# Joint Appendix Vol II — Lebron v. National Railroad Passenger Corporation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0502%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix Vol II - **Published:** January 1, 1995 - **Citation:** 513 U.S. 374 ## Text BEST AVAILABLE COPY \ : - % No. 93-1525 | JUL 25 1994 AWE Of MME CLES Supreme Court of the nt tates OCTOBER TERM, 1994 IN THE > MICHAEL A. LEBRON, Petitioner, —V — NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK), Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT JOINT APPENDIX EXHIBITS (Pages J.A. 200 to 748) DAVID D. COLE KEVIN T. BAINE Counsel of Record Counsel of Record CENTER FOR CONSTITUTIONAL RIGHTS NICOLE K. SELIGMAN Georgetown University Law Center STEVEN M. FARINA 600 New Jersey Avenue, N.W. WILLIAMS & CONNOLLY Washington, D.C. 20001 725 Twelfth Street, N.W. (202) 662-9078 Washington, D.C. 20005 Additional Counsel for Petitioner (202) 434-5000 Continued on Inside Cover Attorneys for Respondent PETITION FOR CERTIORARI FILED MARCH 28, 1994 CERTIORARI GRANTED MAY 23, 1994 >. : " -—_” | i Re By en — * ”™ JOINT APPENDIX EXHIBITS TABLE OF CONTENTS PLAINTIFF’S EXHIBITS Station Advertising Agreement By and Between National Railroad Passenger Corporation and Transportation Displays Inc. (March 15, 1991) In-Station Advertising Agreement By and Between National Railroad Passenger Corporation and Winston Network, Inc. NUE Be IN CGG oh cnceduasnccdbedoncs couse Permit for Advertising Display Facility Between National Railroad Passenger Corporation and Transportation Displays Inc. (August 15, 1980) Letter, DeAngelo to Haut December 23, National Railroad Passenger Corporation, 1991 Annual Report Conveyance from Pennsylvania Tunnel! and Terminal Railroad Company to Consolidated Railroad Corporation [PT&T-CRC-ATK-RPI-2].... PAGE PAGE 12) Deed By and Between Consolidated Rail 60 Minutes, National Passenger Railroad Corporation to National Railroad Passenger Corporation Board of Directors Corporation [NY-EPT& PCRC-ATK-RPE 2] M7 (September 23, 1987) 472 IS Pennsvivania Railroad TDI Agreement 61. National Passenger Railroad © orporation, May 26, 1967) 318 1992 Annual Report 374 7 Justification of Spectacular Sign Agree 65. Minutes, National Railroad Passenger ment to A&S Department Stores (8/20/87) 449 Corporation Board of Directors (February 27 is dtas ude... 10) 38 Letter, Notaro to Bourque (September 14, 1987) 7 141 66. National Railroad Passenger Corporation 1976 Annual Report 40)3 48 Letter, Notaro to Simpson (October 10, 1979) 342 68. Secretary of Transportation's Final System 48 Fujitsu letters | TDI production nos. 16, jo PE TEETLCEE EEE 42% 86-93, 19. 11, 13] (six letters and artwork, various dates) | barat 343 71. Minutes, National Railroad Passenger Corporation Board of Directors (January 23 49. Two Letters, Notaro to Bourque (July 23 |) RE Seieoh dives ) TDI agrees to survey all TDlI-installed equipment within sixty (60) days of commencement of this Agreement and to submit to Amtrak a written plan to replace old equip- ment and or add new equipment to the Installed Inventory. Such plan shall be evaluated by Amtrak and Amtrak and TDI shall mutually agree on additions to Installed Inventory. It is the intent of TDI to increase its capital investment and improvements in Installed Inventory in Amtrak stations over the term of this Agreement by Five Hundred Thousand Dollars ($500,000), in addition to improvements specified in the predecessor agreement of $500,000 and specifically to include those improvements listed in Exhibit D. (¢) Upon expiration or termination of this Agreement for any reason, TDI at its sole cost and expense, shall remove from the property, facilities and premises of Amtrak, al! Installed Inventory, including but not limited to advertising trames, clocks, displays, exhibits, and advertising equipment and materials which TDI and those claiming by, through or under It were permitted to install or maintain under the rights and privileges given by this Agreement, and shall restore said — JA. 208 ° property, facilities and premises, reasonable wear and tear excepted. (d) If TDI shall fail to commence removal of its Installed Inventory within thirty (30) days after expiration or termi- nation, then Amtrak may effect such removal and restoration at the expense of TDI, and TDI agrees to pay Amtrak the rea- sonable cost and expense thereof promptly upon receipt of invoice therefor. SECTION 14. ELECTRICITY (a) Amtrak shall provide existing electrical current for the illumination/operation of advertising displays and clocks for that equipment documented in Exhibit B and Exhibit D. (b) Amtrak shall not be responsible for reductions or inter- ruptions in the supply of electrical power. SECTION 15. NON-INTERFERENCE WITH CONCES.- SIONAIRES The rights and privileges granted herein to TDI shall not be deemed to limit the right of Amtrak to grant tenants, licensees and concessionaires the right to advertise in the premises or Space used by them by agreement of Amtrak. SECTION 16. TERMINATION BY AMTRAK In addition to any other termination rights contained in the Agreement, Amtrak shall have the right, upon sixty (60) days written notice to TDI, to terminate this Agreement any time after the occurrence of any one or more of the following events: ' (i) Non-payment of the Guaranteed Annual! Payment or Percentage Payment due Amtrak when such non-payment shall continue for a period of twenty (20) days. (ii) If any petition shall be filed by or against TDI to declare TDI bankrupt or to delay, reduce or mod- J.A. 209 ify TDI’s debts or obligations “or if TDI be declared insolvent according to law, or if any assignment of TDI’s property shall be made for the benefit of creditors, or if a receiver or trustee Is appointed for TDI or its property, Amtrak may treat the occurrence of any one or more the fore- going events as breach of the Agreement without notice, and immediately enter and repossess the spaces covered hereunder. (iii) Abandonment by TDI of and discontinuance of operations hereunder. (iv) Non-performance of any covenant of this Agreement, excluding the covenant of payment herein contained, and failure of TDI to remedy such breach within a period of sixty (60) days after receipt of written notice from Amtrak of the existence of said breach. (v) If TDI becomes permanently deprived of the rights, powers and privileges necessary to the proper conduct and operations of the Installed Inventory specified in this Agreement. (vi) Damage by fire or other casualty to the stations listed in Exhibit A hereto. (vii) Assumption of control of any of the aforesaid sta- tion by parties other than Amtrak. SECTION 17. TERMINATION BY TDI In addition to any other termination rights contained in this Agreement, this Agreement shall be subject to termination by TDI in the event any one or more of the following events occur: ates (i) The permanent abandonment of Amtrak s trans- portation system, or substantial portions thereof. J.A. 210 (ii) The lawful assumption by the United States Government, or any authorized agency thereof, of the operation, control or use of the transportation facilities covered hereunder, or any substantial part or parts thereof in such a manner as to sub- stantially restrict TDI from operating therefrom for a period in excess of ninety (90) days. (iii) Issuance by any court of competent jurisdiction of any injunction in any way preventing or restrain- ing the use of Amtrak’s facilities, and the remain- ing in force of such injunction for a period in excess of ninety (90) days. (iv) The default by Amtrak in the performance of any covenant or agreement herein required to be per- formed by Amtrak, and the failure of Amtrak to remedy such default for a period of sixty (60) days after receipt of written notice by TDI to remedy the same. SECTION 18. ABANDONMENT, LEASES, SALES (a) This Agreement is expressly made subject to any aban- donment of a part of a line or lines or any facilities or ter- minals of Amtrak, to any and all sales, leases, assignments or licenses of any of the aforementioned property or premises by Amtrak, to the provisions of all leases or agreements under which Amtrak holds said property or premises, to all encum- brances, conditions, covenants, rights and easements to which the title of Amtrak is or may be subject, to ali other leases or licenses to which Amtrak is or may be subject, to all leases or licenses which Amtrak may have granted or may grant in the future to other parties, and to the right of Amtrak at any and all times: (1) to place or cause to be placed, notices and bul- letins (in locations other than on TDI’s signs) advertising its Own services and matters of interest to the public or for the information of employees or patrons of Amtrak, (2) to sell, J.A. 211 lease or license any and all of its property and premises, and (3) to carry on all of its general and special business opera- tions. (b) In the event Amtrak desires at any time or times to sell, assign, lease, license or otherwise dispose of any or all of its property, facilities, and premises, or to abandon any part of a line or lines of railroad, TDI at TDI’s sole cost and expense, shall in any and all such events remove forthwith, upon notice from Amtrak, any and all Installed Inventory and advertising matter thereon permitted hereunder that Amtrak specifies should be removed from the property, facilities or premises to be sold, leased, licensed, or otherwise disposed of. SECTION 19. FORCE MAJEURE, STRIKE, ETC. (a) If TDI is deprived of advertising space in any or ail the stations set forth in Exhibit A hereto for more than thirty (30) successive days by reason of force majeure, strike, fire, loss of inventory by action of Amtrak or other cause beyond the control of TDI, then the Guaranteed Annual Payment payable shall be adjusted and/or abated to reflect the loss of use of the space On a pro-rata basis. (b) If TDI is totally deprived of advertising space in all the aforesaid stations for more than sixty (60) successive days because of force majeure, labor strike, or any other cause beyond the control of TDI, or if the public is totally denied norma! access to such stations for any reason, then TDI may cancel this Agreement in its entirety as of the date of such deprivation of space or denial of access by giving Amtrak written notice of its intention do to so, without any further liability being incurred thereby on the part of TDI or Amtrak. SECTION 20. INSURANCE AND LIABILITY (a) TDI shall indemnify and save harmless Amtrak and its directors, officers, employees, agents, representatives, con- tractors, invitees or any other persons from al! suits and Ctewe on J.A. 212 action of every type and description brought against them, or which may arise as a result of any injuries or damages received or sustained by any person, persons or property, or from acts of said TDI, its agents, servants or employees, per- formed on the premises of Amtrak. (b) TDI shall indemnify and save harmless Amtrak and its directors, officers, employees, agents, representatives, con- tractors, invitees or any other persons against any claims or liability arising from or based upon the violation of any fed- eral, state county or city laws, by-laws, ordinances, or regu- lations, by TDI, its agents, servants and employees. (c) Protection against loss by fire or other casualty to the Installed Inventory or to any part thereof or to the contents of any advertising displays shall not at any time be an obligation of Amtrak. (d) TDI shall procure and maintain at all times during the term of this agreement, at its own cost and expense, the insur- ance specified below. All insurance shall be placed with insurance carriers acceptable to Amtrak and licensed to do business in the states where the signs are located. TDI shall furnish Amtrak with a certificate or certificates of insurance giving evidence of the required coverage at the exercise of this agreement and on an annua! basis thereafter. With respect to Railroad Protective Liability Insurance, TDI shall furnish Amtrak with the original policy at the exercise of this agree- ment and on an annual basis thereafter. No acceptance by Amtrak of any insurance certificate or policy required here- under shall constitute or be construed as a waiver by Amtrak of the requirements below which shall be and remain the sole responsibility of TDI. All insurance shall provide for 30 days prior written notice to be given to Amtrak in the event cov- erage is substantially changed, cancelled, or non-renewed. Such notices shall be mailed to Amtrak marked, “Attention: Vice President-Real Estate and Operations Development”, at the address set forth on page first hereof. The failure by TDI at any time to procure and/or maintain any of the below stated J.A. 213 insurance will constitute a default under Section 30 hereot and Amtrak may terminate this agreement. Amtrak reserves the right to increase the required coverage at any time at the sole discretion of Amtrak. _ (i) Commercial General Liability Insurance—\ssued to and covering liability imposed upon TDI with respect to the operations of this agreement, and all obligations assumed by TDI under the terms of this agreement. Products/completed operations, inde- pendent contractors, contractual, and personal injury/advertising liability coverages are to be included, and Amtrak is to be named as an addi- tional insured with respect to TDI’s operations in connection with this agreement. Coverage under this policy shall have limits of liability of not less than two million dollars ($2,000,000) combined sin- gle limit for bodily injury (including disease or death), personal injury, and property damage (including loss of use) liability. (ii) Workers’ Compensation Insurance—Complying with the requirements of the statutes of jurisdiction in which operations of TDI will take place, covering all employees of TDI. Employers’ Liability cover- age with limits of liability of not less than five hun- dred thousand dollars ($500,000) each accident or illness shall be included. (iii) Railroad Protective Liability Insurance—TDI shall provide, with respect to its operations or operations of its subcontractors within fifty (50) feet vertically or horizontally of railroad tracks, Railroad Protec- tive Liability Insurance, AAR-AASHTO (ISO/RIMA) Form, in the name of National Railroad Passenger Corporation (Amtrak). The policy shall have limits of liability of not less than two million dollars ($2,000,000) per occurrence, combined single limit, JA. 214 for coverages A and B, for losses arising out of injury to or death of all persons, and for physical loss or damage to or destruction of property, includ- ing the loss of use thereof. A six million dollar ($6,000,000) annual