word versions is at their own risk.

APPENDIX A

DEFINITIONS

As used in this Lease, the following capitalized terms have the meanings set forth below.

“Act” has the meaning specified in the preamble.

“Additional Deposit” means $<> deposited by Operator upon its selection by MassDOT.

“Additional Rent” means any amounts other than the Operational Rent due to MassDOT under this Lease.

“Affiliate” in respect of a person means any other person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first person, where “control” means, with respect to the relationship between or among two or more persons, the possession, directly or indirectly or as trustee, personal representative or executor, of the power to direct or cause the direction of the affairs or management of a person, whether through the ownership of voting securities, as trustee, personal representative or executor, by statute, contract, credit arrangement or otherwise, including the ownership, directly or indirectly, of securities having the power to elect a majority of the board of directors or similar body governing the affairs of such person.

“Alternative Fuel” means any and all now existing or hereafter created means or sources of power for motorized vehicles, including electricity, natural gas, compressed natural gas, liquefied petroleum (propane), methanol, denatured ethanol, other alcohols, coal derived liquid fuels, hydrogen, fuels (other than alcohol) derived from biological materials, any fuel determined to be substantially not petroleum and yielding substantial energy security benefits and substantial environmental benefits, any of the foregoing that is mixed with Gasoline, Diesel or other fuels (including, without limitation, ethanol-85, methanol-85 and biodiesel blends at a minimum of twenty percent (20%) content) and any fuel designated as an “alternative fuel” (or comparable reference) by the Massachusetts Department of Energy Resources, or its successor, or under any Applicable Law. Alternative Fuel shall not include neat Gasoline and Diesel or EV charging.

“Amendment” has the meaning specified in Section 24.13.

“Annual Settlement Statement” has the meaning specified in Section 15.5.

“Anti-Corruption Laws” means all laws, rules and regulations of any jurisdiction from time to time concerning or relating to bribery or corruption.

“Anti-Money Laundering Laws” means all laws, rules and regulations of any jurisdiction from time to time concerning or related to anti-money laundering, including those contained in the Bank Secrecy Act and the Patriot Act.

“Appendix” means any of the Appendices and, as applicable, any schedules and attachments thereto, that are appended to this Lease and identified as such in the Table of Contents.

“Applicable Law” means:

In each case having the force of law and applicable from time to time to the Project or the transactions contemplated hereby.

“Assumed Approval Issuance Date” has the meaning specified in Section 8.5(C).

“ATM” means a machine or device through which financial transactions can be made, including cash withdrawals, deposits, transfers, bill payments and the like.

“Background Information” has the meaning specified in Section 7.10(A).

“Bankruptcy Related Event” means, in respect of any person:

“Base Case Equity IRR” means the Equity IRR calculated at the Financial Close. After a Refinancing, the Base Case Equity IRR will equal the Equity IRR calculated immediately after the Refinancing (taking into account the effect of the Refinancing and using the Financial Model as updated including as to the performance of the Project up to the date of the Refinancing) so as to be current immediately after the Refinancing.

“BMS” has the meaning specified in Section 9.2(B).

“Bond Financing” has the meaning specified in Section 5.2(D).

“Bonds” means the Performance Bond and the Construction Performance and Payment Bonds.

“Business Day” means a day other than a Saturday, Sunday, or a holiday recognized and designated in writing from time to time by MassDOT.

“Capital Investment” means the dollar value of capital investment made by the Operator in respect of the Revitalization Work for the Revitalization Improvements in accordance with this Lease.

“Capital Improvement” means the Revitalization Improvements and any subsequent improvements and alterations authorized by MassDOT to be made by the Operator at a Service Plaza, including replacements, pursuant to a Change Order or pursuant to Section 9.10.

“Change” means any change in the Contract Services relative to what is otherwise permitted or required under this Lease.

“Change Directive” has the meaning specified in Section 12.3.

