NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY LETTERHEAD
April 28, 1995
Pavilion Partners
c/o SM/PACE, Inc.
000 Xxxx Xxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
South Jersey Performing Arts Center, Inc.
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Gentlemen:
This letter sets forth the agreement among the New Jersey Economic
Development Authority ("Landlord"), Pavilion Partners (f/k/a Sony Music/PACE
Partnership) ("Pavilion") and South Jersey Performing Arts Center, Inc.
("SJPAC") with respect to the joint use and operation by Pavilion and SJPAC of
that certain entertainment musical facility ("Amphitheater") currently being
constructed by Pavilion on that certain tract or parcel of land located in the
City of Camden, County of Camden, New Jersey, containing approximately 13.445
acres and being designated as Lot 11.01, Block 139 on that certain Preliminary
and Final Resubdivision Plan dated September 21, 1994, a copy of which was filed
with the City of Camden Planning Board, approved on November 22, 1994 and
memorialized by resolution of the Board on December 13, 1994. The rights and
obligations of the Landlord and Pavilion in regard to the Amphitheater are set
forth in a certain Lease Agreement ("Original Lease") dated February 9, 1994, by
and between the Landlord and Pavilion, as such Lease Agreement has been amended
by (i) that certain First Amendment to Lease Agreement dated March 11, 1994 (ii)
that certain Third Amendment to Lease Agreement dated effective as of September
___, 1994 and (iii) that certain Three Way Agreement Regarding Amphitheater
Waterfront Development and Use Including Amendments to Camden Amphitheater Lease
dated effective as of February 23, 1995 (as amended, the Original Lease is
herein called the "Pavilion Lease"). XXXXX and the Landlord have executed of
even date herewith a Lease Agreement ("SJPAC Lease") pursuant to which SJPAC
shall be granted a right to use and occupy the Amphitheater during a portion of
the Enclosed Season (herein defined) upon terms and conditions which are
consistent with the provisions contained in this letter. This letter, among
other things, sets forth certain agreements which will govern the competing
rights of use and occupancy of the Amphitheater by Pavilion pursuant to the
Pavilion Lease and SJPAC pursuant to the SJPAC Lease.
Pavilion Partners
South Jersey Performing Arts Center, Inc.
April 28, 1995
Page 2
1. Construction of Amphitheater. Pursuant to the provisions of the
Pavilion Lease, Pavilion is obligated to construct and thereafter operate the
Amphitheater. No remodeling, additions, modifications or other changes may be
made to the current Plans and Specifications (as such term is defined in the
Pavilion Lease) in such a manner which would result in the Amphitheater being
constructed in a manner which does not satisfy the design requirements of SJPAC
as specified in this letter.
2. Description of the Amphitheater.
(a) Upon completion of construction, the Amphitheater will be
operational as both an open air outdoor facility and an enclosed indoor
facility. The Amphitheater will also include, as part of the
Administration Building, facilities which will function as offices for
SJPAC, classrooms and a 90-seat "black box" theater (such offices,
classrooms and "black box" theaters being herein called the "SJPAC Special
Facilities"). The SJPAC Special Facilities (i) will be for the exclusive
use of SJPAC and (ii) may not be used by SJPAC (x) at such times or in
such a manner which would interfere with the production or set-up of
Pavilion's scheduled events at the Amphitheater or (y) during the
performance of any event presented by, through or under Pavilion at the
Amphitheater. Notwithstanding the provisions of the immediately preceding
sentence, (i) XXXXX's office staff shall be allowed access to SJPAC's
offices during normal business hours (8:00 a.m. to 6:00 p.m. on Monday
through Friday and 8:00 a.m. to 2:00 p.m. on Saturday) even during the
performance of an event presented at the Amphitheater by, through or under
Pavilion and (ii) SJPAC's executive director shall be allowed access to
SJPAC's offices at any time even during the performance of an event
presented at the Amphitheater by, through or under Pavilion; provided,
however, that any use of SJPAC's offices by XXXXX's staff or executive
director during the performance of an event presented at the Amphitheater
by, through or under Pavilion must be conducted in such a manner as will
not interfere with the production, set-up or performance of such event. It
is anticipated that the Amphitheater will consist of an open area seating
configuration for up to 25,000 people, which will be convertible to an
enclosed facility seating configuration for up to 7,000 people.
(b) For purposes of this letter, the SJPAC Lease and the Pavilion
Lease, (i) the "Enclosed Season" is defined as that period of time
beginning at 12:01 a.m. on October 6 of each year and ending at 11:59 p.m.
on May 9 of the next succeeding year and (ii) the "Open Air Season" is
defined as that period of time in any year not included in any Enclosed
Season.
