FOURTH AMENDMENT TO LEASE (Redwood City 12)
EXHIBIT
10.16(e)
Execution Version
FOURTH AMENDMENT TO LEASE
(Redwood City 12)
(Redwood City 12)
THIS FOURTH AMENDMENT TO LEASE AGREEMENT (this “Amendment”)is entered into as of August 7,
2006 to be effective as of the Effective Date (as defined hereinbelow) by and between SYUFY
ENTERPRISES, L.P., a California limited partnership (“Landlord”), and CENTURY THEATRES, INC., a
California corporation (“Tenant”).
R E C I T A L S:
A. Landlord and Century Theatres of California, Inc., a California corporation (“Original
Tenant”), entered into a certain Lease dated as of September 30, 1995 (the “Original Lease”), for
certain premises located in Redwood City, California.
B. The Original Lease has been previously amended by that certain (i) First Amendment to
Lease dated as of September 1, 2000 (the “First Amendment”), (ii) Second Amendment to Lease dated
as of April 15, 2005 (the “Second Amendment”), and (iii) Third Amendment to Lease dated as of
September 29, 2005 (the “Third Amendment”; the Original Lease as heretofore amended is referred to
herein as the “Lease”).
C. Tenant has succeeded to the interests and assumed the obligations of Original Tenant as
the lessee under the Amended Lease.
D. Landlord and Tenant now desire to further amend the Amended Lease, upon the terms and
conditions set forth in this Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt, adequacy and sufficiency of
which are hereby acknowledged, the Amended Lease is hereby modified and amended, and Landlord and
Tenant hereby agree, as follows:
1.
Recitals Incorporated; Certain Defined Terms. The Recitals set forth above are
incorporated into this Amendment and shall be deemed terms and provisions hereof, the same as if
fully set forth in this Paragraph 1. Capitalized terms that are used but not otherwise defined
herein shall have the respective meanings ascribed to such terms in the Lease.
2.
Effectiveness. The parties are entering into this Amendment in connection with
the contemplated acquisition of all the outstanding capital stock of Century Theatres, Inc. by
Cinemark Holdings, Inc. and Cinemark USA, Inc. (the “Acquisition”) pursuant to a Stock Purchase
Agreement dated as of the date hereof (the “Stock Purchase Agreement”). This Amendment shall
become automatically effective upon, and only upon, the closing of the Acquisition (the
“Effective Date”). In the event the Acquisition is not consummated and the Stock Purchase
Agreement is terminated, this Agreement shall become void ab initio and of no force and effect.
3. Initial Term of Lease and Extension Options. Notwithstanding anything to the
contrary in the Lease, the current Term of the Lease shall expire on the date that
is twenty-four (24) months after the Effective Date hereof. Thereafter, Tenant shall not have any options to
renew or extend the Term of this Lease.
4. Operating Condition. Tenant covenants and agrees to continuously operate and
regularly open the Leased Premises for business to the general public as a first-run motion
picture theatre complex in accordance with the Lease, at least on such days and at such times that
either the Nearby Theatre is open and operating or a majority of Century’s and Cinemark’s other
first-run motion picture theatre complexes in the County of San Mateo typically are open and
operating, subject to Excused Closures (defined below). (Tenant’s obligations under this Section 4
are referred to herein as the “Operating Condition.”) In
order to satisfy the Operating Condition, Tenant shall allocate to
and exhibit at the Leased Premises film which in its best judgment
exercised in good faith is reasonably believed to constitute at least
fifty percent (50%) of the so-called first run films exhibited at the
Leased Premises and the Nearby Theatre (as measured by the aggregate
national box-office receipts for the applicable first run films.) As used herein,
“Excused Closure” shall mean (i) periods of construction, alterations, renovation, remodeling and
repair of the Leased Premises undertaken in accordance with this Lease (including repairs and
restoration following damage or destruction due to fire or other casualty), provided that
Tenant (A) prosecutes such work to completion with reasonable diligence, (B) exercises its
reasonable efforts to minimize the length of time of such closure, and (C) exercises its best
efforts to limit the number of motion picture screens at the Premises that are not operated due to
such closure; (ii) periods when Tenant cannot practicably operate its business in the Premises as
a consequence of force majeure; and (iii) additional periods, not to exceed four (4) days in any
Lease Year, when Tenant in its sole discretion elects not to operate its business in the Leased
Premises.