“Change in Control” means with respect to a person a direct or indirect change in the ownership or control of any legal, beneficial, or equitable interest in any or all of the shares, units, or equity in the Operator (including the control over the exercise of voting rights conferred on equity share capital, unit interests or equity interests or the control over the right to appoint or remove directors, a general partner, a managing member or other managers), including changes arising from assignment or transfer of existing shares, units or equity, issuance of new shares, units or equity or amalgamation, merger consolidation, amendment of a limited partnership certificate or other reorganization, or any other direct or indirect change which results in a person or group of persons, other than the equity holders of the entity immediately prior to the change, directly or indirectly:

“Change in Costs” means, in respect of any MassDOT Change or Relief Event, and subject to all terms and conditions hereof, the effect of that event (whether of a singular or recurring nature, and whether positive or negative) upon the actual or anticipated costs, losses or liabilities of the Operator, including, as relevant and without double-counting, the following:

Provided that in no circumstances shall Change in Costs include any indirect costs or any cost incurred due to Operator Fault.

“Change in Law” means the coming into effect of any Applicable Law enacted after the Effective Date or any modification (including repeal) of any Applicable Law existing on the Effective Date that comes into effect after the Effective Date, compliance with which, in accordance with the Contract Standards, materially expands the scope or materially interferes with, delays or increases the cost of performing the Contract Services; provided that, none of the following shall constitute a Change in Law:

(1) Any law, statute, code or regulation that has been enacted or adopted on or before the Effective Date to take effect after the Effective Date;

(2) The denial, delay in issuance of, or imposition of any term or condition in connection with, any Governmental Approval required for the Contract Services;

(3) A change in the nature or severity of the actions typically taken by a Governmental Authority to enforce compliance with Applicable Law which was in effect as of the Effective Date;

(4) Any increase in any fines or penalties provided for under Applicable Law in effect as of the Effective Date;

(5) Any act, event or circumstance that would otherwise constitute a Change in Law but that does not change the requirements imposed on the Operator by the Contract Standards in effect as of the Effective Date; or

(6) Any change in Tax law other than a Discriminatory Change in Law relating to Tax law.

Revised or new MassDOT policies applicable to the Service Plazas after the Effective Date shall not constitute a Change in Law; however, any such revised or new policies may be considered a MassDOT Change as and to the extent provided in Section 7.3(A).

“Change Order” means a written order signed by MassDOT and the Operator, making a Change, adjusting the compensation payable by either Party hereunder, or adjusting any of the scheduled completion dates.

“CMMS” has the meaning specified in Section 9.2(B).

“Collateral Agent” means:

“Collective Indemnitees” means MassDOT Indemnitees and Commonwealth Indemnitees.

“Commencement Dates” means the Group 1 Commencement Date and the Group 2 Commencement Date.

“Commission” has the meaning specified in Section 9.9(A).

“Committed Investment” means:

(1) Any form of direct investment of good and immediately available funds by Equity Members, including the purchase of equity shares in and/or the provision of Equity Member Debt to the Operator; or

(2) An irrevocable written commitment to make the direct investment referenced in clause (1) of this definition, in good and immediately available funds, by a date which is no later than the Group 1 Commencement Date, coupled with an on demand letter of credit issued by a Qualified Commercial Bank for the account of an Equity Member naming the Operator as beneficiary and guaranteeing such commitment.

“Compliance Reports” has the meaning specified in Appendix.

“Commonwealth” means the Commonwealth of Massachusetts.

“Concessions Agreement” means the contract to be entered into by and among the Operator and a Project Contractor to provide for the performance of food and beverage services, ancillary services related thereto and certain facilities management services in connection with the O&M Services; provided that, if and to the extent of any self-performance of such food and beverage services, ancillary services related thereto and facilities management services in connection with the O&M Services by the Operator, subject to Section 13.3, references to the Concessions Agreement shall be construed either as references to this Lease, or as inapplicable, as the context may require.

“Confidential Information” has the meaning specified in Section 24.6(A).

“Construction Commencement Conditions” has the meaning specified in Section 8.4(B).

“Construction Performance Bond” means the performance bond covering faithful performance of the Operator’s obligations under this Lease during construction of Capital Improvements as described and maintained pursuant to this Lease.