Pavilion Partners
South Jersey Performing Arts Center, Inc.
April 28, 1995
Page 3
(c) Pavilion shall determine when conversion of the Amphitheater
between its two configurations will take place at the beginning and end of
each Enclosed Season; provided, however, conversion of the Amphitheater
(i) from its indoor to its outdoor configuration at the end of any
Enclosed Season shall not begin on or before the last SJPAC Reserved Day
(as such term is defined in Section 9 hereof) in that Enclosed Season and
(ii) from its outdoor to its indoor configuration at the beginning of any
Enclosed Season must be completed before the first SJPAC Reserved Day in
that Enclosed Season.
3. SJPAC Use of the Amphitheater During the Enclosed Season. Except for
XXXXX's use of the SJPAC Special Facilities (which is governed by the provisions
of Section 2(a) hereof), SJPAC may only use, occupy and enjoy the Amphitheater,
pursuant to the SJPAC Lease, on the days allocated to it during each Enclosed
Season pursuant to the provisions of Section 9 hereof. The number of days so
allocated to SJPAC during any Enclosed Season shall not exceed one hundred ten
(110). As used herein, the term "Pavilion's Base Number of Days" shall mean,
with respect to any Enclosed Season, a number of days equal to (i) the actual
number of days that the Amphitheater is in its enclosed configuration during
such Enclosed Season minus (ii) one hundred ten (110) days. Except for XXXXX's
use of the SJPAC Special Facilities (which is governed by the provisions of
Section 2(a) hereof), SJPAC shall have no right to use, occupy or enjoy the
Amphitheater pursuant to the SJPAC Lease during any Open Air Season.
4. [Intentionally Blank].
5. Pavilion Lease. The provisions contained in this letter are subject to
any and all provisions contained in the Pavilion Lease. XXXXX represents and
acknowledges that it has received and reviewed a copy of the Pavilion Lease. The
term of this letter shall be concurrent with the term of the Pavilion Lease. The
initial term of the Pavilion Lease is thirty-one (31) years, with two (2)
successive options for Pavilion to renew and extend the Pavilion Lease, the
first such option being for twenty (20) additional years and the second being
for an additional ten (10) years.
6. Design Consultation. XXXXX's architect has had the opportunity to
consult with Xxxxxxxx's architect in the design of the Amphitheater and
particularly in the design of the staging area, back stage, theater rigging,
lighting and other aspects of the Amphitheater of particular concern to SJPAC
and regional arts groups. As a result of this consultation, an approximately
1500 seat configuration ("Arts Configuration") for the Amphitheater has been
included in the design of the Amphitheater for SJPAC's needs.
Pavilion Partners
South Jersey Performing Arts Center, Inc.
April 28, 1995
Page 4
7. Operation of Amphitheater. Pavilion will be responsible for the day to
day operating expenses associated with the management and maintenance of the
Amphitheater except as set forth herein and agreed to by the parties. Pavilion
further agrees in its reasonable discretion to indicate, in appropriate fashion,
that the Amphitheater is the home of SJPAC.
8. SJPAC's Use of Amphitheater. The Amphitheater may be used by SJPAC
during those days in each Enclosed Season that are allocated to it pursuant to
the provisions of Section 9 hereof for use by various regional performing arts
groups subject to the following provisions:
(a) Without the prior consent of Pavilion, SJPAC may not use the
Amphitheater in any configuration other than the Arts Configuration.
(b) XXXXX shall not book a performer that would ordinarily be booked
by Xxxxxxxx without the prior written consent of Pavilion (which consent
may be withheld in Pavilion's sole, uncontrolled and absolute discretion).
(c) Notwithstanding clause (b), XXXXX may book any performer or
groups of performers who perform "serious music," such as classical music,
opera or religious music.
9. Allocation of Dates Within Each Enclosed Season. Pavilion and XXXXX
hereby agree that the days included within each Enclosed Season shall be
allocated for use between Pavilion and SJPAC in accordance with the following
terms, provisions and conditions:
(a) SJPAC's Reserved Days. SJPAC may reserve dates during each
Enclosed Season for its use ("SJPAC Reserved Days") in accordance with the
following provisions:
(i) Two Separate 2-1/2 Week Blocks. For each Enclosed Season,
SJPAC may reserve two separate blocks of SJPAC Reserved Days in
accordance with the following provisions:
(A) Each such block of SJPAC Reserved Days can be for no
longer than 17 days.