5. Self-Insurance of Property/Casualty Risks. Notwithstanding anything to the
contrary set forth in the Lease, during any period in which Tenant maintains a Net Worth (as
defined below) of at least One Hundred Million Dollars ($100,000,000.00), Tenant may self insure
the so-called “physical property damage insurance” otherwise required to be maintained by Tenant
pursuant to the Lease. As used herein, the “Net Worth” of Tenant at any given time shall mean an
amount equal to the sum of (A) the product of (1) Tenant’s so-called EBITDA (i.e., earnings before
interest, income taxes, depreciation and amortization), calculated in accordance with commercially
reasonable past practice preceding the Effective Date by Tenant’s parent corporation, over the
12-month period immediately preceding the time of measurement, multiplied by (2) eight (8), plus
(B) the amount of cash and cash equivalents held by Tenant on the most recent anniversary of
Tenant’s annual insurance renewal date, minus (C) the amount of outstanding funded debt of Tenant
on such determination date.
6. Damage and Destruction — Repairs by Tenant. Notwithstanding anything to the
contrary contained in the Lease, the following shall apply to repairs and restoration upon damage
or destruction:
(A) If the Leased Premises are damaged or destroyed by any peril after the
Commencement Date of this Lease, then Tenant shall repair the damage and restore
the Leased Premises in accordance with this Section, except as provided in
subsection (B) below. Unless Tenant is not required to effect the repairs and
restoration pursuant to subsection (B) below, Tenant shall promptly apply for and
diligently seek to obtain all necessary governmental permits and approvals
for the repair and restoration of the Leased Premises and, upon issuance of such
governmental permits and approvals, promptly commence and diligently prosecute the
completion of the repairs and restoration of the Leased Premises (to the extent
permitted by applicable law) to substantially the same condition in which the
Leased Premises were immediately prior to such damage or destruction (subject to
any alterations which Tenant would be permitted to make to the Leased Premises
pursuant to this Lease).
(B) If the Leased Premises are damaged or destroyed by fire or other casualty
which occurs after the Effective Date and if the cost to repair such damage or to
restore the Leased Premises as required in subsection (A) exceeds twenty percent
(20%) of the replacement cost of the Lease Premises (as determined by an independent
architect selected by Tenant and approved by Landlord in Landlord’s reasonable
discretion), then (i) Tenant may elect, upon notice to Landlord not later than thirty
(30) days following the occurrence of the applicable casualty, not to undertake the
repairs and restoration of the Leased Premises as provided in subsection (A)
(provided, however, that Landlord may nullify Tenant’s election not to undertake the
repairs and restoration, within 30 days after receiving Tenant’s notice, by
confirming either (x) that Landlord shall reimburse Tenant for such excess costs
within thirty (3) days after the completion of the repairs and restoration and
Landlord’s receipt of reasonable supporting documentation of such costs, or (y) that
Landlord waives it right to terminate this Lease pursuant to Section 17 prior to the
date which is 12 months after the repairs and restoration are completed), and (ii) if
Tenant so elects not to undertake the repairs and restoration, then Tenant
nevertheless shall raze Tenant’s Building and remove from the Leased Premises all
building materials and debris and all underground installations that serve only the
Leased Premises (including the footings and foundations of Tenant’s Building and the
utility lines serving Tenant’s Building) and restore the surface of the Premises to a
graded and landscaped surface.