“Construction Work” means all construction, alteration and related work performed by the Operator, including the Revitalization Work and any other Capital Improvements.

“Continuity of Operations Period” has the meaning specified in Section 3.2.

“Continuity Notice” has the meaning specified in Section 3.2.

“Contract Administration Memorandum” has the meaning specified in Section 24.12(D).

“Contract Services” means all obligations and services to be provided by the Operator under this Lease, including the O&M Services, the Revitalization Work and any other Construction Work.

“Contract Standards” means the standards, terms, conditions, methods, techniques and practices imposed or required by:

“Cooperation Fine” means [One Hundred Thousand and 00/100 Dollars ($100,000.00)] (or such lesser amount as MassDOT determines, in its discretion, is appropriate) for each violation by the Operator of the provisions of Section 23.8 herein.

“CPI” means the United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index for All Urban Consumers (CPI-U) Boston-Brockton-Nashua, MA-NH-ME-CT (1982-1984=100) or its replacement. In the event that the CPI (or a successor or substitute index) is no longer published by the Bureau of Labor Statistics, a comparable index published by another reliable governmental or independent provider of economic information selected by MassDOT shall be used in lieu of CPI.

“Deliverable Material” has the meaning specified in Section 7.11.

“Design, Construction and Environmental Requirements” means the requirements for the design, engineering, construction, and commissioning of the Revitalization Improvements and other Capital Improvements, and the environmental management and compliance of the Service Plazas as set forth Appendix E (Design, Construction and Environmental Requirements).

“Design and Construction Agreements” means the design, construction and/or design-build contracts to be entered into by and among the Operator and Project Contractors to provide for the performance of the Revitalization Work.

“Diesel” means Fuel sold for use in diesel motor vehicles and diesel motor vehicle engines and/or diesel internal combustion engines that is commonly or commercially known or sold as diesel fuel.

“Discriminatory Change in Law” means a Change in Law which, in the application or interpretation thereof, principally applies to discriminate or has the effect of discriminating against the Project or the Operator with respect to the Project and not other projects or persons.

“Dispute Resolution Procedures” means the procedures for the resolution of disputes between the Parties set forth in Article 21 (Dispute Resolution Procedures).

“Distribution” means, whether in cash or in kind, any:

(1) Dividend or other distribution in respect of shares or other capital;

(2) Reduction of capital, redemption or purchase of shares or any other reorganization or variation to share capital;

(3) Payments by the Operator under the Equity Member Funding Agreements (whether of principal, interest, breakage costs or otherwise);

(4) Payment, loan, contractual arrangement or transfer of assets or rights directly, to the extent (in each case) it was put in place after the Financial Close and was neither in the ordinary course of business nor on reasonable commercial terms; or

(5) Receipt of any other benefit which is not received in the ordinary course of business and not on reasonable commercial terms.

“Effective Date” has the meaning specified in the preamble.

“Effective Federal Funds Rate” means the volume-weighted median of overnight federal funds transactions reported in the FR 2420 Report of Selected Money Market Rates. In the event that the Effective Federal Funds Rate (or a successor or substitute rate) is no longer published by the Federal Reserve Bank of New York, a comparable rate published by another reliable governmental or independent provider of economic information selected by MassDOT shall be used in lieu of the Effective Federal Funds Rate.

“Electric Vehicle Charging Agreement” means the contract to be entered into by and among the Operator and a Project Contractor to provide for the performance of EV charging services, ancillary services related thereto and certain facilities management services in connection with the O&M Services; provided that, if and to the extent of any self-performance of EV charging services, ancillary services related thereto and facilities management services in connection with the O&M Services by the Operator, subject to Section 13.3, references to the Electric Vehicle Charging Agreement shall be construed either as references to this Lease, or as inapplicable, as the context may require.

“Electric Vehicle Infrastructure Requirements” means the requirements specified in Appendix K (Electric Vehicle Infrastructure Requirements).

