LEASE AGREEMENT
DATED AS OF SEPTEMBER 14, 0000
XXXXXXX
XXX XXXX XX XXXXXXXX (XXXXXXXX)
AND
CONNECTICUT PERFORMING ARTS PARTNERS (TENANT)
TABLE OF CONTENTS
ARTICLE
I. DEFINITIONS ...................................................... 4
II. DEMISE AND TERM .................................................. 8
III. USE OF DEMISED PREMISES .......................................... 9
IV. RENT AND OTHER OBLIGATIONS ....................................... 11
V. PILOT AND OTHER PUBLIC CHARGES ................................... 12
VI. COMPLIANCE WITH LAWS ETC. ........................................ 20
VII. MAINTENANCE AND REPAIR ........................................... 21
VIII. UTILITIES AND CHARGES ............................................ 23
IX. MECHANICS AND OTHER LIENS ........................................ 23
X. TITLE ............................................................ 24
XI. DEFAULTS ......................................................... 26
XII. ALTERATIONS ...................................................... 36
XIII. LEASEHOLD MORTGAGES .............................................. 36
XIV. INDEMNIFICATION AND INSURANCE .................................... 42
XV. CONDEMNATION AND CASUALTY ........................................ 51
XVI. QUIET ENJOYMENT .................................................. 58
XVII. LIMITATION OF LIABILITY .......................................... 59
XVIII. ASSIGNMENT AND SUBLETTING ........................................ 60
XIX. BROKERAGE ........................................................ 62
XX. ESTOPPEL CERTIFICATES ............................................ 62
XXI. SEVERABILITY ..................................................... 63
XXII. NON-MERGER ....................................................... 63
XXIII. SURRENDER ........................................................ 64
XXIV. UNAVOIDABLE DELAYS ............................................... 64
XXV. APPROVALS, NOTICES, ETC. ......................................... 64
XXVI. APPROVALS NOT UNREASONABLY WITHHELD .............................. 66
XXVII. ACCESS TO PREMISES ............................................... 66
XXVIII. NOTICE OR SHORT FORM OF LEASE .................................... 67
XXIX. APPLICABLE LAW ................................................... 67
XXX. HEADINGS ......................................................... 67
XXXI. ENTIRE AGREEMENT ................................................. 68
XXXII. COVENANTS BINDING ON RESPECTIVE PARTIES .......................... 68
XXXIII. REMEDIES CUMULATIVE .............................................. 68
XXXIV. NO ORAL CHANGE ................................................... 69
XXXV. RECOGNITION AND NON-DISTURBANCE .................................. 69
XXXVI. WORK FOR TOMORROW PROGRAM ........................................ 70
XXXVII. AFFIRMATIVE ACTION REQUIREMENT ................................... 70
TABLE OF CONTENTS - con't
EXHIBIT A LEGAL DESCRIPTION - HRA PARCEL
EXHIBIT B LEGAL DESCRIPTION - CONRAIL PARCEL
EXHIBIT C LEGAL DESCRIPTION - DEMISED PREMISES
EXHIBIT D REDISTRIBUTION OF CASUALTY AND CONDEMNATION PROCEEDS
EXHIBIT E INDEMNITY AGREEMENT
EXHIBIT F FIRST SOURCE EMPLOYMENT AND PURVEYOR AGREEMENT
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LEASE AGREEMENT
BY AND AMONG
THE CITY OF HARTFORD, CONNECTICUT
AND
CONNECTICUT PERFORMING ARTS PARTNERS
This Lease Agreement is made this 14th day of September, 1994 by and
between the City of Hartford. a municipal corporation with an office and place
of business at 000 Xxxx Xxxxxx, Xxxxxxxx, XX 00000 (the "Landlord") and
Connecticut Performing Arts Partners ("CPAP" or "Tenant"), a Connecticut general
partnership, the general partners of which are Nederlander of Connecticut, Inc.
and Connecticut Amphitheater Development Corporation, Inc., all of which have an
office and place of business at Xxx Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxxx 00000.
WITNESSETH:
WHEREAS Connecticut Performing Arts Partners desires to lease from the City
of Hartford and the City of Hartford desires to Lease to CPAP a
19.370 acre site, more or less, located generally at the southwest
corner of Xxxxxxxx X.X. Xxxxx Overpass and Xxxxxx Way in Hartford,
Connecticut and as more particularly described in Exhibit A,
attached hereto and made a part hereof, (the "HRA Parcel" or "Parcel
A") for the purpose of constructing and operating an indoor-outdoor
amphitheater/performing arts center and accessory parking and other
related facilities thereon and on Parcel B referred to below (the
"Project"); and
WHEREAS CPAP has been designated Developer of the Project by the City of
Hartford acting by and through the Hartford Redevelopment Agency in
its capacity as the City's Development Agency; and
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WHEREAS CPAP has, by purchase contract dated June 10, 1994, the right to
acquire an additional 7.746 acres of land, more or less (hereinafter
sometimes referred to as "Parcel B" or the "Conrail Parcel") as more
particularly bounded and described on Exhibit B attached hereto and
made a part hereof, from Consolidated Rail Corporation, which parcel
is adjacent and contiguous to Parcel A, and which parcel is also a
part of and under the Final Program Plan for North Xxxxxxx
Industrial and Business Project, as administered by the City of
Hartford, acting by and through the Hartford Redevelopment Agency in
its capacity as the City's Development Agency; and
WHEREAS CPAP proposes to convey Parcel B, or cause the same to be conveyed,
to the City of Hartford, for the sum of One Dollar ($1.00), and
thereupon to lease from the City of Hartford the entirety of the HRA
Parcel and the Conrail Parcel, containing in all 27.476 acres, more
or less, all as more particularly bounded and described as set forth
on Exhibit "C" attached hereto and made a part hereof, as one
separate and distinct lot or parcel, for the purposes and upon the
terms and conditions set forth herein.
WHEREAS CPAP desires to lease the above-described property and to effect the
above-described construction, in part, with leasehold mortgage
financing provided by the Connecticut Development Authority, Rocky
Hill, Connecticut.
NOW THEREFORE, for and in consideration of the mutual covenants herein
contained, the parties hereto hereby agree as follows:
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ARTICLE I
DEFINITIONS
Section 101: For the purposes of this Lease Agreement, unless the context
otherwise requires, the following words shall have the meaning ascribed to them
below:
(a) "CDA" shall mean the Connecticut Development Authority, Rocky Hill,
Connecticut, its successors and assigns;
(b) "CDA Loan" shall mean the loan given or to be given by CDA to Tenant
in the amount of up to $8,600,000 to finance a portion of the Project and the
Development Improvements, to be evidenced by Tenant's note in like amount.
(c) "CDA Mortgage" shall mean the Open End Construction Leasehold
Mortgage, Assignment of Lease and Security Agreement given or to be given by
Tenant to CDA to secure Tenant's obligations under the CDA Loan and the note
delivered thereunder.
(d) "City" shall mean the City of Hartford, Connecticut, a municipal
corporation.
(e) "Commencement Date" shall mean the date this agreement is executed by
and delivered to the parties hereto.
(f) "Demised Premises" shall mean the Development Land together with all
rights, privileges and easements pertaining thereto, excluding the Development
Improvements, subject to any and all easements, access rights, drainage rights
variances, zoning and other laws and regulations and any other restrictions of
any kind whatsoever presently existing or hereafter imposed.
(g) "Depository" shall mean the Trustee as assignee of CDA's right, title
and interest as mortgagee in and to the CDA Mortgage or the then holder of a
first Leasehold Mortgage, with respect to any portion of the Demised Premises
affected
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by (1) a taking by the exercise of the right of condemnation or eminent domain,
or (2) a fire or other casualty. If there shall be no such mortgagee or Trustee
or if such mortgagee or Trustee shall fail or refuse to act as Depository, then
the Depository shall be a commercial bank or trust company having deposits in
excess of Fifty Million Dollars ($50,000,000.00) which is designated by Landlord
and reasonably acceptable to Tenant.
(h) "Development Improvements" shall mean the buildings and other
structures and facilities to be situated upon the Development Land and any owned
or leased personal property or trade fixtures and equipment situated thereon,
but excluding the Development Land.
(i) "Development Land" shall mean all that certain plot, piece or parcel
of real property situate, lying and being in Hartford, Connecticut as more
particularly bounded and described in Exhibits A and B attached hereto and made
a part hereof, but excluding the Development Improvements.
(j) "HRA" shall mean the City of Hartford, Connecticut acting by and
through the Hartford Redevelopment Agency, in its capacity as the City's
Development Agency, and its successors and assigns.
(k) "Landlord" shall mean the City of Hartford, Connecticut, and its
successors and assigns, by operation of law or otherwise;
(l) "Leasehold Mortgage" shall mean any mortgage or deed of trust
including the CDA Mortgage or any subsequent leasehold mortgage and any security
interest in the Tenant's interest in the Demised Premises and Development
Improvements which is now or hereafter placed as a lien on all or any part of
the leasehold estate created under this Lease Agreement as the same may be
replaced, renewed, modified or extended from time-to-time and, in any event,
which is subordinate to and subject to this Lease, provided that the fee title
to the Development Land is not and shall not be subordinated to the lien of any
such
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mortgage. Any such mortgage or deed of trust shall be made in accordance with
and comply with the provisions and conditions of Article XIII, provided that the
CDA Mortgage shall be and hereby is deemed to comply with such provisions.
(m) "Leasehold Mortgagee" shall mean CDA, its Trustee or any Lending
Institution which is a holder of any Leasehold Mortgage;
(n) "Legal Requirements" shall mean all laws, statutes and ordinances
(including, but not limited to, building codes and zoning regulations and
ordinances), and the orders, rules, regulations of all federal, state and
municipal governments, and the appropriate agencies, officers, departments,
boards and commissions thereof, which may be applicable to the Demised Premises
and/or the Development Improvements, or any part thereof, or the use or manner
of all or any part of the Demised Premises and/or the Development Improvements,
or the sidewalks and curbs adjacent thereto, which are now or hereafter in
effect.
(o) "Lending Institution" shall mean any of the following provided its
main offices is located within the continental United States: CDA (and
including, by assignment, the Trustee), commercial or savings bank, trust
company, insurance company, real estate investment trust, savings and loan
association, a pension fund, a governmental agency or any other lender approved
by a governmental agency which governmental agency insures (in full or in part)
or subsidizes in any way the mortgage loan of such lender to the Tenant.
(p) "Loan Agreement" shall mean the agreement entered into, or to be
entered into, by and between the Tenant and CDA pertaining to the respective
rights and obligations of Tenant and CDA with respect to the CDA Loan and CDA
Mortgage.
(q) "Mortgage Default" shall mean a default by the Tenant under the terms
of any Leasehold Mortgage after the giving of any required notice and the
expiration of any applicable cure period without such cure having been effected.
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(r) Intentionally omitted.
(s) "Person" shall mean a natural person or persons, a partnership, a
corporation, or any other form of legal association or entity.
(t) "PILOT" shall mean payments in lieu of real estate taxes made by
Tenant to Landlord as calculated in Article V.
(u) "Project" shall mean the construction of an indoor-outdoor
amphitheater/performing arts center with total seating capacity for
approximately 30,000 patrons, together with parking and other facilities, all as
set forth in the site plan approved by the City and the project plans approved
by the HRA by resolution dated July 21, 1994.
(v) "Real Estate Taxes" shall mean ad valorem Real Property taxes assessed
and collected by the Landlord on all non-exempt real property within the City of
Hartford.
(w) "Regulatory Agreement" shall mean either or both the regulatory
agreements the Tenant has or will be entering into with CDA with respect to the
Project and governing the (i) CDA Mortgage and CDA Loan and/or (ii) the
Assistance Agreement with respect to the tax incremental financing grant to be
provided to Tenant by the CDA in connection therewith.
(x) "Rent" shall mean all amounts due and/or which hereafter come due to
the Landlord from the Tenant under the term of this Lease Agreement,
(z) "Sublease" shall mean all subleases and lettings, written or oral,
easements, or any other agreement for use or hire of any portion of the Demised
Premises or buildings or improvements thereon, including the Development
Improvements, made by the Tenant with third parties other than CDA, the
Leasehold Mortgagee, or the Landlord.
(aa) "Tenant" shall mean Connecticut Performing Arts Partners, and its
respective partners, and its and their successors and assigns. The term "Tenant"
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shall also mean any successor in interest to Connecticut Performing Arts
Partners which assumes the Tenant's rights and obligations under and pursuant to
this Lease Agreement.
(bb) "Unavoidable Delays" shall mean any delays resulting from any acts of
God, acts of public enemy, riot, civil commotion, storms, fire or other
casualty, strikes, lockouts, unavailability of labor or materials, delay in
collecting or inability to collect insurance proceeds or proceeds of a taking,
governmental action and any other like matter which shall be beyond the
reasonable control of Tenant.
