FIRST AMENDMENT TO LEASE AGREEMENT
[Camden Amphitheater]
THIS FIRST AMENDMENT TO LEASE AGREEMENT ("Amendment") is executed and
entered into effective as of this 11th day of March, 1994, by and between NEW
JERSEY ECONOMIC DEVELOPMENT AUTHORITY ("Landlord"), a public body corporate and
politic duly organized under the laws of the State of New Jersey, and SONY
MUSIC/PACE PARTNERSHIP ("Tenant"), a New York general partnership.
R E C I T A L S:
A. Landlord and Tenant have executed and entered into that certain Lease
Agreement ("Lease") dated February 9, 1994, pursuant to which Landlord agreed to
demise, lease and rent to the Tenant, upon the terms, conditions and provisions
contained therein, a certain tract of land located in Camden, New Jersey end
bounded on the north by Xxxxxxx Park, on the west by the Delaware River, on the
east by Delaware Avenue, and on the south by Clinton Street (extended).
B. Landlord and Tenant desire to amend certain provisions contained in the
Lease as more fully set forth below:
AMENDMENT
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the parties hereto do hereby agree as follows:
Section 1. Defined Terms. All capitalized terms used herein which are not
specifically defined pursuant to the provisions hereof shall have the respective
meanings assigned pursuant to the provisions of the Lease.
Section 2. Changes Relating to the Surcharge Revenue. In order to clarify
the obligations of the Tenant in respect of the Surcharge Revenue, the following
revisions to the Lease are hereby made:
2.1 Clause (a) of Section 304 of the Lease is hereby deleted in
its entirety and replaced with the following:
(a) The Tenant shall charge and collect the per ticket
surcharge in the amounts and in the years indicated in
the column headed "Projected Surcharge Per Ticket" in
Exhibit H attached hereto and made a part hereof;
provided, however, that the Tenant shall not be required
or obligated to charge or collect any per ticket
surcharge until the ninth (9th) Lease Year. The per
ticket surcharge shall not apply to (i) complimentary
tickets or other unpaid passes for admission to the
Amphitheater, unless the Tenant receives in exchange for
the distribution of such complimentary tickets or other
unpaid passes specific goods or services other than
advertising time or space; (ii) any and all tickets for
Special Events; (iii) any and all tickets for a
performance or show for which the price of admission is
$5.00 or less (such amount to be increased each year
proportionately with increases in the CPI Index). To
avoid any uncertainty or ambiguity, it is hereby
acknowledged and agreed that the information contained
in Exhibit "H," other than the column headed "Projected
Surcharge Revenue Per Ticket," is based upon projected
attendance levels at the Amphitheater and no
representation, warranty or covenant shall be deemed to
have been made by any party hereto that such projections
will be fulfilled.
2.2 Clause (iii) of Section 502(g) of the Lease is hereby deleted
in its entirety and replaced with the following:
(iii) If the Tenant should exercise its option contained and
described in clause (ii) of this Section 502(g) to
construct the Amphitheater as a Summer Facility, then
the parties hereto shall immediately thereafter (A) each
execute and deliver to the other a First Amendment to
Lease in the form attached hereto as Exhibit "L-1" and
(B) each negotiate in good faith with the other to
revise the per ticket surcharge amounts specified in
Exhibit "H" attached hereto to attempt to provide
similar projected levels of revenues from the Surcharge
Revenue notwithstanding that fewer shows will be
presented at the Amphitheater as a result of there being
no Enclosed Season; provided, however, that failure to
reach an agreement as to how the per ticket surcharge
amounts specified in Exhibit "H" are to be so revised
shall not, in any way, effect the continuing
effectiveness of this Lease, the continuing obligations
of the parties hereunder (including the Tenant's
obligation to charge and collect the per ticket
surcharge pursuant to the provisions of Section 304
hereof in the amounts and in the years specified in the
column headed "Projected Surcharge Per Ticket" in
Exhibit "H" attached hereto) or the effectiveness of the
Tenant's exercise of the option contained and described
in clause (ii) of this Section 502(g).
2
Section 3. Effective Date of Lease. Notwithstanding anything to the
contrary contained in the Lease, it is hereby specifically agreed, acknowledged
and stipulated by and between the Landlord and the Tenant that, for all purposes
of the Lease (including, without limitation, the provisions of Section 404(g)(i)
and Section 404(i) of the Lease), "the date of the Lease" shall be deemed to be
March 11, 1994.
Section 4. Changes Related to Deadlines for the Conditions Precedent.
Section 404 of the Lease is hereby revised as follows:
4.1 The reference to "February 28, 1994" appearing in Section
404(c) of the Lease is hereby deleted and replaced with a
reference "March 31, 1994."
4.2 The reference to "February 28, 1994" appearing in Section
404(e)(i) of the Lease is hereby deleted and replaced with a
reference to "March 31, 1994."
4.3 The reference to "March 30, 1994" appearing in Section
404(e)(ii) of the Lease is hereby deleted and replaced with a
reference to "April 15, 1994."
4.4 The reference to "February 28, 1994" appearing in Section
404(a)(iii) of the Lease is hereby deleted and replaced with a
reference to "March 31, 1994."
4.5 The reference to "February 15, 1994" appearing in Section
404(f) of the Lease is hereby deleted and replaced with a
reference to "March 31, 1994."
4.6 The reference to "February 28, 1994" appearing in Section
404(g)(ii) of the Lease is hereby deleted and replaced with a
reference to "March 31, 1994."
4.7 The reference to "February 28, 1994" appearing in Section
404(h) of the Lease is hereby deleted and replaced with a
reference to "March 31, 1994."