aggregate may apply. The pol- icy shall be endorsed to protect Amtrak against all risk of liability arising directly or indirectly from TDI's use or occupancy of any sign location pur- suant to this agreement (iv) Property Insurance—covering all sign structures and improvements against loss or damage by fire and such other damage by hazards as are included in the extended coverage endorsement in an amount not less than ninety percent (90%) of the full replacement cost of such property. This insurance Shall contain a waiver of subrogation against Amtrak. SECTION 21. ASSIGNMENT, SUCCESSORS AND ASSIGNS (a) TDI shall not assign or transfer any of the rights or privileges granted herein without the prior written approval of Amtrak, which approval shall not be unreasonab!y with- held. _(b) The terms of this Agreement shall be binding upon the executors, administrators, successors and assigns of the par- ties hereto. SECTION 22. PATENTS AND TRADEMARKS TDI represents that it is the owner of or fully authorized to use any and all services, processes, machines, articles, marks, names or slogans used by it in its operations under or con- nected with this Agreement. TDI agrees to save and hold Amtrak, its directors, officers, employees, agents, represen- tatives, contractors, invitees or any other persons free and harmless of and from any loss, liability, expenses, suit or J.A. 215 claim for damages in connection with any actual or alleged infringement of any patent, trademark or copyright, or arising from any alleged or actual unfair competition or other simi- ‘ar claim arising out of the operations of TDI under or con- nected with this Agreement. SECTION 23. CONDUCT OF EMPLOYEES TDI agrees that while its officers, agents and employees are on Amtrak premises, and about the station buildings, plat- forms and grounds, it will cause them to conduct themselves in a proper manner, and if complaint is made by Amtrak, it will forthwith take such corrective measures as are necessary. SECTION 24. NOTICES All notices, consents, demands, approvals, and requests (“notices”) which are required or permitted to be given by either party to the other, pursuant to any provision of this Agreement, shall be sent by United States certified mail, return receipt requested, and shail be addressed as follows (or to such other address as either party may designate from time to time by written notice to the other): (i) If to Amtrak: National Railroad Passenger Corporation v0 Massachusetts Avenue, N.E. Washington, DC 20002 Attention: Vice President-Real Estate and "Operations Development (11) If to TDI: Transportation Displays, Incorporated 275 Madison Avenue oO New York, NY 10016 Attention: Senior Vice President, Franchises eS ee — oo J.A. 216 SECTION 25. WAIVER No waiver of any term, condition or breach of this Agreement on any occasion shall be deemed to be a waiver of any other term, condition or breach of this Agreement on any other occasion, or a waiver of any Continuing or subsequent breach of the same term or condition. SECTION 26. INDEPENDENT CONTRACTOR TDI is a independent professional firm contracting with Amtrak to provide expert assistance. TDI, its directors, offi- cers, employees, agents, and servants are not to be deemed employees, agents, or servants of Amtrak. TDI assumes full responsibility for liability arising out of the negligence of its employees, whether by action or inaction. Amtrak assumes no liability or responsibility for the negligent acts of TDI, its directors, officers, employees, agents, or servants, by virtue of entering into this Agreement. TDI is and shall remain an independent contractor under the terms of this Agreement. SECTION 27. INTERPRETATION OF AGREEMENT This Agreement shall be governed and constructed in accor- dance with the laws of the District of Columbia. SECTION 28. SECTION TITLES The titles of Sections are for ease of reference only, and Shall not be construed to control or in any way alter the plain meaning of the text of this Agreement. SECTION 29. NON-DISCRIMINATION TDI, in exercising any of the rights or privileges herein granted to it, shall not, on the grounds of age, sex, religion, race, color or national origin, discriminate or permit dis- crimination against any person or group of persons in any manner prohibited by federal, state or local laws. TDI shall comply with such Equal Opportunity and Affirmative Action J.A. 217 policies required of Amtrak contractors as Amtrak may estab- lish from time-to-time. SECTION 30. ENTIRE AGREEMENT (a) This Agreement represents the entire understanding and agreement between the parties with respect to the subject mat- ter hereof. (b) This Agreement may not be changed oraily. This Agreement may be changed only by mutual agreement in writing. (c) If any provision of this Agreement is determined to be invalid or unenforceabie, it shall be considered deleted here- from and shall not invalidate the remaining provisions hereof. SECTION 31. PRIOR AGREEMENTS This Agreement cancels and supersedes all prior agree- ments relating to the subject matter of this Agreement between TDI or predecessors to TDI and Amtrak and the pre- decessors of Amtrak, as such Agreements pertain to the prop- erty and land that is owned, leased or otherwise used or occupied by Amtrak SECTION 32. PUBLIC SERVICE ADVERTISING (a) TDI shall provide space for public service and Amtrak advertising on a preemptible basis. All public service a“ver- tising shall be subject to removal at any time for the benefit of paying advertisers. (b) Public service advertising shall be entitled, at TDI dis- cretion, to receive unsold advertising space at no space charge. However, TDI shall be permitted to charge a one-time labor fee to cover its out-of-pocket labor costs. Such labor fee shall not be deemed a part of TDI’s Net Receipts as defined in this Agreement. J.A. 218 (c) TDI, in addition to providing public service advertising at no space cost, shall provide advertising space, on a pre- emptible basis, to legitimate non-profit organizations, at an established discount from regular space rate. The availability of the discount on the space rate shall be determined by TDI at its own discretion. All revenues collected pursuant to this Subsection shall be subject to regular revenue sharing with Amtrak. (d) Amtrak reserves the right to place its own messages, publicizing its own services, on the facilities covered by this Agreement. TDI will post and remove all such messages for Amtrak at no charge to Amtrak. All copies shall be provided to TDI by Amtrak at Amtrak’s expense. All messages posted pursuant to this sub-section shall be on a preemptible basis for the benefit of paying advertisers, and shall be reasonable as to quantity to be posted. All materials to be posted shall be delivered to TDI not less than three (3) weeks prior to the required posting date. SECTION 33. ARBITRATION Any controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association and judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof. IN WITNESS WHEREOF, the parties hereto, by their autho- rized officers, have executed this Agreement as of the day and year first above written. ATTEST: TRANSPORTATION DISPLAYS, INC. By: [ILLEGIBLE] /s/ Witness By: ____[ILLEGIBLE) /s/ Executive Vice President Date: [ILLEGIBLE] NATIONAL RAILROAD PASSENGER J.A. 219 CORPORATION By: TONY DE ANGELO by [ILLEGIBLE] Tony DeAngelo Vice President Real Estate and Date: Operations Development March 28, 1991 J.A. 220 EXHIBIT A Station Advertising Agreement by and between National Railroad Passenger Corporation (Amtrak) and Transportation Displays, Inc. (TDI). Stations where advertising is installed 1. New York Penp Station 2. Princeton Junctior © w Jersey 3. Trenton, New Jersey 4. Newark, New Jersey 5 Wilm; _Del i, bs eee 6. Baltimore Penn Station 7. Philadelphia 30th Street Station 8. North Philadelphia ) 0 ] . Septa Stations owned by Amtrak 10. New Carrollton, Maryland 11. Washington D.C. Union Station | Stations specifically excluded from Agreement 1. Chicago Union Station Stations for expansion “ Providence, R.lI. Albany/Rensselaer, N.Y. Hudson, New York Rhinecliff, New York Kingston, Rhode Island Old Saybrook, Connecticut New London, Connecticut Connecticut Commuter Stations BWI Westerly, Rhode Island Pee ar raer rr — J.A. 221 PLAINTIFF’S EXHIBIT 3 IN-STATION ADVERTISING AGREEMENT BY AND BETWEEN NRPC and WNI FORM PARAGRAPHS ISAA. ISAA. ISAA. ISAA. ISAA. ISAA. ISAA. ISAA. ISAA. ISAA. ISAA. ISAA. ISAA. ISAA. ISAA. ISAA. ISAA. ISAA. INTRODUCTION SECTION 1. , GRANT SECTION 2... TERM SECTION 3. ANNUAL PAYMENT 7 SECTION 4. NEW YORK CITY- PENNSYLVANIA STATION ADVERTISING SPECTACULAR DISPLAY SECTION 5. AUDITS SECTION 6. APPROVAL OF ADVERTISING MATERIAL & LOCATIONS SECTION 7. LAWS, ORDINANCES, RULES AND REGULATIONS SECTION 8. RATES SECTION 9. CONTRACT FORMS SECTION 10. STORAGE SPACE SECTION 11. WORK ON AMTRAK PROPERTY SECTION 12. MAINTENANCE SECTION 13. ADVERTISING EQUIPMENT SECTION 14. ELECTRICITY SECTION 15. NON-INTERFERENCE WITH CONCESSIONAIRES : SECTION 16. TERMINATION BY AMTRAK SECTION 17. TERMINATION BY WNI SECTION 18. ABANDONMENT, LEASES, SALES ISAA. 19 ISAA. 20 J.A. 222 SECTION 19. SECTION 20. SECTION 21. SECTION 22. SECTION 23. SECTION 24. SECTION 25. SECTION 26. SECTION 27. SECTION 28. SECTION 29. SECTION 30. SECTION 31. SECTION 32. SECTION 33. FORCE MAJEURE, STRIKE, ETC. INSURANCE AND LIABILITY ASSIGNMENTS, SUCCESSORS AND ASSIGNS PATENTS AND TRADEMARKS CONDUCT OF EMPLOYEES NOTICES : WAIVER INDEPENDENT CONTRACTOR INTERPRETATION OF AGREEMENT SECTION TITLES NON-DISCRIMINATION ENTIRE AGREEMENT PRIOR AGREEMENT PUBLIC SERVICE ADVERTISING ARBITRATION IN WITNESS J.A. 223 IN-STATION ADVERTISING AGREEMENT BY AND BETWEEN NATIONAL RAILROAD PASSENGER CORPORATION AND WINSTON NETWORK, INC. This Agreement (Agreement), dated as of the first-day of December, 1985, is made between the NATIONAL RAIL- ROAD PASSENGER CORPORATION, a Corporation of the Street, Washington, DC 20001 (hereinafter referred to as “Amtrak”), and Winston Network, Inc., a New York Corpora- tion, having an office at 275 Madison Avenue, New York, New York 10016 (hereinafter referred to as “WNI”). SECTION 1. GRANT For and in consideration of the payments, covenants and agreements hereinafter mentioned, Amtrak does hereby grant to WNI the right and privilege to develop, construct, place and maintain posters, WNI Islands, clocks and dioramas, and to sell advertising space thereon, at those locations listed in Exhibit A hereto as well as at additional locations which may be authorized by Amtrak, at the sole discretion of Amtrak. WNI may enter into contracts, licenses and sub-licenses for advertising displays in the name of WNI, but not in the name of Amtrak. Both Amtrak and WNI may develop, construct, place and maintain self-contained floor exhibits and sell advertising space thereon. SECTION 2. TERM Subject to all the terms and conditions hereof, this Agreement shall be for a term of five (5) years, commencing on December 1, 1985, and ending on November 30, 1990 and shall continue from year-to-year thereafter unless either party hereto shall give to the other not less than one (1) year’s writ- J.A. 224 ten notice of termination of this Agreement; which notice shall expire on the last day of the term or the last day of any subsequent additional year, as the case may be. Amtrak may terminate this Agreement at any time with respect to all or any stations by giving thirty (30) days prior written notice of termination and upon the date of termination specified in such notice, this Agreement shall cease, terminate and come to an end, provided, however, that this Agreement Shall continue in full force and effect with respect to any indi- vidual advertising contract so long as said contract does not have an initial term in excess of one year, nor, in any event, be in effect for more than one year following said termination date. j SECTION 3. ANNUAL PAYMENT (a) In consideration of the rights and privileges granted herein, WNI agrees to pay to Amtrak, on and after the first anniversary date of this Agreement, a guaranteed annual pay- ment based on Installed Inventory; as defined herein and the applicable percentages of net receipts (hereinafter “Percent- age Payment”), as set forth in Section 3(d) and Section (e) below. On the second anniversary date of this Agreement; and on each anniversary date thereafter, said guaranteed annual payment shall be one hundred and ten percent (110%) of the guaranteed annual payment payable hereunder in the year immediately preceding. (b) On or before the 25th day of each month, WNI shall furnish Amtrak with a complete statement of WNI’s net receipts (as defined in subsection (f) of this Section 3 for the preceding month, (hereinafter “Net Receipts”). Such state- ment shall show the total amount of Net Receipts for the pre- ceding month, including the name of the advertiser(s), amount(s) billed, and amount(s) collected. WNI’s check for Percentage Payment shall accompany each statement if in excess of '/,, of the minimum annual fee. J.A. 225 (c) Within forty-five (45) days following the close of each year and of this Agreement and each continued year here- under, WNI shall furnish Amtrak with a consolidated state- ment of Net Receipts (hereinafter “Net Receipts”) for the year in question, certified by an independent Certified Public Accountant. (d) WNI shall pay to Amtrak the following percentages of Net Receipts according to media used, as follows: (i) Self-contained Floor Exhibits, —60% if marketed by WNI (ii) Clocks, Dioramas, Posters —50% and WNI Island Displays By mutual agreement in writing the parties hereto may add to the foregoing other media and the percentages of Net Receipts to be made applicable thereto. Percentages of Net Revenue payable by WNI hereunder shall be no lower than those payable by WNI to railroads other than Amtrak: (e) As used herein, “Installed Inventory” shall mean adver- tising display equipment as defined in Section 13 hereof. Exhibit “A” attached hereto and made part hereof sets forth the Installed Inventory, as of the date of execution hereof, at the rail passenger stations listed in said Exhibit “A”. On the anniversary date of each year of this Agreement; and each continued year, WNI shall deliver to Amtrak a revised Exhibit A, specifying additions to, and deletions from the pre- vious year’s Installed Inventory. The guaranteed annual fee shall be adjusted annually (on the anniversary date of this Agreement) by mutual agreement between Amtrak and WNI, to reflect all changes in Installed Inventory. (f) As used herein, “Net Receipts” shall mean and include the gross amounts paid to or received by WNI from adver- tisers or their advertising agencies for the use of advertising facilities