FOURTH AMENDMENT TO LEASE (Napa 8)
EXHIBIT
10.24(e)
Execution Version
FOURTH AMENDMENT TO LEASE
(Napa 8)
(Napa 8)
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 (then known as Syufy Enterprises, a California limited partnership
(“Original 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 Napa, 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 Lease.
D. Landlord has succeeded to the interests and assumed the obligation of Original
Landlord as the lessor under the Lease.
E. 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 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.
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3. Initial
Term of Lease and Extension Options. Notwithstanding anything to the
contrary in the Lease but subject to the provisions of the Lease applicable to the exercise and
validity of such Renewal Terms, the Initial Term of the Lease is hereby extended to and shall
expire on
September 30, 2016
and rather than
two (2)
Renewal Terms of five (5) years each
(as provided in the Lease), Tenant shall have
the option to extend the Initial Term for four (4) consecutive Renewal Terms of
five (5) years each, followed by
one (1) additional and final Renewal Term of four (4) years.
4. Landlord’s Recapture Right. If, at any time during the term of the Lease, Tenant
fails to satisfy the Operating Condition (defined below), for reasons other than Excused Closure
(defined below), and such failure continues for six (6) consecutive months or more, then upon
notice from Landlord to Tenant at any time thereafter (provided that the Operating Condition
remains unsatisfied), Landlord shall have the right to terminate the Lease and to recapture the
Leased Premises, without payment to Tenant, effective upon the date set forth in Landlord’s
termination notice (but not sooner than 30 days after the date of the termination notice).
The term “Operating Condition” shall mean and require that the entire Leased Premises is being
continuously operated and regularly open for business to the general public as a motion picture
theater complex in accordance with the Lease, at least on such days and at such times that a
majority of Century’s and Cinemark’s other motion picture theater complexes in the County of Napa
typically are open and operating. The term “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 reasonable 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.
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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) Tenant’s Obligation to Repair. 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 (A) and (B), except as
provided in subsection (B) hereinbelow. 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) Damage in Excess of 20%. If the Leased Premises are damaged or destroyed
by fire or other casualty which occurs in the last two years of the Initial Term or any
Renewal Term and Tenant has no further options to extend the term of the Lease, and if the
cost to repair such damage or to restore the Leased Premises as required in Section (A)
exceeds twenty percent (20%) of the replacement cost of the Leased Premises (as determined
by an independent architect selected by Tenant and approved by Landlord in Landlord’s
reasonable discretion) and such damage makes it impracticable to operate the Leased
Premises in the reasonable business judgment of Tenant, then (i) Tenant shall have the
option, upon notice to Landlord not later than one hundred eighty (180) days following the
occurrence of the applicable casualty, not to undertake the repairs and restoration of the
Leased Premises, 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.
Notwithstanding anything to the contrary contained in the Lease, the proceeds of any property
insurance maintained by Tenant (including proceeds of self-insurance, if applicable), net of
actual-out-of-pocket costs to adjust and settle the loss, shall be distributed to and used by
Tenant, in accordance with the Lease.
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)
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any wholly-owned subsidiary of Tenant, (ii) any corporation, trust, partnership or
individual that owns fifty percent (50%) or more of the issued and outstanding stock
of Tenant, or (iii) any legal entity that is engaged in the motion picture exhibition
business and operates motion picture theater complexes containing at least 100
theater screens (auditoria), excluding the Leased Premises and any other premises
concurrently being acquired from 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.
If Tenant shall assign this Lease pursuant to clause (ii) or clause (iii) above,
and provided that (A) the assignee assumes in writing all obligations of Tenant under
the Lease and delivers such executed written assumption to Landlord, and (B) Landlord
shall have received from assignee’s chief financial officer or controller a
certification that the Net Worth of the assignee (determined as provided above)
equals or exceeds $100,000,000.00 calculated in accordance with Cinemark USA, Inc.’s
methodology in calculating Net Worth as set forth in Section 5 hereof, then Tenant
shall be released of any and all liability thereafter arising under the Lease. Except
as expressly provided above, 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. Memorandum of Lease. On the Effective Date, Landlord and Tenant will enter into
and record a short form memorandum of the Lease, in the form of Exhibit “A-2” attached
hereto or otherwise in proper form for recording. Tenant shall be solely responsible for the cost
of recording the memorandum, including (if applicable) any transfer taxes that may be due and
payable in connection with the Lease.
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
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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
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(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 (5th) anniversary of the Effective Date, and continuing until the
tenth (10th) 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 interior
alterations, improvements, or changes in the Leased Premises as Tenant shall deem necessary or
beneficial in Tenant’s use of the Leased Premises as a motion picture theatre complex, including
(without limitation) the conversion to stadium seating of the auditoria (if any) in the Leased
Premises. 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. Any alterations, improvements or changes by Tenant must be
consistent with the use and operation of the Leased Premises as a motion picture theater complex.
Tenant shall be required to complete all alterations, improvements or changes that Tenant
undertakes. 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
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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.