7. Permitted Assignments and Release. Notwithstanding anything in the Lease to the
contrary, the following shall apply and control:
Subject to the next sentence, Tenant may sublet or assign this Lease only upon receipt of
Landlord’s written consent which consent Landlord agrees shall not be unreasonably withheld,
delayed or conditioned. Notwithstanding anything in this Lease to the contrary, it is agreed
that at any time during the term of this Lease, Tenant may, without Landlord’s consent or
approval (but only upon prior written notice to Landlord), assign this Lease or sublet the
Leased Premises to: (i) any wholly-owned subsidiary of Tenant, and (ii) any corporation,
trust, partnership or individual that owns fifty percent (50%) or more of the issued and
outstanding stock of Tenant. A change in control of Tenant shall not constitute an
assignment of this Lease requiring Landlord’s consent or approval, provided, however, that
if any assignee under clause (i) above ceases to be a wholly owned subsidiary of Tenant,
then the same shall be deemed to constitute an assignment which is prohibited without
Landlord’s approval under Article XI of the Lease.
No assignment, subletting or other transfer of the Lease or the Leased Premises shall relieve
or release Tenant from any liabilities or obligations arising under the Lease.
8. Leasehold Financing. Notwithstanding anything to the contrary contained in the
Lease, Tenant shall have the right, without Landlord’s consent to encumber the leasehold estate
created under the Lease and/or to grant a security interest in Tenant’s removable trade fixtures,
furnishings and equipment located within the Leased Premises (but not to encumber Landlord’s fee
interest in the Premises), to secure financing provided to Tenant by any bank, thrift
institution, insurance company or other institutional lender. Tenant agrees to notify Landlord of
any such encumbrance. With respect to any such leasehold financing (and provided that Tenant is
not in default under the Lease beyond any applicable notice or cure period), upon thirty (30)
days’ prior written request from Tenant, Landlord will execute and deliver to the secured lender
a “Landlord’s Agreement” in the form attached hereto as Exhibit “A-l”.
9.
[Intentionally Omitted.]
10. Gross Sales. Notwithstanding anything in the Lease to the contrary the
definition of Gross Sales shall be as follows:
“Gross Sales” shall mean the total amount of all revenues (whether in cash or
credit) generated or derived from the conduct of any business at the Leased
Premises, including (without limitation) all box office receipts of or at the Leased
Premises (including receipts from tickets or gift certificates redeemed at the
Leased Premises regardless of the point of sale), as well as any and all receipts
from the sale of goods, services, merchandise, beverages, food, vending machines and
video games at the Leased Premises; provided, however, that the following
shall be excluded from “Gross Sales” (i) credits and refunds made with respect to
admissions or other sales otherwise included in Gross Sales, (ii) all federal,
state, county and city admission taxes, sales and use taxes, entertainment taxes,
royalty taxes, gross receipt taxes and other similar taxes now or hereafter imposed
and owing to the taxing authority by Tenant (whether such taxes are collected from
customers separately from the selling price of admission tickets or absorbed by
Tenant); (iii) receipts from the sale of gift certificates or tickets sold but not
redeemed at the Leased Premises; (iv) with respect to any tickets or admissions
ordered or paid for over the internet and redeemed at the Leased Premises, the
portion (if any) of the sale price that exceeds Tenant’s actual box-office ticket
price; (v) sales price for merchandise returned, (vi) amounts retained by credit
card issuers, (vii) sales outside of the ordinary course of business, (viii) amount
of credit card sales deemed uncollectible, (ix) advertising revenues including
without limitation media, sponsorship, and promotional advertising of any kind, and
(x) the receipts of or from so-called “four-wall deals” with a party that is not
affiliated with Tenant, except that the portion thereof or other amounts paid to
Tenant in connection with such “four-wall deals” shall be included in “Gross Sales”
under this Lease. Commissions or surcharges paid to agencies or other third parties
not affiliated with Tenant for selling tickets or processing credit card
transactions, and any sums paid to third parties not affiliated with Tenant for the
use or rental of vending machines, pay telephones, amusement machines and
other similar devices shall be deducted from “Gross Sales” (if and to the
extent previously included in “Gross Sales”).
