FOURTH AMENDMENT TO LEASE AGREEMENT
(Camden Amphitheater)
THIS FOURTH AMENDMENT TO LEASE AGREEMENT ("4th Amendment") is executed and
entered into effective as of the 11th day of March, 1997, by and between the NEW
JERSEY ECONOMIC DEVELOPMENT AUTHORITY ("Landlord"), a public body corporate and
politic duly organized under the laws of the State of New Jersey, and PAVILION
PARTNERS (f/k/a Sony Music/PACE Partnership) ("Tenant"), a Delaware general
partnership.
1. Reference is made to that certain Lease Agreement (as previously
amended, herein called the "Lease Agreement") dated February 9, 1994 and entered
into by and between Landlord and Tenant relating to the lease of certain real
property located in Camden, County, New Jersey ("Leasehold Tract") as more fully
described therein for purposes of the construction and subsequent operation of
an outdoor entertainment facility ("Amphitheater") thereon. Pursuant to Section
502 of the Lease Agreement, Tenant was obligated to execute and enter into a
construction contract for purposes of constructing the Amphitheater on the
Leasehold Tract in the manner provided for therein (the "Construction Contract
Obligation"). As a result of a failure to reach agreement on certain provisions
to be included in the construction contract with its general contractor, Xxxxxx
Construction Company ("Xxxxxx"), Tenant never executed or entered into a
construction contract with Xxxxxx for construction of the Amphitheater. Landlord
does hereby release Tenant from the requirement to enter into the agreement;
however, Tenant
does hereby agree to defend, indemnify and hold harmless Landlord from and
against any costs, expenses, losses or damages (including reasonable attorneys'
fees and costs of defense) arising out of claims asserted against Landlord by
third parties (including Xxxxxx and Xxxxxx'x subcontractors) which (i) exist by
reason or Tenant's failure to satisfy and fulfill the Construction Contract
Obligation or (ii) Landlord would have been indemnified for or released from had
Tenant satisfied and fulfilled the Construction Contract Obligation, including
releases for any liability that Landlord would have received if the attached
releases had been delivered to Landlord by Xxxxxx.
2. Except for the possibility that Landlord may have claims asserted
against it with respect to certain damage to the monitoring xxxxx located on the
Leasehold Tract, which claims could potentially be covered by the
indemnification provisions set forth in Paragraph 1 of this Fourth Amendment to
Lease Agreement, Landlord is not aware, to the best of its current knowledge, of
any fact, circumstance or event which could give rise to a right to
indemnification pursuant to the provisions set forth in Paragraph 1 hereof.
3. Reference is made to the fact that Section 503 of the Lease obligated
Tenant to obtain a completion and payment bond in connection with the original
construction of the Amphitheater (the "Surety Obligation"). Tenant acknowledges
that it failed to comply with the Surety Obligation. Landlord does hereby
release Tenant from fulfilling and performing the Surety Obligation; however,
Tenant agrees that it will indemnify and hold Landlord harmless from and against
any and all liabilities, penalties,
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damages, claims costs, charges and expenses, including, without limitation,
court costs and reasonable attorneys' fees which may be imposed upon, incurred
by or asserted against Landlord arising out of or relating to Tenant's failure
to comply with the Surety Obligation.
4. Tenant shall provide an affidavit executed by an Authorized Officer of
Tenant stating the amount of the Hard Cost of the Project. The affidavit will be
accompanied by such documentation as may be necessary to demonstrate such Hard
Cost.
5. a. Within 90 days of the close of each operating year, Tenant shall:
(i) deliver a statement to the Landlord from an independent
Certified Public Accountant or other independent third party
acceptable to the Landlord certifying with respect to the
preceding operating year gross receipts received from Ticket
Sales and the number of complimentary tickets distributed and
used;
(ii) submit a statement notifying the Landlord of any syndication
of partnership interests in Tenant that occurred during the
preceding operating year or, if no syndication has occurred, a
statement to that effect;
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(iii) cause one of Tenant's in-house certified public accountants to
provide a statement stating whether the Amphitheater is a
going concern as operated;
(b) After the tenth Lease Year, the statement referenced in
paragraph 5(a)(i) shall also include the following:
(i) the number of tickets subject to the imposition of the Ticket
Surcharge;
(ii) the amount of Ticket Surcharge applied to each eligible ticket
during the preceding operating year;
(iii) aggregate amount of Ticket Surcharge collected and remitted to
Landlord attributable to the preceding operating year;
(c) Landlord will reimburse Tenant for any reasonable out-of-pocket
costs or expenses incurred or paid by it in satisfying the obligations set forth
in paragraph 5(a)(i) hereof (as modified by paragraph 5(b) hereof.).
ATTEST: NEW JERSEY ECONOMIC
DEVELOPMENT AUTHORITY,
(Seal) the Landlord
/s/ [ILLEGIBLE] /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Executive Director
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WITNESS: PAVILION PARTNERS, a Delaware
general partnership, the Tenant
By: SM/PACE, Inc., its general partner
/s/ [ILLEGIBLE] /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Chief Executive Officer
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