RETAIL_PACKAGE_CONCESSIONS_AGREEMENT_-_061224.pdf

RETAIL PACKAGE

CONCESSION AGREEMENT NO. __________

Orlando International Airport

Orlando, Florida

Effective Date

[Company Name] i

TABLE OF CONTENTS

RETAIL PACKAGE

CONCESSION AGREEMENT

Orlando International Airport

ARTICLE I. – BASIC TERMS

A. Leased Premises B. Occupancy Date C. Commencement Date D. Termination Date E. Percentage of Gross Receipts F. Annual Rental Fee G. Initial Minimum Annual Privilege Fee H. Initial Minimum Annual Concession Fee I. Initial Period J. Minimum Cost of Original Improvements K. Construction Completion Date L. Refurbishment Period M. Minimum Concession Improvement Amount N. Concession Improvement Trust O. ACDBE Participation Percentage P. Monthly Utilities Fee Q. Common Services Fee R. Contract Bond/Letter of Credit S. Guarantor T. Removal of Property U. Company Notice Address and Contact Person

ARTICLE II. – DEFINITIONS

A. “Affiliate” B. “Agreement” C. “Agreement Period” D. “Airport Concession Disadvantaged Business Enterprise or ACDBE” E. “Annual Rental Fee” F. “Attorneys' Fees” G. “Chief Executive Officer” H. “Concession” I. “Expendable” J. “Gross Receipts” K. “Improvement" or "improvement” L. “Liquidated Damages” M. “Minimum Annual Concession Fee” N. “Minimum Annual Privilege Fee” O. “Net Book Value” P. “Original Improvement” Q. “Person” R. “Premises” S. “Privilege Fee” T. “Proposal” U. “Terminal Complex”

ARTICLE III. – RIGHTS AND PRIVILEGES GRANTED TO COMPANY

A. Rights and Premises ii

B. Occupancy of Premises and Commencement of Business C. Non-exclusivity D. Relocation/Surrender of Premises

ARTICLE IV. – USE OF PREMISES

A. Permitted Uses B. Discontinuance, Addition, Deletion of Items C. Relation to Other Concessions D. Violation of Permitted Uses

ARTICLE V. – TERM

ARTICLE VI. - CONCESSION FEES AND ACCOUNTING RECORDS

A. Concession Fee B. Sales, Use, Ad Valorem and Other Taxes C. Annual Certification of Fees D. Books and Records/The Aviation Authority's Right to Audit E. Cash Handling Procedures F. Additional Sums Due the Aviation Authority G. Communications Concerning Disputed Debts

ARTICLE VII. – IMPROVEMENTS TO PREMISES

A. Improvements to be Provided by the Aviation Authority B. Improvements to be Constructed by Company C. Requirements and Procedures D. Time Schedule Preparation and Approval of Plans and Specifications E. Completion of Improvements F. Removal of Property G. Periodic Refurbishment of Premises

ARTICLE VIII. – AIRPORT CONCESSION DISADVANTAGED BUSINESS ENTERPRISE

PARTICIPATION REQUIREMENTS

A. Airport Concession Disadvantaged Business Enterprise Program B. ACDBE Program Compliance C. Reporting D. ACDBE Certification Update E. Joint Venture Requirements F. Failure to Maintain Proposed Participation

ARTICLE IX. – UTILITY/COMMON SERVICES/MARKETING FEES

A. Utility Fees B. Common Services and Marketing Fees C. Monthly Payment of Fees

ARTICLE X. – OBLIGATIONS OF COMPANY

A. Standards for Operating Concession B. Maintenance of Premises C. Correction of Violations D. Cooperation with Successor Concessionaire

ARTICLE XI. – OBLIGATIONS OF THE AVIATION AUTHORITY

iii

A. The Aviation Authority's Maintenance Obligation B. No Other Obligation of the Aviation Authority

ARTICLE XII. – CONTRACT BOND OR LETTER OF CREDIT/GUARANTY

ARTICLE XIII. – THE AVIATION AUTHORITY'S RIGHT TO REPAIR OR ALTER FACILITIES

ARTICLE XIV. – INDEMNIFICATION AND INSURANCE

A. Indemnification B. Liability Insurance C. Property Insurance D. The Aviation Authority's Right to Purchase E. Member Protection F. Survival of Provisions

ARTICLE XV. – DAMAGE OR DESTRUCTION

A. Minor Damage B. Substantial Damage C. Extensive Damage D. Limits of the Aviation Authority's Obligations Defined E. Damage or Destruction of Improvements

ARTICLE XVI. – DEFAULT BY COMPANY

A. Events of Default B. Remedies Upon Company's Default C. Further Provisions Regarding Default

ARTICLE XVII. – LIQUIDATED DAMAGES

A. The Aviation Authority’s Right to Liquidated Damages

ARTICLE XVIII. – ASSIGNMENT AND SUBCONTRACTS

A. The Aviation Authority's Right to Approve Assignments and Subcontracts B. Transfer of Substantial Interest in Company C. Considerations for Approval D. Divestiture for Market Integrity