“Encumbrance” means any Lien, lease, mortgage, security interest, charge, judgment, judicial award, attachment or encumbrance of any kind with respect to the Project.

“Environmental Laws” means any and all present and future federal, state, or local law, rule of regulation (whether now existing or hereafter enacted or promulgated, as may be amended from time to time) pertaining to environmental or health and safety-related regulations, natural resources, contamination, clean-up, remediation or disclosures, and any judicial or administrative interpretation thereof, including any judicial or administrative orders or judgments including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601 et seq.; the Federal Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq.; the Clean Water Act, 33 U.S.C. §§ 1251 et seq.; the Clean Air Act, 42 U.S.C. §§ 7401 et seq.; the Superfund Amendments and Re-authorization Act of 1986, Public Law No. 99-499; the Toxic Substances Control Act, 15 U.S.C.§§ 2601 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. §§ 1801 et seq.; the Massachusetts Hazardous Waste Management Act, M.G.L. c. 21C; the Emergency Planning and Community Right to Know Act, 42 U.S.C. §§ 11001 et seq.; the Occupational Safety and Health Act as amended, 29 U.S.C. §§ 655 and §§ 657 et seq.; the Massachusetts Oil and Hazardous Material Release Prevention and Response Act, M.G.L. c. 21E; the Massachusetts Toxic Use Reduction Act, M.G.L. c. 211; the Underground Storage Tank Petroleum Product Cleanup Fund, M.G.L. c. 211; the Wetlands Protection Act, M.G.L. c. 131. § 40; and any other federal or state statute or city or county ordinance regulating the generation, storage, containment, treatment or disposal of any Hazardous Substances or providing for the protection, preservation or enhancement of the natural environment, any rules or regulations promulgated pursuant to any of the foregoing statutes or ordinances, including but not limited to laws relating to groundwater and surface water pollution, air pollution, storage and disposal of oil and hazardous wastes, substances and materials and storm water drainage.

“Environmental Management Plans” means the plans developed by the Operator to ensure environmental compliance at each of the Service Plazas, and added to Appendix E (Design, Construction and Environmental Requirements).

“Environmental Remediation Protocol” has the meaning specified in Section 11.1.

“Equity Commitment Letter” has the meaning specified in Section 5.2(E).

“Equity IRR” means the nominal post-tax internal rate of return to the Committed Investment described in clause (1) of the definition of Committed Investment over the full Term calculated, using the Financial Model, at the discount rate that, when applied to Committed Investment cash flows, gives a zero net present value; provided that:

(1) The phrase “post-tax” refers only to a single level of U.S. federal and State income tax liability of the Operator or its Equity Members, calculated at a rate no greater than the maximum rate charged to domestic corporations and taking into account the deductibility of state and local taxes for federal purposes, and specifically excludes (a) any foreign income tax and other tax of any kind and (b) any withholding tax for federal, state and local tax purposes, including any tax that the Operator or an Equity Member is obligated to withhold on Distributions (whether actual or constructive) or other payments or allocations to Equity Members or holders of debt of or equity interests in an Equity Member under 26 U.S.C. §§ 1441 — 1446, notwithstanding 26 U.S.C., § 1461, or any similar State or local law; and

(2) The phrase “cash flows” refers to Distributions, minus Committed Investment described in clause (1) of the definition of Committed Investment.

“Equity Member” means any person with a direct equity interest in the Operator.

“Equity Member Debt” means any obligations created, issued or incurred by the Operator for borrowed money that:

(1) Is owed to any Equity Member or any Affiliate thereof; and

(2) Is subordinated in priority of payment and security to all Project Debt held by persons who are not Equity Members.

“Equity Member Funding Agreement” means any loan agreement, credit agreement or other similar financing agreement or subordination agreement providing for or evidencing Equity Member Debt.

“EV” means electric vehicle.

“Event of Default” has the meaning specified in Section 22.2(A).

“Exempt Refinancing” means:

“Expiration Date” means April 1, 2061 (at 11:59 PM), as may be extended pursuant to Section 3.1(D), Section 3.2 or Section 18.5.