Pavilion Partners
South Jersey Performing Arts Center, Inc.
April 28, 1995
Page 5
(B) Each such block of SJPAC Reserved Days must begin on
a Monday and end on a Wednesday.
(C) Without Pavilion's prior consent, (i) "load-in" of
the event to be presented by SJPAC during either of such
blocks of SJPAC Reserved Days may not begin before the Monday
morning of such block of SJPAC Reserved Days and (ii)
"load-out" must be completed before 12:00 noon on the day
following the final performance on the last Wednesday of such
block of SJPAC Reserved Days.
(D) One of such blocks must be wholly within the month
of January of such Enclosed Season and the other of such
blocks must be wholly within one or both of the months of
February and March.
Neither such block of SJPAC Reserved Days may be reserved by SJPAC
prior to the date which is one year before the first day of the
Enclosed Season in which such block of days will be included.
(ii) Ten Single Dates, One Year Out. SJPAC may reserve up to
ten (10) SJPAC Reserved Days during each Enclosed Season in
accordance with the following provisions:
(A) No more than two of any of the days reserved by
SJPAC pursuant to this Section 9(a)(ii) may be included in any
single week.
(B) If any week includes two of the days reserved by
SJPAC pursuant to this Section 9(a)(ii), then only one of such
days may be on a Friday, Saturday or Sunday.
No date may be reserved by SJPAC pursuant to this Section 9(a)(ii)
before the date which is one year before the first day of the
Enclosed Season in which such date will be included.
(iii) Ten Single Dates, Four Months Out. SJPAC may reserve up
to ten (10) SJPAC Reserved Days during each Enclosed Season in
accordance with the following provisions:
Pavilion Partners
South Jersey Performing Arts Center, Inc.
April 28, 1995
Page 6
(A) No more than two of any of the days reserved by
SJPAC pursuant to Section 9(a)(ii) hereof and this Section
9(a)(iii) may be included in any single week.
(B) If any week includes two of the days reserved by
SJPAC pursuant to Section 9(a)(ii) hereof and this Section
9(a)(iii), then only one of such days may be on a Friday,
Saturday or Sunday.
No date may be reserved by SJPAC pursuant to this Section 9(a)(iii)
before the date which is four months before the first day of the
Enclosed Season in which such date will be included.
(iv) Remaining SJPAC Reserved Days. SJPAC may reserve any of
its remaining available days during each Enclosed Season at any time
after the date which is four months before the date being reserved.
In no event may SJPAC designate a number of SJPAC Reserved Days
pursuant to this clause (iv) for any Enclosed Season which would
cause the total number of SJPAC Reserved Days in such Enclosed
Season (regardless of whether such SJPAC Reserved Days are actually
used by SJPAC), inclusive of the SJPAC Reserved Days designated
pursuant to clauses (i), (ii) and (iii) of this Section 9(a), to
exceed one hundred ten (110) in amount.
(v) General Provisions and Procedures. SJPAC may only reserve
days for its use (x) which have not been previously reserved for use
by Pavilion and (y) for which it has a valid prospect for booking
and presenting an event. In order to reserve a day for its use,
SJPAC must provide written notice to Pavilion setting forth (i) the
day or days to be reserved, (ii) the subsection of this Section 9(a)
pursuant to which such reservation is being made and (iii) the event
planned to be presented by SJPAC on the date or dates so being
reserved.
(b) Pavilion's Reserved Dates. Pavilion may reserve any dates during
each Enclosed Season for its own use ("Pavilion Reserved Days") which have
not been previously reserved by SJPAC pursuant to Section 9(a) hereof by
recording them on the Scheduling Calendar (as such term is defined in
Section 10 hereof). Pavilion may not, pursuant to this Section 9(b),
reserve (i) a date before the date which is one (1) year prior to the date
being reserved or (ii) more than Pavilion's Base Number of Days for any
Enclosed Season.
Pavilion Partners
South Jersey Performing Arts Center, Inc.
April 28, 1995
Page 7
(c) Challenge of SJPAC Reserved Days. Commencing with the date which
is four months before the beginning of each Enclosed Season, Pavilion may
"challenge" any SJPAC Reserved Days as follows:
(i) If Pavilion has a valid prospect for booking and
presenting a performance or event on any SJPAC Reserved Day, then
Pavilion may provide written notice ("Challenge Notice") requesting
written proof that XXXXX has a firm booking on the SJPAC Reserved
Day specified in such notice.