ARTICLE XIX. – WAIVER OF CLAIMS

ARTICLE XX. – REQUIRED, GENERAL AND MISCELLANEOUS PROVISIONS

A. Required Covenants B. Remedies; Attorneys' Fees and Costs C. Warranty of Company as to Conflicts of Interest D. Notices E. Regulations of the Aviation Authority F. Interest G. Miscellaneous Provisions H. Airport Security Responsibilities and Badging I. Applicable Law J. Dispute Resolution K. Public Entity Crimes Act L. Force Majeure M. No Third-Party Beneficiaries iv

N. Further Assurances O. Covenants, Conditions, and Restrictions P. Non-Waiver Q. Representations by the Company R. Right to Amend S. Entire Agreement T. Whistle Blower Reporting Line U. Counterparts V. Electronic Signatures

EXHIBIT A - PREMISES ........................................................................................................................... A-1

EXHIBIT B – LIST OF MERCHANDISE ................................................................................................... B-1

EXHIBIT C – MONTHLY REVENUE REPORT ........................................................................................ C-1

EXHIBIT D - PERFORMANCE AND PAYMENT BONDS ........................................................................ D-1

EXHIBIT E – STANDARDS FOR OPERATING CONCESSION .............................................................. E-1

A. Operating Hours. ............................................................................................................. E-1 B. Type of Operation. .......................................................................................................... E-1 C. Quality of Merchandise. .................................................................................................. E-1 D. PCI Compliance. ............................................................................................................. E-2 E. Standards of Service. ...................................................................................................... E-3 F. Sanitary Condition of Premises and Equipment. ............................................................ E-3 G. Deliveries. ....................................................................................................................... E-3 H. Reasonable Prices. ......................................................................................................... E-4 I. Signs and Graphics. ........................................................................................................ E-4 J. Change Making Services. ............................................................................................... E-5 K. Paging System. ............................................................................................................... E-5 L. Manager. ......................................................................................................................... E-5 M. Personnel. ....................................................................................................................... E-5 N. Automobile Parking. ........................................................................................................ E-5 O. Shopping Service. ........................................................................................................... E-5 P. Customer Complaints...................................................................................................... E-6 Q. No Smoking Policy. ......................................................................................................... E-6 R. Sustainability. .................................................................................................................. E-6 S. Enforcement. ................................................................................................................... E-7

EXHIBIT F – CONTRACT BOND .............................................................................................................. F-1

EXHIBIT G - IRREVOCABLE STAND-BY LETTER OF CREDIT FOR CONCESSIONS

AGREEMENT .............................................................................................................................. G-1

EXHIBIT H - AGREEMENT OF GUARANTY ........................................................................................... H-1

EXHIBIT I – REQUIRED COVENANTS ...................................................................................................... I-1

A. Agreements with the United States, State of Florida, County of Orange and City of Orlando. ......................................................................................................................................... I-1 B. Right to Amend. ................................................................................................................ I-1 C. Covenants Against Discrimination. ................................................................................... I-1 D. Right to Modify. ................................................................................................................. I-3 E. Tax Exempt Status of the Aviation Authority’s Revenue Bonds. ...................................... I-3

RETAIL PACKAGE

CONCESSION AGREEMENT

ORLANDO INTERNATIONAL AIRPORT

THIS RETAIL PACKAGE CONCESSION AGREEMENT (the "Agreement") is made and entered into this ____ day of ______________, 202__ (the “Effective Date”), by and between the GREATER ORLANDO AVIATION AUTHORITY, a public and governmental body, existing under and by virtue of the laws of the State of Florida, whose address is One Jeff Fuqua Boulevard, Orlando, Florida 32827-4399 (the "Aviation Authority"), and [Company Name], a [Type of Company] whose address is [Company Address] (the "Company").

W I T N E S S E T H:

WHEREAS, pursuant to that certain Amended and Restated Operation and Use Agreement dated August 31, 2015 with the City of Orlando (hereinafter referred to as "City"), the Aviation Authority controls, operates, and maintains an airport in Orange County, State of Florida, known as Orlando International Airport (hereinafter referred to as the "Airport"); and

WHEREAS, the Aviation Authority operates and maintains a Terminal Complex at the Airport, including satellite airside buildings, which contains facilities for basic passenger processing and related services and amenities (hereinafter referred to as the "Terminal Complex"); and

WHEREAS, the Aviation Authority has designated certain areas within the Terminal Complex from which merchandise may be offered for sale and provided for the benefit and convenience of airline passengers and other visitors; and

WHEREAS, in accordance with the Aviation Authority's "Policy for Awarding Concession and Consumer Service Privileges in the Terminal Complex at Orlando International Airport, Orlando, Florida," as amended (the "Concession Policy"), the Aviation Authority has awarded a concession to Company for the non-exclusive right to operate the Premises for the Term and on the terms and conditions hereinafter set forth; and

WHEREAS, Company warrants to the Aviation Authority that it meets the eligibility criteria, and it is qualified to conduct the business and meet the obligations hereinafter stated;

NOW, THEREFORE, for and in consideration of the Premises and of the mutual covenants hereinafter contained, the parties hereto do hereby agree as follows:

ARTICLE I. – BASIC TERMS

This ARTICLE I contains the basic terms of this Agreement. Capitalized terms used in this Agreement will have the meanings given them in this ARTICLE I and elsewhere in this Agreement.