ARTICLE II
DEMISE AND TERM
Section 201: For and in consideration of the covenants and conditions on
the part of each party herein reserved and contained, Landlord does hereby
demise and lease to Tenant, and Tenant does hereby take and hire from Landlord,
upon and subject to the terms, covenants and conditions herein set forth, the
Demised Premises (but without hereby waiving or surrendering the rights of
Landlord as a municipality to enforce its laws, regulations and ordinances in
the same manner as the same are enforced with respect to other property within
the City of Hartford, which are hereinafter referred to as its "Municipal
Powers") TO HAVE AND HOLD (as a leasehold interest and not as a grant of a fee
ownership) for a term commencing on the date hereof and ending at midnight on
the day preceding the fortieth (40th) anniversary of the Commencement Date (the
"Original Term").
Tenant shall have two (2) successive options to extend the term of this
Lease for a period of ten years (each of such periods being hereinafter called
and "Extension Period") commencing upon the day after the expiration date of the
then existing Term; so long as and only if Tenant is not in default of any of
its
8
obligations under this Lease upon such expiration date. If Tenant elects to
exercise either of said options, it shall do so by giving notice of such
election to Landlord during the Original Term, or first Extension Period, as
applicable, no later than the date which is three hundred sixty-five (365) days
prior to the commencement of the Extension Period for which such election is
exercised. If Tenant exercises said extension option the term hereof shall be
automatically extended for the Extension Period covered thereby without the
necessity for execution of any further lease, instrument or agreement. Such
Extension Period shall be upon the same terms and conditions including Rent and
PILOT as are in effect hereunder immediately preceding the commencement of such
Extension Period except as otherwise provided in this Lease Agreement.
ARTICLE III
USE OF DEMISED PREMISES
Section 301: Tenant shall construct the Development Improvements as
provided in Part I of the Land Disposition Agreement between the City and the
Hartford Redevelopment Agency such that the same are substantially completed and
ready for occupancy by no later than September 1, 1995. Thereafter, Tenant shall
use the Demised Premises and the Development Improvements principally as and for
an indoor-outdoor amphitheater/performing arts center, and any uses ancillary or
related thereto, including, without limitation concerts, theatrical and musical
performances, comedic and comedian performances, dance and ballet performances
and any and all other entertainment and/or like cultural uses, with parking and
ancillary and related facilities not contrary to the principal entertainment
character of the Demised Premises and the Development Improvements and otherwise
as provided in and subject to the Land Disposition Agreement between the City
and
9
the Hartford Redevelopment Agency. Performances may be limited or confined to
the indoor portion of the Development Improvements as the business judgment of
the Tenant dictates. Other uses of the Demised Premises or the Development
Improvements shall require the consent of Landlord, and CDA so long as CDA
provides the CDA Mortgage, which consent of Landlord, and CDA so long as CDA
provides the CDA Mortgage, shall not be unreasonably withheld, conditioned or
delayed; provided, however, that for so long as the Tax Incremental Financing
Bonds (the "TIF Bonds") remain outstanding, CDA's refusal to consent to such
other use or uses of the Demised Premises shall not be deemed unreasonable; and,
provided, further, that, for so long as the Tenant does not pay full taxes to
the City on the Development Improvements and the Demised Premises, Landlord's
refusal to consent to such other use or uses of the Demised Premises shall not
be deemed unreasonable.
Section 302: Landlord, as the owner of the Demised Premises (but not in
its governmental capacity and without affecting its Municipal powers) agrees,
within ten (10) days after receipt of Tenant's request, to deliver to Tenant
duly executed and acknowledged instruments prepared by Tenant, at no expense to
Landlord in order to effectuate the following with respect to the Demised
Premises and the Development Improvements or any portion thereof:
(a) Applications for municipal or governmental permits relating to the
improvement and/or occupancy of the Development Improvements of any portion or
portions thereof which are consistent with the other terms of this Lease,
PROVIDED Landlord shall incur no liability or expense thereby; and
(b) Consents to the filing of easements for installation by utility
companies, including without limitation, gas, water, sewer, oil, electric and
telephone lines, poles, pipes and conduits, which serve only the Demised
Premises and the Development Improvements, or any portions thereof, which are
consistent
10
with the other terms of this Lease, PROVIDED Landlord shall incur no liability
or expense thereby;
ARTICLE IV
RENT AND OTHER OBLIGATIONS
Section 401.
(a) Subject to the last sentence of Section 502(b) below, on
July 1, 1995, and on each July 1 thereafter during the term hereof, Tenant
agrees to pay to the Landlord base rent, in advance, in an amount equal to
$50,000 per annum payable in equal monthly installments in advance on the first
day of each and every month during the term hereof for each year of the term of
this Lease Agreement, at the address of Landlord as set forth in Article XXV of
this Lease Agreement, or as such address may be changed in accordance with the
terms hereof.
(b) From and after the date when the first event is held on
the Demised Premises, Tenant also shall pay additional rent in the form of
payments in lieu of taxes (PILOTs) as specified in Article V below.
(c) Any payment due but remaining unpaid by Tenant to Landlord
after the expiration of ten (10) days commencing upon the due date therefor
shall bear interest at the Default Rate until finally paid, said Default Rate
being herein defined as the lower of (i) two percent (2%) above the prime rate
then in effect at Shawmut Bank, N.A. or (ii) the highest rate of interest then
permitted under applicable law. Any amounts received by Landlord in respect of
any late payment shall be applied first to repayment of Landlord's costs
including reasonable attorneys fees to collect the same, then all outstanding
interest due thereon, and then the balance of the payment due.
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(d) All and any portion of base rent, additional rent and
other amounts due and/or which hereafter come due hereunder shall be deemed to
constitute rent hereunder.
ARTICLE V
PILOT AND OTHER PUBLIC CHARGES
Whenever any PILOT is due to the Landlord from the Tenant under the
provisions of Article IV of this Lease Agreement such PILOT shall be calculated
and paid in accordance with the provisions of this Article.
Section 501. (a) For the purposes of this lease, the following terms shall
have the meanings ascribed thereto below:
(i) "Admission Receipts" shall mean and include the total of any and
all cash (net of parking receipts as hereinafter defined) and other
consideration received by Tenant and/or any affiliated or related person or any
of their officers, partners, employees, agents, or contractors (including, but
not limited to, sublesses, licensees and concessionaires), or any person related
to or affiliated with any of the foregoing as the price of admission to, or
otherwise for the privilege of attending, any event which is held in or on the
Demised Premises and/or Development Improvement, whether or not such privilege
is exercised.
(ii) "Parking Receipts" shall mean and include the total of any and
all cash and other consideration received by Tenant and/or any affiliated or
related person or any of their officers, partners, employees, agents, or
contractors (including, but not limited to, sublesses, licensees and
concessionaires), or any persons related to or affiliated with any of the
foregoing for granting the privilege of parking any and all vehicles at or in
any space(s) (but not including any such cash or other consideration stolen or
otherwise unlawfully converted or appropriated) while any of the owners or
occupants of such vehicles attend all or any portion of
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an event held in or on the Demised Premises and/or the Development Improvements,
whether or not such amounts are included as part of the admission price to such
event, and to the extent that such amounts do not exceed ten percent (10%) of
the total of all admission receipts.
(iii) "Food and Beverage Revenue" shall mean and include the total
of any and all cash and other consideration received by Tenant and/or any
affiliated or related person or any of their officers, partners, employees,
agents, or contractors (including, but not limited to, sublesses, licensees and
concessionaires), or any persons related to or affiliated with any of the
foregoing for any and all food and/or beverages which are sold and/or consumed
in or on the Demised Premises and/ or Development Improvements (but not
including any such cash or other consideration stolen or otherwise unlawfully
converted or appropriated).
(iv) "Merchandise Revenue" shall mean and include the total of any
and all cash and other consideration received by Tenant and/or any affiliated or
related person or any of their officers, partners, employees, agents, or
contractors (including, but not limited to, sublesses, licensees and
concessionaires), or any persons related to or affiliated with any of the
foregoing for any and all merchandise sold on the Demised Premises and/or in
connection with any events held (or to be held) on the Demised Premises (but not
including any such cash or other consideration stolen or otherwise unlawfully
converted or appropriated).
(b) Notwithstanding anything to the contrary which is set
forth in this Section 501, any Sales Taxes or Ticket Distributor Charges
collected in the sale of admission tickets, food, beverages or general
merchandise shall not be included or considered to be a part of Admission
Receipts, Parking Receipts, Food and Beverage Revenue or Merchandise Revenue.
For purposes of this section, the terms Sales Taxes and Ticket Distributor
charges shall have the meanings ascribed thereto below:
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1. "Sales Taxes" shall mean any taxes which are imposed by any
governmental authority on the price of admission tickets, or any food,
beverages or other merchandise, which are sold to the general public or on
the price of parking services provided to the general public and are
required to be collected from the public at the time and point of purchase
(e.g. sales taxes, but not income or gross receipts taxes or any
surcharges referred to in Section 502(b) below).
2. "Ticket Distributor Charges" shall mean any bona fide surcharges for
outlet or phone charges, service or convenience charges, handling charges,
user fees, mail or processing charges, and like expenses imposed by
Ticketmaster, Ticketron or any other unrelated or unaffiliated party who
is under contract to sell tickets to events at the Project as and then
only to the extent neither Tenant nor any related or affiliated party is
paid or otherwise receives any of such surcharges.
Section 502.
(a) This lease has been entered into upon the assumption that the
Demised Premises and the Development Improvements are and will remain tax-exempt
by reason of ownership or claim of ownership by the City of Hartford.
(b) In recognition of the foregoing, Tenant shall make payments in
lieu of taxes ("PILOT") in an amount equal to two percent (2%) of all Admission
Receipts, Food and Beverage Revenue, Merchandise Revenue, and Parking Receipts
that exceed ten percent (10%) of the total of all Admission Receipts net of any
surcharges which are levied on the price of said items in a total amount not to
exceed twelve percent (12%) as an Admissions tax in connection with the tax
incremental financing used to help finance the project and in order to pay
PILOT, and net of any sales or like taxes which are imposed or levied by any
governmental
14
authority on the price of (but not income derived from) any such items. PILOTs
shall be payable in respect of any event (or any revenues generated prior
thereto) within thirty (30) calendar days of the end of the month in which such
event occurs and otherwise at the end of each calendar month throughout the term
of the Lease. Any amounts paid to Landlord under Section 401(a) hereof, and the
face value of the letter of credit established pursuant to the Employment
Agreement referred to in Article XXXVI hereof, shall be deducted from PILOTs as
they otherwise have been paid or come due hereunder.
(c) In addition to any other rights and remedies Landlord has or may have
in respect of any failure of Tenant to pay PILOTs as and when they are due
hereunder (except, and then only to the extent, the Landlord fails to provide
notice to Tenant of any failure to pay any PILOTs within a reasonable period of
time after Landlord knows that they are delinquent), any and all PILOTs due
hereunder (including, but not limited to any and all interest which accrues
thereon and costs which may be incurred in the collection thereof) shall be
secured by, and this Lease and the estate hereby created is and shall be subject
to, the lien provided by Connecticut General Statutes ss. 12-171 et. seq. to
secure the same.
Section 503. Tenant shall pay personal property taxes, sales and use
taxes, water and sewage charges, and any and all other taxes and governmental
charges general or special, ordinary or extraordinary, foreseen or unforeseen,
of any kind or nature whatsoever (other than Real Estate Taxes or any tax or
levy imposed in substitution therefor or in lieu thereof) levied against the
Demised Premises and/or the Development Improvements or any income or revenue
generated therein or as a result thereof (hereinafter, individually and
collectively, an "Imposition"). Tenant shall submit to Landlord within twenty
(20) days after request therefor by Landlord after the last day upon which any
Imposition may be paid without penalty
15
or interest, official receipts, or other proof reasonably satisfactory to
Landlord, showing the payment thereof.
Section 504. If by law any assessment which Tenant is required to pay is
or may be payable, at the option of the taxpayer, in installments, Tenant may
pay such assessment in installments (with any accrued interest due and payable
on the unpaid balance of the assessment as they respectively become due on or
before the last day on which each such installment may be paid without penalty
or interest). However, if the payment of any assessment in installments would
constitute or give rise to a default under the provisions of any Leasehold
Mortgage, Tenant shall pay the entire assessment on or before the last day on
which the same may be paid without penalty or interest, unless Tenant shall have
obtained the written consent or the payment of the assessment in installments
from the holder or holders of any such Leasehold Mortgage in form reasonably
satisfactory to Landlord.
Section 505. Tenant, at its own cost and expense, may contest the amount
or validity of any Imposition in any manner permitted by law, in Tenant's name,
and whenever necessary in Landlord's name (except when City has imposed such
Imposition) provided that Tenant does so with due diligence and that same is
without cost or expense to Landlord. Landlord will cooperate with Tenant and
execute any documents or pleadings reasonably required for such purposes,
provided that the same shall be without cost or expense to Landlord and does not
in any event constitute a waiver of its Municipal Powers. Such contest may
include appeals from any judgment, decree or order until a final determination
is made by a court or governmental department or authority having final
jurisdiction in the matter. To the extent allowed by any Leasehold Mortgage and
applicable law, Tenant may postpone payment of any contested Imposition pending
the final determination thereof as and to the extent permitted by law. However,
16
notwithstanding such contest, Tenant may pay the contested Imposition in the
manner and on the dates provided for in this Article. Any refund with respect to
Imposition paid by Tenant shall be the revenue of Tenant.