under this Agreement; provided, however, that there J.A. 226 Shall be excluded from the computation of Net Receipts th following: : : (i) Standard advertising commissions paid to recog- nized advertising agencies with respect to the use of advertising facilities hereunder, not to exceed ; fifteen (15%) percent for all advertising media; (ii) Quantity purchase discounts actually allowed by WNI; to advertisers or their advertising agencies hereunder; (iii) Taxes separately stated and paid by advertisers or their advertising agencies and payable to or for the account of WNI; and (iv) Any amounts received by WNI which are not related to the use of advertising facilities here- under. (v) Labor fees charged by WNI to public service advertising pursuant to Section 32(b) hereof. SECTION 4. NEW YORK CITY—PENNSYELVANIA STATION ADVERTISING SPECTACULAR DISPLAY (a) This Agreement cancels and supersedes that certain Permit for Advertising Display Facilities, between Amtrak and WNI, dated August 15, 1980, Permit No. 31-01-047. SECTION 5. AUDITS (a) In order to verify the amount of Net Receipts reports by WNI for any year or portion thereof under this Agreement Amtrak shall have the right, at any time (but not after 2 years subsequent to the expiration of any such year), to conduct an audit of WNI’s books and records pertaining to this Agreement. Such audits may be made by Amtrak’s Auditing Department or by independent Certified Public Accountants or by any other agent selected by Amtrak, or by any federal agency (including the General Accounting Office) whi the right to audit accounts. , itt sat J.A. 227 (b) If such audit reveals an understatement of WNI’s Net Receipts for the period in question, and a consequent defi- ciency in Percentage Payment, WNI shall forthwith pay the amount of such deficiency to Amtrak, and, if such audit reveals an overpayment of Percentage Payment, Amtrak shall credit against the next monthly installment(s) of Percentage Payment to fall due, the amount of such overpayment, pro- vided, however, that if the amount of any refund due to WN] hereunder exceeds the aggregate of installment(s) of Percentage Payment total due, and if, and WNI has fully com- plied with all of the terms, covenants, conditions and provi- _ sions to be performed by WNI under this Agreement and is not indebted to Amtrak, the amount of such excess shall be paid to WNI within thirty (30) days. The cost of such audit shall be borne by Amtrak. The provisions of this covenant shall survive the expiration or other termination of this Agreement. SECTION 6. APPROVAL OF ADVERTISING MATERIAL & LOCATIONS All advertising material, exhibit material, notices and advertisements, and their manner of presentation and design, shall be subject to approval by Amtrak, which may disap- prove any such items at its own discretion. WNI will imme- diately remove, at its sole expense, upon written demand of Amtrak, any display, sign, poster, or other advertising mate- rial (including advertisement content) which may be consid- ered objectionable by Amtrak. In the event that such matter is not removed immediately upon receipt of written demand, Amtrak may remove said material or display and WNI will pay any costs or expense incurred by Amtrak, including all labor charges and warehouse or storage rental incurred as a consequence of such action. Amtrak shall not, in any way, be held responsible for liable for any actions taken under this Section. . J.A. 228 SECTION 7. LAWS, ORDINANCES, RULES AND REGU- LATIONS (a) WNI shall comply with all applicable federal, state, and local laws, ordinances, rules and regulations and with the rules and regulations of Amtrak, in the erection, display and maintenance of all advertising. In the event that such laws, ordinances, rules or regulations require removal of all or any WNI Installed Inventory, WNI shall promptly comply with such requirement at its own cost and expense. (b) WNI shall procure all necessary licenses, certificates, permits and authorizations, and shall pay all costs thereof. (c) In the event any category or categories of advertising Shall be prohibited, the parties hereto agree to negotiate in good faith, an adjustment to the Percentage Payment payable under Section 3 hereof, said adjustment to reflect the loss of such advertising categories. SECTION 8. RATES (a) WNI shall establish and print a schedule of rates for all advertising displayed under this Agreement. (b) A copy of WNI’s published rates, effective as of the date of this Agreement, is attached hereto as Exhibit “B”, WNI shall furnish Amtrak with copies of all revisions, changes and amendments to Exhibit “B”. (c) Amtrak, shall furnish WNI with ridership information, as available. WNI shall furnish Amtrak with all data relevant to determining the schedule of rates for all advertising dis- played under this Agreement. SECTION 9. CONTRACT FORMS WNI shall submit to Amtrak, for prior approval, a!l forms to be utilized by WNI for contracting with advertisers. Copies of all contracts or agreements made by WNI pursuant to this Agreement shall also be submitted, upon request, to Amtrak. J.A. 229 SECTION 10. STORAGE SPACE Amtrak agrees, where conditions permit and space is avail- able, to provide WNI with reasonable space within stations for handling and storing of WNI’s supplies, materials and advertising matter to be used pursuant to this Agreement. Amtrak shall incur no cost, expense or liability whatsoever in connection with such space, and WNI, if required, shall pay market rate rental for any unimproved storage space made available by Amtrak for WNI’s use. SECTION 11. WORK ON AMTRAK PROPERTY The work of constructing, maintaining, repairing, altering, renewing, relocating, or removing any Installed Inventory shall be done under such conditions as shall be satisfactory to and be approved in advance by the Chief Engineer of Amtrak, or his designee, and as will not interfere with the proper and safe use, operation and enjoyment of the property of Amtrak. No such work shall be undertaken by or on behalf of WNI without prior written approval as aforesaid. WNI, at its own cost and expense, shall, when performing any work in con- nection with any part of the Installed Inventory, arrange for any necessary watchmen or flagman to ensure that personnel, equipment and materials are kept a safe distance away from the railroad tracks. Any notification required to be given to Amtrak by WNI shall be sent by certified mail to such per- sons and addresses as may be designated by Amtrak’s Chief Engineer or his designee. SECTION 12. MAINTENANCE WNI agrees that it will furnish, mount, install and contin- uously maintain in a clean and first-class condition its Installed Inventory and all parts thereof, and, in general, do any and all work under this Agreement, subject to the super- vision and approval of Amtrak, at such times and in such manner as in no way to impede or interfere with the use or operation of Amtrak’s facilities. WNI, its employees, ser- J.A. 230 vants, suppliers of materials, and furnishers of service shall have the right to ingress and egress at Amtrak’s facilities, subject prior approval by Amtrak in order to perform its obli- gations set forth in this Agreement. SECTION 13. ADVERTISING EQUIPMENT (a) WNI shall furnish, mount and install, its own adver- tising display equipment, including, but not limited to frames, boards, clocks, poster panels, islands, exhibits, dioramas, or any other advertising display equipment, at its sole cost and expense. All equipment is and shall remain the property of WNI, unless owned by a third party and installed in stations on a rental basis. (b) WNI agrees to survey all WNI-installed equipment within one year of commencement of this Agreement and to submit to Amtrak a written plan to replace old equipment and/or add new equipment to the Installed Inventory. Such plan shall be evaluated by Amtrak and Amtrak and WNI shall mutually agree on additions to Inventory. It is the intent of WNI to increase its capital investment and improvements in Installed Inventory in Amtrak stations over the term of this Agreement by $1,000,000. (c) Upon expiration or termination of this Agreement for any reason, WNI, at its sole cost and expense, shall remove from the property, facilities and premises of Amtrak, all Installed Inventory, including but not limited to advertising frames, clocks, displays, exhibits, and advertising equipment and materials which WNI and those claiming by, through or under it were permitted to install or maintain under the rights and privileges given by this Agreement, and shall restore said property, facilities and premises, reasonable wear and tear excepted. (d) If WNI shall fail to commence removal of its Installed Inventory within ninety (90) days after expiration or termi- nation, then Amtrak may effect such removal and restoration J.A. 231 at the expense of WNI, and WNI agrees to pay Amtrak the reasonable cost and expense thereof promptly upon receipt of invoice therefor. SECTION 14. ELECTRICITY (a) Amtrak shall provide existing electrical current for the illumination/operation of advertising displays and clocks. (b) Amtrak shall not be responsible for reductions or inter- ruptions in the supply of electrical power. SECTION 15. NON-INTERFERENCE WITH CONCESSIONAIRES The rights and privileges granted herein to WNI shall not be deemed to limit the right of Amtrak to grant tenants, licensees and concessionaires the right to advertise in the premises or space used by them by agreement of Amtrak. SECTION 16. TERMINATION BY AMTRAK In addition to any other termination rights contained in the Agreement, Amtrak shall have the right, upon sixty (60) days written notice to WNI, to terminate this Agreement any time after the occurrence of any one or more of the following © events: (i) Non-payment of Percentage Payment due Amtrak when such non-payment shall continue for a periodof twenty (20) days after written notice of demand for payment. (ii) If any petition shall be filed by or against WNI to declare WNI bankrupt, or to delay, reduce or mod- ify WNI’s debts or obligations or if WNI be declared insolvent according to law, or if any assignment of WNI’s property shall be made for the benefit of creditors, or if a receiver or trustee is appointed for WNI or its property, Amtrak may treat the occurrence of any one of more of the J.A. 232 foregoing events as breach of the Agreement with- out notice, and immediately enter and repossess the spaces covered hereunder. (iii) Abandonment by WNI of and discontinuance of - Operations hereunder. (iv) Non-performance of any covenant of this Agreement, excluding the covenant of payment herein contained, and failure of WNI to remedy such breach within a period of sixty (60) days after receipt of written notice from Amtrak of the existence of said breach. (v) If WNI becomes permanently deprived of the rights, powers and privileges necessary to the proper conduct and operations of the Installed Inventory specified in this Agreement. (vi) Damage by fire or other casualty to the stations listed in Exhibit A hereto. (vii) Assumption of control of any of fhe aforesaid sta- tion by parties other than Amtrak. SECTION 17. TERMINATION BY WNI In addition to any other termination rights contained in this Agreement, this Agreement shall be subject to termination by WNI in the event any one or more of the following events occur: (i) The permanent abandonment of Amtrak’s trans- portation system, or substantial portions thereof. (ii) The lawful assumption by the United States Government, or any authorized agency thereof, of the operation, control or use of the transportation facilities covered hereunder, or any substantial part or parts thereof in such a manner as to sub- Stantially restrict WNI from operating therefrom for a period in excess of ninety (90) days. J.A. 233 (iii) Issuance by any court of competent jurisdiction of an injunction in any way preventing or restraining the use of Amtrak’s facilities, and the remaining In force of such injunction for a period in excess of ninety (90) days. (iv) The defau!t oy Amtrak in the performance of any covenant or agreement herein required to be per- formed by Amtrak, and the failure of Amtrak to remedy such default for a period of sixty (60) days after receipt of written notice by WNI to remedy the same. SECTION 18. ABANDONMENT, LEASES, SALFS (a) This Agreement is expressly made Subject to any aban- donment of a part of a line or lines or any facilities or ter- minals of Amtrak, to any and all sales, leases, assignments or licenses of any of the aforementioned property or premises by Amtrak, to the provisions of all leases or agreements under which Amtrak holds said property or premises, to all encum- brances, conditions, covenants, rights and easements to which the title of Amtrak is or may be subject, to all other leases or licenses to which Amtrak is or may be subject, to all leases or licenses which Amtrak has granted or may grant in the future to other parties, and to the right of Amtrak at any and all times: (1). to place or cause to be placed, notices and bulletins (in locations other than on WNI’s signs) advertising its own services and mattérs of interest to the public or for the infor- mation of employees or patrons of Amtrak, (2) to sell, lease or license any and all of its property and premises, and (3) to carry on all of its general and special business operations. (b) In the event Amtrak desires at any time or times to sell, assign, lease, license or otherwise dispose of any or all of its property, facilities, and premises, or to abandon any part ofa line or lines of railroad, WNI at WIN’s sole cost and expense, shall in any and all such events remove forthwith, upon notice from Amtrak, any and all Installed Inventory and advertising 7 7 J.A. 234 matter thereon permitted hereunder that Amtrak specifies Should be removed from the property, facilities or premises to be sold, leased, licensed, or otherwise disposed of. SECTION 19. FORCE MAJEURE, STRIKE, ETC. (a) If WNI is deprived of advertising space in any or all the Stations set forth in Exhibit A hereto for more than thirty (30) successive days by reason of force majeure, strike, fire, or other cause beyond the control of WNI, then the Percentage Payment payable shall be adjusted and/or abated to reflect the loss of use of the space on a pro-rata basis. (b) If WNI is totally deprived of advertising space in all the aforesaid stations for more than sixty (60) successive days because of force majeure, labor strike, or any other cause beyond the control of WNI, or if the public is totally denied normal access to such stations for any reason, then WN] may cancel this Agreement.in its entirety as of the date of such deprival of space or denial of access by giving Amtrak writ- ten notice of its intention do to so, without any further lia- bility being incurred thereby on the part of WNI or Amtrak SECTION 20. INSURANCE AND LIABILITY (a) WNI shall indemnify and save harmless Amtrak and its _ directors, officers, employees, agents and representatives from all suits and action of every name and description brought against them, or which may arise as a result of any injuries or damages received or sustained by any person, per- sons or property, or from acts of said WNI, its agents, ser- vants or employees, performed on the premises of Amtrak. (b) WNI shall indemnify and save harmless Amtrak and its directors, officers, employees, agents and representatives against any claims or liability arising from or based upon the violation of any federal, state, county or city laws, by-laws, ordinances, or regulations, by said WNI, its agents, servants and employees. J.A. 235 (c) Protection against loss by fire or other casualty to the Installed Inventory or to any part thereof or to the contents of any advertising displays shall not at any time be an obligation of Amtrak. (d) WNI shall, at its own cost and expense, maintain in effect at all times during the existence of this Agreement, Workmen’s Compensation and Comprehensive Public Liability Insurance, insurance against death, personal injury, property damage, and legal-contractual liability, arising from or in connection with acts or omissions pursuant to this Agreement, in an amount not less than Three Million Dollars ($3,000,000.00) combined single limit. (e) During such times as WNI is performing major con- struction or major repairs, as determined by Amtrak, WN] will provide Railroad Protective Liability Insurance written for and on behalf of Amtrak, providing limits of Two Million Dollars ($2,000,000.00). (f) Upon execution of this Agreement by Amtrak, WNI shall furnish certificates of such required insurance, as to con- tents and carriers, to Amtrak, which will contain the follow- ing provisions: (i) Thirty (30) days prior notice to Amtrak of policy cancellation or termination. 