A. Leased Premises EXHIBIT A

B. Occupancy Date [90] [120] days prior to Commencement Date

ARTICLE III.B

C. Commencement Date The earlier of the date Company completes its initial improvements and opens for business to the public in the Premises or _______________, 202___

ARTICLE V

D. Termination Date _______________, 202___

ARTICLE V

E. Percentage of Gross Receipts

[Insert Gross Receipts and Percentage chart]

ARTICLE VI.A

F. Annual Rental Fee [Complete Rent Chart for entire Term which includes 3% escalator]

Agreement Period Annual Rent Monthly Rent

Initial Period $00,000.00 $0,000.00 2 $00,000.00 $0,000.00 3 $00,000.00 $0,000.00 4 $00,000.00 $0,000.00 5 $00,000.00 $0,000.00 6 $00,000.00 $0,000.00 7 $00,000.00 $0,000.00 8 $00,000.00 $0,000.00 9 $00,000.00 $0,000.00 10 $00,000.00 $0,000.00

ARTICLE VI.A.1.a

G. Initial Minimum Annual Privilege Fee

ARTICLE VI.A.1.a

H. Initial Minimum Annual Concession Fee

ARTICLE VI.A.1.a

I. Initial Period Commencement Date to September 30, 20__

J. Minimum Cost of Original Improvements

ARTICLE VII.B.2

K. Construction Completion Date

__________ days

ARTICLE VII.E.1

L. Refurbishment Period Beginning October 1, 202___ and ending September 30, 20____

ARTICLE VII.G

M. Minimum Concession Improvement Amount

ARTICLE VII.G

N. Concession Improvement Trust

Commencing on _______________, 202___ $__________ per month for _______ months

ARTICLE VII.G

O. ACDBE Participation Percentage

ARTICLE VIII.B

P. Monthly Utilities Fee $__________ per square foot per month

ARTICLE IX.A

Q. Common Services Fee

Marketing Fee

__________% of Gross Receipts

__________% of Gross Receipts

ARTICLE IX.B

R. Contract Bond/Letter of Credit

[50% or 100%] of Minimum Annual Concession Fee as adjusted in ARTICLE XII

S. Guarantor [Name]

EXHIBIT H

T. Removal of Property __________ calendar days upon expiration or termination of Agreement

ARTICLE VII.F

U. Company Notice Address and Contact Person

Name:

Address:

Phone Number:

E-mail:

Name:

Address:

Phone Number:

E-mail:

ARTICLE XX.D

ARTICLE II. – DEFINITIONS

Capitalized terms used in this Agreement and not otherwise defined shall have the following meanings:

A. “Affiliate” of any Person shall mean any other Person directly or indirectly controlling or controlled by, or under direct or indirect common control with such specified Person. For the purpose of this definition, “control”, when used with respect to any specified Person means the power to direct the management and policies of such Person directly or indirectly, whether through the ownership of voting securities (whether in the form of shares, partnership or membership interests or other equity interests), by control or otherwise.

B. “Agreement” means this Retail Package Concession Agreement by and between the Aviation Authority and Company.

C. “Agreement Period” means the Initial Period and each twelve-month period between October 1 and September 30, commencing after the Initial Period during the Term of this Agreement;

provided, however, that the final Agreement Period shall end on the Termination Date.

D. “Airport Concession Disadvantaged Business Enterprise or ACDBE” shall be defined pursuant to 49 C.F.R. 23.3, as amended from time to time.

E. “Annual Rental Fee” shall mean the fee paid to the Aviation Authority for the use and occupancy of Premises provided pursuant to this Agreement, separate and apart from the Privilege Fee component of the Annual Concession Fee. The initial Annual Rental Fee as set forth in ARTICLE I.F is the fair market rental value of the Premises, as determined by a Florida Certified General Appraiser retained by the Aviation Authority, and adjusted each Agreement Period as provided in ARTICLE I.F.

F. “Attorneys' Fees” means attorneys' fees and costs, including, without limitation, fees and charges for the services of paralegals or other personnel who operate for and under the supervision of the attorneys and whose time is customarily charged to clients.

G. “Chief Executive Officer” means the Chief Executive Officer of the Aviation Authority, or his or her designee.

H. “Concession” means Company’s operations on the Premises as described in ARTICLE III.A in accordance with the terms and conditions of this Retail Package Concession Agreement.