Section 506. Prior to collecting any revenue upon which any PILOTs are to
be calculated, and thereafter throughout the term of the lease, Tenant shall
ensure that all revenues generated from the sale of tickets, food, beverages and
merchandise are collected and accounted for in accordance with a cash control
and accounting system approved by Landlord. A detailed description of that
system shall be provided to Landlord no later than October 31, 1994. If the
parties are unable to agree on all or any portion of that system by January 31,
1995, the matter shall be submitted to arbitration in accordance with the rules
of the American Arbitration Association then pertaining. The panel chosen to
decide this matter shall consist of three arbitrators: one chosen by the Tenant,
one by the Landlord, and the third by the American Arbitration Association. All
arbitrators shall have at least ten years demonstrated experience in cash
control and accounting as determined by the American Arbitration Association.
The Tenant shall implement any cash control and accounting system adjudged to be
appropriate by said panel (or as otherwise agreed by the parties) prior to the
first event which is held on the Demised Premises.
Section 507. Tenant shall keep (either at its principal office or any
branch office, as Tenant may elect) accurate books and records showing the
amount of Tenant's Admission Receipts, Parking Receipts, Food and Beverage
Revenue, Merchandise Revenue and the amounts of all other revenues and expenses
in and from the Demised Premises and Development Improvements for each event and
each calendar month. Subject to the confidentiality provisions of this Lease
Agreement as set forth below, such records shall be produced and made available
for inspection and audit by Landlord and/or its representatives from
time-to-time
17
(but, except in the case of suspected fraud or other abuse, no more than once
each quarter) during regular business hours provided, however, that Landlord
shall have no right to inspect or audit such records or to contest Tenant's
statement of Admission Receipts, Parking Receipts, Food and Beverage Revenue and
Merchandise Revenue after the expiration of five (5) years from the date of the
submission of Tenant's statement for any such event or period to which such
records pertain. If such audit shall reveal an error unfavorable to Landlord in
excess of three (3%) percent in the payment of PILOT for any audit period, then
Tenant shall pay to Landlord, promptly upon its receipt of the Landlord's xxxx
therefor, the reasonable cost of such audit. If such audit shall reveal an error
in the payment of PILOT for the period in question, said error shall be
corrected by payment by or to Tenant, as the case may be, of the amount of under
or over payment, provided Tenant shall, in the case of any amounts due Landlord,
make any such payments together with interest at the Default Rate from the time
such amounts should have been paid to the date of payment, and provided Landlord
shall, in the case of any amounts due Tenant, either, at Landlord's election,
pay Tenant such amounts or allow Tenant to take the amount thereof as a credit
against future PILOTs which come due hereunder.
Section 508. Tenant shall furnish to Landlord at the address as to which
rent payments are made, within thirty (30) days after the completion of each
month during the Original Term of this Lease, and any Extension Period thereof,
a statement of all Admission Receipts, Parking Receipts, Food and Beverage
Revenue and Merchandise Revenue for such period. All such statements shall be in
writing.
If Tenant is a corporation, the statements shall be certified as accurate
and complete by an authorized officer of Tenant. If Tenant is a partnership, the
statements shall be certified as accurate and complete by an individual partner
or the principal financial officer of a managing corporate partner. On or before
June 30 of
18
each year (or at such sooner intervals as similar information to be provided to
the CDA) Tenant shall provide an opinion of a nationally recognized certified
public accounting firm addressed to the Landlord to the effect that the
accounting firm has reviewed the Tenant's financial statements for the Project
required to be maintained by Tenant under this Article and that (i) the
calculations, as reported on such statements, have been compared to the general
ledger and financial statements for the Project and that the accounting firm is
not aware of any discrepancy between the financial statements and such ledger,
and (ii) that the accounting firm is not aware of any material modifications
that need to be made to the financial statements in order for such statements to
conform with generally accepted accounting principles.
Section 509. Tenant shall pay to Landlord the amount payable for PILOT for
the period covered by such statement computed in accordance with the provisions
of this Lease herein above and herein set forth. Any statements provided
pursuant to Section 508 above shall be held in confidence under this Lease
except that Landlord may disclose such figures to a court of competent
jurisdiction in any suit to recover PILOT or in connection with any litigation
or tax abatement proceeding or pursuant to a validly issued subpoena or an order
of any court or governmental agency.
Section 510. The fact that a part of Tenant's Admission Receipts, Food and
Beverage Revenue and Merchandise Revenue may be payable as rent hereunder shall
not, create, nor shall any other provision of this Lease be construed as
creating, any partnership or joint venture or any other association between
Landlord and Tenant, or make Landlord in any way responsible for the debts
and/or losses of Tenant or the conduct of Tenant's business, it being expressly
understood and agreed that the relationship between the parties is, and shall at
all times remain, that of landlord and tenant.
19
Section 511. In the event the method of taxation of Real Estate or the
definition of Real Estate Taxes prevailing in the City as of the date hereof is
replaced, amended, altered, expanded, or substituted, or some other form of
assessment, levy or tax is instituted in lieu thereof, Tenant's sole liability
with respect to any such replacement, amendment, alteration, expansion,
substitution or assessment, levy or tax is and shall be, for the term of this
Lease Agreement and any extensions thereof, the payment of PILOT in the manner
and form set forth above, without exception.
ARTICLE VI
COMPLIANCE WITH LAWS ETC.
Section 601. Tenant's leasehold estate hereby granted is and shall at all
times be subject to all legal requirements and Tenant shall promptly observe,
comply with or cause compliance with the provisions of any and all present and
future Legal Requirements which pertain or apply to the Demised Premises and the
Development Improvements with respect to Parcels A and B. Tenant also shall
observe, comply with or cause compliance with all of the covenants contained in
the Land Disposition Agreement from the Hartford Redevelopment Agency to the
Landlord, and hereby agrees to indemnify and hold harmless Landlord from and
against any loss or damage sustained by the Hartford Redevelopment Agency and/or
the Landlord resulting from Tenant's failure to so observe, comply or cause
compliance therewith. In addition, with respect to the Conrail Parcel as shown
on Exhibit B, Tenant shall observe, comply with or cause compliance with all of
the covenants contained in the deed from Conrail to the Landlord, and hereby
agrees to indemnify and hold harmless Landlord from and against any loss or
damage sustained by Landlord resulting from Tenant's failure to so observe,
comply or cause
20
compliance therewith. Notwithstanding and in addition to the foregoing Tenant
specifically agrees to indemnify Landlord in accordance with the terms and
conditions of that certain Indemnity Agreement of even date herewith between
Landlord and Tenant a copy of which is attached hereto as Exhibit E. Tenant
shall make any and all improvements, alterations or repairs to the Demised
Premises and the Development Improvements, or any portion thereof, that may be
required at any time hereafter by any such present or future Legal Requirements.
Nothing herein shall restrict or prohibit Tenant from contesting any Legal
Requirements alleged to be applicable to the Demised Premises or the Development
Improvements, or from contesting the interpretation or application of the same,
and compliance may be delayed (so long as Landlord's interest in the Demised
Premises is not subjected to lien or placed in jeopardy) until any such contest
is finally concluded.
ARTICLE VII
MAINTENANCE AND REPAIR
Section 701. Except as specifically otherwise provided herein, and subject
to damage by casualty or taking, and ordinary wear and tear, Tenant shall,
throughout the term of this Lease, at its sole expense, maintain and keep the
Demised Premises and the Development Improvements in a first class condition and
state of repair.
Section 702. All signs, counters, shelving, sinks, stages, sound systems,
lighting and electrical controls and systems and to the extent such are
incorporated into Tenant's trade fixtures and equipment, trade fixtures,
contents, and other fixtures and equipment, which may at anytime be installed or
placed in or upon the Demised Premises, by or at the expense of Tenant,
(notwithstanding that all or some of the same may be considered as and fall
within the definition of
21
"Development Improvements") are and shall remain the property of Tenant,
and Tenant shall have the right, but not the obligation, to remove the same at
any time prior to, during, or within the term of this Lease, provided that at
and upon the expiration or earlier termination of this Lease, Tenant shall
remove all of the foregoing, and surrender the Demised Premises free and clear
of the same, in "broom clean" condition and any of the same not removed within
thirty (30) days after the expiration date of the term of this Lease, or any
sooner termination thereof, shall be deemed abandoned and the property of the
Landlord, and may be removed or discarded by Landlord. Any fixtures and
equipment subject to the rights of any equipment lessor shall be removed by
Tenant. Landlord, as Landlord hereunder, but without waiving any of its
Municipal Powers, shall have no lien on, or right of distraint against, any
fixtures or equipment installed by Tenant and Landlord expressly waives any such
right provided by law. If Tenant leases or gives Landlord notice of its
intention to lease, equipment or fixtures for use in the Demised Premises,
Landlord agrees that it will, without undue delay but at the Tenant's expense,
including Landlord's reasonable attorney's fees, execute a written instrument
for the benefit of any equipment lessor on such form as shall be furnished by
such equipment lessor or by Tenant wherein the Landlord shall recognize that its
rights to such leased equipment of fixtures as Landlord hereunder, if any, shall
be subordinate to the rights of the equipment lessor. Further, if the Tenant
removes the items it is allowed or obligated to remove pursuant to this Article,
it agrees to repair any damage caused by the removal of said items.
ARTICLE VIII
UTILITIES AND CHARGES
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Section 801. Tenant shall pay or cause to be paid all charges for water,
gas, light, heat, electricity, power and other utility services furnished to the
Demised Premises, the Development Improvements, and any subtenants, including
the tenants of the Development Improvements, during the term hereof. Tenants may
contest any utility charge and payment may be delayed until such contest is
finally concluded, provided Landlord's interest in the Demised Premises is not
thereby subject to lien or placed in jeopardy.
Section 802. Landlord shall not be required to furnish or supply to the
Demised Premises any of the services described in Section 801. However, if
required by any utility company which will or does furnish or supply any such
service to the Demised Premises or the Development Improvements, Landlord shall,
at Tenant's request (provided Landlord does not thereby incur any cost, expense
or liability) execute, acknowledge and deliver any application or other
documents necessary to obtain such service, subject to Section 302 above.
ARTICLE IX
MECHANICS AND OTHER LIENS
Section 901. Tenant shall not suffer or permit any mechanic's liens or
other liens to be filed against the Demised Premises or the Development
Improvements, or any part thereof, or against Tenant's leasehold estate therein,
or against the Development Improvements by reason of any work, labor, services
or materials done for, or supplied to, Tenant or anyone holding the Demised
Premises or Development Improvements (except work or services provided to the
Landlord) or any part thereof through or under Tenant or any other reason. If
any such lien shall be filed at any time, Tenant shall cause the same to be
discharged of record within ninety (90) days after the date of filing the same,
by either payment, deposit
23
or bond. If Tenant shall fail to discharge any such lien within such period and
has failed to commence any legal action to discharge any such lien, then, in
addition, to any other right or remedy of Landlord, Landlord may, but shall not
be obligated to, procure the discharge of the same either by deposit in court or
by bond and/or Landlord shall be entitled, at Landlord's option, to compel the
prosecution of an action for the foreclosure of such mechanic's lien by the
lienor and to pay the amount of the judgment, if any, in favor of the lienor
with interest, costs and allowance. Any amount paid by Landlord for any of said
purposes, and all reasonable counsel fees, in defending any such action or in
procuring the discharge of any such lien shall become due and payable forthwith
by Tenant to Landlord, and failure to pay same within thirty (30) days of
Tenant's receipt of billing therefor and notice of demand for payment thereof
shall be a default of this Lease Agreement subject to Article XI hereof.
ARTICLE X
TITLE
Section 1001. At all times during the term of this Lease, title to the
Development Land shall remain in Landlord, in fee simple absolute, providing
that, subject to the provisions of Article XIII, title to the Development
Improvements shall remain in Tenant unless and until this Lease Agreement
expires, is earlier terminated, abandoned or surrendered, in which case title to
all such improvements (subject, however, to the provisions of Section 702,
above) shall revert to Landlord.
Section 1002. Landlord agrees not to sell, mortgage, lease or otherwise
encumber the Demised Premises, in whole or in part, during the term of this
Lease and any extensions thereof without Tenant's approval, which approval shall
not be unreasonably withheld or delayed. In no case will Landlord subject the
Demised
24
Premises or any portion thereof to a mortgage or encumbrance which is prior in
right or title to this Lease.
