THIRD AMENDMENT TO LEASE (Union City, California)
EXHIBIT 10.25(d)
Execution Version
THIRD AMENDMENT TO LEASE
(Union City, California)
THIS THIRD AMENDMENT TO LEASE AGREEMENT (this “Amendment”) is entered into as of August 5,
2006 to be effective as of the Effective Date (as defined hereinbelow) by and between XXXX
TRIANGLE, LLC, a California limited liability company (“Landlord”), and CENTURY THEATRES, INC., a
California corporation (“Tenant”).
R E C I T A L S:
X. Xxxx City Triangle LLC, a California limited liability company (“Original Landlord”) and
Century Theatres, Inc., a Delaware corporation (“Original Tenant”), entered into a certain Lease
dated as of April 10, 1998 (the “Original Lease”), for certain premises located in Union City,
California.
B. The Original Lease has been previously amended by that certain (i) First Amendment to
Lease dated as of April 15, 2005 (the “First Amendment”) and (ii) Second Amendment to Lease dated
as of September 29, 2005 (the “Second 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 Amendment shall become void ab initio and of no force and effect.
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3. Site Plan. The Site Plan attached as Exhibit A to the Original Lease is hereby
deleted and replaced by Exhibit A attached hereto and made a part hereof. All references in the
Lease to the Site Plan shall mean and refer to Exhibit “A” attached hereto.
4. Extension of Term. The second sentence of Section 3.02 of the Original Lease
shall be deemed deleted in its entirety and shall be of no further force or effect.
5. 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 Contra Costa and
Alameda County 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.
6. Trade Name. Notwithstanding Sections 1.02.4 and 10.01 of the Original Lease, if
Tenant shall change the trade name under which the majority of its motion picture theater
complexes are operated, or if Tenant shall assign the Lease or sublet the Premises in accordance
with Lease, then the Premises may be operated under the trade name used by Tenant or such
assignee or subtenant (as the case may be) in the majority of the motion picture theatre
complexes that it operates in the San Francisco/Bay area.
7. Hours of Operation. Notwithstanding anything contained in Section 10.02 of the
Original Lease to the contrary, Tenant shall not be obligated to open or operate its business in
the Premises on such days or at such times that a majority of other first-class motion picture
theater complexes (whether owned by Tenant or others) in Contra Costa and Alameda County,
California market area typically are not open and operating for business.
8. 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
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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.
9. 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.
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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-pocket costs to adjust and settle the loss, shall be distributed to and used by Tenant,
in accordance with the Lease.
10. 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, its 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, (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 XVIII 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 8
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.
11. 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)
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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”.
12. 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.
13. 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
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devices shall be deducted from “Gross Sales” (if and to the extent
previously included in “Gross Sales”).
14. Taxes. Notwithstanding any other provision of the Lease or this Amendment to the
contrary, if during the seven (7) 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 Acquisition 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 seven (7) year period immediately following the Effective Date, Tenant shall not be
obligated to pay any portion of any Tax Increase relating to a Reassessment.
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 seventh
(7th) anniversary of the Effective Date of this Amendment.
15. 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
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indemnify Landlord against any mechanics’ or other liens in connection
with the making of such alterations, changes and improvements, 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 5 of this Amendment. In addition, Tenant
shall not move the main entrance of the theater without Landlord’s
prior written consent, which consent may be withheld in Landlord’s
sole and absolute discretion.
16. Conditions of Record. Notwithstanding anything contained in the Lease to the
contrary (including, without limitation, Section 2.04 of the Original Lease), Tenant shall not be
bound by any future documents of record, if and to the extent that the terms and provisions
thereof would (i) conflict with Tenant’s express rights and privileges under the Lease or
Landlord’s express duties and obligations under the Lease, or (ii) materially and adversely impact
Tenant’s operation of the Premises as a motion picture theatre, or (iii) materially increase the
cost to Tenant of operating its business at the Premises. In addition, Landlord covenants and
agrees that any covenants or other restrictions of record hereafter recorded against the Entire
Premises (or any portion thereof) and binding upon the Premises will be applied in a
non-discriminatory manner to all tenants and occupants of the Entire Premises (subject to
reasonable and customary distinctions for size and use of the affected premises).
17. 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 existing on the date hereof and any extensions
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thereof that may be exercised by the licensee or lessee thereunder regarding Rooftop Equipment.
The lessees or licensees under such agreements may unilaterally extend or renew if and to the
extent provided under such agreements, but Landlord may not renew or extend such agreements or
extend such agreements unilaterally if such systems interfere with the transmission received by
Tenant’s Rooftop Equipment installed pursuant to this Section.