7 (ii) Under all policies of insurance, Amtrak shall be included as an additional named insured. SECTION 21. ASSIGNMENT, SUCCESSORS AND ASSIGNS (a) WNI shall not assign or transfer any of the rights or privileges granted herein without the prior written approval of Amtrak, which shall not be unreasonably withheld. (b) The terms of this Agreement shall be binding upon the executors, administrators, successors and assigns of the par- ties hereto. J.A. 236 SECTION 22. PATENTS AND TRADEMARKS WNI represents that it is the owner of or fully authorized to use any and all services, processes, machines, articles, marks, names or slogans used by it in its operations under or con- nected with this Agreement. WNI agrees to save and hold Amtrak, its directors, officers, employees, agents and repre- sentatives free and harmless of and from any loss, liability, expenses, suit or claim for damages in connection with any actual or alleged infringement of any patent, trademark or copyright, or arising from any alleged or actual unfair com- petition or other similar claim arising out of the operations of WNI under or connected with this Agreement. SECTION 23. CONDUCT OF EMPLOYEES WNI agrees that while its officers, agents and employees are on Amtrak premises, including but not limited to, rail cars, and about the station buildings, platforms and grounds, it will cause them to conduct themselves in a proper manner, and if complaint is made by Amtrak, it will forthwith take such corrective measures as are necessary. SECTION 24. NOTICES All notices, consents, demands, approvals, and requests (“notices”) which are required or permitted to be given by either party to the other, pursuant to any provision of this Agreement, shall be sent by United States certified mail, return receipt requested, and shall be addressed as follows (or to such other address as either party may designate from time to time by written notice to the other): (i) If to Amtrak: National Railroad Passenger Corporation 400 North Capitol Street, NW Washington, DC 20001 Attention: Vice President-Real Estate J.A. 237 (ii) If to WNI: Winston Network, Inc. 275 Madison Avenue New York, NY 10016 Attention: Senior Vice President, Franchise SECTION 25. WAIVER No waiver of any term, condition or breach of this Agreement on any occasion shall be deemed to be a waiver of any other term, condition or breach of this Agreement on any other occasion, or a waiver of any continuing or subsequent breach of the same term or condition. SECTION 26. INDEPENDENT CONTRACTOR WNI is an independent professional firm contracting with Amtrak to provide expert assistance. WNI, its directors, offi- cers, employees, agents, and servants are not to be deemed employees, agents, or servants of Amtrak. WNI assumes full responsibility for liability arising out of the negligence of its employees, whether by action or inaction. Amtrak assumes no liability or responsibility for the negligent acts of WNI, its directors, officers, employees, agents, or servants, by virtue of entering into this Agreement. WNI is and shall remain an independent contractor under the terms of this Agreement. SECTION 27. INTERPRETATION OF AGREEMENT This Agreement shall be governed and constructed in accor- dance with the laws of the District of Columbia. SECTION 28. SECTION TITLES The titles of Sections are for ease of reference only, and shall not be construed to control or in any way alter the plain meaning of the text of this Agreement. J.A. 238 SECTION 29. NON-DISCRIMINATION WNI, in exercising any of the rights or privileges herein granted to it, shall not, on the grounds of age, sex, religion, race, color or national origin, discriminate or permit dis- crimination against any person or group of persons in any manner prohibited by federal, state or local laws. WNI shall comply with such Equal Opportunity and Affirmative Action policies required of Amtrak contractors as Amtrak may estab- lish from time-to-time. SECTION 30. ENTIRE AGREEMENT (a) This Agreement represents the entire understanding and agreement between the parties with respect to the subject mat- ter hereof. (b) This Agreement may not be changed orally. This Agreement may be changed only by a mutual agreement in writing. . (c) If any provision of this Agreement is determined to be invalid or unenforceable, it shall be considered deleted here- from and shall not invalidate the remaining provisions hereof. SECTION 31; PRIOR AGREEMENTS This Agreement cancels and supersedes all prior agree- ments relating to the subjer: matter of this Agreement between WNI and Amtrak and |e predecessors of Amtrak, as such Agreements pertain to the property and land that is owned, leased or otherwise used or occupied by Amtrak. SECTION 32. PUBLIC SERVICE ADVERTISING . (a) WNI shall provide space for public service advertising On a preemptible basis. All public service advertising shall be subject to removal at any time for the benefit of paying advertisers. J.A. 239 (b) Public service advertising shall be entitled, at WNI, discretion, to receive unsold advertising space at no space charge. However, WNI shall be permitted to charge a one- time labor fee to cover its out-of-pocket labor costs. Such labor fee shall not be deemed a part WNI’s Net Receipts as defined in this Agreement. (c) WNI, in addition to providing public service advertis- ing at no space cost, shall provide advertising space, on a pre- emptible basis, to legitimate non-profit organizations, at an established discount from regular space rate. The availability of the discount on the space rate shall be determined by WNI at its own discretion. All revenues collected pursuant to this subsection shall be subject to regular revenue sharing with Amtrak. (d) Amtrak reserves the right place its own messages, pub- licizing its own services, on the facilities covered by this Agreement. WNI will post and remove all such messages for Amtrak at no charge to Amtrak. All copy shall be provided to WNI by Amtrak at Amtrak’s expense. All messages posted pursuant to this sub-section shall be on a preemptible basis for the benefit of paying advertisers, and shall be reasonable as to quantity to be posted. All materials to be posted shall be delivered to WNI not less than three (3) weeks prior to the required posting date. SECTION 33. ARBITRATION Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association and judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof. | J.A. 240 IN WITNESS WHEREOF, the parties hereto, by their autho- rized officers, have executed this Agreement as of the day and year first above written. ATTEST: WINSTON NETWORK, INC. By: _[illegible]/s/ Witness By: __[illegible|/s/ Senior Vice President Date: _[illegible] ATTEST: NATIONAL RAILROAD PASSENGER By: _[illegible]/s CORPORATION Witness By: _[illegible]/s/ Assistant Vice President Real Estate Date: February 28. 1986 J.A. 241 EXHIBIT A STATION l- SH. PENN STATION-NY 0 PRINCETON JUNCT. 9 TRENTON ] PROVIDENCE 5 WILMINGTON 0 PENN STA.-BALT. 0 9 PENN STATION-NY Vert. Rolari 30TH STREET 30TH ST(NOT) N. PHILADELPHIA OVERBROOK MERION NARBETH WYNNEWOOD ARDMORE HAVERFORD BRYN MAWR ROSEMONT VILLANOVA RADNOR ST. DAVIDS WAYNE STRAFFORD woouwun & © &ny Oo orF NHN FB CO SO J.A. 242 2- SH. 44 32 118 3- CLCKS DRMS OTHER SH. 39 10 62D o oOo o& ©& oo oO OC O&O 34 ~ i) — a — en — oe — ee — ee — ee — ee — 2 —~ 2 — 2 — ee — 2 ~~ ee — ee — - OF OF Oo Oo CO O 1 Exh. 3 Island 1.A. 243 J.A. 244 STATION }- 2. 3- CLCKS DRMS OTHER PLAINTIFF’S EXHIBIT 4 SH. SH. SH. in ‘ PERMIT FOR DEVON ate eee ADVERTISING DISPLAY FACILITY BERWYN a a 0 0 (ADF) a oe 0 DAYLESFORD ; , THIS PERMIT AGREEMENT is made this 15th day of PAOLI | : 8.2 Ss August, 1980, by and between the NATIONAL RAILROAD TOTAL 112 687 425 77 44 PASSENGER CORPORATION, a Corporation of the District of Columbia, with offices at 400 North Capitol Street, N.W., Washington, D. C. 20001 (hereinafter called the “Permiitor”), and TRANSPORTATION DISPLAYS INC., a Corporation of the State of New York, with offices at 275 Madison Avenue, New York, New York 10016, (hereinafter called the “Permittee”). 1. GRANT WITNESSETH, that for and in consideration of the pay- ments, covenants and agreements hereinafter mentioned, stip- ulated and contained, on the part of the Permittee to be paid, kept and performed, Permittor does hereby permit the Permittee to be the sole and exclusive advertising sales rep- resentative for the advertising spectacular display hereinafter described and to maintain, at Permittee’s sole cost and expense, said advertising spectacular display (hereinafter called the “facility”) for sale to advertisers, being 100 feet in length by 10 feet in width situate over Permittor’s ticket counter located on the west side of the Ticket Concourse of Permittor’s Pennsylvania Station situate between Eighth and Seventh Avenues, 31st to 33rd Streets, in the Borough of Manhattan, City, County and State of New York. J.A. 245 2. PURPOSE The purpose of the Permittor in extending the permission granted hereby is to have available at the location afore- mentioned the services which the Permittee is authorized to render hereunder, and with respect hereto the Permittee agrees that it will conduct a first class operation and will furnish all necessary equipment, personnel, supplies, materials and other facilities therefor. 3. RESERVATION Permittor hereby reserves unto itself and its licensees the right and easement to maintain, repair and renew any pipe, conduit, electric and communication lines, and any other facilities of like character, as may now exist or may hereafter be placed upon, under or over the facility, it being agreed that this permit is subject and subordinate to any and all such rights, easements and uses. Permittee shall occupy and use the facility in a careful, safe and orderly manner so as not to interfere in any way with the maintenance or operation of the business of Permittor or of its licensees or with any structures or facilities appurtenant to the business of Permittor or of its licensees. 4. EFFECTIVE PERIOD The effective period of this Permit is Five (5) years, com- mencing on the First day of January 1980, and ending on the Last day of December 1984, yielding and paying therefor to Permittor, without any previous demand therefor, such fees, additional charges and sums as hereinafter set forth at P.O. Box 1582, Group No. 5, Washington, D- C. 20013, or at any such other place as Permittor may from time to time designate. J.A. 246 5. TERMINATION Permittor shall have the right to terminate this permit at any time during the effective period hereof by giving to Permittee at least Ninety (90) days prior written notice of intention so to do in the event that the Permittor shall desire to use the facility, or any portion thereof, either for itself or through agreement with others for transportation or public service pur- poses, or for construction, reconstruction, demolition, sale or lease of that portion of the building of which the demised premises constitute a part and upon the date of termination specified in such notice this permit shall cease, terminate and come to an end. In the event of the expiration or termination of this permit, whether under the provisions of this Section “5S”, or otherwise, Permittee shall peaceably quit and deliver possession of the facility to Permittor on or before such date of expiration or termination. If the last day of the term of this permit falls on Sunday this permit shall expire on the business day immediately preceding. 