“Fees and Costs” means reasonable fees and expenses of employees, attorneys, architects, engineers, expert witnesses, contractors, consultants and other persons, and costs of transcripts, printing of briefs and records on appeal, copying and other reimbursed expenses, and expenses reasonably incurred in connection with investigating, preparing for, defending or otherwise appropriately responding to any Legal Proceeding.

“Financial Close” means the closing of the Project Debt.

“Financial Model” means each financial model delivered by the Operator to MassDOT pursuant to Section 5.2.

“Financial Plan” means the plan of finance for the construction of the Revitalization Improvements included in the Master Revitalization Plan and in any Plaza Management Plans approved by MassDOT.

“Financing Documents” means the Security Documents together with any other documents designated as such by the Parties in accordance with the terms and conditions of this Lease.

“First Surrender Inspection” has the meaning specified in Section 10.8(B).

“Fitch” means Fitch Ratings Ltd., or any of its successors and assigns. If such corporation is dissolved or liquidated or no longer performs the functions of a securities rating agency, “Fitch” shall be deemed to refer to any other nationally-recognized securities rating agency designated by MassDOT.

“Force Majeure” means the occurrence of:

In each case, subject to all terms and conditions of Article 18 (Supervening Events).

“Fuel” means Gasoline, Diesel and Alternative Fuels, if and to the extent provided by the Operator under this Lease with respect to the applicable Service Plaza.

“Fuel Rent” means, for any measurement period, the sum of (1) <> cents ($0.<>) per gallon for the total gallons of Gasoline and Diesel sold at a Service Plaza during the applicable measurement period plus (2) an amount for each unit sold of Alternative Fuels at a Service Plaza during the measurement period (excluding Alternative Fuel from facilities operated by third-parties pursuant to Section 9.11(E)), which amount is designed to approximate as nearly as possible the amount applicable to Gasoline and Diesel. The <> cents ($0.<>) per gallon amount set forth above shall be increased every third anniversary of January 1, 2026 by an amount equal to the greater of (a) increases in CPI and (b) zero percent (0%).

“Fuel Service” means the provision, service, and/or sale of Fuel.

“Fuel Service Agreement” means the contract to be entered into by and among the Operator and a Project Contractor to provide for the performance of Fuel Service, ancillary services related thereto and certain facilities management services in connection with the O&M Services; provided that, if and to the extent of any self-performance of such Fuel Service, ancillary services related thereto and facilities management services in connection with the O&M Services by the Operator, subject to Section 13.3, references to the Fuel Service Agreement shall be construed either as references to this Lease, or as inapplicable, as the context may require.

“Fuel Service Equipment” means any and all furnishings, fixtures, machines and/or equipment used in connection with Fuel or Fuel Service, including the temporary and/or permanent storage, fueling, delivery servicing, monitoring and repairing of such items, including fuel pumps, fuel storage tanks, fuel delivery systems, fire and other safety systems and any equipment to monitor or protect against a Release of Fuel; and all additions thereto and alterations, modifications and replacements thereof. Without limiting the generality of the foregoing “Fuel Service Equipment” shall include all equipment used in connection with the storage, fueling, delivery, servicing, monitoring and repairing of Fuel Service Equipment as of the applicable Commencement Date.

“GAAP” means generally accepted accounting principles in effect and consistently applied in the United States (including the accounting recommendations published in the Handbook of the American Institute of Certified Public Accountants).

“Gasoline” means Fuel sold for use in motor vehicles and motor vehicle engines and/or internal combustion engines that is commonly or commercially known or sold as gasoline, including, but not limited to, E-85 or any related biofuels.

“Good Engineering and Construction Practice” means, with respect to the Revitalization Improvements and other Capital Improvements, those methods, techniques, standards and practices which, at the time they are to be employed and in light of the circumstances known or reasonably believed to exist at such time, are generally recognized and accepted as good design, architecture, engineering, equipping, installation, construction and commissioning practices for the design, construction and improvement of projects similar to and of equal or better quality than the Service Plazas.