18. Alterations
and Development by Landlord.(i) Notwithstanding anything to the
contrary set forth in the Lease (including, without limitation, Section 2.02 and Section 2.03),
and except as substantially shown on the Site Plan attached hereto, Tenant’s prior written consent
(which shall not be unreasonably withheld, delayed or conditioned) shall be required only with
respect to any new buildings, improvements (but not maintenance or repairs), alterations or
additions located or proposed to be located within the “Protected Area” (but not outside the
Protected Area) of the Entire Premises (as shown on the Site Plan). Tenant shall not withhold its
consent unless any such new buildings, improvements, alterations or additions would 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) in a direct and demonstrable manner.
| (ii) | Landlord shall not lease, sell or use any space on the Entire Premises or contiguous property which permits the operation of a motion picture theater. | ||
| (iii) | 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 the Entire 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. | ||
| (iv) | 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 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. In addition, Landlord shall not place any carts, kiosks, or other temporary structures selling any items within the No Kiosk Area as shown on the Site Plan. | ||
| (v) | Any new buildings shall be limited to retail, restaurant, residential and/or office uses. |
19. Signage. Notwithstanding Section 14.04 of the Original Lease to the contrary,
Tenant shall not be required to remove or pay for the removal of its signage (or the installation
of new signage) as a consequence of Landlord’s revision of the Sign Criteria. The responsibilities
of Tenant with respect to the maintenance, repair and replacement of Tenant’s
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signage shall be governed by Article XI of the Lease, subject to the restrictions and approval
rights of Landlord under Article XIV of the Lease (as hereby amended). If new pylon and/or
monument signs are constructed in the Entire Premises, as to any such signs on which Tenant has a
sign panel, Tenant will pay Tenant’s pro rata share (based on the relative size of Tenant’s sign
panel to all of the sign panels on the applicable signs) of the costs to construct such signs. In
the event any such new signs are constructed, Tenant shall have the right, but not the obligation,
to place its sign panel at the top sign panel position on such signs. Tenant must elect to install
such panels within thirty (30) days after Landlord notifies Tenant that the sign structure is
available for sign panels, and if Tenant so elects, Tenant shall promptly thereafter install
Tenant’s sign panel(s).
20. Competition/Radius Restriction. The radius restriction in Section 10.03 of the
Original Lease shall not apply to any motion picture theatre complex which is developed, open and
operating for business prior to Tenant or any affiliate of Tenant acquiring (or agreeing to
acquire) any interest therein (as owner, lessee, operator, manager or otherwise).
21. Removal of Equipment, Surrender and Demolition. Upon the expiration of the Term
or earlier termination of the Lease, 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. Notwithstanding
anything in this Lease to the contrary, in no event shall Tenant be obligated to remove and/or
demolish the theater building (except as required by Section 9(B) above).
22. 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.
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23. Termination of Lease and Lessee’s Right to Possession. The fourth (4th) sentence
of the fourth (4th) paragraph of Section 22.02 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.”
24. 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
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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: | Xxxx Triangle, LLC | |||
| c/o SyWest Development | ||||
| 000 Xxxxxxx Xxx | ||||
| Xxx Xxxxxx, Xxxxxxxxxx 00000 | ||||
| Attention: Xxxxxxx Xxxxxx | ||||
| 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.
25. 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.
26. Prior Amendments. The First Amendment and the Second Amendment are hereby deemed
to be void ab initio — it being the intent of the parties hereto that this
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Amendment shall replace and restate such First Amendment and Second Amendment in their entirety.
27. 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.
28. Passes. On the condition that Syufy Enterprises, LP is affiliated with Landlord,
Tenant shall provide Landlord with one hundred twenty-five (125)
passes each good for admission
by bearer, plus a guest each year. The passes shall carry no surcharge or fee and shall not
otherwise impose restrictions beyond those required by the film distribution companies. The passes
shall provide admission to any of Tenant’s and Tenant’s affiliates’ theaters in the United States.
29. Premises. Notwithstanding the provisions with Section 2.01 of the Lease, the
“Premises” or “Leased Premises” shall mean Tenant’s theatre building as constructed as of the date
of 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:
XXXX
TRIANGLE LLC., a California limited COMPANY
| By: | Syufy Enterprises, LP, a California limited partnership | |||||
| Its: | Co Owner | |||||
| By: | Syufy Properties, Inc., a California corporation | |||||
| Its: | General Partner | |||||
| By: | /s/ Xxxxxxx Xxxxxx | |||||
| Xxxxxxx Xxxxxx | ||||||
| Its: | Senior Vice President | |||||
| By: | Sycal Properties, Inc., a California corporation | |||||
| Its: | Co-Owner | |||||
| By: | Syufy Properties, Inc., a California corporation | |||||
| Its: | Sole and Managing Member | |||||
| By: | /s/ Xxxxxxx Xxxxxx | |||||
| Xxxxxxx Xxxxxx | ||||||
| Its: | Senior Vice President | |||||
Tenant:
CENTURY
THEATRES, INC., a California corporation
| By: | /s/ Xxxxx Xxxxxxxxx | |||||
| Name: | XXXXX XXXXXXXXX | |||||
| Title: | PRESIDENT & CEO |
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