FOURTH AMENDMENT TO LEASE (Pleasant Hill)
EXHIBIT
10.22(e)
NOTE: THIS
DOCUMENT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST PURSUANT
TO RULE 406
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. PORTIONS OF THIS DOCUMENT FOR WHICH
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED HAVE BEEN REDACTED AND ARE MARKED HEREIN BY “***”. SUCH
REDACTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE COMMISSION PURSUANT TO THE CONFIDENTIAL
TREATMENT REQUEST.
Execution Version
FOURTH AMENDMENT TO LEASE
(Pleasant Hill)
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
PROPERTIES, INC., a California corporation (“Landlord”), and CENTURY THEATRES, INC., a California
corporation (“Tenant”).
R E C I T A L S:
A. Sycal Properties, Inc. (“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 Pleasant Hill, 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 has succeeded to the interests and assumed the obligation of Original Landlord as
the lessor under the Amended 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 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 *** after the Effective Date hereof. Thereafter, the Term of this Lease shall
automatically renew on *** unless Tenant delivers written notice to Landlord at least sixty
(60) days prior to the then-current expiration date of the Term that Tenant elects not to extend
the Term of the Lease.
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
Contra Costa 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 the 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) 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 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 hereof, and if the uninsured cost to repair such damage or to restore the
Leased Premises (including deductibles) exceeds $50,000, 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
(provided, however, that Landlord may nullify Tenant’s election not to undertake the repairs and
restoration, within thirty (30) days after receiving Tenant’s notice by confirming either (x) that
Landlord shall reimburse Tenant for such excess costs within 30 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 its right to terminate this Lease pursuant to Section 18 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. 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. Such demolition
shall be undertaken in Landlord’s sole discretion and at such times, manner and upon such events
as Landlord solely shall determine.
15. Alternate Rent. As of the Effective Date and if and for so long as Tenant
continues to satisfy the Operating Condition (defined in Section 4 above), 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 *** 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.
16. Early Termination — Tenant. (i) If, during any consecutive twelve (12)
calendar month period after the Effective Date (the “Test Period”), the TLCF (defined on Exhibit
“A-2” hereto) for the Leased Premises is less than ***, then Tenant shall have the right, to be
exercised by written notice to Landlord at any time when the TLCF over the most current trailing
twelve (12) month period was *** or within forty-five (45) days after such Test Period, to
terminate the Lease as provided below in this Section; provided, however, that such notice
and Tenant’s right to terminate the Lease as provided in this Section shall be void and ineffective
unless Tenant shall have satisfied the Operating Condition (defined in Section 4 above)
continuously throughout the Test Period. In order to be effective, Tenant’s notice to Landlord
under this Section 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 ***. 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.
(ii) If, at anytime during which Tenant is paying Alternate Rent, Tenant reasonably
determines that it is necessary or appropriate to undertake in any prospective 12-month period
(the “Cap Ex Test Period”), aggregate capital expenditures (i.e., expenditures required to be
capitalized rather than expensed under Tenant’s normal income tax accounting procedures) for any
repairs and maintenance to the Leased Premises in excess of *** which
Tenant is otherwise unwilling to make, then, Tenant shall have the right and option to terminate
the Lease upon thirty (30) days prior written notice to Landlord, subject to the following terms
and conditions: (A) Tenant’s notice of termination shall specify in reasonable detail the
applicable capital expenditures (the “Cap Ex Projects”), the projected commencement date of each
Cap Ex Project and the estimated costs thereof (the “Projected Cap Ex Costs”), prior to incurring
same and prior to the commencement of the Cap Ex Test Period; (B) Landlord shall have the ability
(but not the obligation) to nullify Tenant’s exercise of the termination option set forth in this
subclause (ii) by delivering written notice to Tenant within ten (10) business days after the date
of its receipt of Tenant’s termination notice stating either that (1) Landlord shall reimburse
Tenant for the amount by which the actual cost incurred by Tenant (within 30 days of receipt of
reasonable documentation of such expense) during the Cap Ex Test
Period for the identified Cap Exp Projects (but not more than the Projected Cap Ex Costs) exceed
***, or (2) Landlord waives its right to terminate this Lease pursuant to Section 17 below
during the applicable Cap Ex Test Period; (C) if Landlord so nullifies Tenant’s purported
termination, then Tenant shall be required to undertake the Cap Ex Projects not later than thirty
(30) days after the applicable dates specified in Tenant’s notice of termination and thereafter to
diligently prosecute the Cap Ex Projects to completion, at Tenant’s sole cost and expense (subject
to reimbursement from Landlord as provided above, if applicable); and (D) if Tenant fails to
undertake and complete the identified Cap Ex Projects as aforesaid, then (x) such failure shall
constitute a default by Tenant under the Lease, and (y) Landlord’s termination rights under
Section 17 below will be immediately reinstated (notwithstanding the waiver pursuant to clause (2)
above, if applicable).
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. 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 10
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.
19. 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.
20. 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:
(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.”
21. 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 Properties, Inc. | |
| 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 94901 | ||
| Attention: Xxxxx Xxxxxx, Esq. | ||
To Tenant:
|
Century Theatres, Inc. | |
| c/o Cinemark, Inc. | ||
| 0000 Xxxxxx Xxxxxxx | ||
| Xxxxx 000 | ||
| Xxxxx, XX 00000 | ||
| Attention: Legal Department |
22. 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
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]
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 X. 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.