“Good Industry Practice” means, with respect to the O&M Services, those methods, techniques, standards and practices which, at the time they are to be employed and in light of the circumstances known or reasonably believed to exist at such time, are generally recognized and accepted as good practice in the delivery of maintenance and operational services for projects similar to and of equal or better quality than the Service Plazas.

“Governmental Approvals” means all permits, licenses, authorizations, consents, certifications, exemptions, rulings, entitlements and approvals issued by a Governmental Authority of whatever kind and however described which are required under Applicable Law to be obtained or maintained by any person with respect to the Contract Services.

“Governmental Authority” means any federal, Commonwealth, regional or local legislative, executive, judicial or other governmental board, department, agency, Authority, commission, administration, court or other body (including MassDOT, acting in its governmental capacity other than as a party to this Lease), or any official thereof, having jurisdiction in any way over or in respect of any aspect of the performance of this Lease or the Project.

“Gross Sales” means amounts generated from the sale of all items and the provision of all services at all of the Service Plazas, excluding the sale of Fuel, but including, but not limited to, foods, beverages, EV charging (including idling fees), commodities, merchandise, articles and services, rental of equipment, prepaid product commissions, fees or charges payable by truckers for use of any trucker facilities, income derived from ATMs, money order fees and the amounts generated from sales and provision of services of any nature whatsoever at the Service Plazas, whether sold for consumption or use on or off the premises, without deduction for cost of merchandise or rentals of any kind whatsoever. Without limiting the foregoing, Gross Sales shall also include income from sales of cigarettes sold in packs and cigarettes sold in cartons above the applicable Commonwealth minimum price. Gross Sales, however, shall not include amounts generated from Fuel sales, retail sales taxes, merchandise deposits (except upon ultimate sale of the merchandise), sale price of returned merchandise, sales of lottery tickets, sales of EZPass Tags, sales of cigarette cartons sold at the applicable Commonwealth minimum price, revenue generated from EV chargers operated by third-parties pursuant to Section 14.1(D), revenue generated from the services listed in Section 14.1(A)(1), (3), (4), (5) and (6) or any similar services unless provided by the Operator, and amounts generated from food, beverage and other self-serve vending machines (including ATMs) operated by the Massachusetts Commission for the Blind. In the event the Massachusetts Commission for the Blind determines at any time during the Term that it will not provide for operation of some or all of the proposed food, beverage and other self-serve vending machines, the Operator shall be responsible for the proposed food, beverage and other self-serve vending machines that are not provided through the Massachusetts Commission for the Blind, and amounts generated from such food, beverage and other self-serve vending machines shall be included in Gross Sales.

“Group 1 Commencement Date” means January 1, 2026 at 12:01 A.M.

“Group 1 Service Plaza” means (1) each of the eleven service plazas located along the Massachusetts Turnpike consisting of (a) westbound locations in Framingham, Westborough, Charlton, Ludlow, Blandford and Lee and (b) eastbound locations in Lee, Blandford, Ludlow, Charlton and Natick, and (2) each of the following three service plazas: one service plaza located on I-95 northbound in Lexington; one service plaza located on I-95 southbound in Newton; and one service plaza located on Route 3 at exit 5 in Plymouth.

“Group 2 Commencement Date” means July 1, 2027 at 12:01 A.M.

“Group 2 Service Plaza” means each of the following four Service Plazas: one service plaza located on Route 6 at exit 6 in Barnstable; one service plaza located on Route 128 northbound in Beverly; one service plaza located on Route 24 northbound in Bridgewater; and one service plaza located on Route 24 southbound in Bridgewater.

“Hazardous Substance” means any oil or petroleum product, any hazardous or toxic waste or substance, any substance which because of its quantitative, concentration, chemical, radioactive, flammable, explosive, infectious or other characteristics, constitutes or may reasonably be expected to constitute or contribute to a danger or hazard to public health, safety or welfare or to the environment, including without limitation any asbestos (whether or not friable) and any asbestos-containing materials, lead paint, waste oils, solvents and chlorinated oils, polychlorinated biphenyls, toxic metals, etchants, pickling and plating wastes, explosives, reactive metals, and compounds, pesticides, herbicides, radon gas, urea formaldehyde foam insulation and chemical, biological and radioactive waste, or any other similar materials which are included under or regulated by any Environmental Laws.