11. Taxes. Notwithstanding any other provision of the Lease or this Amendment to the
contrary, if during the ten (10) year period immediately following the Effective Date, any sale
or change in ownership of the Premises (or against the Entire Premises, if the Premises are not
separately assessed) is consummated by Landlord and, as a result, all or part of the Premises (or
Entire Premises, if applicable) are reassessed (a “Reassessment”) for real property tax purposes
by the appropriate governmental authority under the terms of Proposition 13 (as adopted by the
voters of the State of California in the June 1978 election) or the terms of Article XIIIA of the
Constitution of the State of California, then the terms of this Section shall apply. For purposes
of this Section, the term “Tax Increase” shall mean that portion of the annual real estate taxes
assessed against the Premises (or the Entire Premise, if applicable), as calculated immediately
following the Reassessment, that is attributable solely to the Reassessment. Accordingly, a Tax
Increase shall not include any portion of the real estate taxes, as calculated immediately
following the Reassessment, that is:
| (i) | Attributable to the assessment of the value of the Premises (or Entire Premises, if applicable) prior to the Effective Date; | ||
| (ii) | Attributable to the annual inflationary increases in real estate taxes; or | ||
| (iii) | Attributable to the sale of Landlord’ s ownership interest in Tenant on or about the Effective Date, or attributable to the execution of this Amendment or any extension of the Term of this Lease on the Effective Date or thereafter. |
During the five (5) year period immediately following the Effective Date, Tenant shall not be
obligated to pay any portion of any Tax increase relating to a Reassessment.
Commencing on the fifth anniversary of the Effective Date, and continuing until the tenth
anniversary of the Effective Date, Tenant shall be obligated to pay annually only the portion of a
Tax Increase relating to a Reassessment that is equal to (or less than) an increase of four
percent (4%) per annum, compounded annually, from the Effective Date, in the annual amount owed by
Tenant for real estate taxes under the terms of the Lease, from the annual amount owed by Tenant
for real estate taxes under the terms of the Lease in calendar 2006.
The terms and provisions of this Section shall not apply to any increase in real estate taxes
which results from or is attributable to any occurrence, fact or circumstance other than a sale by
Landlord of Landlord’s interest in the Premises or a transfer effected by Landlord which is
treated as a sale by the local taxing authorities under Proposition 13 (excluding those matters
identified in clause (iii) above). This Section shall not apply from and after the tenth (10th)
anniversary of the Effective Date of this Amendment.
12. Alterations by Tenant.
Notwithstanding anything in the Lease to the contrary, the following shall apply and control:
Tenant shall have the right from time to time, at its sole cost and expense, to make
non-structural interior alterations, improvements, or changes in the Leased Premises as Tenant
shall deem necessary or beneficial consistent with Tenant’s exclusive use of the Leased Premises as
a motion picture theatre complex and if Tenant undertakes such work, Tenant must pursue such work
until completion. Tenant shall fully and completely indemnify Landlord against any mechanics’ or
other liens in connection with the making of such alterations and changes, and shall pay all costs,
expenses, and charges thereof. Alterations, changes and improvements shall be performed in a
first-class manner and must comply with all laws, zoning regulations and ordinances, and any
conditions on permits issued pursuant thereto. If it is necessary in Tenant’s reasonable judgment
to close any of the motion picture screens during the period in which any of Tenant’s work
permitted hereunder is performed, said closure(s) shall be effected only in accordance with the
provisions governing an “Excused Closure”, as that term is defined in Section 4 of this Amendment.