(ii) If, within five business days after receipt of the
Challenge Notice, XXXXX is unable to deliver written evidence of a
firm booking on the SJPAC Reserved Day designated in the Challenge
Notice, then such day shall thereafter be a Pavilion Reserved Day
for all purposes hereof.
(d) Pavilion's Use of Unreserved Days. If Pavilion has designated a
number of Pavilion Reserved Days pursuant to Section 9(b) hereof with
respect to any Enclosed Season equal to Pavilion's Base Number of Days for
such Enclosed Season, then Pavilion may designate additional Pavilion
Reserved Days for such Enclosed Season in accordance with the following
provisions:
(i) Only dates which have not been previously designated as
SJPAC Reserved Days pursuant to Section 9(a) hereof may be
designated as Pavilion Reserved Days pursuant to this Section 9(d).
(ii) No date may be designated as a Pavilion Reserved Day
pursuant to this Section 9(d) prior to the date which is four months
prior to such date.
(e) Scheduling Meeting. Pavilion and SJPAC each agree with the other
that they will meet ("Scheduling Meeting"), within 90 days after the end
of the third complete Enclosed Season, to discuss and consider any
amendments to the provisions of this Section 9 which may then be advisable
in the light of operating history; provided, however, it is specifically
understood and agreed that neither party shall be under any obligation,
express or implied, to agree to any type of amendment to the provisions
hereof and either party may withhold its consent and agreement to any
amendment which may be proposed at the Scheduling Meeting for any reason
whatsoever, including arbitrary or subjective reasons. Notwithstanding
anything to the contrary contained herein, the provisions of this Section
Pavilion Partners
South Jersey Performing Arts Center, Inc.
April 28, 1995
Page 8
9 may be amended or waived by written instrument signed by authorized
representatives of Pavilion and XXXXX without the requirement of obtaining
the joinder or consent of Landlord.
10. Scheduling Procedure. The Amphitheater's general manager shall
maintain a master scheduling calendar ("Scheduling Calendar") for each Enclosed
Season on which all Pavilion Reserved Days and all SJPAC Reserved Days for such
Enclosed Season shall be appropriately recorded and designated. SJPAC shall have
access to the Scheduling Calendar during all normal business hours for its
review. Scheduling disputes between Pavilion and XXXXX shall be resolved by the
Amphitheater's general manager in accordance with the general manager's
reasonable interpretation of the provisions of Section 9 hereof.
11. Rent. Pavilion will be responsible for lease payments to the Landlord
in the amount specified in the Pavilion Lease. SJPAC will be responsible for
lease payments to the Landlord in the amount specified in the SJPAC Lease.
12. Day-to-Day Operation.
(a) Pavilion will operate the Amphitheater, during the Enclosed
Season, with a general manager and staff. All organizations utilizing the
Amphitheater during the Enclosed Season by, through or under SJPAC (the
performances or events so presented in the Amphitheater during the
Enclosed Season being herein called the "SJPAC Events") shall be required
to reimburse Pavilion for all of its actual out-of-pocket costs in
connection with the holding, presenting or performing of such SJPAC Events
subject to the best available prevailing published rate structures for the
use of the day of the show, including but not limited to front office
house, box office, back of the house (stage hands), security, ticket
sellers, ticket takers, ushers, security and police retained for the
purpose of the event and other show related personnel ("Day of Event
Costs"). Pavilion will be responsible to work with SJPAC users to
facilitate production of rental events. Pavilion will prepare operating
policies to be an addendum to all license or use agreements.
(b) Pavilion will work with XXXXX to facilitate production of SJPAC
Events. In this regard it is anticipated that Pavilion and XXXXX will
enter into an Operating Agreement (the "Operating Agreement") pursuant to
which Pavilion shall make available its production manager, general
operations manager, security manager, housestaff supervisor and an
accountant without additional cost or charge to SJPAC.
Pavilion Partners
South Jersey Performing Arts Center, Inc.
April 28, 1995
Page 9
13. Ticket Revenue. Except for the ticket surcharge required to be
collected by Pavilion and remitted to the Landlord in accordance with the
provisions of Section 304 of the Pavilion Lease, Pavilion shall be entitled to
receive and retain all ticket revenues associated with the sale of tickets for
Pavilion Events. Except for the ticket surcharge required to be collected by
XXXXX and remitted to the Landlord pursuant to the provisions of Section 104 of
the SJPAC Lease, SJPAC shall be entitled to receive and retain all ticket
revenues associated with the sale of tickets to SJPAC Events.