25
ARTICLE XI
DEFAULTS
Section 1101. Event of Default
(a) Tenant shall be in default of its obligations under this Lease upon
occurrence of any one of the following at any time:
(i) Whenever the Tenant shall fail to pay any installment of Rent,
or of any other sum payable by Tenant to Landlord, on any day upon which the
same ought to be paid, or Tenant shall fail to maintain any of the insurance
required to be maintained hereunder, and, in any such case, such failure shall
continue for ten (10) calendar days after the Tenant shall have received from
Landlord a written notice specifying such default; or
(ii) Whenever the Tenant shall do, or permit anything to be done,
whether by action or inaction, contrary to any covenant or agreement on the part
of Tenant herein contained, or shall fail in the keeping or performance of any
of the covenants, agreements, terms or provisions contained in this Lease which
on the part or behalf of Tenant are to be kept or performed (other than those
referred to in subsection (a)(i) above), and Tenant shall fail to commence to
take steps to remedy the same within forty-five (45) days after Tenant shall
have received a written notice specifying the same, or Tenant having so
commenced shall thereafter fail (except for Unavoidable Delays) to proceed
diligently to remedy the same; or
(iii) Whenever an involuntary petition shall be filed against Tenant
under any bankruptcy, reorganization or insolvency law, or under the provisions
of any law of like import, or a receiver of Tenant or of or for the property of
Tenant shall be appointed without the acquiescence of Tenant, and such
circumstance under this subsection (c) shall continue and shall remain
undischarged or unstayed for an
26
aggregate period of ninety (90) days (whether or not consecutive) or shall not
be remedied by Tenant within ninety (90) days; or
(iv) Whenever Tenant shall make an assignment of the property of
Tenant for the benefit of creditors or shall file a voluntary petition under any
bankruptcy or insolvency law or any other law of like import, or whenever any
court of competent jurisdiction shall approve a petition filed by Tenant under
the reorganization provisions of the United States Bankruptcy Code or under the
provisions of any law of like import, or whenever a petition shall be filed by
Tenant under the arrangement provisions of the United States Bankruptcy Code or
under the provisions of any law of like import, or whenever Tenant shall abandon
the Demised Premises.
(b) This Lease and the Term and estate hereby granted are subject to the
limitation that, if Tenant shall be in default of any of its obligations under
this Lease, then regardless of, and notwithstanding that, Landlord has or may
have some other remedy under this Lease or by virtue hereof, or in law or in
equity, all of which are expressly reserved unto Landlord, Landlord (in addition
to all of such rights and remedies) also shall have the right to terminate this
Lease by giving Tenant a notice (herein called the "second notice") of
Landlord's intention to end the Term of this Lease effective as of a day not
less than thirty (30) days thereafter in the case of non-payment of Rent or
failure to maintain insurance, and otherwise not less than ninety (90) days
thereafter, (the "Termination Date") and, unless Tenant shall have fully cured
all of the default(s) with respect to which it has received such second notice
by the Termination Date, this Lease and the Term and estate hereby granted shall
expire and terminate upon the Termination Date as fully and completely and with
the same force and effect as if the day so specified in the second notice were
the date hereinbefore fixed for the expiration of the Term of this
27
Lease and all rights of Tenant under this Lease shall expire and terminate as of
that date.
(c) Notwithstanding anything to the contrary set forth in this agreement,
in the event Tenant initiates any legal or equitable action in which Tenant
avers that it is not in breach of any of its obligations under this Lease as
alleged by Landlord in any notice given pursuant to Section 1101(a) (ii) hereof
(a "contested default"), the period of time in which Tenant has a right to
commence curing any contested default before which Landlord can issue a second
notice terminating this Lease agreement shall be extended by that period of time
commencing upon Tenant's initiation of such action until the judge or other
official responsible for ruling on the same has rendered his or her decision as
to whether Tenant is in fact in breach of its obligation hereunder. However,
nothing herein shall preclude the Landlord from exercising any other rights or
remedies it has or may have in law or in equity prior to its being able to issue
any such second notice, including, without limitation, obtaining a court order
compelling Tenant to specifically perform any of its obligations hereunder; it
being the intent of the parties that, except to the extent Landlord otherwise
would have the right to issue a second notice terminating this Lease agreement,
Tenant shall be deemed to be in default of this Lease agreement as and when
provided in Section 1101(a) notwithstanding its initiation of any action
referred to in the first sentence of this subsection 1101(c).
(d) Upon any such termination or expiration of this Lease under this
Article, Tenant shall peaceably quit and surrender the Demised Premises and the
Development Improvements to the Landlord, and Landlord may without further
notice enter upon, re-enter, possess and repossess itself thereof, by force,
summary proceedings, ejectment or otherwise, and may dispossess and remove
Tenant and hold and enjoy the Demised Premises and the Development Improvements
and the right to receive all rental and other income of and from the same.
28
Section 1102. If this Lease Agreement shall be terminated as provided in
Section 1101, Landlord, or Landlord's representatives, agents or servants may
immediately or at any time thereafter, re-enter the Demised Premises and
Development Improvements and remove therefrom Tenant, its agents, employees,
servants, licensees, and any persons holding or claiming by, through or under
Tenant, and all or any of its or their property therefrom either by summary
process proceeding or by any suitable action or proceeding at law or in equity
without being liable to indictment, prosecution, or damages therefor, and
possess and repossess and enjoy the Demised Premises and the Development
Improvements, subject to the Leasehold Mortgagee's and/or CDA's rights under
Section 1303 hereof.
Section 1103. In case of any such termination, re-entry or dispossession
by summary process or otherwise, payments due to the Landlord from the Tenant
under this Lease Agreement up to the date of termination, shall thereupon become
due and payable to the time of such termination, re-entry or dispossession, and
Tenant shall also pay to Landlord all expenses which Landlord may then or
thereafter reasonably incur for legal expenses, attorney's fees, brokerage
commissions, and all other reasonable costs paid or incurred by Landlord for
restoring the Demised Premises and the Development Improvements to good order
and condition and for altering and otherwise preparing the same for reletting.
Section 1104. Anything contained in this Article XI to the contrary
notwithstanding, in the event of a default by the Tenant under this Lease
Agreement, CDA or any other holder or holders of a Leasehold Mortgage or their
respective successors-in-interest shall have the right to cure any default of
the Tenant under this Lease Agreement within the time periods and subject to the
terms set forth in Article XIII below.
Section 1105. Notwithstanding any other provision of this Lease, in the
event that prior to completion of the Development Improvements as
29
responsible party or parties (as determined by the Landlord) who will assume the
obligation of making or completing the Development Improvements or such other
improvements in their stead as shall be satisfactory to the Landlord and in
accordance with the uses specified for such Demised Premises or part thereof in
the Plan or any approvals given for the Project by the City or the HRA. Upon
such resale or new lease of the Demised Premises, the proceeds thereof shall be
applied:
(a) First, to reimburse the Landlord for all costs and operating
expenses and operating deficiencies and for needed capital improvements incurred
by the Landlord, including, but not limited to, salaries of personnel, in
connection with the recapture, management, and resale or new lease of the
Demised Premises or part thereof (but less any income derived by the Landlord
from the Demised Premises or part thereof in connection with such management);
all taxes, assessments, and water and sewer charges with respect to the Demised
Premises or part thereof (or, in the event the Demised Premises is exempt from
taxation of assessment or such charges during the period of ownership thereof by
the Landlord, an amount, if paid, equal to such taxes, assessments, or charges
(as determined by the City assessing official) as would have been payable if the
Demised Premises were not so exempt any payments made or necessary to discharge
any encumbrances or liens existing on the Demised Premises or part thereof at
the time of revesting of title thereto in the Landlord or to discharge or
prevent from attaching or being made any subsequent encumbrances or liens due to
obligations, defaults, or acts of the Landlord, its successors or transferees;
any expenditures made or obligations incurred with respect to the making or
completion of the Development Improvements or any part thereof on the Demised
Premises or part thereof; and any amounts otherwise owing the Landlord by the
Tenant and its successor or transferee; and
30
(b) Second, to reimburse the Tenant, its successor or transferee, up to
the amount of (1) the cash actually invested by it in making any of the
Development Improvements on the Demised Premises or part thereof, less (2) any
gains or income withdrawn or made by it from the Demised Premises. Any balance
remaining after such reimbursement shall be retained by the Landlord as its
property.
Section 1107. Upon the termination of the Tenant's interest in the Demised
Premises or any part thereof as provided in Section 1105, and subject to the
provisions of Section 1303(h) below, the Landlord shall have the right to
institute such actions of proceedings as it may deem desirable for effectuating
the purposes of this Article XI, including also the right to execute and record
or file among the public land records of the City a written declaration of the
termination of all the right, title and interest of the Tenant, and its
successors in interest and assigns, in the Lease of the Demised Premises, and
the revesting of title thereto in the Landlord: PROVIDED, that any delay by the
Landlord in instituting or prosecuting any such actions or proceedings or
otherwise asserting its rights under this Article XI shall not operate as a
waiver of such rights or to deprive it of or limit such rights in any way (it
being the intent of this provision that the Landlord should not be constrained
(so as to avoid the risk of being deprived of or limited in the exercise of the
remedy provided herein because of concepts of waiver, laches, or otherwise) to
exercise such remedy at a time when it may still hope otherwise to resolve the
problems created by the default involved); nor shall any waiver in fact made by
the Landlord with respect to any specific default by the Tenant under this
Section be considered or treated as a waiver of the rights of the Landlord with
respect to any other defaults by the Tenant under this Section or with respect
to the particular default except to the extent specifically waived in writing.
Section 1108. For the purposes of any of the provisions of the Lease,
neither the Landlord nor the Tenant, as the case may be, nor any successor in
31
interest, shall be considered in breach of, or default in, its obligations with
respect to the preparation of the Demised Premises for redevelopment, or the
beginning and completion of construction of the Improvements, or progress in
respect thereto, in the event of delay in the performance of such obligations
due to unforeseeable causes beyond its control and without its fault or
negligence, including, but not restricted to, acts of God, acts of the public
enemy, acts of the Federal Government, the State of Connecticut, acts of the
other party, fires, floods, epidemics, quarantine restrictions, strikes,
freight, embargoes, and unusually severe weather or delays of subcontractors due
to such causes; it being the purpose and intent of this provision that in the
event of the occurrence of any such delay, the time or times for performance of
the obligations of the Landlord with respect to the preparation of the Demised
Premises for redevelopment or of the Tenant with respect to construction of the
Improvements, as the case may be, shall be extended for the period of such
delay; PROVIDED, that the party seeking the benefit of the provisions of this
Section shall, within twenty (20) days after the beginning of any such delay,
have first notified the other party thereof in writing, and of the cause or
causes thereof, and requested an extension for the period of the enforced delay.
Section 1109.
(a) If Tenant shall fail to pay any Imposition or make any other payment
required to be made under this Lease or shall default in the performance of any
other covenant, agreement, term, provision or condition herein contained,
Landlord, without being under any obligation to do so, and without thereby
waiving such default, may make such payment and/or remedy such other default for
the account and at the expense of Tenant, immediately and without notice in the
case of emergency, or in any other case when Tenant shall fail to make such
payment or remedy such default within five (5) days after Landlord shall have
notified Tenant that it has failed to maintain insurance and otherwise within
forty-five (45) days
32
after Landlord shall have notified Tenant in writing of any default. Bills for
any expense incurred by Landlord in connection therewith, and bills for all
costs, expenses and disbursements of every kind and nature whatsoever, including
reasonable counsel fees, involved in collection or endeavoring to collect the
Rent or any part thereof, or enforcing or endeavoring to enforce any right
against Tenant, under or in connection with this Lease, or pursuant to law,
including (without being limited to) any such cost, expense and disbursement
involved in instituting and prosecuting summary proceedings, as well as bills
for any property, material, labor or services provided, furnished or rendered,
or caused to be furnished or rendered, by Landlord to Tenant, with respect to
the Demised Premises and/or Development Improvements and/or other equipment,
construction work done for the account of Tenant (together with interest at the
Default Rate from the respective dates of Landlord's making of each such payment
or incurring of each such cost or expense), may be sent by Landlord to Tenant
monthly, or immediately, at Landlord's option, and shall be due and payable in
accordance with the terms of said bills and if not paid when due, the amount
thereof shall immediately become due and payable as additional rent under this
Lease together with interest at the Default Rate until fully paid.
(b) Landlord may restrain any breach or threatened breach of any covenant,
agreement, term, provision or condition herein contained, but the mention in
this Lease of any particular remedy shall not preclude Landlord from any other
remedy it might have, either in law or in equity, whether or not otherwise
specified in this Lease. The failure of Landlord to insist upon the strict
performance of any one of the covenants, agreements, terms, provisions or
conditions of this Lease or to exercise any right, remedy or election herein
contained or permitted by law, shall not constitute or be construed as a waiver
or relinquishment for the future of such covenant, agreement, term, provision,
condition, right, remedy or election, but the
33
same shall continue and remain in full force and effect. Any right or remedy
that Landlord may have at law, in equity or otherwise upon breach of any
covenant, agreement, term, provision or condition in this Lease contained upon
the part of Tenant to be performed, shall be distinct and separate from and
cumulative with any other rights or remedies, and no one of them whether
exercised by Landlord or not, shall be deemed to be in exclusion of any other.
No covenant, agreement, term, provision or condition of this Lease shall be
deemed to have been waived by Landlord unless such waiver be in writing and
signed by the parties. Consent of Landlord to any act or matter must be in
writing and shall apply only with respect to the particular act or matter to
which such consent is given and shall not relieve Tenant from the obligation
wherever required under this Lease to obtain the consent of Landlord to any
other act or mater. Receipt or acceptance of Rent by Landlord shall not be
deemed to be a waiver of any default under the covenants, agreements, terms,
provisions and conditions of this Lease, or of any right which Landlord may be
entitled to exercise under this Lease. In the event that Tenant is in arrears in
the payment of Rent, Tenant waives Tenant's right, if any, to designate the
items against which any payments made by Tenant are to be credited and Tenant
agrees that Landlord may apply any payments made by Tenant to any items Landlord
sees fit, irrespective of an notwithstanding any designation or request by
Tenant as to the items against which any such payments shall be credited. This
Lease may not be changed orally, but only by an agreement in writing signed by
the party against whom enforcement of any waiver, change, modification or
discharge is sought.