6. COMPENSATION The Permittee shall pay to Permittor from the date of com- mencement of this permit fees which shall be equal to sixty- five per centum (65%) of the monthly gross receipts of Permittee from said facility; said fee to be paid in equal monthly installments, on or before the fifteenth (15th) day of each succeeding month during the continuance of this permit, said payment to be accompanied by a true statement, signed by Permittee’s chief financial officer, of Permittee’s gross receipts during the preceding month in such form and detail as the Permittor may request (Permittor reserves the right at any time and from time to time to change said form and/or request different or additional information); adjustments on account thereof shall be made for the preceding year here- under within thirty (30) days following the end of said yearly J.A. 247 period. On or before such day, Permittee shall furnish Permittor with a statement of its gross receipts for the said yearly period attested to by Permittee’s chief financial officer or by the Certified Public Accountant then under retainer by Permittee for the audit of its books and records (if Permittee shall have such public accountant then under retainer) or such other person normally charged by the Permittee with such responsibility for the audit or maintenance of Permittee’s books and records. The term “Gross Receipts” as used in this Permit shall mean and include all gross revenue of Permittee, derived from or attributable to the use, enjoyment or operation of the facil- ity, including, without limitation, the following: All gross revenues (i) for the use of facility under any use Or occupancy agreements, written or oral and however denominated (whether sub-lease, license, concession, fran- chise, privilege or otherwise), from any persons, including subtenants, licensees, concessionaires or otherwise, (ii) for and in consideration of the cancellation, surrender or modi- fication of any such agreement, (iii) for the admission to or use of facilities forming a part of or appurtenant to the facil- ity (iv) from the operation or use of the facility or any busi- ness conducted thereon by Permittee and (v) all amounts paid by advertisers or users of the facility to Government Authorities or persons other than Permittee in discharge of obligations of Permittee, whether or not arising out of or in connection with the facility. Provided however that “Gross Receipts” shall not mean or include the following: (1) Agency commissions, cash discounts, or fees paid to collection agencies, excluding however commissions of any kind of parent, subsidiary, or affiliated companies. Permittee further covenants and agrees to pay to the Permittor, as additional fees for the electric current and ven- tilation furnished, a sum of Eight Hundred Thirty One and 78/100 Dollars ($831.78) per month commencing January I, 1980, said sum to be paid in advance on the first day of each Se ef sae J.A. 248 and every month during the continuance of this agreement at the office hereinbefore designated; provided, however, that from time to time the amount of such additional fees shall be reviewed and adjusted by the Permittor in accordance with Permittee’s actual consumption of electricity and the rate charged Permittor therefor. If Permittor is entitled to an adjustment of the fees in accor- dance with the above provisions, Permittor shall send a notice to Permittee setting forth the new fees. Any delay of Permittor in sending such notice shall not constitute a waiver of or in any way impair the continuing obligation of Permittee to pay such fee adjustments. In the event of an adjustment in the fees applicable to the permit year in which this permit ter- minates, the Permittee shall pay to the Permittor any addi- tional fees owed for the months elapsed in such permit year within fifteen (15) days after such notice. 7. RECORD KEEPING: AUDITS Permittor shall have the right, at any time and from time to time (but not after three (3) years subsequent to the expiration of the pertinent permit year), to cause an audit of Permittee’s operation of the facility to be made by Permittor’s Auditing Department, an independent Certified Public Accountant, or a firm of independent Certified Public Accountants or any other agent of Permittor selected by Permittor, or any federal agency including the General Accounting Office which has the right to audit Permittor’s accounts, to verify the amount of Permittee’s gross receipts reported by Permittee for any permit year or portion thereof. If such audit reveals an understatement of Permittee’s gross receipts for the period in question and a consequent defi- ciency in the payment of percentage fees, Permittee shall forthwith pay the amount of such deficiency to Permittor, and if such audit reveals an overpayment of percentage fees, Permittor shall credit against the next monthly installment(s) of fees falling due the amount of such overpayment; provided, J.A. 249 however, that if the amount of any refund due Permittee here- under exceeds the aggregate remaining installment(s) of fees and Permittee has fully complied with all of the terms, covenants, conditions and provisions to be performed by Permittee under this permit and is not indebted to Permittor, the amount of such excess shall be paid by Permittee within thirty (30) days after Permittee has duly vacated the facility. The cost of such audit shall be borne by Permittor unless such audit reveals a deficiency of more than two percent (2%) or Five Hundred Dollars ($500.00), whichever is the lesser, in the percentage fees which should have been paid by Permittee for the period in question, in which event Permittee shali pay to Permittor on demand the costs of such audit and ten per- cent (10%) of the amount so underpaid as additional fees. Any payment, credit or refund to be made under this pro- vision shall be without interest. The provisions of this covenant shall survive the expiration or other termination of this permit. Permittee agrees to maintain and keep at its offices afore- mentioned for a period of not less than three (3) years fol- lowing the end of each permit year, records which shall show annual gross receipts from the facility. For the period of three (3) years following the expiration or earlier termination of this permit, all of the records provided for hereunder shall be made available to Permittor upon written demand therefor by Permittor to Permittee, and to that extent the provisions of this covenant shall survive the expiration of the term. It is the purpose and intent of the Permittor and Permittee that the annual fees shall be absolutely net to the Permittor, so that this permit shall yield, to the Permittor, the fees herein- before provided on the dates specified, and that all costs, fees, interest, charges, expenses, reimbursements, and obligations of every kind and nature whatsoever relating to the facility (excepting any payments on account of any fee mortgage which the Permittor may place upon the fee) which may arise or become due during or out of the term if this permit shall be paid or discharged by the Permittee as additional fees, and the J.A. 250 Permittee hereby agrees to indemnify and hold Permittor harmless from and against such costs, fees, interests, charges, expenses, reimbursements, obligations and any interest thereon. : Permittee will also pay without notice, and without abate- ment, deduction, or set off, except as may be required or per- mitted by this permit, as additional fees, all sums, taxes, assessments, costs, expenses, and other payments which the Permittee in any of the provisions of this permit assumes or agrees to pay, and in the event of any nonpayment thereof, the Permittor shall have (in addition to all other rights, and reme- dies) all the rights and remedies provided herein or by law in the event of nonpayment of fees. 8. COVENANT TO PAY FEES Permittee will pay all fees and additional fees when due, without any setoff or deduction whatsoever, and any payment or receipt thereof by Permittor or its agent of any amount less than the full amount to which Permittor deems it is entitled Shall not operate or be deemed to operate as a settlement or Satisfaction of said fees or other amounts due, notwith- Standing any statement or endorsement on the check or other paper accompanying the payment, but Permittor shall be deemed to have accepted said payment without prejudice and subject to its right to collect the balance actually due, as well as subject to any and all other rights available to Permittor by law and under this permit agreement. 9. LATE PAYMENT If Permittee does not pay fees or any additional fees here- under on the day when the same shall become due -and payable and such failure to pay fees or any additional fees shall continue for a period of ten (10) days, Permittee shall pay to Permittor, a service charge at the rate of twelve percent (12%) per annum, or the highest rate allowed by law, J.A. 251 whichever is the greater of the amount of such fees or any additional fees or all of them for each month or portion of a month that the same shall remain unpaid; provided, however, that such service charge shall in no event, be less than Fifty Dollars ($50.00) for any month or portion of a month that fees or any additional fees shall remain unpaid. The provisions of this paragraph shall not preclude Permittor from exercising its options as set forth in any other Section of this permit agreement. 10. ELECTRICITY AND VENTILATION Permittor will allow use of existing electric current for Permittee’s needs and allow use of ventilating equipment nec- essary to exhaust heat generated by illumination of the facil- ity; provided however, that Permittee shall provide all ventilation equipment and modifications, if needed, to elec- tric current solely at its own expense and cost. Permittee agrees that Permittor shall not be liable for any failure to sup- ply electric current or ventilation not due solely to its gross negligence; provided however, that in event of any power fail- ure wherein Permittee is obligated to grant a third-party Advertiser a credit against fees or the cost of electricity con- sumed, then Permittor shall grant the same credit to Permitiee. Perraittee shall give Permittor prompt written notice of any accidents to or defects in electric wires, to be remedied by Permittor with due diligence. 11. TAXES The Permittee shall pay all taxes, license, certification, permit and examination fees and excises which may be assessed, levied, exacted or imposed on or against the facil- ity or other property of the Permittee or the ownership, pos-— session or use thereof, or on the Permittee’s operation hereunder or on the gross receipts or income from such oper- aT Mu sibed J.A. 252 ation, and shall make all applications, reports and returns required in connection therewith. The obligation to make any payment pursuant to this Article “11” shall survive the expiration, revocation, or ter- mination of the effective period hereof. Permittee shall, in addition to the foregoing, pay any new tax of a nature not presently in effect or contemplated, but which may be hereafter levied, assessed, or imposed upon the Permittor or the facility, if such tax shall be based on or arise out of the ownership, use, occupation or operation of the facility. 12. LIMITED USE Permittee shall not use or occupy the facility for any other purpose whatsoever than: commercial advertising. The statement in this permit as to the nature of the business to be conducted by Permittee in the facility shall not be deemed or construed to constitute a representation or warranty by Permittor that such business that may be conducted in or on the facility is lawful or permissible. 13. MAINTENANCE AND REPAIRS Permittee has inspected and accepts the facility in its pre- sent condition and agrees that no representations or warranties with regard to condition, fitness for use or zoning of facility have been made that are not specifically expressed herein; and further agrees, at Permittee’s sole cost and expense, to put and keep the facility in constant good order, repair and safe condition; and further agrees upon the expiration or other ter- mination of this permit, to peaceably quit and deliver control of the facility to Permittor in like good order, repair and safe condition, reasonable wear and tear expected. Permittee further agrees that upon the termination of this agreement, Permittee shall, at its sole cost and expense, remove from the said facility all fixtures and equipment, pe J.A. 253 goods and property owned by it and restore the facility to a condition satisfactory to Permittor; in case Permittee shall neglect, or refuse so to do, Permittor shall have the right forthwith to make such removal and restoration at the cost and expense of Permittee, which cost and expense Permittee hereby expressly agrees to pay on demand. and Permittee hereby authorizes Permittor so to do, without being liable to Permittee or to any other person or corporation, for any dam- age or compensation or to any suit or action for or on account of such removal and restoration. Permittee further agrees that it shall, at its own cost and expense, assume maintenance of the entire advertising display and supporting structure and all facilities in connection there- with, including, but not limited to ordinary and extra-ordinary maintenance, cleaning, replacement lamps, supervision, all display equipment including transparencies, front lighted copy, lighting equipment and light fixtures, and all special equipment and fixtures required. Permittee further agrees for itself, its employees and agents, that it will and they will place, remove and arrange materials or property, and in general do any and all work under this agreement, at such times and in such manner as in no way to impede or interfere with the operations of Permittor. It is expressly agreed that should Permittor at any time at its option make any repairs, renewals or alterations, same shall not constitute a waiver of this covenant “13”, or any por- tion hereof, or of any other provisions of this lease agreement, or of any law or custom pertaining to Permittee’s obligations relative to maintenance, repairs, renewals or alterations. 14. COVENANT AGAINST ASSIGNMENT Permittee shall not assign or transfer this permit in whole or in part, without the prior written consent of Permittor; and Permittee shall not mortgage or otherwise encumber or per- mit to be encumbered the facility or any part thereof, or any J.A. 254 structures now or hereafter placed on the facility, without the prior written consent of Permittor, and written consent to assign or transfer this permit in whole or in part, or to mort- gage or otherwise encumber the facility or any part thereof, or any structures now or hereafter placed on the facility, shall not be deemed as waiving this restriction except to the extent of Permittor’s said written consent, or as giving assent to any or further assignment, subletting, mortgaging or encum- brancing. Any assignment or transfer by merger, consolida- tion, operation of law or proceedings in equity, bankruptcy, insolvency or reorganization, or any other transfer of a con- trolling interest of the stock of Permittee to persons not now in control, shall be deemed to be an assignment within the meaning of this provision. The term “assign”, as used herein, shall also include (i) an assignment of a part interest in this permit, as well as any assignment from one co-tenant to another; and (ii) an assign- ment to any prior owner of tenant’s interest herein or part thereof. 