14. Concessions, etc. Pavilion will have the right to maintain, during
SJPAC Events, the sole and exclusive right (i) to operate all concession
facilities and operations at the Amphitheater including, without limitation, the
sale of food, beverage, alcohol, merchandise and parking at the Amphitheater and
(ii) to receive and retain all revenues associated with the operation of such
concession facilities and operations at the Amphitheater during SJPAC Events.
SJPAC will have the right to (i) utilize its own caterer for private parties
which are held on a portion of the Amphitheater premises segregated from the
public portion thereof in conjunction with any SJPAC Event (provided that no
liquor shall be sold by SJPAC at such parties), (ii) require that Pavilion or
its merchandise concessionaire offer for sale at SJPAC Events any inventory of
merchandise owned by SJPAC and (iii) receive a portion of the revenues
attributable to the sale of its own merchandise (conditioned upon reaching an
agreement with the vendor and Pavilion as to the percentage of gross revenues
payable to each of the vendor and Pavilion). XXXXX hereby agrees that the
provisions of this Section 14 shall also apply to the events to be presented by
SJPAC at the Amphitheater during the Open Air Season pursuant to the provisions
of Article VI of the Pavilion Lease.
15. Signage. Except for the commercial name and title and annual
commercial facility sponsors, Pavilion agrees to remove and/or to cover, at
XXXXX's prior request, any commercial advertising in the lobby areas and
enclosed theaters during SJPAC Events. This shall not include removal of
advertisement related to coming events of either Pavilion or SJPAC.
16. Responsible Person. XXXXX must provide written advice to Pavilion as
to the specific individual who may act on behalf of SJPAC with respect to
scheduling and other performing arts center management functions.
Pavilion Partners
South Jersey Performing Arts Center, Inc.
April 28, 1995
Page 10
17. Termination.
(a) If the Pavilion Lease or the SJPAC Lease is terminated by the
Landlord, then SJPAC shall look solely to the Landlord for any
compensation and Pavilion shall have no responsibility to compensate
SJPAC.
(b) If the Amphitheater is acquired or condemned by eminent domain
for public or quasi-public use or purpose, wholly or partially, then the
condemnation proceeds shall be split between the Landlord and Pavilion in
accordance with the provisions of Section 1103 of the Pavilion Lease. The
Landlord's share of such condemnation proceeds shall then be split between
the Landlord and SJPAC in accordance with the provisions of Section 306 of
the SJPAC Lease.
(c) If (i) the Amphitheater, in its enclosed configuration, or any
portion thereof, is destroyed or damaged by fire or other casualty and
(ii) Pavilion elects to repair and restore the Amphitheater pursuant to
Pavilion's right contained in the Pavilion Lease, then SJPAC shall have
the right to require Pavilion to restore the Amphitheater to include all
of SJPAC's design requirements which were incorporated into the
construction of the Amphitheater prior to such casualty, including,
without limitation, all of the SJPAC Special Facilities and the Arts
Configuration, if, but only if, SJPAC pays to Pavilion before commencement
of such repair and restoration work a cash sum equal to the amount of
additional costs which Pavilion's architect and contractor reasonably
determine will be incurred on account of the repair and restoration of
SJPAC's design requirements.
18. Insurance/Indemnity Provisions.
(a) Pavilion and SJPAC hereby waive all claims, rights of recovery
and causes of action which either has or may have or which may arise
hereafter against the other whether caused by negligence, intentional
misconduct or otherwise, for any damage to the Amphitheater or business
within or about the Amphitheater caused by any of the perils covered by
Pavilion's or SJPAC's fire insurance with extended coverage and with
vandalism and malicious mischief endorsements, building and contents and
business interruption insurance, or for which either party may be
reimbursed as a result of insurance coverage relating to any loss suffered
by it; provided, however, that the foregoing waiver shall apply only to
the extent of any recovery made by the parties hereto under any policy of
insurance now or hereafter issued or which would have been issued if such
party were fully in compliance with the requirements imposed upon it
pursuant to this letter, the SJPAC Lease or the Pavilion Lease and
provided further that the
Pavilion Partners
South Jersey Performing Arts Center, Inc.
April 28, 1995
Page 11
foregoing waivers do not invalidate any policy of insurance of the parties
hereto, now or hereafter issued, and it being stipulated by the parties
hereto that the waiver shall not apply in any case in which the
application thereof would result in the invalidation of any such policy of
insurance. Any additional premium caused by this waiver of subrogation
shall be paid by the party benefitted thereby.
