Lease and development agreement



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(c) No Waiver.

Each late charge and service charge shall be payable immediately upon demand made at any time therefor by the Port Authority, as the case may be. No acceptance by the Port Authority of payment of any unpaid amount shall be deemed a waiver of the right of the Port Authority, respectively, to payment of any late charge or service charge payable under the provisions of this Section with respect to such unpaid amount. Each late charge and service charge shall constitute additional Rental and shall be recoverable in the same manner and with like remedies as if it were originally a part of the Basic Rental or other Rentals as set forth in the Article of this Agreement entitled “Rental”. Nothing in this Section is intended to, or shall be deemed to, affect, alter, modify or diminish in any way (x) any rights of the Port Authority under this Agreement, including without limitation the rights of the Port Authority set forth in the Article of this Agreement entitled “Termination” or (y) any obligations of the Lessee under this Agreement. In the event that any late charge imposed pursuant to this Section shall exceed a legal maximum applicable to such late charge, then, in such event, each such late charge payable under this Agreement shall be payable instead at such legal maximum.



ARTICLE 24. NOTICES

Section 24.1 Delivery of Notices.


(a) Notices to be in Writing.

Notices, requests, permissions, consents, approvals and other communications (all of the foregoing being hereinafter referred to singularly as a “Notice” and collectively as “Notices”), including changes to the address designated by any party hereto for the delivery of Notices (the “designated address”), given or required to be given to any party under this Agreement shall not be effective unless they are given in writing.

(b) Delivery.

All Notices shall be (x) personally delivered to such party or a duly designated officer or representative of such party at such party’s designated address during regular business hours; (y) delivered by reliable overnight delivery service to such party’s designated address; or (z) mailed to such party, officer or representative by registered or certified mail with return receipt at such party’s designated address, to the attention of the representative designated by such party from time to time.

(c) Designated Representative.

Until further notice, the Port Authority hereby designates its Executive Director and the Lessee hereby designates the Person named as representative on the first page hereof as their respective officers or representatives upon whom Notices may be served and the Port Authority and the Lessee hereby designate their addresses stated on the first page hereof, as their respective designated addresses.

(d) Copies.

Each party may request the other party, as a courtesy, to transmit a copy or copies of Notices to others at any time, provided, however, that such transmittal shall be for convenience only and a failure to transmit such copy(ies) of a Notice(s) to others shall have no effect whatsoever on the completeness or effectiveness of service of such Notice on the party requesting the copy.

Section 24.2 When Notices Deemed Given.

Each Notice shall be deemed given and effective upon receipt, or, in the event of a refusal by the addressee, on the first tender of such Notice to the addressee at the designated address.


ARTICLE 25. INTELLECTUAL PROPERTY RIGHTS; USE OF NAMES


Section 25.1 Flight Center IP Rights.

The Port Authority makes no representation or warranty as to the ownership of the copyright, trademark and service mark rights, and all other intellectual property or proprietary rights of any kind or description relating to the design and image of the TWA Flight Center and the Premises (collectively, the “Flight Center IP Rights”). Subject to the foregoing, however, the Port Authority hereby grants to the Lessee during the Term the right and license to use, publish, copy, perform publicly, distribute, display, modify, and create derivative works of the Flight Center IP Rights (to the extent of the Port Authority’s proprietary interest therein, if any), including, without limitation, in connection with the marketing, advertising, and promotion of [X Brand] Hotels and products or services related to the foregoing.

Section 25.2 Use of Names.

(a) The Lessee agrees that unless the Port Authority otherwise consents in advance in writing, the Lessee shall use at the premises the “[X Brand]” name, designation and service or trade mark throughout the Term. Notwithstanding the foregoing, however, if at any time during the Term the Lessee (or the Lessee and/or its Affiliates which are using the name “[X Brand]”) ceases using the name ““[X Brand]” in connection with its (or its and/or their) other hotels which are in quality and type at least equivalent to that existing in the [X Brand] Hotels that are owned and/or managed by Affiliates of the Lessee at the time of execution of this Agreement, and utilizes a different name for such hotels, then upon the Port Authority’s direction (or consent) the Lessee shall change the name of the Hotel to such other name, designation or service mark.

(b) The Lessee shall not use or make any reference, by advertising or otherwise, to the names “JFK International Airport”, “John F. Kennedy International Airport” or any variant thereof (except to designate the location of the Hotel, and then only in a conventional manner and without emphasis or display), “The Port Authority of New York and New Jersey”, “Port Authority” or any simulation or abbreviation of any such names, for any purpose whatsoever. Furthermore, the Lessee shall not make use of or originate any material intended for publication or visual or oral presentation that may tend to impair the reputation of the Port Authority.

(c) The Lessee acknowledges that the name and image of the TWA Flight Center are and have been inextricably associated with the Airport. Accordingly, in order to avoid confusion among the public, the Lessee agrees that so long as the use of the Premises continues to be as a hotel (irrespective of whether at any particular time a hotel is actually open for business), the Lessee and its Affiliates shall not develop, own, operate or manage a hotel within five (5) miles of the Airport that uses the words “TWA Flight Center” or “Flight Center” in its name. The foregoing covenant shall be personal to the Lessee, and shall continue to be binding upon the Person that is the Lessee hereunder irrespective of any assignment or termination of this Agreement and/or any termination of the landlord-tenant relationship of the Port Authority and such Person.


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