15. HAZARDOUS USE Permittee shall comply with all regulations, recommenda- tions, rules and requirements of Permittor, the local board of fire underwriters and any insurance carrier which insures or participates in insuring the facility and Permittee shall not knowingly permit any article to be brought upon or any act to be done upon or about the facility that will cause cancellation of any policy of insurance thereon or increase rates for such insurance beyond those usually charged for similar properties used for the purpose herein authorized. Without limiting the generality of the foregoing, Permittee shall not use or keep gasoline in any form upon the facility, or bring upon, store or allow to be stored upon the facility any materials of a dangerous or highly flammable nature or of such nature as to cause an extra fire risk or hazard, unless otherwise specifically provided herein, and will comply with J.A. 255 all such reasonable rules and regulations as Permittor may prescribe looking to prevention of fires and compliance with insurance contracts and policies. Permittee will allow Permittor’s Insurance Department Inspectors to periodically inspect the said facility when mak- ing any fire inspection of the building which the same is a part. 16. CLEANING AND SANITATION Permittee shall keep the facility in a clean and sanitary con- dition, including cleaning of floors, windows and lighting fix- tures, and will cause all dirt, rubbish and other refuse matter to be carefully collected and promptly disposed of in a man- ner satisfactory to Permittor. The removal of said dart, rubbish and other refuse matter shall be at the expense 6{Permittee who shall employ only such cleaning, garbage and trash removal contractors as may be approved by Permittor. 17. ORDINANCES Permittee, at its sole cost and expense, shall comply with and obey all laws, ordinances, rules, regulations and require- ments of all Federal, State, Municipal, County, Town, Village or other governmental authorities and the various departments — thereof now existing or hereafter created, so far as the same may affect the facility and make any corrections to the facil- ity necessary to comply with said laws, ordinances, rules and regulations and requirements, and will indemnify, defend and save harmless Permittor from any failure on the part of Permittee so to do. 18. SERVICE PERSONNEL Permittee will provide sufficient personnel to ‘service and maintain the facility. J.A. 256 Permittee’s service personnel and those doing busincss with Permittee shall at all times be neatly dressed, observe all reg- ulations in effect at the facility, and conduct operations in an orderly and proper manner so as not to annoy, disturb or be offensive to others at the facility. In the event Permittor shall object to the demeanor, conduct and appearance of the employees and invitees of the Permittee, and of those doing business with Permittee, Permittee will take all steps neces- sary to remove the cause of the objection. 19. PARKING The Permittee, its employees, invitees and others doing business with Permittee shall have no right hereunder to park vehicles at the Station beyond a reasonable loading or dis- charging time, except in regular parking areas, if any, and ~ upon payment of the regular charges therefor. All service personnel shall use the designated service entrance and park service vehicles in the designated areas, if any. 20. SIGNS AND ADVERTISING Permittee shall not paint, post or display any sign or adver- tisement on the said facility without the prior written approval of Permittor and requirement for such approval shall extend to the location, character, design, coloring and lettering of such sign or advertisement. 21. ALTERATIONS AND REMOVALS Permittee shall not make any alterations, additions or improvements on or to the facility without the prior written consent of Permittor, and all alterations, additions or improve- ments which may be made by either Permittor or Permittee upon the facility, unless herein otherwise provided, and J.A. 257 except the personal property of Permittee which includes movable furniture, furnishings, and equipment shall be prop- erty of Permittor and shall remain upon and be surrendered with the facility as part thereof at the expiration or other ter- mination of this permit without disturbance, molestation or injury. 22. PERMITTEE’S RESPONSIBILITY TO ITS EMPLOYEES ~ Permittee, in the performance of any and all work by Permittee under the terms of this permit or otherwise, upon or adjacent to the facility, will furnish all labor and supervisory forces of every kind and Permittee shall employ, pay from Permittee’s own funds and have the right to discharge all per- sons engaged in the performance of such work and all such persons shall be and remain the sole employees of Permygtee and subiect to Permittee’s exclusive supervision, direction and control. 23. LIENS AND CHARGES Permittee, within thirty (30) days after completion of any construction, alterations, repair or improvement in or upon the facility, shall furnish to Permittor, a detailed certified state- ment of all labor and materials furnished and charges there- for, together with evidence of payment of all such charges, and a complete waiver and release of liens. The creation or imposition of any lien or charge upon the demised premises through acts or omissions of Permittee, its agents, contractors or sub-contractors shall be deemed a default under the provisions of this permit. In the event any such lien or charge shall not be paid or bonded by Permittee within fifteen (15) days after the lien or charge accrues, Permittor shall have the right to pay such lien or charge and Permittee shall repay the cost to Permittor, as additional fees hereunder, with interest at twelve percent J.A. 258 (12%) per annum or the highest interest allowable by law, whichever is the greater from the date of payment by Permittor, promptly upon rendition of a bill therefor. Nothing in this paragraph or in any other paragraph of this permit shall be deemed or construed as authority to Permittee to create any lien on the Permittor’s interest in the facility. 24. INDEMNIFICATION Permittee will be responsible for and will indemnify, save harmless and defend Permittor against and from any and all claims and suits for, and any and all liability, loss or expense arising from or incidental to or in connection with, damage to or loss of property of Permittor, Permittee, or of agents, ser- vants, licensees, contractors, invitees or employees of either, or of any other person, and against and from any and all claims and suits for, and any and all liability, loss or expense arising from or incidental to or in connection with, injury to or death of persons, including agents, servants, contractors, licensees, invitees or employees of Permittor or of Permittee, or any other person (including Permittee if a natural person), which said damage, loss, injury or death shall arise in any manner, directly or indirectly, out of or incidental to or in connection with, this permit or the facility, or the use or occu- pation thereof, including any appurtenant sidewalks or driveways. Permittee specifically agrees to relieve Permittor of any and all liability for damage to contents of the facility owned by or in the custody of Permittee, or improvements therein owned by or in the custody of Permittee, whether damaged by fire and extended coverage perils or other causes. The term “Permittor” as used in this Section “24”, shall include not only Permittor specifically named herein, but also any licensees, contractors or corporate affiliate of Permittor. J.A. 259 25. LOSS OR DAMAGE Permittor shall not be liable to Permittee for any loss, injury or damage which may happen to the person (if Per- mittee is natural person) or property of Permittee, of Permittee’s employees or of persons claiming under Per- mittee, while on.or about the facility, caused by theft, fire, or by the handling of electrical installations, or by accident to or breakage of any of the machinery, piping or plumbing, fix- tures or other appurtenances connected with any building or by water, rain or snow which may leak into, issue or overflow from any part of any such building. 26. INSURANCE Permittee shall, at its own expense, procure and keep in force at all times during the term of this permit, insurance of the following types and amounts: Comprehensive Public Liability insurance in an amount of not less than Five Hundred Thousand Dollars ($500,000.) for personal injury to any one person; One Million Dollars ($1,000,000.) for per- sonal injuries arising out of any one accident or occurrence and One Hundred Thousand Dollars ($100,000.) for property damage. Permittee, if requested by Permittor at any time or times, shall provide and maintain in effect during the term hereof, fire and extended coverage and vandalism and malicious mis- chief insurance on the facility and any and all structures and improvements thereon, protecting Permittor in limits, carri- ers and form acceptable to Permittor and Permittee shall also provide and maintain in effect during the term hereof, cov- erage against such other hazards as Permittor may from time to time require. All insurance shall be in the name of Permittee with con- tractual liability endorsement identifying the permit location, principals, date, and quoting verbatim the liability assumed by Permittee. The insurance shall be placed with insurance J.A. 260 companies licensed to do business in the state where the facil- ity is located and if approved by Permittor. Permittee shall furnish Permittor with a certificate, or certificates, issued by the insurance carrier(s) evidencing such insurance including a waiver of subrogation against Permittor and reciting the contractual liability assumed by Permittee. Each policy shall provide that it shall not be cancelled or materially changed unless at least thirty (30) days” prior written notice of can- cellation or change shall have been mailed by the insurance carrier to Permittor at the address designed in Article “4” hereof. All policies of insurance shall be subject to inspection by Permittor at any time. Policy or policies of fire, extended coverage or other insur- ance on property of Permittee or in the Permittee’s care and custody shall contain a waiver of subrogation against Permittor. Permittee shall furnish to Permittor complete copies of all such insurance policies with evidence of payment of prem1- ums therefor upon request of Permittor. All such policies shall be endorsed to provide not less than thirty (30) days’ notice to Permittor of any cancellation thereof and of any material change in coverage. The providing of said insurance coverages shall not be deemed a limitation on the liability of Permittee as provided in this permit, but shall be additional security therefor. Each and every year on the First (1st) day of January, Permittee shall furnish Permittor with a certificate or cer- tificates, issued by the insurance carrier(s) with evidence of payments of premium(s). The failure by the Permittee at any time to procure and/or maintain the above stated insurance will constitute a default under Article “31” hereof and Permittor may terminate this permit. J.A. 261 27. THIRD-PARTY ADVERTISEMENTS Before any binding contract is entered into and any adver- tisement is emplaced or installed, Permittee shall submit all third-party advertisements to the Permittor for its written approval of the following: the size or dimension, nature of product to be advertised, form, nature, style, wording and contents of the advertisement. Without limiting the scope of its right to disapprove any advertising which Permittor in its sole judgment considers should not be accepted or installed by Permittee, Permittor makes the reservations contained herein to preclude any advertising that, in its judgment, may be unlawful, immoral, improper or offensive to good taste, or be in competition directly or indirectly with the transportation conducted by Permittor or its affiliated companies; or involve political or other views which could result in dissension or involve Permittor in dissension, complaints or controversy with its patrons or the public or involve matters or ramifications not now anticipated or foreseeable. Permittee shall provide in its contracts with its third-party advertisers that notwithstanding the fact that Permittor and Permittee may have permitted the advertising to be placed on Permittor’s property as herein provided, Permittor has reserved the right and shall have the right to cause to be removed forthwith without liability to Permittee or its third- party advertiser any advertisement which in the judgment of Permittor is or might be deemed to be slanderous, libelous, unlawful, immoral, offensive to good taste, involves illegal competition or trade practices, infringement of trademarks, trade names, violates rights or privacy, infringement of copy- rights or proprietary rights. 3 Permittee, as part of its obligation under Article “26” to provide insurance against liability of Permittor, shall in addition thereto provide insurance against any action against itself or Permittor in the nature of defamation, libel, slander, Bi J.A. 262 invasion of privacy or the like in the same amounts and under the same conditions as provided in Article “26” 28. FIRE CLAUSE If the facility and/or the location(s) wherein the equipment is placed or installed shall be so damaged by fire or other cause without the fault or neglect of Permittee, Permittee’s servants, employees, or agents, so as to render the facility and/or the location(s) unuseable for Permittee’s operations, then either party may terminate or revoke, this permit upon ten (10) days’ prior written notice to the other, and neither party shall incur any liability or have any claims against the other by reason of such termination except for such sums due and owing to Permittor from Permittee prior to the date of ter- mination or revocation; provided, however, if such damage is due to the fault of Permittee, Permittee’s servants, employees, Or agents, the damage shall be repaired by or at the Permittee’s expense and fees payable during the period of dis- repair shall not be less than the average monthly fees due or paid Permittor over the preceding six-month period. 