(b) Public Liability Insurance: SJPAC and Pavilion shall each keep
in full force and effect Comprehensive General Liability Insurance, naming
the Landlord, Pavilion and SJPAC as insureds, with minimum limits equal to
the Applicable Minimum Amount (hereinafter defined) on account of bodily
injuries to or death of one or more persons as the result of any one
accident or disaster, and such additional amount sufficient to insure its
own property, on account of damage to property, which shall include Fire
Legal Liability, and shall present copies of certificates thereof to the
other parties hereto. As used herein, the term "Applicable Minimum Amount"
shall mean (A) with respect to the Comprehensive General Liability
Insurance required to be maintained by SJPAC pursuant to the provisions of
this Section 18(b), the greater of (i) $3,000,000 or (ii) the minimum
limits of Comprehensive General Liability Insurance required to be
obtained and maintained from time to time by SJPAC pursuant to the terms
of the SJPAC Lease and (B) with respect to the Comprehensive General
Liability Insurance required to be obtained and maintained by Pavilion
pursuant to the provisions of this Section 18(b), the greater of (i)
$3,000,000 or (ii) the minimum limits of Comprehensive General Liability
Insurance required to be obtained and maintained from time to time by
Pavilion pursuant to the terms of the Pavilion Lease.
(c) In the event SJPAC fails to perform any one or more of the
obligations imposed upon SJPAC pursuant to the SJPAC Lease, Pavilion, at
its option after twenty (20) days notice to XXXXX and XXXXX's failure to
cure or to commence to cure, may perform such obligations at the
reasonable cost and expense of SJPAC, and XXXXX shall reimburse Pavilion
for the reasonable and certifiable cost so incurred within thirty (30)
days of demand therefor.
(d) Liability Insurance - Indemnification: XXXXX and Pavilion shall
indemnify and save harmless each other from and against any and all claims
and demands, whether for injuries to persons or loss of life or damage to
property, arising out of the use or occupancy of the Amphitheater by such
party, excepting, however, such claims and demands, whether for injuries
to persons or loss of life or damage to property, caused solely and
exclusively by acts or omissions of the other party, its agents, employees
or contractors.
Pavilion Partners
South Jersey Performing Arts Center, Inc.
April 28, 1995
Page 12
19. Mechanic's Lien.
(a) SJPAC shall not permit any Mechanic's or Materialman's or other
Lien to exist, be placed or filed against the Amphitheater for any labor
or material furnished to SJPAC and/or in connection with work of any
character performed at the Amphitheater by or at the direction of SJPAC,
or as a result of any act or failure to act by XXXXX, or for any other
reason whatsoever.
(b) SJPAC shall indemnify and save harmless the Landlord and
Pavilion, as their interests may appear, against all loss, liability,
costs or damages as a result of any such Mechanic's Lien or other Lien,
and SJPAC shall within twenty (20) days of the filing of such Lien,
remove, pay or cancel or commence to remove, pay or cancel said Lien or
secure the payment of any such Lien or Liens by Bond or other acceptable
security.
(c) The Landlord and Pavilion shall have the right at all times and
at its own expense to contest and defend on behalf of SJPAC, any action
involving the collection, validity or removal of such Lien, or Liens upon
posting of a bond in a sufficient sum to discharge the Lien.
(d) Nothing herein contained shall be construed as a consent to
anyone on the part of the Landlord or Pavilion, either express or implied,
to subject the fee or Pavilion's leasehold estate to any Mechanic's Lien
or liability under the Mechanic's Lien Law of New Jersey.
20. Assignment and Subletting. SJPAC, XXXXX's legal representatives or
successors-in-interest to any part or the whole of the Amphitheater shall not
mortgage, pledge, encumber, assign or in any manner transfer its rights under
the SJPAC Lease voluntarily or involuntarily, by operation of law or otherwise,
nor shall SJPAC permit the Amphitheater or any part thereof to be licensed,
sublet, used or occupied for the conduct of any business by a third person or
corporation, (other than in the ordinary course of SJPAC's business) or for any
purpose other than therein authorized without the prior written consent of both
the Landlord and Pavilion, which consent may be withheld, conditioned, or
delayed in the Landlord's and Pavilion's sole discretion. Any consent by the
Landlord and Pavilion to any assignment or sublicense or other operation by a
concessionaire, or licensee, shall not constitute a waiver of the necessity for
such consent under any subsequent assignment or subletting or operation by a
concessionaire or licensee.
Pavilion Partners
South Jersey Performing Arts Center, Inc.