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ARTICLE XII
ALTERATIONS
Section 1201. Tenant shall have the right to make any and all additions,
alterations and improvements to the Demised Premises and the Development
Improvements as Tenant deems necessary or advisable, provided (a) the same
comply with all applicable Legal Requirements and the provisions of each
Leasehold Mortgage, (b) the same would not materially and adversely affect the
value of the Demise Premises and/or the Development Improvements, and (c) Tenant
shall not be relieved of its responsibilities to construct the Development
Improvements in accordance with its designation as developer of the Development
Improvements by the Hartford Redevelopment Agency.
ARTICLE XIII
LEASEHOLD MORTGAGES
Section 1301. Tenant shall have the right, at any time and from
time-to-time, during the terms of this Lease Agreement, to mortgage the
leasehold estate created by this Lease Agreement, without Landlord's consent,
provided and upon condition that:
(a) a duplicate original or certified copy or photostatic copy of such
Leasehold Mortgage, and the note or other obligation secured thereby, is
delivered to Landlord within thirty (30) days after the execution thereof; and
(b) such Leasehold Mortgage is held by a Leasehold Mortgagee and
otherwise fully complies with the provisions and conditions of this Section 1301
hereof; and
35
(c) such Leasehold Mortgage shall contain a covenant to the effect that
the net proceeds of all insurance policies and any condemnation award shall be
held, used or applied in the manner provided in this Lease Agreement; and
(d) such Leasehold Mortgage matures prior to the termination date of the
term of this Lease as the same may have been extended pursuant to the terms
hereof; and
(e) such Leasehold Mortgage is in all cases subordinate to Landlord's fee
interests in the Demised Premises and subject to this Lease Agreement; and
(f) nothing contained in such Leasehold Mortgage shall impose any
liability or obligation on Landlord except as otherwise expressly provided below
in the case of a default by Tenant under this Lease Agreement.
Section 1302. Notwithstanding anything contained to the contrary in this
Lease Agreement, Tenant shall have the right to assign this Lease Agreement and
any subleases to any Leasehold Mortgagee (including any Trustee), or CDA, or to
the designee or nominee of such Leasehold Mortgagee or CDA, as the case may be,
without the consent of Landlord, and in the event the Leasehold Mortgagee, or
CDA, as the case may be, or their designees or nominees shall acquire ownership
of the Leasehold estate, either following foreclosure of such Leasehold Mortgage
or in liquidation of the indebtedness and in lieu of foreclosure thereof, the
Leasehold Mortgagee, or CDA or their designees or nominees shall have the
further right to further assign this Lease Agreement and any subleases and the
holder of any purchase money mortgage accepted in connection therewith shall
enjoy all rights, powers and privileges granted herein to Leasehold Mortgagees.
Section 1303. If Tenant shall execute and deliver a Leasehold Mortgage,
and if the provisions and conditions of Section 1301, above shall have been
fully complied with and observed with respect to such Leasehold Mortgage, and
Tenant or the Leasehold Mortgagee shall have notified Landlord in writing of
36
the making thereof and of the name and address of such Leasehold Mortgagee or
Leasehold Mortgagees, then Landlord and Tenant agree that:
(a) this Leasehold Agreement may not be modified, amended, called or
surrendered by agreement between Landlord and Tenant, without prior written
consent of such Leasehold Mortgagee or CDA;
(b) there shall be no merger of this Lease Agreement or of the Leasehold
estate hereby with the fee title to the Demised Premises notwithstanding that
this Lease Agreement or said Leasehold estate and said fee title shall be owned
by the same person or persons, without the prior written consent of such
Leasehold Mortgagee, or CDA;
(c) Landlord shall serve upon each such Leasehold Mortgagee, or CDA, in
the manner provided in such Leasehold Mortgage and the Mortgage Insurance for
the giving of notices (except that if there is no such provision and if Landlord
is notified in the manner provided under this Lease Agreement of the address or
change of address of any such leasehold Mortgagee and CDA then Landlord shall
serve notice to the Leasehold Mortgagee and CDA, in the manner provided for
notices hereunder, at the address of such mortgagee or CDA set forth in such
notice to the Leasehold Mortgagee and CDA, in the manner provided for notices
thereunder, to the address or change of address), a copy of each notice of
default and each notice of termination given to Tenant under this Lease
Agreement, at the same time as such notice is served upon Tenant. No such notice
to Tenant shall be effective unless a copy thereof is thus served upon each
Leasehold Mortgagee, and CDA;
(d) each Leasehold Mortgagee, or CDA, shall have the same period of time,
after and beginning as of the date of service of such notice upon it, within
which Tenant may remedy or cause to be remedied the default which is the basis
of the notice plus twenty (20) days, PROVIDED, as to CDA, the time to cure any
37
default which does not require the payment of money to Landlord or to any third
party (e.g. for insurance or to remove a mechanics lien) shall in any event be
not less than three (3) months. Landlord shall accept performance by such
Leasehold Mortgagee, or CDA, as the case may be, as timely performance by Tenant
and any notice terminating this Lease which is sent prior to the expiration of
the time periods set forth herein shall be invalid if a Leasehold Mortgagee or
CDA, shall remedy such default before the expiration of such period;
(e) Provided that any Leasehold Mortgagee or CDA, as the case may be, (i)
shall cure or cause to be cured any and all defaults which involve the payment
of money within the periods provided in subparagraph (d) above, and (ii) shall
deliver to Landlord within thirty (30) days after the expiration of any grace
period applicable to any particular defaults, an instrument guaranteeing the
remedying of all other defaults, Landlord shall not terminate this Lease
Agreement by service of a notice of termination or otherwise, without first
giving to such Leasehold Mortgagee, and CDA, a reasonable time within which
either: (i) to obtain possession of the Demised Premises and Development
Improvements and to remedy such defaults in the case of defaults which are
susceptible of being cured when such Leasehold Mortgagee or CDA, as the case may
be, has obtained possession of the Demised Premises and Development
Improvements, or (ii) to institute and with reasonable diligence to complete
foreclosure proceedings or otherwise acquire Tenant's leasehold estate under
this Lease Agreement in the case of defaults which are not so susceptible of
being remedied by such Leasehold Mortgagee or CDA, as the case may be.
(f) such Leasehold Mortgagee or CDA shall not be required to continue
possession or continue foreclosure proceedings under subsection (e) of this
Section if all defaults for which either has received notice from Landlord have
been cured
38
prior to cessation of either such possession or continuation of foreclosure
proceedings;
(g) Landlord may exercise any of its rights or remedies with respect to
any other default by Tenant occurring during the period of such forbearance
provided for under said subsection (e), subject to the rights of the Leasehold
Mortgagee, and CDA under this Article as to such other defaults;
(h) If this Lease Agreement shall terminate or be rejected prior to the
expiration of the demised term, Landlord shall enter into a new lease for the
Demised Premises with any such Leasehold Mortgagee, or CDA or their designees,
for the remainder of the then term but including the option extensions herein
provided for, effective as of the date of such termination, at the same rent and
upon the same terms, covenants and conditions contained herein, and Landlord,
simultaneously with the execution and delivery of such new lease, shall turn
over to the new tenant all monies (net of sums due and available hereunder to
Landlord by Tenant), if any, then held by Landlord under this Lease on behalf of
Tenant, on condition that:
(1) such Leasehold Mortgagee, or CDA, shall make written request for
such new lease within two hundred (200) days after the date it received
notification of a default under this Lease Agreement; and
(2) on the commencement date of the term of the new lease, such
Leasehold Mortgagee, or CDA, shall have cured all defaults of Tenant under this
Lease Agreement (susceptible of being cured by such Leasehold Mortgagee, or CDA
as the case may be) which remain uncured on the date, and shall pay or cause to
be paid all unpaid sums which at such time would have been payable under this
Lease Agreement, but for such termination, and shall pay or cause to be paid to
Landlord on that date all reasonable Termination Expenses as and to the extent
Landlord has been unsuccessful in collecting the same from Tenant despite
39
Landlord's good faith efforts to that end. For the purposes of this
subparagraph, the term "Termination Expenses" shall mean all expenses, including
reasonable counsel fees, court costs and disbursements, incurred by Landlord in
connection with any such default and termination as well as in connection with
the execution and delivery of any new lease.
(3) If more than one Leasehold Mortgagee shall request such new
lease, such new lease shall be made with and delivered to the Leasehold Mortgage
(or its nominee or designee) whose mortgage appears of record to be prior in
lien to those of any others, provided however, that notwithstanding the
foregoing, such new lease shall be entered into with CDA so long as the CDA
Mortgage has not been released or expressly subordinated by written instrument
executed by CDA. The opinion of a reputable title insurance company, licensed to
insure title to real property in the State of Connecticut, setting forth the
order of priority of such mortgage liens, may be relied on by Landlord as
conclusive evidence of such priority. The cost of such opinion shall be paid by
the tenant under such new lease.
Section 1304. Tenant agrees to give, or cause Landlord to be given, notice
of each notice of default under each Leasehold Mortgage, together with a true
copy of the notice of default, if in writing;
Section 1305. Intentionally omitted.
Section 1306. The Landlord and Tenant agree to make reasonable
modifications of the provisions of this Article XIII or related provisions of
this Lease Agreement, if requested by a Leasehold Mortgagee or potential
Leasehold Mortgagee, PROVIDED that the Landlord will not be required to make an
modifications to this Lease Agreement which will materially and adversely affect
the Landlord's rights and interest under this Lease Agreement, PROVIDED FURTHER
that no such modification to the terms of this Lease agreement shall be made
without CDA's prior written approval.
40
ARTICLE XIV
INDEMNIFICATION AND INSURANCE
Section 1401. Tenant shall indemnify, defend and hold harmless the
Landlord, its agents, officials, employees and assigns form and against any and
all loss and liability (statutory or otherwise), claims, actions, suits,
demands, judgments, costs, interest and expense whatsoever, including, but not
limited to, reasonable attorneys' fees and disbursements, (hereinafter,
individually and collectively, "Claims"), for or arising from the Demised
Premises or the Development Improvements or Tenant's use or occupancy thereof or
the conduct of business therein or thereon during the Term hereof, including,
but not limited to, Claims based upon Tenant's failure to pay for or provide
goods, services or events, or for any act or omission on the part of Tenant or
any of its agents, officials or employees in the provision thereof, as well as
Claims for or arising from injury to, or death of, any person or persons, or
damage to real or personal property (including the loss of use thereof) which
occurs in or on the Demised Premises, Development Improvements or surrounding
sidewalks during the Term hereof or otherwise relates to or arises from or in
connection with any one or more of the following: (i) Tenant's use or occupancy
of the Demised Premises or the Development Improvements or conduct of business
therein or thereon, (ii) any condition existing on the Commencement Date
including, but not limited to, any environmental defects or hazards of any kind
which exist as of the Commencement Date, whether known or unknown (an
"Environmental Problem") and whether or not any such condition resulted from any
work or thing whatsoever done prior to the Commencement Date or is hereafter
created in or about the Demised Premises or the Development Improvements (except
when, and then only to the extent, Landlord is covered for any Claim relating to
any condition (other than an Environmental
41
Problem) existing as of the Commencement Date by insurance which it maintained
prior to the Commencement Date), (iii) any condition of the Demised Premises or
Development Improvements due to or resulting from any default by Tenant in the
Tenant's performance of Tenant's obligations under this Lease, or (iv) any act,
omission or negligence of Tenant, its subtenants or its or their agents,
contractors, subcontractors, servants, employees, licensees or invitees
(including, but not limited to, injury or death sustained by reason of or in
connection with any events held on or in the Demised Premises or the Development
Improvements, including, but not limited to, fire and theft, to the equipment,
clothing, valuables and other personal property of visiting acts and subtenants
stored in the Demised Premises or Development Improvements, during the Term of
this Lease); providing, however, that nothing herein shall obligate Tenant to
indemnify or hold Landlord harmless for or against any Claim arising by reason
of any negligent act or omission of Landlord or any claim as, but only to the
extent, it involves any personal injuries or personal property damage which
occurred prior to the Commencement Date. In case any action or proceeding is
brought against the Landlord by reasons of any matter which is the subject of
the foregoing indemnity, Tenant shall pay all costs, reasonable attorneys' fees,
expenses and liabilities resulting therefrom, and shall resist such action or
proceeding, at Tenant's sole cost and expense by attorneys chosen by Tenant and
reasonably satisfactory to Landlord.