13. Rooftop Equipment and Access. Tenant shall have the exclusive right to install,
operate, repair, replace and maintain satellite dishes and/or other communication transmission
devices (collectively “Rooftop Equipment”) on the roof of the theatre necessary or appropriate to
accept any transmission of signals to the theatre for all permitted uses, including without
limitation, for movies, advertising, concerts, telecasts, corporate meetings or communications
and the like; but Tenant shall be prohibited from entering into any leases or licenses with any
third parties for retransmission from such Rooftop Equipment, and Tenant shall not retransmit
such signals to a third party outside of the Leased Premises. Landlord shall not use, or permit
any person or entity (other than Tenant), to use the roof or exterior walls of the theatre for any
purpose whatsoever, and Landlord agrees not to enter into any leases or licenses with third
parties for the use of the theater rooftop. Landlord shall be responsible for any damage to the
rooftop caused by the Landlord or a third party that enters onto the theatre rooftop with
Landlord’s permission, and Landlord shall indemnify and hold Tenant harmless from all loss, cost,
damage or expense which Tenant incurs as a result of the acts or omissions of said third party or
their agents or employer. Tenant hereby indemnifies and agrees to hold Landlord and Landlord’s
successors and assigns harmless from all loss, cost, damage or expense which Landlord incurs as a
result of the actions of Tenant, or its agents or employees in installing and utilizing Rooftop
Equipment as permitted hereunder. Notwithstanding the foregoing, Tenant’s exclusive rights are
subject to any agreements entered into after the Effective Date by Landlord and a licensee or
lessee regarding Rooftop Equipment provided that such Rooftop Equipment does not interfere with
Tenant’s Rooftop Equipment installed pursuant to this Section.
14. Permitted Use and Operations. From and after the Effective Date, Tenant shall be
permitted to use and operate the Leased Premises as and only as: a first-class first run motion
picture theatre complex (whether operated as a so-called “first-run” theatre and/or an “art
house” theatre) in accordance with the Operating Condition. In no event shall Tenant be
permitted to operate the Leased Premises as a so-called “second run” or “adult” theater complex.
15. Removal of Equipment, Surrender and Demolition. Upon the expiration of the Term or earlier termination of the Lease, and provided Tenant is not in default under the Lease
beyond applicable notice and cure periods, and said earlier termination is not due to Tenant’s
default under the Lease, then for a period extending forty-five (45) days beyond the date of said
expiration or termination, Tenant shall be permitted to remove any and all furniture, fixtures and
equipment owned and installed by Tenant in, on or to the Leased Premises. Such removal shall be:
(a) at Tenant’s sole cost and expense; (b) conducted in such manner that no liens or claims shall
arise or exist in connection therewith; (c) conducted in a manner to avoid unreasonable
interference with the activities of Landlord and subsequent tenants or occupants upon the Leased
Premises and Tenant shall repair all damages caused by such removal.
Upon surrender of the Leased Premises by Tenant and removal of its equipment pursuant to the
terms of the Lease and this Amendment, Landlord shall be responsible for the cost of any
demolition of the Leased Premises and site grading and restoration as a result, except as
otherwise provided in the Lease. Such demolition shall be undertaken in Landlord’s sole discretion
and at such times, manner and upon such events as Landlord solely shall determine.
16. Alternate Rent. As of the Effective Date and if and for so long as Tenant
continues to satisfy the Operating Condition (as defined in Section 4 above) (but not during
periods of Excused Closure), then in lieu of Base Rent and Percentage Rent otherwise due under the
Lease (but not in lieu of Tenant’s share of real estate taxes or any other amounts payable by
Tenant under the Lease, which will continue to be due and payable by Tenant as provided in the
Lease), Tenant shall pay to Landlord on a monthly basis an amount
equal to twelve percent (12%) of Tenant’s Gross Sales, as defined in Section 10 above. Such amount shall be paid by Tenant
monthly in arrears on or before the thirtieth (30th) day after the end of each calendar
month. Within sixty (60) days after the end of each fiscal year, Tenant shall provide a written
certification of Tenant’s Gross Sales for the prior year, executed by the chief financial officer
or controller of Tenant, which shall be subject to the same year-end reporting and reconciliation
procedures and the verification and audit rights of Landlord that apply to Percentage Rent under
this Lease.