“Hazardous Substances Condition” means contamination (whether existing on the Effective Date or thereafter occurring) of any improvements, facilities, soil, groundwater, air or other elements on, in or of the Service Plazas by Hazardous Substances, or the contamination of any improvements, facilities, soil, groundwater, air or other elements on, in or of any other property as a result of Hazardous Substances emanating from the Service Plazas at any time, whether before or after the Effective Date.

“Highway” and “Highways” have the meaning specified in the recitals.

“Implementation Proposal” has the meaning specified in Section 12.2(B).

“Initial Deposit” means $<> deposited by Operator at the time it submitted its Proposal to MassDOT in response to the RFP.

“Insurance Condition” means any term or condition required to be in a policy of Required Insurance hereunder, excluding the coverage of any risk.

“Intellectual Property” means any trade secrets, proprietary rights, patents, copyrights or trademarks recognized under Applicable Law.

“IP License Proposals” has the meaning specified in Section 5.2(A).

“Key Personnel” means the key management and supervisory personnel identified in Appendix N (Key Personnel, Project Contractors and Subcontractors).

“Labor Peace Agreement” has the meaning specified in Section 13.1(G).

“Landlord” has the meaning specified in the preamble.

“Lease” has the meaning specified in the preamble.

“Lease Year” means each calendar year during the Term commencing on (and including) January 1 in any year and ending on December 31 in such year; . Any computation of the first Lease Year for the Group 2 Service Plazas shall be adjusted on a pro rata basis to take into account that the Group 2 Commencement Date is on July 1, 2027. In addition, any other computation made on the basis of a Lease Year shall be adjusted on a pro rata basis to take into account any Lease Year of less than 365 or 366 days, whichever is applicable.

“Leasehold Mortgage” means any mortgage granted and held in full compliance with the terms of this Lease and constituting a lien upon the interest of the Operator in this Lease and the leasehold estate hereby created.

“Leasehold Mortgagee” means the party acting as mortgagee under a Leasehold Mortgage, provided, however, that any Leasehold Mortgagee must be a Lender.

“Legal Proceeding” means every action, suit, litigation, arbitration, administrative proceeding, and other legal or equitable proceeding having a bearing upon this Lease, and all appeals therefrom; provide, however, that arbitration shall only be applicable if both Parties, in their sole discretion, agree to participate in arbitration.

“Lender” means:

“Lenders’ Commitment Letter” has the meaning specified in Section 5.2(D).

“Lenders’ Remedies Agreement” means the agreement between MassDOT, the Lenders, and the Operator in the form set forth in Appendix F (Form of Lenders’ Remedies Agreement)].

“Letter of Credit” has the meaning specified in Section 20.4(A).

“Lien” means any and every lien against the Project for or on account of the Contract Services, including mechanics’, materialmen’s, laborers’ and lenders’ liens.

“Liquidated Damage Right” has the meaning specified in Section 22.1(D).

“Loss-and-Expense” means and is limited to any and all actual losses, liabilities, forfeitures, obligations, damages, fines, penalties, judgments, deposits, taxes, charges, costs or expenses, including all Fees and Costs, except as explicitly excluded or limited under any provision of this Lease, relating to third party claims for which the Operator is obligated to indemnify the Collective Indemnitees pursuant to this Lease.

“Marks” has the meaning specified in Section 24.7.

“MassDOT” has the meaning specified in the preamble.

“MassDOT Change” means any Change that the Operator is required to implement at the direction of MassDOT pursuant to a Change Order or Change Directive issued in accordance with Article 12 (Changes), subject to the exclusions set forth therein.

“MassDOT Change Notice” has the meaning specified in Section 12.2(A).

“MassDOT Contract Representative” means any individual specified in writing by MassDOT pursuant to Section 24.12(A) as the representative of MassDOT from time to time for all purposes under this Lease.