29. CONDEMNATION If the whole or any part of the facility shall be taken for any public or quasi-public use, under any statute or by right of eminent domain or private purchase in lieu thereof by a pub- lic body vested with the power of eminent domain, then, when control shall be taken thereunder of the facility, or any part thereof, the term herein granted and all rights of the Permittee hereunder shall immediately terminate, and Permittee shall have no claim against Permittor for the value of any unex- pired term of this permit. J.A. 263 30. DEFINITIONS The word “Permittee” as used herein shall be construed to include the plural as well as the singular and the necessary grammatical changes required to make the provisions hereof apply either to corporations or other forms of business asso- ciation or to an individual or individuals, masculine or fem- inine, in all cases shall be assumed as having been made herein as though herein fully expressed. The term “Permittor” as used in this permit, means only the - owner or the mortgagee in possession for the time being of the land and building (or the owner of a lease of the building or of the land and building) of which the facility forms a part so that in the event of any sale or sales of said land and build- ing or of said permit, or in the event of a lease of said build- ing, or of the land and building, the said Permittor shall! be and hereby is entirely freed and relieved of all covenants and obligations of Permittee hereunder. The words “re-enter” and “re-entry” as used in this permit are not restricted to their technical legal meaning. The word “period” as used in this permit shall include any preliminary period and/or any extension, renewal, or contin- ued period or periods except where expressly excluded. The term “permit year” as used herein shall be the period of one year’s duration commencing on the first day when Permittee becomes obligated to pay fees and each successive period of one year’s duration commencing on the anniversary of the first day when Permittee becomes obligated to pay fees. The term “additional fees” as used herein shall be all costs and expenses other than fixed fees which Permittee assumes or agrees to pay pursuant to this permit. 31. DEFAULT If default shall be made in Permittee’s covenants herein to pay fees or additional fees, or if default shall be made in any other covenants and agreements herein contained on the part J.A. 264 of Permittee to be kept or performed, and if any such default shall not be cured within thirty (30) days after Permittee has been given written notice by Permittee to do so, or if the facility shall not be used by Permittee for the purposes herein authorized for a period of more than thirty (30) days, or if the facility should at any time be used for purposes other than as herein permitted, or if Permittee shall file or suffer to be filed against it a petition in bankruptcy, or if Permittee shall have an order for relief entered against it according to bankruptcy law, or if a receiver or trustee be appointed for the property of Permittee, or if Permittee shall make a general assignment for the benefit of creditors, then, in any of such cases, Permittor may, by written notice to Permittee immediately declare this permit terminated, and in such event, in addition to any other action or remedy which Permittor may have at law or in equity to recover damages or otherwise by reason of a breach by Permittee of provisions of this permit, Permittor shall have the right to remove Permittee by summary proceedings and thereafter Permittor may re-enter upon and take control of the facility and every part thereof, either by force or otherwise, without being liable to any prosecution, action or damages therefor and have and enjoy the facility as of its former estate free, clear and discharged of this permit and of all rights of Permittee hereunder; and all buildings, structures, improve- ments, materials and personal property owned, erected or placed upon the facility by or for Permittee or acquired by Permittee from a prior occupant, shall thereupon be and become the property of Permittor and may be sold or retained by Permittor or may be removed or demolished by Permittor at the sole cost and expense of Permittee, which cost and expense Permittee shall pay to Permittor upon demand; and Permittee also shall pay to Permittor upon demand all fees and expenses, including reasonable attorneys fees, incurred in connection with and in obtaining contro) of the facility as aforesaid. aes od Upon termination of this permit by Permittor under the default provisions of this permit agreement, all fees for the ——— J.A. 265 remainder of the term of this permit, or for the remainder of any continued term hereof, shall be due and payable forthwith and Permittor may proceed according to law to collect the same and may subcontract the facility and receive and retain fees therefor and Permittee shall pay to Permittor any defi- ciency between the fees hereby reserved, including additional fees, and the fees collected for each month of the period which would otherwise have constituted the balance of the term of this permit or of any continued term hereof. . The receipt by or on behalf of Permittee of any fees or additional fees with or without knowledge of any breach of any of the terms, covenants or conditions of this permit agree- ment, shall not be deemed a waiver of such breach, nor shall such receipt be deemed a withdrawal of any notice given to Permittee under the terms of this permit agreement, nor shall such receipt be deemed a reinstatement or reestablishment of this permit or any portion thereof after termination or can- cellation, nor shall the termination or other cancellation of this permit agreement or any portion thereof waive the obli- gation of Permittee to pay or discharge any fees, additional fees, taxes or other obligations accruing under this permit agreement. Permittee hereby waives and relinquishes unto and in favor of Permittor the operation of all laws which do now or here- after may exempt any property on the facility or any property in any way belonging to Permittee, whether on the facility or elsewhere, from levy and sale upon distress for rent or upon execution of any judgment obtained in an action brought for non-payment of any fees or additional fees hereunder or for breach of any other provisions hereof. The parties hereto shall and do hereby waive trial by jury in any action, proceeding or counter-claim brought by either party against the other on any matter whatsoever arising out of or in any way connected with this permit or Permittee’s use of and occupancy of the facil- ity or arising out of or in any way connected with any claim of injury or damage arising out of or in connection with this permit or such use or control. Permittee hereby expressly J.A. 266 _ Waives any and all rights of redemption granted by or under any present or future laws in the event of Permittee being evicted or dispossessed for any cause or in the event of Permittor obtaining control of facility by reason of the vio- lation by Permittee of any of the covenants and conditions of this permit or otherwise. ao -~ 32. REMOVAL Upon the expiration of the term hereof, or upon any other termination of this permit for reasons other than default on the part of Permittee, or upon default if required by Permittor Permittee at sole cost and expense, shall remove from the facility any materials not owned by Permittor, and all waste rubbish and debris; and restore the premises to as good con- dition as they were in before such property was erected or placed thereon; and all such work of removal and restoration shall be cpmpleted on or before the expiration or other ter- mination of this permit. Should Permittee fail, neglect or refuse to so remove such property and make the aforesaid restoration, then and in such event Permittor shall have the following rights, which are hereby expressly given it, viz.: to remove such property and to make the aforesaid restoration all at the expense of Permittee, which expense Permittee hereby expressly agrees to pay promptly upon demand, or to sell any of such property and retain the proceeds of such sale and to deliver such property to the purchaser or purchasers thereof free and clear of any right, title or interest therein of Permittee or of any person or corporation claiming through or under Permittee or of any person or corporation claiming through or under Permittee and without any liability what- soever to Permittee or to any other person or corporation; or if Permittor so elects, in lieu of such sale or removal of any of such property, Permittor may retain and use the same for any purpose whatsoever free and clear of any right, title or inter- est therein of Permittee or of any person or corporation claim- J.A. 267 ing through or under Permittee and without any liability what- soever to Permittee or to any other person or corporation. 33. DEFAULT REMEDIES The actions and remedies provided in this permit in event of default shall not be deemed exclusive but shall be in addi- tion to all other actions and remedies at law or in equity in event of any such default; and no action or remedy taken or omitted by Permittor in event of default shall be deemed a waiver of such default and waiver of a particular default shall not be deemed a waiver of any other default or a waiver of the same default again occurring, nor shall any failure on the part Permittor to compel a fulfillment of any one or more of the covenants, terms and conditions herein contained be held to be a waiver of its right to enforce the same at any time there- after during the term of this permit. 34. EQUAL OPPORTUNITY AFFIRMATIVE ACTION: NON-DISCRIMINATION During the term of this permit the Permittee covenants and agrees to conform and comply (where and when applicable) with each and every term and condition outlined on Exhibits “A”, and “B” which are attached hereto and made a part hereof. The terms “Permittor” and “Permittee” shall be sub- stituted for “Lessor” and “Lessee,” respectively, whenever the same appear in Exhibits “A” and “B”. It is agreed that the Permittee’s non-compliance with the provisions of this clause shall constitute a default under Article “31” hereof and the Permittor may terminate this permit, or may pursue such other remedies as may be provided by law. 35. INABILITY TO PERFORM This permit and obligation of Permittee to pay fees and/or additional fees hereunder and to keep and perform all other J.A. 268 covenants and agreements hereunder on part of Permittee to be kept or performed shall in no way be affected, impaired, or excused because Permittor is unable to fulfill any of its obli- gations under this permit, or is unable to supply, or because Permittor is delayed in supplying any service expressly or impliedly to be supplied by Permittor, or is unable to perform, or because Permittor is delayed in performing, any work or service for which it is liable hereunder, if Permittor is pre- vented or delayed from so doing by reason of labor troubles or any outside cause beyond control of Permittor, including, but not limited to, governmental action or preemption, act of God, war or civil commotion or unrest. 36. SUBORDINATION This permit is subject and subordinate to any and all ground or underlying leases and to any and all mortgages which may now or hereafter affect such leases or the real property of which the facility forms a part, and to all renewals, modifi- cations, consolidations, replacements and extensions thereof. This clause shall be self-operative and no further instrument of subordination shall be required by any mortgagee; how- ever, in confirmation of such subordination, Permittee shall execute promptly any certificate to that effect upon request by Permittor. Permittee hereby constitutes and appoints Permittor as Permittee’s attorney-in-fact to execute any such certificate or certificates for and on behalf of Permittee. 37. SUCCESSORS AND ASSIGNS The covenants and agreements herein contained shall inure to the benefit of and be binding upon the successors, heirs, executors, administrators, and assigns of the parties hereto respectively, provided, however, that this permit shall not be assigned by Permittee without the prior written consent of Permittor. J.A. 269 38. NOTICES Except as otherwise in this permit provided, a bill, state- ment, notice or communication which Permittor may desire, or be required to give to Permittee, shall be sufficiently given or rendered if in writing, delivered to Permittee personally or sent by registered or certified mail addressed to Permittee at 275 Madison Avenue, New York, New York 10016 or at any such address as Permittee shall designate by written notice, and the time of the rendition of such bill or statement and of the giving of such notice or communication shall be deemed to be the time when the same is delivered to Permittee, or mailed, as herein provided. Any notice by Permittee to Permittor must be sent by registered or certified mail addressed to National Railroad Passenger Corporation, Real Estate Department at 400 North Capitol Street, N.W., Washington, D. C. 20001 or at any such other address as Permittor may designate by written notice. 39. INTEGRATION No change or modification of any of the covenants, terms or provisions hereof shall be valid unless in writing and signed by the parties hereto. There are no understandings or agreements of any kind between the parties hereto, verbal or otherwise, other than as set forth in this permit. This permit, including exhibits, if any, constitutes the entire agreement between Permittor and the Permittee on the subject matter hereof. 40. NOT A JOINT VENTURE This permit shall not be deemed or construed as appointing the Permittee, the agent or representative of Permittor for any purpose whatsoever. Neither a partnership nor any joint ven- ture is hereby created, notwithstanding the fact that all or a J.A. 270 portion of the fees to be paid hereunder may be determined by gross receipts from the operations of the Permittee hereunder. 41. NO WAIVER The failure of Permittor to seek redress for violation of, or to insist upon the strict performance of, any covenant or con- dition of this permit, or any of the Rules and Regulations hereinafter adopted by Permittor shall not prevent a subse- quent act, which would have originally constituted a viola- tion, from having all the force and effect of an original violation. The receipt by Permittor of fees with knowledge of the breach of any covenant of this permit shall not be deemed a waiver of such breach. 42. RULES AND REGULATIONS The Permittee shall observe and obey (and compel its offi- cers, employees, guests, invitees, and those doing business with it to observe and obey) the rules and regulations of Permittor now in effect, if any, and such further rules and reg- ulations which may from time to time during the effective period of this permit, be promulgated by Permittor. 43. SEVERABILITY The provisions of this permit are severable and it is the intention of the parties hereto that if this permit cannot take effect in its entirety because of the final judgment of any court of competent jurisdiction holding invalid any part or parts thereof, the remaining provisions of the lease shall be given full force and effect as completely as if the part or parts held invalid had not been included therein. J.A. 271 44. PARAGRAPH CAPTIONS Paragraph captions used herein are placed for reading con- venience and shall not have any other meaning, implication or purpose, legal or otherwise. 