14. Alterations and Development by Landlord. Landlord agrees that with respect to
the Entire Premises, the following restrictions shall apply to Landlord’s usage and improvement
thereof:
(a) Any alterations or new construction to the Entire Premises or contiguous property owned
or controlled by Landlord or its affiliates as of the Effective Date (the “Contiguous Property”)
may be made without Tenant’s consent only if such alterations or new construction do not
materially and adversely affect Tenant’s operations (including, without limitation, parking,
access, ingress and egress to the theatre building and visibility of the theatre building and/or
on-building theatre signage). Any such alterations or new construction on the Entire Premises and
any cross parking or cross access arrangements between the Entire Premises and the Contiguous
Property will first be submitted to Tenant for approval, not to be unreasonably withheld or
delayed, and Tenant shall be required to identify the manner in which Tenant’s operations are so
affected. If Landlord and Tenant are unable to agree on whether such alteration or new
construction materially and adversely affects Tenant’s operations, including without limitation,
parking, access, ingress and egress and visibility, the parties agree to submit the issue to
binding arbitration pursuant to the Lease.
(b) Landlord shall not lease, sell or use any space on Non-leased Premises or the Contiguous
Property for operating a motion picture theatre.
(c) Subject to existing leases, licenses and operating agreements, Landlord shall not lease,
license, enter into an operating agreement for, sell or use any space on Non-leased Premises for
operating the following: a bowling alley; a bar or lounge (other than a bar or lounge that is
connected with a restaurant, deriving 50% of its revenues from the sale of food); a liquor store
(other than first-class or upper-end wine or liquor store such as “BevMo”); a bulk candy store,
(other than upper-end candy stores such as Godiva, Sees, Rocky Mountain Chocolates and similar
concepts); a popcorn store; a massage parlor or adult (i.e., pornographic) book store.
(d) Landlord shall not place any carts, kiosks or other temporary structures selling food
and/or beverages within common areas of the Entire Premises unless such carts, kiosks or other
structures are more than 500 feet from the theatre. Such carts and kiosks may not sell any
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food or beverages sold in the theatre. Landlord shall not place any vending machines selling food
and/or beverages on the common areas of the Entire Premises unless such vending machines are more
than 500 feet from the theatre.
(e) Any new buildings shall be limited to retail, restaurant, residential and/or office uses.
15. 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 motion picture
theatre complex (whether operated as a so-called “first-run” theater and/or an “art house”
theatre). In no event shall Tenant be permitted to operate the Leased Premises as a so-called
“adult” theater complex or a so-called “second-run” theater complex.
16. 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.
17. Early Termination — Opening of Nearby Theatre. As of the Effective Date hereof,
Tenant is the lessee under a lease agreement (the “Nearby Theatre Lease”) for the motion picture
theatre complex located or to be located at the proposed “Xxxxxx
Court Development” in Napa,
California (the “Nearby Theatre”). As of the date the Nearby Theater opens for business to the
public, the Lease shall be terminated
18. Early Termination — Cancellation of Nearby Theatre Lease. In the event during
any consecutive twelve (12) calendar month period from the Effective Date (the “Test Period”) the
Nearby Theatre is not constructed and open for business to the general public, and if the Theatre
Level Cash Flow (“TLCF”), as defined in Exhibit “A-3” hereto, for the Leased Premises
over the Test Period is less than zero, then Tenant shall have the right, to be exercised by
written notice to Landlord at any time when the most current trailing twelve (12) month period
was negative or within forty-five days after such Test Period, to terminate the Lease as provided
below in this Section 18; provided, however, that Tenant shall have concurrently
or previously terminated the Nearby Theatre Lease; and provided further, that
such notice and Tenant’s right to terminate the Lease for the applicable Test Period shall be
void and ineffective unless Tenant shall have satisfied the Operating Condition (defined above)
continuously
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throughout the applicable Test Period. Further, in order to be effective, Tenant’s notice to
Landlord under this Section 18 shall include a written certification to Landlord from Tenant’s
chief financial officer or controller confirming that the TLCF for the Test Period is less than
zero. Provided Tenant has satisfied the aforesaid conditions, then this Lease shall be terminated
effective as of the date which is thirty (30) days after the termination notice.
19. Restrictive Covenant. Landlord covenants and agrees that if, upon the termination
of the Lease for any reason, other than the default of Tenant, Tenant or an affiliate of Tenant is
leasing and operating a Nearby Theater pursuant to the Nearby Theater Lease, then no portion of
the Entire Premises including the Leased Premises shall be used or operated as a motion picture
theater complex prior to the date which is the first to occur of (i) ten (10) years from the date
that the Nearby Theater is or was first open to the general public and operated as a motion
picture theater complex or (ii) the termination or expiration of the Nearby Theater Lease or (iii)
the Nearby Theater ceasing to be open to the public and operating as a first-run motion picture
theater complex, for reasons other than Excused Closures for a continuous period of eighteen (18)
months or more. The terms and provisions of this Section 19 shall survive the termination of the
Lease except that the foregoing restrictive covenant shall not apply if the Lease is terminated as
a consequent of a default by Tenant. Such restrictive covenant shall run with the land. Landlord
agrees to execute within thirty (30) days after request by Tenant a restrictive covenant in form
appropriate for recording containing the restrictions contained herein. Tenant shall be
responsible for the costs 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
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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:
(1) the worth at the time of award of the unpaid Rent which had been earned at the
time of termination;
(2) 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;
(3) 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;
(4) 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
(5) 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
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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 E
concerning 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
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this Amendment shall replace and restate 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]
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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 Syufi | |||||
| Name: | Xxxxxx Syufi | |||||
| Title: | President |
Tenant:
CENTURY THEATRES, INC., a California corporation
| By: | /s/ Xxxxxxx X. Syufi | |||||
| Name: | Xxxxxxx X. Syufi | |||||
| Title: | Chief Executive Officer |
EXHIBIT “A-3”
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.
A-3-1