“MassDOT Contract Representative’s Final Decision” has the meaning specified in Section 21.1(C).

“MassDOT Fault” means:

1. A default by MassDOT under this Lease which continues beyond any notice and cure periods, including the notice and cure periods set forth in Section 22.8 of this Lease;

1. A breach of any representation or warranty made by MassDOT under Section 2.1 of this Lease;

1. A violation of Applicable Law by any MassDOT Person in the performance of MassDOT’s obligations under this Lease; or

1. Willful misconduct of any MassDOT Person

“MassDOT Person” means any director, officer, member, employee, agent, representative, consultant, contractor or subcontractor of MassDOT, excluding any Operator Person.

“MassDOT Step-In Action” has the meaning specified in Section 22.7(C).

“Master Revitalization Plan” means the Master Revitalization Plan attached to the Lease as Appendix C.

“Mediator” means any person serving as a mediator of disputes pursuant to the Dispute Resolution Procedures.

“MEPA” has the meaning specified in Section 8.2(B).

“Minimum Annual Guaranteed Rent” has the meaning specified in Section 15.1(C).

“Moody’s” means Moody’s Investors Service Inc. or any of its successors and assigns. If such corporation shall be dissolved or liquidated or shall no longer perform the functions of a securities rating agency, “Moody’s” shall be deemed to refer to any other nationally-recognized securities rating agency designated by MassDOT.

“Monthly Progress Report” has the meaning specified in Section 8.6(A).

”Negative Impacts” has the meaning specified in Section 24.35 “No Better and No Worse” shall be construed by reference to the Operator’s:

(1) Rights, duties and liabilities under or arising pursuant to performance of this Lease, the Financing Documents and the Project Contracts;

(2) Risks borne by the Operator under the terms and conditions of this Lease; and

(3) Ability to perform its obligations and exercise its rights under this Lease, the Financing Documents and the Project Contracts, so as to ensure that:

“Non-Binding Mediation” means the voluntary system of dispute resolution established under the Dispute Resolution Procedures for addressing disputes arising under this Lease.

“O&M Period” means the period from (a) the Group 1 Commencement Date with regard to the Group 1 Service Plazas and (b) the Group 2 Commencement Date with regard to the Group 2 Service Plazas, in each case, to and including the Termination Date, during which the Operator will carry out its O&M Services; except that, the O&M Period for each Service Plaza shall be temporarily suspended during the Revitalization Period for such Service Plaza or during the period that MassDOT is revitalizing the Service Plaza pursuant to Section 5.5.

“O&M Services” means everything required to be furnished and done for and relating to the operation and management of the Service Plazas by the Operator pursuant to this Lease during the O&M Period. O&M Services include, subject to the terms and conditions hereof, the employment and furnishing of all labor, materials, equipment, supplies, consumables, tools, storage, transportation, insurance, sales, delivery and other things and kinds of services whatsoever necessary for the full performance of the Operator’s operation, maintenance, repair, replacement, management, obtaining and maintaining Governmental Approvals and related obligations under this Lease, and all of the Operator’s administrative, accounting, recordkeeping, reporting, notification and similar responsibilities of every kind whatsoever under this Lease pertaining to such obligations.

“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.

“Opening Date” has the meaning specified in Section 8.4(A).

“Operational Rent” has the meaning specified in Section 15.1(B).

“Operations and Maintenance Agreement” means the contract to be entered into by and among the Operator and a Project Contractor to provide for the performance of certain operations and maintenance services in connection with the O&M Services; provided that, if and to the extent of any self-performance of such services in connection with the O&M Services by the Operator, subject to Section 13.3, references to the Operations and Maintenance Agreement shall be construed either as references to this Lease, or as inapplicable, as the context may require.

“Operations and Maintenance Performance Standards” means the standards specified in Appendix G (Operations and Maintenance Performance Standards).

“Operations and Maintenance Plans” means the plans developed by the Operator to address operations and maintenance at the Service Plazas, as…