45. EXTENT REQUIRED BY LAW To the extent required by law, this permit shall be subject to the approval, if necessary, of any State Commerce Commission, Board of Public Utility Commissioners, Public Service Commission or any such State body as may have jurisdiction. 46. NOT STRICTLY CONSTRUED This permit shall not be strictly construed against the Permittor or Permittee. No remedy or election given by any provision of this permit shall be deemed exclusive unless so indicated, but each shall, wherever possible, be cumulative with all other remedies in law or equity unless otherwise specifically provided. Each provision hereof shall be deemed both a covenant and a condition and shall run with the land. 47. WORDS OF OBLIGATION Whenever in this permit agreement any words of obligation or duty are used, such words or expressions shall have the same force and effect as though made in the form of covenants. 48. FORCE MAJEURE This obligation of the Permittor hereunder shall be subject to Force Majeure which shall include but not be limited to labor troubles. J.A. 272 49. LAW GOVERNING This agreement shall be governed by the laws of the District of Columbia. 50. TIME OF THE ESSENCE Time and specific performance are each of the essence in this permit. 51. ENVIRONMENTAL Permittee shall comply with all environmental regulations issued by Federal, State or Local Environmental Agencies, hereinafter called “Agencies”, and shall maintain the facility according to environmental standards set by such agencies, including, bui not limited to, water, air and noise standards. In the event Permittee fails to maintain the facility according to standards set by an agency and if, after giving reasonable notice of the failure to Permittee, Permittor acts to bring the facility into compliance, Permittee shall repay Permittor for all costs incurred by Permittor in abating a violation of such standards, and paying any fine or assessment levied as a result of violation of such standards, including, but not limited to, consulting, engineering, construction and legal costs. Per- mittee shall further indemnify, defend and save harmless Permittor from any claim of a violation of environmental Standards resulting from Permittor’s use of the facility, whether brought by an agency, a private citizen, or in a court procedure; and Permittee shall, at its cost, respond to all such claims for its benefit and for the benefit of Permittor. 52. REFUND In the event of termination of this permit by Permittor for any cause other than default or failure to comply with the J.A. 273 terms of this permit by Permittee and if fees shall have been paid by Permittee in advance to a day subsequent to the date of such termination of this permit, then Permittor shall refund and repay to Permittee and Permittee shall receive and accept as full payment for all loss, damages, and demands occa- sioned by such termination of this permit, the apportioned amount of the term so avoided, except that no refund will be made of any amount less than Fifty Dollars ($50.00). Permittee shall remain liable for the payment of real estate taxes and other charges assessed or imposed upon Permittee’s buildings or improvements or in connection therewith which may have accrued to date of such termination, and other taxes and assessments which Permittee is obligated to pay as addi- tional fees hereunder shall be prorated to the date of termi- nation. Permittor shall not be obligated to reimburse Permittee for any expenditure by Permittee for construction of improve- ments, or for alterations, on or to the facility and Permittee hereby expressly waives any claim against Permittor for such reimbursement. 53. EXECUTION OF AGREEMENT BY LESSOR It is understood and agreed between the parties hereto that execution of this Agreement by Permittee, and negotiation of any check or other negotiable instrument by Permittor, prior to the date of execution of this agreement by Permittor, shall in no way be deemed or construed by Permittee to be accep- tance of this agreement by Permittor. In the event that this agreement is not executed by Permittor for any reason what- soever, then and in that event the amount set forth in any such check or other negotiable instrument shall be refunded to Permittee within a reasonable period of time after written notification that this agreement will not be executed by Permittor; provided, however, that the payment by Permittee of a preparation fee, if any, to Permittor shall be nonrefund- able and made as fu!l payment for the Permittor’s preparation J.A. 274 of this document without regard to whether or not same is ever executed. IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed by their proper officers, thereto duly authorized, day and year first above written. WITNESS: NATIONAL RAILROAD PASSENGER B MaciEe CORPORATION By: KURT WEISSHEIMER | Kurt Weissheimer TITLE: Assistant Vice President— Real Estate WITNESS: TRANSPORTATION DISPLAYS, INC. __ BERTON MILLER By: JULIAN G. PIZZANO TITLE: Executive Vice President/ General Manager J.A. 275 EXHIBIT ‘A’ EQUAL OPPORTUNITY During the performance of this Agreement, the Lessee agrees as follows: (a) The Lessee will not discriminate against any employee or applicant for employment because of race, color, religion, sex, age, or national origin. The Lessee will take affirmative action to ensure that applicants are employed, and that employ- ees are treated during employment, without regard to their race, color, religion, sex, age, or national origin. Such action shall include, but not be limited to, the following; employ- ment, upgrading, demotion, or transfer; recruitment or recruit- ment adverting; layoff or termination; rates of pay or other forms of compensation; and selection .for training, including apprenticeship. The Lessee agrees to post in conspicuous places, available to employees and applicants for employ- ment, notices setting forth the provision of this Equal Opportunity clause. (b) The Lessee will, in all solicitations or advertisements for employees placed by or on behalf of the Lessee, state that all qualified applicants will receive consideration for employ- ment without regard to race, color, religion, sex, age, OF national origin. (c) The Lessee will send to each labor union or represen- tative of workers with which lessee has a collective bargain- ing agreement or other contract or understanding, a notice advising the labor union or workers representative of the Lessee’s commitments under this Equal Opportunity clause, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (d) The Lessee will comply with all provisions of Executive Order No. 11246 of September 24, 1965, as amended by Executive Order No. 11375 of October 13, 1967, and of the J.A. 276 rules, regulations and relevant orders for the Secretary of Labor. (e) The Lessee will furnish all information and reports required by Executive Order No. 11246 of September 24, 1965 as amended by Executive Order No. 11375 of October 13, 1967, and by the rules, regulations and orders of the Secretary of Labor, and pursuant thereto and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investi- gation to ascertain compliance with such rules, regulations and orders. (f) In the event of the Lessee’s noncompliance with the Equal Opportunity clause of this Agreement or with any of the said rules, regulations, or orders, this Agreement may be canceled, terminated, or suspended, in whole or in part, and the Lessee may be declared ineligible for further contracts in accordance with procedures authorized in Executive Order No. 11246 of September 24, 1965 as amended by Executive Order No. 11375 of October 13, 1967, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (g) The Lessee will include the provisions of paragraphs (a) through (g) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order No. 11246 of September 24, 1965, as amended by Executive Order No. 11375 of October 13, 1967, so that such provisions will be binding upon each subcontractor or vendor. The Lessee will take such action with respect to any subcontract or pur- chase order as the contracting agency may direct as a means of enforcing such provisions, including sanctions for non- compliance: provided, however, that in the event the Lessee becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the contracting agency, the Lessee may request the United States to enter into such litigation with a subcontractor or vendor as J.A. 277 a result of such direction by the contracting agency, the Lessee may request the United States to enter into such liti- gation to protect the interests of the United States. J.A. 278 EXHIBIT ‘B’ AFFIRMATIVE ACTION (a) The Lessee agrees to use its best efforts to achieve minority employment within its total work force, including its associates and subcontractors. For purposes.of this clause, (a) “minority employment” means employment of minority group members as hereinafter defined. (b) The Lessee agrees to use its best efforts to carry out this policy in the award of its subcontracts, if any, to the fullest extent consistent with the efficient performance of this Agreement. As used herein, the term “minority business enterprise” means a business organization having at least fifty (50%) percent of its equity (exclusive of any equity interest held by any governmental agency) owned by minority group persons, or where less than fifty (50%) percent, the organi- zation is controlled by such persons or such other organiza- tions as the Amtrak determines to be a bona-fide minority business organization. (c) The Lessee shall meet the requirements of 49CFR 265.7 which are as follows: (1) As a condition to receiving Federal financial assistance under the Railroad Revitalization and Regulatory Reform Act of 1976 (“Act”), or the provisions of the Regional Rail Reorganization Act of 1973, as amended (45 U.S.C. 701 et. seq.) or the Rail Passenger Service Act of 1970 as amended (45 U.S.C. 501 et. seq.) amended by the Act, (collectively called, together with the Act, the “Rails Acts”), the Lessee hereby agrees to observe and comply with the following: (i) No person in the United States shall on the grounds of race, color, national origin, age, or sex be excluded from participation in, or denied the benefits of, or be subjected to discrimination under, any project, program, or activity funded in whole or in part through such assistance. J.A. 279 (2) The following specific discriminatory actions are pro- hibited: (i) A Lessee under any project, program or activity to which these clauses apply shall not, directly or through con- tractual or other arrangements, on the grounds of race, color, national origin, age, OF sex: (A) Deny a person any service, financial aid, or other benefit provided under such project, program or activity; (B) Provide any service, financial aid, or other bene- fit to a person which is different, or is provided in a different manner, from that provided to others under such project, pro- gram or activity; (C) Subject a person to segregation or separate treat- ment in any matter related to his receipt of any service, finan- cial aid or other benefit under such project, program and activity; (D) Restrict a person in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid or other benefit under such project, pro- gram or activity; (E) Deny a person an opportunity to participate in such project, program or activity through the provision of ser- vices or otherwise or afford him/her an opportunity to do so which is different from that afforded others under such pro- ject, program or activity. (ii) A Lessee, in determining the types of services, finan- cial aid, or other benefits, or facilities which will be provided under any such project, program or activity or the class of persons to whom, or the situations in which such services, financial aid, other benefits, or facilities will be provided under any such project, program or activity, or the class of persons to be afforded an opportunity to participate in any such project, program or activity shall not, directly or through contractual or other arrangements, utilize criteria or methods J.A. 280 of administration which have the effects of subjecting persons to discrimination because of their race, color, national origin, age, or sex, or have the effect of defeating or substantially impairing accomplishment of the objectives of the project, program or activity, with respect to individuals of a particu- lar race, color, national origin, age, or sex. (iii) In determining the site or location of facilities, a Lessee shall not make selections with the purpose or effect of excluding persons from, denying them the benefits of, or sub- jecting them to discrimination under any project, program or activity to which these clauses apply on the grounds of race, color, national origin, age, or sex, or with the purpose or effect of defeating or substantially impairing the accom- plishment of the objectives of these clauses. (iv) The Lessee shall not discriminate against any employee or applicant for employment because of race, color, national origin, age, or sex. Except as otherwise required by the regulations or orders of Lessor, the Lessee shall take affir- mative action to insure that applicants for employment are employed, and that employees are treated during employment, ~ without regard to their race, color, national origin, age, Or sex. Such action shall include, but not be limited to, the following: employment, promotion, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The Lessee agrees to post in con- spicuous places, available to employees and applicants for employment, notices setting forth the provisions of these nondiscrimination clauses. The Lessee understands and agrees that it shall not be an excuse for the Lessee’s failure to pro- vide affirmative action that the labor organizations with which the Lessee has a collective bargaining agreement failed or refused to admit or qualify minorities for admission to the union, or that the provisions of such agreements other- wise prevent Lessee from implementing its affirmative action program. J.A. 281 (V) The Lessee shall not discriminate against any business organization in the award of any contract because of race, color, national origin, age, or sex of its employees, man- agers or owners. Except as otherwise required by the regu- lations or orders of the Lessor, the Lessee . shall take affirmative action to insure that business organizations [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0502%3A06. Public record. Not legal advice.