I. “Expendable” means any item with a useful life of less than one (1) year.

J. “Gross Receipts” means all receipts derived or earned by Company or any Affiliates of Company, or any of its subtenants, licensees or concessionaires (excluding any rent required to be paid by any subtenant, licensee or concessionaire to Company that is calculated and payable on the basis of a percentage of such subtenant’s, licensee’s or concessionaire’s gross receipts, which gross receipts would be included in Company’s Gross Receipts) from operations on the Premises including, but not limited to, the sale of all goods and services authorized to be sold pursuant to the terms and conditions of the Agreement made on or about, or otherwise originating from the Premises, from any source whatsoever, adjusted by the deduction of the following, provided that separate records are maintained for such deductions:

1. The proceeds from the sale of capital assets or Expendables;

2. Credits and refunds to customers for items purchased on the Premises;

3. Amounts of any separately stated federal, state and local sales or use taxes imposed upon Company's customers and collected by Company; or

4. Charges paid to Company by its customers for the mailing of purchased items, but only to the extent of the actual mailing cost thereof.

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

Company's Gross Receipts shall be computed and audited in accordance with the provisions of the Agreement. In the event of any conflict between the provisions of the Agreement and generally accepted accounting principles or generally accepted auditing standards, the provisions of the Agreement shall control, and the provisions of the Agreement shall not be limited by such accounting principles or audit standards per the provisions of this Agreement. No deduction shall be made from Gross Receipts by reason of any Liquidated Damages imposed by the Aviation Authority.

K. “Improvement" or "improvement” means any item which is affixed to the Premises or affixed to any Improvement thereto and which cannot be removed without material damage to the Premises or another Improvement.

L. “Liquidated Damages” means the amounts set forth in ARTICLE XVII.A to be recovered by the Aviation Authority from Company in the event Company violates any of the conditions as set forth therein.

M. “Minimum Annual Concession Fee” means the sum of the Annual Rental Fee plus the Minimum Annual Privilege Fee, which is the minimum sum to be paid by Company to the Aviation Authority for the Initial Period and each Agreement Period. The initial Minimum Annual Concession Fee is set forth in ARTICLE I.H and is adjusted as provided in ARTICLE VI.A.1.

N. “Minimum Annual Privilege Fee” means the fee is paid for the grant by the Aviation Authority of a franchise to engage in the business of operating the Concession within facilities operated and controlled by the Aviation Authority initially set forth in ARTICLE I.G and subsequently calculated each Agreement Period by subtracting the Annual Rental Fee from the initial Minimum Annual Concession Fee.

O. “Net Book Value” means the original cost to Company of an Original Improvement less amortization accumulated to the date on which Company is required to surrender such portion of the Premises. For purposes of computing Net Book Value, Company's cost for Original Improvements (excluding refurbishment) at the Premises shall be amortized over a period from the Commencement Date until the expiration date of the Concession, on a straight line, with no salvage value.

P. “Original Improvement” means an Improvement installed by Company prior to or within thirty (30) days of the date it opens for business at the Premises. Company's cost for such Original Improvements shall include reasonable and direct costs paid by Company for work performed and materials furnished; provided, however, that Company's cost shall not include (1) payments for architectural, engineering, professional and consulting services in excess of fifteen percent (15%) of the total cost of such Original Improvements, (2) interest charges or other finance costs, (3) Company's own overhead expenses (except that Company may include the reasonable cost of paying its own employees to perform architectural, engineering, professional or consulting services in which event such cost shall be counted toward the fifteen percent (15%) limitation on such costs set forth above), or (4) any portion of the costs of such Original Improvements which is greater than the "approved" cost as determined in accordance with the terms of ARTICLE VII.C.1, below. For purposes of a buyout pursuant to ARTICLE III.D.2, furniture, fixtures and equipment that can be removed without damaging the Premises shall not be considered in the determining the cost of Original Improvement.

Q. “Person” means an individual, corporation, limited liability company, partnership, association, joint stock company, Trust, unincorporated organization, joint venture, or other enterprise or venture.

R. “Premises” means the areas of the Terminal Complex, described in ARTICLE III, below, in which Company is granted the right to operate the Concession in accordance with the terms and conditions of this Agreement, together with any additional areas in the Terminal Complex in which Company may be granted such rights.

S. “Privilege Fee” shall mean the fee paid to the Aviation Authority for the granting by the Aviation Authority of a franchise to engage in the business of operating the Concession within facilities operated and controlled by the Aviation Authority, which right is an intrinsically valuable intangible personal property interest, and is separate and distinct from any right or interest in the real property owned by the Aviation Authority.

T. “Proposal” means the Company’s response to the Request for Proposals for the Concession.

U. “Terminal Complex” means the gates and buildings located at the Airport consisting of Terminals A, B, and C and all accompanying adjacent roadways.

ARTICLE III. – RIGHTS AND PRIVILEGES GRANTED TO COMPANY

A. Rights and Premises.

1. The Aviation Authority hereby grants Company the non-exclusive right and privilege, and Company hereby assumes the obligation, to rent, occupy, equip, furnish and maintain the Premises as described in EXHIBIT A for the operation of a Retail Concession, in accordance with the provisions of this Agreement.

2. The Aviation Authority hereby grants to Company the non-exclusive right to display and sell the items specifically listed on the List of Merchandise Items, which is attached hereto as EXHIBIT B, at the prices specified thereon.

3. Company shall not use or permit the Premises to be used for any purposes other than as described in this ARTICLE III.A without the prior written approval of the Aviation Authority nor for any use in violation of any applicable building codes, zoning regulations, municipal, county, state or federal laws, ordinances or regulations.