April 28, 1995
Page 13
21. No Alterations.
(a) SJPAC may not make any changes or additions to the Amphitheater
without the written consent of the Landlord and Pavilion. Any changes or
additions made by SJPAC without Pavilion's and Xxxxxxxx's written consent
shall be removed by SJPAC on demand.
(b) All changes or additions made with the written consent of the
Landlord and Pavilion shall become the property of the Landlord when
completed and paid for by XXXXX, except that any special acoustic or
lighting equipment installed by SJPAC for use at its events shall be
maintained by XXXXX and may be removed by XXXXX at the conclusion of the
SJPAC Lease or at such time as the use of said special equipment is no
longer required by XXXXX. The parties to this letter agree that any such
special equipment will be designated special equipment by SJPAC, and that
SJPAC will secure the prior approval of the Landlord and Pavilion for its
removal once its use is no longer required. SJPAC shall be responsible for
repairs or restoration of the building and structure as a result of the
removal of any such equipment including any costs for the repairing of all
damage caused by SJPAC's act or neglect.
22. Defaults and Remedies. If any party ("defaulting party") hereto should
fail, refuse or neglect to fulfill or perform any obligation contained herein or
otherwise violate or breach any requirement or restriction imposed upon it
pursuant to the provisions of this letter, then any other party ("non-defaulting
party") hereto shall have the right to take any combination of the remedial
steps listed below:
(a) file such lawsuits against the defaulting party as may be
necessary to pursue the non-defaulting party's rights and remedies
provided by law or equity against the defaulting party;
(b) perform the obligations of the defaulting party, in which event
the defaulting party shall be obligated to reimburse to the non-defaulting
party all expenses incurred by the non-defaulting party as a result of the
non-defaulting party's performance of such obligations of the defaulting
party, together with interest thereon at 18% per annum from the date of
expenditure; and
(c) enforce the obligation of the defaulting party under this letter
by an action for specific performance.
Pavilion Partners
South Jersey Performing Arts Center, Inc.
April 28, 1995
Page 14
This letter may not be terminated by any party hereto prior to the expiration of
the term of the Pavilion Lease.
23. Notices. All notices given under this letter, the Pavilion Lease and
the SJPAC Lease must be in writing. Each party must accept and claim the notices
given by the other. Unless otherwise provided by law, notices shall be given
hereunder by (a) personal delivery, or (b) certified mail, return receipt
requested. Notices shall be addressed to Pavilion at 000 Xxxx Xxx Xxxxxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxx Attention: Xxxxxx X. Xxxxx, Senior Vice President -
Business Affairs, with a copy to Xxxxxx & Xxxxx, P.C., 000 Xxxx Xxxxxx, Xxxxx
000, Xxxxxxx, Xxxxx 00000, Attention: Xx. Xxxxxxx X. Xxxxxx, and as to SJPAC
shall be addressed to 000 Xxxxxx Xxxxxx-Xxxxx 000, Xxxxxx, Xxx Xxxxxx 00000 to
the attention of Xxxxxxx X. Xxxxxxxx, Esquire, with a copy to Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxx & Xxxxxxx, One Centennial Square, P.O. Box 3000, Haddonfield,
New Jersey 08033; and as to the Landlord shall be addressed to Capital Place
Xxx, XX 000, Xxxxxxx, Xxx Xxxxxx 00000. Each party shall have the right to
designate a new address upon providing written notice to the other party.
24. No Waiver. Failure by any party hereto to enforce another party's
obligations under this letter, under the Pavilion Lease or under the SJPAC Lease
shall not prevent such party from enforcing such obligation or any other
obligation for any violations occurring at a later time.
25. [Intentionally Blank]
26. Each Party to Bear Own Expenses. The Landlord, Pavilion and SJPAC will
each bear their own respective expenses incurred in connection with the
negotiation, preparation and consummation of the contemplated transaction.
27. Yearly Operations Fee.
(a) SJPAC shall pay to Pavilion a yearly operations fee ("Yearly
Operations Fee") in accordance with the following provisions:
(i) For each of the Enclosed Seasons which begin on October 6,
1995 and on October 6, 1996, respectively, SJPAC shall pay to
Pavilion a Yearly Operations Fee in an amount equal to (A) $2,000
multiplied by (B) the number of days on which SJPAC Events are
actually presented during each such Enclosed Season.
Pavilion Partners
South Jersey Performing Arts Center, Inc.