4.8 The reference to "February 15, 1994" appearing in Section
404(i) of the Lease is hereby deleted and replaced with a
reference to "March 31, 1994."
4.9 The reference to "February 28, 1994" appearing in Section
404(k) of the Lease is hereby deleted and replaced with a
reference to "March 31, 1994."
3
4.10 The reference to "February 28, 1994" appearing in Section
404(i) of the Lease is hereby deleted and replaced with a
reference to "March 31, 1994."
4.11 The reference to "February 28, 1994" appearing in Section
404(m)(i) of the Lease is hereby deleted and replaced with a
reference to "March 31, 1994."
4.12 The reference to "February 28, 1994" appearing in Section
404(n) of the Lease is hereby deleted and replaced with a
reference to "March 31, 1994."
4.13 The last sentence of Section 404(o)(i) of the Lease is hereby
deleted and replaced with the following:
"If the condition contained in this clause (o)(i) is not
satisfied on or before March 31, 1994, then the Tenant
may terminate this Lease at any time between April
1, 1994 and April 15, 1994, inclusive."
4.14 The reference to "February 15, 1994" appearing in Section
404(o)(ii) of the Lease is hereby deleted and replaced to a
reference to "March 31, 1994."
Section 5. Changes to Certain Insurance Provisions. Article IX of the
Lease is hereby amended as follows:
5.1 The reference to "a Best financial size rating of not less
than XII" appearing at the end of the first sentence in
Section 901(d) of the Lease is hereby deleted and replaced
with a reference to "a Best financial size rating of not less
than X."
5.2 Section 902(b) of the Lease is hereby deleted in its entirety
and replaced with the following:
(b) The general liability policy shall include the Landlord
and the Trustee as additional insureds. The Tenant also
shall require all vendors or other providers of liquor
to provide an insurance policy covering liquor liability
with the Landlord and the Trustee named as additional
insureds. Said policy or policies shall provide for
indemnification of said parties against liability for
damages for bodily and personal injury, death or
property damage occasioned by the operation or ownership
of the Amphitheater and the Premises. The Tenant's
general liability
4
policy or policies shall provide coverage for minimum
combined liability limits of $50,000,000 for bodily
injury liability and for property damage liability;
provided, however, if such minimum liability limits are
not obtainable by the Tenant for commercially reasonably
rates, than the minimum liability limits shall be
reduced to the greater of (i) $30,000,000 or (ii) the
maximum liability limit which may be obtained by the
Tenant at commercially reasonable rates. The forgoing
limits may be obtained through the General Liability
Policy or a combination of General Liability and Excess
or Umbrella Liability. The Net Proceeds of such
liability insurance shall be applied toward
extinguishment or satisfaction of the liability with
respect to which the Net Proceeds of such insurance
shall have been paid.
5.3 The phrase "direct or contingent loss or" appearing in the
second sentence of Section 903 of the Lease is hereby deleted.
5.4 The phrase "and all subcontractors employed by the Tenant"
appearing in the fourth sentence of Section 904 of the Lease
is hereby deleted.
5.5 The phrase "of its own" is hereby inserted in the first
sentence of Section 905(a) of the Lease following the words
"insurance covering all" and prior to the words "employees on,
in, near or about the Project."
5.6 Clause (ii) of Section 906(c) of the Lease is hereby deleted.
5.7 The phrase "joint agreement" appearing in Section 906(d) is
hereby deleted and replaced with the clause "joint loss
adjustment clause."
5.8 Section 907 of the Lease is hereby deleted in its entirety and
replaced with the following:
Insurance Provisions for Sublessee, Permitee and Licensee. The
Tenant shall not permit any sublessee, permittee or licensee
of the Amphitheater access to the Amphitheater without first
having a certificate of insurance delivered to the Tenant for
Commercial General Liability Insurance with a limit of at
least $1,000,000.00 combined single limit bodily injury and
property damage liability, personal injury liability, and
coverage for all acts and omissions of any agents or
performers and any contractors or subcontractors retained by
such sublessee, permittee or licensee. The policies shall
5
name the Landlord, the Trustee and the Tenant as additional
insureds. The Tenant shall require that each such sublessee,
permittee, and/or licensee provide evidence to the Tenant, the
Trustee and the Landlord of Workers Compensation Insurance for
any obligations with respect to the statutory obligation of
the New Jersey Workers Compensation and Occupational Disease
Laws.
5.9 The phrase "self-insured retention" appearing in Section 909
is hereby deleted and replaced with the word "policy."
5.10 The word "reasonably" is hereby inserted in the penultimate
sentence of Section 913 of the Lease after the words
"Authorized Representative of the Tenant" and prior to the
words "satisfactory to the Trustee and the Landlord."
6. Effectiveness of Tenant's Joinder in the Lease. Notwithstanding
anything to the contrary contained in the Lease, by execution of this Amendment
simultaneously with the execution of the Lease, Tenant hereby advises Landlord
that its execution and delivery of the Lease shall not be or become effective or
binding upon Tenant unless and until Landlord has executed and delivered to
Tenant an original counterpart of this Amendment.
WITNESS the execution hereof effective as of the date and year first above
written.
ATTEST: NEW JERSEY ECONOMIC DEVELOPMENT
[SEAL] AUTHORITY, the Landlord
By:
-------------------------------- ------------------------------------
Secretary Executive Director
WITNESS: SONY MUSIC/PACE PARTNERSHIP, a New
York general partnership, the Tenant
By: SM/PACE, Inc., its general partner
/s/ [ILLEGIBLE] By: /s/ B.E. Xxxxxx
-------------------------------- -------------------------------
Secretary Name: B.E. Xxxxxx
Title: President
6