17. Early Termination — Landlord. Landlord shall have the right, at anytime after
the Effective Date of this Amendment, to terminate this Lease upon not less than thirty (30)
days’ prior written notice to Tenant.
18.
Landlord Guaranty of Combined Theatre Level Cash Flow.
As of the Effective Date hereof, Tenant is the lessee of the motion picture
theatre complex in the “On Broadway” shopping center
project located in Redwood City, California (the “Nearby Theatre”).
For so long as (i) the Operating Condition (defined above) is satisfied by Tenant,
and (ii) Tenant is continuously operating the Nearby Theatre as a motion
picture theatre complex and open to the public for business therein at least on such days
and at such times as the majority of other Century
Theaters, Inc. and/or Cinemark USA, Inc. first-run theatres in the
County of San Mateo are open and operating, if the aggregate Theatre
Level Cash Flow (“TLCF”),
defined on Exhibit “A-2” attached
hereto, of the Leased Premises and the Nearby Theatre for any Covered Period is less Three Million Two Hundred Thousand
Dollars ($3,200,000.000) per annum (adjusted on a per diem basis for any Covered
period of less than 12 full calendar months),
then Landlord shall pay to Tenant the difference not later than thirty (30)
days after receipt of Tenant’s notice and demand
for same. As condition to Landlord’s obligations
under this Section, Tenant’s notice and demand shall include a
written certification from Tenant’s chief financial
officer or controller or similar officer confirming the amount of the TLCF of
the Leased Premises and the Nearby Theatre (stated separately) for the applicable Covered
period, and (c) within thirty (30) days after the end of each calendar month during each Covered Period,
Tenant shall notify Landlord of such TLCF of the Leased Premises and the Nearby Theatre (stated separately),
by written certification executed by the chief financial officer,
controller or similar executive officer of Tenant. As used herein, the term “Covered period” shall
mean the period commencing on the Effective Date of this Amendment and
expiring on the earlier of (i) the end of the second
(2nd) anniversary of
the Effective Date or (ii) the date Landlord executes a lease or a development agreement for the redevelopment of the Leased Premises with
the City of Redwood City. Upon the expiration of the Covered Period, the Lease shall automatically
terminate and neither Landlord nor Tenant shall have any further obligations under the Lease (except for obligations which expressly survive
termination).
19. Restrictive Covenant. Landlord covenants and agrees that upon the termination of
the Lease for any reason other than the default of the Tenant, no portion of the Entire Premises
including the Leased Premises shall be used as a motion picture theater complex for a period of 20
years. The terms and provisions of this Section shall survive the termination of the Lease
except that the foregoing restrictive covenant shall not apply if the Lease is terminated as a
consequence of a default by Tenant. Such restrictive covenant shall run with the land. Landlord
agrees to execute within thirty (30) days after the request by Tenant a restrictive covenant in
form appropriate for recording containing the restrictions contained herein. Tenant shall be
responsible for the cost of all such recording fees.
20. California Remedies. Landlord’s remedies upon a default under the Lease shall
include, without limitation, the following:
Even though Tenant has breached the Lease and/or abandoned the Premises, this Lease shall
continue in effect for so long as Landlord does not terminate Tenant’s right to possession,
and Landlord may enforce all of its rights and remedies under this Lease, including (but
without limitation) the right to recover Rent as it becomes due. Landlord has the remedy
described in Section 1951.4 of the Civil Code of the State of California or any successor
code section (Landlord may continue the Lease in effect after Tenant’s breach and
abandonment and recover rent as it becomes due, if Tenant has the right to sublet or
assign, subject only to reasonable limitations). Acts of maintenance, preservation or
efforts to lease the Premises or the appointment of receiver upon application of Landlord
to protect Landlord’s interest under this Lease shall not constitute an election to
terminate Tenant’s right to possession.