Section 1402. Subject to the obligations of Tenant under (a) above,
Landlord shall indemnify, defend and hold harmless the Tenant, its agents,
officials, employees and assigns from and against any and all loss and liability
(statutory or otherwise), claims, actions, suits, demands, judgments, costs,
interest and expense whatsoever (including, but not limited to, reasonable
attorneys' fees and disbursements) for or arising from injury to, or death of,
any person or persons or damage to personal property including the loss of use
thereof) which injury, death
42
or damage occurs (i) on the Demised Premises prior to the Term hereof, or (ii)
is for or relates to any one or more of the following: (a) Landlord's use of all
or any portion of the Demised Premises subsequent to the Commencement Date or
(b) any work or things whatsoever done or any condition created (other than by
or on behalf of Tenant) by or on behalf of the Landlord in its capacity as
"landlord" hereunder, on or about all or any portion of the Demised Premises
subsequent to the Commencement Date. In case any action or proceeding is brought
against the Tenant by reason of any matter which is the subject of the foregoing
indemnity, Landlord shall pay costs, reasonable attorneys' fees, expenses and
liabilities resulting therefrom, and shall resist such action or proceeding at
Landlord's sole cost and expense by attorneys chosen by landlord and reasonably
satisfactory to Tenant.
Section 1403.
(a) During the Term hereof, tenant shall carry and keep in force the
following types and amounts of liability insurance:
(i) General Liability Insurance. Tenant shall carry and keep in
force, at its own expense, a policy or policies of comprehensive general
liability insurance (including garage keepers liability and contractual
liability coverage), insuring against damages to persons and/or property
(including, but not limited to, loss of life) occurring upon, in or about the
Demised Premises and/or Development Improvements in an amount not less than a
combined single limit of at least One Million Dollars ($1,000,000.00) for each
occurrence with a deductible not exceeding Fifty Thousand Dollars ($50,000.00),
which deductible is understood to be the responsibility of Tenant.
(ii) Other Insurance. Tenant also shall carry:
(1) Automobile Liability Insurance for all automobiles
(including non-owned and hired vehicles) which are used by Tenant and/or any of
43
its officials, agents and/or employees in connection with Tenant's use and/or
occupancy of the Demised Premises and/or Development Improvement with a combined
single limit of one million dollars ($1,000,000.00) for each accident with a
deductible not exceeding Fifty Thousand Dollars ($50,000.00), which deductible
is understood to be the responsibility of Tenant; and
(2) Workers' Compensation Insurance covering Tenant's and its
agent's employees at the Demised Premises and Development Improvements at the
Connecticut Statutory limit including Employers' Liability with limits of
$100,000.00 for each accident, $500,000.00 for each disease/policy limit, and
$100,000.00 for disease for each employee, with a deductible not exceeding Fifty
Thousand Dollars ($50,000.00), which deductible is understood to be the
responsibility of Tenant; and
(3) Umbrella Liability following form over the insurance
provided under subsections (a)(i) and (a)(iii)(1) and Employer's Liability
insurance with a limit of liability which, when combined with the primary
insurance over which such excess coverage is being provided, equals Fourteen
Million Dollars ($14,000,000.00).
(b) To the extent not otherwise covered by Tenant's liability insurance
pursuant to this Section 1403, the Tenant shall cause each subtenant and/or
other persons conducting any events or other business on or in the Demised
Premises and/or Development Improvements to carry, or the Tenant shall carry on
the behalf of such subtenant and/or other persons, liability insurance as is
appropriate for such events or other business.
(c) Notwithstanding anything to the contrary set forth herein, Tenant may
self insure against the risks addressed in (a)(ii)(1) and (2) of this Section
providing such self insurance is effected pursuant to a statutorily qualified
self insurance program which provides protection against such risks at least
equal to that which
44
otherwise would be provided pursuant to the insurance otherwise required under
said subsections (a)(ii)(1) and (2).
(d) The coverage and deductibles provided in this subsection shall be
reviewed at least once every five (5) years and shall be increased in accordance
with the standard coverage and deductibles carried by Landlord and tenants of
comparable properties in the City of Hartford. In the event of any dispute, the
Landlord shall submit an opinion from its insurance broker or risk manager as to
appropriate coverage or deductibles under the circumstances and the Tenant shall
submit an opinion from its insurance broker as to appropriate coverage or
deductibles under the circumstances. The two (2) representatives shall then
consult a third broker and the opinion of the majority shall govern as to the
coverage or deductibles to be thereafter carried by Tenant and Landlord. Each
such policy described in this Section shall name Landlord and Tenant as an
additional insured.
(e) The insurance's required in this Section may be carried on either an
"occurrence" or a "claims made" basis, providing, however, that, should any
insurance be carried on a "claims made" basis, Tenant also shall be obligated to
procure an extended reporting period thereto or a subsequent "claims made"
policy with the same retroactive date as the prior "claims made" policy, as
necessary to protect Landlord from any claims, actions or causes of action which
first accrue during the Term.
Section 1404.
(a) All Risk and Extended Coverage Property Insurance. During the Term
hereof, Tenant shall carry and keep in force an all risk and extended coverage
property insurance policy or polices insuring the Demised Premises and the
Development Improvements against all risks of loss or damage thereto, together
with endorsements insuring against damage and other loss, costs and expenses due
to earthquake, flood, demolition, increased costs of construction, and
contingent
45
liability associated with compliance with building laws and regulations,
together with a business interruption endorsement providing business
interruption insurance for not less than Ten Million Dollars ($10,000,000.00).
The coverage limits of the policies shall be in an amount not less than one
hundred percent (100%) of the then Full Replacement Cost of the Development
Improvements from to time and, with respect to any endorsements, such percentage
of such Full Replacement Cost as is customarily carried form time to time for
commercial office buildings or public assembly facilities in the City of
Hartford, with a deductible not exceeding Fifty Thousand Dollars ($50,000.00),
which deductible is understood to be the responsibility of Tenant.
(b) Comprehensive Boiler and Machinery Insurance. During the Term hereof,
Tenant also shall carry and keep in force a policy or policies providing
comprehensive boiler and machinery insurance covering all boilers and machinery,
if any (including heating and cooling systems, elevators, escalators and
electrical and mechanical systems and generators) in the Demised Premises and
Development Improvements for direct damage on a repair and replacement basis
together with a business interruption endorsement providing business
interruption insurance for not less than Ten Million Dollars ($10,000,000.00).
The coverage limits of the policies shall be in an amount not less than one
hundred percent (100%) of the then Full Replacement Cost of such equipment, and,
with respect to any endorsements, such percentage of Full Replacement Cost as is
customarily carried from time to time for commercial office buildings in the
City of Hartford, with a deductible not exceeding Fifty Thousand Dollars
($50,000.00), which deductible is understood to be the responsibility of Tenant.
(c) The term "Full Replacement Cost" shall mean the actual cost to replace
the item in question, without depreciation, and, in the case of the Development
Improvements, excluding the costs of excavation, foundations and footings.
46
(d) Said Full Replacement Cost shall be determined, during the term of
each policy referred to in this subsection and any renewal thereof, by the
provisions of an Automatic Increase in Insurance Endorsement, except that,
subject to the following sentence, once every five (5) years the parties shall,
at Tenant's expense, (and, at any other time, either party may, at its own
expense) cause said Full Replacement Cost to be determined by an appraiser,
engineer, architect or contractor approved in writing by the Landlord and Tenant
(which approval shall not be unreasonably withheld). Any dispute concerning the
determination of the Full Replacement Cost of any item(s) by any such third
party shall be resolved by arbitration in accordance with the rules of the
American Arbitration Association, provided, first, that neither party shall be
able to dispute any such determination unless it gives notice of its intent so
to do within thirty (30) days of its receipt of notice of such third party's
determination thereof under an din accordance with this Lease, and provided,
further, that in the event of any such dispute, the Full Replacement Cost of the
item(s) n question shall be and remain the higher of the amounts which would
prevail pursuant to the Automatic Increase in Insurance Endorsement or said
third party's determination until the matter is resolved pursuant to arbitration
at which time the Full Replacement Cost of such item(s) shall be as established
by the arbitrators, subject to future adjustment pursuant to this paragraph.
(e) No omission on the part of the Landlord or Tenant to request any such
determination of the Full Replacement Cost shall relieve the Tenant of any of
its obligations under this Article.
Section 1405.
(a) All insurance which is carried pursuant to the Lease or otherwise in
respect of the Demised Premises and the Development Improvements (including, but
not limited to the sale of food and liquors and conduct of entertainment and
47
other events), whether or not such insurance is required hereunder, shall
include to the extent reasonably available without additional premium,
provisions which deny to the insurer acquisition by subrogation of rights of
recovery against the other party as and to the extent such rights have been
waived by the insurance party prior to occurrence of loss or injury pursuant to
this paragraph insofar as and to the extent that such provisions may be
effective without making it impossible to obtain insurance coverage from
reputable companies qualified to do business in the State of Connecticut even
though extra premium. Each party shall be entitled to have duplicates of
certificates of any policies containing such provision. Provided and to the
extent such waivers of subrogation provisions or endorsements can be obtained,
each party hereby waives their rights of recovery against the other for loss or
injury against which the waiving party is protected by insurance containing said
provisions, reserving, however, any rights with respect to any excess of loss or
injury over the amount recovered by such insurance.
(b) The City of Hartford, Connecticut and the Hartford Redevelopment
Agency shall be named as loss payees on all property insurance policies, and as
additional insureds for all other insurance policies, required hereunder.
Consolidated Rail Corporation shall be an additional insured on all general,
automobile and umbrella liability insurance policies. Tenant shall file
certificates of all such insurance with the Landlord. All insurance will be
effected under standard form policies by insurers of recognized responsibility
which are licensed to do business in the State of Connecticut and which are
rated as A-(VIII) or better by the latest edition of Best's Rating Guide or
other recognized replacement therefor (or as otherwise approved by Landlord in
writing on a case by case basis upon issuance of any policy and/or any renewal
thereof, which approval may be withheld in its sole and absolute discretion),
and will provide for thirty (30) days prior notice of any cancellation of or
changes in coverage provided in the certificates of insurance.
48
Copies of such insurance policies, or certificates or insurance, will be
provided to the Landlord at the Commencement Date and not later than thirty (30)
days prior to each renewal date thereof.
(c) All insurance policies referred to in this Section shall provide that
any losses thereunder shall be adjusted with Tenant, Landlord and the CDA and
that loss thereunder shall be payable to Landlord, Tenant and the CDA, as their
interests may appear. Neither Landlord nor Tenant shall unreasonably withhold or
delay its endorsement to any insurance check payable hereunder.
(d) Except as otherwise provided to the contrary in this Article, Tenant
may provide and maintain any insurance required by this Lease by means of any
combination of primary and umbrella coverages and by endorsement and/or rider to
a separate or blanket policy and/or under a blanket policy in lieu of a separate
policy or policies, provided that Tenant shall deliver a certificate of
insurance of any said separate or blanket policies and/or endorsements and/or
riders evidencing to Landlord that the same complies in all respects with the
provisions of this Lease, and that the coverages thereunder and the protection
afforded Landlord thereunder are at least equal to the coverages and protection
which would be provided under a separate policy or polices procured solely for
the Demised Premises and Development Improvements. The certificates of such
policy or policies evidencing such coverages shall be delivered to the Landlord
on the Commencement Date and annually thereafter within thirty (30) days of each
anniversary date.
(e) Copies of all safety and accident prevention inspection reports
received from polices carried by Tenant which are required under this Article
shall be forwarded by the Tenant to Landlord upon receipt from the insurers. It
shall be the responsibility of the Tenant to meet all safety and accident
prevention requirements and reasonable recommendations described in each such
inspection report. Any such requirements or reasonable recommendations requiring
structural changes
49
and/or changes in machinery or equipment shall be effected in accordance without
the provisions of Article XII entitled "Alterations".
(f) All insurance required to be maintained by the Tenant pursuant to this
Article shall be at the sole expense of the Tenant. All references in this
Article to a "deductible" shall be deemed to mean a deductible and/or a
self-insured retention.
Section 1406.
It is agreed between the parties hereunto that the amounts of insurance in
this Agreement do not, in any way, limit the liability of the Tenant to the
Landlord by virtue of its promise to indemnify and hold harmless the Landlord
so that in the event that any claim results in a settlement or judgment in an
amount in excess of the amount of insurance coverage carried by the Tenant, the
Tenant shall be liable to the Landlord for the difference, plus all fees and
expenses incurred in collecting the same, subject to all of the terms and
conditions of Sections 1401 and 1402 hereof.
Section 1407. Anything contained in this Article XIV to the contrary
notwithstanding, the Landlord shall not take out separate insurance concurrent
in form or contributing in the event of loss with that specifically required to
be furnished by the Tenant to the Leasehold Mortgagee. The Landlord may at its
own cost and expense take out separate insurance which is not concurrent in form
or not contributing in the event of loss with that specifically required by CDA
or the Leasehold Mortgage to be furnished by the Tenant.