Company’s right, privilege and obligation hereunder, in addition to any other requirements and limitations contained herein, shall be to sell and display only merchandise which Company is specifically authorized to provide in ARTICLE IV.

B. Occupancy of Premises and Commencement of Business.

Company shall be granted occupancy of the Premises on the Occupancy Date set forth in ARTICLE I.B and shall be required to open for business and commence paying Concession Fees on the Commencement Date set forth in ARTICLE I.C.

C. Non-exclusivity.

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

D. Relocation/Surrender of Premises.

1. Notwithstanding any other provision of this Agreement, the Aviation Authority shall have the right at any time during the Term of this Agreement to require Company to surrender any portion of the Premises in order to accommodate a change in the design or use of the Terminal Complex. In such event, the Aviation Authority shall, in its sole discretion, either:

a. provide Company with a substitute area which the Chief Executive Officer determines to be reasonably equivalent, though not necessarily identical in size or otherwise, to the portion of the Premises surrendered; or

b. grant Company an equitable reduction in the Annual Rental Fee Portion of the Minimum Annual Concession Fee payable by Company to the Aviation Authority hereunder; provided, however, that the Aviation Authority shall not be required to grant Company a reduction in the Annual Rental Fee Portion of the Minimum Annual Concession Fee or provide it with a substitute area where the portion of the Premises required to be surrendered is less than ten percent (10%) of the total square feet originally included in the Premises; or,

c. provide Company with a substitute area in lieu of a portion of the Premises surrendered and grant it an equitable reduction in the Annual Rental Fee Portion of the Minimum Annual Concession Fee (subject to the ten percent (10%) limitation described above) payable by Company to the Aviation Authority hereunder as compensation for the remainder of the Premises surrendered.

2. The Aviation Authority shall in no event be liable to the Company for any inconvenience or loss of business as a result of the Company being required to move or surrender any portion of the Premises. If the portion of the Premises required to be surrendered by Company is more than ten percent (10%) of the approximate square feet of space originally included in the

Premises, and the Company is required, under the terms of this ARTICLE III.D to move or surrender a portion of its operation, all costs of the physical move shall be borne by the Aviation Authority and, at the option of the Chief Executive Officer, either:

a. the substitute area that is provided to the Company in lieu of the portion of the Premises surrendered will be built out by the Aviation Authority at its own expense (or, at the option of the Chief Executive Officer, by the Company at the Aviation Authority's expense) so that such substitute area will be reasonably equivalent in quality to the portion of the Premises surrendered, provided that, in such event, title to any improvements to such substitute area shall remain with the Aviation Authority and shall not pass to the Company; or

b. the Aviation Authority shall make a payment to Company ("Buy-Out Payment") in the amount of the "Net Book Value" of the Original Improvements contained in the portion of the Premises Company is required to surrender (to the extent the Chief Executive Officer determines that such Original Improvements cannot reasonably be moved to the substitute area).

c. any Buy-Out Payment made by the Aviation Authority under the terms of this ARTICLE III shall be paid to Company by the end of the thirtieth (30th) day following the date the Company was required to surrender such portion of the Premises. Within a reasonable time prior to the date such Buy-Out Payment is due (and subject to update immediately prior to the time the Buy-Out Payment is made), the Chief Executive Officer shall be entitled to inventory and inspect all Original Improvements with respect to which such Buy-Out Payments have been or are to be made, and, if any such inventory and inspection indicates that such an Improvement is either missing or substantially damaged, the amount of the Buy-Out Payment allocated to such Improvement shall be either subtracted from the Buy-Out Payment (in the event such Improvement is missing) or reduced by the amount required to repair the damage as reasonably determined by the Chief Executive Officer (in the event such Improvement is substantially damaged).

Simultaneously with its receipt of the Buy-Out Payment, Company shall deliver to the Aviation Authority a Bill of Sale containing full warranties of title, conveying title to the Original Improvements contained in the portion of the Premises surrendered, free of all liens and encumbrances. In the event any of such Original Improvements are subject to any liens or encumbrances, the amount of the Buy-Out Payment shall be reduced in the amount necessary to satisfy such liens or encumbrances.

ARTICLE IV. – USE OF PREMISES

A. Permitted Uses.

1. The Premises shall be used by Company during the Term hereof only for the display and sale of the merchandise described in EXHIBIT B as set forth in Company’s Proposal which is incorporated by reference and in accordance with the terms of this Agreement.

2. Company shall not permit the active display or operation on the Premises or elsewhere in the Terminal Complex of any item which flies, moves, rotates, makes noise or flashes unless the active display or operation of such item is specifically approved in advance in writing by the Chief Executive Officer.

3. Company shall not at any time during the term hereof vacate the Premises once Company is required to be open for business in the Premises, without the prior written consent of Chief Executive Officer.

B. Discontinuance, Addition, Deletion of Items.

1. In the event the Chief Executive Officer determines that any item displayed, offered for sale or sold by Company on the Premises is objectionable for display or sale at the Airport, Company shall, upon written notice from the Aviation Authority, immediately remove such item from display and from its inventory and Company agrees that it shall not thereafter display, offer for sale or sell such item.