21. Termination of Lease and Lessee’s Right to Possession. Section 15.02(C) of the
Lease shall be deemed deleted in its entirety and replaced with the following:
“If an event of default occurs, Landlord shall have the right, with or without notice or
demand, immediately (after expiration of the applicable grace periods) to terminate this Lease,
and at any time thereafter recover possession of the Premises or any part thereof and expel and
remove therefrom Tenant and any other person occupying the same, by any lawful means, and again
repossess and enjoy the Premises without prejudice to any of the remedies that Landlord
may have under this Lease, or at law or equity by reason of Tenant’s default or of such
termination. Should Landlord terminate this Lease pursuant to foregoing, Landlord shall have all
the rights and remedies of a landlord provided by Section 1951.2 of the Civil Code of the State of
California, or successor code section. Upon such termination, in addition to any other rights and
remedies to which Landlord may be entitled at law or in equity, Landlord shall be entitled to
recover from Tenant:
(A) the worth at the time of award of the unpaid Rent which had been earned at
the time of termination;
(B) the worth at the time of award of the amount by which the unpaid Rent
which would have been earned after termination until the time of award exceeds the
amount of such Rent loss that the Tenant proves could have been reasonably avoided;
(C) the worth at the time of award of the amount by which the unpaid Rent for
the balance of the Term after the time of award exceeds the amount of such Rent
loss that the Tenant proves could be reasonably avoided;
(D) any other amount, and court costs, necessary to compensate Landlord for
all the detriment proximately caused by Tenant’s failure to perform its obligations
under this Lease or which, in the ordinary course of things, would be likely to
result therefrom; and
(E) for any other sums due.”
22. Notices. The notices provisions of the Lease, as the case may be, shall be deemed
deleted in their entirety and replaced with the following:
(a) Except as otherwise expressly and specifically in this Lease provided, a
xxxx, demand, statement, consent, notice or other communication (“notice”) which
either party may desire or be required to give to the other party shall be deemed
sufficiently given or rendered if in writing, delivered personally to the party to
be charged therewith or sent by certified mail (return receipt requested) or private
express mail courier service (postage or delivery or courier fees fully prepaid)
addressed to such party at the addresses set forth in subparagraph (c) below
(including the addresses for copies of notices) and/or at such other address(es) as
such party shall designate to the other party by notice given as herein provided. If
Landlord is notified of the identity and address of Tenant’s Leasehold Mortgagee,
Landlord shall give such party any notice served upon Tenant hereunder to the last
known address of such Leasehold Mortgagee as provided by Tenant to Landlord by
certified mail or private express courier service. If Tenant is notified of the
identity and address of Landlord’s mortgagee, Tenant shall give such mortgagee any
notice served upon Landlord hereunder to the last known address of such mortgagee as
provided by Landlord to Tenant, by certified mail or private express courier
service.
(b) Any notice given in accordance with the foregoing provisions of this
Section shall be deemed effective upon the earlier of (i) if the notice is
personally delivered, the date actually received by intended recipient, (ii) if the
notice is sent by certified mail, five (5) days after the same is mailed, or (iii) if
the notice is sent by private overnight courier service (e.g., Federal Express. DHL
or similar courier), one (1) day after the same is delivered to or picked up by such
courier. Rejection or refusal to accept a notice or the inability to deliver same
because of a changed address of which no notice was given shall be deemed to be
a receipt of the notice sent. Notwithstanding any provision to the contrary
contained in this Lease, no provision in this Lease shall preclude service of
notices in accordance with Section 1162 of the California Code of Civil Procedure or
any similar and/or successor code sections.
(c) Addresses for Notices to Landlord and Tenant.