ARTICLE XV
CONDEMNATION AND CASUALTY
Section 1501. (a) If at any time during the term of this Lease Agreement
title and possession of the Development Land and/or the Development
50
Improvements, or a substantial portion of the Development Land and/or
Development Improvements, are acquired under the power of eminent domain by a
public authority, other than the Landlord, the Tenant and the Landlord shall
place with the Depository their respective shares of the condemnation award or
condemnation awards which shall be distributed in the following manner, and in
the following order of priority:
(i) First, to the CDA for principal and interest due under the CDA Loan in
such amounts as are then, or otherwise would be, payable thereunder as and to
the extent all payments due thereunder have, or had, been paid to the date of
taking;
(ii) second, to other Leasehold Mortgagees, if any, for principal and
interest due under any notes secured thereby to the date of such taking as and
to the extent that (x) the original principal balance of any such note did not
exceed eighty percent (80%) of the fair market value of Tenants' unencumbered
interests in the Demised Premises and Development Improvements upon execution of
said note or any amendments thereto (or upon the increase of principal due
thereunder), and (y) any principal and interest due under said note was fully
amortized in equal monthly installments over the life of the same;
(iii) Third, to the Landlord for any payments due to the Landlord from the
Tenant under the provisions of this Lease Agreement to the date of such taking;
and
(iv) The balance, if any, to the Tenant and the Landlord in the same ratio
as the then "fair market value" of Tenant's interests in the Development
Improvements and the Demised Premises so taken bears to the then "fair market
value" of the Landlord's interest in such property, recognizing that the Tenant
has borne the entire cost of the Development Improvements and the acquisition of
the Conrail Parcel but also that the Landlord bore the entire cost of the
acquisition of the HRA Parcel and that Tenant had the use of the Demised
Premises free of rent and real estate taxes other than for the Rent due
hereunder.
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(b) For the purposes of Subsection (a) and Section 1502 the term
"substantial portion" shall mean that immediately after the taking the remaining
Development Land and/or the Development Improvements are not reasonably usable
by the Tenant in Tenant's reasonable judgment for the same purposes that the
Tenant was using (or intending to use) the same immediately prior to such taking
and the Tenant elects to terminate this Lease agreement on notice given the
Landlord not more than ninety (90) days after the taking. A taking of any
portion of any building constructed upon the Demised Premises or a taking which
reduces the seating capacity of the Project to less than 27,000 shall be deemed
a substantial portion for purposes of this Article.
(c) For purposes of Subsection (a) the term "fair market value"
shall mean either (i) the fair market value ascribed to the Development Land and
the Development Improvements by the acquiring agency, or (ii) if the
condemnation award is appealed, the judicially determined fair market value of
the parties' interests in the Development Land and Development Improvements so
taken.
Section 1502. If at any time during the term of this Lease Agreement,
title and possession to less than the whole or less than a substantial portion
of the Development Land and/or Development Improvements shall be taken as
aforesaid or if the Tenant does not elect to terminate the Lease Agreement after
the taking described in Section 1501, subject to the right of any Leasehold
Mortgagees, the entire award shall be paid directly to Depository to be made
available to Tenant for the reasonable expenses incurred by Tenant in the
restoration of the Development Land and Development Improvements as set forth in
Exhibit D hereto, and, if Tenant so chooses, in the restoration or replacement
of the Development Improvements in accordance with Article XII, upon
certification by a qualified and independent architect or engineer in charge of
such restoration, that the expenses incurred either have been paid in connection
with the part of such restoration
52
theretofore, completed, or shall be due to contractors, subcontractors,
maintenance men, architects or other persons who have rendered services or have
furnished materials for such restoration. Any funds held by the Depository for
disbursement as aforesaid shall be applied only for the purpose of restoration
of the Development Land and the Development Improvements. Any compensation
required to be paid to the Depository for its services shall be paid or caused
to be paid by Tenant. If the cost of such restoration shall exceed the net
amount received by Depository, Tenant shall pay the deficiency. Any balance
remaining in the hands of the Depository after payment of such costs of
restoration, as aforesaid, shall be paid in the order or priority recited in
Subsection 1501(a).
Section 1503. Intentionally omitted.
Section 1504. Tenant further agrees that if at any time after the date
hereof, the whole or any part of the Development Land or Development
Improvements or Tenant's interest under this Lease Agreement be taken or
condemned by any competent authority other than the Landlord, for its or their
temporary use or occupancy, this Lease shall not terminate by reason thereof and
Tenant shall continue to pay, in the manner and at the time herein specified,
the full amount of any payments and other charges payable by Tenant hereunder
(to the extent it receives funds from the condemning authority), and, except
only to the extent that Tenant may be prevented from so doing pursuant to the
terms of the order of the condemning authority, to perform and observe all of
the other terms, covenants, conditions and obligations hereof upon the part of
Tenant to be performed and observed, as though such taking had not occurred. In
the event of any such taking as in this ,Section 1504 referred to, Tenant shall
be entitled to receive the entire amount of any award made for such taking as
and then only to the extent such taking occurs during the term hereof, whether
paid by way of damages,
53
rent or otherwise, subject to the rights of the holder or holders of any
Leasehold Mortgages and the rights of CDA.
Section 1505. Nothing contained in Section 1501, 1502, or 1503 shall be
construed as prohibiting or limiting the Tenant's right to challenge,
judicially, legislatively or administratively, attempts by any public authority,
including the Landlord, to acquire the Development Land or the Development
Improvements, or any portion or portions thereof; under the power of threat of
eminent domain or to appeal any condemnation award.
Section 1506.
(a) Except as provided in Section 1509 below, if, at any time during the
Term of this Lease the Development Improvements or any part thereof shall be
damaged or destroyed by fire or other casualty (including any casualty for which
insurance coverage was not obtained or obtainable) of any kind or nature,
ordinary or extraordinary, foreseen or unforeseen, Tenant, at Tenant's sole cost
and expense, and whether or not the insurance proceeds, if any, shall be
sufficient for the purpose, shall proceed with reasonable diligence (subject to
a reasonable time allowance for the purpose of adjusting such loss) to repair,
alter, restore, replace or rebuild the same as nearly as possible to its value,
condition and character immediately prior to such damage or destruction, subject
to such changes or alterations as Tenant may elect to make in conformity with
the provisions of Article XII hereof. Such repairs, alterations, restoration,
replacement or rebuilding, including such changes and alterations as
aforementioned and including temporary repairs or the protection of other
property pending the completion of any thereof, are sometimes referred to in
this Article as the "Work."
(b) Tenant shall commence the Work within a reasonable time after
settlement of any insurance claim in connection with any such damage or
54
destruction and thereafter diligently pursue the same (Unavoidable Delays
excepted).
(c) Except as otherwise provided in subparagraph (b) above, the conditions
under which any repairs, alterations, restoration, replacement or rebuilding
Work are to be performed and the method of proceeding with and performing the
same shall be governed by all of the provisions of this Lease.
Section 1507.
(a) All insurance money payable to Tenant on account of such damage or
destruction under the policies of insurance provided for in Article XIV hereof,
less the cost, if any, incurred in connection with the adjustment of the loss
and the collection thereof (herein sometimes referred to as the "insurance
proceeds"), shall be applied to the payment of the cost of the Work to the
extent such insurance proceeds shall be sufficient for the purpose, and shall be
paid out to or for the account of Tenant from time to time as and to the extent
such Work progresses. All insurance proceeds shall be paid over to the
Depository and held in trust for the purposes of paying the cost of the Work.
Landlord agrees that if its named in a draft or check representing payment of a
portion of the insurance proceeds, Landlord will promptly endorse and deliver
such check or draft to the Depository.
(b) Upon receipt by the Depository of evidence reasonably satisfactory to
Landlord that the Work has been completed and paid for in full and that there
are no liens on the Demised Premises as a result thereof, the Depository shall
pay to Tenant any remaining balance of said insurance proceeds. If the insurance
proceeds shall be insufficient to pay the entire cost of the Work, Tenant shall
supply the amount of any such deficiency.
Section 1508. In no event shall Tenant be entitled to any abatement,
allowance, reduction or suspension of Rent because part of all of the Demised
Premises and/or Development Improvements shall be untenantable owing to the
55
partial or total destruction thereof; and anything herein to the contrary
notwithstanding, no such damage or destruction shall affect in any way the
obligation of Tenant to pay the Rent and other charges herein reserved or
required to be paid, nor release Tenant of or from any obligation imposed upon
Tenant under this Lease.
Section 1509.
(a) If the Development Improvements shall be damaged or destroyed by fire
or other casualty to the extent of more than fifty (50%) percent of their Full
Replacement Cost, Tenant shall have the option (to be exercised within one
hundred eighty (180) days after the date of such damage or destruction) to
notify Landlord that Tenant elects to cancel and terminate this Lease and Tenant
shall be under no obligation in said event to repair or restore the Development
Improvements, providing, however, that any actions and causes of action and
other rights and remedies accruing prior to such termination shall survive the
same.
(b) In the event of a termination of the Lease, following such damage or
destruction, Tenant shall cooperate with Landlord in obtaining any and all
insurance proceeds which may be due in respect thereof; all of which insurance
proceeds shall be paid to the Depository and then disbursed, first to cover
costs which would have to be incurred to clear the site (whether or not the site
is so cleared) and then in the same manner as otherwise set forth in Section
1501 above.
Section 1510. Anything contained in this Article to the contrary
notwithstanding, provided that Tenant shall not be in default of the obligations
of Tenant to pay the Rent and other charges herein reserved or required to be
paid and any other obligation imposed upon Tenant under this Lease, Tenant shall
not be deemed to be in default of this Lease for failing or delaying to repair,
alter, restore, replace or rebuild all or any portion of the Development
Improvements if Tenant's
56
failure or delay primarily either results from or is occasioned by the acts or
omissions of Landlord as "landlord" hereunder.
Section 1511.
Except as otherwise provided in Sections 1501 and 1509 above, Landlord and
Tenant acknowledge that to the extent any taking or casualty covered by this
Article reduces or eliminates Admission Receipts, Food and Beverage Revenue or
Merchandise Revenue, PILOT shall and will be appropriately reduced as, but then
only to the extent, any amounts received by Tenant for such taking and by way of
business interruption insurance do not fairly compensate Tenant for the loss
thereof.
ARTICLE XVI
QUIET ENJOYMENT
Section 1601. Landlord covenants and agrees that Tenant, upon paying the
Rent, and performing and observing the covenants, conditions and agreements
hereof upon the part of Tenant to be performed and observed, shall and may
peaceably hold and enjoy the said Demised Premises and the Development
Improvements during the term and any extensions hereof; subject, however, to the
terms of this Lease Agreement This covenant shall be construed as running with
the Development Land to and against subsequent owners and successors in
interest. This covenant shall in no way limit or restrict the Landlord's actions
in furtherance of its duties, rights and responsibilities as the municipality
within which the Demised Premises are located.
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LIMITATION OF LIABILITY
Section 1701. Notwithstanding anything contained to the contrary in this
Lease Agreement, it is agreed with respect to Tenant and its successors that,
except in the case of bad faith, fraud or gross negligence tantamount to bad
faith or fraud, Landlord will look only to Tenant's interest in and to the
Demised Premises and the Development Improvements and any subleases with respect
thereto for the collection of any judgment (or other judicial process) requiring
the payment of money by Tenant in the event of a breach or default under this
Lease Agreement by Tenant, and no other property or assets of Tenant, its
partners, stockholders, officers, directors or beneficiaries, any partners or
any partner of Tenant or any stockholders of any partner of Tenant shall be
subject to levy, execution or other enforcement procedures for the satisfaction
of any such judgment (or other judicial process).
Section 1702. Notwithstanding anything contained to the contrary in this
Lease Agreement, it is agreed with respect to Landlord and its successors that
Tenant will look only to Landlord's interest in and to the Demised Premises for
the collection of any judgment (or other judicial process) requiring the payment
of money by Landlord in the event of a breach or default under this Lease
Agreement by Landlord, and no other property or assets of Landlord its
beneficiaries shall be subject to levy, execution or other enforcement
procedures for the satisfaction of any such judgment (or other judicial
process).
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ARTICLE XVIII
ASSIGNMENT AND SUBLETTING
Section 1801. Tenant shall not sell, assign, convey or otherwise transfer
(hereinafter "assign") all or any portion of its interests in this Lease
Agreement or the estate created hereby except as otherwise provided in this
Article. Tenant may assign such interests under any one or more of the following
circumstances, subject to any prior approval required by CDA or any Leasehold
Mortgage:
(i) when such assignment is made to any parent company or wholly
owned subsidiary of any such company or any company of which either of said
entities hold at least fifty-one percent of any and all common stock
outstanding;
(ii) in order to secure Tenant's obligations under the CDA Loan or
otherwise in the context of a Leasehold Mortgage given to a Leasehold Mortgagee
as collateral for a debt secured thereby;
(iii) where the assign(ees) are persons (or business entities which
are owned and controlled by persons) of good reputation and character who
themselves (or whose contractors or employees who shall be responsible for
managing the Project) have at least ten (10) years experience in the promotion
of commercial live entertainment events; or
(iv) when otherwise approved by the Landlord, which approval shall
not be unreasonably withheld or delayed.
(v) The respective interests of Nederlander of Connecticut and
Connecticut Amphitheater Development Corporation in Tenant may be transferred
between Nederlander of Connecticut and Connecticut Amphitheater Development
Corporation, and Nederlander of Connecticut and Connecticut Amphitheater
Development Corporation may transfer their interests in the Tenant to any
affiliated
59
entities or to other stockholders of Nederlander of Connecticut and Connecticut
Amphitheater Development Corporation. Nothing herein, however, shall prevent the
stockholders of Nederlander of Connecticut and Connecticut Amphitheater
Development Corporation from transferring their respective interests in
Nederlander of Connecticut and Connecticut Amphitheater Development Corporation
to immediate members of their respective families, which shall include spouses,
children and spouses of children, grandchildren and/or siblings or to any trusts
for the benefit of any of the foregoing individuals.