2. Upon the written approval of the Chief Executive Officer Company may cease the sale of any item listed on EXHIBIT B in the event that the lack of demand for such item no longer warrants it continued sale on the Premises.

3. Company may request authorization to sell additional items not included in EXHIBIT B, provided such additional items are consistent with the general items or categories authorized under this Agreement and do not conflict with privileges authorized to others or reserved by Aviation Authority for future authorization to others. Company may sell such additional items only with the prior written approval of the Chief Executive Officer.

4. Company agrees that it will not sell or dispense or permit the sale or dispensing of, chewing gum or popcorn in any form in or upon the Premises.

C. Relation to Other Concessions.

1. Notwithstanding any other provisions hereof, it is specifically understood and agreed that, in the event of a conflict between Company and any other lessee or concessionaire in the Terminal Complex as to specific items to be sold by respective concessionaires or lessees, the Chief Executive Officer shall decide which items of merchandise may be sold or provided by each concessionaire or lessee and Company agrees to be bound by such decision. The Chief Executive Officer may consider the various locations within the Terminal Complex where Company and other concessionaire or lessee operates in arriving at the determination.

2. This Agreement is separate and distinct from, and shall be construed separately from, any other agreement between Company and the Aviation Authority and from any other, similar agreement between the Aviation Authority and any other person operating a concession at the Airport, and the fact that any such other agreement may contain provisions which differ from those contained herein shall have no bearing on the construction of this Agreement.

D. Violation of Permitted Uses.

If Company fails to comply with the Permitted Uses in this ARTICLE IV herein, Company shall be subject to the payment of fines for such violation(s) of certain provisions, as set forth in ARTICLE

XVII.

ARTICLE V. – TERM

This Agreement shall become effective upon execution by the parties hereto. The term of this Agreement shall commence on the Commencement Date set forth in ARTICLE I.C and end on the Termination Date set forth in ARTICLE I.D, hereinafter referenced to as the “Term”, unless sooner terminated in accordance with the terms and provisions hereof.

ARTICLE VI. - CONCESSION FEES AND ACCOUNTING RECORDS

A. Concession Fee.

Company shall pay to the Aviation Authority, for the Initial Period and each Agreement Period of the term of this Agreement, a Concession Fee in an amount equal to the greater of (1) the Minimum Annual Concession Fee; or (2) the total of the percentages of Gross Receipts as set forth in

ARTICLE I.E

1. Calculation of Minimum Annual Concession Fee.

a. For the Initial Period, the Minimum Annual Concession Fee shall be calculated on a per diem basis by dividing the amount in ARTICLE I.H by 365 and multiplying by the number of days in the Initial Period.

b. On or before each January 1 occurring after the Initial Period, and each subsequent Agreement Period, the Minimum Annual Concession Fee shall be adjusted, effective as of the prior October 1, to the greater of:

i. an amount equal to eighty-five percent (85%) of the total Concession Fees due for the prior Agreement Period, or

ii. the Initial Period’s Minimum Annual Concession Fee set forth in

ARTICLE I.H.

Notwithstanding the foregoing, the Minimum Annual Concession Fee for the Agreement Period immediately following the Initial Period shall be calculated using the annualized Concession Fees due determined by dividing the total Concession Fees due for Initial Period by the number of days in the Initial Period and multiplying by 365. Any adjustment in the Minimum Annual Concession Fee associated with the provisions of this paragraph b shall result in an identical adjustment to the Minimum Annual Privilege Fee, and shall not affect the Annual Rental Fee.

c. For the final Agreement Period, the Minimum Annual Concession Fee shall be prorated on a per diem basis by dividing the amount from ARTICLE VI.A.1.b above by 365 and multiplying by the number of days in the final Agreement Period.

2. Automated Electronic Transmission of Sales Data

At least ninety (90) days prior to the Commencement Date, Company and Aviation Authority shall confer regarding specifications of Company's electronic Point of Sale (“POS”) system. Within thirty (30) days of this meeting, the Parties shall agree, in writing, to a protocol for the automated electronic transfer of Company's transactional data from Company's POS system to Aviation Authority ("Transfer Protocol"). The Transfer Protocol will identify, among other things, the means of file transfer to be used, the frequency of file transfers, and in what format the data will be provided. Aviation Authority will provide the necessary interface to facilitate the transmission of the transactional data. This interface will utilize industry standard service-oriented architecture data interchange practices to ensure the data is received in a secure and timely manner.

In the event that Company establishes to Aviation Authority’s reasonable satisfaction that Company does not have the technological capability, through its POS system or otherwise, to transmit the transaction data according to this section, Aviation Authority will make reasonable accommodations in establishing a method or protocol for the transmission of transaction data.

At least thirty (30) days prior to the Commencement Date, Company shall provide to Aviation Authority, according to the Transfer Protocol, a sample data set. If either Party observes any deficiencies in the completeness of the provided data, or in the execution of the Transfer Protocol, that Party shall give notice of the deficiency to the other Party.

Beginning on the Commencement Date, Company shall, unless otherwise permitted in writing by Aviation Authority, provide continuous, real-time transactional data for all sales transactions in accordance with the Transfer Protocol. Transaction listings should be specific to Company and Company’s Subtenants units and include all available data fields in each transaction. The data fields must be the entirety of the raw data recorded by the POS system, including time stamps, product descriptions, prices, discounts, and quantities. Aviation Authority will not accept an abstraction from the data in place of the entirety of the data.

If Aviation Authority discovers that Company's data are in any way incomplete, Aviation Authority will notify Company within thirty (30) days of discovery of the deficiency.

Company shall correct the submission within fifteen (15) days.

In the event that Company undertakes to change to its POS system and such proposed changes have the potential to interrupt the transmission of sales data and require adjustments to the Transfer Protocol to restore transmission, Company shall notify Aviation Authority of its intended change at least ninety (90) days prior to implementing the change.

Company shall work with Aviation Authority to make all necessary amendments to the Transfer Protocol prior to Company's implementation of changes to its POS system.

Company shall notify Aviation Authority of minor system updates that may interrupt transmission of sales data, but do not require amendments to the Transfer Protocol, at least seven

(7) days prior to making the updates.

Company shall also provide a complete and current detailed chart of accounts for all general ledger accounts relating to gross sales at Aviation Authority's request.

Company shall comply with all requirements under this Section or Company will incur liquidated damages as provided in ARTICLE XVII.

3. Monthly Payments of Fees.

a. From and after the Commencement Date, Company shall pay to the Aviation Authority, in advance and without demand, on the first (1st) day of each calendar month of the Term hereof (and on the Commencement Date, if the Commencement Date is not the first day of a calendar month), an amount equal to one-twelfth (1/12th) of the Minimum Annual Concession Fee then applicable (except as otherwise provided below), prorated for any partial month at the commencement of the Term or the end of the Term, based on the number of days in such partial month, plus any sales or other taxes due thereon, in lawful money of the United States, without deduction or set-off, at the office of the Aviation Authority's Chief Financial Officer (the "CFO") or at such other place as the Chief Executive Officer may designate in writing from time to time.

b. Company shall further pay to the Aviation Authority, without demand, at the office of the CFO, on the fifth (5th) day of the month following each calendar month of the Term hereof, a sum of money equal to the amount, if any, by which the total of the percentage fees applicable to Company's Gross Receipts (as set forth in ARTICLE VI.A, above) for the previous calendar month exceeds the amount of the installment of the Minimum Annual Concession Fee payable for such month and shall provide the CFO, with a copy to the Vice President of Concessions, with a statement, in the form of the "Monthly Revenue Report" attached hereto as EXHIBIT C which form the Chief Executive Officer may amend from time to time in his discretion, which sets forth Company's Gross Receipts for the prior calendar month and is signed by an officer (if Company is a corporation), partner (if a partnership), member/officer (if a limited liability company) or owner (if a sole proprietorship) of Company, and which sets forth Company's Gross Receipts during such preceding calendar month and identifies all receipts derived by Company during such calendar month which have been excluded from the computation of Gross Receipts. (If Company operates more than one location, each location’s monthly Gross Receipts shall be stated separately on Line (A), EXHIBIT C, “Monthly Revenue Report,” attached hereto).

The Monthly Revenue Report shall be submitted in electronic form in accordance with the standards specified by the Aviation Authority, as amended from time to time.

B. Sales, Use, Ad Valorem and Other Taxes.

Company shall be solely responsible for the payment of all sales, use, ad valorem and other taxes levied upon the Premises and also upon the fees and other charges payable by Company to the Aviation Authority hereunder, whether or not the same shall have been billed or collected by the Aviation Authority, together with any and all interest and penalties levied thereon, and Company hereby agrees to indemnify the Aviation Authority and hold it harmless from and against all claims by any taxing authority that the amounts, if any, collected from Company and remitted to the taxing authority by the Aviation Authority, or the amounts, if any, paid directly by Company to such taxing authority, were less than the total amount of taxes due, and for any sums including interest and penalties payable by the Aviation Authority as a result thereof. The provisions of this paragraph shall survive the expiration or prior termination of this Agreement.