Notices are to be delivered, mailed or couriered to the following
address(es):
| To Landlord: | Syufy Enterprises, L.P. 000 Xxxxxxx Xxx Xxx Xxxxxx, Xxxxxxxxxx 00000 Attention:President |
|||
| with a copy to: | Syufy Enterprises, L.P. 000 Xxxxxxx Xxx Xxx Xxxxxx, Xxxxxxxxxx 00000 Attention: General Counsel |
|||
| and a copy to: | DLA Piper 000 Xxxxx XxXxxxx Xxxxx 0000 Xxxxxxx, XX 00000 Attention: Xxxxx Xxxxxx, Esq. |
|||
| To Tenant: | Century Theatres, Inc. c/o Cinemark, Inc. 0000 Xxxxxx Xxxxxxx Xxxxx 000 Xxxxx, XX 00000 Attention: Legal Department |
Tenant and Landlord may change their respective addresses for purposes of this
section by giving written notice of such change to the other.
23. Miscellaneous Amendments. Notwithstanding anything contained herein to the
contrary, whenever any of the terms “Leased Premises”, “Demised Premises” or “Premises” (and
whether or not capitalized) is used herein, it shall be understood to mean the “premises leased
hereby”; and whenever the term “Entire Premises” is used herein (and whether or not capitalized),
it shall be understood to mean all of the contiguous land and buildings owned by
Landlord at this location, which include the premises leased hereby.The term “Non-leased
Premises” shall mean the Entire Premises less the Leased Premises.
24. Prior Amendments. All of the provisions of the First Amendment are hereby deleted
in their entirety and of no further force and effect except for (i) the first grammatical
paragraph of Paragraph A concerning the definition of Consumer Price Index and (ii) Paragraph
Econcerning the Indemnity and Hold Harmless. The Second Amendment and the Third Amendment are
hereby deemed to be void ab initio — it being the intent of the parties hereto that this Amendment
shall supersede such Second Amendment and Third Amendment in their entirety.
25. Effect of Amendment. The Amendment modifies and amends the Lease, and the terms
and provisions hereof shall supersede and govern over any contrary or inconsistent terms and
provisions set forth in the Lease. The Lease, as previously amended and as hereby further amended
and modified, remains in full force and effect and is hereby ratified and confirmed. All future
references in the Lease to the “Lease” shall mean and refer to the Lease, as amended and modified
by this Amendment.
[Signatures Appear on Next Page]
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as of the date
herein above provided.
| Landlord: | ||||||
| SYUFY ENTERPRISES, L.P., a California limited partnership | ||||||
| By: | /s/ Xxxxxx Xxxxx
|
|||||
| Name: |
|
|||||
| Title: | ||||||
| Tenant: | ||||||
| CENTURY THEATRES, INC., a California corporation | ||||||
| By: | /s/ Xxxxxxx Xxxxx | |||||
| Name: | ||||||
| Title: | ||||||
EXHIBIT “A-2”
Definition of Theatre Level Cash Flow
“Theatre Level Cash Flow” shall mean all revenues attributable to the Leased Premises over the
applicable measurement period, less expenses clearly attributable to the Leased Premises over the
same period as reflected on the applicable individual theatre level cash flow statement calculated
by the company using consistent methods and policies as that utilized by the company in determining
the theatre cash flow on substantially all of its other individual theatre properties.
Revenues shall include box office receipts (less applicable admission tax), concession receipts
(less applicable sales tax), game revenues (less applicable sales tax), pay phone revenue, studio
and other rental income, ATM revenue, revenue from tickets redeemed at the theatre from internet or
other off-site ticketing (but not related fees charged for such service or revenue from unredeemed
tickets), and any other revenues attributable to the operations of the theatre.
Expenses shall include all costs necessary to operate the theatre and theatre, including but not
limited to film rental, snack bar cost of sales (net of all applicable rebates from vendors),
payroll expenses attributable to employees working at the theatre, advertising costs, security
expenses, janitorial expenses, maintenance (excluding capitalized expenses), repairs (excluding
capitalized expenses), supplies, utilities, telephone expenses, freight, bank and credit card
expense, business tax and licenses, cash shortages, base rent, percentage rent, common area
maintenance, property taxes, and insurance.
Expenses specifically excluded include charges for off-site administration costs, income taxes,
interest, and depreciation & amortization.