April 28, 1995
Page 15
(ii) For all subsequent Enclosed Seasons during the term
hereof, SJPAC shall pay to Pavilion a Yearly Operations Fee in an
amount equal to (A) the then Applicable Daily Amount (herein
defined) multiplied by (B) the greater of (i) the number of SJPAC
Reserved Days during such Enclosed Season (regardless of whether
such SJPAC Reserved Days are actually used by SJPAC) which are not
thereafter classified as Pavilion Reserved Days pursuant to the
provisions of Section 9(c) hereof and (ii) the number of days on
which SJPAC Events are actually presented during such Enclosed
Season.
As used herein, the term "Applicable Daily Amount" shall mean, in each of
the first three Enclosed Seasons during the term of this letter, $2,000
and in each Enclosed Season thereafter, the Applicable Daily Amount shall
be increased from $2,000 on each third year thereafter by the same
percentage change in the U.S. Bureau of Labor Statistics Consumer Price
Index for the Philadelphia metropolitan area ("CPI") since the
commencement of the term of this letter. The Yearly Operations Fee shall
be payable monthly in arrears during each Enclosed Season.
(b) SJPAC shall be entitled to a yearly credit of FORTY THOUSAND
($40,000.00) DOLLARS ("yearly credit") for each Enclosed Season which can
be applied against the Yearly Operations Fee. However, such credit is not
cumulative and may not be carried forward from one Enclosed Season to the
next. If, for whatever reason, the Yearly Operations Fee should ever be
less than the yearly credit, then no payment will be required from
Pavilion to SJPAC. The yearly credit shall be adjusted and increased every
three (3) years based upon the cumulative percentage change in the CPI.
28. SJPAC's Summertime Use of the Amphitheater. Nothing contained in this
letter or in the SJPAC Lease shall limit, lessen or otherwise affect the rights
created in favor of SJPAC pursuant to the provisions of Article VI of the
Pavilion Lease by which XXXXX is entitled to present certain events and
performances at the Amphitheater during the Open Air Season on and subject to
the terms thereof.
29. [Intentionally Blank]
30. First Enclosed Season. Although Pavilion currently intends to complete
the build-out of the Arts Configuration on or before May 31, 1995, Pavilion
shall have the option to defer completion of the build-out of the Arts
Configuration until after commencement of the Enclosed Season which begins
October 6, 1995. If Pavilion exercises the
Pavilion Partners
South Jersey Performing Arts Center, Inc.
April 28, 1995
Page 16
option to defer completion of the build-out of the Arts Configuration pursuant
to the provisions of the immediately preceding sentence, then the first Enclosed
Season that SJPAC shall have the right to use the Amphitheater pursuant to the
SJPAC Lease shall be the Enclosed Season beginning on October 6, 1996. SJPAC
acknowledges that the provisions of this Section 30 shall apply and be effective
even though Pavilion may put the Amphitheater to use for Pavilion's purposes
pursuant to the Pavilion Lease during all or any portion of the Enclosed Season
which begins on October 6, 1995.
31. Provisions Regarding Parking. Pavilion agrees that SJPAC shall have
the right to use the Amphitheater Parking Facilities (herein defined) on and
subject to the following terms and conditions throughout the term of this
letter:
(a) Pavilion shall make the Amphitheater Parking Facilities
available for use by SJPAC's patrons on the days of any scheduled SJPAC
Events on the same basis that the Amphitheater Parking Facilities are made
available to Pavilion's patrons on dates that events being presented by,
through or under Pavilion are presented. Pavilion, or its designated
agents or assigns, shall have the right to collect fees from SJPAC's
patrons for the parking of vehicles in such amount as may be determined by
Pavilion, but at no time in an amount greater than the amount of the fees
then collected from Pavilion's patrons.
(b) On the night of the presentation of SJPAC Events at the
Amphitheater, Pavilion shall make up to twenty (20) parking spaces
available at no charge to selected "VIP's" designated by SJPAC in advance.
(c) On a day-to-day basis throughout each year during the term
hereof, three (3) of the parking spaces which are available to Pavilion's
employees will be allowed for use to SJPAC's employees.
As used herein the term "Amphitheater Parking Facilities" shall mean those
parking facilities which are used by Pavilion's employees and patrons on the
dates that presentations, events or performances are held at the Amphitheater
by, through or under Pavilion.
Pavilion Partners
South Jersey Performing Arts Center, Inc.
April 28, 1995
Page 17
If you are in agreement with the foregoing, please indicate by signing and
returning the enclosed copy of this letter.
Very truly yours,
NEW JERSEY ECONOMIC DEVELOPMENT
AUTHORITY
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Director
SOUTH JERSEY PERFORMING ARTS
CENTER, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman
PAVILION PARTNERS
By: SM/PACE, INC., its managing general
partner
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