C. Annual Certification of Fees.

Within ninety (90) days after the close of each Agreement Period of the Term hereof, Company at its own cost and expense shall provide to the CFO, and a copy to the Vice President of Concessions, schedules of Gross Receipts and Concession Fees, payments and other sums for the Agreement Period accompanied by an independent auditors’ report expressing an unmodified opinion on the examination of such schedules prepared by Company’s independent Certified Public Accountant, licensed in the state of Florida, who is not an employee of Company, or a Certified Public Accountant who holds a valid temporary permit to practice in the state of Florida at the time the certification is issued and who is not an employee of Company, or an out of state licensed Certified Public Accountant who at the time the certification is issued, the NASBA National Qualification Appraisal Service has verified to be in compliance with the CPA licensure requirements of the AICPA/NASBA Uniform Accountancy Act and who is not an employee of Company, certifying that such schedules have been audited in accordance with Generally Accepted Auditing Standards and the terms and provisions of this Agreement; including, without limitation, the definition of Gross Receipts set forth in ARTICLE II.J herein. If such schedules indicate the Concession Fees for such period have been overpaid, then the amount of overpayment shall be credited to the Concession Fees next due and owing from Company, unless the Term hereof has expired, in which event such amount shall be promptly refunded by the Aviation Authority to Company. If such schedules indicate that the Concession Fees for such Agreement Period have been underpaid, then Company shall submit payment therefore to the Aviation Authority at the Office of the CFO at the same time it submits to the CFO and the Vice President of Concessions the statements required under this ARTICLE VI, together with interest on any underpaid Concession Fees at the rate set forth in ARTICLE XX.F, below, from the date such fees or charges should have been paid.

D. Books and Records/The Aviation Authority's Right to Audit.

Company shall, at all times during the Term hereof, maintain at the Premises or at an office in Orange County, Florida complete and accurate books and records of all receipts and disbursements from its operations on the Premises, in a form consistent with generally accepted accounting principles, and cause to be installed for use at all times in the Premises such cash registers, invoicing machines, sales slips and other accounting equipment, devices and forms as are reasonably necessary to record properly, accurately and completely all sales of Company’s merchandise items from the Premises. Company's books and records shall be maintained in sufficient detail to allow the Aviation Authority or its representatives to audit, in accordance with generally accepted auditing standards, Company's Gross Receipts as defined in ARTICLE II.J above. Company shall account for all receipts of any nature related to transactions in connection with this Agreement in a manner which segregates in detail those transactions from other transactions of Company and which supports the amounts reported to the Aviation Authority in Company's “Monthly Revenue Report" schedules prepared in accordance with ARTICLE VI.A.3.b. At a minimum, Company's accounting for such receipts shall include the following:

1. Daily dated cash register tapes, including tapes from temporary registers or electronic equivalent thereof;

2. Serially numbered sales slips, using a numbering system for transactions under this Agreement which is separate from any numbering system used by Company for other transactions electronic equivalent thereof;

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

4. A compiled report of transactions from the Premises showing all Gross Receipts and all exclusions from Gross Receipts by category (as set forth in ARTICLE II.J), which report shall be subtotaled by day and totaled by month. The monthly total shall correspond with the amounts reported to the Aviation Authority on Company's “Monthly Revenue Reports" under ARTICLE VI.A.3.b. If requested, Company shall provide the Aviation Authority a computer text file that details monthly Gross receipts information by transaction;

5. The monthly reports required under this ARTICLE VI.D, which reports shall be subtotaled by day and totaled by month. The monthly total shall correspond with the amounts reported to the Aviation Authority in the “Monthly Revenue Reports” and the annual total shall correspond with the amount reported to Company the Aviation Authority on the Annual Certification required in ARTICLE VI.C; and

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

Such records shall be, at the option of the Chief Executive Officer, (a) in electronic form in accordance with the standards specified by the Aviation Authority, or (b) a computer run hard copy. The Chief Executive Officer may require other records necessary in his determination to enable the accurate audit of Company's Gross Receipts hereunder. Upon five (5) days written notice from the Chief Executive Officer, all such books and records, including the general ledger and bank statements and all federal, state and local sales tax returns relating thereto, shall, be made available at the offices of the Aviation Authority for inspection by the Aviation Authority through its duly authorized representatives at any time for up to four

(4) years after the end of the Agreement Period to which such books and records relate (and Company shall not be obligated to retain such books and records subsequent to the termination of such four (4) year period). The Aviation Authority shall further have the right, upon reasonable written notice to Company from the Chief Executive Officer and at the sole cost of the Aviation Authority except as specified below, to examine or designate a representative to audit or examine the books and records and computerized accounting systems of Company which relate to its operations on the Premises to determine the correctness of the Gross Receipts and Concession Fees reported to or paid by Company to the Aviation Authority for any or all Agreement Periods immediately preceding such audit or examination. Such shall include, but is not limited to, a review of the general input, processing and output controls, information systems, using read only access, for all computer applications used to record financial transactions and information. If Company elects to have the inspection, examination or audit performed at a location outside the Orlando metropolitan area, it may do so within forty-five (45) calendar days of the Aviation Authority’s written request. Company shall pay the Aviation Authority for travel expenses incurred in connection with such inspection, examination, or audit, in accordance with the Aviation Authority’s adopted travel policies, from the auditor’s duty station to the location at which the books and records are maintained for each day of travel and on-site work. After the inspection, examination, or audit is completed, the Aviation Authority will bill Company for such travel expenses and Company shall promptly pay such bill. If, as a result of such audit or examination, it is established that the Gross Receipts and/or Concession Fees for any Agreement Period have been under-reported to the Aviation Authority, Company shall forthwith, upon written demand from the Aviation Authority, pay any resulting amount due to the Aviation Authority, together with interest thereon at the rate set forth in ARTICLE XX.F, below, from the date such amount or amounts should have been paid.