For the purposes of this Article, the term assignment shall include any
sale, pledge or other transfer of any interest in Tenant or any entity having an
interest therein, directly or indirectly, which could result in the de jure or
de facto transfer of control and/or ownership of any such entity. Tenant shall
remain fully obligated to perform any and all of the obligations of Tenant
herein to be performed in the event of any assignment or purported assignment of
any of Tenant's interest in or created by this Lease Agreement, unless, and then
only to the extent, any assignment is effected pursuant to any one of (i)
through (iv) above and Tenant's assignee(s) assume all of the obligations of
Tenant hereunder, in which case, Tenant shall thereupon be relived of such
obligations as arise after the date such assignment is effected.
Section 1802. Tenant shall have the right to sublease all or any part of
the Development Land and the Development Improvements or grant licenses and/or
concession agreements subject to any approval required under any Leasehold
Mortgage, if applicable; provided that the term of any such sublease(s),
licenses and/or concessions shall not extend beyond the term hereof, including
Extension Periods, if, as and when exercised, and shall be only for the use as
set forth in Article III hereof; and, provided, further, that any such sublease,
License or
60
concession agreement does not constitute or have the effect of constituting an
assignment of any of Tenant's interests in this Lease or the estate created
hereby.
ARTICLE XIX
BROKERAGE
Section 1901. The parties each represent and warrant to the other that
neither has dealt with any broker in the negotiation of this Lease Agreement and
that there is no broker who is or may be entitled to be paid a commission in
connection with this Lease Agreement.
ARTICLE XX
ESTOPPEL CERTIFICATES
Section 2201. Landlord and Tenant each agree at any time and from time to
time, upon not less than twenty (20) days prior request by the other party or by
any Leasehold Mortgagee, or CDA, to execute, acknowledge and deliver to the
other party or such Leasehold Mortgagee, or CDA, as the case may be, a statement
in writing certifying that this Lease Agreement is unmodified and in full force
and effect (or if there have been modifications), and the date to which the
PILOT, Rent, and other charges have been paid in advance, if any, and stating
whether or not to the knowledge of the signer of such certificate there is any
existing default under this Lease Agreement on the part of the other party
thereto and, if so, specifying each such default, it being intended that any
such statement delivered pursuant to this Section may be relied upon by any
prospective purchase, assignee, Leasehold Mortgagee or CDA, as well as the
assignee or prospective assignee or any Leasehold Mortgagee or CDA, as the case
may be.
61
ARTICLE XXI
SEVERABILITY
Section 2101. If any term or provision of this Lease Agreement or the
application thereof to any Person or circumstance, shall to any extent be
invalid or unenforceable, the remainder of this Lease Agreement or the
application of such term or provision to Persons or circumstances other than
those to which it is invalid or unenforceable, shall not be affected thereby,
and each term and provision of this Lease Agreement shall be valid and be
enforced to the fullest extent permitted by law.
ARTICLE XXII
NON-MERGER
Section 2201. There shall be no merger of this Lease Agreement, or of the
leasehold estate created by this Lease Agreement with the fee estate in the
Demised Premises by reason of the fact that this Lease Agreement or the
leasehold estate created by this Lease Agreement or any interest in this Lease
Agreement or any such leasehold estate may be held, directly or indirectly, by
or for the account of any Person or Persons who shall own the fee estate, and no
such merger shall occur unless and until all Persons (including Leasehold
Mortgagees) having an interest in this Lease Agreement or in the leasehold
estate created by this Lease Agreement shall join in a written instrument
effecting such merger and shall duly record the same.
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ARTICLE XXIII
SURRENDER
Section 2301. Tenant shall, upon the expiration or sooner termination of
this Lease Agreement for any reason whatsoever, surrender to Landlord the
Demised Premises, and Development Improvements in such condition and repair as
Tenant is required to maintain same therein by the terms of this Lease
Agreement, and title to the Development Improvements shall pass automatically to
the Landlord, and Tenant shall have no claim for compensation against the
Landlord for the Development Improvements.
ARTICLE XXIV
UNAVOIDABLE DELAYS
Section 2401. The time within which Tenant is required to perform any of
the terms and conditions of this Lease Agreement on its part to be performed
shall at all times be subject to a reasonable extension in the event of
occurrence of Unavoidable Delays.
ARTICLE XXV
APPROVALS, NOTICES, ETC.
Section 2501.
(a) Except as otherwise specifically provided in this Lease Agreement,
whenever under this Lease Agreement approvals, authorizations, determinations,
satisfactions, waivers or notices shall be effective and valid only when given
in writing signed by a duly authorized officer of the Landlord or the Tenant,
and sent
63
by U.S. Mail, registered or certified postage prepaid, or overnight courier, to
the principal office of the party to whom it is directed, which are as follows:
Tenant Connecticut Performing Arts Partners
c/o Nederlander Organization
00 Xxxx Xxxxxx Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
with a copy to:
Nederlander Organization
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxxxx
with a copy to:
Connecticut Performing Arts Partners
c/o Sandler & Daniells, P.C.
Xxx Xxxxxxxx Xxxxxx Xxxx - Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Landlord City Manager
City of Hartford
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
with a copy to:
Corporation Counsel
City of Hartford
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
(b) The Parties shall promptly notify each other of any change in their
respective addresses set forth above.
64
(c) Notices which are served upon Landlord or Tenant in the manner
aforesaid, shall be deemed to have been dated, given or served for all purposes
hereunder on the earlier of the date of actual delivery or the second business
day next following the date of mailing.
ARTICLE XXVI
APPROVALS NOT UNREASONABLY WITHHELD
Section 2601. Any approval, consent or permission of Landlord or Tenant
required under this Lease Agreement shall not be unreasonably withheld,
conditioned or delayed.
Section 2602. All powers granted to or retained by the Landlord hereby
shall be exercised by the City Manager or her successor as chief executive
officer of the City of Hartford.
ARTICLE XXVII
ACCESS TO PREMISES
Section 2701. Tenant shall permit Landlord and the authorized
representatives of Landlord to enter the Demised Premises and Development
Improvements at all reasonable times to inspect the same, to exhibit the same to
prospective purchasers and prospective tenants of the Demised Premises and
Development Improvements.
65
ARTICLE XXVIII
NOTICE OR SHORT FORM OF LEASE
Section 2801. Upon request of either party, Landlord and Tenant agree to
execute, acknowledge, and deliver to each other recordable originals or
recordable notices of this Lease Agreement, and upon request of either party a
notice, short form or duplicate original of any modification of this Lease
Agreement, all in recordable form and containing the information required by law
or practice for recording same so as to give notice of the provisions of this
Lease Agreement and/or said modification.
ARTICLE XXIX
APPLICABLE LAW
Section 2901. This Lease Agreement shall be governed by and construed in
accordance with the Laws of Connecticut, without aid of any presumption or canon
requiring construction against the party causing the same to be prepared.
ARTICLE XXX
HEADINGS
Section 3001. The index and headings of this Lease Agreement are for
convenience and reference only, and in no way define, limit or describe the
scope or intent of this Lease Agreement no in any way affect this Lease
Agreement.
66
ARTICLE XXXI
ENTIRE AGREEMENT
Section 3101. This instrument except as otherwise provided herein,
constitutes the entire agreement between the parties with respect to the subject
matter hereof, and there are no verbal or collateral understandings, agreements,
representations or warranties not expressly set forth herein.
ARTICLE XXXII
COVENANTS BINDING ON RESPECTIVE PARTIES
Section 3201. The covenants, conditions and agreements contained in this
Lease Agreement shall bind and inure to the benefit of Landlord and Tenants, and
their respective beneficiaries, heirs, distributes, executors, administrators,
and successors and assigns.
ARTICLE XXXIII
REMEDIES CUMULATIVE
Section 3301. The specified remedies to which the parties hereto may
resort under the terms of this Lease Agreement are cumulative and are not
intended to be exclusive of any other remedies or means of redress to which the
parties hereto may be lawfully entitled in case of any breach or threatened
breach by the other party hereto of any provision of this Lease.
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ARTICLE XXXIV
NO ORAL CHANGE
Section 3401. This Lease Agreement may not be changed orally but only by
an agreement in writing signed by the party against whom enforcement of the
change, modification or discharge is sought
ARTICLE XXXV
RECOGNITION AND NON-DISTURBANCE
Section 3501. From time to time, at the request of Tenant or any
subtenant, and after review and approval of any lease, oral or written, by
Landlord's Corporation Counsel, Landlord shall execute and deliver to any
subtenant an agreement (in form and substance satisfactory to Landlord's
Corporation Counsel) whereby Landlord agrees that the use and occupancy of any
such subtenant shall not be disturbed or interfered with by Landlord
notwithstanding the termination of this Lease Agreement by reason of default of
Tenant. The foregoing agreement shall not apply in the event the CDA shall
become the tenant under this Agreement for a new lease. Subtenants will attorn
to the Landlord or CDA with respect to such subtenant's sublease, but without
thereby assuming liability for any defaults of Tenant with respect hereto,
provided however that any default by Tenant under the First Source Agreement
(together with the "Work for Tomorrow" Program) shall give Landlord only the
remedies provided for therein, and in no event shall any default under such
Agreement or this Article be deemed to be a default under this Lease or give
rise to any right in Landlord to terminate this Lease.
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ARTICLE XXXVI
WORK FOR TOMORROW PROGRAM
Section 3601. As a condition of this Lease, Tenant agrees that, during the
term hereof; it shall implement an employment opportunity program for the
benefit of high school students in the Hartford area, designated the "Work for
Tomorrow" Program, and shall otherwise hire city residents and utilize MBE/WBE
enterprises in the operation of the Project in the manner set forth in the First
Source Employment and Purveyor Agreement set forth in Exhibit F attached hereto
and hereby made a part hereof
ARTICLE XXXVII
AFFIRMATIVE ACTION REQUIREMENT
Section 3701. During the term of this Lease Agreement, the Tenant agrees
to abide by all applicable federal, state and municipal laws, statutes,
ordinances, resolutions, regulations, or rules concerning affirmative action and
nondiscrimination and will not permit discrimination against any person or group
of persons on the grounds of race, color, religion, creed, age beyond 14 years,
national origin, physical or mental handicap (except in the case of a bona fide
occupational qualification and in accordance with all applicable laws and
regulations), sexual preference, ancestry or sect. The Tenant shall insure that
no less than fifteen percent (15%) of the total number of construction employees
by trade be minority tradeworkers and that no less than fifteen percent (15%)
of the total project construction dollars be contracted to bona fide minority
and/or female-owned contractors.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
to be executed in multiple copies (each of said copies being deemed to be an
original) on the day and year first above written.
WITNESS CONNECTICUT PERFORMING ARTS PARTNERS
By Nederlander of Connecticut, Inc.
/s/ Xxxxxx X. Xxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxx
/s/ Gay X. Xxxx By /s/ Xxxxxx X. Xxxxxxxxxxx
----------------------------- --------------------------------------
Gay X. Xxxx Its President
By Connecticut Amphitheater Development
Corp., Inc.
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxxx
/s/ Gay X. Xxxx By /s/ Xxxxx Xxxxxx
----------------------------- --------------------------------------
Gay X. Xxxx Its President
CITY OF HARTFORD
/s/ Xxxxx X. Xxxxxxx
-----------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxx By /s/ Xxxxxxx Xxx Xxxxxx
----------------------------- --------------------------------------
Xxxx X. Xxxxx
Approved as to form and legality
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Acting Corporation Counsel
70
STATE OF CONNECTICUT
) ss.
COUNTY OF HARTFORD
On this 19th day of October, 1994, before me appeared Xxxxxxx Xxx Xxxxxx,
known to me to be the person whose name is subscribed to the within instrument;
that she is the City Manager of the City of Hartford, and acknowledged that she
executed the same for the purposes therein contained as the free act and deed of
the City of Hartford, and of herself as the City Manager thereof.
/s/ Xxxx X. Xxxxx
-----------------------------------------
Commissioner of the Superior Court
STATE OF CONNECTICUT
) ss.
COUNTY OF
On this 19th day of October, 1994, before me appeared __________________,
known to me to be the person whose name is subscribed to the within instrument;
that he/she is the ______________ of _____________________, and acknowledged
that he executed the same for the purposes therein contained as the free act and
deed of Connecticut Performing Arts Partners, and of himself as a duly
authorized ______________thereof.
/s/ Xxxxxxx Xxxx
-----------------------------------------
Commissioner of the Superior Court
Notary Public
My Commission Expires:
XXXXXXX XXXX
NOTARY PUBLIC State of New York
No. 00-0000000
Qualified in Queens County
Commission Expires July 31, 1996.
STATE OF CONNECTICUT
) ss.
COUNTY OF
On this ______ day of ___________, 1994, before me appeared
___________________, known to me to be the person whose name is subscribed to
the within instrument; that he/she is the of
71
___________________, and acknowledged that he executed the same for the purposes
therein contained as the free act and deed of Connecticut Performing Arts
Partners, and of himself as a duly authorized ___________ thereof.
-----------------------------------------
Commissioner of the Superior Court
Notary Public
My Commission Expires:
